The interior minister cannot, under existing law, negate the residency of four east Jerusalem men who were elected to the Palestinian Legislative Council on a Hamas-affiliated slate, the High Court of Justice ruled on Wednesday.
But if the state wants such authority, the court said in a 6-3 split decision, the Knesset must pass a law to authorize negating residency due to “a violation of faith” to the state, even without there being any concrete security dangers.
The court gave the Knesset six months before residency would be fully restored to the four Arabs who submitted the petition.
Arabs living in east Jerusalem have the right to permanent residency, even though virtually all of them have rejected voting in Israeli elections.
The four east Jerusalem men in question are: Palestinian Authority parliament members Muhammad Abu Tir, Ahmad Atwan and Muhammad Tutach, with the PA minister for Jerusalem affairs being Khaled Abu Arafa.
Then-interior minister Ronnie Bar-On disqualified their permanent residency status in 2006 following their election on a Hamas-affiliated slate.
Bar-On disqualified them for violating faith to the State of Israel by having a political affiliation with Hamas.
The case bounced around for several years, including negotiations between ever-changing Israeli interior ministers and the four men about whether they had cut ties with Hamas and quit their parliamentary roles.
It finally was put before the full nine-justice panel in 2015, after several rounds of negotiation to resolve the issue had failed.
Usually, legal measures are taken against persons who take part in Hamas’s military activities, and the organization is illegal, but this was the only time that the residency of east Jerusalemites was disqualified for simple political affiliation. There are often legal battles about whether Arab Knesset members should be allowed to run for election, with charges that they do not support Israel as a Jewish state, but usually the MKs are allowed to run, and the question there is never about revoking residency.
Justice Uzi Vogelman, who wrote the majority decision, emphasized the extra sensitivity due east Jerusalemites as opposed to West Bank Palestinians.
“Most of them were born, grew up and became adults in east Jerusalem, and they live there for decades as well as their parents, and sometimes even their grandparents,” he wrote.
Vogelman also wrote that the decision should not “weaken the hands of those fighting the war on terrorism,” though he cautioned that “even with the war on terrorism, the State of Israel limits itself to operate within the law.”
Supreme Court President Miriam Naor, her designated successor, Esther Hayut, and Justices Yoram Danziger, Salim Joubran and Daphne Barak-Erez voted with Vogelman.
Justices Neal Hendel, Hanan Melcer and Elyakim Rubinstein dissented, arguing that there should be redlines that persons with permanent residency cannot cross, and that the four men had crossed a redline by affiliating with Hamas.
Rubinstein wrote that if someone spit in your face, you should not pretend that it was rain falling from the sky.
Adalah – The Legal Center for Arab Minority Rights in Israel – which joined the petitioners, responded to the ruling, stating, “The High Court accepted our legal claims about acting without authority....
This sends an important message, according to which it is not allowed to negate the residency of east Jerusalem Palestinians against the rule of law and their constitutional rights.”
The NGO did criticize that the ruling had taken so long to be issued.
Meanwhile, the High Court on Wednesday also ordered the state to explain why it was holding on to the bodies of several terrorists.
The state must explain on a fast-tracked schedule by Thursday, and another hearing will be held on Sunday.
Recently, the court decided that the state has no right to hold terrorists’ bodies, and at most can temporarily condition their release according to specific security considerations.
However, even with that ruling, the state and families of terrorists whose bodies are being held have engaged in legal combat about whether the families are meeting the conditions and whether the security conditions are reasonable or too draconian.
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