Judicial Reform for Me, but Not for Thee

The recent striking down by the Israeli High Court of a Knesset statute that penalizes foreign workers who overstay their visas in Israel with the loss of accrued social benefits provides a clear demonstration of why judicial reform in Israel is so crucial.

Defenders of the Israeli High Court of Justice often claim that the Court exercises its power to strike down statutes rarely, and then only in the most extreme circumstances. Last week’s ruling, however, demonstrates that the High Court shows little or no deference to the Knesset, and is perfectly willing to act as a supra-legislature to strike down statutes that do not meet with the judges’ favor.

Court President Esther Hayut and her colleagues (with only Judge Noam Sohlberg dissenting) determined that a law stipulating that deductions be taken from accrued employer-paid social benefits for foreign workers who fail to leave Israel after the expiration of their work visas violates the Basic Law: Human Dignity and Liberty by infringing on the property rights of those foreign workers.

Judge Sohlberg questioned how those property rights were violated, as all foreign workers are required in writing to acknowledge that they have been informed of the penalty for failure to leave the country upon the expiration of their visa. Thus, overstaying foreign workers have waived any claim to the forfeited benefits. Their property rights, Sohlberg reasoned, cannot be greater than what they agreed to. (The statute does have an appeal procedure for those who claim they were inadvertently in violation of their work visas provisions.)