Nazareth District Court Rejects Israeli Citizen’s Petition against Denial of Passport [17.8.2011]

On August 17, 2011, the Nazareth district court, sitting as an administrative court, rejected an administrative petition brought by an Israeli citizen against the Ministry of Interior’s decision to deny his request for an Israeli passport. [1] The Court held that the decision to temporarily deny the petitioner's request for a passport, which was based on information presented by the Israeli Security Agency (ISA) suggesting that the petitioner was a member of a terror organization and had taken part in military activities against Israel, does not constitute a violation of his fundamental rights and is proportionate and reasonable.

The petitioner, Dorjam Makhajna, is an Israeli Arab who was born in Israel in 1954. In 1970, Makhajna left Israel and has lived in several countries including Jordan, Lebanon, and Tunisia since then. During 2008-2009, Makhajna decided that he would like to return to Israel. He approached the Israeli authorities and requested a laissez-passer document which would enable him to enter Israel. On April 14, 2010, the Ministry of Interior agreed to issue him a onetime laissez-passer, on condition that he refrains from submitting a request for an Israeli ID or passport until a decision has been made with regard to the status of his Israeli citizenship. (The State undertook to reach a decision on the matter by May 11, 2010). [2] Subsequently, Makhajna received a laissez-passer document and entered Israel on April 28, 2010.

On July 13, 2010, Makhajna received an Israeli ID card. Following this, he brought a petition before Nazareth district court, sitting as administrative court, against the Ministry of Interior’s decision to deny his request for an Israeli passport. In his petition, Makhajna claimed that the refusal to issue him a passport is unconstitutional and violates the Basic Law: Human Dignity and Liberty, which safeguards his basic right to enter and leave Israel. In response, the state claimed that Makhajna left Israel in 1970 in order to join a terrorist organization and has engaged in terrorist activity against Israel throughout the years. The State also claimed that Makhajna's constitutional rights were not violated, since he was offered a laissez-passer enabling him to travel in and out of Israel until a final decision would be reached regarding his citizenship status. Finally, the State claimed that the decision to deny Makhajna's request for a passport was in accordance with Article 6(1) of the Israeli Passport Law 1952, which authorizes the minister of interior to deny a citizen a passport in circumstances the minister deems appropriate.

On August 17, 2011, the court published its decision to reject the petition.

Judge Itzhak Cohen of the Nazareth district court held that at present, there has been no violation of the petitioner's fundamental rights, since the State provided him with a temporary alternative that allows him to enter and leave Israel until a decision is reached with regard to his citizenship status. This solution is both reasonable and proportionate in nature.

According to Judge Cohen, although the Passport Law provides every Israeli citizen with the right to a passport, this right is not absolute. Furthermore, Article 6 of the Law gives the minister of interior discretion to revoke or deny a passport. According to Judge Cohen, the practice of providing alternative measures (much like Israel's laissez-passer practice) is also used in the U.S. and Germany in order to provide the right of free movement to people who have not been granted passports.

With regard to the minister of interior's exercise of discretion to deny the petitioner’s request for a passport temporarily, Judge Cohen held that the minister's decision was based on information provided to him by the ISA suggesting that Makhajna had left Israel in order to join a terrorist organization and had taken part in military activity against Israel during the almost 40 years that he lived outside Israel. Moreover, the minister took into account the possible residency alternatives available to Makhajna, and the option of a laissez-passer document provided by the State. Therefore, Judge Cohen held that the minister’s decision to temporarily deny Makhajna's request was reasonable.

Judge Cohen, however, rebuked the State authorities for failing to provide the petitioner with an answer within the time frame ordered by the courts (both the High Court of Justice and the administrative court). Judge Cohen held that bureaucracy must not be a chronic obstacle to fulfilling court orders.

In this decision, Judge Cohen struck a balance between the judgment of the interior minister, which was based on relevant intelligence on the terror-related activity of Makhajna, and the petitioner’s fundamental right to move freely in and out of the country. Indeed, as long as the question of the petitioner's citizenship is contested, it appears reasonable to provide him with only a laissez-passer document. Nonetheless, the situation as it unfolded before the court is rather curious: If the petitioner does constitute a security threat, his entry into Israel should have been prevented altogether. If no security threat is posed, however, the decision to deny him a passport appears punitive in nature, and is contrary to the judicial process prescribed in the Citizenship Law of 1952.

1. AP [Administrative Petition] 22894-03-11 Makhajna v. Minister of Interior <Hebrew>
   
   
2. On June 21, 2011, the committee that examined Makhajna's citizenship status submitted its recommendation to the Ministry of Interior.  As of the date of publication of the Court's decision, the minister of interior's decision on Makhajna's citizenship status was still unavailable.