When a court undermines its own ruling

Maayan Niezna, University of Oxford

“A slow sort of country!” said the Queen. “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!” [Lewis Carroll, ‘Through the Looking-Glass and What Alice Found There’]

Few things are as from children’s tales as constitutional law. Yet, the Red Queen’s race is oddly relevant to legal proceedings. In this story, there are two kinds of runners: a court running away from its own previous findings, and NGOs running as fast as they can to keep earlier achievements in the same place.

In my article Paper chains: tied visas, migration policies, and legal coercion published in the Journal and Law and Society (Vol 49, Issue 2, 2022), I analysed the judgments of the Israeli Supreme Court in a series of cases concerning a specific form of coercion: the tying of migrant workers’ visas to employment with a specific employer, a policy known as the ‘Binding Arrangement.’ The article examined the unfortunate history of these proceedings. At first, the proceedings  culminated in a constitutional case declaring migrants’ rights to dignity and free choice of employment. Yet, later the Court withdrew from the central constitutional principles of that decision in the face of pressing interests of the state and its citizens in maintaining the binding of workers. The article showed how the Court relied on different arguments to justify arrangements it previously characterised as ‘modern slavery’ when these arrangements served the state’s international relations and arms trade, or provided cheap care and construction. 

In the summer of 2022, the binding arrangement was again the subject of Supreme Court proceedings. The recent case continued the trend explored in the article. It demonstrated a critical issue for the constitutional protection of human rights: strategic litigation may require significant effort not just in securing precedents recognising human rights, but also in maintaining such decisions against constant political pressure and new policies seeking to undermine them.

The recent case concerned the arrangement under which foreign construction companies, specifically Chinese construction companies (known as ‘execution companies’ – ‘chevrot bitzua’ in Hebrew), recruit their workers in China and employ them in the construction sector in Israel. Under the ‘execution companies’ arrangement, workers are tied to a specific company. They cannot leave to work for any local company, even in the construction sector. Furthermore, workers had to sign promissory notes or bonds (allowing the seizure of money and property in the country of origin) or enter into significant debt to pay recruitment fees that would secure their work. The result is a combination of binding and debt, effective means of coercion. This arrangement again reflects the tension between migrants’ rights and the interest of the (citizen) public, in this case in quick and low-cost construction and response to the ‘construction crisis’ in Israel and the housing shortage.

The Supreme Court, in its judgment, recognised the construction companies’ arrangement is problematic, and further recognised that at least some of the allegations of coercion, abuse, and poor conditions at the companies were substantiated. Nonetheless, the Court rejected the petition against the arrangement. The leading judgment was written by Justice Stein, one of the conservative appointments of the former Minister of Justice and right-wing politician Ayelet Shaked (who was, at the time the judgment was given, the Minister of Interior, the minister responsible for the Population and Immigration Authority). In rejecting the petition, the Court relied on two main arguments:

First, the state mentioned various procedures available to workers wishing to complain against violation of their rights, and enforcement procedures that might be used against abusing companies. While the judgment reiterated the state’s arguments regarding such mechanisms, it included no evidence that such complaints led to remedy, or that the potential to cancel the permit of an abusive company ever manifested.

The second argument proposed by the Court was even more problematic. The Court stated that it “cannot change the immigration laws to allow unlimited employment mobility of foreign workers in Israel”, a decision at the authority of the Population and Immigration Authority. It is worthwhile noting that ‘unlimited mobility’ was never requested. The remedy sought was mobility within a sector of the labour market, a basic requirement following directly from the Court’s own constitutional case. The decision also seemed inconsistent with the findings in another important case, concerning the recruitment model of workers to avoid excessive recruitment fees and debt.

The petitioners, two NGOs protecting the rights of migrants and workers, requested the Court would dedicate a further hearing to the decision. A further hearing is a discretionary procedure of the Supreme Court to review a previous case of the Supreme Court by a new (enlarged) panel of judges. The criteria for such further hearing is when a case already adjudicated in the Court is inconsistent with a previous ruling, or the ruling is otherwise important, difficult or novel. Yet despite the clear divergence between the 2022 case and the precedents mentioned above, the Court’s President rejected the request for a further hearing, stating that the new ruling did not establish new principles. She noted that the judgment’s suggestions that the Court lacked authority to intervene in the binding or recruitment of migrant workers are problematic, and seem inconsistent with previous rulings of the Court. However, she emphasised that these points were made as off-hand remarks and were not the ratio of the ruling.

Such proceedings are an essential reminder that court rulings are not self-executing. They require implementation on the ground, and the attention of the actors involved is crucial. They also require the court’s commitment to its own judgments, and mandate an ability to recognise the obstacles preventing the realisation of human rights in practice. The President’s decision achieved an important objective: it removed the problematic findings of the previous judgment, and left the door open for future judicial review. Two legal proceedings left the systematic coercion of thousands of workers no worse, but also no better than it was before the Court’s intervention. This result reflects the intensive efforts required to stay in the same place, with little progress in giving meaning to broad constitutional statements in practice.

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