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When it comes to migrant workers, Israel's High Court is all High-Level Babble

The fact that Israel chooses to base its nursing sector on migrant workers and turn the patients into employers does not mean that migrant workers must pay the price. That is, unless one listens to the rulings of the High Court of Justice.

Filipino children at protest against arrest of child of migrant worker (Activestills)

Those who do not appear before the High Court of Justice may mistakenly believe that legal proceedings are conducted there. The sides make claims, at length, and prove their statements. The judges press them, requesting additional evidence. While we inherited the High Court of Justice from the British, this is no House of Lords. Legal proceedings are conducted in the House of Lords. High-Level Babble is conducted at the High Court of Justice.

High-Level Babble deals with issues that are on the agenda, and repeats banal slogans. You can say whatever you want in High-Level Babble, share your duty free experiences, and draw conclusions based on what you heard on the radio, read in the paper distributed for free on the bus, or heard in a other High-Level Babble. There’s no need to delve deep, and proof is not required. Lively High-Level Babble will conclude with a decision on whoever is the loudest, or an understanding that there are different views, and in the harshest cases it will conclude with the recognition that this is an issue that the Knesset must handle. Oh, yeah – participants in High-Level Babble are predominantly male.

The problem is that sometimes High-Level Babble in the High Court of Justice results in verdicts. In a verdict handed down more than three years ago, the judges – two males and a female – assumed what was best for migrant workers (sorry, the verdict determines that she is not a “migrant worker,” as there are no migrant workers in Israel, there are only “foreign workers”), and what is best for them is to work as caregivers without getting paid overtime. Why? Because it is common knowledge that they are poor in their home countries, and they come here, and all of our goodness is bestowed on them, so even if we take a little from them, their lives here are still golden compared to what could have been had they stayed in the decrepit places from which they came. Plus we can’t forget the flip side, which is no walk in the park – those taken care of by the nurses, their employers, who we feel bad for, because they are in a sorry state. And yeah, let the Knesset deal with it.

The Knesset, of course, didn’t handle it, and a decision was handed down this week to a request for an additional deliberation on the verdict. Six men participated in the deliberation, and three women joined them. And lo and behold: Four judges wrote a new babble that justifies the former, and added that they feel bad about the poor female caregivers and the poor male patients, and “oh me oh my,” and the Knesset should handle this. The fifth judge wrote that the state is to blame for what is happening, but it is what it is, and so he joined the others, and the Knesset really should deal with this. As such, with a majority decision, the appeal was rejected. The sixth judge said that his friends were right, but, come on, this isn’t cool, give the workers twenty percent more and be done with it. And the three female judges? They wrote a verdict. A real one. In it they explained that employees are employees are employees, and because they are employees they are subject to labor law, even when they work for poor people. If Israel chose to base the nursing sector on migrant workers and turn the patients into employers, that does not mean that migrant workers must pay the price, and they must be paid for their work.

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    1. Joe

      Sorry to burst misconceptions, but the British House of Lord no longer has a judicial function – the new Supreme Court has taken on that function.

      Reply to Comment
    2. rsgengland

      The Courts in Hong Kong have today passed a ruling that ‘foreign workers’ in non essential jobs are just that, ‘foreign workers’.
      The British ‘House of Lords’, which is no longer the final court in the UK, does not suffer from ‘babble’ or anything else.
      It is so quiet at times, that it is almost possible to imagine that everyone present is fast asleep.

      Reply to Comment
      • It is not surprising that Hong Kong courts would privilege race in law; Hong Kong’s status if for Chinese, not legal migrant workers. The US did this as well for over a century, excluding, to various degree, native Americans, free blacks, Irish, Italians, and who knows what else. The question is not what Hong Kong does, but what you want to become.

        Reply to Comment
    3. After the Restoration, the House of Lords became final arbitrator (upon accepted petition) of land, property, and domain cases arising from the Civil War. These cases were decided in a mix of law and equity, and they established the Lords as a review court in equity as applied. The House did not nullify legislation, but did so as applied. The Lords have now been stripped of that power (with their approval) by Parliamentary Act, placing quite limited judicial review in the Supreme Court of 2009. However, the High Court’s assumption of review power would date from Independence, 1947, not what the Parliament does in 2009. At that time the Lords did have review power; moreover, that power was greater in Mandate courts as the British Mandate was administrative, layered as well with some Parliamentary Acts and local law. Joe and Rsgen are wrong in implicitly asserting that the UK Supreme Court of 2009 has any relevance to the High Court.

      Reply to Comment
      • joe

        Actually the legal function of the British House of Lords was originally as a final arbitrator for the aristocracy – who insisted on being ‘tried by their peers’. More recently it became the ‘highest court in the land’.

        But anyway, unless the Israeli High Court is also the Upper Chamber of Parliament (which I doubt), there is no more relation between Israel and the UK than between the Israeli High Court and the US Supreme Court.

        Reply to Comment
        • The Civil War really expanded the House’s jurisdiction, Joe. There is a good book about this, Justice Upon Petition, The House of Lords and the Reformation of Justice, 1621-1675. This expansion became customary, or of the common law, making the House the final Court.

          Israel is indeed different. When the Constituent Assembly was formed, the British derived courts still operated. Because the Assembly transformed itself into the Knesset without constitution, prior Mandate court power was left hanging. The Court could maintain it retains this power absent a constitution. Retired Chief Justice Aaron Barak when he said “the law is everywhere,” moved in this direction, saying the Knesset is not the sole generator of law. See Barak’s Judge in a Democracy. Of course, partly because of Barak, more conservative Knesset Supremacist Justices have been appointed. I believe the great divide in Israel proper ultimately lies in the issue of an Israeli constitution. The outer conflict will ultimately come home to roost there.

          Reply to Comment
    4. High Court judicial review: the Israeli Declaration of Independence commits Israel to a written constitution with rights enumerated in the Declaration. A Constituent Assembly was duely convened as constitutional convention to write such. Instead, it converted itself into sovereign Knesset. A constitutional convention’s power comes from drafting routes of power, not exercising them. When the Assembly converted itself into the Knesset it usurped soverignty. In my view, the High Court can employ the Declaration rights as a meta-constitutional document, since Israel agreed at its founding to have these rights in ANY constitution; this gives the High Court direct judicial review over these enumerated rights without prior consent by the usurping Knesset.

      Instead, the High Court is embracing Knesset sovereignty. The three women Justices seem (it is hard to tell from the piece) to have said that uniform action of labor law can be assumed unless overridden by the Knesset. The majority seems to have held that without explicit Knesset sanction, the Court can decide nothing on the issue. This view asserts the Court cannot employ the reasoning of prior law (common and statute) to fill in gaps left by the Knesset. It sounds as though the majority is stripping itself of precedent power–interesting, over an issue of foreign race.

      Reply to Comment