We all know the line, “I have the right.” Yes, we all have the right to do this or that, but sometimes our rights are merely in our heads. They represent our wishes, but not the real rights we have by law — not in Israel.
As I’ve written in the past, we are a very fragile democracy – or “partial democracy.” The Israeli judicial system is driven by a deep desire for democracy, versus a strong need for regulation (especially regarding the security issues on the home front) and restrictions (we are such a small country, with a limited and over centralized economy). To boot, our “nation of foreigners,” which accepts new immigrants from all over the world, has created a “jungle of cultures.”
As a result of these contrasting needs, transparency, modernization, and democracy (in contrast to regulation, secrecy and restriction) the judicial system is always struggling to find the balance. “Balance” is the key word, the main tool, a system of checks and balances.
The Right to Move Freely
This right is called chofesh hatnua in Hebrew; it is considered a “super right,” or z’hut al. This z’hut al is nothing more than a creation of the Supreme Court, but is not a bill that has been passed by the government. However, it is considered and respected as a “super right” or a “supreme right,” stronger than a “regular right”! Yeah, right… only in Israel.
The freedom we have – supposedly – to move from one point to another is a theoretical and very limited one, as I will explain in the following examples.
Limitations
The right to access the Temple Mount is extremely limited. Likewise, the right to enter the Tomb of the Patriarchs (Ma’arat Hamachpela) in the city of Hebron is also controlled – even though these places are part of our Jewish roots and the Jewish history of the people of Israel.
The right to leave Israel is also limited – actually, very limited.
A soldier or a career officer cannot leave Israel without the permission of the IDF – the Israel Defense Forces. And in a divorce dispute, any Jewish man can be denied the option of leaving Israel if the woman requests a ban on the grounds that her husband will run away, leaving her without a get (divorce).
In fact, anyone who has a debt – any debt – to a creditor can be denied the right to leave the country. And this restriction, known as a “Tzav Ikuv Yetzia Min Ha’aretz,” can be forever!
Our True Story
Sammy was born in Israel and, when he was 5, his family moved to the U.S. After 15 years in America, Sammy relocated to Asia, where he found work and started a new life.
During all those years, Sammy maintained his links to Israel (but not to Judaism) and felt very connected. He used to make short and frequent visits to Israel, where he had a few good friends as well as some distant relatives.
Five years ago, Sammy decided to study in Israel for a year and made all the necessary arrangements to enable him to spend a comfortable and affordable time here. He rented a small apartment; opened a bank account; took out a credit card; and bought a cell phone, on a plan.
At the end of the year, Sammy was already in debt. He couldn’t afford to stay any longer and was forced to leave. He left some debts behind, and slowly paid them off, from abroad – all except one: the cell phone.
Last year, Sammy’s employer in Asia sent him to a convention in Israel on an all-expenses-paid return trip.
When Sammy was at the airport in Tel Aviv, about to go back home, he was informed that he could not leave Israel due to an open debt at Hotza’a La’poal – Israel’s debt-collection agency – of $6,000 from the cell phone company (which had grown from the original, unpaid bill of $700).
Sammy came to my office the next morning in search of a legal solution. He was convinced this was all illegal and he was seeking not only a cancellation of the ban, but compensation from the cell phone company, from the State of Israel, etc.
After I finished explaining that he could not sue anyone, could not cancel the ban so easily, and would have to pay some fees, he left my office feeling indignant and angry for having wasted his precious time with a lawyer who didn’t know his job.
Sammy returned to my practice three days later and related the following: He’d been to a few other lawyers, and one after another, they’d given him the same answer. He was imprisoned in Israel, had nowhere to stay, was sleeping on a bench in a public park, and only had enough money for a few more days.
I immediately contacted the lawyers of the cell phone company and was offered a “great deal” – a real bargain, as they called it. For $3,000, Sammy could leave the country in two days’ time after some legal procedures. But it was $3,000 that Sammy didn’t have.
I decided to take on the case pro bono, and wrote a long petition to the judge. After two days, a decision was delivered: Sammy’s request was denied. I wrote another petition and was denied yet again. The judge wrote that Sammy’s rights to move about freely were less important than that of the cell phone company to collect its debt from him!
The last decision concerned a “scapegoat”: If Sammy deposited $2,000 at Hotza’a La’poal, he could leave immediately. Again, Sammy didn’t have that kind of money.
I thought that this was a good question – a test case – for the Supreme Court, but Sammy had meanwhile disappeared.
A few months later, Sammy sent me an email, explaining what had happened. He had been in despair, had no money, and was denied help at every turn – from the social workers; from the CEO of the cell phone company; from his friends, who were poor students; and from his family abroad, who claimed they didn’t have the means to help him anymore.
Out of despair, he’d called a distant relative who, moved by his situation, lent him the money; the $2,000 was deposited at Hotza’a La’poal.
I was upset that Sammy hadn’t asked for my opinion but, as mentioned, we are a democracy.
The Result
Sammy make a big mistake. He deposited the money in the belief that this was the end of the case – but it wasn’t.
Sammy now has a debt of $4,000, as opposed to $6,000. However, a debt is still a debt. According to the law, in 30 days’ time the cell phone company can – and certainly will – ask for a new ban. And, of course, their request will be granted.
Instead, Sammy could have asked for a $3,000 loan and secured a final agreement with the creditor. His file would have been closed forever, and without any lawyer’s fees!
The debt will keep growing, without proportion, due to a very high interest rate granted by law; moreover, the ban will never be canceled. Sammy can never again return to Israel without securing, from abroad, a final agreement with the creditor – or he will be denied the option of leaving the country again.
A very fragile democracy indeed! And, like it or not, this measure – a ban – is nothing but pure punishment against a citizen who has committed no crime other than having a debt. This is a punishment our courts have been using for years, without restrictions: They ignore special circumstances and dismiss the so-called “super right,” the right to move freely.
