HCJ 7052/03

Adalah Legal Centre for Arab Minority Rights in Israel and others

v

1. Minister of Interior

2. Attorney-General

3. Jewish Majority in Israel

4. Victims of Arab Terror

5. Shifra Hoffman

HCJ 7102/03

MK Zahava Gal-On and others

v

Attorney-General and others

HCJ 7642/03

Shama Mahmud Musa and another

v

Minister of Interior and others

HCJ 7643/03

Ibrahim Alyon others

v

Minister of Interior and others

HCJ 8099/03

Association for Civil Rights in Israel

v

Minister of Interior and others

HCJ 8263/03

Rami Mohammed Askafi and others

v

Minister of Interior and others

HCJ 10650/03

Mirfat Taysir Abed Al Hamid and others

v

Minister of Interior and others

The Supreme Court sitting as the High Court of Justice

[14 May 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin
and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, S. Joubran, E. Hayut, Y. Adiel

Petition to the Supreme Court sitting as the High Court of Justice

Facts: Since September 2000, Palestinians have mounted a barrage of terror attacks on the State of Israel and its citizens and residents. The intensity of these attacks led the government to adopt various measures to protect the security and safety of Israeli citizens and residents. Because some of the terror attacks were perpetrated with the assistance of persons who were originally Palestinians living in the occupied territories and had received permission to live in Israel within the framework of family reunifications, the government decided in 2002 to stop giving permits to Palestinians from the occupied territories to live in Israel. This decision was subsequently passed by the Knesset into legislation in the form of the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (‘the law’); the law was valid for one year and was extended several times.

Petitions were filed in the High Court of Justice against the constitutionality of the law. In the course of the legal proceedings, the Knesset amended the law and introduced various concessions. These mainly allowed Palestinians from the occupied territories to apply to live in Israel within the framework of family reunifications, if the applicant was under the age of 14 or over the age of 35 (for a man) or 25 (for a woman).

The main question raised by the petitions is whether a constitutional right has been violated by the law, which, even in its amended, more lenient form, contains a blanket prohibition against allowing Palestinians between the ages of 14 and 35 (for a man) or 25 (for a woman) from entering Israel for the purposes of family reunifications.

The court was therefore called upon to consider whether the blanket prohibition of family reunifications (with Palestinians of certain ages) violates constitutional rights, and if it did, whether the violation of those rights satisfies the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, and was therefore constitutional. The blanket prohibition in the law was considered with reference to the position that prevailed before the law was enacted, whereby applications of Palestinians to live in Israel were considered on an individual basis, with a view to whether the applicant presented a risk to the security and safety of the Israeli public.

Held: (Minority opinion — President Barak, Justices Beinisch, Joubran, Hayut, Procaccia) The law violates two constitutional basic rights. It violates the right to family life, which is a derivative of human dignity, since the right to family life means the right of an Israeli citizen or resident to live with his family in Israel. The law also violates the right to equality, since only Israeli Arabs marry Palestinians from the occupied territories and therefore the only persons harmed by the law de facto are Israeli Arabs. These violations of constitutional rights lead to the law being unconstitutional, since the law does not satisfy the last condition of the limitations clause in the Basic Law: Human Dignity and Liberty, namely that the violation of the constitutional rights should not be excessive. The blanket prohibition in the law against all Palestinians between certain ages provides somewhat more security than the system of individual checks, but it increases the violation of constitutional rights considerably. In view of the small increase of security and the large increase in the violation of rights, the law is disproportionate in adopting a blanket prohibition rather than a system of individual checks. It is unconstitutional and therefore void.

(Majority opinion — Vice-President Cheshin, Justices Grunis, Naor) Like other countries around the world, Israel does not recognize a constitutional right that a person may have foreign members of his family immigrate to Israel. Such a right exists only to the extent that statute grants it. Therefore the law does not violate a constitutional right to human dignity. The law also does not violate the constitutional right to equality. The fact that the Palestinian Authority is de facto waging a war or quasi-war against Israel makes the residents of the territories enemy nationals. The law, in prohibiting family reunifications with enemy nationals, makes a permitted distinction between family reunifications with persons who are not enemy nationals, and family reunifications with persons who are enemy nationals. This is a permitted distinction in view of the current circumstances, and therefore the law is not discriminatory. The law was therefore constitutional. Nonetheless, the state should consider adding to the law a provision allowing exceptions in special humanitarian cases.

(Majority opinion — Justice Adiel) The law violates the constitutional right to family life which is a part of human dignity, but not the constitutional right to equality. Notwithstanding, in view of the bloody conflict between the Palestinians and Israel, the violation of the constitutional right is proportionate. Therefore the law is constitutional.

(Majority opinion — Justice Rivlin) There is no need to consider the petitions since the law is about to expire and it cannot be known in what format, if at all, the Knesset will re-enact it. The question is therefore moot. Subject to this, the law does violate a constitutional right to family life. However, the conflicting national security interest is really, in this case, made up of the rights of all the individual members of the public to life and security. In view of this, the law satisfies the proportionality test, and is therefore constitutional.

(Majority opinion — Justice Levy) The law violates both the right to family life and the right to equality. With regard to the conditions of the limitations clause, the main problem lies in the requirement that the law should adopt the least harmful measure. The blanket prohibition will have to be replaced by an individual check of each applicant for family reunification. In this check, in view of the clear hostility of the Palestinian Authority, applicants should be regarded to have a presumption of dangerousness, which they must rebut. The applicant should not be present illegally in Israel while the application is pending and he should be required to declare his loyalty to the state of Israel. Notwithstanding, since declaring the law void would create a void in security arrangements, the law should be allowed to stand, but if changes are not made, the law will be unlikely to satisfy judicial scrutiny in the future.

Petition denied, by majority opinion (Vice-President Cheshin and Justices Rivlin, Levy, Grunis, Naor and Adiel), President Barak and Justices Beinisch, Procaccia, Joubran and Hayut dissenting.

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1, 1A, 2, 3, 4, 5, 6(a), 7(a), 8, 12.

Basic Law: the Government, ss. 50, 50(d).

Basic Law: the Knesset, s. 38.

Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, ss. 2, 3, 3A, 3A(1), 3A(2), 3B, 3B(2), 3B(3), 3D, 3E, 4, 5.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order (no. 2), 5765-2005.

Citizenship Law, 5712-1952, ss. 4, 4A(1), 4A(2), 5(a), 7.

Entry into Israel Regulations, 5734-1974, r. 12.

Law of Return, 5710-1950, ss. 2(b)(3), 4A.

Prevention of Terror Ordinance, 5708-1948.

Providing Information on the Effect of Legislation on Children’s Rights Law, 5762-2002.

Israeli Supreme Court cases cited:

[1] HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[2] HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[3] HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[4] HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002-3] IsrLR 123.

[5] HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[6] HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[7] CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[8] HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[9] HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[10] HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

[11] HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[12] HCJ 4128/02 Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[13] HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

[14] HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2005] (1) IsrLR 340.

[15] CrimApp 5934/05 Malka v. State of Israel [2005] IsrSC 59(2) 833.

[16] HCJ 316/03 Bakri v. Israel Film Council [2003] IsrSC 58(1) 249; [2002-3] IsrLR 487.

[17] CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[18] CA 337/62 Riezenfeld v. Jacobson [1963] IsrSC 17(2) 1009; IsrSJ 5 96.

[19] CA 488/77 A v. Attorney-General [1978] IsrSC 32(3) 421.

[20] HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[21] LFA 377/05 A v. Biological Parents (not yet reported).

[22] LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[23] CFH 7015/94 Attorney-General v. A [1996] IsrSC 50(1) 48.

[24] HCJ 3648/97 Stamka v. Minister of Interior [1999] IsrSC 53(2) 728.

[25] AAA 4614/05 State of Israel v. Oren (not yet reported).

[26] LCA 4575/00 A v. B [2001] IsrSC 55(2) 321.

[27] HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[28] HCJ 114/79 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

[29] HCJ 4112/99 Adalah Legal Centre for Arab Minority Ri