supreme court 298.88.
(photo credit: Ariel Jerozolimski [file])
An expanded panel of 11 High Court justices voted six to five to reject eight petitions calling for the nullification of a provisional law barring Palestinian men younger than 35 and women under 25 from living with their Israeli spouses inside Israel.
The law also prevents children of mixed marriages older than 14 who were not born here and do not have citizenship from living with their Israeli parent inside Israel.
The law in question was the Citizenship and Entry to Israel Law (Temporary Provision), which the Knesset passed on July 31, 2003 for a period of one year, with the right to extend it indefinitely for a maximum of one year at a time. Originally, the law virtually froze the family reunification procedure for Israeli and Palestinian couples and prohibited new mixed couples from applying for the right of the Palestinian to live with his or her Israeli spouse inside Israel. Last year, the law was modified to allow Palestinian men younger than 35 and women under 25 to begin the application process and also eased up on other restrictions.
The petitions, the first of which was filed a few weeks after the law was first passed, were aimed at the original provisions but continued to apply to the modified law which was passed on August 1, 2005 and is due to expire on July 16.
The bench divided essentially into three groups. The first, headed by Supreme Court President Aharon Barak, voted to reject the law. Its members agreed that the right of a citizen to live with his or her family inside Israel was a constitutional right guaranteed by the Basic Law: Human Dignity and Freedom.
Most of these justices accepted the state's argument that the law was passed for a worthy cause, in that Palestinians who were given Israeli identity cards and allowed to travel freely throughout the country could pose a security threat. But they also argued that the injury to the human rights of the Israeli members of the mixed families was greater than the benefit achieved by the law in its current form and that the law should therefore be nullified.
Barak was backed by justices Dorit Beinisch, Salim Joubran, Ayala Procaccia and Esther Hayut.
A second group, which also included five justices, was led by retired justice Mishael Cheshin. Cheshin, backed by Justice Miriam Na'or, argued that a citizen did not have the right to force the state to allow a foreign citizen to immigrate to Israel and that Israel, like all sovereign states, had the right to prohibit the immigration of a foreign citizen.
The other three members of this group were prepared to concede that the right to family life as defined by Barak and his supporters was correct. However, all agreed that even if denying citizens that right did cause injury to civil rights, the law fulfilled the conditions contained in the basic law, which justified causing the injury to human rights. These conditions included the fact that the law was meant to achieve a worthy purpose and that the injury it caused to human rights was not excessive.
In addition to Cheshin and Na'or, Justices Asher Grunis and Eliezer Rivlin and Acting Justice Yonatan Adiel called for rejecting the petition.
The 11th and deciding vote was cast by Justice Edmond Levy, who agreed with the group led by Barak that the provisional law violated the human rights of the Israeli spouses and that the injury it caused to those rights was excessive. However, Levy wrote that given the existing terrorist threat, the court could not leave a vacuum by rejecting the provisional law when there was no law to replace it. He therefore ruled that the petitions should be rejected but that the state should change the current law within nine months.
It is hard to assess the implications of the decision beyond the obvious fact that the court approved the law for the next nine months. By the time the deadline set by Levy expires, neither Cheshin nor Barak will be sitting on the court, and it is impossible to assess how the court at that time, with its new composition, would rule on a similar petition.
Meanwhile, the petitioners were angry and disappointed over the ruling. "The High Court failed today in its basic responsibility to protect human rights and to protect the state from itself, after the government and the Knesset legislated such an injurious, racist and harmful law," said Dan Yakir, legal adviser for one of the petitioners, the Association for Civil Rights in Israel.
"The High Court has now joined the other branches of government in dealing an extremely severe blow to the basic right to family life and the right of equality. Essentially, the court has offered an incomparably cruel choice to Israeli citizens. Either to choose a mate whom they want and love and to lose their homeland, or to give up the one they love and remain in their state, the State of Israel."
Another petitioner, Meretz MK Zehava Gal-On, said, "I am very disappointed by the High Court's decision. I must admit I hoped the High Court would be the last bastion in defense of democracy and the principle of equality and the basic code of human beings to establish families. But the High Court gave the stamp of approval to the fact that there are Class A and Class B citizens in Israel."
According to Cheshin, the state has a sovereign right to decide who may enter the country and receive resident status. The right to human dignity goes not include an obligation by the state to allow entry of foreign citizens.
Obliging the state to accept into its midst a foreigner who automatically receives official status changes the status quo ante regarding the existing relations between its members. However the human dignity of each individual citizen makes it mandatory that no single one of them can forcefully impose a change in these relations by marrying a foreign citizen and bringing him or her to Israel.
Secondly, wrote Cheshin, Israel is in a state of war with the Palestinian Authority and the terrorist organizations. During times of war, the state is not obliged to allow citizens of the enemy entity to enter the country, even if they marry local citizens.
Cheshin also argued that the provisional law met the criteria set by the Basic Law: Human Dignity and Freedom for violating its terms. Not only did the law serve a worthy purpose, but the good it did by protecting Israelis was greater than the harm it caused by preventing Israelis and Palestinians from marrying and living in Israel.
According to Cheshin, "The good that [the law] brings to the security and safety of the residents of Israel is more important than the harm caused to a small number of Israeli citizens who married residents of the West Bank and Gaza and seek to live with them in Israel. The law was enacted in accordance with information presented by the security forces, which said that the terrorist organizations try to enlist Palestinians who have already received or will receive Israeli documentation and that the security services have a hard time distinguishing between Palestinians who might help the terrorists and those who will not."
Procaccia, on the other hand, questioned the state's credibility regarding the purpose of the law. She wrote that it appeared that security was only part of the reason for legislating it. The state's other concern was the alleged demographic threat to the Jewish majority in the country by granting Israeli status to a large number of Palestinians. She added that even granted that Palestinian spouses constituted a certain threat to Israel, it was not as great as the state made it out to be.
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