HCJ 7052/03
Adalah Legal Centre for Arab
Minority Rights in
v
1. Minister of Interior
2. Attorney-General
3. Jewish Majority in
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
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
[14 May 2006]
Before
and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, S. Joubran, E. Hayut, Y. Adiel
Petition to the
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 —
(Majority opinion —
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
[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
[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 Rights in Israel v. Tel-Aviv Municipality [2002]
IsrSC 56(5) 393.
[30] HCJ 10026/01 Adalah Legal
Centre for Arab Minority Rights in Israel v. Prime Minister [2003] IsrSC
57(3) 31.
[31] HCJ 7111/95 Local
Government Centre v. Knesset [1996] IsrSC 50(3) 485.
[32] HCJ 953/87 Poraz v. Mayor
of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.
[33] HCJ 104/87 Nevo v.
[34] HCJ
2618/00 Parot Co. Ltd v. Minister of Health [2001] IsrSC 55(5) 49.
[35] HCJ 2671/98 Israel Women’s Network v.
Minister of Labour and Social Affairs [1998] IsrSC 52(3) 630.
[36] HCJ
392/72 Berger v. Haifa District Planning and Building Committee [1973]
IsrSC 27(2) 764.
[37] HCJ 328/88 Avitan v.
Israel Land Administration [1989] IsrSC 43(4) 297.
[38] HCJ 6698/95 Kadan v.
Israel Land Administration [2000] IsrSC 54(1) 258.
[39] HCJ 1113/99 Adalah Legal
Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs
[2000] IsrSC 54(2) 164.
[40] HCJ 6924/93 Association
for Civil Rights in Israel v. Government of Israel [2001] IsrSC 55(5) 15.
[41] HCJ 11163/03 Supreme
Monitoring Committee for Arab Affairs in Israel v. Prime Minister [2006]
(1) IsrLR 105.
[42] HCJ 122/54 Axel v. Mayor,
Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.
[43] HCJ 200/57 Bernstein v.
Bet-Shemesh Local Council [1958] IsrSC 12 264.
[44] HCJ 337/81 Miterani v.
Minister of Transport [1983] IsrSC 37(3) 337.
[45] CA 333/85 Aviel v.
Minister of Labour and Social Affairs [1991] IsrSC 45(4) 581.
[46] CA 524/88 Pri HaEmek
Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd
[1991] IsrSC 45(4) 529.
[47] CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC
53(4) 526; [1998‑9] IsrLR 409.
[48] LCA 4905/98 Gamzu v. Yeshayahu [2001]
IsrSC 55(3) 360.
[49] HCJ 366/03 Commitment to Peace and
Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.
[50] CA
7155/96 A v. Attorney-General [1997] IsrSC 51(4) 160.
[51] HCJ 6427/02 Movement for
Quality Government in Israel v. Knesset (not yet reported).
[52] HCJ 5688/92 Wechselbaum
v. Minister of Defence [1993] IsrSC 47(2) 812.
[53] HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar
Association [1996] IsrSC 50(4) 221.
[54] HCJ 205/94 Nof v. Ministry of Defence [1996] IsrSC 50(5) 449; [1997] IsrLR 1.
[55] HCJ
7357/95 Barki Feta Humphries (Israel)
Ltd v. State of Israel [1996]
IsrSC 50(2) 769.
[56] CA 5942/92 A v. B
[1994] IsrSC 48(3) 837.
[57] HCJ
3512/04 Shezifi v.
[58] CA 232/85 A v.
Attorney-General [1986] IsrSC 40(1) 1.
[59] CA 5587/93 Nahmani v.
Nahmani [1993] IsrSC 49(1) 485; [1995-6] IsrLR 1.
[60] CFH 6041/02 A v. B
[2004] IsrSC 58(6) 246.
[61] CA 2266/93 A v. B
[1995] IsrSC 49(1) 221.
[62] HCJ 5394/92 Hoppert v.
Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC
48(3) 353.
[63] CA 105/92 Re’
[64] HCJ 726/94 Klal Insurance
Co. Ltd v. Minister of Finance [1994] IsrSC 48(5) 441.
[65] HCJ 721/94 El-Al Israel
Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR
478.
[66] HCJ 453/94 Israel Women’s
Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR
425.
[67] HCJ 4541/94 Miller v.
Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.
[68] HCJ 4806/94 D.S.A.
Environmental Quality Ltd v. Minister of Finance [1998] IsrSC 52(2) 193.
[69] HCJ 1074/93 Attorney-General
v.
[70] HCJ 678/88 Kefar Veradim
v. Minister of Finance [1989] IsrSC 43(2) 501.
[71] FH 10/69 Boronovski v.
Chief Rabbis [1971] IsrSC 25(1) 7.
[72] HCJ 246/81 Derech Eretz
Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.
[73] HCJ 6051/95 Recanat v.
[74] HCJ 1703/92 C.A.L.
Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.
[75] HCJ 1000/92 Bavli v.
[76] HCJ 2597/99 Rodriguez-Tushbeim
v. Minister of Interior [2005] IsrSC 58(5) 412; [2005] (1) IsrLR 268.
[77] HCJ 3434/96 Hoffnung v.
Knesset Speaker [1996] IsrSC 50(3) 57.
[78] EA 92/03 Mofaz v.
Chairman of the Central Elections Committee for the Sixteenth Knesset
[2003] IsrSC 57(3) 793.
[79] LCA 9041/05 Imrei Hayyim
Registered Society v. Wiesel (decision of 30 January 2006, not yet
reported).
[80] HCJ 9333/03 Kaniel v.
Government of Israel (not yet reported).
[81] LCA 3145/99 Bank Leumi of
Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.
[82] HCJ 4676/94 Meatreal Ltd
v. Knesset [1994] IsrSC 50(5) 15.
[83] HCJ 212/03 Herut National
Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.
[84] HCJ 1384/98 Avni v. Prime
Minister [1998] IsrSC 52(5) 206.
[85] HCJ 164/97 Conterm Ltd v.
Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.
[86] HCJ 5627/02 Saif v.
Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.
[87] EA 2/84 Neiman v.
Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2)
225; IsrSJ 8 83.
[88] CrimFH 7048/97 A v.
Minister of Defence [2000] IsrSC 54(1) 721.
[89] HCJ 5016/96 Horev v.
Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.
[90] HCJ 4140/95 Superpharm
(Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.
[91] HCJ 3477/95 Ben-Atiya v.
Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.
[92] HCJ 6226/01 Indor v.
Mayor of Jerusalem [2003] IsrSC 57(2) 157.
[93] HCJ 490/97 Tenufa
Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs
[1998] IsrSC 52(2) 433.
[94] HCJ 6778/97 Association
for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC
58(2) 358; [2004] IsrLR 1.
[95] HCJ
278/73 Horeh v. Mayor of Tel-Aviv-Jaffa [1974] IsrSC 28(1) 271.
[96] HCJ 6249/96 Israel Contractors and
Builders Federation v. Sasson [1998] IsrSC 52(2) 42.
[97] HCJ 552/04 Guzman v. State of Israel,
TakSC 2005(3) 4.
[98] HCJ 6268/00 Kibbutz
HaHoterim Agricultural Cooperative Society v. Israel Land Administration
[2001] IsrSC 55(5) 640.
[99] HCJ 6893/05 Levy v.
Government of Israel [2005] IsrSC 59(2) 876.
[100] AAA
4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality
[2004] IsrSC 58(3) 782.
[101] EA 1/65 Yardor v. Chairman
of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3)
365.
[102] HCJ 5100/94 Public
Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9]
IsrLR 567.
[103] HCJ 13/86 Shahin v. IDF
Commander in Judaea and Samaria [1987] IsrSC 41(1) 197.
[104] HCJ 9098/01 Ganis v.
Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR
505.
[105] HCJ 806/88 Universal City
Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ
10 229.
[106] CrimA 2831/95 Alba v.
State of Israel [1996] IsrSC 50(5) 221.
[107] CrimA 4424/98 Silgado v.
State of Israel [2002] IsrSC 56(5) 529.
[108] HCJ 8172/02 Ibrahim v. IDF
Commander in West Bank (not yet reported).
[109] HCJ 4764/04 Physicians for
Human Rights v. IDF Commander in Gaza [2004] IsrSC 58(5) 385; [2004]
IsrLR 200.
[110] HCJ 1730/96 Sabiah v. IDF
Commander in Judaea and Samaria [1996] IsrSC 50(1) 353.
[111] HCJ 482/71 Clark v.
Minister of Interior [1973] IsrSC 27(1) 113.
[112] HCJ 754/83 Rankin v.
Minister of Interior [1984] IsrSC 38(4) 113.
[113] HCJ 4156/01 Dimitrov v.
Minister of Interior [2002] IsrSC 56(6) 289.
[114] HCJ 2527/03 Assid v.
Minister of Interior [2004] IsrSC 58(1) 139.
[115] HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC
46(4) 505.
[116] HCJ 1689/94 Harari v. Minister of Interior
[1997] IsrSC 51(1) 15.
[117] HCJ 9778/04 Alwan v. State of Israel (not
yet reported).
[118] HCJ 282/88 Awad v. Prime Minister [1988]
IsrSC 42(2) 424.
[119] HCJ 100/85 Ben-Israel v. State of Israel
[1985] IsrSC 39(2) 45.
[120] HCJ 740/87 Bentley v. Minister of Interior [1990] IsrSC 44(1) 443.
[121] HCJ
576/97 Scharf v. Minister of the Interior (not yet reported).
[122] HCJFH 8916/02 Dimitrov v. Minister of
Interior (unreported).
[123] HCJ 6708/04 Badar v. Minister of Interior (not
yet reported).
[124] HCJ 8986/04 Riash v. Minister of Interior
(not yet reported).
[125] HCJ 8030/03 Samuilov v. Minister of Interior
(not yet reported).
[126] HCJ 3403/97 Ankin v. Minister of Interior
[1997] IsrSC 51(4) 522.
[127] CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.
[128] HCJ 24/01 Ressler v.
Knesset [2002] IsrSC 56(2) 699.
[129] HCJ
4370/01 Lipka v. Minister of Interior [2003] IsrSC 57(4) 920.
[130] HCJ 1031/93 Pesaro (Goldstein) v. Minister
of Interior [1995] IsrSC 49(4) 661.
[131] LCrimA 8472/01 Maharshak
v. State of Israel [2005] IsrSC 59(1) 442.
[132] HCJ 2208/02 Salama v.
Minister of Interior [2002] IsrSC 56(5) 950.
[133] AAA 9993/03 Hamdan v.
Government of Israel (not yet reported).
[134] HCJ 2455/95 Dragma v.
Minister of Interior (unreported).
[135] HCJ 7206/96 Mansour v.
Minister of Interior (unreported).
[136] HCJ 1227/98 Malevsky v.
Minister of Interior [1998] IsrSC 52(4) 690.
[137] HCJ 442/71 Lansky v.
Minister of Interior [1972] IsrSC 26(2) 337.
[138] HCJ 7061/05 A v. Minister
of Interior (not yet reported).
[139] HCJ 5304/02 Israel Victims
of Work Accidents and Widows of Victims of Work Accidents Association v. State
of Israel [2005] IsrSC 59(2) 135.
[140] HCJ 6845/00 Niv v.
[141] HCJ 6971/98 Paritzky v.
Government of Israel [1999] IsrSC 53(1) 763.
[142] HCJ 4915/00 Communications
and Productions Network Co. (1992) Ltd v. Government of Israel [2000] IsrSC
54(5) 451.
[143] HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and
Social Affairs [1998] IsrSC 52(2) 433.
[144] CrimA 3439/04 Bazak (Bouzaglo) v.
Attorney-General (not yet reported).
[145] CA 621/69 Nissim v. Euster [1970] IsrSC
24(1) 617.
[146] CA 79/83 Attorney-General v. Shukran
[1985] IsrSC 39(2) 690.
[147] CA 6434/00 Danino v. Mena [2002] IsrSC
56(3) 683.
[148] CA 3798/94
A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.
[149] CA 6106/92 A v.
Attorney-General [1994] IsrSC 489(2) 833.
[150] CA 549/75 A v.
Attorney-General [1976] IsrSC 30(1) 459.
[151] CA 1212/91 LIBI The Fund
for Strengthening Israel’s Defence v. Binstock [1994] IsrSC 48(3) 705; [1992-4]
IsrLR 369.
[152] EDA 11280/02 Central
Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.
[153] HCJ 9070/00 Livnat v.
Chairman of Constitution, Law and Justice Committee [1991] IsrSC 55(4) 800.
[154] ADA 8607/04 Fahima v.
State of Israel [2005] IsrSC 59(3) 258.
[155] HCJ 2320/98 El-Amla v. IDF
Commander in Judaea and Samaria [1992] IsrSC 52(3) 346.
[156] HCJ 7862/04 Abu Dahar v.
IDF Commander in Judaea and Samaria [2005] IsrSC 59(5) 368; [2005] (1) IsrLR
136.
[157] HCJ 6358/05 Vaanunu v.
Home Front Commander (not yet reported).
[158] HCJ 5578/02 Manor v.
Minister of Finance [2005] IsrSC 59(1) 729.
[159] CA 5604/94 Hemed v. State
of Israel [2004] IsrSC 58(2) 498.
[160] HCJ 2533/97 Movement for
Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.
[161] CrimA 6696/96 Kahane v. State of Israel [1998] IsrSC
52(1) 535.
[162] LCA 6709/98 Attorney-General v.
Moledet-Gesher-Tzomet List for Elections to Upper Nazareth Local Authority
[1999] IsrSC 53(1) 351.
[163] HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.
[164] HCJ 428/86 Barzilai v.
Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.
[165] HCJ 494/03 Physicians for
Human Rights v. Minister of Finance [2005] IsrSC 59(3) 322.
[166] HCJ 8093/03 Artmeyer v.
Ministry of Interior (not yet reported).
[167] HCJ 4906/98 Free People
Society for Freedom of Religion, Conscience, Education and Culture v. Ministry
of Housing [2000] IsrSC 54(2) 503.
[168] HCJ 680/88 Schnitzer v.
Chief Military Censor [1988] IsrSC 42(4) 617; IsrSJ 9 77.
[169] CrimApp 537/95 Ganimat v.
State of Israel [1995] IsrSC 49(3) 355.
[170] HCJFH 4418/04 Government
Press Office v. Saif (not yet reported).
[171] HCJ 258/79 Amira v.
Minister of Defence [1980] IsrSC 34(1) 90.
[172] HCJ 5503/94 Segal v.
Knesset Speaker [1997] IsrSC 51(4) 529.
[173] HCJ 3267/97 Rubinstein v.
Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.
[174] HCJ 1853/02 Navi v.
Minister of Energy and National Infrastructures (unreported).
[175] HCJ 73/85 Kach Faction v.
Knesset Speaker [1985] IsrSC 39(3) 141.
[176] CA 7175/98 National
Insurance Institute v. Bar Finance Ltd (in liquidation) (unreported).
[177] CA 506/88 Shefer v. State
of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR 170.
[178] HCJ 4827/05 Man, Nature
and Law Israel Environmental Protection Society v. Minister of Interior
(not yet reported).
[179] HCJ 7190/05 Lobel v. Government
of Israel (not yet reported).
[180] HCJ 5432/03 SHIN, Israeli
Movement for Equal Representation of Women v. Council for Cable TV and
Satellite Broadcasting [2004] IsrSC 58(3) 65; [2004] IsrLR 20.
[181] HCJ 6126/94 Szenes v.
Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339.
[182] HCJ 73/53 Kol HaAm Co. Ltd
v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.
[183] HCJ 2481/93 Dayan v. Wilk
[1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.
American
cases cited:
[184] Schenck v. United States, 249 U.S. 47 (1918).
[185] Korematsu
v. United States, 323 U.S. 214 (1944).
[186] Roberts v. United States
Jaycees, 468 U.S. 609 (1984).
[187] Griswold v. Connecticut,
381 U.S. 479 (1965).
[188] Loving v. Virginia,
388 U.S. 1 (1967).
[189] Lawrence v. Texas, 123
S. Ct. 2472 (2003).
[190] Fiallo v. Bell, 430
U.S. 787 (1977).
[191] Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990).
[192] Gonzales v. O Centro Espirita Beneficente
Uniao Do Vegetal (2006) (not yet reported, decision of 21 February 2006).
[193] Aptheker
v. Secretary of State, 378 U.S.
500 (1964).
[194] Schware v. Board of Bar
Examiners, 353 U.S. 232 (1957).
[195] Sugarman
v. Dougall, 413 U.S. 634 (1973).
[196] Regents of Univ. of Cal. v. Bakke, 438
U.S. 265 (1978).
[197] City of Richmond v. Carson, 488 U.S. 469
(1989).
[198] Johnson v. City of Cincinnati,
[199] Gratz v. Bollinger, 539 U.S. 244 (2003).
[200] Grutter v. Bollinger, 539 U.S. 982
(2003).
[201] Wisconsin
v. Yoder, 406
U.S. 205 (1972).
[202] Railway
Express Agency v. New York, 336 U.S. 106 (1949).
[203] Knauff
v. Shaughnessy, 338 U.S. 537
(1949).
[204] Ekiu
v. United States, 142 U.S. 651 (1892).
[205] Landon v. Plasencia, 459 U.S. 21 (1982).
[206] Moore v. East Cleveland, 431 U.S. 494
(1977).
[207] United
States v. Carroll Towing Co.,
[208] Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963).
[209] Ex
parte Milligan, 71 U.S. 2
(1886).
[210] Rescue Army v. Municipal
Court of Los Angeles, 331 U.S. 549 (1947).
[211] Ashwander v. Tennessee
Valley Authority, 297 U.S. 288 (1936).
[212] Roe v. Wade, 410 U.S.
113 (1973).
[213] Southern Pac.Terminal Co.
v. Interstate Commerce Commission, 219 U.S. 498 (1911).
Australian
cases cited:
[214] Macabenta
v. Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202.
Canadian
cases cited:
[215] R. v. Sharpe [2001] 1
S.C.R. 45.
[216] Irwin
Toy Ltd. v. Quebec (Attorney General) [1989] 1
S.C.R. 927.
[217] Canadian
Council of Churches v. Canada
[1992] 1 S.C.R. 236.
[218] New Brunswick (Minister of
Health and Community Services) v. G [1999] 3 S.C.R. 46.
[219] R. v. Keegstra [1990]
3 S.C.R 697.
[220] McKinney v. University of
Guelph [1990] 3 S.C.R. 229.
[221] Libman v. Quebec
(Attorney-General) [1997] 3 S.C.R. 569.
[222] RJR–MacDonald Inc. v.
Canada (Attorney-General) [1995] 3 S.C.R 199.
[223] Edwards Books and Art Ltd.
v. R. [1986] 2 S.C.R. 713.
English
cases cited:
[224] Liversidge v. Anderson [1941] 3 All
ER 338.
[225] R. v. Governor of Pentonville Prison
[1973] 2 All ER 741.
[226] R (on the application of the Crown
Prosecution Service) v. Registrar General of Births, Deaths and Marriages
[2003] 1 All ER 540 (C.A.).
[227] Re Connor, an
Application for Judicial Review [2004]
NICA 45; [2005] NI 322 (C.A.).
[228] Secretary of
State for the Home Department v. Rehman [2001] UKHL
47; [2002] 1 All ER 122.
[229] A v.
Secretary of State for the Home Department [2004] UKHL 56; [2005]
European Court of Human Rights
cases cited:
[230] Berrehab
v. Netherlands (1988) 11
E.H.R.R. 322.
[231] Moustaquim v. Belgium
(1991) 13 E.H.H.R. 82.
[232] Ciliz v. Netherlands
(2000) 33 E.H.R.R. 623.
[233] Carpenter v. Secretary of
State, ECR I-6279 (2002).
[234] Campbell
v. United Kingdom (1993) 15
E.H.R.R. 137.
[235] Abdulaziz
Cabales and Balkandali v. U.K. (1985) 7
E.H.R.R. 471.
[236] Ahmut v. The Netherlands, no. 21702/93
[1996] ECHR 61.
[237] Gül v. Switzerland, no. 23218/94
[1996] ECHR 5.
German cases cited:
[238] BVerfGE 76, 1 (1987).
[239] BVerfGE 6, 389 (1957).
[240] BVerfGE 19, 342 (1965).
Irish cases cited:
[241] Fajujonu v. Minister of Justice [1990] 2
IR 151.
South African cases cited:
[242] Dawood v. Minister of Home Affairs, CCT
35/99; 2000 (3) SA 936 (CC).
[243] Makinana v. Minister of Home Affairs, (Cape of Good Hope) Case No 339/2000, 8 February 2001, unreported).
[244] Booysen v. Minister of Home Affairs, CCT
8/01; 2001 (4) SA 485 (CC).
Jewish law sources cited:
[245] Genesis 1, 27; 2, 18; 2,
24.
[246] Ecclesiastes 3, 1; 3, 8.
For the petitioners in HCJ 7052/03 — H. Jabarin, O. Cohen.
For the petitioners in HCJ 7102/03 — D. Holtz-Lechner.
For the petitioners in HCJ 7642/03 and HCJ 7643/03 — Tz. Sasson.
For the petitioners in HCJ 8099/03 — D. Yakir, S. Avraham-Weiss.
For the petitioners in HCJ 8263/03 — M. Halila.
For the petitioners in HCJ 10650/03 — A. Lustigman
For the State — Y. Gnessin, D. Marks.
For Jewish Majority in Israel — Z. Ferber
JUDGMENT
The
Citizenship and Entry into Israel Law (Temporary Provision), 5753-2003,
provides that the Minister of the Interior shall not grant citizenship to a
resident of Judaea, Samaria or the Gaza Strip (the ‘area’ or the
‘territories’), nor shall he give him a permit to live in Israel. The law also
provides that the area commander shall not give such a resident a permit to stay
in
A. The security and normative
background
(1) The security background
1. In September 2000, the second intifada broke out.
An intense barrage of terror descended upon the State of Israel. Most of the
terror attacks were directed against civilians. They harmed men and women, the
elderly and children. Complete families lost their loved ones. The attacks were
intended to harm human life. They were intended to sow fear and panic. They
sought to disrupt the way of life of Israeli citizens. The terror attacks are
carried out inside
2. The State of
3. Among these steps, restrictions were imposed
on the entry of residents of the territories into the State of Israel, because,
according to the assessment of the security establishment, the entry into
Israel of residents of the territories, and their unrestricted movement within
it, significantly endangers the safety and security of the citizens and
residents of the State of Israel. Against this serious security reality, and in
view of these security arrangements, the Citizenship and Entry into Israel Law
(Temporary Provisions), 5763-2003, (hereafter — ‘the Citizenship and Entry
into Israel Law’ or ‘the law’) was also enacted. Subject to qualifications, the
law prevents residents of the territories from entering the State of Israel.
Within this framework, restrictions were also imposed, inter alia, on the reunification of
families where one spouse is an Arab with Israeli citizenship or a permanent
resident in
(2) The normative background
4. At first, restrictions were imposed on the
reunification of families by virtue of a government decision. In 2002 the
government determined (decision no. 1813) a new procedure for dealing with the
‘policy of family reunifications concerning residents of the Palestinian
Authority and foreigners of Palestinian origin.’ The decision (of 12 May 2002)
said:
‘B. Policy concerning family
reunifications
In view of
the security position, and because of the ramifications of immigration
processes and the residency of foreigners of Palestinian origin in
1. Dealing with new applications, including applications
in which no decision has yet been made
a. A resident of the Palestinian
Authority — no new applications shall be accepted from residents of the
Palestinian Authority for a residency status or any other status; an
application that has been submitted shall not be approved, and the foreign
spouse shall be required to live outside Israel until any other decision is
made.
b. Others — the application
shall be considered with reference to the origin of the person concerned.
2. Applications that are in the staged process
During the
interim, a permit that was given shall be extended, subject to the absence of
any other impediment. There shall be no upgrading to a higher status.’
According to
this procedure, the regular treatment of applications for family reunification
was stopped, in so far as residents of the Palestinian Authority were concerned.
Several petitions were filed in the High Court of Justice against this
procedure (see, for example, HCJ 4022/02, HCJ 4608/02, HCJ 7316/02, HCJ
7320/02). No decision was made with regard to these petitions, since while they
were pending, the Citizenship and Entry into Israel Law was enacted.
5. On 6 August 2003, the Citizenship and Entry
into Israel Law was published. In essence, it enshrined government policy. The
law is valid for one year. It provides that the government may, with the
approval of the Knesset, extend its validity in an order, for a period that
shall not exceed one year each time (s. 5). When the year ended, the law was
extended for six months (until 5 February 2005: see Citizenship and Entry into
6. The Citizenship and Entry into Israel Law
contains five sections. It is set out below in its entirety:
‘Citizenship and Entry into
|
Definitions |
1. In this law — ‘area’ —
any of the following: Judaea, |
|
|
‘Citizenship
Law’ — the Citizenship Law, 5712-1952; |
|
|
‘Entry into
|
|
|
‘area
commander’ — for Judaea and |
|
|
‘resident
of an area’ — whoever is registered in the population register of the
area, and also whoever is living in the area even without being registered in
the population register of the area, except for a resident of an Israeli town
in an area. |
|
Restriction on citizenship
and residency in |
2. As long as this law is valid,
notwithstanding what is stated in any law including section 7 of the
Citizenship Law, the Minister of the Interior shall not grant citizenship
under the Citizenship Law to a resident of an area nor shall he give him a
licence to reside in Israel under the Entry into Israel Law, and the area
commander shall not give a resident as aforesaid a permit to stay in Israel
under the security legislation in the area. |
|
Permit for spouses |
3. Notwithstanding the provisions of section 2,
the Minister of the Interior may, at his discretion, approve an application
of a resident of the area to receive a permit to stay in |
|
|
(1) with
regard to a male resident of an area whose age exceeds 35 years — in
order to prevent his separation from his spouse who lives lawfully in |
|
|
(2) with
regard to a female resident of an area whose age exceeds 25 years — in
order to prevent her separation from her spouse who lives lawfully in |
|
Permit for children |
3A. Notwithstanding
the provisions of section 2, the Minister of the Interior, at his discretion,
may — |
|
|
(1) give
a minor under the age of 14 years, who is a resident of an area, a licence to
live in |
|
|
(2) approve
an application to obtain a permit to live in Israel from the area commander
for a minor under the age of 14 years, who is a resident of the area, in
order to prevent his separation from his custodial parent who lives lawfully
in Israel, provided that such a permit shall not be extended if the minor
does not live permanently in Israel. |
|
Additional permits |
3B. Notwithstanding
the provisions of section 2, the area commander may give a permit to stay in |
|
|
(1) medical
treatment; |
|
|
(2) work
in |
|
|
(3) a
temporary purpose, provided that the permit to stay for the aforesaid purpose
shall be given for a cumulative period that does not exceed six months. |
|
Special |
|
|
Security impediment |
3D. A
permit to stay in Israel shall not be given to a resident of an area under
section 3, 3A(2), 3B(2) and (3) and 4(2), if the Minister of the Interior or
the area commander, as applicable, determines, in accordance with an opinion
from the competent security authorities, that the resident of the area or his
family member are likely to constitute a security risk to the State of
Israel; in this section, ‘family member’ — spouse, parent, child, brother,
sister and their spouses. |
|
Transition provisions |
4. Notwithstanding the provisions of this
law — |
|
|
(1) the Minister of the Interior or the
area commander, as applicable, may extend the validity of a licence to live
in Israel or of a permit to stay in Israel, which were held by a resident of
an area prior to the commencement of this law, while taking into account, inter alia, the
existence of a security impediment as stated in section 3D; |
|
|
(2) The
area commander may give a permit for a temporary stay in Israel to a resident
of an area who filed an application to become a citizen under the Citizenship
Law or an application for a licence to live in Israel under the Entry into
Israel Law, before the first of Sivan 5762 (12 May 2002) and with regard to
which, on the date of commencement of this law, no decision had been made,
provided that a resident as aforesaid shall not be given citizenship, under
the provisions of this paragraph, nor shall he be given a licence for
temporary residency or permanent residency, under the Entry into Israel Law. |
|
Validity |
5. This law shall remain valid until the second
of Nissan 5766 (31 March 2006), but the government may, with the approval of
the Knesset, extend its validity in an order, for a period that shall not
exceed one year each time.’ |
B. The petition and the hearing thereof
(1) The petitioners and the
respondents
7. Some of the petitioners before us are
married couples to whom the Citizenship and Entry into Israel Law applies. Thus
the second petitioner in HCJ 7052/03 is an Arab citizen of
8. We therefore have before us various kinds of
petitioners who are injured by the law. The petitioners with a personal
interest in the clarification of the petitions are married couples, where one
of the couple is an Israeli Arab and the other is a Palestinian Arab who is a
resident of the territories. Some of them have children. The cases of some of the
couples were not dealt with in view of the government’s decision and the
Citizenship and Entry into Israel Law that incorporated it into legislation.
The cases of other petitioners are undergoing the staged process, but the law
prevents the process from being completed and it prevents the Palestinian
spouse from being given Israeli citizenship. In addition to the petitioners
with a personal interest, we have many public petitioners, including Knesset
members (MK Taleb El-Sana, MK Mohammed Barakeh, MK Azmi Bishara, MK Abdulmalik
Dehamshe, MK Jamal Zahalka, MK Wasil Taha, MK Ahmad Tibi, MK Issam Makhoul, MK
Zahava Gal-On and MK Roman Bronfman), Knesset factions (the Meretz faction),
the Supreme Monitoring Committee for Arab Affairs in Israel and human rights
organizations (Adalah, the Association for Civil Rights in Israel, the Centre
for the Defence of the Individual). The respondents are the Minister of the
Interior and the attorney-general.
(2) The claims of the petitioners
9. The petitioners claim that the Citizenship
and Entry into Israel Law is unconstitutional, since it unlawfully violates
rights that are enshrined in the Basic Law: Human Dignity and
10. The
petitioners further claim that the violation of the basic rights that they
indicate does not satisfy the limitations clause in the Basic Law, and
therefore the Citizenship and Entry into Israel Law should be declared void. In
so far as the purpose of the law is concerned, their claim is that it is an
improper one. They claim that the sections of the law have no internal logic,
and this indicates that the purpose of the law is not a security purpose at
all. From the provisions of the law it appears that the legislature is prepared
to allow the entry of Palestinian workers into
(3) The claims of the respondents
12. The
respondents reject the claims of the petitioners. According to them, the
Citizenship and Entry into Israel Law is constitutional. They focus on the
security background that led to its enactment, and its security purpose. The
Israeli-Palestinian conflict underwent a change in September 2000, and the
terror activity component in it increased significantly. Many Israelis lost
their lives as a result of this activity. Within the context of the armed
conflict between the Palestinians and
13. The
respondents emphasize that the purpose of the law is to reduce the danger of
harm to the lives of Israeli citizens and residents. It is the duty of the
State to protect its citizens. It is also its right to act in self-defence.
Preventing persons from the territories from entering or staying in
14. The
respondents claim that the law does not violate the human rights enshrined in
the Basic Law: Human Dignity and
15. Finally,
the respondents claim that even if the law violates rights under the Basic Law,
these violations still satisfy the requirements of the limitations clause. First, the respondents emphasize
that we are dealing with temporary provisions that are of a transient nature. Second, they claim that the right to
life of the persons living in the State of Israel and the interest in
protecting their security is a proper purpose that befits the values of the
State of Israel. The fact that the purpose of the law is to protect the right
to life, which is a basic right, should affect the examination of the law in
accordance with the tests of the limitations clause. Taking this into account,
their third claim is
that the law also satisfies the requirement of proportionality. The respondents
point to the difficulty inherent in their being able to examine the cases of
persons requesting a status in
(4) The hearing of the petitions
16. The
petitions against the Citizenship and Entry into Israel Law were filed shortly
after it was enacted. After we heard the arguments of the parties, an order nisi was made (on 9 November 2003).
Interim orders were also made to prevent the deportation of the Palestinian
petitioners staying in
C. The questions that require a decision and the methods
of deciding them
(1) The questions that require a
decision
17. The
focus of the petitions before us is the Israeli spouse. The main question
before us is whether the constitutional rights of the Israeli spouse have been
violated unlawfully. The question is whether rights that were given to him in
the Basic Law: Human Dignity and
(2) The constitutional scrutiny
18. According
to the petitioners, the two main rights that this law violates are the right to
family life and the right to equality. Their position is that these rights are
enshrined in the Basic Law: Human Dignity and
(3) Is there a basis for
constitutional scrutiny in times of war?
19. It
may be argued that the cases before us deal with the prevention of terror in a
time of war. They are not usual cases of preventing family reunification. We
are dealing with an exceptional case of family reunification, where the spouse
or child of the person claiming his constitutional right to family
reunification is situated in an area which is in a state of war with the State
of Israel. In such circumstances — so the argument would continue —
the ordinary laws concerning the three-stage constitutional scrutiny should not
be applied. This situation falls outside the normal framework. It is a matter
of existence. À la
guerre comme à la guerre; the security need prevails over the right of the individual.
20. I
cannot accept this argument. The Basic Laws do not recognize two sets of laws, one that applies in times of peace
and the other that applies
in times of war. They do not contain provisions according to which
constitutional human rights recede in times of war. Thus, for example, section
50 of the Basic Law: the Government, which authorizes the government to enact
emergency regulations, states expressly that ‘Emergency regulations are
incapable of… permitting a violation of human dignity’ (subsection (d)). The
Basic Law: Human Dignity and Liberty further provides that ‘It is permitted to
enact emergency regulations… which will contain a denial or restriction of
rights under this Basic Law, provided that the denial or restriction are for a
proper purpose and for a period and to a degree that are not excessive’
(s. 12). Indeed, Israeli constitutional law has a consistent approach to
human rights in periods of relative calm and in periods of increased fighting.
We do not recognize a clear distinction between the two. We do not have
balancing laws that are unique to times of war. Naturally, human rights are not
absolute. They can be restricted in times of calm and in times of war. I do not
have a right to shout ‘fire’ in a theatre full of spectators (see the analogy
of Justice Holmes in Schenck v. United States [184], at p. 52, which was cited in CrimApp 5934/05 Malka v. State of Israel [15], at p.
843). War is like a barrel full of explosives next to a source of fire. In
times of war the likelihood that damage will occur to the public interest
increases and the strength of the harm to the public interest increases, and so
the restriction of the right becomes possible within the framework of existing
criteria (see HCJ 316/03 Bakri v. Israel Film Council [16], at p. 283 {523-524}). Indeed, we do not have two sets
of laws or balances, one for times of calm and the other for times of terror.
This idea was well expressed by Lord Atkin more than sixty-five years ago,
during the Second World War, in a minority opinion where he said:
‘In
21. Moreover,
there is no possibility of making a clear distinction between the status of
human rights in times of war and their status in times of peace. The dividing
line between terror and calm is a fine one. This is the case everywhere. It is
certainly the case in
‘A judicial construction of the due process
clause that will sustain this order is a far more subtle blow to liberty… A
military order, however unconstitutional, is not apt to last longer than the
military emergency… But once a judicial opinion rationalizes such an order to
show that it conforms to the Constitution, or rather rationalizes the
Constitution to show that the Constitution sanctions such an order, the Court
for all time has validated the principle of racial discrimination in criminal
procedure and of transplanting American citizens. The principle then lies about
like a loaded weapon ready for the hand of any authority that can bring forward
a plausible claim of an urgent need… A military commander may overstep the
bounds of constitutionality, and it is an incident. But if we review and
approve, that passing incident becomes the doctrine of the Constitution. There
it has a generative power of its own, and all that it creates will be in its
own image’ (Korematsu v. United States [185], at p. 245).
22. Thus
we see that there is only one track within which framework the petitions before
us should be examined. This track is — with regard to any claim against
the constitutionality of a statute — the track of the Basic Laws. Within
the framework of this track, we should follow the well-trodden path of
examining the constitutionality of the law. There is no parallel track; there
is no alternative route. There is one path that applies at all times. It
applies in times of calm. It applies in times of war.
D. Stages
of the constitutional scrutiny: 1. Has a constitutional right been
violated?
(1) The
problems presented
23. It
was argued before us that the Citizenship and Entry into Israel Law violates
the right of the Israeli spouse to human dignity. This violation, so it is
claimed, is two-fold: first, the right of the Israeli spouse to human
dignity is violated, since his right to family life is violated; second,
the right of the Israeli spouse to human dignity is violated, since his right
to equality is violated. This argument presents us with three
fundamental questions: first, are the right of the Israeli spouse to
family life and his right to equality recognized in
(2) Does
Israeli law recognize the right of the Israeli spouse to family life and
equality?
(a) The
right of the Israeli spouse to family life
24. Is
the right of a person to family life recognized in
25. The
right to family life, in the broad sense, is recognized in Israeli law. It is
derived from many statutes, which provide arrangements whose purpose is to
preserve, encourage and nurture the family unit. Spouses are given social
rights, tax, accommodation and housing benefits. They enjoy rights of medical
and pension insurance. They have visitation rights in hospitals and prisons.
They have privileges and defences in the laws of evidence. The criminal law
protects the family; spouses have rights of inheritance, maintenance and mutual
support during the marriage, and rights to a division of property when the
marriage ends. Although the various statutes deal with specific aspects, it is
possible to deduce from them that the family unit is recognized in
26. Protection of the family unit finds
special expression when the family unit includes a minor. This protection is
required both by the right of the parents to raise their children, and by the
rights of the child himself. Indeed, ‘the right of the parents to raise their
children is a natural, basic right, whose importance can hardly be exaggerated’
(P. Shifman, Family Law in Israel, vol. 2, 1989, at p. 219). ‘The
connection between a child and his parents who gave birth to him is one of the
fundamentals on which human society is based’ (LFA 377/05 A v. Biological
Parents [21], at para. 46). As my colleague,
‘The depth and strength of the parental bond,
which contains within it the natural right of a parent and his child to a bond
of life between them, has made family autonomy a value of the highest legal
status, and a violation of this is allowed only in very special and exceptional
cases. Every separation of a child from a parent is a violation of a natural
right’ (LCA 3009/02 A v. B [22], at pp. 894-895).
And in the
words of my colleague
‘It is the
law of nature that a mother and father naturally have custody of their child,
raise him, love him and care for his needs until he grows up and becomes a man…
this bond is stronger than any other, irrespective of society, religion and
country… the law of the state did not create the rights of parents
vis-à-vis their children and vis-à-vis the whole world. The law
of the state adopts what already existed, and seeks to protect the innate
instinct within us, and it turns an “interest” of parents into a “right” under
the law, namely the rights of parents to have custody of their children’ (CFH
7015/94 Attorney-General v. A [23], at p. 102).
27. The
right to family life is not exhausted by the right to marry and to have
children. The right to family life means the right to joint family life. This
is the right of the Israeli spouse to lead his family life in
‘The State of
Israel recognizes the right of the citizen to choose for himself a spouse and
to establish with that spouse a family in
Against this background, it was held that this
protection extends not only to married spouses, but also to recognized couples
who are not married. My colleague Justice D. Beinisch wrote that the state
recognizes:
‘… that the family unit, which is not based on a
formal bond of marriage, is also worthy of protection, and the partners who
comprise it should be allowed to live together and to continue to live in
Israel, provided that it is a real, genuine and established relationship. This
policy gives expression to the commitment of the state to the right to family
life, which includes the right of the individual to choose his partner and to
establish a family with him. This right is recognized in our law and is also
protected in international law’ (AAA 4614/05 State of Israel v. Oren [25],
at para. 11 of the opinion of Justice D. Beinisch).
Indeed, this right of the Israeli spouse to
family life in Israel together with the foreign spouse finds expression in s. 7
of the Citizenship Law, 5712-1952 (hereafter — ‘the Citizenship Law’),
which makes it easier for the foreign spouse to become a citizen. This right
also finds expression in the discretion of the Minister of the Interior with
regard to immigration to
28. The right to family life is also the
right of the Israeli parent that his minor children will grow up with him in
‘As a rule, our legal system recognizes and
respects the value of the integrity of the family unit and the interest of
safeguarding the welfare of the child, and therefore we should prevent the
creation of a difference between the status of a minor child and the status of
his parent who has custody or is entitled to have custody of him’ (per
Respect for the family unit has, therefore, two
aspects. The first aspect is the right of the Israeli parent to
raise his child in his country. This is the right of the Israeli parent to
realize his parenthood in its entirety, the right to enjoy his relationship
with his child and not be severed from him. This is the right to raise his
child in his home, in his country. This is the right of the parent not to be
compelled to emigrate from
(b) The right of the Israeli spouse to
equality
29. The right to equality constitutes an
integral part of Israeli law. It is a central element of Israeli common law
(see I. Zamir and M. Sobel, ‘Equality before the Law,’ 5 Mishpat uMimshal
165 (1999); F. Raday, ‘On Equality,’ 24 Hebrew Univ. L. Rev.
(Mishpatim) 241 (1994); A. Bendor, ‘Equality
and Executive Discretion — On Constitutional Equality and Administrative
Equality,’ Shamgar Book (Articles, vol. 1, 2003) 287; A. Rubinstein, ‘On
Equality for Arabs in Israel,’ Paths of Government and Law: Issues in
Israeli Public Law 278 (2003); A. Rubinstein and B. Medina, The
Constitutional Law of the State of Israel (fifth edition, vol. 1, 1997), at
p. 271). Since the establishment of the State, the
‘Equality is a basic value for every democratic society… The individual
is integrated within the overall fabric and takes his part in building society,
knowing that the others are also acting as he is. The need to ensure equality
is natural to man. It is based on considerations of justice and fairness.
Someone who wishes his right to be recognized must recognize the right of
others to seek similar recognition. The need for equality is essential to
society and to the social consensus on which it is based. Equality protects
government from arbitrariness. Indeed, there is no more destructive force to
society that the feeling of its members that they are treated unequally. The
feeling of a lack of equality is one of the worst feelings. It undermines the
forces that unite society. It harms a person’s identity’ (Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 332; see also HCJ 104/87 Nevo v.
Indeed, ‘discrimination erodes relationships between human beings until
they are destroyed. The feeling of discrimination leads people to lose their
self-restraint and leads to the destruction of the fabric of inter-personal
relationships’ (per
‘A violation of the principle of equality in the
narrow sense is considered particularly serious… this is also the case with
discrimination against an Arab because he is an Arab, and it makes no
difference whether the discrimination is based on religion or on nationality.
This is a breach of the principle of equality in the narrow sense. Therefore it
is particularly serious. The principle of equality in this sense is the soul of
democracy. Democracy demands not merely one vote for each person when there are
elections, but also equality for every person at all times. The real test of
the principle of equality lies in attitudes to a minority, whether religious,
national or any other. If there is no equality for the minority, there is also
no democracy for the majority… in a practical sphere, there is special
significance in the State of Israel to the question of equality for Arabs. This
question involves a complex relationship that has developed between Jews and
Arabs in this country over a long period. Notwithstanding, or perhaps for this
very reason, we need equality. Equality is essential for co-existence. The
welfare of society, and, when considered properly, the welfare of each member
of society, requires that the principle of equality is nurtured between Jews
and Arabs. In any case, this is the requirement of law, and therefore it is the
duty of the court’ (Association for Civil Rights in Israel v. Government of
Israel [40], at pp. 27, 28).
(3) Is the right of the Israeli spouse
to family life and equality a part of human dignity?
(a) The right to family life as a part
of human dignity
30. The right to family life is a part of
Israeli common law. Notwithstanding the importance of common law, a statute is
capable of violating a right enshrined in common law, provided that the statute
is phrased in clear, unambiguous and express language (see HCJ 122/54 Axel
v. Mayor, Council Members and Residents of the Netanya Area [42], at pp.
1531-1532; HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [43], at p.
268; HCJ 337/81 Miterani v. Minister of Transport [44], at p. 359; CA
333/85 Aviel v. Minister of Labour and Social Affairs [45], at p. 596;
CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov
Workers Settlement Ltd [46], at p. 561). The Citizenship and Entry
into Israel Law is phrased in clear, unambiguous and express language.
Constitutional review of its clear, unambiguous and express provisions is
possible only if the right to family life is protected in a Basic Law. The
relevant Basic Law for our purposes is the Basic Law: Human Dignity and
31. The Basic Law: Human Dignity and
‘The right to human dignity constitutes a
collection of rights which must be safeguarded in order to uphold the right of
dignity. Underlying the right to human dignity is the recognition that man is a
free entity, who develops his person and his abilities as he wishes in the
society in which he lives; at the centre of human dignity is the sanctity of
human life and liberty. Underlying human dignity are the autonomy of the
individual will, freedom of choice and freedom of action of the person as a
free entity. Human dignity is based on the recognition of the physical and
spiritual integrity of man, his humanity, his value as a human being, all of
which irrespective of the extent of his usefulness’ (Movement for Quality Government
in Israel v. Knesset [51], at para. 35 of my opinion; see also HCJ 5688/92 Wechselbaum
v. Minister of Defence [52], at p. 827; HCJ 7015/94 Attorney-General v.
A [23], at p. 95; HCJ 4330/93 Ganem v. Tel-Aviv
District Committee, Bar Association [53], at p. 233; HCJ 205/94 Nof v. Ministry of Defence [54], at p. 457 {9}; Daaka v. Carmel
Hospital [47], at p. 577 {463}; Gamzu v. Yeshayahu [48], at p. 375;
HCJ 7357/95 Barki Feta Humphries
(Israel) Ltd v. State of Israel
[55], at p. 783; Man, Nature and Law Israel Environmental Protection Society
v. Prime Minister of Israel [12], at p. 518; CA 5942/92 A v. B
[56], at p. 842; Gaza Coast Local Council v. Knesset [6], at p. 561; Commitment
to Peace and Social Justice Society v. Minister of Finance [49]; HCJ
3512/04 Shezifi v.
This conception of the right to dignity is based
on the conception that the right to dignity ‘should not be restricted merely to
torture and degradation, since thereby we will miss the purpose underlying it. We
should not extend it to include every human right, since thereby we will make
redundant all the other human rights provided in the Basic Laws’ (Man,
Nature and Law Israel Environmental Protection Society v. Prime Minister of
Israel [12], at p. 518). This leads to the conclusion that the scope of the
derivative rights deriving from the general right of human dignity will not
always be identical to the scope of the derivative right had it been provided
as an express and independent right in the Basic Law. I discussed this in Commitment
to Peace and Social Justice Society v. Minister of
Finance [49], where I said:
‘In deriving rights that are not mentioned
expressly in the Basic Laws that speak of rights, but are included within the
concept of human dignity, it is not always possible to comprehend the full
scope that the “derivative” rights would have if they were independent rights… Deducing
the rights implied by human dignity is therefore done from the viewpoint of
human dignity, and in accordance with this perspective. This approach
determines the scope of the implied rights. This is the case with regard to the
implied civil rights… and it is also the case with regard to the implied social
rights’ (ibid. [49], at p. 28).
Against this background the following question
arises: is the right of the Israeli spouse to family life in Israel included
within the right to human dignity provided in ss. 2 and 4 of the Basic Law:
Human Dignity and Liberty?
32. The answer to this question is complex.
Not all aspects of family life are derived from human dignity. We must focus on
those aspects of family life that are incorporated within the scope of human
dignity. The premise is that the family is a ‘constitutional unit’ (see CA
232/85 A v. Attorney-General [58], at p. 17). It is entitled to
constitutional protection. This protection is found in the heart of the right
to human dignity. It also relies on the right to privacy (see s. 7(a) of the
Basic Law: Human Dignity and
‘In an era when “human dignity” is a protected
constitutional basic right, we should give effect to the human aspiration to
realize his personal existence, and for this reason we should respect his
desire to belong to the family unit of which he regards himself to be a part’
(CA 7155/96 A v. Attorney-General [50]; see also CFH 6041/02 A v. B
[60], at p. 256; CA 2266/93 A v. B [61]).
The family ties of a person are, to a large
extent, the centre of his life (see Roberts v. United States Jaycees
[186], at pp. 618-619). There are few decisions that shape and affect the life
of a person as much as the decision as to the person with whom he will join his
fate and with whom he will establish a family. This is also the case with
regard to the right of parents to raise their children. ‘The law regards the
relationship between a parent and his child as a natural right of
constitutional dimensions’ (per
33. The right to family life enjoys
constitutional protection in the internal law of many countries. It is provided
as a constitutional right in the constitution of European countries, such as
France (the preamble of the constitution of 1958), Ireland (article 41 of the
Constitution of 1937), Spain (article 18 of the Constitution of 1978), Germany
(article 6 of the Basic Law), Sweden (article 2 of the Constitution of 1975)
and Switzerland (article 14 of the Constitution of 2000). Even in American law,
notwithstanding the absence of an express right to family life in the
constitution, the right to marry and to have a family life has been recognized
as a constitutional right derived from the constitutional rights to liberty and
privacy (see Griswold v. Connecticut [187]; Loving v. Virginia
[188]; Lawrence v. Texas [189]). We should mention that the family also
enjoys protection in international law (see article 16 of the Universal
Declaration of Human Rights, 1948; article 23 of the International Covenant on
Civil and Political Rights; article 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms).
34. Thus we see that from human dignity,
which is based on the autonomy of the individual to shape his life, we derive
the derivative right of establishing the family unit and continuing to live
together as one unit. Does this imply also the conclusion that realizing the
constitutional right to live together also means the constitutional right to
realize this in
‘The State of
Israel recognizes the right of the citizen to choose for himself a spouse and
to establish with that spouse a family in
Indeed, the constitutional right of the Israeli
spouse — a right that derives from the nucleus of human dignity as a
constitutional right — is ‘to live together in the place of their choice.’
35. The question of the relationship
between human dignity as a constitutional right and the right to family life in
general, and the right to realize this right by means of living together in a
family unit in particular, arose in the case of Dawood v. Minister of Home
Affairs [242]. The judgment was given by the Constitutional Court of South
Africa. The constitution of
‘The decision to enter into a
marriage relationship and to sustain such a relationship is a matter of
defining significance for many if not most people and to prohibit the
establishment of such a relationship impairs the ability of the individual to
achieve personal fulfillment in an aspect of life that is of central
significance. In my view, such legislation would clearly constitute an
infringement of the right to dignity. It is not only legislation that prohibits
the right to form a marriage relationship that will constitute an infringement
of the right to dignity, but any legislation that significantly impairs the
ability of spouses to honour their obligations to one another would also limit
that right. A central aspect of marriage is cohabitation, the right (and duty)
to live together, and legislation that significantly impairs the ability of
spouses to honour that obligation would also constitute a limitation of the
right to dignity’ (Dawood v. Minister of Home Affairs [242]).
A year later, the question arose in South Africa whether a provision in
the statute (the same Aliens Control Act), which provided that foreigners who
want a work permit must submit their application while they are still outside
South Africa, and which restricted the areas of professions for which a work
permit may be requested, was constitutional. The High Court of South Africa,
Cape of Good Hope Provincial Division, held that it was an unconstitutional
provision, since it restricted the ability of spouses to live together, and
therefore violated human dignity (Makinana v. Minister of Home Affairs [243]). The
36. The right to family reunification is
also recognized as a component of the right to family life in international law
and in the constitutional law of many countries. Thus, article 8 of the
European Convention on Human Rights was interpreted by the European Court of
Human Rights as including the right of family members to live together, and
therefore as imposing restrictions on the validity of the European Union’s
policy in the field of immigration. It was held, in a long line of judgments,
that decisions concerning immigration that harm the relationship between
spouses or the relationship between a parent and his child are likely to
violate rights under article 8 of the Convention (see, for example, Berrehab
v. Netherlands [230]; Moustaquim v. Belgium [231]; Ciliz v.
Netherlands [232]; Carpenter v. Secretary of State [233]).
37. Following the Treaty of Amsterdam (which
came into force in 1999), issues of immigration were also transferred to the
authority of the European Community. In consequence, the Council of the European
Union issued a directive concerning immigration in 2003 (2003/86/EC), which
binds all the member states of the Union (except for
38. The right to family reunification is
also regarded as an element in the constitutional right to family life in the
internal law of many countries. Thus, in 1978, the Conseil d’État in
France ruled that an immigration policy that violated the right of citizens of
France to live in their country together with their spouse was
unconstitutional, since it violated the undertaking of the State, which is
provided in the preamble to the Constitution of 1946, to act in order to
promote and develop the family (Arrêt GISTI (C.E.) of 8 December 1978).
The
‘Considérant que
le dixième alinéa du préambule de
Considérant qu’il
résulte de cette disposition que les étrangers dont la
résidence en France est stable et régulière ont, comme les
nationaux, le droit de mener une vie familiale normale ; que ce droit comporte
en particulier la faculté pour ces étrangers de faire venir
auprès d’eux leurs conjoints et leurs enfants mineurs sous
réserve de restrictions tenant à la sauvegarde de l’ordre public
et à la protection de la santé publique lesquelles revêtent
le caractère d’objectifs de valeur constitutionnelle;…’ (Décision n° 93-325 DC du 13 août 1993).
‘The
tenth paragraph of the Preamble to the 1946 Constitution states that: “The
Nation shall provide the individual and the family with the conditions
necessary to their development;”
As
a result of this provision aliens who have resided ordinarily and legally in
France have the right to lead a normal family life in the same way as French
nationals; this right specifically allows these aliens to send for their
spouses and children who are minors on condition of restrictions relating to
preserving public order and protecting public health which are constitutional
objectives;…’ (Decision 93-325 DC of 13 August 1993).
The right to family reunification has also been
recognized in German law as an element of the constitutional protection to the
institution of the family that is enshrined in article 6 of the German Basic
Law. It has been held that the right to family life does not mean merely the
right of each individual to marry, but also the right of the married spouses to
have a family life, to live together and to raise their children. For this
reason, the constitutional right to family life extends also to the foreign spouse
of a German citizen:
‘Denn es gibt im Hinblick auf Ehepartner und Familienangehörige nur
eine einheitliche Ehe oder Familie. Dem Leitbild der Einheit von Ehe und
Familie und der durch Art. 3 Abs. 2 GG verbürgten Gleichberechtigung der
Ehegatten liefe es im Kern zuwider, wenn der Schutzbereich des Art. 6 Abs. 1 GG
in persönlicher Hinsicht gegenüber einem dem sachlichen Schutzbereich
der Norm unterfallenden Hoheitsakt materiell
— wie verfahrensrechtlich auf ein bestimmtes Ehe — oder Familienmitglied beschränkt bliebe.’
‘With respect to spouses and family members, there is only one joint
marriage or family. It would be contrary to the essence of the ideal of unity
of marriage and family and the equal rights of spouses set down in
Art. 3(2) of the Basic Law if the scope of protection afforded by
Art. 6(1) were to be substantively and procedurally restricted to a
certain marital partner or family member with regard to a sovereign act falling
within the norm’s material scope of protection’ (BVerfGE 76, 1 [238]).
The same is the case in the
‘… there can be no question
but that those children, as citizens, have got a constitutional right to the
company, care and parentage of their parents within a family unit. I am also
satisfied that prima facie and subject to the exigencies of the common
good that that is a right which these citizens would be entitled to exercise
within the State’ (Fajujonu v. Minister of Justice [1990] 2 IR 151; see
also S. Mullally, ‘Citizenship and Family Life in Ireland: Asking the Question
“Who Belongs?”,’ 25 Legal Studies, The Journal of the Society of Legal
Scholars, vol. 25, (2005), 578).
In the
‘…the statute interferes with
the fundamental “freedom of personal choice in matters of marriage and family
life” … The right to live together as a family belongs to both the child who
seeks to bring in his or her father and the father who seeks the entrance of
his child’ (Fiallo v. Bell [190] , at p. 810). See also J.
Guendelsberger, ‘Implementing Family Unification Rights in American Immigration
Law: Proposed Amendments,’ 25 San Diego L. Rev. 253 (1988)).
In summary, we have seen that the right to
family life is not merely a basic right in common law, but a constitutional
right enshrined in the right to human dignity.
(b) The right to equality as a part of human
dignity
39. The right to equality was always an
integral part of our common law. The Basic Law: Human Dignity and
40. Does the right of the Israeli spouse to
have a family unit in
E. Does
the Citizenship and Entry into
(1) The problem
41. The right to human dignity grants every
Israeli spouse a constitutional right to have his family life in
(2) The violation of the right to family life
(a) The injury to the Israeli spouse
42. Human dignity as a constitutional right
extends to the right of an Israeli to establish a family unit and realize it in
‘2. As long as this law is valid,
notwithstanding what is stated in any law including section 7 of the
Citizenship Law, the Minister of the Interior shall not grant citizenship under
the Citizenship Law to a resident of an area nor shall he give him a licence to
reside in Israel under the Entry into Israel Law, and the area commander shall
not give a resident as aforesaid a permit to stay in Israel under the security
legislation in the area.’
Does this section violate the constitutional
right of the Israeli spouse to have a family life and to realize it in
43. My answer to this question is yes. The
right of the spouse to form a family unit is seriously violated if he is not
allowed to form this family unit in
(b) The injury to the Israeli minor
45. Thus we see that the right of the
Israeli spouse and the Israeli child to realize family life in
(3) The violation of the right to
equality
(a) The nature of the violation
46. Human dignity as a constitutional right
also extends to the right of the Israeli spouse to equality. Does the
Citizenship and Entry into Israel Law violate this aspect of human dignity? My
answer to this question is yes. The law violates the ability of Israelis who
marry spouses who are Palestinians living in the territories to realize their
right to family life in
(b) Prohibited discrimination or
permitted distinction
47. Against this argument, the State raises
two lines of defence. The first line of the State’s defence is the
argument that the difference in the outcome between the Jewish Israeli couple
and the Arab Israeli couple is not prohibited discrimination but a permitted
distinction. This argument is based on the classic (Aristotelian) definition of
discrimination. According to this, prohibited discrimination is treating equals
differently and treating persons who are different equally (see HCJ 678/88 Kefar
Veradim v. Minister of Finance [70], at p. 507). According to this
approach, equality is explained on the basis of a conception of relevance. This
was discussed by Justice S. Agranat:
‘In this context, the concept of “equality”
therefore means “relevant equality,” and it requires, with regard to
the purpose under discussion, “equality of treatment” for those persons in this
state. By contrast, it will be a permitted distinction if the different
treatment of different persons derives from their being, for the purpose of the
treatment, in a state of relevant inequality, just as it will be discrimination
if it derives from their being in a state of inequality that is not relevant to
the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [71],
at p. 35).
According to this approach, equality does not
require identical treatment. Not every distinction constitutes discrimination.
‘Equality between persons who are not equal is sometimes merely an absurdity’
(Justice T. Or in Avitan v.
48. Against the background of this classic
definition of equality, the state argues that the law’s violation only of the
right of Israeli Arab spouses to family life is based on a relevant difference.
This difference is that only the Arab Israeli spouses wish to bring into
49. Indeed, the law would support the state
if the Citizenship and Entry into Israel Law provided that an Israeli spouse
(whether Jewish or Arab) is not entitled to realize family life in
50. The provisions of the Citizenship and
Entry into Israel Law say otherwise. The law does not prohibit the entry into
(c) The violation of equality in the
absence of an intention to discriminate
51. The state’s second line of
defence is the argument that the purpose of the law was not to discriminate
between Jewish-Israeli spouses and Arab-Israeli spouses. The purpose of the law
is merely a security one. It was not designed to create a difference between
Jewish-Israeli spouses and Arab-Israeli spouses. This argument cannot stand. We
accept that the purpose of the Citizenship and Entry into Israel Law is a
security one, and that it does not conceal any intention to discriminate
against the Arab-Israeli spouse as compared with the Jewish-Israeli spouse. Notwithstanding,
the absence of an intention to discriminate has no effect on the existence of
the discrimination. Indeed, it is an established case law principle with regard
to the rules of equality that the violation of equality (or discrimination) is
not examined merely in accordance with the purpose of the allegedly
discriminatory norm. According to the law accepted in
‘The existence or absence of discrimination is
determined, inter alia, in accordance with the effect that a piece of
legislation achieves de facto… Therefore a law whose wording is
“neutral” may be discriminatory if its effect is discriminatory. Indeed,
discrimination may be unintentional… Even if the purpose of a legal norm is not
to create discrimination, if discrimination is created de facto, the
norm is tainted with discrimination’ (HCJ 1000/92 Bavli v.
In Supreme Monitoring Committee for Arab
Affairs in Israel v. Prime Minister [41] I added:
‘… prohibited discrimination may also occur without
any discriminatory intention or motive on the part of the persons creating the
discriminatory norm. Where discrimination is concerned, the discriminatory
outcome is sufficient. When the implementation of the norm created by the
authority, which may have been formulated without any discriminatory intent,
leads to a result that is unequal and discriminatory, the norm is likely to be
set aside because of the discrimination that taints it. Discrimination is not
determined solely according to thought and intention of the creator of the
discriminatory norm. It is determined also in accordance with the effect that
it has de facto… The test for the existence of discrimination is an
objective test that focuses on the outcome of realizing the norm that is under
scrutiny. It is not limited to the subjective thinking of the creator of the
norm. The question is not whether there is an intention to discriminate against
one group or another. The question is what is the final outcome that is created
in terms of the social reality’ (ibid. [41], at para. 18 of my opinion).
In the case before us, the impact of the
Citizenship and Entry into Israel Law is solely to restrict the right of Arab
citizens and residents of
(d) Lawful violation of equality
52. Naturally, the discriminatory result
vis-à-vis the Arab-Israeli spouse that is caused by the Citizenship and
Entry into Israel Law does not automatically lead to the conclusion that the
law is unconstitutional. There are many constitutional violations of rights
protected under the Basic Laws. This constitutionality exists notwithstanding
the violation of human rights. It becomes possible by satisfying the conditions
of the limitations clause. This is the law with regard to all human rights. It
is also the law with regard to the right to realize family life in
‘Within the sphere of the right to equality, the
sole distinction is no longer between equality or a distinction (which are lawful)
and discrimination (which is unlawful). Now we must distinguish between the
right of equality and the constitutional possibility of violating this right
when the requirements of the limitations clause are satisfied. In such
circumstances, the executive act is discriminatory: it does not involve a
distinction and it violates equality. Notwithstanding, the discrimination is
proper, because it befits the values of the State, it is for a proper purpose,
and the violation of equality is not excessive’ (HCJ 3434/96 Hoffnung v.
Knesset Speaker [77], at p. 67).
And in another case I added:
‘… the
right to equality, like all other human rights, is not an “absolute” right. It
is of a “relative” nature. This relativity is reflected in the possibility of
violating it lawfully, if the conditions of the limitations clause are
satisfied’ (Supreme Monitoring Committee for Arab Affairs in Israel v. Prime
Minister [41], at para. 22 of my opinion).
Thus we see that the response of the state with
regard to the security risk presented by the foreign spouse who wishes to
realize his family unit with the Arab-Israeli spouse is a response that is not capable
of ridding the Citizenship and Entry into Israel Law of its discriminatory
nature. The law violates the right of the Arab-Israeli spouse to equality.
Notwithstanding, the state can still make the argument that this violation of
equality — as well as the violation of the right of the Israeli spouse to
realize his family life in Israel — is constitutional, since it satisfies
the requirements of the limitations clause. Nonetheless, we ought to understand
the effect and ‘geometric’ position of the state’s argument. Its effect is not
to rid the Citizenship and Entry into Israel Law of its discriminatory nature.
Its position in the first stage of the constitutional scrutiny is therefore
ineffective. Despite this, the state may still make the argument — the
validity of which we must examine — that this discrimination is lawful,
since it satisfies the requirements of the limitations clause. The proper
position of this claim is in the second stage of the constitutional scrutiny.
Let us now turn to this scrutiny, both with regard to the violation of the
right of the Israeli spouse to realize his family life in
F. Stages of the constitutional scrutiny: 2. Is the
violation of the constitutional right lawful?
(1) The purpose, importance and elements
of the limitations clause
(a) The transition from the stage of the
violation of the right to the stage of justifying the violation
53. We have reached the conclusion that the
Citizenship and Entry into Israel Law violates the human dignity of the Israeli
spouses. This violation is two-fold. First, the law violates the right
of the Israeli spouse to realize his family life in
(b) The general limitations clause in
the Basic Law: Human Dignity and
54. The general limitations clause in the
Basic Law: Human Dignity and
|
‘Violation
of rights |
8. The rights under this Basic Law may
only be violated by a law that befits the values of the State of Israel, is
intended for a proper purpose, and to an extent that is not excessive, or in
accordance with a law as aforesaid by virtue of an express authorization
therein.’ |
Similar provisions exist in comparative law (see
s. 1 of the Canadian Charter of Rights and Freedoms; s. 36 of the Constitution
of South Africa; art. 29 of the Universal Declaration of Human Rights). A
limitations clause has a two-fold purpose: on the one hand, it
guarantees that the human rights provided in the Basic Law may only be violated
when the conditions provided therein are satisfied. On the other hand,
it guarantees that if the conditions provided therein are satisfied, the
violation of the human rights provided therein is constitutional (see Design
22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department,
Ministry of Labour and Social Affairs [14], at para. 11 of the judgment;
HCJ 9333/03 Kaniel v. Government of Israel [80], at p. 17; Gaza Coast
Local Council v. Knesset [6], at p. 545).
(c) The centrality of the limitations
clause in the constitutional structure
55. The limitations clause is a central
element in our constitutional structure (see D.M. Beatty, The Ultimate Rule
of Law (2004)). It reflects the idea that the constitutional validity of
human rights is based on an overall balance between the rights of the
individual and the needs of society as a whole (United
‘The limitations clause reflects a balance
between the constitutional interests reflected in the basic rights and the
needs reflected in the legislation under scrutiny. The basic rights, even
though they are supreme rights of a constitutional nature, are not absolute,
but they arise from a reality that requires balances to be struck between the
duty to uphold important rights of the individual and the need to provide a
solution to other worthy interests, whether of an individual or of the public.
Finding a harmonious arrangement between all these interests is a condition for
a proper social life and for preserving a proper constitutional system… the
limitations clause is intended to delineate the boundaries within which primary
legislation of the Knesset can be enacted even where it contains a violation of
human rights, provided that this violation is found in the proper sphere of the
balances between the protection of the right and the need to achieve other
important purposes that are involved in violating it’ (LCA 3145/99 Bank
Leumi of Israel Ltd v. Hazan [81], at p. 405).
Indeed, ‘the existence of human rights assumes
the existence of society and the existence of restrictions on the free will of
the individual’ (Movement for Quality Government in Israel v. Knesset [51],
at para. 45 of my opinion).
56. The Basic Law: Human Dignity and
57. The limitations clause is an integral
part of the Basic Law: Human Dignity and
‘The constitutional right and its lawful
violation derive from a common source… both the constitutional right and the
limitation on it are subject to the basic principle on which the Basic Law:
Human Dignity and Liberty (s. 1) and its purposes (ss. 1A and 2) are built’ (ibid.
[7], at p. 433).
Indeed, human rights and the possibility of
violating them derive from the same source. They reflect the same values.
Admittedly, human rights are not absolute. It is possible to restrict their
realization. But there are limits to the restriction of the realization of
human rights (see HCJ 164/97 Conterm Ltd v. Minister of Finance [85], at
p. 347 {71}; Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath
Work Permits Department, Ministry of Labour and Social Affairs [14], at
para. 11; Gaza Coast Local Council v. Knesset [6], at p. 545). These
limits are enshrined in the limitations clause.
58. The restrictions on the realization of
constitutional human rights are of various kinds. One of the accepted and
well-known kinds is national security and public safety. These are public
interests that justify legislation that contains restrictions on human rights.
‘Indeed, security is a fundamental value in our society. Without security, it
is not possible to protect human rights…’ (Justice D. Dorner in HCJ 5627/02 Saif
v. Government Press Office [86], at p. 76 {197}). I discussed this in one
case:
‘A constitution is not a recipe for suicide, and
civil rights are not a platform for national destruction… civil rights derive
nourishment from the existence of the State, and they should not become a means
of bringing about its destruction’ (EA 2/84 Neiman v. Chairman of Elections
Committee for Eleventh Knesset [87], at p. 310 {161}).
And in another case I said:
‘There is no alternative — in a freedom and
security seeking democracy — to balancing liberty and dignity against
security. Human rights must not become a tool for denying public and national
security. We require a balance — a delicate and difficult balance —
between the liberty and dignity of the individual and national security and
public security’ (CrimFH 7048/97 A v. Minister of Defence [88], at 724;
see also Ajuri v. IDF Commander in West Bank [1], at p. 383 {120}).
Indeed, ‘human rights are not a prescription for
national destruction’ (Conterm Ltd v. Minister of Finance [85], at p.
347 {71}). ‘The needs of society and its national goals may allow a violation
of human rights’ (Gaza Coast Local Council v. Knesset [6], at para. 59).
It is possible to violate the right of an Arab-Israeli spouse to realize his
family life in
(d) The conditions of the
limitations clause
59. The limitations clause provides four
conditions which must all be satisfied in order to allow a constitutional
violation of a human right provided in the Basic Law: Human Dignity and
(2) ‘Proper purpose’
(a) Determining the ‘purpose’
60. This condition of the limitations
clause focuses on the purpose whose realization justifies a violation of the
constitutional right. Therefore it is necessary to identify the ‘purpose’ of
the legislation. It is also necessary to determine whether this ‘purpose’ is a
‘proper’ one. These actions are governed by normative criteria. They sometimes
raise significant difficulties. Thus, for example, sometimes the question
arises as to how to examine the purpose of a law that has several purposes. In
this regard, it has been held that one should focus on the dominant purpose
(see Menahem v. Minister of Transport [11], at p. 264). Serious problems
also arise with regard to determining the level of abstraction of the purpose,
where the law has several purposes at different levels of abstraction.
Questions also arise with regard to the criteria for determining the purpose.
The question is whether the purpose of a piece of legislation is only its
subjective purpose, which focuses on the motive that underlies the legislation;
or perhaps the ‘purpose’ of the legislation is only the objective purpose,
which focuses on the purpose at the time of deciding the question of
constitutionality; or perhaps the ‘purpose’ is determined — as it is with
regard to the interpretation of legislation – in accordance with both its
objective and subjective purpose together (see United
(b) The ‘proper’ purpose
‘Examining the question whether the purpose is
“proper” is done within the context of the violation of the human right that is
protected in the Basic Law. The question that must be answered is whether it is
possible to justify the violation of human rights with the proper purpose of
the legislation… it follows that the legislation that violates human rights will
satisfy the requirement concerning a “proper purpose” if the purpose of that
legislation provides a sufficient justification for that violation of human
rights’ (Gaza Coast Local Council v. Knesset [6], at para. 63 of the
majority opinion).
(c) Characteristics of the proper
purpose
62. What are the characteristics of the
proper purpose? It has been held that the purpose of a law that violates human
dignity is proper if it is intended to realize social purposes that are
consistent with the values of the state as a whole, and that display
sensitivity to the place of human rights in the overall social system (see Movement
for Quality Government in Israel v. Knesset [51], at paras. 51 and 52 of my
opinion, and also United