Special Report on Family Unification
On 21 February 2005, Adalah submitted a motion to the Supreme Court of Israel demanding that it rule on petitions currently pending before it challenging the constitutionality of the “Nationality and Entry into Israel Law (Temporary Order) – 2003” (renewed 2004, 2005) (hereafter: “the Law”). Adalah argued that the Court’s failure to rule would violate the rule of law, undermine the status of the Court, and disproportionately violate the petitioners’ constitutional right to access the courts, including the right to receive a remedy within a reasonable amount of time. The lack of a ruling also violates the principle of legal certainty, since not only do eight petitions remain pending, but so do many hundreds of others which the Court has either refused to hear or has frozen until the delivery of a decision in this case. The motion was filed by Adalah Attorneys Hassan Jabareen and Orna Kohn.
The motion is part of a case submitted to the Supreme Court in August 2003 in Adalah's own name and on behalf of two families affected by the Law, the Chairman of the High Follow-up Committee for Arab Citizens in Israel, and nine Arab members of Knesset (MKs) against the Interior Minister and the Attorney General.
The petitioners challenged the constitutionality of the Law and demanded its annulment. The Law bars Palestinians residents of the Occupied Palestinian Territories (OPTs) who are married to Israeli citizens from obtaining residency or citizenship status in Israel, thereby banning family unification.
In December 2004, the legal advisor to the Interior Ministry circulated a draft bill to amend and re-extend the Law. This proposed bill followed an announcement made to the Court in August 2004 by the Attorney General that the Interior and Justice Ministries may seek to amend the law once again when it expired in February 2005. On 16 December 2004, a thirteen-justice panel of the Supreme Court issued a decision postponing the delivery of a final judgment or an interim order on the petitions, due to (i) the short time before the expiry of the Law in February 2005, and (ii) the respondents' announcement that the government would prepare an amendment to the Law and present it to the Knesset before the expiry of the Law. The Court concluded that it would deliver its decision based on the new legal reality which would be created in under two months.
Meanwhile, on 31 January 2005, the Knesset extended the law, unamended and unchanged, for an additional four months. The Attorney General informed the Court of this development only on 18 February 2005.
In the motion, Adalah argued that the two reasons given by the Court for not issuing a judgment on the petition were rendered irrelevant by the issuance a Cabinet decision of 23 January 2005, which asked the Knesset to extend the Law, un-amended, for an additional four months. The Cabinet's decision clarified that the legal reality had not in fact changed, since the respondents' plan to bring an amended version of the Law before the Knesset was not carried out. Therefore, the respondents' announcement does not reflect the Court's decision from December 2004, particularly since it did not include any serious indication of their intention to amend the Law.
Moreover, Adalah further argued that the state failed to fulfill its duty to notify the Supreme Court of the developments resulting from the government's decision not to amend the Law, and to ask the Knesset to extend it as it is. The duty to inform the Court of any essential changes of circumstances is extremely weighty, and especially so in this case, since the declared change of circumstances constituted the main basis for the Court's decision not to issue a verdict or interim order, argued Adalah.
Adalah stressed that the outcome of these developments is that the Law, which was legislated as a temporary order for one year, has now been in force for close to two years. Furthermore, the Law was legislated in the wake of an Interior Ministry policy and a later Cabinet decision of May 2002, during which the respondents prevented the granting of any status to Palestinians (the subject of an earlier petition submitted by Adalah: H.C. 4608/02, Awad, et. al., v. The Prime Minister of Israel, et. al.). There can be no doubt, therefore, that the issue is not one of a temporary nature as the state has argued, but is a severe and longstanding violation, which has continued for almost three years, and will continue for at least an additional four months, argued Adalah.
Further delay in issuing a decision, argued Adalah, makes the temporary permanent, and may constitute a very dangerous precedent regarding the principle of the rule of law, by sending a message to the Knesset that will be able to legislate any racist, unconstitutional law, and avoid Court intervention simply by announcing it a temporary order and renewing it for a few months at a time.
The petitioners maintain that the racist Law violates the fundamental human rights to equality, liberty, privacy and family life; flagrantly discriminates on the basis of nationality and ethnic origin against Palestinian citizens of Israel – who are overwhelmingly the Israeli citizens who marry Palestinians from the OPTs – and against Palestinians from the OPTs; and is disproportionate to the alleged security reasons cited by the government to justify its enactment. Thousands of families have been affected by the Law. The UN Committee on the Elimination of Racial Discrimination (CERD), the UN Human Rights Committee (UNHRC), the European Parliament, and Palestinian, Israeli and international human rights organizations such as the International Federation for Human Rights (FIDH), Amnesty International, and Human Rights Watch have all condemned the law and called upon Israel to revoke it.
See H.C. 7052/03, Adalah, et. al. v. Minister of Interior, et. al. (case pending).
