Challenging Israel Prison Service Decision to Prohibit Palestinian Arab Prisoner Citizen of Israel from Marrying Palestinian Woman Prisoner from the OPT
On 9 September 2009, Adalah filed an appeal to the Supreme Court of Israel on behalf of Mr. Muayad Bushnak, a Palestinian Arab citizen of Israel imprisoned in an Israeli prison, against a decision of the Tel Aviv District Court prohibiting him from marrying a Palestinian woman prisoner from the Occupied Palestinian Territory (OPT) on the grounds that she does not have a permit to reside in Israel. In the appeal, Adalah Attorney Abeer Baker argued that the woman's lack of a permit is irrelevant because she is a prisoner incarcerated in an Israeli jail she has the right to benefit from the constitutional rights granted to each prisoner. These rights include her right to marry, her right to receive health care, her right of access to the courts and any other fundamental right of a prisoner.
Mr. Bushnak is serving a two and a half year prison sentence during which he is working for the prison medical center as a medical assistant for disabled prisoners. During his time at the medical center, his relationship with the woman intensified and they decided to get married. As is the custom among prisoners, they set a date to be married in the Shar'ia Court in Taibeh. However, all of their requests to the Israel Prison Service (IPS) to marry were met with outright rejection with the IPS claiming that "the law does not allow Israeli citizens to marry those who do not have Israeli citizenship".
After the IPS rejected their request for marriage, Mr. Bushnak submitted a petition to the Tel Aviv District Court, which was also rejected. The court ruled that the marriage application made by the young man was an attempt to circumvent the law, which prohibits Palestinians from entering Israel. In the appeal to the Supreme Court, Attorney Baker argued that the IPS and the District Court erred. She emphasized that while Israeli law bans family unification between Palestinian citizens of Israel and Palestinians from the West Bank and Gaza Strip, it does not preclude in any way the right to marry. In particular, there is no law that prohibits any person from marrying, since the right to marry, raise a family and choose a partner is one of the fundamental constitutional rights guaranteed to every human being.
In the appeal, Adalah warned of legitimizing the position of the IPS and the District Court, which stipulates that Palestinian prisoners in Israel are illegal residents, and thus their rights can be undermined and violated. Validating this line of reasoning would justify a racist separation policy in Israeli prisons with regard to the constitutional rights of prisoners.
Furthermore, Adalah argued in the appeal that the IPS and the District Court violated Mr. Bushnak's right of access to the court and his right to fair and just judicial proceedings. The IPS did not allow Mr. Bushnak the opportunity to view the positions of the state and the court, and the court made its decision without even listening to him. Therefore, the District Court's decision is at best flawed, and Mr. Bushnak must therefore be allowed to appeal to the Supreme Court.
Citation: Request for Appeal (to the Supreme Court) 7244/09 Bushnak v. Israel Prison Service (case pending)
