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
(d) The need for realizing the purpose
63. To what degree must the purpose need to
be realized for it to be ‘proper’? The answer to this question varies in
accordance with the nature of the right that is violated and the extent of the
violation thereof. ‘The more important the right that is violated, and the more
serious the violation of the right, the stronger must be the public interest in
order to justify the violation’ (per Justice I. Zamir in Tzemah v.
Minister of Defence [9], at p. 273 {672}; see also Menahem v. Minister
of Transport [11], at p. 258; Horev v. Minister of Transport [89],
at p. 52 {205}). When the violation is of a central right — such as a
violation of human dignity — the purpose of the violating law will justify
the violation if the purpose seeks to realize a major social goal, or an urgent
social need. It is possible that violations of less central rights will justify
a lower level of need.
(3) ‘To an extent that is not excessive’
(a) Proportionality of the violation
64. The requirement that the purpose of the
violating law should be a ‘proper’ one focuses on the purpose of the
legislation that violates the constitutional human rights. The requirement that
the violation of the legislation shall be ‘to an extent that is not excessive’
focuses on the means that the legislator chose. A law that violates a
constitutional human right is proportionate only if it maintains a proper
relationship between the proper purpose that the law wishes to realize and the
means that it adopts to realize that purpose. We are dealing with a ‘dosage
test’ (per Justice E. Goldberg in United
(b) Proportionality subtests
(4) The first subtest: rational
connection
(a) The nature of the rational
connection
66. The first test is the ‘rational
connection test’ or the ‘appropriateness test.’ This requires a rational
connection between the proper purpose and the measure chosen. Rationality is
not technical. It sometimes requires the proof of causal relationships, which
are the basis for the rational connection. With regard to these connections, on
the one hand we do not need absolute certainty that the measure will
achieve the purpose, but on the other hand we will not be satisfied with
a ‘slight and theoretical’ possibility (Saif v. Government Press Office
[86], at p. 78 {198}). We require the degree of likelihood that is appropriate,
taking into account the nature of the right, the strength of the violation
thereof and the public interest that the violation is intended to realize. ‘We
do not require absolute certainty that the measure will achieve its purpose. It
is sufficient that there is a serious likelihood of achieving the purpose by
means of the measure that violates the right. The degree of likelihood required
will be determined in accordance with the relative importance of the right that
is violated and the purpose of the violation’ (per Justice Dorner in Israel Investment Managers Association v. Minister of
Finance [8], at p. 420): thus, for
example, in Stamka v. Minister
of Interior [24] we considered the policy
of the Ministry of the Interior, according to which a foreign spouse was
required to leave Israel until the application of the Israeli spouse to
regulate the status of the foreign spouse was considered on its merits. The
court held that this policy was disproportionate. With regard to the rational
connection test,
‘The Ministry of the Interior has not furnished
us with any relevant statistics, either with regard to the number of fictitious
marriages or with regard to the ratio between these and all the marriages
between Israeli citizens and non-Jewish foreigners. Let us assume that we are
speaking of a fictitious marriage in one out of every ten cases. Can we find a
rational connection between the measure and the purpose? Is it a proper
rational connection that nine persons should suffer because of one?’ (ibid.
[24], at p. 778).
(b) Finding a basis for the rational
connection
67. Sometimes the court requests that the
‘social facts’ (or the ‘constitutional facts’) that indicate the rational
connection should be presented to it (see United
‘An examination is required of the social
reality that the law is seeking to change. What characterizes these cases is
that the assessment of the correspondence or the rational connection lies to a
large extent in the realm of predicting the future. These are cases in which
there are several variables that can affect the final correspondence between
the measure and the purpose and the rational connection between them. The
appropriateness or the rational connection are then examined in accordance with
the “results test” ’ (Movement for Quality Government in Israel
v. Knesset [51], at para. 58 of my opinion).
In many cases it is possible to base the
rational connection on experience and common sense. On this basis, it is
possible to show that the legislation is not arbitrary, but based on rational
considerations. The mere fact that the factual assumptions and social
assessments are not realized over the years does not necessarily lead to the
conclusion that the measure chosen, when it was chosen, was irrational.
Notwithstanding, a measure that was rational at the time of the legislation may
become irrational in the course of time.
(5) The second subtest: the least harmful
measure
(a) The necessity test
68. The second subtest of the
proportionality of the violation is the ‘least harmful measure test’ or ‘the
necessity test.’ The assumption is that the first subtest recognizes
several measures that satisfy the rational connection between the proper
purpose and the measure chosen. Of these measures, the measure that least
violates the human right should be chosen. According to this test, it is
required that the violating law does not violate the constitutional right more than
is necessary in order to achieve the proper purpose (see Menahem v. Minister
of Transport [11], at p. 279; HCJ 6226/01 Indor v. Mayor of Jerusalem
[92], at p. 164). ‘The legislative measure can be compared to a ladder, which
the legislator climbs in order to achieve the legislative purpose. The
legislator must stop at the rung on which the legislative purpose is achieved
and on which the violation of the human right is the least’ (Israel Investment Managers Association v. Minister of
Finance [8], at p. 385; see also United
(b) Individual consideration
69. The need to adopt the least harmful
measure often prevents the use of a blanket prohibition. The reason for this is
that in many cases the use of an individual examination achieves the proper
purpose by employing a measure that violates the human right to a lesser degree.
This principle is accepted in the case law of the
‘…the employer will find it difficult to satisfy
the “least possible harm test” if he does not have substantial reasons to show
why an individual examination will prevent the attainment of the proper purpose
that he wishes to achieve’ (HCJ 6778/97 Association for Civil Rights in
Israel v. Minister of Public Security [94], at p. 367 {11}).
In another case, a provision that press cards
would not be given to Palestinian journalists was disqualified. In her opinion,
Justice D. Dorner said:
‘A refusal to give a press badge without any
examination of the individual case, because of the danger inherent in all
Palestinian journalists who are residents of Judaea and Samaria —
including those entitled to enter and work in Israel — is the most
prejudicial measure possible. This measure is strongly prejudicial to the
interest of a free press, and could be prevented by individual security checks
that are justified in order to mitigate the individual security risk presented
by the residents of Judaea and Samaria, in so far as such a risk exists with
regard to residents who have successfully undergone the checks required in
order to receive permits to enter and work in Israel’ (Saif v. Government
Press Office [86], at p. 77 {198}).
Naturally, there may be cases in which the
individual consideration will not realize the proper purpose of the law, and a
blanket prohibition should be adopted. Notwithstanding, before reaching this
conclusion, we must be persuaded, on the basis of proper figures, that there is
no alternative to the blanket prohibition. Sometimes the choice of the blanket
prohibition results from a failure to determine the form of the individual
consideration and not because such a consideration is ineffective. In Stamka v. Minister
of Interior [24],
‘The clear impression is that the weakness in
the supervision of the Ministry of the Interior was one of the main factors…
for the creation of the new policy; and instead of strengthening the
effectiveness of the supervision, the Ministry of the Interior took the easy
path of demanding that the foreign spouse leave Israel’ (ibid. [24], at
p. 770).
‘Measures taken on grounds of public policy or public security shall
comply with the principle of proportionality and shall be based exclusively on
the personal conduct of the individual concerned…
The personal conduct of the individual concerned must represent a
genuine, present and sufficiently serious threat affecting one of the
fundamental interests of society. Justifications that are isolated from the
particulars of the case or that rely on considerations of general prevention
shall not be accepted.’
71.
‘… at least requires a case-by-case determination of the question,
sensitive to the facts of each particular claim’ (Employment Div., Ore. Dept. of Human Res. v. Smith [191], at p. 899; see also Gonzales
v. O Centro Espirita Beneficente Uniao Do Vegetal [192].
Thus, for example, Aptheker v. Secretary of State [193]
considered a law that was enacted in the
‘Assuming
that some members of the Communist Party… had illegal aims and engaged in
illegal activities, it cannot automatically be inferred that all members shared
their evil purposes or participated in their illegal conduct.’
‘The
broad and enveloping prohibition indiscriminately excludes plainly relevant
considerations such as the individual’s knowledge, activity, commitment, and
purposes in and places for travel. The section therefore is patently not a
regulation “narrowly drawn to prevent the supposed evil”… yet here, as
elsewhere, precision must be the touchstone of legislation so affecting basic
freedoms’ (Aptheker v. Secretary of State [193], at p. 514; see also Sugarman v. Dougall [195] at p. 647; Regents
of Univ. of Cal. v. Bakke [196]; City of Richmond v. Carson [197]; Johnson
v. City of Cincinnati [198]; Gratz v. Bollinger [199]; Grutter v.
Bollinger [200]).
(c) Exceptions
to the blanket prohibition
72. Even in
cases where there is no alternative measure to a blanket prohibition of rights,
the need to choose the least harmful measure may make it necessary to provide a
mechanism that will allow exceptions to the blanket prohibition, such as
humanitarian exceptions. The reason for this is that even if there is no
alternative, for the purpose of achieving the proper purpose, to a blanket
restriction of rights, there may be circumstances where, on the one hand,
the violation of the right is very severe, and on the other hand, an
exceptional protection of the right will not impair the realization of the
proper purpose. The creation of a mechanism for exceptions is intended to
provide an answer to such circumstances. The exceptions mechanism may reduce
the law’s violation of the rights, without impairing the realization of the
proper purpose. Therefore, the creation of such a mechanism is required by the
second subtest concerning the choice of the least harmful measure. Indeed, just
as every person with administrative authority is liable to exercise discretion
on a case-by-case basis and to recognize exceptions to rules and fixed
guidelines when the circumstances justify this (see Y. Dotan, Administrative
Guidelines,
73. The need
to determine exceptions to blanket prohibitions that restrict human rights is
also recognized in comparative law. This is the law in
‘RFRA [the Religious Freedom Restoration Act], and the strict scrutiny
test it adopted, contemplate an inquiry more focused than the Government’s
categorical approach. RFRA requires the Government to demonstrate that the
compelling interest test is satisfied through application of the challenged law
“to the person” — the particular claimant whose sincere exercise of
religion is being substantially burdened… this Court looked beyond broadly
formulated interests justifying the general applicability of government
mandates and scrutinized the asserted harm of granting specific exemptions to
particular religious claimants… The Court explained that the State needed “to
show with more particularity how its admittedly strong interest… would be adversely
affected by granting an exemption…”
(Wisconsin v. Yoder [201], at p. 236)’
(Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192], at
para. IIIA).
Thus, in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192], it was held
that a law that absolutely prohibits the use of drugs is unconstitutional,
since it does not include an exemption that allows the use of a particular drug
by the members of a religious group who use that drug for the purposes of
religious worship. In another case, the United States
(6) The
third subtest: proportionality in the narrow sense
(a) The
proportionate measure test
74. The third subtest of the proportionality of the violation is
the ‘proportionate measure test’ or the ‘proportionality test in the narrow
sense.’ This test examines the proper relationship between the benefit arising
from achieving the proper purpose and the violation of the constitutional
right. It concerns ‘the benefit arising from the policy as compared with the
damage that it brings in its wake’ (per
‘This subtest examines the benefit as compared with the damage…
According to it, a decision by an administrative authority must strike a
reasonable balance between the needs of the public and the damage to the
individual. The purpose of the examination is to consider whether the
seriousness of the harm to the individual and the reasons that justify it stand
in due proportion to one another. This assessment is made against the
background of the general normative structure of the legal system…’ (ibid.,
at p. 850 {309-310}; see also Marabeh v. Prime Minister of Israel [5],
at para. 110 of my opinion).
This principled balancing between the benefit arising from realizing the
proper purpose and the degree of the violation of the right of the individual
is not new in
(b) The nature of the test
75. When operating the third subtest, we assume that the
purpose which the law that violates the constitutional human right wishes to achieve
is a ‘proper’ one. We also assume that the means chosen by the law are suitable
(according to the rationality test) for achieving the proper purpose. We
further assume that it has not been proved that there are measures that are
capable of realizing the proper purpose while violating human rights to a
smaller degree. In this normative situation, the limitations clause demands
that the violation caused to the human right by the arrangements in the law
will be proportionate to the benefit achieved by the realization of the proper
purpose. Whereas the rational connection test and the least harmful measure
test are essentially determined against the background of the proper purpose,
and are derived from the need to realize it, the test of proportionality (in
the narrow sense) examines whether the realization of this proper purpose is
commensurate with the violation of the human right. ‘The relationship between
the measure and the purpose must be proportionate, i.e., it must not be out of
due proportion’ (I. Zamir, ‘Israeli Administrative Law as Compared with German
Administrative Law,’ 2 Mishpat uMimshal 109 (1994), at p. 131). A proper
purpose, a rational connection between it and the provisions of the law and the
minimization of the violation of human rights that is capable of realizing the
proper purposes are essential conditions for the constitutionality of the
violation of human rights. But they are not sufficient in themselves. A
constitutional regime that wishes to maintain a system of human rights cannot
be satisfied only with these. It determines a threshold of protection for human
rights that the legislature may not cross. It demands that the realization of
the proper purpose, through rational measures that make use of the lowest level
for realizing the purpose, will not lead to a disproportionate violation of
human rights. In the words of Chief Justice McLachlin in R. v. Sharpe
[215]:
‘The final proportionality assessment takes all the elements identified
and measured under the heads of Parliament’s objective, rational connection and
minimal impairment, and balances them to determine whether the state has proven
on a balance of probabilities that its restriction on a fundamental Charter
right is demonstrably justifiable in a free and democratic society’ (R. v.
Sharpe [215], at p. 99).
This subtest therefore provides a value test that is based on a balance
between conflicting values and interests (see Alexy, A Theory of
Constitutional Law, at p. 66). It reflects the approach that there are
violations of human rights that are so serious that a law cannot be allowed to
commit them, even if the purpose of the law is a proper one, its provisions are
rational and there is no reasonable alternative that violates them to a lesser
degree. The assessment of the balance between the extent of the violation of
the human right and the strength of the public interest that violates the right
is made against a background of all the values of the legal system.
(c)
76. The case of Beit Sourik Village
Council v. Government of Israel [2] demonstrates the nature of the test of
proportionality (in the narrow sense). The construction of the separation fence
in the area of the
‘The real question before us is whether the security benefit obtained by
accepting the position of the military commander… is proportionate to the
additional injury resulting from his position… Our answer to this question is
that the military commander’s choice of the route for the separation fence is
disproportionate. The difference between the security benefits required by the
military commander’s approach and the security benefits of the alternate route
is very small in comparison to the large difference between a fence that separates
the local inhabitants from their lands and a fence that does not create such a
separation or that creates a separation which is small and can be tolerated’ (ibid.
[2], at pp. 851-852 {311}).
Indeed, in Beit
Sourik Village Council v. Government of Israel [2] a proper (security) purpose was the basis for the
separation fence; there was a rational connection between it and the
achievement of the security purpose; no alternative route was found that
realized the security purpose in full. Notwithstanding, the route was
disqualified because its violation of the rights of the local inhabitants was
disproportionate. We pointed to an alternative route, which allowed security to
be achieved to a lesser degree than the proper purpose required to be achieved
in full, but which harmed the local inhabitants far less. We said that this
correlation — which provided slightly less security and much more
protection of rights — was proportionate.
(7) The margin of proportionality and judicial review
(a) The margin of proportionality
77. The proportionality test, with its three subtests, is not a
precise test. There is sometimes a significant overlap between the subtests.
Within each of these, there is room for discretion. The subtests do not always
lead to one and the same conclusion (see Menahem v. Minister of Transport [11], at p. 280). They are not sufficiently
precise as to allow such unambiguity. Several solutions may sometimes be
adopted in order to satisfy proportionality. Sometimes the case is a borderline
one (see Ben-Atiya v. Minister
of Education, Culture and Sport [91], at p. 13). A margin of
proportionality is created (similar to the margin of reasonableness). Any
choice of a measure or a combination of measures within the margin satisfies
the requirements of the limitations clause. The legislature has room to
manoeuvre within the margin. The choice is subject to its discretion (see United
(b) Judicial review
78. What is the place and role of judicial review? It protects the
limits of the margin of proportionality. It has the role of protecting the
constitutional human right so that it is not violated by measures that depart
from the margin of proportionality. This gives expression to the principle of
the separation of powers. The legislature determines the measures that are to
be taken in order to realize social objectives. That is its role. The judiciary
examines whether these measures violate the human right excessively. That is
its role. One power does not enter the sphere of the other power. The court
does not decide for the legislature the purposes that it should realize and the
measures that it should choose. These are questions of national policy within
the province of the legislature. The court examines whether the purposes and
the measures that were chosen by the legislature and that violate a
constitutional human right satisfy the limitations that the Basic Law placed on
the legislative power of the legislature. I discussed this in one case, where I
said:
‘The requirement of proportionality establishes a flexible test.
Sometimes it is possible to point to several solutions that satisfy its
requirements. In these circumstances, the judge should recognize the
constitutionality of the law. Indeed, the basic premise is that the role of
legislation was entrusted to the legislature. It is the faithful representative
of the people who are sovereign. The national responsibility for enacting laws
that will realize a proper purpose through proportionate measures rests,
according to the principle of the separation of powers, with the legislature.
It has the tools to identify the proper purpose and to choose the proportionate
measure. The court does not aim to replace the discretion of the legislature
with its own discretion. The court does not put itself in the shoes of the
legislature. It does not ask itself what are the measures that it would have
chosen had it been a member of the legislature. The court exercises judicial
review. It examines the constitutionality of the law, not its wisdom. The
question is not whether the law is good, effective, justified. The question is
whether it is constitutional… What is therefore required is an act of comparing
the ends with the means. In this comparison, we must recognize the
legislature’s room to manoeuvre or the “margin of appreciation” given to it,
which allows it to exercise its discretion in choosing the (proper) purpose and
the means (whose violation of human rights is not excessive) that lie on the
edge of the margin of appreciation. Indeed, we must adopt a flexible approach
that recognizes the difficulties inherent in the legislature’s choice, the
influence of this choice on the public and the legislature’s institutional
advantage’ (Israel Investment
Managers Association v. Minister of Finance [8], at pp. 386-387).
Thus we see that determining the national policy
and formulating it into legislation is the role of the legislature. The
scrutiny of the constitutionality of the legislation, in so far as it violates
the human rights in the Basic Law is the role of the court. It realizes this
role with great caution. It will act ‘with judicial discipline, caution and
restraint’ (per Justice D. Beinisch in Menahem v. Minister of
Transport [11], at p. 263). The judge should treat the law with respect
(see Local Government Centre v. Knesset
[31], at p. 496). He must ensure respect for the Basic Laws, by virtue of which
the law was enacted, and the human dignity which is protected by them. Indeed,
the tension is not between respect for the law and human dignity. Respect for
the law means that the provisions of the Basic Law concerning human dignity and
the possibilities of violating them are equally respected.
G. Does the Citizenship and
Entry into
(1) Is the purpose of the law a proper one?
(a) The purpose of the Citizenship and Entry into
79. What is the purpose of the Citizenship and Entry into Israel
Law? Opinions are divided on this question in the petition before us. Some of
the petitioners and the fourth respondent (the ‘Jewish Majority in
‘Since the armed conflict broke out between Israel and the Palestinians,
which led inter alia to dozens of suicide attacks being carried out in
Israel, a trend can be seen of a growing involvement of Palestinians who were
originally residents of the territories and who have an Israeli identity card
as a result of family reunifications with persons with Israeli citizenship or
residency, by means of an abuse of their status in Israel that allows them free
movement between the areas of the Palestinian Authority and Israel. Therefore,
and in accordance with a decision of the government… it is proposed to restrict
the possibility of giving residents of the territories citizenship under the Citizenship
Law, including by way of family reunification, and the possibility of giving
the aforesaid residents licences to live in Israel under the Entry into Israel
Law or permits to stay in Israel under the security legislation in the
territories’ (draft Citizenship and Entry into Israel Law (Temporary
Provision), 5763-2003 (Draft Laws 31, 2003, at p. 482).
This purpose also arises from the remarks of the Minister of the
Interior, who presented the draft law at the first reading (see the minutes of
the Knesset session on 17 June 2003). This was repeated by the Chairman of the
Knesset Interior and Environmental Affairs Committee, who presented the draft
law at the second and third readings (see the minutes of the Knesset session on
31 July 2003). A similar conclusion emerges from a study of the remarks made by
Knesset members during the debate on the draft law. Admittedly, from time to
time during the legislative process a claim was made that the law was being
used by the state as a cover for advancing a ‘demographic purpose’ of
restricting the increase of the Arab population in
80. We can also see the security purpose of the Citizenship and
Entry into Israel Law from its provisions. Thus, for example, the law is
temporary (a ‘temporary provision’). It does not purport to formulate a new
long-term demographic policy. It was designed for the needs of the present. It
can be seen from the language of the law and the nature of its provisions that
it is based on a security necessity and not on a clear socio-political outlook.
The amendments made to the law when its validity was extended in 2005 also
indicate the security purpose of the law. Thus, for example, power was given to
the Minister of the Interior to approve an application of a spouse from the
territories to receive a permit to stay in Israel, and thereby to avoid a
separation from the Israeli spouse, if the foreign spouse is a male resident of
the territories above the age of 35 or the foreign spouse is a female resident
of the territories above the age of 25. This arrangement derives in its
entirety from security considerations. It is based on a security assessment
that the security risk presented by men over 35 and women over 25 is
significantly lower than the risk presented by residents of the territories who
do not meet the age criterion.
(b) Are the characteristics of the
purpose proper ones?
82. Do the characteristics of the security
purpose that underlies the Citizenship and Entry into Israel Law justify a violation
of the right of the Israeli-Arab spouse to realize family life in
(c) Is the extent of the need for realizing the purpose a proper
one?
83. Does the violation of the right to realize family life in
(2) Proportionality: is there a rational connection between the
purpose of the law and the measures chosen by it?
(a) The blanket prohibition satisfies the required rational
connection
84. The purpose of the Citizenship and Entry into Israel Law is a
security one. The aim is to reduce the security risk presented by a spouse from
the territories who lives permanently in
(b) The rational connection and temporary stays in
85. The petitioners concentrated their main arguments concerning
the question of the rational connection on the provisions of the law that
authorizes the commander in the territories to give a permit to stay
temporarily in
‘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.’ |
According to the petitioners, many thousands of residents in the
territories receive work permits in
86. These arguments do not raise any real question with regard to
the rational connection between the prohibition that the law imposes on the entry
of spouses from the territories and the purpose of the law. The fact that it
possible to realize the purpose of the law by adopting additional measures that
are not adopted does not necessarily indicate that the measure that was adopted
is not rational. The condition of rationality does not demand that all the
possible measures for achieving the purpose are exhausted. Refraining from
adopting certain measures — where failing to adopt them does not affect
the effectiveness of the measures that were adopted — does not make the
measures that were adopted irrational. The requirement of rationality does not
offer a choice merely between exhausting all the possible measures or
refraining from adopting any measures. A rational choice can satisfy itself with
adopting several measures, and not adopting other measures. The
‘It is no requirement… that
all evils of the same genus be eradicated or none at all’ (Railway Express
Agency v.
The margin of appreciation gives the legislature the possibility of
choosing from among various different measures, and the fact that it departs
from one of them does not always oblige it, from a rational viewpoint, to
choose another. The legislature may, therefore, determine that in order to
achieve the security purpose it will adopt the measure of a prohibition of
family reunification, and at the same time determine that in order to achieve
other purposes, such as those connected with the Israeli national economy or
the conditions of life in the territories, it will not prohibit the entry of
workers from the territories. As long as realization of the one purpose does
not affect the realization of another purpose, we see no problem, from the
viewpoint of the requirement of rationality, in adopting this policy.
(3) Proportionality: was the least harmful measure adopted?
(a) The conflicting arguments
87. The proper purpose of the Citizenship and Entry into Israel Law
is to reduce the security risk presented by the spouse from the territories who
has received a permit to live in
(b) The individual check in the scrutiny of the Citizenship and
Entry into
88. Is the individual check, as the petitioners claim, the least
harmful measure to the right of the Israeli spouse? Naturally, if the sole
comparison that us taken into account is between the blanket prohibition and
the individual check, it is clear that the harm caused by the blanket
prohibition to the Israeli spouse is more severe than the harm caused by the
individual check. On the scale of violations of the rights of the Israeli
spouse, the individual check is located on a lower level than the blanket
prohibition. But this comparison between the two levels is not the examination
that is required at this stage of the constitutional scrutiny. The question is
not whether the individual check violates the rights of the Israeli spouse less
than the blanket prohibition. The question is whether it is possible to achieve
the purpose of the law by use of a less harmful measure. If the less harmful
measure achieves the proper purpose to a lesser degree, it is not the measure
that the legislature is obliged to adopt. The requirement of choosing the least
harmful measure applies to the measures that achieve the purpose of the law. So
it follows that at this stage of constitutional scrutiny, the question is not
whether the individual check violates the right of the Israeli spouse less than
the blanket prohibition. The question is whether the individual check achieves
the purpose of the Citizenship and Entry into Israel Law to the same degree as
the blanket prohibition. If the answer is yes — it does achieve the
purpose to the same degree — then the legislature should choose this
measure. But if the individual check does not achieve the purpose of the law,
the legislature is not obliged to choose this measure. It must choose the
measure that realizes this purpose and that violates the right of the Israeli
spouse to a lesser degree.
89. We must return, therefore, to the proper purpose of the
Citizenship and Entry into Israel Law. We have seen that the purpose of the law
is a security one and not a demographic one. What is its security purpose? In
this respect, we have seen that the purpose is to reduce, in so far as
possible, the security risk presented by the foreign spouses coming to live in
Israel. Against the background of this conception of the purpose, do the
blanket prohibition and the individual check achieve the purpose to an equal
degree? In this regard, we should compare the blanket prohibition, as it exists
today, and the most comprehensive individual checks that can be made. But no
matter how effective these can be, they cannot equal the additional security
that the blanket prohibition provides. It follows that in view of the central
value of human life that the law wishes to protect, it is clear that the
blanket prohibition will always be more effective — from the viewpoint of
achieving the goal of reducing the security risk as much as possible —
than the individual check. Our conclusion is, therefore, that in the circumstances
of the case before us, the individual check does not realize the legislative
purpose to the same degree as the blanket prohibition. There is no obligation,
therefore, within the framework of the least harmful measure, to stop at this
level, and the legislature was entitled to choose the blanket prohibition that
it chose.
90. It is of course possible to argue that the goal that we
discussed — to reduce as much as possible the security risk presented by
the spouse — is not the objective of the law, and that this objective is
to reduce the security risk to some extent, and not as much as possible.
According to this line of argument, the permit to stay in Israel given to the
resident of the territories whose age is over 35 (for a man) or over 25 (for a
woman) (s. 3 of the law) indicates that the purpose of the law was not to
reduce the security risk as much as possible, and that the law was satisfied
with a lesser reduction than that. It is also possible to point to the permit
that is given to stay in
(4) Proportionality: was the chosen
measure proportionate (in the narrow sense)?
(a) Is the move from an individual check
to a blanket prohibition proportionate?
91. We have reached the decisive stage in
the constitutional scrutiny of the petitions before us. The question is whether
the blanket prohibition is proportionate (in the narrow sense)? Is the
correlation between the benefit derived from achieving the proper purpose of
the law (to reduce as much as possible the risk from the foreign spouses in
92. My answer is that the additional
security that the blanket prohibition achieves is not proportionate to the
additional damage caused to the family life and equality of the Israeli
spouses. Admittedly, the blanket prohibition does provide additional security;
but it is achieved at too great a price. Admittedly, the chance of increasing
security by means of a blanket prohibition is not ‘slight and theoretical.’
Notwithstanding, in comparison to the severe violation of human dignity, it is
disproportionate. This was well expressed by Rubinstein and
‘The violations and strictures that are compounded in the new law result
in a severe violation, and maybe even a mortal violation, of rights that are
close to the “nucleus” of human dignity, without a proper justification based
on the conduct and concrete danger presented by the persons injured by the law.
In such circumstances, it is difficult to see how any proportionate
relationship exists between the serious violation inherent in the law and the
hypothetical purpose that the law is intended to achieve. In these
circumstances, when the ability of the law to achieve its purpose is uncertain,
whereas the violation is certain and serious, the gap between the benefit and
the violation in the new law is disproportionate. If there is one exceptional case
in which the test of proportionality in the narrow sense is clearly
required — this would appear to be that case’ (G. Davidov, Y. Yovel, I.
Saban, A. Reichman, ‘State or Family? The Citizenship and Entry into Israel Law
(Temporary Provision), 5763-
Admittedly, the amendments made to the Citizenship and Entry into Israel
Law prior to the renewal of its validity somewhat reduced the scope of the
disproportionality. Nonetheless, these amendments — as well as the
temporary nature of the law — do not change the lack of proportionality to
a significant degree. Thus, for example, we were told that s. 3 of the law,
with regard to permits for a resident of the territories older than 35 (for a
man) or 25 (for a woman) in order to prevent their separation from the Israeli
spouses, reduces the number of injured spouses by approximately 20%. The
significance of this is that the vast majority of the Israeli spouses who
married spouses from the territories continue to be injured even after the
amendments that were recently made.
(b) Return to first principles
93. Examination of the test of proportionality (in the narrow
sense) returns us to first principles that are the foundation of our
constitutional democracy and the human rights that are enjoyed by Israelis.
These principles are that the end does not justify the means; that security is
not above all else; that the proper purpose of increasing security does not
justify serious harm to the lives of many thousands of Israeli citizens. Our
democracy is characterized by the fact that it imposes limits on the ability to
violate human rights; that it is based on the recognition that surrounding the
individual there is a wall protecting his rights, which cannot be breached even
by the majority. This is how the court has acted in many different cases. Thus,
for example, adopting physical measures (‘torture’) would without doubt
increase security. But we held that our democracy was not prepared to adopt
them, even at the price of a certain harm to security (see HCJ 5100/94 Public
Committee Against Torture v. Government of Israel [102]). Similarly,
determining the route of the separation fence in the place decided by the
military commander in Beit
Sourik Village Council v. Government of Israel [2] would have increased security. But we held that
the additional security was not commensurate with the serious harm to the lives
of the Palestinians. Removing the family members of suicide bombers from their
place of residence and moving them to other places (‘assigned residence’) would
increase security in the territories, but it is inconsistent with the character
of Israel as a ‘democratic freedom-seeking and liberty-seeking state’ (Ajuri v. IDF Commander in West Bank [1], at
p. 372 {105}). We must adopt this path also in the case before us. The
additional security achieved by abandoning the individual check and changing
over to a blanket prohibition involves such a serious violation of the family
life and equality of many thousands of Israeli citizens that it is a
disproportionate change. Democracy does not act in this way. Democracy does not
impose a blanket prohibition and thereby separate its citizens from their
spouses, not does it prevent them from having a family life; democracy does not
impose a blanket prohibition and thereby give its citizens the option of living
in it without their spouse or leaving the state in order to live a proper
family life; democracy does not impose a blanket prohibition and thereby
separate parents from their children; democracy does not impose a blanket
prohibition and thereby discriminate between its citizens with regard to the
realization of their family life. Indeed, democracy concedes a certain amount
of additional security in order to achieve an incomparably larger addition to
family life and equality. This is how democracy acts in times of peace and
calm. This is how democracy acts in times of war and terror. It is precisely in
these difficult times that the power of democracy is revealed (W. J. Brennan,
‘The Quest to Develop a Jurisprudence in Times of security Crises,’ 18 Israel
Yearbook of Human Rights 11 (1988)). Precisely in the difficult situations
in which
(c) Increasing the effectiveness of the individual check
94. Naturally, everything should be done to increase the
effectiveness of the individual checks. Therefore we recognize the
constitutionality of the provision of section 3D of the Citizenship and Entry
into Israel Law. According to this provision, no permit will be given if it is
determined in accordance with a security opinion that ‘the resident of the area
or his family member are likely to constitute a security risk to the State of
Israel.’ Moreover, the security checks must be treated with great seriousness.
Therefore if it is not possible to carry them out because of the security
position in one part of the territories or another, the individual check will
be postponed until the check becomes possible. If it is necessary to allow the
identification of the foreign spouses in
‘Society is judged, inter alia, according to the relative weight
it affords to personal liberty. That weight should be expressed not just in
lofty declarations nor just in legal literature, but also in the budget ledger.
Protecting human rights generally has a cost. Society should be prepared to pay
a reasonable price for protecting human rights’ (Tzemah v. Minister of Defence [9], at p. 281 {683}, and see the references
cited there).
This is the case generally, and also in times of
war and emergency. Indeed, ‘a society that wants both security and liberty must
pay the price’ (Marab v. IDF Commander in Judaea and Samaria [3], at p. 384 {217}).
(d) The exception
‘The respondent’s aforesaid policy and mode of operation includes the
weighing of each and every case in accordance with its circumstances, and each
case will also be reconsidered if there are unusual humanitarian circumstances’
(HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [103], at p.
216).
(e) Turning to questions concerning the consequences of the unconstitutionality
96. Our conclusion is, therefore, that the provisions of the
Citizenship and Entry into Israel Law violate the right of human dignity set
out in the Basic Law: Human Dignity and
H. Stages of the constitutional scrutiny: (3) The relief or remedy
97. The final stage in the constitutional scrutiny is the stage of
the relief or remedy. We have reached the conclusion that a constitutional
right enshrined in a Basic Law has been violated. We have determined that this
violation does not satisfy the conditions of the limitations clause. Now we
must determine the consequences of the unconstitutionality. The determination
that the law unlawfully violates a constitutional right does not in itself mean
that the law should be declared void, or that it should be declared void
immediately. The court has discretion with regard to the proper relief in this
situation (see Israel Investment
Managers Association v. Minister of Finance [8], at pp. 413-414; the remarks of Vice-President E.
Mazza in HCJ 9098/01 Ganis v. Ministry of Building and Housing [104]).
This discretion extends both to the actual declaration that the law is void and
to the date on which the voidance comes into effect. The court is not liable to
order the voidance of the law in its entirety. It may order the law to be
split, so that those provisions of the law that suffer from a constitutional
defect are declared void, while the other provisions remain valid. This should
be done when the remaining provisions have an independent reason, and the split
does not lead to undermining of the purpose of the law (see Barak, Constitutional
Interpretation, at pp. 736-737). The court is also entitled to order the
date on which the voidance comes into effect to be deferred. This suspension of
the declaration of voidance is essential where voiding the law on an immediate
basis may result in serious harm to the public interest, and also in order to
allow the legislature a suitable period of time to determine an alternative
arrangement which will satisfies the demands of constitutionality (see Supreme Monitoring Committee for Arab Affairs in Israel v. Prime
Minister [41], at para. 27; Israel Investment Managers Association v. Minister of
Finance [8], at p. 416; Tzemah
v. Minister of Defence [9], at p. 284 {686-687}). The proper relief in
circumstances of this kind is therefore to suspend the declaration of voidance
(in this regard, see Y. Mersel, ‘Suspending the Declaration of Voidance,’
9 Mishpat uMimshal 39 (2006)).
99. Should the legislator be given time to examine the position
that results from the voidance of the law, and to consider making an
alternative arrangement, by way of a deferral of the date on which it
commences? The answer to this question is yes. Determining an alternative
arrangement in the sensitive matter before us requires a thorough reassessment
of a range of factors with wide-ranging implications. A fitting period of time
should be allowed for determining an alternative arrangement. Had the
Citizenship and Entry into Israel Law not provided a date on which it ceases to
be valid, I would say that the voidance of the law should be suspended for a
period of six months. Since the validity of the law expires on 16 July 2006,
the declaration of voidance should be suspended until that date. If the
government and the Knesset require a limited amount of time, and it seeks, for
this purpose, to re-enact the Citizenship and Entry into Israel Law without any
change, then I determine that our decision is suspended for six months from the
date on which the law comes into effect.
Comments on the opinion of the vice-president,
100. I have, of course, studied the opinion of my colleague, the
vice-president, Justice M. Cheshin. In many respects we are in agreement.
Indeed, I accept that every state, including the State of Israel, may determine
for itself an immigration policy. Within this framework, it is entitled to
restrict the entry of foreigners (i.e., persons who are not citizens or
immigrants under the Law of Return) into its territory. The state is not
obliged to allow foreigners to enter it, to settle in it and to become citizens
of it. The key to entering the state is held by the state. Foreigners have no
right to open the door. This is the case with regard to foreigners who have no
connection with Israeli citizens. This is the case with regard to foreigners
who are married to Israeli citizens and to their children. All of them need to
act in accordance with the Citizenship Law, 5712-1952, and in accordance with
the Entry into Israel Law, 5712-1952. According to these laws, the foreign
spouse has no right to enter
101. My opinion is limited to the viewpoint of the Israeli spouse,
who wishes to realize his family life with his foreign spouse or with their
joint child in
102. What, therefore, is the difference of opinion in this case
between my colleague’s position and my position? At the basis of the difference
of opinion lies the question whether the Israeli spouse has a super-legislative
constitutional right to realize his family life in
103. My colleague’s position — which rules out the application
of the limitations clause in this case — is based on his interpretation of
the constitutional right to human dignity. The premise of my colleague and
myself in this regard is the same. We both agree that human dignity gives rise
to ‘the right of an Israeli citizen to live with the members of his family in
Israel, and the duty of the state to the citizen to allow him to realize his
right to live with the members of his family in Israel’ (para. 47 of my
colleague’s opinion). Therefore, if both of the spouses are Israeli, their
right to realize family life in
105. My colleague holds that taking into account the public interest in
determining immigration policy excludes from the constitutional right to family
life the right of the Israeli spouse to realize his family life with the foreign
spouse in
106. What is more, this approach amounts to ‘an undermining of the
constitutional balance’ (CrimA 4424/98 Silgado v. State of Israel [107],
at p. 550); it involves a dilution of the constitutional protection of human
rights in
107. It should be noted that I do not hold that basic rights should
be extended in every direction. I hold that they should be given a purposive
interpretation. This interpretation is neither a restrictive nor an expansive
one. It is an interpretation that reflects the way in which Israeli society
understands the nature of human rights, according to their constitutional
structure and according to the constitutional principles provided in the Basic
Law, all of which while taking into account what is valuable and essential and rejecting
what is temporary and fleeting (see Efrat v. Director of Population
Registry, Ministry of Interior [20], at p. 780; Man, Nature and Law
Israel Environmental Protection Society v. Prime Minister of Israel [12],
at p. 518; Commitment to Peace and Social Justice Society v. Minister of
Finance [49]). Moreover, I do not believe that giving a purposive
interpretation to basic rights, while taking into account the public interest
within the framework of the limitations clause, constitutes a violation of the
principle of the separation of powers. There is nothing in the principle of the
separation of powers to the effect that the court should give a restrictive
interpretation to human rights, in order to limit the scope of judicial review
of the constitutionality of a law. There is nothing in the principle of the
separation of powers that leads to the conclusion that judicial review of the
constitutionality of the law violates the separation of powers. On the contrary,
this review protects the limits of the power of the various executive organs
and protects human rights. This is also the function of the separation of
powers. Finally, I do not think that my colleague’s approach leads to ‘a more
comprehensive and careful scrutiny of legislation’ (para. 42 of his opinion). On
the contrary, the more the public interest is taken into account within the
framework of determining the scope of the right, the smaller will be the role
of the limitations clause, and the smaller will be the possibility of a
comprehensive and careful scrutiny of legislation. Instead of focusing on the
violating law, the analysis will focus on the violated right. Instead of a
requirement that the legislature should enact laws that satisfy the limitations
clause, there will be a requirement that the court should reduce the scope of human
rights.
108. This position of mine with regard to the scope of a
constitutional right (such as human dignity) and the restrictions on it (in the
conditions of the limitations clause) applies both in times of peace and calm
and in times of war and terror. The armed conflict between
109. Assuming that the Citizenship and Entry into Israel Law
violates the constitutional right, is this violation proportionate? My
colleague and I agree that the first two conditions of proportionality —
the rational connection test and the least harmful measure test — are
satisfied in our case. The difference of opinion between us concerns the third
subtest (the test of proportionality in the narrow sense, or the ‘value test,’
as my colleague calls it). Even with regard to this subtest, we both agree that
the blanket prohibition provided in the Citizenship and Entry into Israel Law
provides more security to the citizens and residents of the State than the
individual check. The framework of the doubts is therefore this: is there a
proper proportion between the additional security obtained by changing over
from the individual check (which was used in the past) to the blanket prohibition
(which was introduced by the Citizenship and Entry into Israel Law) and the
additional violation of the human dignity of the Israeli spouses caused by this
change? My colleague’s reply is that ‘the additional security — security
for life — that the blanket prohibition gives us as compared with the
individual check that is limited in its ability [is] proper’ (para. 122). By
contrast, I am of the opinion that the additional security provided by the
blanket prohibition is not proportionate in comparison with the additional
damage caused to the family life and equality of the Israeli spouses.
110. My colleague puts on one pan of the scales life itself. ‘We
are concerned with life. Life and death. It is the right of the residents of
the state to live. To live in security. This right of the individual to life
and security is of great strength. It has chief place in the kingdom of rights
of the individual, and it is clear that its great weight is capable of
determining decisively the balance between damage and benefit’ (para. 120 of
his opinion). Against this he places on the other pan the right to have family
life (ibid.). Indeed, I accept that if we weigh life against quality of
life — life will prevail. But is this the proper comparison? Had we posed
the question in this way — life against quality of life — we would
certainly have held that we are permitted, and perhaps even obliged, to torture
a terrorist who constitutes a ‘ticking bomb’ in order to prevent harm to life;
that we are permitted, and perhaps even obliged, to reassign the place of
residence of an innocent family member of a terrorist in order to persuade him
to refrain from terror and to prevent an injury to life; that the security
fence should be placed where the military commander wished to place it, since
thereby the lives of the citizens of the state are protected, and any harm to
the local population, whatever its scope may be as long as it does not harm
life itself, cannot be compared to the harm to the lives of the citizens of the
state. But this is not how we decided either with regard to torture, or with
regard to assigned residence or with regard to the harm caused by the
separation fence to the fabric of the lives of the local residents (see,
respectively, Public Committee Against Torture v. Government of Israel
[102]; Ajuri v. IDF Commander in West Bank [1]; Beit Sourik Village Council v. Government of
Israel [2]). In those cases
and in many others we always put human life at the top of our concerns. We were
sensitive to terror and its consequences in our decisions. Indeed, human life
is dear to us all; and our sensitivity to terror attacks is as strong as in the
past. We made the decisions that we made because we do not weigh life against
the quality of life. In doing so, life always takes precedence and the result
is to refrain from any act that endangers human life. Society cannot operate in
this way, either in times of peace (such as with regard to road accident
victims) or in times of war (such as with regard to victims of enemy attacks).
The proper way of posing the question is by means of the level of the risks and
the likelihood that they will occur, and their effect on the life of society as
a whole. The questions that should be asked in our case are questions of
probability. The question is what is the probability that human life will be
harmed if we continue the individual check as compared with the likelihood that
human life will be harmed if we change over to a blanket prohibition, and
whether this additional likelihood is comparable to the certainty of the
increase caused thereby to the violation of the rights of spouses who are
citizens of the state.
111. Now
that we have begun discussing the issue of risk, we must declare openly that
democracy and human rights cannot be maintained without taking risks. Professor
Sajo rightly said that ‘liberty is about higher risk-taking’ (A. Sajo (ed)., Militant
Democracy (2004), at p. 217). Indeed, every democracy is required to
balance the need to preserve and protect the life and safety of citizens
against the need to preserve and protect human rights. This ‘balance’ simply
means that in order to protect human rights we are required to take risks that
may lead to innocent people being hurt. A society that wishes to protect its
democratic values and that wishes to have a democratic system of government
even in times of terror and war cannot prefer the right to life in every case
where it conflicts with the preservation of human rights. A democratic society
is required to carry out the complex work of balancing between the conflicting
values. This balance, by its very nature, includes elements of risk and
elements of probability (see, in this regard, C.R. Sunstein, Laws of Fear:
Beyond the Precautionary Principle (2005), at pp. 204-223; J. Waldron,
‘Security and Liberty: The Image of Balance,’ The Journal of Political
Philosophy, vol. 11 (2003), at pp. 191-210; M. Freeman, ‘Order, Rights and
Threats: Terrorism and Global Justice,’ in Human Rights in the War on Terror
(R. Wilson, ed., 2005), at pp. 37-56). Naturally, we must not take any
unreasonable risks. Democracy should not commit suicide in order to protect the
human rights of its citizens. Democracy should protect itself and fight for its
existence and its values. But this protection and this war should be carried
out in a manner that does not deprive us of our democratic nature.
113. Naturally,
everything should be done in order to increase the effectiveness of the
individual check. In this regard, the Citizenship and Entry into Israel Law
contains provisions with regard to the individual check of those persons to
whom the blanket prohibition does not apply (s. 3D of the law). It is possible,
of course, to exercise these provisions with regard to everyone who undergoes
an individual check. It is also possible to propose additional measures that
can be taken. Thus, for example, it is possible to give weight to the fact that
the Israeli spouse applied originally to the respondents and asked that an
individual check should be made. Of course, if de facto there is no real
possibility of receiving relevant information from an individual check of a
foreign spouse because of the security position, there is no alternative to
deferring the decision concerning him until the individual check becomes
possible. Where fighting is taking place checks are not carried out; where
there is no possibility, because of the security conditions, of making a check,
it should be deferred until the conditions change. All of these will be
determined in accordance with the conditions of the time and place; they will
be governed by a blanket prohibition. Therefore, with regard to those spouses
for whom the individual check is possible, it should be made. In such
situations the disproportionality of the blanket prohibition stands out. Why
should the Israeli spouse not be allowed to have a family life in
Conclusion
114. The decision in
these petitions is difficult. ‘We
are members of Israeli society. Although we sometimes find ourselves in an
ivory tower, that tower is in the heart of
‘We are aware that this decision does not make it
easier to deal with that reality. This is the destiny of a democracy — it
does not see all means as acceptable, and the ways of her enemies are not
always open to it. A democracy must sometimes fight with one hand tied behind
its back. Even so, a democracy has the upper hand. The rule of law and the
liberty of the individual constitute important components in its understanding
of security. At the end of the day, they strengthen her spirit and this
strength allows it to overcome its difficulties’ (ibid. [102], at p. 845
{605}).
Were my
opinion accepted, the result would be that the Citizenship and Entry into
Israel Law is void. The declaration of the law’s voidance is suspended until 16
July 2006.
Vice-President
Emeritus M. Cheshin
When I
received the opinion of my colleague, President Barak, I put my hand in his and
allowed him to lead me along his path. So we followed paths that were paved
with basic principles, we ascended mountains with summits of basic rights, we transversed
doctrines, we descended into specific rules of law, and on our way we were
continually accompanied by justice, truth, integrity and common sense. Towards
the end of the journey, we boarded a ship and we reached an island in the
middle of the ocean. We disembarked, and on the pier a dignified person greeted
us.
‘Welcome,’
the man welcomed us with a kind expression.
‘Greetings,’
we replied, and added: ‘We are from
‘My
name is Thomas, Thomas More, also known as Thomas Morus.’
‘Very
pleased to meet you. And what is this place?’ we asked.
‘You
are in the state of Utopia,’ the man replied, and added: ‘The state of Utopia
was established according to a plan that I outlined in a book that I wrote,
which has the same name as the state, Utopia. By the way,’ the man added, ‘the
word Utopia is from Greek, and it means “nowhere”.’
‘Interesting,
very interesting,’ we said, ‘And as persons of the law, let us also ask you
this: what is the legal system in Utopia? Is it similar to the legal system in
Mr More
immediately answered: ‘I am sorry, but there are vast differences between the
two legal systems, and it will be a long time before
Then I
awoke, and it was a dream.
* * *
The
Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (‘the
law’ or ‘the Citizenship and Entry into Israel Law’) tells us that, subject to
various exceptions — which are extensive — Israeli citizenship shall not
be given to a resident of Judaea, Samaria or the Gaza Strip (the territories),
nor shall a licence to live in Israel be given to such a person. The law does
not apply to the residents of Israeli towns in the territories. On this
occasion, we are concerned with the question whether the law satisfies —
or does not satisfy — the constitutionality tests set out in the Basic
Law: Human Dignity and
2. I have read carefully the opinion of my
colleague, President Barak. The opinion is broad in scope and excellently
presented, from beginning to end. I read it, but I was unable to agree. My path
in the law is, in its essence, different from my colleague’s path. My
thinking is different from my colleague’s thinking.
First
of all, I believe that the State of Israel — like
any country in the world — is entitled to restrict by law the immigration
of foreigners into
Secondly, in times of war the state — any state — may refuse entry to citizens of an enemy of the state, even if they are
married to citizens of the state. The State of Israel, as we all know, is at
war — or at least a quasi-war — which is cruel and hard, against the
Palestinian Authority and the terror organizations that act from within it. The
residents of the Palestinian territories are de facto enemy nationals,
and as such they are a group that presents a risk to the citizens and residents
of
Third, even had I agreed with my colleague’s approach with regard to the
constitutional status of the right to family life with persons who are foreign
to the state, I still would not agree with his conclusion that the test of
proportionality (‘in its narrow sense’) undermines the law and dooms it to
destruction. Unlike my colleague, I am of the opinion that the advantage and
benefit that the Citizenship and Entry into Israel Law contributes to the
security and the lives of Israeli residents overrides the violation that the
law inflicts on some of the citizens of Israel who have married — or who
intend to marry — residents of the territories and who wish to live with
their spouse in Israel. Indeed, when we place on one side of the scales the
right of the citizens of
3. The Citizenship and Entry into Israel Law
is a law that was enacted against a difficult security background in which the
State of Israel finds itself. Against this difficult background, since we know
from past experience that some of the residents of the territories —
residents who by virtue of their marriage were given Israeli citizenship, with
permits to move freely within Israel and between the areas of the Palestinian
Authority and Israel — aided the terror attacks of suicide bombers that
plague Israel, our opinion is that the petitioners are not entitled to the
voidance of the law. We should always remember:
4. When it became clear that some of the
residents of the territories who live in Israel were involved in the activity
of suicide bombers who came from the Palestinian Authority, and when it became
clear to the security establishment that they were unable to distinguish with a
reasonable level of accuracy between the residents of the territories who are
likely to aid terror and the residents of the territories who are not likely to
aid terror, even if only for the reason that the terror organizations seek the
help of those residents after they receive the coveted Israeli
documentation, we are of the opinion that the arrangement provided by the
Knesset in the Citizenship and Entry into Israel Law — a law whose
validity is limited in time and whose application is qualified by
reservations — according to which Palestinian residents from the
territories, in the age groups stated in the law, will not be given citizenship
or a licence to live in Israel, is a constitutional and proportionate law.
5. We all know that the provisions of the law
harm some of the citizens of
Concerning
the armed struggle that the Palestinians are waging against Israel and Israelis
6. In September
7. Let us briefly mention the facts that can
be called ‘plain facts,’ but in truth they are stained and discoloured with
much blood. Since September 2000 the Palestinian have carried out 26,448 terror
attacks, in which they have murdered 1,080 Israeli citizens and wounded 7,416
citizens. The number of terror attacks includes all the terror attacks that
were carried out in
8. To protect the residents of the state,
‘
In
another case, the court considered the attitude prevailing in Palestinian
society and the encouragement given by some of the Palestinian population to
the war of the terror organizations against the State of Israel (CrimA 2131/03 Saadi
v. State of Israel (unreported), per
‘… It
is sufficient to point to the large number of attacks that have been
perpetrated and the many others that were prevented, and it is especially
appropriate to point to the exultations and joy following the killing of Jews,
and the “days of feasting” announced by the families of those who are declared
to be “martyrs” after their families are told of the death of their sons. In my
opinion, these are capable of clarifying to what extent the population of the
territories occupied by Israel encourage the suicide bombers, and we can
therefore understand the growing number of persons who are prepared to act as
“live bombs.” In this situation, the need to search for deterrents in order to
reduce the cycle of killing is an existential need that knows no parallel…’
Someone
who has not seen a mother praising her son who killed himself as a ‘live bomb’
in order to murder Israelis — and who among us has not seen these scenes
of horror on the television screen — has never seen anything surreal in
his life. Such are the enemies of
9. We received clear and explicit evidence of
the prevailing attitude of the Palestinian public in the elections that took
place in the Palestinian Authority on 25 January
‘
This is
the beginning of the charter and this is the evil and cruel spirit that
permeates it.
Further
on, the Hamas charter states that ‘
‘… The
freeing [of
…
When the
enemies steal a part of Moslem lands, the Jihad becomes a personal duty of
every Moslem. With regard to dealing with the theft of Palestine by the
Jews, there is no alternative to raising the banner of Jihad, something
which requires the spreading of Moslem consciousness among the masses on a
local, Arab and Moslem level, and there is no alternative to spreading the
spirit of Jihad among the [Islamic] nation, fighting the enemies and joining
the warriors of the Jihad [the Mujadeen].’
It
should be stated that further on the charter levels against Israel and the Jews
serious and fantastic anti-Semitic accusations, including the accusation that
‘they were behind the French Revolution, the Communist Revolution and most of
the revolutions of which we have heard and of which we hear in various places’;
it is the Jews who caused the First World War which was intended to destroy the
Ottoman Caliphate; the Jews have set up secret organizations throughout the
world and they control them; the Jews set up the United Nations — which
replaced the League of Nations — in order that they might control the
world; the Jews use money and resources in order to control the world and to
ensure the foundation and existence of the State of Israel (para. 22 of the
charter). Indeed, the Protocols of the Elders of Zion have worthy progeny.
10. These,
then, are the beliefs of the Hamas organization, these are its purposes, and to
our sorrow Hamas has acted and continue to act in order to realize its beliefs
and purposes. Since it was founded, Hamas has fought a cruel and murderous war
of terror against
11. And
yet, despite its extreme positions, Hamas has benefited and the Palestinian
public elected it to lead them. The Palestinian public elected the Hamas
organization to power, and as a result of this election Hamas has formed a
government in the Palestinian Authority. Hamas members hold office as the prime
minister and as ministers in the government, they control the Authority’s
budget and they decide its policy. Members of the Hamas organization are the
Authority’s spokesmen, they control the media and they implement their policy
vis-à-vis the world and the State of Israel. The Hamas organization and
the Palestinian Authority — at least the organs of government in the
Palestinian Authority — have become one.
12. An
armed conflict has been taking place between
The
security background to the enactment of the Citizenship and Entry into Israel
Law
13. The
State of Israel and the security forces have done all they can to defeat the
wave of terror that has overwhelmed the state, and they have adopted
wide-ranging measures, some of which have led, regrettably and as an inevitable
consequence, to harm to the Palestinian population. Thus, inter alia,
military operations have been conducted, some on a large scale, in the
territories under the control of the Palestinian Authority. These operations
involved infantry, heavy weapons — tanks and armoured personnel
carriers — helicopter gunships and airplanes. The army entered Palestinian
towns and villages, engaged in fierce fighting there and arrested many
suspects. The army imposed curfews and sieges in various areas and several cities
in Judaea and
14. Almost
all of the military activities of the State of Israel were attacked in the
court, on the grounds that they harm citizens who are not involved in terror,
but the opinion of the court was consistent and clear: it is the right of the
State to protect itself and its residents against the terror onslaught, and
this is true even at the price of the accidental and unintentional harm to a
civilian population that does not wish to harm the State of Israel. The right
to life and existence — the life and existence of the residents of
15. Notwithstanding all the activities and
efforts of the state of
The law and the security reasons underlying it
16. The residents of the territories who have
documents that permit them to stay in
17. Against
the background of this difficult security reality, the government of
18. The
government’s decision and the policy that the decision was intended to put into
effect were enshrined in the Citizenship and Entry into Israel Law (Temporary
Provision), 5763-2003. This is the law whose constitutionality (after its
amendment) is the subject of the case before us. The law restricted, subject to
certain exceptions, the right of residents of the territories to receive
Israeli documentation that will permit them to stay in
‘Restriction on citizenship
and residency in Israel |
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.’ |
19. As
we have explained above, the reasons for this law are security ones, and we are
also told this in the explanatory notes to the draft Citizenship and Entry into
Israel Law (Temporary Provision), 5763-2003 (Hatzaot Hok (Draft Laws),
5763, at p. 482):
‘Since the armed conflict broke out between Israel and the Palestinians,
which led inter alia to dozens of suicide attacks being carried out in
Israel, a trend can be seen of an increasing involvement in this conflict on
the part of Palestinians who were originally residents of the territories who
carry an Israeli identity card as a result of family reunifications with
persons with Israeli citizenship or residency, by means of an abuse of their
status in Israel that allows them freedom of movement between the areas of the
Palestinian Authority and Israel.
Therefore, and in accordance with decision no. 1813 of the government…
it is proposed to restrict the possibility of giving residents of the
territories citizenship under the Citizenship Law, including by way of family
reunifications, and the possibility of giving the aforesaid residents licences
to live in Israel under the Entry into Israel Law or permits to stay in Israel
under the security legislation in the territories.’
At the
same time, on the basis of the assumption that the security reasons that led to
the enactment of the law may change as time passes, it was decided that the law
would be enacted in the format of a ‘temporary provision’ for a year, and that
at the end of that year, after the ramifications of the temporary provision and
the security position were examined, the government would be entitled, with the
approval of the Knesset, to extend the validity of the law for an additional
period that would not exceed an additional year, and so on. See Hatzaot Hok
(Draft Laws), 5763, at p. 483. According to the wording of s. 5 of the law
(as it was at the time of its enactment):
‘Validity |
5. This law shall remain valid until a year has
passed from the date of its publication, but the government may, with the
approval of the Knesset, extend its validity in an order, from time to time,
for a period that shall not exceed one year each time.’ |
Extending
the validity of the law and reducing its personal application
20. The
law was enacted on 6 August 2003, and according to s. 5 it was valid until 5
August 2004. But the government exercised its power in s. 5 of the law, and
with the approval of the Knesset it extended the validity of the law three
times, for three short periods: once until 5 February
21. The
government addressed the security considerations, the danger to public security
and the violation of the rights of citizens, and after it weighed the
conflicting interests against one another, it decided to recommend to the
Knesset that it extend the validity of the law, and at the same time amend it
in two respects: one, by broadening the group that might be entitled to
licences to live in Israel, and two, by giving the Minister of the
Interior discretion to give a permit to stay in Israel to groups that according
to the security forces posed a (relatively) smaller potential security risk.
This broadening of the exceptions to the law, so the government thought, would
give a proper expression to the considerations of proportionality provided in
statute and in case law, and it would therefore reduce the violation caused by
the law to Israelis citizens without significantly prejudicing the security
purpose. In the government’s opinion, the amendment of the law will lead to a
reduction of approximately a third of the number of cases to which the law
originally applied. We can see the reasons that formed a basis for the
amendment and the nature of the amendment from the explanatory notes to the
Citizenship and Entry into
‘The
professional position of the security establishment is that there has been no
change in the security reality that was the basis for the enactment of the
temporary provision, in so far as concerns the intention of the terror
organizations to carry out major attacks, as much as possible, inside the State
of Israel, and in so far as concerns the potential for exploiting the aforesaid
population in carrying out these attacks, and even now attempts to carry out
such attacks are continuing all the time.
It was
also found that as the building of the separation fence progressed, members of
the Palestinian population that hold an Israeli identity card became a higher
priority for the terror organizations as aforesaid.
… The
professional assessment of the security establishment is that the temporary
provision is an effective tool for reducing the free passage of residents of
the territories between the areas controlled by the Authority and
It is therefore
proposed that the validity of the temporary provision should be extended for an
additional period.
Notwithstanding,
in accordance with decision no. 2265 of the government… and in view of the
remarks of the High Court of Justice in petitions that were filed with regard
to the temporary provision [the petitions that are before us], it is proposed
that alongside the extension of its validity, the temporary provision should be
amended so that the exceptions to the application of the restrictions therein
should be broadened. This broadening of the exceptions should be made with
regard to population groups who, according to the assessment of the security
authorities, are of a reduced security risk potential, so that the purpose of
the temporary measure is achieved, on the one hand, and we ensure that this
purpose is achieved in a more proportionate manner, on the other.’
22. The
Knesset debated the draft law and finally the draft was formulated into an
amendment of the law that was published in Reshumot on 1 August 2005. We
will not expand upon all the amendments that were made to the law, but we will
recall once again that notwithstanding the general prohibition provided in s. 2
of the law, the Minister of the Interior was authorized, at his discretion and
subject to the fulfilment of certain conditions, to give approval for residents
of the territories to live in Israel. Thus, for example, it was provided, inter
alia, in s. 3 of the law that notwithstanding the prohibition provided in
s. 2 of the law — the prohibition against granting a resident of the
territories citizenship or a licence to live in Israel — the Minister of
the Interior may, at his discretion, approve an application of a resident of
the territories to be given a permit to stay in Israel, if the age of the
applicant is over 35 for a man or over 25 for a woman, provided that it is done
in order to prevent a separation of spouses who are legally in Israel. This
more lenient approach was adopted after the security establishment found that
the expected risks from these age groups were (relatively) low. It was also
determined (in s. 3A) that in order to prevent the separation of a minor from his
custodial parent who is lawfully in Israel, the prohibition in the law shall
not apply to a minor of up to 14 years of age, and that with the approval of
the Minister of the Interior and the military commander, the stay in Israel of
a minor who is a resident of the territories and who is up to 14 years of age
will be allowed, here too in order to prevent his separation from his custodial
parent. It should be emphasized that the provisions of section 3A of the law
only concern minors who are residents of the territories, were not born in
‘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. |
The law
therefore restricted itself to the residents of the territories aged between 14
and 35 for men and between 14 and 25 for women. The meaning of this is —
so the explanatory notes to the draft law state (ibid., at p.
625) — that ‘adding the proposed qualifications… can restore approximately
28.5% of all the applications for family reunifications to the list of those
applications that can be processed…’. The law also restricted (in s. 3A) the
harm to the children of Israeli citizens and residents, by making it possible
for minors who are residents of the territories to be reunited with the
custodial parent who lives in
The
Citizenship and Entry into
23. This,
then, is the law that the Knesset enacted, and its purpose is to restrict the
ability of Palestinians who are residents of the territories to come to live
inside
24. Everyone
will agree that the purpose of the law is a security purpose, a purpose of
protecting the lives and security of the residents of
25. The
prohibition in the law is a prohibition that is limited in time and by several
qualifications, and its purpose is to provide a solution to specific security
risks that were revealed within the framework of the armed struggle that the
Palestinians are conducting against
A
synopsis of the arguments of the petitioners and our brief response
26. The
following is a synopsis of the petitioners’ arguments: the Citizenship and
Entry into Israel Law violates the right to marriage and family life of Israeli
citizens, men and women, who have married residents of the territories, since
it prevents them from having a proper family life in
27. We
do not accept the petitioners’ claims, with regard to the content and scope of
the violated right, the purpose of the law and the proportionality of the violation.
Our brief and simple response is that as long as an armed conflict — a
state of quasi-war — continues between Israel and the Palestinians, as
long as Palestinian terror continues to strike Israel and murder Israelis, the
state does not have any legal duty (to its citizens) to allow residents of the
territories who married citizens of the state to enter and stay in Israel. The
residents of the territories are enemy nationals. Their loyalty is to the
Palestinian side. There are many ties that bind them to the Palestinian
Authority. And in a time of war, they are presumed to be a risk group to
Immigration
into
28. Let
us first consider the question of the right to marriage and to have a family
life in
29. The
law 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
We should
note and emphasize: the recognition that it is right and proper to give protection
to the family unit is subject to ‘qualifications of national security, public
safety and public welfare.’ These qualifications are required by the very
nature of the subject under discussion, but since they were stated, we saw fit
to mention them. All of this is relevant to the claim concerning the duty of
the state not to prevent the individual from establishing and maintaining in
With
regard to the right — or absence of a right — of a foreign spouse to
enter and stay in Israel, see also HCJ 754/83 Rankin v. Minister of Interior
[112], at p. 116; HCJ 4156/01 Dimitrov v. Minister of Interior [113], at
p. 293; HCJ 2527/03 Assid v. Minister of Interior [114], at p. 143; cf.
also cases concerning children and parents: HCJ 758/88 Kendall v. Minister
of Interior [115]; HCJ 1689/94 Harari v. Minister of Interior [116]; HCJ
9778/04 Alwan v. State of Israel [117]; Dimitrov v. Minister of Interior [113], at p. 293.
30. The
decision of the legislature not to give a right of entry and residence in
‘A foreigner who marries an Israeli citizen does
not acquire — by virtue of his marriage — a right to become a citizen, and the
Minister of the Interior has the power to grant or not to grant the application
for citizenship submitted to him by that foreign spouse.’
See also Rankin v. Minister of Interior [112], at p. 116; Dimitrov v. Minister of
Interior [113], at pp. 292-293.
31. Marriage to an
Israeli citizen does not, therefore, automatically grant a right to the foreign
spouse to be an Israeli citizen. The Minister of the Interior has the power to
decide whether to grant the citizenship application of the foreign spouse of an
Israeli citizen, and no one will argue that the foreign spouse, as well as the
Israeli spouse, has a right that the Minister of the Interior should grant his
application. Even the leniency to which the foreign spouse is treated in
accordance with s. 7 of the Citizenship Law does not derogate from the power of
the Minister of the Interior — from his power and his duty — to
consider whether to grant the citizenship application or to refuse it.
Moreover, s. 7 of the Citizenship Law also does not restrict the scope of the
discretion of the Minister of the Interior, and it has been held in the past
that, notwithstanding this provision, the Minister of the Interior is
authorized to determine a policy that will make the granting of the foreign
spouse’s application for citizenship conditional on the fulfilment of some of
the conditions provided in s. 5(a) of the law. See HCJ 576/97 Scharf v.
Minister of the Interior [121].
32. We should also
mention in this context that it is a case law rule that a foreigner is not
entitled to receive a status in
‘… The petitioner does not
base his claim for the status of a permanent resident on the bond of marriage.
His claim is that he is entitled to this right because of his minor daughter,
who is an Israeli citizen. Even though the three-member family unit has broken
up, his relationship with his daughter is a good and warm one, and he wants
this relationship not to be harmed. Is this a valid argument?
The respondent’s position is
that only in exceptional cases, in which there are extraordinary humanitarian
circumstances, does the fact that a foreigner is the parent of a minor who is
an Israeli citizen justify his being given a status of a permanent resident
(see Harari v. Minister of Interior [116]). In the respondent’s opinion,
these special circumstances do not exist in the case before us.
Notwithstanding, the respondent is prepared to allow the petitioner, if he so
wishes, “generous” visiting visas in order that he may visit his daughter from
time to time. Is this consideration lawful? In my opinion, the answer is yes.
Already in Kendall v. Minister of Interior [115] it was held that “the
place of a minor is with his parents. Where they live, there he should live,
and not vice versa. A minor is dependent on his parents, and parents are
not dependent on him” (ibid., at p. 518). Therefore, in principle, the
citizenship of the daughter is insufficient to grant a status of a permanent
resident to her foreign parent, but there may of course be humanitarian cases
that will require a departure from this principle. I am satisfied that in the
case before us these special circumstances do not exist.’
This case law rule that was
made with regard to parents of minors who live in
Immigration by virtue of
marriage and establishing a family — the constitutional right —
general
34. The Israeli
legislature did not give Israeli citizens a right in statute that their foreign
family members may enter
35. The arguments of the
petitioners are weighty arguments. They are arguments that come from the depths
of the hearts of Arab citizens of the state who married residents of the
territories and wish to live with their spouses in
36. This question
concerning the scope of human dignity in its aspect of the right to marry and
to have a regular family life in Israel can be divided into two sub-questions,
that should be asked sequentially: the first sub-question is whether the
right to marry and to have a regular family life falls within the scope of
human dignity within the meaning thereof in the Basic Law: Human Dignity and
Liberty. If the answer to this sub-question is no, the matter ends and there is
no need to ask the second sub-question. But if the answer to the first
sub-question is yes, then we must ask the second sub-question, which is
whether the concept of human dignity implies not only a right to marry and to
have a regular family life but also an inherent right of an Israeli citizen not
merely to marry a foreign spouse but in addition to establish the permanent
residence of the couple specifically in Israel. In this context, the question
also arises as to whether a minor, who is a citizen or a resident and lives in
On determining the scope of
basic rights and rights deriving therefrom
37. Determining the scope
of application of the basic rights and the relationship between the basic
rights inter se and between them and other interests that seek to limit them
from within or to restrict them from without, by applying the limitations
clause, is not an easy task at all. My colleague President Barak argues for
extending the scope of the basic rights, since he thinks that the place for
restricting those rights is in the limitations clause (see
38. First of all, before
we consider the relationship and balance between rights and interests, we ought
to be aware that a determination that a certain right is a constitutional right
means that it is a right that derives its force and strength from the Basic
Law: Human Dignity and
‘The
Basic Law: Human Dignity and
See
also Hoffnung v. Knesset Speaker [77], at pp. 67-68, and the disagreements
that arose in Silgado v. State of Israel [107].
39. Admittedly,
in countries where there is a formal constitution the constitutive authority is
entitled and authorized to include in the constitution specific arrangements
that grant rights that in general we will find it difficult to call ‘basic
rights.’ These constitutional arrangements do not concern universal basic
values — values that everyone agrees ought to override an ordinary
statute — and their purpose is to regulate life in the country in a
specific manner, according to its special (and changing) needs. The normative
status of these constitutional arrangements is the same as that of all other
constitutional arrangements: the law of the state will be overridden by them
and the power of the legislature will not stand up against them. At the same
time — and for this reason that they do not reflect universal basic
values — those arrangements may be cancelled or changed when times change
and the needs of the state change. We can illustrate our remarks by means of
two of the arrangements in the
Until now we have spoken of
formal constitutions and countries where they have established formal
constitutions. Now we turn to countries — such as
40. We are now concerned
with the interpretation of the concept of human dignity in the Basic Law: Human
Dignity and
41. Stretching basic
rights in every direction — up, down and to the sides — while
referring the interests that are capable of affecting their boundaries to the
limitations clause is likely to have a detrimental effect on constitutional
debate, and this is likely to lead eventually to a reduction in the
constitutional protection of human rights. But we seek to create a balanced and
proper constitutional process that is intended to prevent contempt for the
constitutional debate. This was discussed by Justice Zamir in United
‘… I want to be very careful
not to make rigid determinations on the question of what is property and what
is a violation of property. Does the Basic Law give protection against any new
law that adversely affects, even indirectly, the value of the property or
pecuniary income? For example, does the protection of property extend also to
restrictions that the law imposes on employment contracts, such as a provision
concerning a minimum wage, or to requirements in property relations between
spouses, such as a provision concerning a liability for maintenance? If
everything that adversely affects the value of a person’s property, including
any kind of pecuniary liability, is a violation of property rights, it will be
found that the laws that violate property rights are innumerable; the court may
founder in its efforts to examine the constitutionality of every such law, in
case, inter alia, it violates property rights excessively; and the
legislature will find it difficult to carry out its role properly. The more the
scope of property rights as a constitutional right is widened, so it is to be
feared that the strength of the protection of those rights will be weakened. Of
such a case it may be said: the higher you aim, the lower you fall.’
See also the remarks made by
Prof. Hogg, as cited by President Shamgar in United
‘The reason that generosity should give way, rather
than the stringent standard of justification, concerns the policy-making role
of the courts. If the scope of the guaranteed right is wide, and the standard
of justification is relaxed, then a large number of Charter challenges
will come before the courts and will fall to be determined under section 1.
Since section 1 requires that the policy of the legislation be balanced against
the policy of the Charter, and since it is difficult to devise
meaningful standards to constrain the balancing process, judicial review will
become even more pervasive, even more policy-laden, and even more
unpredictable than it is now. While some judges will welcome such
extensive powers, most judges will be concerned to stem the wasteful floods
of litigation, to limit the occasions when they have to review the policy
choices of legislative bodies, and to introduce meaningful rules to the process
of Charter review. These purposes can be accomplished only by
restricting the scope of Charter rights’ (P.W. Hogg, ‘Interpreting
the Charter of Rights: Generosity and Justification,’ 28 Osgoode Hall L.J.
(1990) 817, at pp. 819-820).
42. The public
interest — that interest that seeks to restrict or violate a basic
right — is in fact a collection of interests, which are different in their
nature and different in their strength, and it is not right and proper that we
should speak of the public interest as if we are speaking of one
composite interest. We must closely examine and inspect each strand of those
interests that together make up the general public interest, and we should
treat it according to its measure. See and cf. CFH 7325/95 Yediot Aharonot Ltd v. Kraus [127], at p. 78.
Interspersing the strands of
the collective public interest — according to the strength of the relevant
strand — between the task of determining the boundaries of a basic right
and the limitations clause is consistent with the principle of the separation
of powers and the decentralization of power, since it is capable of leading to
a more comprehensive and careful scrutiny of legislation. We should recall the
remarks uttered by this court only recently in Gaza Coast Local Council v. Knesset [6], at p. 553:
‘… When declaring a
statute void because of unconstitutionality, we are concerned with the voidance
of legislation enacted by a body that was elected by the people. This results
in the approach that a clear and substantial violation of a constitutional
human right is required in order for a statute to be unconstitutional (see Hoffnung v. Knesset Speaker [77], at p. 68); this leads to the approach
that a “permanent” law is not the same as a “temporary” law when scrutinizing
the constitutionality of the law (see Klal
Insurance Co. Ltd v. Minister of Finance [64],
at p. 486; Local Government Centre v. Knesset [31], at p. 494;
HCJ 24/01 Ressler v. Knesset [128]). Indeed, with regard to the constitutional
scrutiny “… the less, the better”.’
43. It follows that when
we are about to scrutinize the scope of the application of a basic right, we
are obliged to cast a glance from side to side, above and below. Concentrating
our gaze on the individual tree, while ignoring the forest around it, is
tantamount to ignoring reality. By protecting the individual tree we may harm
the forest, and thus we unintentionally harm the tree itself, since the tree
exists only within the limits of the forest. We should emphasize that this
scrutiny should be made — if only in part — at the source of the
right, when the basic right comes into existence and is shaped. The reason for
this is that extending the right ab initio into remote areas —
areas for which it may not be intended — will inevitably lead to its
restriction at the stage of the limitations clause. This process, as we have
said, may lead to contempt for the constitutional debate.
45. Thus,
both in general and also when examining the scope of the application of human
dignity, we ought to scrutinize the nature of the protected values carefully to
see whether they are central values or marginal ones.
The
right to marriage and to have a family life as a constitutional right
46. We
all agree — how could we do otherwise? — that a person, any person,
has a right to marry and to have a family life. The covenant between a man and
a woman, family life, was created before the state existed and before rights
and obligations came into the world. First came the creation of man, and man
means both men and women. ‘And God created man in His image, in the image of
God He created him, male and female He created them’ (Genesis 1, 27 [245]).
Thus Adam and Eve were created. A man needs a woman and a woman needs a man;
‘Wherefore a man shall leave his father and his mother and cling to his wife,
and they shall be one flesh’ (Genesis 2, 24 [245]). Thus a covenant is made
between a man and a woman, and when children are born the extended family comes
into existence. In the course of all this, love develops. Thus, in so far as
the family is concerned, the state found it ready made and extended its
protection to what nature had dictated to us. Society and the state sanctified
the covenant of the man and the woman in marriage, and thus the right to
marriage and to have a family life came into existence. Philosophers and
thinkers may say what they wish; in the final analysis — or to be precise,
in the initial analysis — the existence of the family comes from God
above, from nature, from man’s genetic makeup, from the very existence of life.
Such is the relationship between a man and a woman and such is the relationship
between parents and their children. And as we have said elsewhere (CFH 7015/94 Attorney-General v. A [23], at p. 102):
‘It
is the law of nature that a mother and father naturally have custody of their
child, raise him, love him and provide for his needs until he grows up and becomes
a man. This is the instinct for existence and survival inside us… “the blood
ties,” the primeval yearning of a mother for her child — and it is shared
by man, beast and fowl. … This tie is stronger than any other, and it goes
beyond society, religion and state. The conditions of place and time —
they and the persons involved — will determine the timing of the
separation of children from their parents, but the starting position remains as
it was. 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 found this ready made; it proposes to protect an innate instinct
within us, and it turns an “interest” of parents into a “right” under the
law — the rights of parents to have custody of their children.’
It is important to make these
remarks, since they may act as our guide in determining the boundaries of human
dignity.
47. The right to marry
and to have a family life, including the right of a minor to be with his
parents, is the basis for the existence of society. The family unit is the
basic unit of human society, and society and the state are built on it. It is
not surprising, therefore, that the right to a family life has been recognized
in the international community as a basic right. This is also the law in
Immigration by virtue
of the right to marry and to family life as a constitutional right
48. Now we turn to the
second sub-question, which derives from the first sub-question. Does the basic
right of an Israeli citizen to have a normal family life in Israel — a
basic right derived from human dignity — concern only Israeli citizens and
permanent Israeli residents, inter se, or perhaps we should say that it
extends also to a spouse who is a foreign citizen or resident and who has
married an Israeli citizen and wishes to immigrate into Israel and live with
him on a permanent basis? An Israeli citizen enters into a bond of marriage
with a spouse who is not an Israeli citizen or resident. Does the Israeli
citizen have a right in the Basic Law that the foreign spouse should be given
the right to immigrate into
49. My colleague
President Barak is of the opinion that the right to have a family life in
‘… the constitutional right to establish a family
unit means the right to establish the family unit in
I find this normative
determination problematic. I understand my colleague’s thinking in his desire
to apply the value of human dignity to its derivatives — in our case, to
the right of the Israeli citizen to have his family life in Israel even if his
spouse is a foreigner — as extensively as possible, and to restrict the
rights only by means of the limitations clause. But it seems to me that when we
scrutinize the whole picture, we must address both sides of the coin. We are
obliged to examine not only the rights of the individual — the citizen of
the state — vis-à-vis the state, i.e., the duties of the state
vis-à-vis the individual. We are obliged, at the same time, to examine
the duties of the state to all of its individuals, or if your prefer, we are
obliged to examine closely what obligation the recognition of the right of the
individual citizen places on all the residents and citizens of the state, on
the other individuals for whom the state is a framework for living
together. This all-embracing examination will show, in my opinion, that a broad
application of the basic right as my colleague proposes may seriously harm
other individuals to such an extent that it is doubtful whether it is right and
proper to impose on the state an obligation on the level of a basic right. If
this is the case with regard to an individual citizen, it is certainly the case
with regard to the impending immigration of tens of thousands of
foreigners — in our case, tens of thousands of enemy nationals — who
married Israeli citizens while
50. The premise is —
we discussed this in our remarks above — that a state, any state, is not
obliged to allow foreigners to enter it, and certainly it is not liable to
allow foreigners to become permanent or temporary residents in it. We derive
this from the supreme principle of the sovereignty of the state, a principle
from which we derive the right of the state to determine who may enter it and
who may become its citizens or receive a right to live in it. This has also
been held on several occasions in
‘As a
rule, every country reserves for itself the right to prevent foreign persons
from entering it or to remove them from its territory when they are no longer
wanted, for one reason or another, and even without any reason…’
Incidentally,
in Clark v. Minister of Interior [111] Justice Berinson reviewed the
decisions of the courts in England and the United States, and he cited a
judgment of the
51. This principle is a basic
principle in the law of the countries of the world. Every state has the natural
right — a right deriving from the sovereignty of the state over its
territory — to determine who will be its citizens and who will be entitled
to enter it. See, for example, Halsbury’s Laws of England, vol. 18
(fourth edition, 1977), at para. 1726:
‘In customary international
law a state is free to refuse the admission of aliens to its territory, or to
annex whatever conditions it pleases to their entry.’
See also the judgment of the
European Court of Human Rights in Abdulaziz Cabales and Balkandali v. U.K.
[235]:
‘As a matter of well established
international law and subject to its treaty obligations a state has the right
to control the entry of non-nationals into its territory.’
In this spirit, the countries
of the world, including
‘It is an accepted maxim of
international law that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of
foreigners within its dominions, or to admit them only in such cases and upon
such conditions as it may see fit to prescribe.’
Indeed, even today no foreign
citizen has a right — and certainly not a constitutional right — to
enter and stay in the
‘An alien has no constitutional right to enter, or to
stay in, the
See also, for example, Knauff v. Shaughnessy [203], Fiallo v. Bell [190]; Landon
v. Plasencia [205].
This has also been held by the
Court of Appeal in
‘… no alien has any right to
enter this country except by leave of the Crown; and the Crown can refuse leave
without giving any reason…’
‘The history of the
immigration laws of the United States is one of evolution from no restrictions
to extremely narrow qualitative restrictions, to additional qualitative
restrictions, and later to more extensive qualitative restrictions, including
ethnic ones, and eventually to quantitative restrictions.’
For changes that have occurred
over the years in the attitude of European countries to immigration in general,
and to immigration for reasons of marriage in particular, see, for example: S.
Castles et al., Migration and Integration as Challenges to European Society,
Assessment of Research Reports Carried Out for European Commission Targeted
Socio-Economic Research (TSER) Programme (Oxford, 2003); Family
Reunification Evaluation Project (Final Report, The European Commission:
Targeted Socio-Economic Research, Brussels, 2004), at pp. 21–22. These articles
are also mentioned in the article of Prof. Amnon Rubinstein and Liav Orgad,
‘Human Rights, National Security and the Jewish Majority — the Case of
Immigration for the Purpose of Marriage,’ 48 HaPraklit (2006) 315, at
pp. 330 (note 54), 341 (note 108).
53. So we see that a
state may impose restrictions on immigration into it in accordance with the
immigration policy that it deems fit and appropriate for its needs, without
taking into account the concerns and wishes of the foreign nationals who wish
to immigrate to it. All of this is the case with regard to the foreign
relations of the state, vis-à-vis other countries and vis-à-vis
persons who are not its citizens or residents. But what about the relations of
the state vis-à-vis its own citizens and residents? Does the state also have
the power to restrict the entry of foreigners into the state in its internal
relations, even if the foreigners concerned are family members of citizens and
residents? The answer to the question is yes. The rule of state prerogative is
valid with regard to the immigration of foreign citizens or residents, even if
they are family members of its citizens or residents. A state is entitled to
refuse to allow the foreign family members of its citizens to enter the state,
and certainly to refuse to allow them to immigrate to it, and a citizen of the
state is not entitled to demand that the state permits his foreign family
members to immigrate into the state other than in accordance with the laws of
the state. Indeed, although international law recognizes the right of the
individual to marriage and family life, it does not recognize the right of the
individual to realize this right specifically in his country of citizenship. In
other words, the right of the individual to marriage and to family life does
not necessarily imply a constitutional right to ‘family reunifications’ in the
state. The prevailing legal position in this sphere was recently considered by
Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority
— the Case of Immigration for the Purpose of Marriage,’ supra, at p.
‘The rules of international
law also do not give rise to a right to immigrate for the purposes of marriage.
International law admittedly recognizes the importance of the right to
establish a family, as well as the importance of the right of a family not to
separated by deportation, but there is no express and concrete right in
international law that creates a positive duty that a state should allow
immigration into its territory for the purpose of marriage, even in times of
peace’ (emphasis in the original).
A similar conclusion was
reached by the
‘Although international
documents endorse family rights, none of the declarations establishes an
explicit right to family reunification. Likewise, although the Convention on
the Rights of the Child demands that applications by a child or parents to
enter or leave the State for the purpose of family reunification be handled in
a “positive, humane and expeditious manner… there is no specification that the
provision provides the basis for legal claims to family reunification … The
second area of international law, which may be conflictual with the principle
of universal family reunification, refers to the precedence of State
sovereignty.’
Incidentally, following the
rule in international law, the European Union enacted a directive in
55. Moreover, the state
has a duty to maintain a balanced immigration policy, a policy that befits the
needs of the state and its basic values. The state may not discharge this duty
by transferring to its citizens the power to determine who will immigrate into
it. Someone who wishes to immigrate into the state must apply to the organs of
the state and not to one of its citizens, and it is the organs of the state who
will decide the application. Recognizing
that the state has a constitutional obligation to allow the entry of foreign
family members can only mean a transfer of sovereignty to each and every
individual citizen, and this inevitably harms the ability of the state to
formulate its policy and respect its heritage. In other words, giving an
automatic right of immigration to anyone who marries one of the citizens or
residents of the state means that every citizen holds the right to allow
immigration into the state, without the supervision of the state, and it is
clear that no government in the world will allow not only the functioning but
even the sovereignty of the state itself to be harmed in this way. See, for
example, A. John, Family Reunification for Migrants and Refugees: a
Forgotten Human Right? (2004), at p. 10:
‘No
Government wished to find itself shackled to a precise and enforceable standard
of family reunification rights that would impede on the State’s sovereign right
to control who entered and settled on its territory.’
It is
not surprising that the author of this research reaches the conclusion that,
notwithstanding all the rights in the law, including the right to family life,
the countries of the world have consistently refused to recognize the existence
of a right to family reunifications on the grounds of marriage, since this
right violates the sovereignty of the state and its power to determine who will
immigrate into it (ibid., at p. 6):
‘… in
all the international instruments adopted, States have opposed any recognition
of a right to family reunification that might be considered to substantially
curb States’ sovereign right to control who may enter or settle in its
territory.’
56. Indeed,
a state — any state — will not agree to give its individuals, or any
one of them, a basic right to change the status quo ante in the society
and the state. Even states that recognize an express constitutional right to
marriage and to family life will find it difficult to permit free immigration
by virtue of this right, and indeed it has been found that many of these states
‘… repudiate the principle that marriage itself (or its breakdown) results in
an automatic change in the citizenship of the spouses’ (Rankin v. Minister
of Interior [112], at p. 116). Moreover, even when they grant a right of
immigration for family reasons, the countries of the world have tended to
restrict this right by imposing restrictions on the realization of the right.
Every state has its own arrangement: an arrangement that suits its basic
values, the immigration policy it determined and its economic and political
needs, and no one arrangement is identical to another. At the same time, there
are general lines of similarity between the arrangements. Thus, for example, it
has been found that many states impose age restrictions on immigration for
reasons of marriage, and they allow the foreign spouse to immigrate into the
state only if one or both of the spouses have reached a minimum age. When there
are no means of subsistence — sometimes for a lengthy period — the
immigration of the foreign spouse into the state will not be allowed. Some
states require the foreign spouse to have various ties with the state absorbing
them. Receiving citizenship in the state absorbing them usually requires a
lengthy stay in the absorbing state, requirements of knowing the language of
the absorbing state, being familiar with its culture and heritage and taking an
oath of allegiance to the state. Not infrequently the foreign spouse is also
required to waive his original citizenship as a condition for receiving his new
citizenship. For a comprehensive survey of the requirements imposed in the
countries of the world, see: Rubinstein and Orgad, ‘Human Rights, National
Security and the Jewish Majority — the Case of Immigration for the Purpose of
Marriage,’ supra. Thus, for example, Rubinstein and Orgad tell us at the
beginning of chapter 3 of their work (at p. 328):
‘In
recent years, the trend in European countries is to make the conditions for
immigration on the basis of marriage stricter. In a significant number of
countries, laws have been enacted in recent years to restrict the possibility
of immigrating for the purpose of marriage. Thus, for example, the economic
conditions required of the spouses who wish to immigrate for the purposes of
marriage have been made stricter, basic cultural requirements (such as learning
a language) that the immigrating spouse must satisfy before he immigrates have
been introduced, restrictions on the age for immigration have been imposed,
ties have been required with the state to which the spouses wish to immigrate
and the burden for proving the genuine nature of the marriage has been made
stricter. The European Court of Human Rights has usually given its approval to
the stringent legislation that has come before it.’
Indeed,
it may be argued that all these restrictions should be examined within the
framework of applying the limitations clause, but we say that this
subject-matter is extremely sensitive, and in the case of a fundamental public
interest, such as the interest that underlies the issue before us, we ought to
allow the public interest to have its say at the outset, when determining the
scope of the basic right. This is the panoramic view to which we refer, a view
that allows us to see the individual and the society in which he lives as
integral parts of one whole.
The
struggle and the balance
58. Against
the background of all the rights and interests that compete against one
another, this is a struggle of giants. On one side there is the right of the
state not to allow foreigners to enter its territory, and on the other side is
the right of the citizen — a basic right, a constitutional right derived from
human dignity — to live together with his family members in Israel. The
question that arises is what is the law where an Israeli citizen wishes to have
a family life in
60. I
placed all the values and considerations into one pot, and my conclusion is
that the value of human dignity — in principle — does not give an
Israeli citizen a constitutional right to bring a foreign spouse into
61. With
regard to the strength of the constitutional right to have a family life, I do
not nor shall I deny the constitutional right of an Israeli citizen to have a
family life. This right, as we have noted, is required by nature, and it is
right and proper for the law to encompass the natural instinct in man and
protect it in statute. In the words of the Roman poet Horace (Quintus Horatius
Flaccus, Epistles 1, 10: naturam expelles furca, tamen usque recurret
(‘you expel nature with a pitchfork, but it always comes back’). But the
strength of this constitutional right, which is derived from the value of human
dignity, becomes weaker the further we distance ourselves from the nucleus and
approach the periphery. We are not concerned now with the nucleus, with the
right of a person to marry. We are not concerned with the essence, with the
right of a person to establish a family and to live together with that family.
We are concerned with an addition to all of these, with the question of
the right of an Israeli citizen to bring with him to
62. But
the values and interests that conflict with the argument concerning the
constitutional right of the citizen to bring a foreign spouse to live in
63. Moreover,
let us be mindful and not forget: immigration arrangements, by their very
nature, are specific arrangements; they are arrangements that change from time
to time in accordance with the needs of the state (see supra, at para.
39). Even if these arrangements are included in the constitutions of various
states, nothing in the fact that they are placed in the constitution can change
their nature and substance as specific arrangements. And since they are such,
we will have difficulty in finding an analogy between the arrangements of one
constitution and the arrangements in another constitution, and between the
arrangements of a foreign country and Israeli law. As President Shamgar said in
United
‘But it
should be understood that the consideration of other constitutions and their
implementation is merely comparative. Every constitution reflects in the protection
of rights that are granted therein the social order of priorities that is
unique to it and the outlooks that have been adopted by its society. It need
not be added that there is also a whole range of political considerations that
accompanies the formulation of a constitution. Thus, for example, in
Take
the case of Ruritania, a country in the centre of
64. The
same criteria apply to the question whether a minor living in
65. I
will add to this that the harm caused by the Citizenship and Entry into Israel
Law to children is limited. We should recall that the law, in s. 3A, provided a
special exception for the cases of children, as follows:
‘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.’ |
Thus we
see, according to s. 3A(1) of the law, that minors up to the age of 14 are
entitled to receive a status in Israel in order to prevent their separation
from a custodial parent who lawfully lives in Israel. In other words, the right
of these minors to live with the custodial parent is not harmed at all. With
regard to minors over the age of 14, these can, according to s. 3A(2), receive
a permit to stay in
This is
the case with regard to the right of children to live with the custodial parent
in
66. With
regard to the interest of a minor who is living with his custodial parent in
Israel to have his foreign parent also live with him in Israel, and, in
consequence, the interest of the foreign parent to live with his minor child
and with his family members in Israel — these are interests that my
colleague the president addresses. I too agree with my colleague’s position
that the separation of the foreign parent from the minor is not desirable, but
I am of the opinion that even in this case the minor does not have a protected
basic right that his foreign parent will live in
67. This,
then, is the position: the harm to minors living in
Comments
regarding the scope of application of the constitutional right to family life
68. Before
I consider the question whether an Israeli citizen has a constitutional
right — a basic right — to bring to Israel his foreign spouse, a
national of an enemy entity, in a time of war, I would like to make two
comments that concern the remarks made by my colleague the president with
regard to the constitutional right of an Israeli citizen to bring his foreign
spouse into Israel. One comment concerns remarks which I made in Stamka v. Minister of Interior [24]. The other comment concerns
reliance on constitutional arrangements in foreign countries.
a. Concerning
remarks that I made in Stamka v. Minister of Interior
69. My colleague
the president did me the honour of citing — twice, in para. 27 and in para
34 of his opinion — remarks that I made in Stamka v. Minister of Interior [24], at p.
‘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
After citing these remarks (in para. 34 of his
opinion), my colleague the president goes on to make the following remarks:
‘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”.’ I do not retract the remarks
that I made, but I do not think that it is possible to deduce from them that an
Israeli citizen has a constitutional right that his foreign spouse can enter
First, the continuation of the remarks that I wrote (ibid.)
should be read. They state:
‘This is the case here too. The respondents
recognize the right of spouses — an Israeli citizen and someone who is not
an Israeli citizen — who were genuinely married to live together in
Israel, and the right of the foreigner to an arrangement at the end of which he
will receive a permanent status in Israel: permanent residency and citizenship.
What then is the complaint? It concerns the length of that “staged arrangement”
and the inflexibility of the arrangement.’
The
explanation of this is that when I spoke about the ‘right
of the citizen to choose for himself a spouse and to establish with that spouse
a family in
Second,
and this is the main point, the judgment in Stamka v. Minister of Interior
[24] was written on 4 May 1999. The serious armed conflict between the
Palestinian Authority and
Third, my remarks are qualified automatically by ‘qualifications
of national security, public safety and public welfare.’ With regard to these
qualifications there is no need to add anything except for this, that they are
inherent to the subject-matter and their existence would not be in doubt even
had they not been written expressly.
70. We therefore return to the beginning, and
the question is whether there is any flaw or defect in the Citizenship and
Entry into Israel Law. My answer to this question is, as aforesaid, no.
b. The
interpretation of a constitution and arrangements from comparative law
‘In comparative law there is much discussion of the
environment. Many laws addressing the environment have been enacted in many
countries… sometimes the environment has been given a constitutional status. In
a large number of constitutions, a constitutional right to have a suitable
environment has been recognized…’
And further on (at pp. 515-516):
‘This comparative law — whether in the
international sphere or in the national sphere — is of great importance…
Nonetheless, each country has its own problems. Even if the basic
considerations are similar, the balance between them reflects the uniqueness of
every society and what characterizes its legal arrangements… Indeed, this is
the power and these are the limits of comparative law. Its power lies in
extending the interpretational horizon and field of vision. Its power lies in
guiding the interpreter with regard to the normative potential inherent in the
legal system… Its limits lie in the uniqueness of every legal system, its
institutions, the ideology that characterizes it and the manner in which it
deals with the individual and society. Indeed, comparative law is like an
experienced friend. It is desirable to hear his good advice, but this should
not replace one’s own decision.’
See
also LCrimA 8472/01 Maharshak v. State of Israel [131], at p. 474:
‘… It
is a burden that is imposed on us to take care not to follow foreign legal
systems blindly, and especially to know how to distinguish between principles
and doctrines and ways of thinking and techniques for arriving at a solution,
from which it is possible to derive inspiration and wisdom, and between details
and specific solutions which we should ignore. Indeed, comparative law is
capable of extending one’s thinking, enriching knowledge and wisdom, freeing us
from provincialism, but at the same time we should not forget that we are
dealing with our own system and our own country, and we should avoid the
imitation of assimilation and self-deprecation.’
72. We
should remember that we are Israeli judges, we judge in
‘But it
should be understood that the consideration of other constitutions and their
implementation is merely comparative. Every constitution reflects in the
protections of rights that are granted therein the social order of priorities
that is unique to it and the outlooks that have been adopted in its society. It
need not be added that there is also a whole range of political considerations
that accompanies the formulation of a constitution. Thus, for example, in
The
more a normative arrangement is influenced by the reality and the specific
needs of the country where it prevails, the harder it will be to learn from it
and to make an analogy between it and the State of Israel in which we live.
This is true in general and it is also true in this case. The attitude of each
state to immigration arrangements — including immigration arrangements by
virtue of the right to marry and to family life — originates not only in
the legal system and its characteristics in each different place but also,
mainly, in the reality with which the state is required to contend. It is
therefore not surprising that the countries of the world have adopted and
continue to adopt, each for itself, arrangements that are suited to its needs
from time to time, and moreover they tend to change from time to time the
immigration arrangements prevailing in them according to the reality — a changing
reality — with which the state is required to contend. See the remarks
that we cited above (in para. 52) with regard to the position prevailing in the
United States and changes in immigration arrangements in that country.
73. With
regard to us, we doubt whether among all those countries, from which my
colleague the president seeks to derive an analogy, there is another country
that is contending with a reality similar to the reality with which
74. For our purposes, we
should say that even were we to adopt general basic principles that guide the
paths of cultured countries of the world, we would have difficulty following
specific arrangements that were chosen by the various countries, whether within
the territory of the European Union or in any other place. The status and way
of life of those countries, and especially the security position in them, are
so different from the status of Israel, its way of life and the security
position that prevails in our country that an analogy from the legal systems
practised there — legal systems that reflect what is happening in those
countries — is out of place.
Interim remark
75. Hitherto
we have considered the question whether Israeli law gives an Israeli
citizen — or does not give him — a constitutional right, a basic
right, to bring to
Immigration
in times of war
76. Does
the constitutional right to family life, a right that is derived from the value
of human dignity, imply an innate right of the citizens and residents of Israel
to bring to Israel their foreign family member (a spouse or parent) who is a
resident of a hostile entity that is involved in an armed conflict with the
State of Israel? My answer to the question is no. In this case too I think that
the strength of the right to family life is confronted by another strong and
very powerful interest: the lives and security of the citizens and residents of
‘The configurative analysis of the Bill in terms of
national security versus civil liberties may be as misleading as it is
inappropriate in its framing of the issues. It appears to suggest — however
inadvertently — that those who are against the legislation are the true civil
libertarians, while those in favour of it are somehow indifferent to, if not
insensitive to, civil liberties. The point is that there are good civil
libertarians on both sides of the issue — and the civil libertarian issue
should be considered on the merits and not as a function of the labeling of
one’s positions as being for or against the legislation.
The better approach from a conceptual and foundational
point of view is to regard the legislation as human security legislation, which
seeks to protect both national security — or the security of democracy if not
democracy itself — and civil liberties. As the United Nations puts it,
terrorism constitutes a fundamental assault on human rights and, as such, a
threat to international peace and security, while counter-terrorism law
involves the protection of the most fundamental of rights, the right to life,
liberty, and the security of the person, as well as the collective right to
peace’ (I. Cotler, ‘Thinking Outside the Box: Foundational Principles for a
Counter-Terrorism Law and Policy,’ in The Security of Freedom: Essays on
Canada’s Anti-Terrorism Bill (R.J. Daniels, P. Macklen and K. Roach, eds.,
2001) 111, at pp. 112-113).
77. I
believe that even those who support the position that the Israeli citizen
should have a right — a constitutional right or a legal right — to
have his foreign family member enter Israel and reside in it will agree that
reasons of national security and public security should qualify the right of
the individual to have his family member enter the country and reside in it.
Thus, if the state authorities discover that a foreign national presents a
specific security risk to national security and public security, that foreign
national will not be allowed to enter
‘Someone
who wishes to obtain permanent residency in
78.
This natural and simple rule, that a foreign national who presents a risk to
national security will not be allowed to enter the state, leads almost
automatically to the conclusion that in times of war hostile nationals will not
be allowed to enter the state, since they are presumed to endanger national
security and public security. Indeed, it will not be difficult to understand
and realize that a foreign family member who is not an Israeli citizen has
strong ties with his family and his place of birth, and that these ties are not
severed even if the person leaves his home and comes to live in Israel. This
feeling of loyalty of a person to his people and his place of birth is a
natural feeling, a feeling of great strength, and it is much stronger where a
person leaves behind him — and this is the usual case — parents,
brothers, sisters, other family members, friends and companions. And so, when
the two peoples — the people of the family member’s place of birth and the
people among whom he now lives — become involved in an armed conflict with
one another, a person is likely to be required to decide where his loyalties
lie and whom he will aid. Often he will support his place of birth and seek to
assist it in one way or another. The risk and the danger will increase greatly
in a case where the family member has left behind him family members and
friends who may be subject to harm and threats from the regime in his place of
birth or from gangs in that country. The risk and the danger will increase even
more where the person belongs to a people that seeks to destroy the state that
absorbed him and that is waging against it a bloody struggle that has continued
for many years.
79. The
premise in international law is that in times of war the citizens of the
warring states become hostile to one another, and that every citizen will
regard himself as loyal to his country and place of birth and hostile to the
enemies of his place of birth. It is natural, therefore, that a state that is
in a situation of conflict may determine special arrangements concerning enemy
nationals, including, of course, an arrangement that prevents them from
entering its territory. See J.G. Ku, ‘Customary International Law in State
Courts,’ 42
‘Because
the declaration of war between sovereigns transforms every individual subject
and citizen of those sovereign nations into enemies, the traditional law of
nations naturally require that enemy aliens be accorded different legal status
than alien subjects hailing from friendly powers. In particular, the treatise
writers found that the law of nations imposed severe restrictions on the nature
of the contacts between subjects of sovereigns at war with each other.’
81. On the basis of this
logical deduction, a deduction that is common to all human beings and to all
human peoples, it has been determined in international law that when there is a
dispute between nations, a nation may prohibit the nationals of the foreign
nation, as such, from entering or immigrating to it. The reason for this is
that because of the strong and special ties that they have to their place of
birth, people and family members, enemy nationals, as such, constitute a
special risk group. Admittedly, not all enemy nationals are actually enemies,
but in the heat of an armed conflict there arises a quasi-presumption that
enemy nationals — all enemy nationals — are enemies of the state, and
the state has no legal duty to rebut the presumption and distinguish between an
enemy national who is likely to endanger the state and its residents and an
enemy national who is unlikely to endanger the state and its residents. There
is a presumption that enemy nationals, because they are enemy nationals, are
the enemies of the state and that they endanger the safety and the security of
the public in the state that is at war with their state; and the state is entitled —
and is even obliged by virtue of its duty to protect its citizens and
residents — to refuse the application of enemy nationals to immigrate to
its territory. This rule, a rule in times of war and conflict, is valid also
with regard to the case of persons who wish to immigrate by virtue of the right
to marry and raise a family, since even these are likely to endanger the
security of the state and the security of the residents of the state. See
Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority
— the Case of Immigration for the Purpose of Marriage,’ supra, at pp.
320-321:
‘The accepted norm of not
allowing enemy nationals to enter in times of war or in times of armed conflict
applies also to immigration for the purposes of marriage (marriage migration).
International law and the relevant conventions impose various duties on the
state with regard to family reunifications. Thus, for example, a state that is
a party to an armed conflict is required to facilitate meetings of families
that were compelled to separate during the fighting (even though the duty is to
assist the renewal of the connection and, in so far as possible, family
meetings, there is however no duty to allow family reunifications or to allow
immigration for the purposes of marriage). A state that is a party to an armed
conflict is also required to make an effort in order not to separate existing
families during the armed conflict. But the state has no legal or moral duty in
international law to allow immigration for the purposes of marriage from state
A to state B, as long as the two states are involved in an armed conflict, and
even when they are completely at peace.’
82. We
tend to the outlook — which we have explained in detail above — that
the state has no constitutional or legal obligation to allow family
reunifications in its territory. But even if in times of peace the state is
accustomed to allow foreign family members of its citizens to immigrate into
the state (see Stamka v. Minister of
Interior [24]), the state may
in times of war suspend this practice and prevent the entry of foreign family
members who are enemy nationals notwithstanding the harm to the individual who
married an enemy national or to a minor who lives with his Israeli parent only.
A time of war is not the same as a time of peace.
Although we all know that ‘even when the trumpets of war sound, the rule of law
will make its voice heard’ (Sabiah
v. IDF Commander in Judaea and Samaria [110], at p. 369), we
also know that things which are appropriate in a time of peace cannot be
maintained in a time of war. In the words of the wisest of men (Ecclesiastes 3,
1; 3, 8 [246]) ‘For everything there is a time and for every desire there is an
occasion under the heavens… A time to love and a time to hate, a time of war
and a time of peace.’ I agree with my colleague the president that the state
does not have two systems of law, one for times of calm and one for times of
war. The basic rights of the individual are alive and well even in times of
security risks. At the same time, we cannot deny ‘that in times of war there
arise — or you may say, there awaken — considerations and interests
that are unique to this time, considerations and interests that can restrict
the spheres of application of the rights of the individual,’ or at least stop
their realization (the limitations clause). We cannot deny that in times of war
a state may restrict the individual in the realization of his rights, provided
that this restriction is done for a proper purpose — i.e., in order to
maintain public interests of great weight — for a restricted period and to
a degree that is not excessive. Cf. s. 12 of the Basic Law: Human Dignity and
83. Human
rights stand firm, with their full force, even in times of war and emergency,
but the situation of war and emergency can affect the restrictions that can be
placed on their realization. The question is one of dosage; the dosage in times
of peace is not the same as the dosage in times of war. In times of peace, the
right will blossom and spread its scent all across the land. But this is not
the case in times of war or in times when security risks are constantly lying
in wait for the residents of the state.
Let us
remember that rights that are given to the individual in a democracy will not
exist if there is no state or there is no life for the citizen. We are
accustomed to exalting — and rightly so — the basic rights of the
individual, human dignity, the principle of equality and with them other basic
values on which our legal system prides itself. These rights and principles are
of supreme importance. They are exalted above all else. Without them we would
have no democracy worthy of the name. But the very existence of the state and
the right of the individual to life are more exalted and important than all of
these. Without a state, the rights of the individual would have no existence,
and the basic rights of the individual must not become a spade to be used for
undermining the existence of the state. Cf. Yardor v. Chairman of the
Central Elections Committee for the Sixth Knesset [101], at pp. 388, 390; Neiman
v. Chairman of Elections Committee for Eleventh Knesset [87]. Such is the
existence of the state and the risks to the life of its citizens. ‘Without
security, it is not possible to protect human rights’ (per Justice D.
Dorner in Saif v. Government Press Office [86], at p. 77 {197}).
Therefore, ‘human rights should not become a spade for denying public and
national security’ (CrimFH 7048/97 A v. Minister of Defence [88], at p.
741). Safeguarding the lives and security of the public may necessitate a
certain erosion of the rights of the individual — some might say, may
justify a restriction of the scope of application of rights, and at least necessitate
a suspension of the realization of the rights of the individual — and this
erosion, if it is done proportionately, is a permitted violation in our
constitutional system. In the words of my colleague President Barak, in Conterm
Ltd v. Minister of Finance [85], at p. 347 {71}:
‘We
cannot protect human rights without infringing on human rights. A democracy is
not characterized by the fact that it never violates human rights. Human rights
are not a recipe for national destruction.’
84. The
state has a duty to its citizens and its residents — and this is a duty of
the first order — to protect their lives and security, even at the price
of violating the right of some citizens to realize, within the territory of the
state, their right to family life with their spouses who are enemy nationals.
In a time of armed conflict a sovereign state is therefore not required to
allow enemy nationals to immigrate, even if they have first-degree family
members in the state. The concern, and it is a reasonable concern, is that at
the crucial moment the enemy nationals will be loyal to their people and place
of birth, and at the least they will be subject to various pressures —
because of family and other ties — to help the enemy. This is sufficient
to create a presumption that all enemy nationals are dangerous and to justify a
prohibition against their entering the state. This is the rule, and it has its
logic and reasons. We should add in this context that rules formulated in
international law usually concern individual and exceptional cases, because
naturally the citizens of enemy states do not marry each other, and in times of
armed conflict they do not immigrate in their thousands from their state to the
enemy state. Our case, we should remember, is completely different, since we
are talking of residents of the territories who wish to immigrate to
85. So
we see that here too we are confronted by rights and interests that conflict
with one another: on one side there is the right of the state not to allow
residents of an enemy state to enter its territory in times of war, and on the
other side there is the right of the citizen — a basic right, a
constitutional right derived from human dignity — that he will be allowed
to live together with his family members and to have a normal family life in
Israel. The question is whether the basic right to have a family life in
86. Once
again I placed all the values and considerations into one pot, and my
conclusion is that the value of human dignity — in principle — does
not give rise to a constitutional right to realize in Israel a marriage with a
foreign spouse, or to bring a foreign parent into Israel, when that spouse or
parent is a national of a state that is in a state of war — or a state of
quasi-war — with Israel. This conclusion is implied both by an examination
of the strength of the right to have a family life, and by the values and
interests of the state and its residents to life and security, as well as by
the conflict between the former and the latter.
As we
have already said (see para. 61 above), I do not nor shall I dispute the
constitutional right of an Israeli citizen to have a family life. But here too
the main issue is the values and interests that conflict with the argument
concerning the constitutional right of the citizen to have a family member live
in
Indeed,
we should not ignore the conflicting interests and values, both those of the
state and those of its individuals. Human rights live and endure also in times
of war, but there is no doubt that a change occurs in the process of balancing
them against the interests that conflict with them, with regard to the value of
human dignity, personal autonomy and human liberty. The war harms everyone:
soldiers on the battlefield and citizens on the home front. The economy of the
state is harmed. The realization of social goals are postponed to a later date.
And when the reality changes, the balance may also change. Indeed, the nucleus
of the rights will not change. The piccolo will continue to pipe its clear
notes. But the remoter we are from the nucleus and the more we approach the
periphery — and in our case we are speaking of the right of the citizen to
bring a foreign national to live in Israel in a time of war — so the
influence and strength of other elements and values will increase.
Immigration
by virtue of marriage and the right to family life — interim summary
88. The
conclusion that we arrive at is therefore this, that the right of the
individual to family life does not imply a constitutional or legal obligation
that is imposed on the state to allow the foreign family member of the
individual (a spouse or parent) to immigrate into the territory of the state.
Such immigration — if and to the extent that it is allowed — will be
allowed if the state so wishes, and in accordance with its laws. The state has
no obligation to allow immigration for reasons of marriage — except in
accordance with its laws — and the state may impose restrictions on
immigrations into its territory for the purpose of marriage. If this is the
case in general, it is certainly the case in times of war, when the persons who
wish to immigrate into the state are enemy nationals.
The
question of the violation of equality — the right (and duty) of a state to
restrict the immigration of enemy nationals in times of war
89. We
all agree (for how could we not?) that the Citizenship and Entry into Israel
Law mainly harms the Arab citizens of the state. It is true that the law does
not address Israeli citizens at all, and therefore it does not distinguish
between Jews and Arabs, but it is also true that de facto it is Arab
Israeli citizens who are harmed by the law, since it is only they — with
the exception of isolated cases — who find a spouse among the residents of
the territories. From the viewpoint of the end result, there is no equality
between the Arab citizens of the state and the Jewish citizens of the state.
Cf. Israel
Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; Supreme Monitoring Committee for Arab Affairs in
Israel v. Prime Minister [41]. Does
this inequality in the end result have any legal significance?
90. Everyone
agrees that an immigration restriction should be applied democratically and
equally. The state should not discriminate against one population group by preventing
their foreign spouses from immigrating into the state, while at the same time
allowing the foreign spouses of another population group to immigrate into it.
We discussed this in Stamka
v. Minister of Interior
[24], where we explained that the principle of equality demands that the laws
of immigration by virtue of marriage should be applied equally to Jews and
non-Jews (ibid., at pp. 758-759):
‘… We do not find any justification for preferring
a Jew who lives securely in his land to someone who is not a Jew, such that the
former should be able to acquire citizenship for a non-Jewish spouse whereas
the latter cannot. Although we agree, wholeheartedly, with the right possessed
by every Jew, as such, to immigrate to Israel, with his family, we shall find
it difficult to agree to a greater right being given to a Jew who is a citizen
of Israel — to him, but not to the Israeli citizen who is not
Jewish — to be entitled to citizenship for a non-Jew who became his spouse
while he is a citizen of Israel. When we recognize the right of a Jewish
citizen of
The
meaning is that the citizens of
91. It is well known that not every
inequality leads to the voidance of a legal norm, and certainly it does not
lead to the voidance of a law of the Knesset. Not every distinction between
persons is an improper distinction. The same is true of a violation of human
dignity. A distinction that is based on relevant considerations does not
violate human dignity nor does it violate the right to equality. In other
words, the right to equality does not apply to every distinction but only to
prohibited distinctions. Not every different treatment is discriminatory
treatment. Discrimination is, it is well known, a distinction between persons
or between matters for reasons that are irrelevant, but when there is a
difference that is relevant, the authority may, and sometimes must, treat the
persons or the matters differently. This was elucidated by President Agranat:
‘…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…’ (Boronovski v. Chief Rabbis [71], at p. 35). It
follows from this, so President Barak told us, that: ‘In order to establish a
claim of discrimination that allegedly constitutes a violation of the
constitutional right to equality, one must point to the existence of an
unjustified discrimination in the offending law. Discrimination between groups
that is based on a relevant difference does not in itself constitute
discrimination’ (HCJ 5304/02 Israel Victims of Work Accidents and
Widows of Victims of Work Accidents Association v. State of Israel [139],
at 141). See also: Kefar Veradim v. Minister of Finance [70], at pp.
507-508; El-Al Israel Airlines Ltd v. Danielowitz [65], at p.
761 {489}; Recanat v.
93.
After realizing all of the above, we reject the claim of discrimination that
the petitioners raised before us.
Immigration
by virtue of the right to marry and raise a family and the principle of
equality — summary
94. The
right to marry and raise a family, and likewise the right to equality, are both
rights that do not imply that the state has any duty — neither a constitutional
duty nor a legal duty — to allow immigration to
95. Our
opinion is therefore this, that the Knesset had the power to enact the
Citizenship and Entry into Israel Law in its amended form. There remains, prima
facie, a question as to whether it was right to enact a blanket provision
of law that applies to a whole group of the population within certain ages,
without any distinction between the individuals in the group, or whether the
enactment of the blanket provision undermines the validity of the law, like a
law that is contrary to principles in the Basic Law: Human Dignity and Liberty.
The answer to this question is somewhat complex. As we have seen in our remarks
above, it is possible to classify the relationship between Israel and the
Palestinian Authority in two ways: one, as a relationship of armed
conflict that is equivalent, for our purposes, to a state of war, and two,
alternatively, or maybe additionally, as a relationship that creates serious
security risks to the residents of Israel on the part of the Palestinian
Authority or terror groups that operate from within it.
96. It
would appear that in so far as we are speaking of the armed conflict —
which is tantamount, in our opinion, to a state of war — the blanket
prohibition on the entry of a certain population group into
The
Citizenship and Entry into
98. The
premise for our deliberations from this point will be that the purpose underlying
the Citizenship and Entry into Israel Law, and I am speaking here only of the
purpose, is a proper purpose. The question is merely whether the measure
determined by the law to achieve the purpose is a proper and proportionate
measure. The purpose of the law is to protect the security and lives of Israeli
citizens, and it is clear that this purpose is a proper purpose that befits the
values of the State of Israel as a Jewish and democratic state. The State of
Israel is required to contend with terror, and it is entitled — or rather
it is obliged — to adopt measures that will protect the lives and security
of the residents of the state. The state is entitled therefore to prevent the
terror organizations from exploiting the basic rights of the individual —
which in our case means the right to marry and to family life, and, in
consequence, the right to live in Israel — in order to make it easier to
commit acts of terror against the citizens of Israel. Everyone accepts,
therefore, that in principle the state is entitled to adopt proper measures in
order to prevent the foreign spouse of an Israeli citizen from coming into
The
limitations clause — values of the state and purpose of the law
99. Assuming
that the Citizenship and Entry into Israel Law violates one of the basic rights
given to the citizen in the Basic Law: Human Dignity and Liberty —
although I personally doubt that this is true in our case — the question
that must be asked is whether that violation satisfies the test of the
limitations clause and passes it safely, or whether the violation fails the
test of the limitations clause and in consequence the law is doomed — in whole
or in part — to be declared void. Let us recall what the limitations
clause in s. 8 of 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.’ |
We are
speaking of a law of the Knesset that the petitioners are seeking to have
declared void, and in this respect the limitations clause provides us with
several tests: the law must befit the values of the State of Israel; the law
must be intended for a proper purpose; and the violation of the basic right
must be to an extent that is not excessive. The petitioners raised no argument
before us with regard to the first condition (the law must befit the values of
the state of
The
limitations clause: proportionality
100. There
remains one more hurdle for the Citizenship and Entry into Israel Law to
overcome, and that is the proportionality hurdle; or in the language of the
law, the violation of the basic right must be ‘to an extent that is not
excessive.’ This test, as distinct from the first two tests, places on the
agenda the measure that the law chose for achieving the proper purpose, and the
question is whether this measure is a ‘proportionate’ measure. The test of
proportionality is divided, as is well known, into three subtests, and now we
will consider these tests one by one. See also: Ben-Atiya v. Minister
of Education, Culture and Sport [91]; HCJ 6971/98 Paritzky v. Government
of Israel [141], at p. 779; Oron
v. Knesset Speaker
[10], at p. 665; Stamka v. Minister of
Interior [24], at pp.
776-778. Since my colleague the president went into detail in his analysis of
these tests, we will be brief although we too could have gone into detail.
The
first subtest — making the measure correspond to the purpose
101. Does
the blanket prohibition against the entry of residents of the territories of
certain ages into
‘The
temporary provision was enacted... in view of the security reality since the
beginning of the armed conflict between Israel and the Palestinians, in which
we have seen increasing involvement in this conflict of Palestinians that were
originally residents of the territories, who have Israeli identity cards as a
result of family reunification processes with persons who have Israeli
citizenship or residency, and who abused their position in Israel in order to
become involved in terror activity, including aiding the perpetration of
suicide attacks.
The
Israeli identity cards that were given to the residents of the territories as
aforesaid allowed them free movement between the territories of the Palestinian
Authority and Israel, and they made them a preferred target group of terror
organizations for perpetrating hostile activity in general, and inside the
territory of the State of Israel in particular.’
Because
of their ability and readiness to aid the perpetration of terror attacks inside
Israel, the residents of the territories who hold Israeli documentation became
a recruitment target for the terror organizations, and the security
establishment in Israel did indeed find that the efforts of the terror
organizations were successful and that the involvement of residents of the
territories who have Israeli identity cards in terror activities increased. We
will consider this matter further in our remarks below.
Thus,
when it was discovered that the residents of the territories who have Israeli
identity cards by virtue of family ties were involved in terror by means of
their abusing their right to move freely within Israel and between the
territories and Israel; that the involvement of these persons in terror was
increasing along with the progress in building the security fence which
constitutes a physical obstacle to terrorists who wish to harm Israel; that the
terror organizations are making great efforts to recruit into their ranks
residents of the territories who have Israeli documentation, and it is possible
that they also threaten the family members who are left behind; and that it is
impossible to predict who will become involved in terror; it was also
discovered that the restriction that the state imposed in the law on entering
Israel served the purpose of the law in a rational and direct manner. Thus, the
following was stated in the explanatory notes to the draft Citizenship and
Entry into
‘… The
professional assessment of the security establishment is that the temporary
provision is an effective tool for reducing the free passage of residents of
the territories between the areas controlled by the Authority and Israel, and
for preventing the potential for a serious security risk on the part of that
population.’
103. The first test of
proportionality — the rational connection test — is therefore
satisfied in full: the measure chosen to implement the purpose of the law
corresponds from a rational viewpoint with the purpose of the law.
The
second subtest — the least harmful measure
104. According
to this test, the measure determined by the law, which violates a
constitutional human right, is a proper measure if it is not possible to
achieve the purpose of the legislation by adopting another measure that
violates the human right to a lesser degree. Here we must make a clarification:
when applying the second test of proportionality, the law is not compelled to
choose absolutely the least harmful measure. Were we to say otherwise, then we
would allow the court to dictate to the legislature which measure to choose,
and in this way we would be undermining the discretion of the legislature and
seriously violating the principle of the separation of powers and the
decentralization of power. Moreover, in a case of this kind, the court is
likely to undermine the effective implementation of the purpose of the law. The
concept of proportionality for our purposes here means that the law chose a
measure that falls within the spectrum of measures whose violation of a human
right corresponds appropriately to the purpose of the law. The remarks of
‘The requirement that the legislature should choose a
measure that violates the constitutional right to an extent that is not
excessive in order to achieve the purpose of the law does not mean that the
legislature must always choose the lowest level at the bottom of the ladder.
Such a determination would make things too difficult for the legislature, which
would not be able to penetrate the barrier of judicial review... There may be
cases where the choice of an alternative measure that violates the
constitutional right a little less is likely to lead to a significant reduction
in the extent of realizing the purpose or in the extent of the benefit that
will accrue from it, and therefore it will not be right to compel the
legislature to adopt this measure. As a result, this court has recognized a
“constitutional room to manoeuvre” which is also called the “margin of
appreciation.” The limits of the constitutional room to manoeuvre are
determined by the court in each case on its merits and in accordance with its
circumstances, while taking into account the nature of the right that is
violated and the strength of the violation thereof in relation to the nature
and character of the competing rights or interests.’
See also Israel Investment Managers Association v.
Minister of Finance [8], at pp. 387-389.
105. The
question in our case is whether it was possible or it was not
possible to achieve the purpose of preventing attacks carried out with the
assistance of family members who are residents of the territories, by means of
a lesser violation of the right to family life. We are mainly speaking of the
creation of a mechanism of an individual check for every resident of the
territories who is a spouse or parent of an Israeli citizen, instead of
imposing a blanket prohibition on all the residents of the territories who are
of certain ages. My colleague the president reached the conclusion that the
provisions of the law satisfy the second test of proportionality, because in
his words ‘… in the circumstances of the case before us, the individual check
does not realize the legislative purpose to the same degree as the blanket
prohibition. There is no obligation, therefore, within the framework of the
least harmful measure, to stop at this level, and the legislature was entitled
to choose the blanket prohibition that it chose’ (para. 89 of his opinion). Let
us further point out already at this stage, by jumping ahead to some extent,
that when he discusses the third test of proportionality — the
benefit-damage test — my colleague reaches the conclusion that the violation
engendered by the blanket prohibition is greater than the benefit that it
causes; that the advantage that the law generates is significantly less than
the damage that it inflicts on the right of the citizen; and consequently, the
state ought to have adopted an arrangement of an individual check while
increasing its effectiveness in so far as possible (paras. 91-94 of his
opinion).
106. I
too am of the opinion that the Citizenship and Entry into Israel Law passes the
second test of proportionality, and I will add nothing to the remarks of my
colleague the president. The main disagreements between my colleague and me are
restricted to the third subtest of the test of proportionality — the test
of benefit as compared with damage — and we will now turn to this subtest.
The
third subtest — the value subtest — benefit versus damage
107. Before
we enter the arena to discuss and debate rights and duties, we would like to
make an introductory remark concerning nomenclature: there are three subtests
in the test of proportionality, and for reasons that I do not understand the
third subtest is called by the name of the test of proportionality ‘in the
narrow sense.’ This name is a mystery to me. The test of proportionality ‘in
the narrow sense’ is, in my opinion, actually the second subtest, since it is a
test whose beginning, middle and end all concern proportionality (see United
109. At
this point I will part from my colleague and take my own path. In my opinion,
an individual check of the persons included in those population groups who have
a proven potential for endangering security and life may reduce the violation
of the ability to have a family life in
110. We
have spoken at length about the armed conflict between
‘The
forces fighting the State of Israel are not members of a regular army and they
are not necessarily recognized as terror activists by the security forces; a
substantial part of the Palestinian civilian population of certain ages are
partners in the armed conflict, in one way or another. Because of this, and
as has also been explained in detail in the past, it is not possible to
predict the involvement in terror (whether it is clandestine involvement or
assistance or financial support) of a resident of the Palestinian Authority,
who is not recognized by the security establishment as a terror activist.
…
… The
involvement of persons that have Israeli documentation since the armed conflict
began, with regard to all the characteristics set out above, in aid to terror
organizations and in carrying out bloody attacks inside the State of Israel
indicates that many of those persons who, in the absence of concrete security
intelligence against them, were granted a status in Israel by the state within
the framework of applications for family reunifications, associated themselves
with the Palestinian cause at one stage or another, after they entered Israel,
and aided or committed murderous terror attacks.’
111. Against
the background of these facts — facts that constitute a basis for our
consideration and deliberation — the limitations of the individual check
arise as if with a will of their own, and we discover that the security
establishment has no real capacity to identify who are those residents of the
territories who are likely to endanger the security of the public in Israel.
Thus, for example, it is clear that the security services have difficulty in
collecting intelligence — whether favourable or unfavourable — about
residents of the territories who live in enemy territory. Moreover, terrorists
do their best to recruit residents of the territories who have Israeli
documentation, whether by means of ideological persuasion, whether by economic
means or whether by putting pressure on their family members who live in the
territories. Who therefore is so wise that he does not suspect that a resident of the
territories may become associated with a terror organization after
receiving Israeli documentation? It is clear that the security services are
unable to carry out a continuous and uninterrupted check of all the residents
of the territories who have received a permit to stay in
‘The
reasons that underlie the limitations of the individual check on the
part of the security establishment are as follows:
a. Intelligence gaps — in the
circumstances of time and place, obviously the security establishment has
intelligence gaps with regard to the activity of the residents of the territories,
especially those who live in areas A and B. In these circumstances, the fact
that there is no unfavourable security intelligence about a particular resident
does not indicate that this person is not involved in prohibited security
activity, and it cannot rule out the possibility that the lack of intelligence
is a result of intelligence gaps that exist today.
b. The risk to the security of the State of
Israel can be created and realized at any time, without prior warning, since
someone on behalf of whom an application for a family reunification in Israel
is submitted lives in a place where terror organizations operate without
hindrance, and so too do his family members and his close friends. The terror
organizations can therefore, without any difficulty and at any time, make
contact with a person who is requesting a status in
c. The risk comes from anyone who can enter
Israel permanently by means of Israeli documentation that makes it possible
also to stay in Israel overnight, and to move lawfully throughout the state —
since the general closure was tightened, and the difficulty in entering Israel
was increased, the terror organizations are seeking every possible way that
will help them carry out terror activities inside Israel.
The terror organizations regard the holders of Israeli
documentation and especially persons who have a strong connection to the
Palestinian Authority as an attractive and very important asset, from their
point of view, for aiding the terror organizations within the framework of the
armed struggle. This is because of the continued existence of a strong
connection with the close family and childhood friends in the territories,
the continuing identification with the Palestinian cause, the extensive
accessibility to the territories and to the State of Israel simultaneously,
and the ability to exert pressure through the close family which is left
in the territories to obtain the cooperation of the former resident of the
territories. It need not be said in this context that the professional
assessment of the security establishment is that in order to establish a
“separation barrier” or in other words a “barrier area” or a “border area,” as
well as constructing a “Jerusalem bypass road,” there may be serious future
implications, in this respect, since these will increase even more the
attractiveness of persons who receive the status in Israel for the various
terror organizations, because of the difficulty in crossing into Israel and/or
sending terrorists and weapons from the territories into Israel.
d. The past is no indication of the future — the fact that
someone was permitted in the past to enter Israel and/or that there is no
current concrete security intelligence about him, cannot, in itself, predict
that he does not present a future risk to national security, whether
because of his identification with the armed struggle being carried out today
by the Palestinian side, of which he is a part himself, or because of the fact
that he cannot withstand threats against him and his close family that live in
the territories that are made by the terror organizations.
Thus, for example, it is possible to bring examples from recent
months of participants in terror activity who were not regarded as persons
likely to become involved in terror activity… In
addition, from the viewpoint of the terror organizations, there is a
preference for using someone with regard to whom the terror organization thinks
that
112.
The concerns raised by the state in its arguments are not unfounded. As we said
in our remarks above, past experience has proved that residents of the
territories who received a permit to stay in Israel by virtue of family ties
have indeed associated themselves with terror organizations, and have made use
of the permits which allowed them to move freely from the territories to Israel
and within Israeli itself to carry out terror acts in Israel. In its arguments
before us, the state included figures of known cases, and it appears that at
least twenty-six residents of the territories — men and women, who receive
a permit to stay in Israel by virtue of family ties were involved in terror or
were known from intelligence sources to be involved in terror. The involvement
of these residents in terror began, or at least became known to the state, only
after those residents received the Israeli documentation (see para. 31
of the state’s response dated 7 February 2006):
‘Twenty-six
residents of the territories who received a status in
113. This
is the reality in which we live. Regrettably, it has been found that residents
of the territories who have a permit to stay in
114. Thus
we see that the damage to the security of
‘… The
professional assessment of the security establishment is that the temporary
provision is an effective tool for reducing the free passage of residents of
the territories between the areas controlled by the Authority and Israel, and
for preventing the potential for a serious security risk on the part of that
population.’
115. There
are some who claim that the blanket prohibition in the Citizenship and Entry
into Israel Law constitutes a collective injury to all the Arab population in
Israel because of the crimes of a few whose place of residence was in the past
within the territories and who today live in Israel. We agree, of course, that
a collective injury has a serious and injurious result, and a democracy ought
to refrain from adopting it. But I think that there are cases where we cannot
avoid it. Sometimes, the harm caused by a few persons is so evil and extreme
that it may justify collective restrictions; this is especially the case where
it is not possible to identify and locate those few who wish to cause harm, and
the harm that can be anticipated from those people is very serious and
dangerous. Indeed, the preventative measures required are commensurate with the
estimated harm. With regard to our case we will say that the cumulative harm
anticipated from terror attacks is very serious and destructive: people are
murdered, many others are injured and hurt and the feeling of stability which
is essential to the existence of a society in general and a democracy in
particular is undermined. It is to be regretted that these circumstances are
likely to make it necessary — in times of war like the present time —
to impose restrictions that are capable of harming some of the collective of
Arab Israeli citizens.
116. The
benefit of the Citizenship and Entry into Israel Law in its present format has
been clearly proved. The significant superiority of the blanket prohibition
over the individual check has also been proved. But together with the benefit
that the law engenders, there is the harm to those citizens of the state who
wish to bring to
‘The
assessment of the security establishment is that approximately 90% of those
involved in terror attacks are between the ages of 16 and 35, and also that
approximately 97% of the suicide bombers are of those ages. Twenty-two
residents of the territories who received a status in
It is
well known that minors are also involved in the armed conflict between the
Palestinians and the State of Israel. In recent years, more than 30 minors
between the ages of 12 and 15 were involved in terror attacks. Of these ten
minors were involved in suicide attacks. Nonetheless, it should be noted that 24
of the minors who were involved in terror attacks were between the ages of 14
and 15, seven of them between the ages of 13 and 14, and two of them were
between the ages of 12 and
117. The
effect of the prohibition in the law was therefore reduced to those population
groups who constitute, according to the assessment of the security
establishment, a relatively high potential for being security risks. Within
those population groups who have a high risk potential, it is impossible to
predict who will constitute and who will not constitute a risk to the state,
and for this reason a blanket prohibition was imposed on all the members of
those age groups mentioned in the law. At the same time, population groups that
do not usually present a risk to security were excluded from the prohibition,
subject to specific risks to national security (s. 3E of the law). This
reduction of the blanket prohibition — so we are told by the state —
is likely to reduce the scope of the population injured by the law by nearly 30
per cent, and as stated in the Citizenship and Entry into Israel (Temporary
Provision) Law (Amendment), 5765-2005 ((Hatzaot Hok (Draft Laws) 624),
at p. 625:
‘…
adding the proposed qualifications to the restrictions in the temporary
provision can restore approximately 28.5% of all the applications for family
reunifications of residents of the territories to the list of those
applications that can be processed…’
The
petitioners seek in their arguments to challenge this percentage presented by
the state, and to replace it with an amount of 12.3% of the applicants. This
percentage is deduced by the petitioners from general statistics concerning the
average marriage age in Moslem society. Without more substantiated figures, we
find it difficult to accept the position of the petitioners and prefer it to
the position of the state. Moreover, even if we accepted the position of the
petitioners with regard to the amount by which the harm caused by the law has
been reduced, we would still be unable to accept their claim that the harm
caused by the (amended) law is greater than its benefit.
118. We
should also address the fact that the Citizenship and Entry into Israel Law was
enacted in the format of a temporary provision whose validity was determined
for one year, and that it is possible to extend it, from time to time, for a
period that does not exceed a year each time. This temporary nature of the law
has importance. Our case law has established a rule that ‘a “permanent” law is
not the same as a “temporary” law when engaging in a constitutional scrutiny of
the law’ (Gaza Coast Local Council v. Knesset [6], at p. 553), and the
less we declare temporary laws void, the better. See and cf. Klal Insurance
Co. Ltd v. Minister of Finance [64], at p. 486; Ressler v. Knesset [128].
The reasons for this rule are pertinent in the case before us. Security reasons
are reasons that change from time to time, and determining that a law is a
temporary law means a reduction in the harm caused by it merely to the areas
where security reasons so demand. Moreover, this temporary nature of the law
requires the government and the Knesset to consider the provisions of the law
and the consequences of applying them on a frequent basis, and to continue to
balance from time to time the rights that have been violated against the
security needs of the state.
119. The changes made in the amendment law of 5765-2005
significantly reduced the harm to the right of Israeli citizens, but my
colleague President Barak is of the opinion that ‘… these amendments — as
well as the temporary nature of the law — do not change the lack of
proportionality to a significant degree’ (para. 92 of his opinion). The reason
for this is that ‘… the vast majority of the Israeli spouses who married
spouses from the territories continue to be injured even after the amendments
that were recently made’ (ibid.). My opinion is different. When striking
a balance as required by the third subtest in the test of
proportionality — a balance between the benefit and the damage — we
are required to examine, first and foremost, whether the legislature struck a
reasonable balance between the needs of the individuals in the whole public and
the harm to the individual. In other words, is the balance struck by the law
between the conflicting interests such an improper balance that it calls upon
the court to intervene in an act of legislation?
Here — like in the second subtest — the legislature has room
to manoeuvre, which can be called a ‘margin of proportionality’ or a ‘margin of
legislative manoeuvre,’ in which it may ‘choose, at its discretion, between a
(proper) purpose and (proportionate) measures’ (Gaza Coast Local Council v.
Knesset [6], at p. 551). Moreover, ‘the court will intervene only when the
measure chosen significantly deviates from the boundaries of the margin, and it
is clearly disproportionate’ (Menahem
v. Minister of Transport
[11], at p. 280). ‘We should also remember that the court will not rush to
intervene and declare void a provision of statute enacted by the legislature.
Even if we find that there is a preferable solution to the one chosen by the
legislature, the court will not intervene unless the legislature deviated from the margin of proportionality’ (HCJ 4915/00 Communications
and Productions Network Co. (1992) Ltd v. Government of Israel [142], at p.
466). The court does not replace the discretion of the legislator with its own
discretion, and it does not become involved in the choice and examination of
measures that were unacceptable to the legislature. The role of the court is to
identity the boundaries of the scope of operation given to the
legislature — under the constitution or the Basic Laws — and to
examine whether a measure chosen by the legislature falls within this margin.
In determining the boundaries of that scope of operation given to the
legislature, the court will examine the strength of the conflicting rights and
interests — rights and interests that give life to the law, on the one
hand, and rights that are violated by the law, on the other — and also the
circumstances and interests that are involved in the case under review. As it
has been said: ‘In applying the principle of proportionality we should
remember… [therefore] that the degree of strictness with the authority will be
commensurate with the strength of the violated right or the strength of the
violation of the right’ (Stamka v. Minister of Interior [24], at p.
777). See further HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v.
Minister of Labour and Social Affairs [143], at p. 452; Israel Investment Managers Association v.
Minister of Finance [8],
at pp. 387-389; Tishim Kadurim Restaurant, Members’ Club v.
121. Moreover,
we should remember that we are not speaking of a violation of the essence of
the right to marry and to have family life. The citizens of the state may marry
residents of the territories as they see fit. No one has deprived them of that
right. No one has even deprived them of living together with their family
members and children. The right to marry and have a family life in the narrow
and main sense has not been violated, and a person who wishes to live with his
wife and children can do so. But at this time — a time of war — for reasons
of public security, the realization of the right inside the State of Israel has
been restricted. The spouses can realize their right to marry and establish a
family in a place that does not present any danger to the residents and
citizens of
122. The right of some of
the citizens of the state to realize their right to marriage and family life in
123. It
will not be redundant if we mention and emphasize that the Citizenship and
Entry into Israel Law — both in its original version and after it was
amended — contains transition provisions that were intended to treat with
some leniency those residents of the territories who began the process of
obtaining a status in Israel before the law was enacted and before decision no.
1813 (of 12 May 2002) that preceded the law was made by the government. In the
language of s. 4 of the law (as it is today):
‘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. |
These transition provisions
are capable of reducing the harm caused by the law to some Israeli citizens who
married residents of the territories before the government decision, in
reliance on the policy that preceded it. Thus, for example, an Israeli citizen
whose spouse, a resident of the territories, was given a status in
In its response of 7 February
2006, the state told us that at the time of the government’s decision (of 15
May 2003) there were 16,007 applications to receive a status in
124. My opinion is
therefore that the law satisfies the proportionality test in the value sense,
just as it satisfies the other two proportionality tests.
Summary
125. The end result is
therefore that the Citizenship and Entry into Israel Law is a law that does not
contain a defect or flaw, and it follows from this that the petitions should be
denied.
Provision for humanitarian
cases
126. Notwithstanding the
remarks we made above, we would like to add that we were disturbed by the
absence of a provision designed for special humanitarian cases. In other words,
the law lacks a provision for exceptions where the Minister of the Interior
will be allowed — if he finds there is a special humanitarian need and
when any suspicion of a security risk has been allayed — to consider
granting a permit for a resident of the territories to enter
Conclusion
127. My opinion is therefore
that the petitions should be denied.
Postscript
128. I have studied
carefully the response of my colleague President Barak to my opinion, and I
certainly will not surprise anyone by saying that my opinion remains unchanged.
In his main opinion my colleague explained his position well, and even if he
has now honed and polished various aspects — important aspects — of
his outlook, a little here and a little there, the main points remain
unchanged. The same is true of the main points on which I built my opinion.
129. The disagreements
between my colleague the president and me revolve around the following issues:
does an Israeli citizen have a constitutional right — a right deriving
from the Basic Law: Human Dignity and
130. The main theoretical
disagreements between my colleague and myself concern the scope of application
of the concept of human dignity in the Basic Law: Human Dignity and
‘I do not hold that basic rights should be extended in every direction. I
hold that they should be given a purposive interpretation. This interpretation
is neither a restrictive nor an expansive one. It is an interpretation that
reflects the way in which Israeli society understands the nature of human
rights, according to their constitutional structure and according to the
constitutional principles provided in the Basic Law, all of which while taking
into account values and essentials, and rejecting what is temporary and fleeting…’
But I will stand up and ask: what
is the source of my colleague’s knowledge that the ‘understanding of Israeli
society’ is that the Israeli spouse has a constitutional right — and note,
a constitutional right, not merely a legal right — to have a family
life in Israel with a spouse who is not Israeli, i.e., that it is a constitutional
right for Israeli citizens to bring with them spouses from foreign countries
and have them settle with them in Israel? You may say that my colleague thinks
that this ought to be the case, and since nothing is stated to the
contrary, what ought to be is also what is. But I say that fundamental
principles, universal principles that are common to all peoples of the world,
together with principles that are characteristic of Israel and distinguish it
from all other peoples, are capable of determining boundaries also for the
right of the individual to have a family life in Israel with a foreign spouse,
at least in so far as a constitutional right is concerned. In our time
and place, I think that it is proper that this question should be decided,
according to the principles of law and the principles of the constitution, by
the body that is competent to give
131. With regard to the risks that led
the Knesset to enact the Citizenship and Entry into Israel Law: even if we
said — and we do say — that the existence of democracy and protecting
human rights involve risks, I do not agree, and it is not in my opinion
reasonable that I should be asked to agree, that we should take upon ourselves
risks to life of such magnitude and with such significant chances of their
materialization as in our case. Whoever destroys one life is regarded as if he
has destroyed a whole world, and we know that many lives have been lost as a
result of risks that the state took upon itself prior to the enactment of the
Citizenship and Entry into Israel Law.
My colleague says (in para.
111 of his opinion):
‘A society that wishes to
protect its democratic values and that wishes to have a democratic system of
government even in times of terror and war cannot prefer the right to life in
every case where it conflicts with the preservation of human rights. A
democratic society is required to carry out the complex work of balancing
between the conflicting values. This balance, by its very nature, includes
elements of risk and elements of probability…’
With regard to these remarks
of my colleague I would like to say the following: I agree that a democratic
society is required to make balances and to consider risks and the
probabilities that risks will materialize. But this is exactly what happened in
our case, when the Knesset — the legislature — was required to carry
out the complex task of balancing between the conflicting values, a balance
which took into account risk factors and probability factors, which in the
opinion of the security establishment are not at all negligible. The
Knesset — the legislature of the State of Israel — therefore struck a
balance, as it is authorized to do, between the right to life and other rights,
and after it examined risks and probabilities, it reached the formula set out
in the law and determined who would be allowed to enter Israel, notwithstanding
the risk and probability that residents of the state would be harmed, and who
would be prevented from coming into Israel because the probability that he
would harm residents was too high. This is what the Knesset decided, and I do
not think that we ought to overturn its decision.
Moreover, the ‘right to life’
is so exalted that in the task of balancing and considering risks it has a very
great weight. This is certainly the case where the lives of many are at risk,
and the harm to life can undermine the feeling of stability and security in
132. With regard to fixing a
minimum age of 35 for a man and 25 for a woman in order to grant a permit to
enter
‘Indeed, if an individual
check is proper, from the viewpoint of the risks that should be taken in our
defensive democracy, when the husband reaches 35 and the wife reaches 25, why
does it become improper, from the viewpoint of the risks, when they have not
yet reached these ages?’
And further on:
‘…were we to place before us
human life only, we would be obliged to reach the conclusion that whatever the
age of the foreign spouses, a blanket prohibition should be applied to them; we
would also be liable to determine that family reunifications should not be
allowed, irrespective of the question of when the application was filed; we
would also be liable to determine that workers should not be allowed at all to
enter from the territories. But this is not what the Citizenship and Entry into
Israel Law provides. If the state was prepared to take the risks to human life
which its policy — that refrains from a blanket prohibition and is
satisfied with an individual check — causes with regard to spouses over
the ages of 35 and 25, and if the state was prepared to take the risks of
giving entry permits to spouses who filed their application before the
effective date, and if the state was prepared to take the risks in allowing
workers from the territories to enter Israel and is satisfied with an
individual check, it is a sign that the risk presented by being satisfied with
an individual check is not so large that it can justify the serious violation
to the family life of the Israeli spouses.’
I dispute this line of argument,
since it is always possible to improve the proportionality of the violation
with the argument that determining sweeping boundaries makes the violation of
the right too broad. Thus, for example, we could ask, in the manner of my
colleague: if the state is prepared to take upon itself risks to life by
allowing driving at a speed of
133. Meanwhile I have received
the opinions of my colleagues Justice Procaccia and Justice Joubran, and I
would like to devote a few remarks to these opinions.
134. My colleagues, each
in his own way and style, hint in their opinions that it is possible that the
purpose of the law was not a security one, or at least was not only a security
one; that at the time of enacting the law, it is possible that the legislature
also considered the purpose of demography (see para. 14 of the opinion of
Justice Procaccia and para. 24 of the opinion of Justice Joubran). My colleague
Justice Joubran does not draw any conclusion from these remarks, whereas my
colleague Justice Procaccia is of the opinion that ‘even if there is nothing
[in the demographic consideration] to reduce the credibility of the security
consideration, it is possible that it reflects to some extent on its weight and
strength.’
135. This
position of my colleagues was rejected utterly in the opinion of my colleague
the president and in my opinion, and even now I have difficulty accepting the
position of my colleagues. The draft law, the provisions of the law, the
amendments to the law, and in addition to all of these — the arguments of
the state before us, all of these point to the fact that the purpose of the
laws is a security purpose. The remarks uttered in the Knesset at the time of
the enactment of the law cannot change this purpose. Moreover, the demographic
issue was not considered at all by us and we were in any event not required to
decide it. For what reason, therefore, do my colleagues mention this matter in
their opinion? What reason was there for my colleagues to consider the matter
in a non-committal way and cast a shadow on our deliberations? And if we did
not hear full argument on the question of the demographic factor, how can we
know what was the weight of this consideration among all the considerations?
Indeed, if one day the Knesset enacts an immigration law which has as one of
its purposes the preservation of the Jewish majority in the State of Israel, it
is possible that the court will be required to consider in depth the
demographic factor. And the court will consider the matter and decide it. But
that is not the position in this case, since we were not requested to consider
that issue.
136. Moreover, my
colleague Justice Procaccia discusses at length the ruling of the
Justice D.
Beinisch
1. The decision in the petitions before us is
one of the most difficult decisions that have been brought before us in recent
years. In their extensive opinions, my colleagues
2. I will say already at the beginning that
with regard to the method of the constitutional scrutiny of the law, I do not
see any route other than the one outlined and detailed by President Barak in
his opinion, with all the stages of this route. In order to clarify my opinion,
I will tread again the path of the legal progression as briefly as possible. In
the first stage of the constitutional scrutiny, the existence of the right to
family life is examined from the viewpoint of the Basic Law: Human Dignity and
My conclusion
with regard to the outcome that is implied by following this path is that the
law, in its present format, with its all-embracing and comprehensive scope,
cannot stand because of the disproportionate violation therein of the right to
family life and because of the violation of the right to equality.
In reaching
the aforesaid legal conclusion, we have not ignored the difficult struggle of
the State of Israel against terror that knows no bounds. As judges and as
citizens of the state, we live in the very heart of the reality and the
difficult experience of terror, and we do not close our eyes to this reality,
even for a moment. We wish to protect the democratic values of the State of
Israel in the light of the reality with which the state is contending, not by
ignoring it.
3. In the petitions before us, we are required
to examine whether the Citizenship and Entry into Israel Law unlawfully
violates the right of Israeli citizens who wish to have a family life with a
foreign spouse who is a resident of the territories. It should first be said
that I agree with the premise of
4. In view of the security purpose of the law,
it would appear that once again this court is required to consider what is the
proper point of balance between the clear security interest of protecting the
lives of Israeli citizens and residents and the protection of human rights. An
examination of the proper balance between these two poles is a difficult task
to which this court has become accustomed throughout the years of its
existence. Since the founding of the state, the organs of state and the
government have been faced with the need to protect the security of the state
and its citizens, a need which sometimes requires a violation of basic human
rights in order to provide security and the protection of life. For years our
case law has contended with the conflict between these two poles and dealt with
it successfully. This tension has increased in recent years for reasons arising
from the difficult security position, on the one hand, and from reasons based
on the enshrining of basic human rights as constitutional super-legislative
rights, on the other. But the strength of the tension cannot exempt us from the
need to exercise our judicial review and examine the constitutionality of the
law even when the factual position is complex.
Indeed, since
September 2000
5. As stated, an additional difficulty when
making our decision derives from the fact that the basic rights are today
enshrined in the Basic Law: Human Dignity and
6. The disagreement between my colleagues
concerns, first and foremost, the fundamental question whether the provisions
of the Citizenship and Entry into Israel Law violate a protected basic right.
As stated, only a determination that this is the case will lead us to proceed
along the path of constitutional scrutiny of the law, in accordance with the
limitations clause.
It seems to
me that there is no real disagreement as to the actual existence of the right
to have a family life in its main and limited sense of the basic right of a
person to choose his partner in life and realize the existence of the family
unit. The question is, of course, whether this right is derived from the right
to human dignity. In this respect, we have already adopted in the past the
position that the right to marry and have a family life is a basic right of the
Israeli citizen which is derived from the right to dignity. Since President
Barak set out in his opinion a summary of this position, I would like, merely
as a reminder, to refer to Stamka v. Minister of Interior [24] and the remarks made there by
As we see
from the president’s opinion, and from the position of our case law until now,
even if not all aspects of the right to family are included within the
framework of human dignity, the right to realize the autonomy of free will by
establishing a family unit in accordance with individual choice and realizing
it by living together is derived from human dignity and shared by every Israeli
citizen. Thus I accept that the right of an Israeli spouse to establish a
family unit is implied also by the implementation of the principle of equality
between him and other Israeli couples with regard to whom we have determined in
the past that the protection of their right to a family unit is derived from
their right to human dignity.
7. The basic human right to chose a spouse and
to establish a family unit with that spouse in our country is a part of his
dignity and the essence of his personality, and this right is seriously
violated in the provisions of the Citizenship and Entry into Israel Law. The
blanket prohibition denies Arab Israeli citizens their right to have a family
life in
8. It is self-evident that even when we have
said that the basic right of Arab citizens of the State of Israel has been
violated, by preventing the entry into
Indeed, none
of us disputes the proper purpose of the law. There is also no doubt that the
State of Israel is compelled to take harmful measures in order to protect the
lives of its residents against the cruel and unrestrained terror with which it
is contending. Similarly, there is without doubt a rational connection between
preventing the entry of Palestinians who are residents of the territories into
9. The protection of life is, of course, the
protection of the most important basic human right. This supreme value gives
rise to the important status of the security interest, which we are charged
with giving its full weight. This has been the case in the Israeli reality
throughout all the years of the state’s existence and this is certainly the
case in a time of a war against terror. Regrettably, it appears that the
conflict between the value of security and the extent of the violation of human
rights in order to maintain security will be with us for many years to come. It
is precisely for this reason that we must be careful to balance violations of
rights against security needs properly and proportionately. A system of
government that is based on democratic values cannot allow itself to adopt
measures that will give the citizens of the state absolute security. A reality
of absolute security does not exist in
10. The
Citizenship and Entry into Israel Law itself provides a framework of taking
risks and it is right that it should do so. Taking such a risk exists for
example in s.
11. During
the hearing of the petitions, we were given detailed figures that show the
existence of a potential risk in giving a possibility to residents of the
territories to receive a status in
12. Our
life in
Every day the
citizens of
We do not
know whether the government intends to propose an extension of the law to the
legislature. It is clear that should there be new legislation, it should
contain a proper balance between the security need and the extent of the
permitted violation of the right to have a family life. Within the framework of
my opinion, I do not see fit to propose criteria that the legislature should
adopt in order to make the new law constitutional. I should also add that I too
agree that should the government require a limited period of time, which should
not exceed six months, in order to prepare for new legislation in the spirit of
our judgment, it will be given a possibility of a limited and single extension
of the existing law, which will be like a period of suspension for the law that
we have declared to be void.
Justice S.
Joubran
I agree with
the opinion of my colleague
The right to family life
1. It is the nature of man, literally the
nature of his creation, to seek for himself a partner with whom he will live
his life and with whom he will establish his family. This has been the case
throughout the ages and this is the case today, notwithstanding many changes
that have occurred to human customs and the human family. Both in the past and
also today it can be said that ‘it is not good for man to be alone’ (Genesis 2,
18 [245]), and we recognize the strong desire of man to find a ‘help mate’, so
that their fate may be joined.
2. So much has been written about the search
of man for his ‘help mate,’ the meaning of the relationship between him and the
object of his love, that it may well seem that most of human creativity is
devoted to the study of this relationship. It would appear that the remarks of
the ancient comic dramatist Aristophanes concerning this relationship, which
are quoted by Plato, are apposite:
φίλοι
γὰρ
γενόμενοι
καὶ
διαλλαγέντες
τῷ θεῷ
ἐξευρήσομέν
τε καὶ
ἐντευξόμεθα
τοῖς παιδικοῖς
τοῖς
ἡμετέροις
αὐτῶν, ὁ τῶν
νῦν ὀλίγοι
ποιοῦσι… λέγω
δὲ οὖν ἐγωγε
καθ’ ἁπάντων
καὶ ἀνδρῶν
καὶ γυναικῶν,
ὅτι οὗτως ἂν
ἡμῶν τὸ
γένος
εὔδαιμον
γένοιτο, εἰ
ἐκτελέσαιμεν
τὸν ἔρωτα
καὶ τῶν
παιδικῶν τῶν
αὑτοῦ ἕκαστος
τύχοι εἰς
τὴν ἀρχαίαν
ἀπελθὼν
φύσιν. εἰ δὲ τοῦτο
ἀριστον, ἀναγκαῖον
καὶ τῶν νῦν
παρόντων τὸ
τούτου ἐγγυτάτω
ἀριστον εἶναι:
τοῦτο δ’ ἐστὶ
παιδικῶν τυχεῖν
κατὰ νοῦν
αὐτῷ
πεφυκότων.
‘For if we become friends of the god
and are reconciled with him, we shall find and discover our own true beloveds,
which few do at present… I am speaking of everyone, both men and women, when I
say that our race will be happy, if we achieve love and each our own beloved,
thus returning to our original nature. If this is best, the next best is to be
as close to it as present circumstances allow: and that is to find a congenial
object of our love’ (Plato, Symposium, 193b-193d, translated by the
editor).
3. In searching for a spouse, in living
together with him, in creating a family, a person realizes himself, shapes his
identity, builds a haven and a shield against the world. It would appear that
especially in our turbulent and complex world, there are few choices in which a
person realizes his free will as much as a the choice of the person with whom
he will share his life.
4. This nature of man is reflected in the
world of law, in the form of establishing the human right to have a family life
as a basic right, which is protected against violation. Thus, the Universal
Declaration of Human Rights, 1948, declares the family to be the basic unit of
society and speaks of the need to protect it:
‘Article 16.
(1) Men and women of full age, without any limitation
due to race, nationality or religion, have the right to marry and to found a
family. They are entitled to equal rights as to marriage, during marriage and
at its dissolution.
(2) ….
(3) The family is the natural and fundamental group
unit of society and is entitled to protection by society and the State.’
(Universal Declaration of Human Rights, 1948)
Following on
from this declaration, the European Convention for the
Protection of Human Rights and Fundamental Freedoms, 1950, provides as follows:
(1) Everyone has the right to respect for his private
and family life, his home and his correspondence.
(2) There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.’
(European Convention for the Protection of Human
Rights and Fundamental Freedoms, 1950)
Similarly,
the International Covenant on Economic, Social and Cultural Rights, 1966, which
‘Article 10.
The States Parties to the present Covenant recognize that:
1.
The widest possible protection and assistance should be accorded to the family,
which is the natural and fundamental group unit of society, particularly for
its establishment and while it is responsible for the care and education of
dependent children…
(International Covenant on Economic, Social and
Cultural Rights, 1966)
Thus the
countries that are parties to the Convention on the Rights of the Child, 1989,
including
‘Convinced that the family, as the fundamental group of
society and the natural environment for the growth and well-being of all its
members and particularly children, should be afforded the necessary protection
and assistance so that it can fully assume its responsibilities within the
community…’
(Convention on the Rights of the Child, 1989).
Similarly,
the International Covenant on Civil and Political Rights, 1966, to which
‘Article 23.
1. The family
is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
2. The right
of men and women of marriageable age to marry and to found a family shall be
recognized.
…’
(International
Covenant on Civil and Political Rights, 1966).
5. We can also
learn about
the human right to have a family life from the law of other countries, which
have recognized the duty of the state to refrain from intervening and harming a
person’s family life. Thus, for example, the
‘The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly pursuit of happiness by
free men. Marriage is one of the “basic civil rights of
man,” fundamental to our very existence and survival. Skinner v.
So too the
Court of Appeal in England has said, with regard to a delay in the right of a
person under arrest to marry someone who was supposed to be a witness in his
trial, that:
‘The right to marry has always been a right recognised
by the laws of this country long before the Human Rights Act 1998 came into
force. The right of course is also enshrined in art. 12 of the convention’ (R
(on the application of the Crown Prosecution Service) v. Registrar General of
Births, Deaths and Marriages [226]).
6. The right to family life is a right that has
also been recognized in Israeli law as one of the basic human rights, which the
organs of state must refrain from violating without a proper reason. Thus, in a
large number of cases, this court has addressed the need to preserve family
autonomy and refrain, in so far as possible, from intervening in it. Thus, with
regard to the relationship between parents and their children, it was held in
CA 232/85 A v. Attorney-General [58], at p. 17, that ‘in the
eyes of the court, the basic unit is the natural family’ (and see also CA
7155/96 A v.
Attorney-General [50], at p. 175); likewise, with regard to the right to marry and to
have a family, my colleague
‘Our case, we
should remember, concerns a basic right of the individual — every
individual — to marry and establish a family. We need not mention that
this right has been recognized in international conventions that are accepted
by everyone; see art. 16(1) of the Universal Declaration of Human
Rights, 1948; art. 23(2) of the International Covenant on Civil and Political Rights,
1966. For more concerning the right, see A. Rubinstein, ‘The Right to Marry,’ 3
7. It would appear that in our time there are
few choices in which a person realizes his free will as much as his choice of
the person with whom he will share his life, establish his family and raise his
children. In choosing a spouse, in entering into a bond of marriage with that
spouse, a person expresses his personality and realizes one of the main
elements of his personal autonomy. In establishing his family, a person shapes
the way in which he lives his life and builds his private world. Therefore, in
protecting the right to family life, the law protects the most basic freedom of
the citizen to live his life as an autonomous person, who is free to make his
choices.
In a similar
spirit, the
‘When a city undertakes such intrusive regulation of
the family… the usual judicial deference to the legislature is inappropriate.
“This Court has long recognized that freedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process
Clause of the Fourteenth Amendment.”
Likewise, the
European Court of Human Rights has held, with regard to the application of art.
8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950,
that:
‘…the Court considers that the decision-making process
concerning both the question of the applicant’s expulsion and the question of
access did not afford the requisite protection of the applicant’s interests as
safeguarded by Article 8. The interference with the applicant’s right under
this provision was, therefore, not necessary in a democratic society’ (Ciliz
v. Netherlands [232]).
And in the
same respect, the Court of Appeals in
‘There is no evidence that the trust ever recognised,
much less addressed, the interference with the appellant’s art 8 rights. In
none of the documents generated by the trust's consideration of her case can
any reference to art 8 be found. Mr Toner claims that what the trust officers
were embarked upon in considering Mrs Connor’s case was “in essence” an art 8
exercise. We cannot accept that argument. The consideration of whether an
interference with a convention right can be justified involves quite a
different approach from an assessment at large of what is best for the person
affected.’ (Re Connor, an Application for
Judicial Review [227]).
8. Accordingly, any violation of the right of a person to family
life is a violation of his liberty and dignity as a human being, rights that
are enshrined in the Basic Law: Human Dignity and
9. Living together under one roof lies at the
heart of the constitutional right to family life and marriage. In extensive and
consistent case law, not only has this court regarded living together as a
central component of family life and marriage, but it has even gone so far as
to equate living together with having a conjugal relationship, so that it has
held that by realizing the decision to have a relationship of living together,
the couple create a bond of ‘recognized partners,’ which even without the
formal act of marriage is often capable of serving as an equivalent of the
marriage bond itself. As this court said in State of Israel v.
Oren [25]:
‘According to
case law, the two main components requiring proof in order for persons to be
considered recognized partners are living together as man and wife and having a
joint household:
“There are
two elements here: a conjugal life as man and wife and having a joint
household. The first element is made up of intimacy like between a husband and
a wife, founded on the same relationship of affection and love, devotion and
loyalty, which shows that they have joined their fates together…
The second
element is having a joint household. Not merely a joint household for reasons
of personal need, convenience, financial viability or an objective arrangement,
but a natural consequence of the joint family life, as is the custom and
accepted practice between a husband and wife who cling to one another with a
joining of fates…” (CA 621/69 Nissim v. Euster [145], at p. 619). See also CA 79/83 Attorney-General v. Shukran [146], at p.
693; CA 6434/00 Danino v.
Mena [147], at p.
691).
It should be
noted that these remarks were made with regard to the interpretation of the
provision in s. 55 of the Inheritance Law, 5725-1965, which does not make use
of the concept of “recognized partners,” but addresses the inheritance rights
of partners “who live a family life in a joint household but are not married to
one another,” but the court made it clear in Nissim v. Euster that there is no practical
difference between this definition and the accepted concept of “recognized
partners” (ibid., at p.
621).’
This approach
concerning the centrality of living together as a part of family life can also
be seen in comparative law. Thus, for example, the Constitutional Court of
South Africa has said that:
‘A central aspect of marriage is cohabitation, the
right (and duty) to live together, and legislation that significantly impairs
the ability of spouses to honor that obligation would also constitute a
limitation of the right to dignity.’ (Dawood v. The Minister of Home Affairs
[242]).
And similarly
the
‘Of course, the family is not beyond regulation. See Prince
v. Massachusetts, supra, 321
10. Thus
we see that living together is not merely a characteristic that lies on the
periphery of the right to family life but one of the most significant elements
of this right, if not the most significant. Consequently, the violation of a
person’s ability to live together with his spouse is in fact a violation of the
essence of family life; depriving a person of his ability to have a family life
in
The
rights of the child and his parents
‘It is the
law of nature that a child grows up in the home of his father and mother: they
are the ones who will love him, give him food and drink, educate him and
support him until he grows up and becomes a man. This is the right of a father
and mother, and this is the right of
the child’ (CA 3798/94 A v. B [148], at p. 154 {268}; see also CFH 7015/94 Attorney-General v. A [23], at p. 65).
According to
this principle, the raising of a child by his parents reflects simultaneously
both the right of the child to grow up in his parents’ home and the right of
the parents to be the persons who raise him. This combination of interests
embodies the nature of the parent-child relationship within the framework of
family life, which the state should protect against any violation, unless it is
required in the best interests of the child. As my colleague
‘Removing a
child from the custody of his parent and transferring him to the welfare
authorities or to an institution by its very nature touches on an issue of a
constitutional nature that concerns the value of protecting the personal and
family autonomy of the child and his parent and the important social value of
preserving the natural family bond between parents and children and the complex
fabric of rights and duties arising from that parental bond. It concerns the
natural right of a child to be in his parents’ custody, to grow up and be
educated by them; it concerns the basic rights of a human being to life,
dignity, equality, expression and privacy (Universal
Declaration of Human Rights, 1948; Convention on the Rights of the
Child; CA 6106/92 A v.
Attorney-General [149], at p. 836; CFH 7015/94 Attorney-General v. A [23], at p. 100). It concerns the
unique rights of children by virtue of the fact that they are children,
including the right to grow up in a family and to preserve the connection with
their parents (The Commission for Examining Basic Principles concerning the
Child and the Law and their Application in Legislation, chaired by Justice
Saviona Rotlevy, 2004, ‘General Part,’ at p. 26); it concerns the right of a
parent by virtue of his blood relationship to raise and educate his child, as well
as to carry out his duties to him by virtue of his being the child’s parent.
The rights of children to a connection with their parents, and the rights and
duties of parents to their children create a reciprocal set of rights, duties
and values that make up the autonomy of the family.’
‘In all
actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration.’
Article 9(1)
of the Convention on the Rights of the Child further provides that:
‘States
Parties shall ensure that a child shall not be separated from his or her
parents against their will, except when competent authorities subject to
judicial review determine, in accordance with applicable law and procedures,
that such separation is necessary for the best interests of the child…’
No one
disputes that enforcing a separation of a child from his parents constitutes a
very serious violation of the rights of the child to grow up with his family
and with his parents. This is of course the case as long as the family
concerned is a functioning one, where the child is not harmed by being with it.
It is perhaps apposite to add remarks made by this court in CFH 7015/94 Attorney-General v. A [23], at p. 102:
‘It is the
law of nature that a child should be in the custody of his parents, grow up in
his parents’ home, love them and have his needs taken care of by them. This law
of nature is also absorbed by the law of the state, and thus an “interest” of
children has become a “right” under the law. Parents have a right to raise
their children and children have a right to be loved by their parents and to
have their needs provided for by them. A right corresponding to a right and
rights corresponding to duties (for both parties). The translation of these
into the language of the law will be formulated, inter alia, by way of presumptions: it
is a presumption under the law that the “best interests” of a child to be in
his parents’ home; who can love their children and care for their needs like
parents? Thus children will return their love and place their reliance on their
parents.’
We are not
speaking merely of harm to the ‘best interests of the child,’ but of a
violation of a real ‘right,’ which is possessed by the child, to grow up with
his family, and the state has a duty to refrain in its actions from violating
this right (CA 2266/93 A. v. B [61], at pp. 234-235). By tearing asunder the family unit,
by separating the child from one of his parents, there is a serious violation
of the rights of the child, a violation that the state is obliged to avoid in
so far as possible.
13. The same is true with regard to the right of the
parent, who has a natural right, protected by the law, to raise his child with
him and not to be separated from him, as long as this does not involve any harm
to the best interests of the child. As my colleague
‘It is the
law of nature that a mother and father naturally have custody of their child,
raise him, love him and provide for his needs until he grows up and becomes a
man. This is the instinct for existence and survival inside us — “the
blood ties,” the primeval yearning of a mother for her child — and it is shared
by man, beast and fowl. “Even jackals offer a breast and feed their young…”
(Lamentations 4, 3) (see also CA 549/75 A v. Attorney-General [150], at pp. 462-463). This
tie is stronger than any other, and it goes beyond society, religion and state.
The conditions of place and time — they and the persons involved — will determine
the timing of the separation of children from their parents, but the starting
position remains as it was. 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 found this ready made; it proposes to protect an innate
instinct within us, and it turns an “interest” of parents into a “right” under
the law — the rights of parents to have custody of their children. Cf. CA
1212/91 LIBI The Fund
for Strengthening Israel’s Defence v. Binstock [151], at p. 723 {390}. It is
apt that s. 14 of the Capacity and Guardianship Law provided that “The parents
are the natural guardians of their minor children.” Nature is what created this
guardianship, whereas the law of the state merely followed nature and absorbed
into itself the law of nature.’
14. There
is no doubt that separating a parent from his child, separating a child from
one of his parents and splitting the family unit involve very serious
violations of both the rights of the parents and the rights of their children.
These violations are contrary to the basic principles of Israeli law and are
inconsistent with the principles of protecting the dignity of parents and
children as human beings, to which the State of Israel is committed as a
society in the family of civilized peoples.
15. Therefore
we must say that preventing the possibility of living together, as a family,
violates the constitutional right of the Israeli spouse, parent and child to
family life.
The right to equality
16. These
serious violations of the right to family life do not stand alone, but are also
accompanied by a serious violation of the right of the Arab citizens of the
state to equality, since they are the main, if not the only, victims of this
law. Between the Arab citizens of
17. The
importance of the right to equality, as expressing a basic principles in the
Israeli legal system, has been recognized in a whole host of cases by this
court. The remarks made recently by my colleague
‘The
principle of equality applies to all spheres of government activity.
Notwithstanding, it is of special importance with regard to the duty of the
government to treat the Jewish citizens of the state and non-Jewish citizens
equally. This duty of equality for all the citizens of the State of Israel,
whether Arab or Jewish, is one of the foundations that make the State of Israel
a Jewish and democratic state. As I have said elsewhere: “We do not accept the approach that the values of the
State of Israel as a Jewish state justify… discrimination by the state between
the citizens of the state… The values of the State of Israel as a Jewish and
democratic state do not imply at all that the state should act in a manner that
discriminates between its citizens. Jews and non-Jews are citizens with equal
rights and obligations in the State of Israel” (see Kadan v. Israel Land
Administration [38], at pp. 280-281). Moreover, “Not only do the values of the State of Israel as a Jewish
state not require discrimination on the basis of religion and race in Israel,
but these values themselves prohibit discrimination and require equality
between religions and races” (ibid. [38], at p. 281). I added that “the State of Israel is a Jewish state
in which there are minorities, including the Arab minority. Each member of the
minorities that live in Israel enjoys complete equality of rights” (ibid. [38], at p. 282; see also
EDA 11280/02 Central
Elections Committee for the Sixteenth Knesset v. Tibi [152], at p. 23)’
(See also El-Al Israel Airlines Ltd v.
Danielowitz [65]; Israel
Women’s Network v. Government of Israel [66]; Miller v. Minister of Defence [67]; Adalah Legal Centre for Arab
Minority Rights in Israel v. Minister of Religious Affairs [39]).
I will also
add the remarks that I made in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime
Minister of Israel [41]:
‘… equality,
more than any other value, is the common denominator, if not the basis, for all
the basic human rights and for all the other values lying at the heart of
democracy. Indeed, genuine equality, since it also applies to relations between
the individual and the government, is one of the cornerstones of democracy,
including the rule of law. It is essential not only for formal democracy, one
of whose principles is ‘one man one vote,’ but also for substantive democracy,
which seeks to benefit human beings as human beings. It is a central component
not only of the formal rule of law, which means equality under the law, but
also of the substantive rule of law, which demands that the law itself will further
the basic values of a civilized state.’
18. The
violation of the right to equality does not occur merely when the discretion of
the authority is tainted with improper discriminatory considerations. We are
speaking of a right that looks to the outcome, and it is violated whenever an
executive act leads to a reality that discriminates between one citizen and
another on a prohibited basis (see Israel
Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; Adalah Legal Centre for Arab
Minority Rights in Israel v. Minister of Religious Affairs [39], at p.
176; Poraz v. Mayor of
Tel-Aviv-Jaffa [32], at p. 334; Nof v. Ministry of Defence [54], at pp. 464-465 {19-20{).
In our case,
the substantial outcome of the law, in practice, distinguishes between some
Israeli citizens and other Israeli citizens on the basis of their ethnic
origin. The position that is created by the law is a position in which the
right of the Arab citizens of
The significance of the
violation of the rights
19. Now
that we have determined that the implementation of the law involves a serious
and extreme violation of the constitutional rights of the citizens of the state
to family life and equality, rights that are protected by the Basic Law: Human
Dignity and Liberty, this law should be confronted with the tests of the
‘limitations clause,’ which is in s. 8 of the Basic Law: Human Dignity and
Liberty, according to which ‘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.’
According to these tests it must be determined whether, despite the violation
of the protected rights, the law will remain valid.
21. Indeed,
no one disputes that the purpose of protecting the safety and security of all
the residents of the state, which lies at the basis of the law, is an important
and proper purpose, particularly in the difficult times in which we live.
Likewise no one disputes the prerogative of the state to regulate its
immigration laws and to prevent anyone whom it regards as a risk to its
security from entering its territory.
Nonetheless, when it seeks to realize these
proper purposes, the legislature must take into account the serious harm caused
as a result of implementing the law. Notwithstanding the supreme importance of
the right of all the citizens of the state to security, even within the
framework of realizing this right it is not possible to allow the intolerable harm
caused by the law, both in its violation of the right to family life and in its
violation of the right to equality.
As my
colleague
‘Indeed, the
strength of the right and the strong radiation emanating from within it
require, almost automatically, that the measure that the Ministry of the
Interior chooses will be more lenient and moderate than the harsh and drastic
measure that it decided to adopt. We will find it difficult not to conclude
that the respondents completely ignored — or attributed only little
weight — to these basic rights of the individual to marry and to raise a
family. If this may be said with regard to a foreigner, it may certainly be
said with regard to the Israeli citizen who is a partner in the marriage’ (see
also State
of Israel v. Oren [25]).
23. Because
of the possibility that some of the residents of the territories who receive
Israeli citizenship as a result of their marriage to Israeli citizens will
participate in terror activity against Israeli citizens, or will aid activity
of this kind, the law provides a blanket prohibition against the possibility of
marriage between Israeli citizens and residents of the territories. This
involves not only serious and excessive harm to any Israeli citizen who wishes
to have a family life together with his spouse, child or parent that is a
resident of the territories, but also a generalization of all Arab Israeli
citizens as persons with regard to whom there is a concern that they will aid,
even indirectly, enemy activity against the State of Israel.
The blanket
and discriminatory prohibition of the law, and its failure to include any
individual check — no matter how stringent — with regard to the risk
presented, in practice or in theory, by the person with whom an Israeli citizen
wishes to have a family life, involves a serious violation of the rights of
Israeli citizens to family life and equality, which is unacceptable.
24. Moreover,
depriving the Minister of the Interior of discretion, ab initio, to examine the possibility
whether citizenship should be given to any of the residents of the territories
in order to realize the right of an Israeli citizen to family life, by ignoring
the specific circumstances of the case, raises the concern whether the security
consideration is not the only consideration underlying the enactment of the law
and it raises questions with regard to the policy that this law wishes to
achieve.
This concern
is becomes even greater if we survey the legislative history that led to the
enactment of the law, which, whether in a concealed or express manner,
associates the law with the government’s demographic policy. Thus, already in
the government’s decision of 12 May 2003, which is entitled “Treatment of
illegal aliens and family reunification policy with regard to residents of the
Palestinian Authority and foreigners of Palestinian origin’ (government
decision no. 1813), which formed the basis for enacting the law, the ‘security
position’ and the ‘ramifications of immigration processes and the residency of
foreigners of Palestinian origin in Israel, including by way of family
reunification’ were associated (page 2 of the decision), all of which ‘within
the framework of the overall policy on matters concerning foreigners’ (page 1
of the decision). Moreover, the decision goes on to state that ‘the Ministry of
the Interior will examine, within the framework of formulating the new policy,
possibilities of determining quotas for giving approvals for family
reunifications, and it will bring a proposal in this regard before the government’
(page 3 of the decision). It need not be said that the fixing of quotas for
approvals of family reunifications has no connection with security
considerations, so it is possible to understand this paragraph in the decision
as being based merely on demographic considerations. Similarly, throughout the
legislation process, it is possible to find remarks made by Knesset members and
members of various Knesset committees, from various parties, who address the
demographic policy that the law implements (see, for example, the debate in the
House on 17 June 2003). Notwithstanding, since I agree with the determination
of my colleague
Justice E.
Hayut
1. The Citizenship and Entry into Israel Law
(Temporary Provision), 5763-2003 (hereafter — the Citizenship and Entry
into Israel Law) expired on 31 March 2006, but because of the dissolution of
the sixteenth Knesset, the validity of this law was extended by three months
starting on 17 April 2006 (the date on which the seventeenth Knesset opened).
This occurred by virtue of s. 38 of the Basic Law: the Knesset, which provides:
‘All
legislation whose validity would expire within the last two months of the term
of office of the outgoing Knesset, or within four months after the Knesset
decided to dissolve itself, or within the first three months of the term of
office of the incoming Knesset, shall remain valid until the aforesaid three
months have ended.’
It would have
been possible to dismiss the petitioners before us by saying that the days of
the law are numbered and they should wait to see what the legislator will do at
the end of the extension period. But since my colleagues chose, because of the
importance of the matter, to examine carefully the arguments that were raised
in the petitions against the Citizenship and Entry into Israel Law, I too have
seen fit to consider the merits of the matter. On the merits, the opinion of my
colleague President Barak seems to me preferable to the opinion of my colleague
Vice-President Emeritus Cheshin.
2. The Citizenship and Entry into Israel Law,
as the state explained in its responses before us, was intended to contend with
the risks involved in giving a status of citizenship or residency or a permit
to stay in
3. The armed struggle waged by the Palestinian
terrorist organizations against the citizens of
The fear of
terror, like any fear, may be a dangerous guide for the legislature when it
wishes to contend with those causing it. It may cause democracy to overstep its
bounds and to be misled into determining ‘broad margins’ for security purposes,
while improperly and disproportionately violating the human rights of citizens
and residents who belong to a minority group in the state. This was discussed
by Professor Sunstein in his book, Laws of Fear: Beyond the Precautionary Principle (Cambridge
University Press, 2005):
‘When public
fear is excessive, it is likely to produce unjustified infringements on
liberty. In democratic nations in the twentieth century, public fear has led to
unjustified imprisonment, unreasonable intrusions from the police, racial and
religious discrimination, official abuse and torture, and censorship of speech.
In short, fear can lead to human rights violations of the most grotesque kind’
(ibid., at pp. 225-226).
Professor
Sunstein also discussed in his book the tendency to impose blanket prohibitions
in legislation where the majority of the public is not harmed as a result:
‘If the
restrictions are selective, most of the public will not face them, and hence
the ordinary political checks on unjustified restrictions are not activated. In
these circumstances, public fear of national security risks might well lead to
precautions that amount to excessive restrictions on civil liberties. The
implication for freedom should be clear. If an external threat registers as
such, it is possible that people will focus on the worst-case scenario, without
considering its (low) probability. The risk is all the greater when an
identifiable subgroup faces the burden of the relevant restrictions. […] if
indulging fear is costless, because other people face the relevant burdens,
then the mere fact of “risk,” and the mere presence of fear, will seem to
provide a justification’ (ibid., at pp. 204-205, 208).
4. The Citizenship and Entry into Israel Law
which is the subject of our deliberation does not include any individual
criteria for examining the security danger presented by a resident of the
territories, apart from a general criterion of age. In determining such a
blanket prohibition against granting a status to the residents of the
territories, the law draws wide and blind margins that unjustly and
disproportionately harm many thousands of members of the Arab minority that live
among us and wish to have a family life with residents of the territories. The
right of a person to choose the spouse with whom he wishes to establish a
family and also his right to have his home in the country where he lives are in
my opinion human rights of the first order. They incorporate the essence of
human existence and dignity as a human being and his freedom as an individual
in the deepest sense. Notwithstanding, like any other basic right, we are not
speaking of absolute rights, and a person as a social creature that lives
within a political framework must accept a possible violation of rights as a
result of legitimate restrictions that the state is entitled to impose. The
legitimacy of these restrictions is examined in accordance with constitutional
tests that are set out in our case in the limitations clause in s. 8 of the
Basic Law: Human Dignity and
Imposing
restrictions on family reunifications with residents of the territories because
of security needs is a necessity and it should not be denigrated. The
difficulty in taking risks in matters of security and matters involving human
life is clear and obvious and it increases in times of crisis and prolonged
danger that necessitate making the security measures more stringent and
inflexible. Notwithstanding, security needs, no matter how important, cannot
justify blanket collective prohibitions that are deaf to the individual.
Democracy in its essence involves taking risks and my colleague Vice-President
Emeritus Cheshin also discussed this. He also discussed how ‘the determination
of measurable concepts is a part of the experience of the law.’ But in his
opinion the prohibitions imposed in the Citizenship and Entry into Israel Law
are reasonable and therefore we should not intervene in the work of the
government and the Knesset that determined them. My opinion is different. I am
of the opinion that an examination of the Citizenship and Entry into Israel Law
in accordance with constitutional criteria leads to the conclusion that the
prohibitions prescribed in the law do not satisfy the constitutional test since
they harm the Israeli Arab minority excessively. In the complex reality in
which we live, it is not possible to ignore the fact that the Palestinian
residents of the territories have for many years been potential spouses for the
Arab citizens of
5. One of the main arguments that the
respondents raise to justify the blanket prohibition in the Citizenship and
Entry into Israel Law is the argument that in many cases the security
establishment does not have information with regard to the Palestinian spouses
for whom a family reunification is requested. In such circumstances, and in
view of the tense security position and the great hostility that prevails
between
6. The conflict between the basic rights in
the case before us touches the most sensitive nerves of Israeli society as a
democratic society. But no matter how much we wish to protect the democratic
values of the state, we must not say ‘security at any price.’ We must consider
the price that we will pay as a society in the long term if the Citizenship and
Entry into Israel Law with its blanket prohibitions will continue to find a
place on our statute book. One of the main roles of the High Court of Justice,
if not the main role, is to protect the constitutional rights of the minority
against a disproportionate violation thereof by the majority. Where such a
violation finds expression in the provisions of a law of the Knesset, it is the
role of the court to point to that violation and declare the provisions to be
void, so that the Knesset can act in its wisdom to amend them. The provisions
of the Citizenship and Entry into Israel Law suffer, as aforesaid, from such a
disproportionate violation. Therefore we are obliged to declare them void, and
the Knesset, so it is to be hoped, will act in order to formulate a proper and
proportionate statutory arrangement in place of this law.
For these
reasons I agree as aforesaid with the opinion of my colleague the president.
1. I agree with the opinion of my colleague
the president together with the constitutional analysis and his conclusions
concerning the relief. I agree with the opinion that in the Israeli legal
system the right of a person to family life is recognized as a part of human
dignity; I also agree that the right of an Israeli spouse to have a family unit
in
I also agree
with the president’s position that the violation caused by the law to the right
to family, as a part of human dignity, does not satisfy the principles of the
limitations clause in the Basic Law. Even though it is possible to say that the
law is intended for a proper purpose, it does not satisfy the tests of
proportionality. In this respect, I would like to focus on the test of
constitutional proportionality in the narrow sense, in so far as it examines
the proper correlation between the benefit accruing from realizing the policy
that the law is intended to promote and the damage caused by it to the human
right, and in so far as it seeks to make a value balance between the strength
of the interest that the law seeks to achieve as compared with the violation of
the right of the individual that ensues therefrom.
I agree also with the outcome reached by the
president, his application of the test of proportionality in the narrow sense
to the issue before us, and his conclusion that in the proper balance between
the violation of the human right of the Israeli spouse to family life in
conditions of equality, which arises from the blanket prohibition in the law
(subject to certain exceptions in the amendment to the law) against the entry
of the Palestinian spouse from the territories within the framework of family
reunifications, and the benefit that accrues to the security interest of the
Israeli public from such a blanket prohibition, the former prevails over the
latter. The reason for this is that the marginal advantage in realizing the
security purpose by means of the benefit in the blanket prohibition as compared
with the benefit in the individual check of persons applying for family
reunifications does not justify the extent of the violation of the
constitutional right caused to the Israeli spouses by the blanket denial of the
entry of the Palestinian spouses from the territories to be reunited with them.
This is because ‘the additional security that the blanket prohibition achieves
is not proportionate to the additional damage caused to the family life and
equality of the Israeli couples,’ as the president says in his opinion (para.
92).
But I see a
need to add some remarks of my own because of a certain difference that exists
between the president’s approach and my approach on the question of the initial
weight of the security consideration in the equation of the balance between the
conflicting values. Whereas the president accepts the security arguments of the
state in full, both with regard to the credibility of the security
consideration and also with regard to its strength, I have doubts in this
regard. Although there is no basis, in my opinion, to deny the security ground
entirely, I am not certain that this ground is the only one that really
underlies the enactment of the law; moreover, I have objections to the strength
of this consideration, with regard to the figures that the state presented and
the analysis of these against the background of the policy of the government in
related fields. The result that is implied by this is that in the equation of
the balance for the purpose of examining the principle of proportionality (in
the narrow sense) as it should be presented, the violated human right is on the
highest level and its weight is considerable. Opposing this is the conflicting
value of security, which in the circumstances of the case is on a low level and
its weight is qualified and merely relative. The result of the balance
therefore justifies, to an even greater degree, intervention in the sweeping
violation of the right of the Israeli spouse to realize family life with his
Palestinian spouse. It justifies making the realization of the human right
conditional on the results of an individual security check to discover a
potential risk in the person who wishes to enter Israel for the purpose of
family reunification, and it is even possible that it justifies imposing
various means of supervision on a Palestinian spouse whose entry and residence
have been permitted, in accordance with criteria that will be determined after
taking into account the strength of the security consideration.
Let me
explain my reasons.
The constitutional scrutiny
2. The foundation of the constitutional system
in
‘An “external
balance” is therefore needed between the rights of the individual and the needs
of the public. Even this balance is a result of the recognition that human
rights are not absolute. It follows that the constitutional super-legislative
nature of human rights does not lead to the conclusion that human rights are
absolute. Super-legislative human rights are always relative rights’ (
3. Within the framework of the constitutional
scrutiny of a law that seeks to violate rights of the individual, the tests of
the limitations clause serve as an essential tool for the proper balance
between the violated right and the public interest, the realization of whose
purpose involves a violation of the right. The limitations clause is the focus
around which the constitutional balance between the individual and the public,
and between individuals inter se, is formulated. It reflects a basic approach whereby the needs of
society may even justify a violation of human rights, provided that the
violation is for a proper purpose, and it is not disproportionate. This test
reflects a balance between basic rights and other important values. It arises
from a reality in which there are no absolute truths and no absolute values. It
is built on a perspective of the relativity both of human rights and of social
values. It is based on the assumption that achieving harmony between the rights
of the individual and the needs of the public requires a compromise, and that
the nucleus of the compromise is what underlies the harmonious arrangement
between all the rights of the individual and the values of society. It is the
condition for a civilized society and proper constitutional government.
4. The requirement of proportionality in the
limitations clause is based on the principle of balancing between the violated
human right and the conflicting value with which it contends. It involves an
examination, inter alia, of whether
the benefit achieved from the conflicting value is commensurate with the
violation of the human right. The balance is affected by the relative weight of
the values; in assessing the weight of the right, one should take into account
its nature and its status on the scale of human rights. One should take into
account the degree and scope of the violation thereto. With regard to the
conflicting public interest, one should consider its importance, its weight and
the benefit that accrues from it to society. There is a reciprocal relationship
between the weight of the human right and the degree of importance of the
conflicting public interest. The weightier the human right and the more severe
the violation thereof, the more it is necessary, for the purpose of satisfying
the test of proportionality, that the conflicting public interest will be of
special importance and essentiality. A violation of a human right will be
recognized only where it is essential for realizing a public interest of such
strength that it justifies, from a constitutional viewpoint, a proportionate
reduction in the right (Levy v. Government of Israel [99], at p. 890; Beit Sourik Village Council v.
Government of Israel [2], at p. 850 {309}). According to the tests of the limitations
clause, both the violated right and the public interest are examined in
accordance with their relative weight, where the basic premise is:
‘The more
important the violated right, and the more serious the violation of the right, the
stronger the public interest must be in order to justify the violation. A
serious violation of an important right, which is merely intended to protect a
weak public interest, may be deemed to be a violation that is excessive’ (per Justice I. Zamir in Tzemah v.
Minister of Defence [9], at p. 273 {672}).
5. In the matter before us, the subject of our
scrutiny is the balance between the right of the Israeli spouse to realize
family life in
The right to family
6. The human right to family is one of the
fundamentals of human existence. It is hard to describe human rights that are
its equal in their importance and strength. It combines within it the right to
parenthood and the right of a child to grow up with his natural parents. Together
they create the right to the autonomy of the family.
‘These are
basic principles: the right to parenthood and the right of a child to grow up
with his natural parents are rights that are interconnected and they jointly
create the right to the autonomy of the family. These rights are some of the
fundamentals of human existence, and it is difficult to describe human rights
that are equal to them in their importance and strength’ (LFA 377/05 A v. Biological Parents [21], at
para. 6 of my opinion).
Alongside the
human right to the protection of life and the sanctity of life, constitutional
protection is given to the human right to realize the meaning of life and its raison d’être. The right
to family is a raison
d’être without which the ability of man to achieve self-fulfilment and
self-realization is impaired. Without protection for the right to family, human
dignity is violated, the right to personal autonomy is diminished and a person
is prevented from sharing his fate with his spouse and children and having a
life together with them. Among human rights, the human right to family stands
on the highest level. It takes precedence over the right to property, to
freedom of occupation and even to privacy and intimacy. It reflects the essence
of the human experience and the concretization of realizing one’s identity.
The value of security
7. In view of the special weight and strength
of the right to family given to the individual, a reduction thereof is possible
only where it is confronted by a conflicting value of special strength and
importance. ‘The degree of importance of the need that is required in order to
justify a violation may change in accordance with the nature of the violated
right… the purpose is proper if it is intended to realize “an essential need,
or an urgent social need, or a major social interest’ (Levy v. Government of Israel [99], at
para. 15). The duty of the state to protect the lives of its citizens places
the interest of security on the highest level of importance. This interest has
two aspects: a social aspect, which casts light on the duty of the state to
protect the security of its citizens; and an individual aspect, which casts
light on the right of the individual in society to protection for his life. The
right to life is a constitutional human right of the first order, and it is
placed first in the order of human rights protected in the Basic Law: Human
Dignity and
8. In the tension that exists between the
value of the security of life and other human rights, including the right to
family, the consideration of security takes precedence where there is a certainty or almost certain likelihood that if an
action that involves a reduction of a human right is not carried out, then human
life will be harmed. The right to life takes precedence over the right to
realize the meaning of life, since without life nothing is left. But as a rule,
in the balance between security and the human right we are not dealing with
absolute values, and usually we do not assume a certainty of harm to life. We
are dealing with a probability of the
degree of danger, and it is this that we weigh against the violation of the
human right.
What is the
probability of the danger to human life in the circumstances of permitting the
Palestinian spouses to enter
Burden of proof
9. The burden of proof with regard to the
existence of a likelihood of a security risk to a degree that justifies a
reduction of a human right rests with the state (Movement for Quality Government in Israel v.
Knesset [51], at paras. 21-22 and 49 of the opinion of President Barak; Barak,
Constitutional Interpretation, at p. 477; United
10. The ‘security need’ argument made by the
state has no magical power such that once raised it must be accepted without
inquiry and investigation. There were times in the past when the state’s
argument concerning a security need was accepted on the face of it, without any
examination of its significance or weight. Those times have passed, and for
many years now the arguments of the authorities concerning a security need have
been examined on their merits by the courts in various contexts. Admittedly, as
a rule, the court is cautious in examining the security considerations of the
authorities and it does not intervene in them lightly. Notwithstanding, where
the implementation of a security policy involves a violation of human rights,
the court should examine the reasonableness of the considerations of the
authorities and the proportionality of the measures that they wish to implement
(Ajuri v. IDF Commander in West
Bank [1], at pp.
375-376; HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [153], at p.
810). For the purposes of this examination, the court is sometimes required to
look at privileged material ex parte, and to assess the strength of the security risk in accordance with
probability criteria concerning the strength of the violation of the rights of
the individual as opposed to this probability (see, for example, with regard to
administrative detention orders: ADA 8607/04 Fahima v. State of Israel [154], at
pp. 263-264; HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [155], at pp. 350, 360-361;
with regard to preventing a meeting of a detainee with his lawyer: Marab v. IDF Commander in
Judaea and Samaria [3], at pp. 381-382 {212-215}; with regard to protecting the home of
the Minister of Defence: HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [156], at
paras. 13-14; with regard to assigning the residence of residents of the
territories: Ajuri v. IDF
Commander in West Bank [1], at pp. 370, 372, 376 {102-103, 105-106,
110-111}; with regard to restriction and supervision orders: HCJ 6358/05 Vaanunu v. Home Front Commander [157]).
Sometimes, examining the strength of the security consideration requires
examining specific material concerning the person involved; sometimes, when the
security policy of the authorities concerns a whole sector of the public, a
general examination should be made on the basis of figures that have been
presented, by means of criteria for an objective probability analysis. Such is
the case before us.
Examining the security
consideration in a two-stage process
11. An
examination of the weight of the security consideration should be made in a
two-stage process. First, we must examine the degree of credibility of the claim
concerning ‘security needs.’ We must ascertain whether the security
considerations that have been raised are not being used, in reality, as a cloak
for other completely different purposes which are really the purposes that
underlie the legislation containing the violation of the right. Second,
assuming that we find that the security consideration is credible, we must
assess, on the basis of the figures presented, what is the strength of the
security consideration from the viewpoint of the extent of the probability that
the risk underlying it will indeed be realized if the policy involving the
violation of the right is not implemented, or if it is not implemented in full.
The two-stage process for examining the security consideration is built,
therefore, on two strata: examining its credibility in the first stage, and
examining its strength in the second
stage.
12. This
two-stage examination of the state’s argument concerning security needs was
made by the court, when it was required to decide upon the constitutionality of
the route of the separation fence in Beit Sourik Village Council v. Government of Israel [2] and Marabeh v. Prime Minister of
Israel [5] (paras. 62-65 of the judgment). In Beit Sourik Village Council v. Government of
Israel [2] the credibility of the
security consideration was examined in the first stage in relation to the
petitioners’ claim that the real reason for building the fence was not
security, as claimed by the state, but a political reason, and its purpose was
to annex areas from the West Bank to Israeli territory on the western side of
the green line. In this regard, the court held that it was proved that the
building of the fence was a result of security considerations, not political
ones (Beit Sourik
Village Council v. Government of Israel [2], at pp. 830-831
{286-288}; Marabeh v.
Prime Minister of Israel [5], at para. 62). It was held that the decision to
build the fence did not arise as a political idea for the annexation of
territory, but it derived from military-security needs, and as an essential
measure for protecting the state and its citizens. In the second stage the
court examined the strength of the security-military need to build the fence
and the route chosen for it in relation to the degree of the violation of the
rights of the local residents involved in realizing this need. Examining this
strength of the public interest involves an act of balancing in which the
public need is balanced against the violated right, and the court chooses a
balancing point that does not attribute an absolute value to either of the
competing values, but balances between them in accordance with their relative
weight and importance as derived from a constitutional outlook that aims for
harmony between the rights of the individual and the needs of the public. A
two-stage examination of this kind should be made also in the case before us.
Credibility of the security
consideration
13. The
state bases the credibility of the security consideration on the general
assessments of the security establishment. According to their approach, ‘there
is a security need to prevent, at this time, the entry of residents of the
territories, as such, into Israel, since the entry of residents of the
territories into Israel and their free movement within the State by virtue of
the receipt of Israeli documentation is likely to endanger, in a very real way,
the safety and security of citizens and residents of the State’ (para. 4 of the
respondents’ closing arguments of 16 December 2003); and from a general
perspective, ‘giving a permit to stay, for the purpose of becoming a resident
of Israel, to a resident of a state or a political entity that is involved in
an armed conflict with the State of Israel involves a security risk, since the
loyalty and allegiance of that person is likely to be to the state or political
entity in conflict with Israel.’ It was also argued that since the armed
conflict between Israel and the Palestinian Authority changed at the end of
September 2000, hostile Palestinian entities began to make increasing use of
Arab citizens of the State of Israel, ‘and especially’ it is alleged ‘of persons
who were residents of the territories and received a status in Israel by virtue
of the various family reunification processes’ (para. 5 of the closing
arguments of the state of 16 December 2003). A synopsis of the state’s security
arguments is that, as a rule, enemy nationals that have a double loyalty
constitute a security risk when they enter Israel; the residents of the
territories who have undergone a process of family reunification are an example
of this, and their entry into Israel and their free movement in Israel are
likely to aid the armed struggle of the Palestinian side against the residents
of the State of Israel; as proof, of the Israeli citizens and residents who
aided the armed struggle of the Palestinians, most, according to the state, are
residents of the territories who received their status as a result of a process
of family reunification.
But there is
a difficulty in reconciling the state’s claim that the main security risk comes
from Palestinian spouses who have become resident in
The state,
within the framework of its arguments, was prepared to declare that even though
the security consideration is the only one underlying the law, even if the
demographic consideration was a basis for the policy that led to its enactment,
it would still be a legitimate consideration that befits the values of the
State of Israel as a Jewish and democratic state:
‘Even if the
predominant purpose of the law was demographic — which is not the
case — this purpose would be consistent with the values of the State of
Israel as a Jewish and democratic state…’ (para. 169 of the closing arguments
of the state of 16 December 2003).
Since the
state, according to its declaration, did not rely on the demographic
consideration as a basis for the legislation under scrutiny here, we are not
required to place this consideration under constitutional scrutiny.
Notwithstanding, the demographic consideration hovered in the background of the
legislative process of the law, and it is difficult to escape the impression,
despite the denial of the state in this regard, that it had a presence of some
weight or other in the process of formulating the blanket prohibition against
the entry of Palestinian spouses from the territories into Israel within the
framework of family reunifications.
It can
therefore be said that the security consideration, whose purpose is to prevent
abuse of the process of family reunification in order to increase terrorist
activity inside
The strength of the security consideration
15. An examination of the
strength of the security consideration should provide an answer to the question
whether there is a justification for the blanket prohibition against the entry
of Palestinians who are residents of the territories into
The number of persons among the Palestinian spouses
who are suspected of involvement in hostile activity
It is not
superfluous to point out that since 1994 approximately 130,000 residents of the
territories received one status or another in Israel, and, of all of these, 26
as aforesaid are under investigation with regard to involvement in terror
activity. In view of the large number of Palestinians from the territories who
acquired a status in
Palestinian workers entering
Israel
17. According
to the policy of the government, many thousands of Palestinian workers enter
According to
the state, one cannot compare the workers with the spouses since the security
risk presented by these groups is completely different. The entry of workers
into
First, in the absence of figures
regarding the number of persons involved in terror activity among Palestinian
workers, it is difficult to accept as presented the premise that the risk from
the Palestinian spouses who acquired residency in
Second, within the framework of the
supervisory measures introduced in order to contend with the potential risk, it
is possible to choose appropriate security measures and apply them also to
Palestinian spouses who will not only be subject to an individual check before
they enter Israel, but will also be subject to the supervision of the
authorities when they are living in Israel, in order to make them less
accessible and available to the terrorist organizations. Within the framework
of the security measures it is also possible to include the cancellation of
permits to stay in
Persons involved in terror
among Israeli citizens
18. We
should also not ignore the figures presented by the state, according to which 247 Israeli Arabs, citizens and
residents, were found to be involved in terror activity against the Jewish
residents of the state (para. 29 of the state’s response of 7 February 2006).
Citizens of
The strength of the security
consideration — conclusions
19. The
conclusion that follows from the aforesaid is that the state has not discharged
the burden imposed on it to show that the sweeping violation of the
constitutional human right satisfies the proportionality test of the
limitations clause. The probability of the security risk from the entry of
Palestinians into
The focus of
the law on the population of spouses from the territories is inconsistent with
the policy of the state with regard to risk factors that are not smaller, and
are perhaps even greater, than those presented by family reunifications. In
other contexts, which give rise to significant risks, the state refrains from a
sweeping violation. It seeks to spread the risk in as intelligent and
proportionate manner as possible. This is not the case with regard to persons
applying for family reunifications. This raises the concern that the real purpose
of the law is not entirely identical with the alleged security purpose, and
that the strength of the security consideration is not as significant as
alleged. In view of the aforesaid, the criteria of the law are not consistent
with the proper point of balance between the strength of the security interest
and the extent of the violation of the human right (Davidov, Yovel, Saban and
Reichman, ‘State or Family? The Citizenship and Entry into Israel Law
(Temporary Provision), 5763-
Indeed, the
proportionality tests lead to the value decision that confronts the question,
to what extent may the government of a democratic country violate human rights
in the name of the national interest and national security; when do we cross
the proper balancing point and give a blanket protection to society, while
improperly violating the rights of the individual, and when does the social
interest become an absolute value at the expense of the human right, rather
than maintaining the proper proportionality between them. The tests of
proportionality require a value balance in which the premise is that not every
contribution to the general level of security justifies a sweeping violation of
human rights. Where a sweeping violation reflects an improper proportion
between the likelihood of the security risk and the strength of the violation
of the right, a different, more rational and just proportion is required. This proportionality
is built on a compromise between the general social value and the rights of the
individual that deserve protection.
The sweeping violation
21. We
must beware of the lurking danger that is inherent in a sweeping violation of
the rights of persons who belong to a particular group by labelling them as a
risk without discrimination, and of the concern involved in using the security
argument as a ground for a blanket disqualification of a whole sector of the
public. There are cases in history in which this happened, and later
constitutional thought recognized the mistake in this, a mistake that is clear
on the face of it. It is sufficient to mention one example of this from the
well-known case of Korematsu v. United States [185], in which
The
justification for adopting these security measures was expressed in the
majority opinion of Justice Black in terms that are reminiscent in their main
aspects of the arguments of the state before us:
‘We cannot reject as unfounded the judgment of the
military authorities and of congress that there were disloyal members of that
population, whose number and strength could not be precisely and quickly
ascertained… It was impossible to bring about an immediate segregation of the disloyal
from the loyal that we sustained the validity of the curfew order as applying
to the whole group. In the instant case, temporary exclusion of the entire
group was rested by the military on the same ground’ (Korematsu v. United
States [185], at p. 219).
And further
on:
‘There was evidence of disloyalty on the part of some
[citizens of Japanese ancestry], the military authorities considered that the
need for action was great, and time was short’ (Korematsu v. United States
[185], at pp. 223-224).
The minority
judges, led by
‘In adjudging the military action taken in light of
the then apparent dangers, we must not erect too high or too meticulous
standards; it is necessary only that the action have some reasonable relation
to the removal of the dangers of invasion, sabotage and espionage. But the
exclusion, either temporary or permanently, of all persons with Japanese blood
in their veins has no such reasonable relation. And that relation is lacking
because the exclusion order necessarily must rely for its reasonableness upon
the assumption that all persons of Japanese ancestry may have a dangerous
tendency to commit sabotage and espionage and to aid our Japanese enemy in
other ways… no reliable evidence is cited to show that such individuals
were generally disloyal…or had otherwise by their behavior furnished reasonable
ground for their exclusion as a group’ (Korematsu v. United States
[185], at pp. 235-236).
Further on,
the minority judges explained the nature of the great danger inherent in
sweeping arrangements that involve whole sectors of the public indiscriminately:
‘… to infer that examples of individual disloyalty
prove group disloyalty and justify discriminatory action against the entire
group is to deny that under our system of law individual guilt is the sole
basis for deprivation of rights… is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the
individual and to encourage and open the door to discriminatory actions against
other minority groups in the passions of tomorrow’ (Korematsu v. United
States [185], at p. 240).
The ruling of
the majority of justices of the United States
The
circumstances in that case are completely different from those in our case, but
the
wind that blows in the background of the constitutional approach that was
applied there by the majority opinion is not foreign to the arguments that were
heard from the state in the case before us. We must take care not to make
similar mistakes. We must refrain from a sweeping injury to a whole sector of
the public that lives among us; it is entitled to constitutional protection of
its rights; we must protect our security by means of individual scrutiny
measures even if this imposes on us an additional burden, and even if this
means leaving certain margins of a probability of risk. We will thereby protect
not only our lives but also the values by which we live (Saif v. Government Press Office [86], at p. 77 {198}).
Conclusion
22. No
one will deny the seriousness of the security situation in which we find
ourselves, and the supreme task imposed on the state to protect the lives of
its citizens. At the same time, just as we must confront the danger to life and
defend ourselves against it, so too we must protect ourselves against the
danger of losing security in our values and in the protection of human rights.
We must beware the erosion of human rights against the background of security
arguments by not maintaining the proper proportion between them. Without
insisting on this proportionality, the constitutional approach that protects
human rights may be eroded; consequently, cracks may appear in the foundations
of our constitution; democratic patterns of life in
In this case,
I do not agree with the view that the security need should be adopted to the
degree and extent argued by the state. I see a significant gap between the
strength of the security consideration as alleged by the state, and the
strength of the violation of human rights of the first order which is caused by
the law. Therefore I am most strongly of the opinion that the security
consideration should yield to the human right. But even so, there is no basis
for a balance in absolute values, but in relative values. Therefore, the change
from a blanket prohibition (apart from a few exceptions) against the entry of
Palestinian spouses into Israel, which is currently enshrined in the law, to a
system of individual checks to locate an individual potential danger reflects
the proper point of balance. The relative strength of the security
consideration ought also to cast light on the measures for individual checks
that should be put into operation for the purpose of providing entry permits to
persons applying to be reunited with their Israeli spouses, and also on the
supervisory methods that should be introduced with regard to Palestinian
spouses whose entry is permitted, while they are living in Israel. The relative
strength of the security consideration should also cast light on the relevant
tests and criteria that should be made a necessity in these matters.
23. I
agree with the president’s conclusion concerning the voidance of the law, and
the details of the relief proposed by him.
1. I agree on the whole with the opinion of my
colleague Vice-President Emeritus M. Cheshin. From this it is clear that my
opinion is different from that of my colleague President A. Barak. I will add
certain emphases of my own that clarify the disagreements between my opinion
and that of my colleague the president.
2. My colleague the president defines very
broadly the constitutional right to family life (as a part of human dignity). He
includes within it the right of the Israeli spouse to bring his foreign spouse
into
3. My two
colleagues, the president and the vice-president emeritus, find that the law
does not raise any problem with regard to the first three conditions in the
limitations clause, namely the requirement that the violation should be made in
a statute or in accordance with statute by virtue of an express authorization
therein; the requirement that the violating law should befit the values of the
State of Israel; and the requirement that the law is intended for a proper
purpose. They also agree that the law satisfies the first two subtests of the proportionality
test that are included in the limitations clause. Thus, they find that there is
a rational connection between the prohibition against the Palestinian spouse
entering Israel, which is the measure adopted by the law, and the reduction of
the security risk inherent in the entry into Israel of the foreign spouse,
which is the purpose of the law. They also find that it is not possible to
achieve the purpose of the law by adopting a less harmful measure. The issue in
the concrete case before us is the blanket prohibition in the law against the
entry into Israel of Palestinian spouses as opposed to an individual check of
the foreigners who marry Israelis. An individual check of each person will not
achieve the same level of security that will be provided by a blanket
prohibition.
4. The
disagreement between my colleagues focuses on the implementation of the third
subtest in the test of proportionality. Sometimes this test is referred to as
that of proportionality in the narrow sense. This test examines the correlation
between the social benefit of the law and the harm caused by the violation of
the constitutional right. The President dissects the case with a surgeon’s
scalpel, or perhaps we should say with a laser beam, and says that ‘the proper
way of posing the question is by means of the level of the risks and the
likelihood that they will occur, and their effect on the life of society as a
whole’ (para. 110 of his opinion). Further on, the test in the concrete case is
presented in the following words: ‘The question is what is the probability that
human life will be harmed if we continue the individual check as compared with
the likelihood that human life will be harmed if we change over to a blanket
prohibition, and whether this additional likelihood is comparable to the
certainty of the increase caused thereby to the violation of the rights of
spouses who are citizens of the state (ibid.). The answer
of my colleague the president is that the additional security is not
commensurate with the additional violation of the right of citizens of the
state to family life. By contrast, the opinion of my colleague the
vice-president emeritus is that since we are dealing with the right to life, it
should be given greater weight in relation to the constitutional violation. I
disagree with my colleague the president in two respects, both with regard to
the presentation of the question as a question of probability and in the
implementation of the test.
5. There is
no doubt that presenting the test of proportionality in the narrow sense as a
test of probability contributes to the development of the law and our
conception of the value conflict underlying the test. The test that the
president presents is reminiscent of the well-known test formulated by Judge
Learned Hand with regard to the tort of negligence (United States v. Carroll Towing
Co. [207]). According to the equation developed by Judge
Hand, negligence exists if the expectation of the damage (the amount the damage
multiplied by the likelihood of its occurrence) is greater than the cost required
to prevent the damage (the aforesaid test was mentioned in CA 5604/94 Hemed v.
State of Israel [159], by
6. Even if I
accept the approach of my colleague the president according to which the
equation has a probability component on one side, I cannot agree with the
outcome that he has reached. According to the president, the additional
security obtained from the blanket prohibition of the entry of spouses, as
compared with the degree of security obtained from an individual check, is not
commensurate with the additional damage to the Israeli spouses as a result of
the violation of their right to family life (para. 112 of his opinion). Even if
I use exactly the same test used by the president, my conclusion is that the
additional security obtained from the blanket prohibition justifies the
additional violation of family life. In this context it should be noted that
disagreements on this point are an example of the situation in which different
judges make use of the same verbal formula as a legal test but arrive at
different results. The difference in the result derives, inter alia, from the different relative weight given to the conflicting values
and from the different quantification of the figures. In mathematical terms,
even if we agree upon all the variables of the equation, it is clear that there
is no consensus on the ‘numerical values’ that should be attributed to those
variables. And in addition to all this, we should mention the problematic
nature of relying on probability, namely, estimating the likelihood of the
occurrence of uncertain events (in this context, see, inter alia, D. Kahneman et al., Rationality,
Fairness, Happiness — A Selection of Articles, M.
Bar-Hillel, ed., 2005, especially in chapter 2).
7. Dealing
with concepts such as probability, likelihoods and estimates necessarily raises
the question of what is the constitutional margin of appreciation when
scrutinizing the law. It would appear that anyone who is familiar with this
margin will admit that it is not static with fixed limits. These limits are
affected by various factors, including the subject-matter of the law and the
degree of expertise of the court in the field (cf. HCJ 2533/97 Movement for Quality Government
in Israel v. Government of Israel [160], at pp. 57-58). Thus, for example, with regard
to economic issues we can say that the legislature and the executive have a
relatively large margin of appreciation, inter alia because we are concerned with
decisions that involve an element of uncertainty and professional
considerations that are outside the expertise of the court (United
8. My colleague the president is of the
opinion that ‘a mistake by the judiciary in a time of emergency is more serious
than a mistake of the legislature and the executive in a time of emergency. The
reason for this is that the mistake of the judiciary will accompany democracy
even when the threat of terror has passed, and it will remain in the case law
of the court as magnet for the development of new and problematic rulings. This
is not the case with mistakes by the other powers. These will be cancelled and
usually no-one will remember them’ (para. 21 of his opinion). This implies that
a determination that the law is valid and should not be removed from the
statute book would be a mistake whose consequences will accompany the state in
the future, possibly even after the period of war and terror ends. But we must
consider the fear of judicial error from both sides, i.e., not merely from the
viewpoint of an error that concerns a determination that the law is
constitutional, but also from the viewpoint of an error that concerns the
opposite determination — that the law does not satisfy the constitutional
test. Indeed, if the petitions before us are denied and it is held that the law
remains valid, there will be a violation of the right to family life of an
unknown number of Israeli citizens. On the other hand, if the petitions are
granted and it is held that the law is not valid, there will be a violation of the
right to life and physical and emotional integrity of an unknown number of
persons. Since we are dealing with unknowns on both sides of the equation,
there is no alternative to taking into account the possibility of error. In my
opinion, greater weight should be attributed to a fear of error on the side of
the equation containing the right to life. In the words of Dr G. Davidov:
‘When the harm that would be generated by a judicial
mistake is especially severe, courts should raise the bar before striking the
legislation down’ (G. Davidov, ‘The Paradox of Judicial Deference,’ 12 Nat’l
J. Const. L. 133 (2001), at p. 161; see also Irwin Toy Ltd. v. Quebec
(Attorney General) [217]).
9. In the present case, not only is there a fear of error that may
cause serious harm, but the error is close to being irreversible. According to
the figures provided by the state, over the years thousands of applications for
family reunifications were approved in cases where the foreign spouse was a
resident of the Palestinian Authority. It follows that until now many thousands
of residents of the Palestinian Authority have come to live in
10. Even
if the current relationship with the Palestinian Authority is not defined as a
war, but as a quasi-war (in the language of my colleague Vice-President
Emeritus M. Cheshin) or perhaps as an armed conflict between a state and a
political entity, it is not possible to ignore the security dangers that are
inherent in the entry of thousands of enemy nationals into Israel. We are not
speaking of entering
11. The
opinion of my colleague the president abounds, as usual, in citations from all
parts of the world and is full of references to many thinkers and scholars.
Notwithstanding, my colleague the president does not point to even one example
of a country that has allowed the entry of thousands of enemy nationals into
its territory for any purpose at a time of war or at a time of an armed
struggle. Certainly there is no example of a court that ordered a state to
allow the entry of thousands of enemy nationals into its territory. I shall conclude
by citing the remarks of Lord Hoffmann (which were admittedly said with regard
to an administrative decision and not with regard to the disqualification of a
law, but which are apt in our case):
‘… In matters of national security, the cost of
failure can be high. This seems to me to underline the need for the judicial
arm of government to respect the decisions of ministers of the Crown on the
question of whether support for terrorist activities in a foreign country
constitutes a threat to national security. It is not only that the executive
has access to special information and expertise in these matters. It is also
that such decisions, with serious potential results for the community, require
a legitimacy which can be conferred only by entrusting them to persons
responsible to the community through the democratic process. If the people are
to accept the consequences of such decisions, they must be made by persons whom
the people have elected and whom they can remove’ (Secretary of State for
the Home Department v. Rehman [228]).
These words
of warning ought themselves to be adopted with caution, in case the line is
crossed in such a way that the court shrugs off the constitutional role that is
placed on its shoulders. Giving excessive weight to security concerns may,
indeed, result in a disproportionate violation of human rights. We are dealing
with matters that cannot be measured
accurately. In the final analysis, the question is one of taking risks.
The decision in this case is very difficult, because it is not possible to
reconcile the basic values in the concrete case. But since we are called upon
to make a decision, we cannot avoid doing so. In my opinion, the risks that
will result from disqualifying the law require the court to refrain from
declaring it void even if the alternative is a violation of a human right.
12. It
is therefore my opinion that the petitions should be denied.
Justice M.
Naor
In my
opinion, like that of Vice-President Emeritus M. Cheshin, the petitions should
be denied.
Preliminary remarks
1. In recent years, terror has not only been
the exclusive or almost exclusive possession of
2. Following the events of September 11, the
attitude of the
3. All of us, both those who wish to declare
the law void and those who (like me) oppose this, are aware of the warnings
provided for us by history. It was not for nothing that my colleague
(1) Constitutional scrutiny —
first stage: does the Citizenship and Entry into
(a) The right to family life
4. The key question in dispute here is whether
the Israeli spouse has a constitutional right, as a part of human dignity, to realize family life with a foreign
spouse in
5. My colleague the president in practice
reinterprets art. 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, in accordance with the
interpretation that seems to him appropriate. In my opinion, there is great
importance to the question whether European countries de facto regard the right to family reunification in the country of
the European spouse as a constitutional right. The answer to this question is,
in my opinion, no. Thus, for example, the European Court of Human Rights held
that art. 8 of the Convention had not been breached in a case where an
application of a Dutch citizen (born in Morocco) to receive a permit for his
son who was born in Morocco was refused, and it was held that the state should
not be held to have a general duty to allow ‘family reunifications’ as
aforesaid:
‘Where immigration is concerned, Article 8… cannot be
considered to impose on a State a general obligation to respect immigrants’
choice of the country of their matrimonial residence and to authorise family
reunion in its territory’ (Ahmut v. The Netherlands [236], at para. 67).
In another
case, the European Court of Human Rights discussed how a state should not have
a duty imposed upon it to allow ‘family reunifications’ in its territory:
‘As a matter of well-established international law and
subject to its treaty obligations, a State has the right to control the entry
of non-nationals into its territory … Moreover, where immigration is concerned,
Article 8… cannot be considered to impose on a State a general obligation to
respect the choice by married couples of the country of their matrimonial
residence and to authorise family reunion in its territory’ (Gül v.
Switzerland [237], at para. 38).
In that case,
the European Court of Human Rights discussed the difficulty of defining what
are the duties imposed on
the state within the framework of art. 8 of the Convention and the right to
family life, and it also discussed the need to find a balance within the
framework of the article between the interest of the individual and the interest of the community, while
holding that the state should be given a ‘margin of appreciation:’
‘The Court
reiterates that the essential object of Article 8 (art. 8) is to protect the
individual against arbitrary action by the public authorities. There may in
addition be positive obligations inherent in effective “respect” for family
life. However, the boundaries between the State’s positive and negative
obligations under this provision (art. 8) do not lend themselves to precise
definition. The applicable principles are, nonetheless, similar. In both
contexts regard must be had to the fair balance that has to be struck between
the competing interests of the individual and of the community as a whole; and
in both contexts the State enjoys a certain margin of appreciation’ (ibid.
[237]).
In practice,
already in Abdulaziz Cabales and Balkandali v.
U.K. [235], which was discussed by my
colleague the vice-president, the European Court of Human Rights held that art.
8 of the Convention does not oblige a state to allow the foreign spouse into
its territory:
‘The duty imposed by Article 8 (art. 8) cannot be
considered as extending to a general obligation on the part of a Contracting
State to respect the choice by married couples of the country of their matrimonial
residence and to accept the non-national spouses for settlement in that
country’ (Abdulaziz, Cabales and Balkandali
v. United Kingdom [235], at p. 28).
In the
‘At the outset, it is
important to underscore the limited scope of judicial inquiry into immigration
legislation. “This Court has repeatedly emphasized that over no conceivable
subject is the legislative power of Congress more complete than it is over” the
admission of aliens’ (ibid. [190], at p. 792).
As Rubinstein
and Orgad have said: ‘There is no express and concrete right in international
law that creates a positive obligation for the state to allow immigration into
its territory for the purposes of marriage, even in times of peace’ (A.
Rubinstein and L. Orgad, ‘Human Rights, Security of the State and the Jewish
Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006),
at p. 340). Rubinstein and Orgad discuss in their article the work of Arturo
John, which was devoted to a survey of this issue in international and European
law. They pointed out that ‘the author give examples of how any international
document that prima facie grants this
possibility immediately qualifies it or provides conditions and restrictions
that empty it of content. It is the prerogative of states and within the
framework of their sovereignty. It is an ideal and humanitarian aspiration more
than a legal duty’ (ibid., at p. 340,
note 107). With regard to the European directive of 2004, which is mentioned in
the opinion of the president, it is stated that it admittedly increased the
possibility of immigrating to the European Union for the purposes of marriage,
but at the same time it allowed ‘broad discretion for states to determine
conditions and restrictions around this possibility’ (ibid., at p. 332). Rubinstein and Orgad
also say that ‘the European Court of Human Rights has given its backing over
the years to the right of states to restrict immigration as a result of
marriage; its case law reflects an approach according to which sovereign states
may manage their immigration policy in accordance with their discretion and by
determining various restrictions and conditions’ (ibid., at p. 338). And all of this is
even in the absence of an armed conflict or national dispute in the background.
In my
opinion, there has been no broad recognition in the countries of the democratic
world to the effect that the citizen or resident has a right to bring to his
place of residence the other spouse. It is possible that this amounts to an
aspiration that may be realized in the future.
6. In Israel too, the scope of the right to realize family life
particularly in Israel, in so far
as such a right is recognized, involves a question of the scope of the duty imposed on the state (cf.
with regard to the ‘right to social insurance’ and the ‘right to health
insurance,’ the remarks of my colleague the president in HCJ 494/03 Physicians for Human Rights v. Minister of
Finance [165]). In our case, my colleague the president holds that the state
has a duty to allow the
foreign spouse to enter and live in
7. When an Israeli citizen wants to marry a
foreign national and to establish a family unit in
8. The interpretation proposed by my colleague
the president with regard to the scope of the right to family, an
interpretation that recognizes a constitutional right to realize family right in
Indeed, my
colleague the president examines the right, and correctly so, from the
viewpoint of the Israeli citizen and not from the viewpoint of the foreigner.
But the scope of the right as determined by my colleague the president,
according to which there exists a right, and a corresponding duty of the state,
to allow an Israeli to bring his foreign spouse to Israel creates a ‘collision
zone’ between the right to family
life (according to the president) and the right of the state to determine who will
enter it (which is based on a host of cases, as mentioned by my colleague the
vice-president in para. 50 of his opinion). Indeed, ‘the right of states to determine
selective and restrictive conditions for immigration is regarded as a part of
its sovereignty’ (Rubinstein & Orgad, ‘Human Rights, Security of the State
and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’
supra, at p. 330), and it has been
held that ‘a person who wishes to enter a sovereign state must overcome one
barrier: the absolute discretion of the immigration authorities in each place
to approve or not to approve his entry and to determine the length of his stay
in the state’ (Pesaro (Goldstein) v. Minister of
Interior [130], at p.
678).
9. Thus
we see, from the determination of the scope of the right by the president, that
in the ‘collision zone’ the right to realize family life in
‘In case-law since the enactment
of the Basic Law: Human Dignity and
10. It
should be noted that this scrutiny, which I have considered above, considers
the question whether there is in
(b) The right to equality
11. The
key question in this context is whether the right of the Arab-Israeli spouse to
equality has been violated?
The right to
equality, in several aspects thereof, is a constitutional right that is
included in human dignity (Movement for Quality Government in Israel v. Knesset [51]). It
can be said that in our case the right to equality is violated prima facie; a Jewish
citizen Moses is allowed to bring to Israel his wife who, for example, is a
Romanian national (who is not Jewish and has no independent right to immigrate
to Israel by virtue of the Law of Return), whereas an Arab citizen Musa is not
allowed to bring to Israel his wife who is a resident of the territories under
the age of 25. The result is, prima facie, that Moses and Musa are treated differently, and Musa is
discriminated against. Notwithstanding, if it was Musa who married the Romanian
national and Moses who married the resident of the territories, the positions
would be reversed, and Moses would be the one discriminated against. To this my
colleague the president responds that in general and subject to (negligible)
exceptions it is Arab citizens who marry women from the territories (and Arab
women citizens who marry men from the territories), whereas Jewish citizens do
not marry women from the territories. Therefore, according to the end result, there is prima facie discrimination
between Moses and Musa and a violation of the right to equality. The end result
captivates the attention, but in my opinion there is in the final analysis no
discrimination, because of the existence of a relevant difference. A distinction
based on relevant reasons does not violate human dignity, since such a
distinction does not, in itself, constitute discrimination. In this matter I
accept the reasoning of my colleague the vice-president. In my opinion too the
distinction on which the law is based is the security risk to citizens and residents of
the state in giving a status in Israel to the foreign spouse who is a resident
of the territories (as apposed to the foreign spouse who is not a resident of
the territories), because of the armed conflict between Israel and the
Palestinian Authority, and this distinction is a relevant distinction. This was
also discussed by Rubinstein and Orgad, who pointed out that in the
circumstances before us ‘… the usual rule that is accepted worldwide according
to which a state may prohibit the entry of nationals of an enemy state into its
territory’ applies. Similarly, it is said there that:
‘Clearly in
practice not every citizen of an enemy state wishes to harm the state that he
wants to enter, but it is accepted that the citizens of an enemy state, because
of their connections with their state, their duty of loyalty to it and their
dependence on its government, and well as those of their families, constitute a risk group that no
state is liable to allow into its territory at a time of an active armed
conflict between the two states. Serious prohibitions and restrictions —
including a prohibition against marriage migration and family
reunifications — are imposed on the entry of nationals of unfriendly countries
even in the absence of war or combat… Admittedly, the Palestinian Authority is
not a state… But it should be
regarded, at least, as a “quasi-state” in view of its ability to harm the
security of
12. The
distinction is therefore a relevant distinction, and therefore the right to
equality has not been violated. Likewise, we are not concerned, as alleged, with
discrimination on the basis of origin or race. We are dealing with a relevant
difference against a background of foreign nationality, within the framework of the
struggle against terror (cf. Macabenta v.
Minister for Immigration and Multicultural Affairs [214]). The law does not apply to an ethnic-national
group but to the residents of the territories, from which hostile acts are being
waged against
‘A distinction based on nationality also has some
rational justification in terms of combating terrorism. It is not
unreasonable to assume, that, with the possession of a passport from a certain
country, the passport holder has a loyalty to that particular country. If such
a state is a terrorist-supporting state, or at least tolerant of terrorism
against the United States, then people holding its passport are more likely to
be supporting terrorist groups’ (at p. 102).
And they go on to say:
‘In light of the danger of emigration for terrorist
purposes, we would allow consideration of the original nationality where the
newly adopted nation is less than vigorous in opposing terrorism’ (at p. 103).
13. Beyond what is required in
this matter, it should be noted that a violation of a constitutional right to
family life in
Interim summary
14. The conclusion that arises
from all of the aforesaid is that in my opinion the law does not violate
constitutional human rights that are enshrined in the Basic Law: Human Dignity
and
The scrutiny from this point onward
will be based on the assumption that a constitutional human right
has been violated. Even on this assumption I am of the opinion that in our case
the conditions of the limitations clause have been satisfied. I will now turn
to consider the second stage of the constitutional scrutiny.
(2) The constitutional scrutiny — second stage: is the violation of the
constitutional right lawful (limitations clause)?
17. At
the same time, the weight of the opposite pan of the scales, which carries the
‘additional violation of human dignity’ is reduced, because the violation of
the right to family life (in so far as it exists), even if it is ‘certain’ as the
president says, does not exist in my opinion in the nucleus of the right to
human dignity, and this should be reflected in the weight of this pan of the
scales.
18. I am
of the opinion that the disagreements between us on the question of whether the
conditions of the limitations clause are satisfied or not lie, to a large
extent, in different attitudes to the requirement for an individual check of
the residents of the territories with whom the citizens or residents of Israel
wish to be reunited. Some of us are of the opinion that such a check will be
possible if only the financial resources are allocated for it; others (and I am
among them) are persuaded that a real individual check is not possible at this
time.
19. I
will not deny that the difficulty that arises in these petitions, in my opinion
also, is the placing of many persons (the residents of the territories of
certain ages) under suspicion of supporting (in practice or at least in
potential) terror activities against Israel. It is clear to everyone that this
suspicion has no basis with regard to the vast majority of the residents of the
territories. The approach of the law is not an individualistic one (someone is
suspected of being a terrorist) but a collective one (someone is included in a
population group from which terrorists or at least potential terrorists come).
This approach, even though its arrows are aimed at foreigners and only
indirectly at Israeli residents and citizens, does indeed present a difficulty.
It would certainly be preferable, if it were only possible, to carry out an
individual check, separate foreigners who do create a security risk from
foreigners who do not create such a risk, and allow the entry of the latter.
But the
respondents explain to us that it is not possible to ascertain, at this time,
details concerning residents of the territories with whom Israelis wish to be
united. This is because of the security difficulties, the lack of cooperation
of the Palestinian Authority in preventing security dangers, the dependence of
the Palestinian population on the mechanisms of the Palestinian Authority and
restrictions in the intelligence required by the security establishment in
order to determine specifically the level of dangerousness presented by each
resident of the territories who wishes to enter Israel. We are not speaking
here of a problem of financial cost. We are speaking of an operational
inability to obtain information. Notwithstanding this difficulty, within the
framework of the amendments to the law, the state took upon itself a
significant risk with regard to the relatively older ages. Unlike my colleague the
president, I do not think that from this we can deduce that an individual check
is possible. The conclusion is that with regard to relatively older ages, the
level of risk is lower.
I do not
dispute the remarks of my colleague the president that ‘a blanket prohibition
of a right, which is not based on an individual check, is a measure that raises
a suspicion of being disproportionate’ (para. 70 of the president’s opinion).
As a rule I accept that a violation of a basic right will be suspected of being
disproportionate if it is made on a sweeping basis rather than on the basis of
an individual check. Notwithstanding, and I believe that my colleague agrees on
this, there may be cases in which there is no alternative measure of an individual check. In our
case, the state has shown substantial reasons to explain why if we require an
‘individual check’ to be carried out (in the absence of the possibility of
obtaining information) this will lead to undermining the realization of the
purpose of the law, which my colleague defined as a purpose ‘to reduce as much
as possible the security risk presented by the spouse’ (para. 90 of his
opinion). A substantial reason can sometimes make the measure chosen in the law
pass the test of proportionality. As my colleague the president said in another
case, with regard to determining a maximum age:
‘Indeed, the
employer will find it difficult to satisfy the “smallest possible harm test” if
he does not have substantial
reasons to show why an individual examination will prevent the attainment of
the proper purpose that he wishes to achieve’ (Association for Civil Rights in Israel v. Minister of
Public Security [94], at p. 367 {11}; also see and cf. Shahin v. IDF Commander in Judaea and Samaria [103], at p.
214).
The
substantial reasons in our case are, as aforesaid, that there is no practical
possibility of carrying out an effective individual check. Rubinstein and Orgad
say that it also is not ‘practical to demand that a state that is involved in
an armed conflict should employ measures to collect intelligence in enemy
territory (measures that often involve a risk to human life and are an integral
part of the conflict itself), in order to deal with administrative applications
of residents of those territories who wish to enter the state’ (ibid., at p. 323, note 33).
21. Even
my colleague the president does not take the need for security checks lightly.
He says (in para. 94 of his opinion) that if it is not possible to carry out
the checks in one part of the territories or another ‘the individual check will
be postponed until the check becomes possible.’ But the law in any case was
enacted as a temporary
provision. Indeed, during certain periods while the petitions were pending
before us, it appeared that there was a reasonable chance of improving the
relations between
In these
circumstances, I agree with the determination of my colleague the
vice-president that ‘cancelling the blanket prohibition in the law and
replacing it with an arrangement of an individual check is likely to lead to
quite a high probability of an increase in terror activities in Israel… In the
task of balancing between a reduction of the killing, safeguarding life and
guaranteeing the stability of the system of government, as compared with the
damage caused to some of the citizens of Israel who wish to live with their
foreign family members in Israel — and we should remember that the amendment to
the law reduced the scope of the violation significantly — the benefit is, in
my opinion, greater than the damage’ (para. 109 of his opinion).
22. At
this stage, I feel myself bound to address some of the remarks of my colleague
Justice Procaccia.
I accept, as
aforesaid, that we should learn from history. In my opinion too, an individual
check, when one is
possible, is preferable to dealing with generalizations according to which a
certain group (residents of the ‘territories’) is likely to produce terrorists
or collaborators with terror.
But I am
afraid that my colleague Justice Procaccia has gone too far. My colleague in
her opinion issues a warning. She recalls the judgment in the case of Korematsu v. United States [185], which is infamous in the history of the
American people. My colleague says, admittedly, that ‘the circumstances in that
case are completely different from those in our case,’ but she immediately goes
on to say that ‘the wind that blows in the background of the constitutional
approach that was applied there by the majority opinion is not foreign to the
arguments that were heard from the state in the case before us,’ and she warns
us that ‘we must take care not to make similar mistakes.’ The outcome implied
by these remarks is that in our case we are likely to make a ‘similar’ mistake,
i.e., a mistake on the same scale as in Korematsu v. United States
[185]. In this respect I think I ought to differ.
In the case of Korematsu v. United States
[185], approximately one hundred and twenty-thousand citizens and residents of
the United States, who were of Japanese origin and lived along the Pacific
coast (‘the West Coast’) were uprooted from their place of residence and
livelihood and were placed in detention camps in the wildernesses of America.
Most of them stayed there for more than four years (for a description of the
injury to the citizens of the United States of Japanese origin, see A.
Gottfeld, ‘The United-States Versus its Citizens of Japanese Origin: the
Detention Camps in the United States in the Second World War,’ Introductions to the American Experience (2006) 127, at p. 130); for a
description of the historical-legal context in the period of the Second World
War, see also E. Gross, ‘Constitution and Emergency: Use of Emergency Powers in
American History,’ American Democracy — The Real,
the Imaginary and the False
(
(3) The constitutional scrutiny — third stage: the relief or remedy
24. Since I have reached the
conclusion that no constitutional human right has been violated in our case,
and even if one had, that violation would satisfy the conditions of the
limitations clause, the result is that the law does not suffer from
unconstitutionality. There is no basis for moving on to the third stage of constitutional
scrutiny, which is the relief or remedy stage. Notwithstanding, I would like to
join with the vice-president’s exhortation, in para. 125 of his opinion, that
the state should consider, if the validity of the law is extended, adding to
the law an exception according to which the Minister of the Interior will be
permitted — if he sees a special humanitarian need and if there is no
suspicion of a security risk — to consider giving a permit for the entry
of a resident of the territories into Israel. I would add that the state should
also consider, in my opinion, a significant increase of the age of minors to
whom the prohibition in the law will not apply.
Conclusion
25. As stated above, my opinion
is that the petitions should be denied.
Justice Y. Adiel
1. ‘Voiding
primary legislation whose purpose is the defence of national security, in the
middle of an armed conflict, is an exceptional act that should be adopted only
in exceptional cases requiring this’ (A. Rubinstein and L. Orgad, ‘Human Rights, Security of the State and the
Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006),
at p. 327, note 43). In the case before us, I am not persuaded that there is a
justification for adopting this exceptional step. The following are my reasons.
2. According to the petitioners, the
Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003
(hereafter — the law) violates the constitutional rights to family life
and equality.
3. With regard to the right to family law, in
view of the proximity of this right to the nucleus of the right to dignity, its
centrality in the realization of the autonomy of the individual to shape his
life and the case law of this court which is mentioned in the opinion of the
president, I accept that the right of the Israeli spouse to family life in
Israel together with his foreign spouse is indeed included within the framework
of the right to human dignity within the meaning thereof in the Basic Law:
Human Dignity and Liberty (hereafter — the Basic Law). Since the law
prevents the realization of this right, it violates the right to dignity under
the Basic Law.
4. On the other hand, I do not think that the
law violates the right of the Arab Israeli spouse to equality. Indeed, ‘a
violation of the principle of equality… is also discrimination of an Arab
because he is an Arab’ (Association for Civil Rights in Israel v. Government of Israel [40], at p.
27). But the refusal to grant a status in
‘Preventing
the entry of nationals of an enemy state or nationals of a hostile state is
likely in many cases to harm legitimate and important interests of the citizens
of the state that imposes the prohibition — whether we are speaking of the
desire to create a bond of marriage and whether we are talking of other
personal and economic relationships. This violation is likely to be more
serious when it specifically affects certain groups of citizens. In most cases,
the hostile state is not merely a national state, but it is often a
neighbouring state. For this reason it is not at all uncommon that when a
conflict is being waged between the two states. there are in the territory of one
or both of them a population of citizens that has an ethno-cultural connection
with the other state… In this situation, preventing the entry of nationals of
the hostile state naturally injures the members of that group more than other
groups. But this fact does not disqualify the prohibition against the entry of
enemy nationals — a prohibition whose purpose is to protect the security
of all the citizens of the state, whatever their origin — and it cannot be
considered to be improper discrimination against the members of that group on
account of their origin; this is a necessary and unavoidable consequence of a
dispute between two national states and the principle of self-defence’ (ibid., at pp. 325-326).
5. Notwithstanding the law’s violation of the
right of the Israeli spouse to family life in
6. This position derives from the bloody conflict
that has been taking place for several years between Israel and the Palestinian
Authority, and the professional assessment of the security forces, against this
background, that the permanent entry of residents of the territories into
Israel and their free movement inside Israel that is facilitated by the receipt
of Israeli documentation may endanger the safety and security of the citizens
and residents of the state to a greater degree. This assessment is based, inter alia, on the
nature of the conflict that is characterized by the deep involvement of the
civilian Palestinian population, the fact that residents of the territories who
received a status in Israel are an important component in the terror
infrastructure and in the planning and perpetration of attacks, and the fact
that these residents have become ‘a preferred population of terror
organizations for the perpetration of hostile activity in general, and inside
the State of Israel in particular’ (explanatory notes to the draft Citizenship
and Entry into Israel Law (Temporary Provision) (Amendment), 5765-2005). This
court also held in the past that the terror organizations ‘are supported by
part of the civilian population, and by their families and relatives’ (Ajuri v. IDF Commander in West
Bank [1], at p.
358 {87}). This assessment is supported by the existence of the de facto involvement
of Palestinians that were residents of the territories who received a status in
In this
context, great weight should also be attributed to the ‘international norm
according to which no state is accustomed to allow into its territory persons
who have connections with the side fighting against it in a time of an armed
conflict,’ a norm that applies also to immigration for the purposes of marriage
(Rubinstein and Orgad, supra, at pp. 316 and 320).
At the same
time, we should take into account the fact that we are speaking of a temporary
law (Gaza Coast Local Council v.
Knesset [6], at p. 553), and the qualifications that were recently added to
the law, which have reduced the injury and allowed a status to be given in
Israel to population groups who present a smaller security risk.
In view of all the considerations above, and
in view of the degree of caution and self-restraint that the court should adopt
when it considers the voidance of primary legislation (see Menahem v.
Minister of Transport [11], at p. 263), I am of the
opinion that the law satisfies the proportionality test provided in the
limitations clause of the Basic Law (with its three subtests), and there are no
grounds for declaring it void.
7. Therefore
I agree with the conclusion of the Vice-President Emeritus,
Justice E.
Rivlin
My colleague,
‘This law’ — as the Citizenship and Entry into
Israel Law states — ‘shall remain valid until the second of Nissan 5766
(31 March 2006)’ (with a fixed extension because of the elections that took
place). This sunset provision in the law provides that it will be void when it
expires. We have no further need to make an order to this effect. And if I do
not end my opinion here, it is for the following two reasons: first, I assume that those who agree with the position of my colleague the
president are of the opinion that if we do not do so now, we shall need to consider
the constitutionality of the law if and when it is extended. Second, and no less important, I cannot avoid addressing the fundamental
positions expressed by my colleague
As I shall
clarify below, the first question, the automatic expiry of the law, is not
unrelated to the other, the fundamental question of the constitutionality of
the law. A consideration of one also has implications for the other.
2. My colleagues, who saw a need to resort to
constitutional judicial scrutiny, were of the opinion, I assume, that ‘what has
been is what will be’ (Ecclesiastes 1, 9). There is no assurance of this. Admittedly
the law was extended in the past by the Knesset for limited periods, but from
time to time important changes were made to it. Moreover the Knesset that
enacted the Citizenship and Entry into Israel Law and extended its validity has
been dissolved, and a new and different Knesset has replaced it. The government
that initiated the law no longer exists and a new government has been formed in
its stead. The parties that made up the previous government have changed almost
unrecognizably. For all these reasons, constitutional review of the law, in so
far as it is prospective, necessarily addresses a law that has not been
enacted, a law whose provisions can hardly be predicted today. ‘What has been’ is
not (necessarily) ‘what will be’ — if there will be anything at all.
3. The question of intervention here highlights the issue of judicial authority:
judicial authority is limited to the questions in dispute. Indeed the court,
when necessary, goes beyond its traditional and natural role of deciding a concrete
dispute between litigants, and it is required to address ethical questions that
underlie the substantive rule of law and whose implications extend beyond the
specific case of those litigants. It is the duty of the court to protect the
basic rights of the individual and of the whole public against a violation
thereof by the executive and legislative branches. Moreover, constitutional
judicial review is an essential tool for ensuring the protection of the
substantive rule of law. Democracy is not merely the rule of law in its formal
sense. Democracy is also substance. Its values, including dignity, liberty and
the other human rights are its soul.
But even when the judge is required to depart
from the nucleus of his authority and to make a contribution to the substantive
rule of law, he does not remove his judge’s gown. This gown is not the garb of
power. It brings with it an advantage and limitations. Its advantage is that it
isolates its wearer from foreign influences and it maintains his independence.
But the gown also has a price. Its limitations are limitations that its wearer takes
upon himself voluntarily, for his power lies in these too. The judge limits
himself with rules. In his decisions he only addresses what the parties brought
before him. He restricts himself to concrete questions of real substance on
which a decision is essential. He does not give advisory opinions (see Rescue Army v. Municipal Court
of Los Angeles [210]) nor does he decide questions that have not yet arisen or
questions that are no longer relevant.
The court is
required to adhere to these rules especially when it is empowered with the most
drastic measure that it possesses, which is reserved for cases where it has no
alternative — the measure of declaring a law passed by the legislature to
be void. Indeed, in the
4. The court
in
The rule that does not permit the consideration of
‘theoretical’ questions is also applied in the courts of
5. Some of these
‘filter’ rules have not been adopted in Israeli law; we have relaxed the rules of
standing for a litigant in constitutional matters, and the question of
‘justiciability’ has been answered in Israel in our own way. Notwithstanding,
we do not usually consider ‘theoretical’ questions that have become moot or
that do not yet require a decision. We do not consider these questions before
they become relevant or after they have ceased to be so. We consider them at
their proper time. A change in circumstances that occurs after the filing of a
petition to declare a law void may affect whether we decide to consider the
petition. A significant change, and certainly the expiry of the law, after the
petition is filed and before the judicial decision, may make the decision
redundant.
The rule that the court will not consider a petition if
the question it raises has become moot was discussed by
‘The basic rule is that in general the court will not consider a
petition, even if it was relevant, from the moment that it becomes theoretical
(Tzemah v. Minister of Defence [9], at p.
250 {640}. This rule also applies to petitions that raise important and
fundamental legal questions. When the late Mr Overkovitz died, this petition
became moot. Admittedly we sometimes consider theoretical petitions despite the
aforesaid rule. This will occur especially in a case where “from a practical
viewpoint the court cannot make a decision… except when it is presented as a
general question that is unrelated to a specific case” (ibid., at p. 250 {641}; see also HCJ 73/85 Kach Faction v. Knesset Speaker [175], at pp. 145-146). But the case before us is not of this kind.’
The rule, and
the exceptions thereto, were also discussed by Justice M. Naor with respect to
an appeal concerning the interpretation of a law that became theoretical after
the appeal was filed. This is what she said in CA 7175/98 National
Insurance Institute v. Bar Finance Ltd (in liquidation) [176]:
‘The rule is that the court does not consider matters that have become
academic and theoretical. This is the rule in civil matters: CA 506/88 Shefer v.
State of Israel [177]. This is also the rule in the
High Court of Justice: Kach Faction v. Knesset Speaker [175]; Attorney-General
v.
Indeed, there
is no rule that does not have an exception. The court may consider a matter
that has become theoretical where the issue involved is likely to recur and its
nature is such that it becomes theoretical before a judicial decision can be
made with regard thereto (an issue that is “capable of repetition, yet evading
review,” in the words of Justice McKenna in Southern
Pac.Terminal Co. v. Interstate Commerce Commission [213], cited in Roe v. Wade [212] and Shefer v. State of Israel [177]).
A good example of the exception that the appellant mentions in his
statement is Tzemah v. Minister of Defence [9], in
which the question raised was whether a provision of the Military Jurisdiction
Law, which states that a senior officer who is a military policeman may make an
order to arrest a soldier for a period that does not exceed 96 hours, was
contrary to the Basic Law: Human Dignity and Liberty. In this matter, which was
of a recurring nature, it was impossible to make a fundamental decision before
the matter became theoretical.’
See also Man, Nature and Law Israel
Environmental Protection Society v. Minister of Interior (not yet reported) [178]; the remarks of Justice M. Naor in HCJ 7190/05
Lobel v. Government of Israel [179], with
regard to denying a petition that could not be decided because of ‘the absence
of a concrete, clear and complete set of facts, which is essential for making a
principled judicial decision.’
6. In our
case, the petition concerns a temporary provision whose type and circumstances
justify a finding that the petition is both too late and too early. A number of
factors make this the case, and together they all lead to the conclusion that
there is no reason to make a judicial declaration that the temporary provision
is void: the new law has not yet been formulated, if indeed the incoming
Knesset chooses to enact such a law, whereas the existing law is about to
expire. In this sense, the dispute today is merely speculative and its consideration
is ‘theoretical.’ A real dispute should exist at every stage of conducting the
judicial review and not only when the petition is filed; the deliberation is fruitful
when it takes place too early, before the dispute is not known, or where it has
not crystallized. The approach that where there are no special circumstances to
justify this, the legislature should not be called to account with regard to a
law that is no longer valid, or a law that has not yet come into effect, is based
on remedial considerations and the logic of exercising judicial discretion. Admittedly
even a temporary provision may justify judicial review, where there are
circumstances that justify intervention; but in our case no such circumstances
exist (cf. Ressler v.
Knesset [128]).
Even if the legislature once again extends the
temporary provision for a limited period, we have no reason to assume that the
new temporary provision will be identical to the one we are reviewing today. Experience
shows that in the past the legislator made a significant change to the
provisions of this law. The change was in the clear direction of reducing the
restrictions applicable to foreigners who want to become residents of
My conclusion is therefore that there is no need to
address the question of the constitutionality of the provisions of the law,
which are changing and at this time are setting into the murky waters of the
future. Indeed, in the circumstances of this case it would be wrong to do so.
The constitutional right
7. My
colleagues saw fit to act differently, and the disagreement between them
focuses on the opinion of my colleague
‘…While we write this judgment the citizens of
He describes the
alarming manner in which the ‘Protocols of the Elders of Zion’ have made their
way into the Hamas Charter. He speaks of the responsibility that rests with the
state to protect the lives of its citizens. Against this background, he seeks
to determine the boundaries of the constitutional right to raise a family. In
times of war, he says, it is questionable whether the basic right to marriage
and family life ‘implies, in itself, a duty imposed on the state to allow the
entry into
‘… here we
will also find the answer to the claim of discrimination, since a distinction
made by the law — a distinction that concerns the residents of the territories
and not the citizens of the state — is a permitted distinction between the
citizens of the state who married foreign citizens that are enemy nationals and
citizens of the state who married foreign citizens that are not enemy
nationals.’
8. I too am of the opinion that the
constitutional question should not be divorced from the reality that
encompasses it. The question should not be posed with regard to a theoretical world
on another planet. The constitutional question should be considered here and
now, in a pain-stricken state that exists on a burning strip of land. The
reality is an overall reality in which it is difficult to make theoretical distinctions,
just as there is no basis for making a theoretical and artificial distinction
between the interest of the Israeli spouse who wishes to marry and the interest
of the foreigner whom he wishes to marry; we should not avert our eyes from
seeing who the foreigner is, to which political entity he belongs, who are his
elected leaders and what are the circumstances in which his case is being
considered. This reality that my colleague the vice-president describes is the
true picture. It has an effect on the legal outcome, but my approach with
regard to the method of the legal scrutiny is different. I believe that this
reality cannot change the definition and scope of the right. It should be taken
into account when we consider, within the framework of the constitutional
balance, the question of the constitutionality of the restrictions imposed on
the basic rights. In this I agree with the position of President A. Barak. One
should not extend the operation of the limitations clause by restricting the
right itself. The right should be interpreted generously and liberally. Thus,
for example, we held that the scope of the freedom of expression also includes
obscene and slanderous expressions, so that all forms of expression prima facie enjoy constitutional
protection:
‘In examining
the right of freedom of expression the point of origin in our legal system is
that every expression, whatever its content may be, is “covered” by the
constitutional protection’ (per Justice D. Dorner, in HCJ 5432/03 SHIN, Israeli Movement for Equal Representation
of Women v. Council for Cable TV and Satellite Broadcasting [180], at p.
81 {35}).
This is also
true with regard to the right to family life. The right to realize family life
is a basic right. Denying it violates human dignity. Denying it infringes the
autonomy of the individual to marry whom he wants and to establish a family; it
certainly infringes his liberty. This violation of liberty is no less serious
than the violation of human dignity (on the restriction of the right to marry
as a violation of liberty, see Justice Warren in the leading case of Loving v. Virginia [188]). It
deals a mortal blow to a person’s fundamental ability to dictate his life story.
Israeli law recognizes the right of the Israeli citizen to family life. The
right to family life also means the right to family life together under one
roof. The right to family life is not merely the right of the parents. It is
also the right of the child born to those parents. The right to family life is
therefore protected in the provisions of the Basic Law as a part of the basic
right to liberty and as a part of the basic right to dignity.
The
definition of the right to have a family life should not be restricted. Even if
we cannot allow its full realization, because of permitted constraints, we should
not restrict its recognition. My colleague the vice-president says that the
restrictions imposed on the constitutional right here do not concern the
‘nucleus’ of the right and they are located on its periphery. He therefore
seeks to define the right under dispute in a more focussed manner. My opinion
is different. Even if we are speaking of a ‘peripheral’ aspect of the right, as
he assumes, this cannot affect the definition of the right. The premise should
be a generous definition. The restriction — which may take into account
the location of the case in the periphery or the nucleus of the right —
should be considered within the framework of implementing the limitations
clause. The balance between rights of the individual and the public interest or
between rights inter se should be
made within the framework of the limitations cause.
9. Derogating from the constitutional right to
family life has ramifications, in the circumstances of the case and in an
indirect manner, on a defined and distinct sector of the population, which is
also a minority group. It therefore includes a violation of equality. The right
to equality is a part of human dignity. The violation of equality is improper
whether it is a collective violation, an individual violation, a violation that
diminishes human dignity because of the degradation and humiliation of the
injured person or a violation that detracts from the right of every person to
enjoy, in an equitable manner, the advantages of persons living in that
specific society. ‘This is a violation of the autonomy of the individual
will — the freedom of choice and freedom of action of the human being as a
free creature’ (
‘The State of
Israel is a Jewish state in which there are minorities, including the Arab
minority. Each member of the minorities who lives in
We have held
that discriminating against an Israeli Arab merely because he is an Arab
violates equality. A discriminatory violation of social equality is a violation
of equality. A direct or indirect violation of the right to education which
involves manifest or latent discrimination against a certain sector of the
population is a violation of the constitutional right to equality (see Supreme Monitoring Committee
for Arab Affairs in Israel v. Prime Minister of Israel [41]).
10. The
Citizenship and Entry into Israel Law violates the possibility of realizing the
constitutional right to family life and the constitutional right to equality.
It reduces their scope. Albeit the law does not prevent the Israeli spouse from
marrying the spouse from the territories, nor does it prevent the Israeli
spouse from realizing his right to have a family life in the territories, or
anywhere else outside Israel. But it derogates from the right of the Israeli
spouse to realize the family unit in Israel in those cases where the foreign
spouse is a resident of the territories and is included in those categories with
regard to which the Minister of the Interior has been authorized to prevent
their entry from the territories into
‘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’ (at
para. 20).
I agree,
therefore, with the approach of my colleague the president that there is only
one track for examining the petitions before us. This track is the path of the
basic laws — the rights specified in it and the balancing tests prescribed
in it.
The conditions for limiting
12. There
are four conditions stipulated in the limitations clause: the violation of the
basic right must be in statute or by virtue of statute; the law must befit the
values of the State of Israel; it must be intended for a proper purpose; and it
must violate the constitutional right to an extent that is not excessive. The
disagreement in this case does not revolve around the question whether the
first and second conditions are satisfied. It concerns the question whether the
third and fourth conditions are satisfied, i.e., whether the law is intended
for a proper purpose and whether it does not violate the constitutional right
to an extent that is not excessive. The third condition concerns the purpose
and the fourth concerns the proper means of realizing it.
With regard
to the third condition, namely the question whether the law is intended for a
proper purpose, a difficulty may arise that is inherent in the actual
definition of the purpose. The violation of the constitutional right within the
framework of a law of the Knesset may be intended to protect another right, and
it may be intended to achieve a particular public interest. ‘In principle, a
purpose is a proper one if it serves an important social purpose that is
sensitive to human rights. Therefore, legislation that is intended to protect
human rights is certainly for a proper purpose. Also legislation that is
intended to achieve general social purposes, such as a welfare policy or
protecting a public interest, is for a proper purpose’ (per Vice-President Barak in United
The purpose
of the law in this case, as my colleague the president determines, is a
security purpose. It aims to reduce, in so far as possible, the security risk presented
by foreign spouses in
The law, so
my colleague the president determines, is intended to provide security for
The requirement of proportionality
13. The
fourth condition listed in the limitations clause requires the violation of the
constitutional right not to be excessive. It is not sufficient that the purpose
is a proper one; it is necessary that the measures adopted to realize it will
also be proper ones, i.e., proportionate ones. The phrase ‘to an extent that is
not excessive’ has been interpreted in Israeli case law, following foreign case
law, as referring to three subtests: the suitability test (the rational
connection), the necessity test (the least harmful measure) and the test of
proportionality in the narrow sense (the proportionate measure test). The first
subtest requires the existence of a rational connection between the (proper)
purpose and the measure chosen for realizing it. This is a test of common sense
and life experience. Among the measures that satisfy the rational connection
between the proper purpose and the measure, the measure that is least harmful
should be chosen; this is the second subtest. The third subtest is the subtest
of the total balance. It examines whether the correlation between the benefit
arising from achieving the (proper) purpose and the damage caused (as a result
of the violation of the constitutional right), achieves a proper balance
between the needs of the public and the harm to the individual.
The third
subtest of the requirement of proportionality therefore imposes on the court
the task of making a balance, but this balance is not divorced from the test
that the court makes within the framework of the first two subtests. Moreover,
in many cases, when it has been proved that there is a rational connection
between the purpose of the law and the means chosen by it (the first subtest)
and when the court has been persuaded that the purpose of the law cannot be
achieved, as it is, by adopting less harmful measures (the second subtest) the
path to the conclusion that the proper overall balance (the third subtest) is
also fulfilled is a short one. This natural path has led several persons to the
conclusion that the third subtest is in fact a redundant stage in the
constitutional scrutiny, and indeed the positive determination of the first two
subtests has led frequently to a quick decision on the question of the third
subtest (see, for example, R. v. Keegstra [219]; McKinney v. University of Guelph [220]).
Personally, I
do not agree with the approach that the implementation of the third subtest is
redundant. It seems to me that one should not reach a sweeping conclusion that
when the first two subtests are satisfied, the question whether the condition
of proportionality is satisfied will be answered in the affirmative. Admittedly
the third subtest should not be divorced from the other two, and the answer
given to each one of them inherently has an effect on the others. But one
should not belittle the importance of the last subtest, just as there is no
basis for exaggerating the importance of each of the subtests on its own. They
should be applied while showing sensitivity to the circumstances of each case
(see Libman v.
Therefore the
court will refrain from applying the proportionality tests mechanically or
literally, when it is considering declaring a law void. This was well expressed
by the
‘The impairment must be “minimal,” that is, the law
must be carefully tailored so that rights are impaired no more than necessary.
The tailoring process seldom admits of perfection and the courts must accord
some leeway to the legislator. If the law falls within a range of reasonable
alternatives, the courts will not find it overbroad merely because they can
conceive of an alternative which might better tailor objective to infringement’
(see RJR–MacDonald Inc. v. Canada (Attorney-General) [1995] 3 S.C.R 199,
at p. 342, and also Libman v. Quebec (Attorney-General) [221]).
The tests of
proportionality combine to examine the correlation between the expected
violation of the protected right, namely the strength of the violation and the
likelihood of its occurrence, and the expected benefit inherent in the proper
purpose of the law.
14. I
agree with my colleague’s determination that with regard to the conditions of
proportionality the first two subtests are satisfied. First, this is because
there is a rational connection between the purpose of the law and the measures
chosen by it. ‘The prohibition against the entry of the foreign spouses into
With regard
to the second subtest, my colleague the president says that a simple overall
comparison between the harm caused by the ‘blanket prohibition’ against foreign
spouses entering Israel, and the possibility of making an individual check with
regard to the security risk presented by each of the spouses who wish to enter
Israel will indeed show, necessarily, that the individual check is less
harmful. But this is not the relevant comparison. ‘The question,’ the president
clarifies, ‘is whether it is possible to achieve the purpose of the law by use
of a less harmful measure’ (para. 88 of his opinion). This approach has also
been adopted, for example, by the
What remains
undecided, therefore, within the procedural framework chosen by my colleagues,
is the question concerning the third subtest of the conditions of
proportionality, the question of proportionality ‘in the narrow sense,’ namely,
whether the benefit arising from achieving the proper purpose of the law is
proportionate to the damage caused by it. My colleague
Between an interest and a right
15. The
balancing test between the adopted measure and the purpose underlying the law
is derived from the question of the definition of the value competing with the
violated right: a private right or a public interest. Even prior to the Basic
Law, case law created a distinction between a vertical balancing test (between
a right and a public interest) and a horizontal balancing test (between rights
of equal weight). But this distinction is sometimes problematic. The problem
arises from the artificiality that is often inherent in defining the public
interest as distinct from the right of the individual. It should always be
remembered that the public, which has the interest, is composed of individuals.
And when the public interest is divided up into its individual constituents, it
reveals an accumulation of rights of the individual. Thus, for example, when we
are speaking of public security, which is called a public interest, we are
speaking of none other than the right of each member of the public to life and
safety. This classification has great significance, since the balancing test
depends upon it (and see in this respect also the various positions concerning
the classification of rights and conflicting values in HCJ 6126/94 Szenes v. Broadcasting
Authority [181] — a public interest or a personal right — and the
various balancing tests adopted there accordingly). With regard to the purpose
in the law, we are not required in this case to make that distinction, since we
have before us a proper purpose, whether the competing value is classified as a
general interest of public security or whether it is classified as a personal
right to life, and no one disputes this. But this classification may have, in
this case, a significance with regard to the balance underlying the requirement
of proportionality.
The overall balance
17. The side
of the benefit in this balance was discussed in the opinion of my colleague the
vice-president (at para. 109):
‘… an
individual check of the persons included in those population groups who have a
proven potential for endangering security and life may reduce the violation of
the ability to have a family life in Israel, but it will not properly guarantee
public security, and it will disproportionately violate the security of the
individual and the public. It is not merely that there is an inherent
difficulty in examining ab initio the positions and beliefs of the
resident of the territories, to find out whether he supports our enemies or
not; we also cannot ignore a real concern, which has been proved in the past,
that the terror organizations will recruit the spouse who is a resident of the
territories into its ranks only after he has been given a permit that
allows him to enter Israel and to move freely in Israel. The investment of
greater resources or more concentrated efforts will also not guarantee the
security of Israeli residents, and the meaning of this is that cancelling the
blanket prohibition in the law and replacing it with an arrangement of an
individual check is likely to lead to quite a high probability of an increase
in terror activities in Israel; to the killing and wounding of residents of the
state; to a real and tangible weakening of the feeling of stability; and as a
result of all of these to the undermining of democracy itself. In the task of
balancing between a reduction of the killing, safeguarding life and
guaranteeing the stability of the system of government, as compared with the
damage caused to some of the citizens of Israel who wish to live with their
foreign family members in Israel — and we should remember that the amendment to
the law reduced the scope of the violation significantly — the benefit is, in
my opinion, greater than the damage.’
This is the
position with regard to the benefit. With regard to the damage, the legislator
has done much to reduce it. First, the restriction imposed in the temporary
measure does not apply to marriages with Palestinians who live in countries
that have ceased to be enemy states,
‘… the
security checks must be treated with great seriousness. Therefore if it is not
possible to carry them out because of the security position in one part of the
territories or another, the individual check will be deferred until the check
becomes possible.’
Moreover, in
the prevailing reality even my colleague the president recognizes the
possibility of formulating presumptions of risk that naturally involve a
generalization, including a presumption with regard to the age at which
foreigners present a danger. ‘If it is necessary to allow the identification of
the foreign spouses in Israel as persons who came from the territories,’ he
says, ‘this should be allowed until they reach the age at which the danger
presented by them is reduced’ (para. 94 of his opinion). This need also
reflects the difficulty inherent in an individual check as a replacement for
the measure adopted by the law. This need, to make the individual checks
stringent, indicates the difficulty in achieving the purpose underlying the law
by a different method. The difficulty is two-fold: the need to discover the
character of persons who live outside the jurisdiction of the State of Israel
and the need to predict the future with regard to the expected behaviour of
foreigners who wish to enter the territory of the state even as we speak.
Restricting the right of foreigners who are nationals of an enemy entity to
live in Israel together with their spouses, during this war, is a consequence
of the fear concerning the intentions of hostile parties to recruit them for
terror activities, the fear that within this framework pressure will also be
placed on persons who would personally prefer not to be involved in this, and
past experience that shows that for the purpose of the struggle against the
State of Israel use has been made of civilians.
Moreover, the
legislature reduced the blanket prohibition prescribed in the original law. It
applies the prohibition to population groups that present a relatively high
risk, in accordance with past experience and the professional assessment of the
security authorities. It adds to this the possibility of giving permits to stay
in
Therefore I join with the position of my colleagues who wish to cancel
the order nisi that was made and to deny the
petitions.
Justice E.E. Levy
1. In this matter, which I believe is one of
the most sensitive and complex ever brought before this court, we are charged
with the difficult task of finding the proper balancing point between basic
rights of the first order and the security needs of the State of Israel. At
this time in particular there is no need to expound on the weight of these security
needs. As for me, I will not hide the fact that the decision was accompanied by
grave doubts, and that I wavered to and fro between the conflicting outlooks of
my colleagues
2. For more than half a decade the citizens
and residents of
3. It is not for nothing therefore that the
serious events that we have witnessed since September 2000 have become a
turning point. Just as their intensity was completely different from the
patterns of terror known in previous decades, so too did it become clear that
the measures and defences used to frustrate terror adopted until then were
insufficient. A redeployment and the implementation of more drastic defensive
measures, which hitherto there had been no need to adopt, became necessary.
These include legal arrangements that were capable of providing a normative
basis for the war against terror. Thus, inter alia, the right of Israel to
protect itself by means of a separation fence was recognized in principle (Beit Sourik Village Council v.
Government of Israel [2]); it has been held that the military commander in the territories
may order the place of residence of a person to be assigned for reasons of the
security of the territories (Ajuri v. IDF Commander in West Bank [1]); the ability to impose
severe restrictions on detainees in times of war (Marab v. IDF Commander in Judaea and Samaria [3]); and so
on.
At the same
time it became clear that the arrangements, by virtue of which it was possible
for residents of the territories to acquire a status in Israel, could no longer
stand in view of the drastic change in circumstances. I am speaking of the
concern that by allowing the process of ‘family reunifications’ in the format
that preceded the government decision of May 2002, there was a security breach
that might play into the hands of the terror organizations. These, of course,
rest neither night nor day in their attempts to find weaknesses in the defences
of the State of Israel. Regrettably, from time to time they even succeed in
doing so, and the suicide attacks that have plagued us only recently are
sufficient to remind those persons, who wish to make light of the efforts of
the security forces to prevent them, of how terrible and murderous are the
consequences of a security breach of this kind.
4. My colleague Vice-President Cheshin is
therefore right in explaining that especially at this time the weight of the
public interest, which seeks to reduce the security danger and ensure
protection for the lives and safety of the public, is very great. The Knesset
and the government rightly sought, each with the means at its disposal, to
realize this interest by means of an arrangement that would reduce the existing
risk. And even if, as my colleague the president says, the existence of this
risk does not reduce the weight of the basic rights of the individual, which are violated by the
arrangements adopted, in my opinion the security risk is most certainly capable
of influencing the scope of the
protection given to these rights and the location of the balancing point between
them and the competing values.
5. With regard to the nature of the
arrangement under discussion in this case, I think that no one questions that
the Knesset has the power to make legislative arrangements with respect to the
immigration of persons who are not Israeli residents into its territory. This
power is one of the cornerstones of every state, and my colleagues the
president and the vice-president both discussed this extensively in their
opinions. By means of arrangements of this kind, the state expresses its
sovereign power of determining who may enter it, and naturally this involves
making decisions concerning the composition of the population, the burden that
the state is prepared to take on itself in absorbing new residents, the degree
of benefit that this provides to the existing residents, and so on. And if this
is the case in times of peace, it is certainly the case in times of war.
6. Indeed, the public interest has a central
place in shaping legislation that regulates the issue of immigration. However,
and this is the second principle on which my position is based, I believe that
there is no subject that is regulated in legislation that is exempt from
satisfying the normative balance test against competing rights and values. From
the moment that these acquired constitutional status, the scrutiny is a
constitutional scrutiny, and when the court is required to carry out this
scrutiny, it can only avail itself for this purpose of the tools of
constitutional scrutiny prescribed in the Basic Laws and developed in the case
law of this court for almost a decade and a half. This is self-evident, since
as long as the Knesset as the legislature wishes to determine arrangements in
statute — as opposed to Basic Legislation — it is subject to those
principles that it established for itself when it sat as a constitutive
authority.
Thus, no
matter how important they may be, the immigration laws are not immune to
constitutional review. Therefore, and notwithstanding the natural and
understandable concern that the public interest of protecting the security of
the state and its residents may be harmed, we cannot regard the executive power
to determine immigration arrangements as an absolute authority that cannot be
challenged. Like any authority, the exercising of this one is also subject to
the rules and principles of constitutional scrutiny, and the first stage of
this addresses the question whether basic rights of the individual have been
violated by it.
7. Two constitutional rights of the Israeli spouse who wishes
to be reunited here with his Palestinian spouse are violated by the legislative
arrangement that is the subject of the petitions before us, and both of them
are derived from the right to human dignity, which is enshrined in the Basic
Law: Human Dignity and
The second right
that is clearly violated by the Citizenship and Entry into Israel Law
(Temporary Provision) is the human right to equal treatment. Prima facie, the prohibition in the law
does not distinguish between Arab residents of
8. With regard to the purpose, as aforesaid,
in the arrangement that is contained in the Citizenship and Entry into Israel
Law, the legislature sought to provide a solution to the security risk
presented by the spouse who is a resident of the territories, who wishes to
make
9. We therefore find ourselves, and in this I
am in agreement with the opinion of my colleague the president, in the last
stage of the constitutional scrutiny, which is the stage of considering the
question of proportionality. I agree with my colleague the president that in
its present form the law is problematic, since I fear that it harms not only
the spouses who wish to be married, but also the democratic character of the
State of Israel and the delicate fabric of relations with a significant sector
of the public that lives in it. Notwithstanding, I think that the centre of
gravity lies particularly in the second test of proportionality, namely the existence of a less harmful measure
that is still capable of fulfilling the purpose underlying the Citizenship and
Entry into Israel Law, which is, as I have said, reducing the danger that the
normative arrangement will be abused to harm the security of the state.
The premise
for my position, which seeks to discover less harmful measures than the one
adopted by the Citizenship and Entry into Israel Law, is based on the
assumption that in the final analysis there will be no alternative to replacing
the blanket prohibition in the law with an arrangement based on an individual
check of the person wishing to be reunited with his spouse. Naturally this
arrangement must adapt itself to the security reality to the extent that this
may change, and at this time I am of the opinion that the state ought to adopt
measures of the kind that I will list below or ones like it, all of which at
the discretion of the legislature:
a. At this time, in so far as concerns the
residents of the Palestinian Authority, whose ‘hostility’ does not require
proof, they shall be subject to a ‘presumption of dangerousness,’ which the
person seeking to immigrate will be required to rebut. For this purpose, the
respondents may make the consideration of the case of the Palestinian spouse
conditional upon presenting various items of documentation, from which it will
be possible to discover his family and social ties, and whether he presents a
danger in the present or the future. It is clear to me that an examination of
the dangerousness of the candidate is difficult even in times of calm, and even
more so in times of a security deterioration, and therefore this check may take
time, and sometimes it is possible that it will not be possible to complete it,
such as when the security establishment does not receive cooperation from its
counterparts in the Palestinian Authority, and there is a difficulty in
obtaining the information.
b. It is a common phenomenon that a
Palestinian who wishes to be united with his Israeli spouse first moves his
place of residence to
This leads to
my conclusion that a consideration of an application of a Palestinian who
wishes to be united with his Israeli spouse should be subject to the condition
that as long as no decision has been made, he undertakes not to enter
c. I further think that it would be correct to
require every Palestinian who wishes to be united with his spouse in
As stated,
these are merely examples of measures that could be adopted in order to ensure
that the individual check does not become a source of security danger, and I am
convinced that creative thinking by all the parties concerned may find
additional measures that will achieve the same goal. However, to do all this
requires time, and I am of the opinion that stipulating a framework according
to which the respondents will be required to provide an improved arrangement
within nine months is
reasonable. Until such an arrangement is presented, because of the urgent
security requirements, and the fear that a void may be created in the law, my
opinion is that the current arrangement should be allowed to stand, in so far
as the Knesset decides to extend its validity. It is also self-evident that the
state should consider including transition provisions within the framework of
the amended arrangement, in so far as these are relevant.
10. Before
concluding my remarks, I would like to add that I can only express regret at
the fact that the terror organizations, who do not stop at anything in order to
achieve their purpose, do not even hesitate, as has been proved in the past, to
abuse the genuine desire of Arabs on both sides of the border to be united in
the covenant of marriage. It would appear that just as those persons do not
recoil from spilling the blood of men, women and children whose only ‘sin’ is
that they are Jewish (and we should remember that non-Jews have also been
hurt), it is doubtful if they give any weight to the fact that by their actions
they cause great damage also to the interests of members of their own people.
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.
16 Iyyar 5766.
14 May 2006.