The law bars Palestinians from the OPTs from obtaining any residency status or citizenship in Israel through marriage to an Israeli citizen, thereby prohibiting them from living in Israel with their spouses. The law has already affected thousands of married couples and their children living in Israel, as well as newly married couples, and has forced families to separate or emigrate.
Adalah attorney Orna Kohn argued in the motion for injunction order that the extension of the law will further exacerbate the existing infringement on basic constitutional rights, owing to the fact that, “the longer the infringement goes on, the harsher the damage inflicted, since forced separation between a parent and child, man and wife, becomes harder to bear the longer it continues.” Adalah also stressed that families have already de facto been damaged by forced separation prior to the passing of the law as a result of the previous government decision of 12 May 2002. Some families have even been affected since March 2002, by an earlier decision of the Minister of the Interior (MOI). Thus, the violation of the basic constitutional rights of all of these families has been going on for over two years.
Moreover, today’s vote contradicts what the Attorney General (AG) has previously stated before the Supreme Court in response to the petition filed on 3 August 2003 by Adalah, which asked the Supreme Court to declare the law unconstitutional and therefore void. In his response, the AG argued that the law is constitutional and proportionate, because it would remain in effect for only one year, emphasizing its temporary nature.
In addition, Adalah contended in the motion that the government and the parliament did not present any information to justify the extension of the law, given the severity of the violation of constitutional rights which it inflicts.
Finally, Adalah argued that extending the law will cause severe and potentially irreversible damage and suffering to the families affected. In contrast, no damage will be sustained by the respondents if the Court temporarily suspends the law, as the graduated process of granting status in Israel, according to Article 7 of the Citizenship Law – 1952 are still in effect for non-Israeli spouses. This process allows the MOI to reject applications for family unification on an individual basis for various reasons including security concerns.
After Adalah petitioned the Supreme Court on 3 August 2003, six more petitions were submitted and are currently pending before the Supreme Court against the law. The petitions were filed by Adalah, in its own name and on behalf of two families, the High Follow-up Committee for Arab Citizens in Israel, and Arab Members of Knesset (MKs); the Meretz political party; the Association for Civil Rights in Israel; and by private lawyers on behalf of individual families against the Minister of Interior and the AG.
The Supreme Court has joined these petitions for hearings and decision. Adalah’s main argument against the new law, as set forth in the petition, is that it severely violates the constitutionally-protected rights to equality, personal liberty to maintain a family life, privacy, dignity, in accordance with the Basic Law: Human Dignity and Liberty – 1992. The law limits the ability of Israeli citizens, namely Arab citizens of Israel – the overwhelming majority of the citizens who marry Palestinians from the Occupied Territories – to exercise these rights based solely on the ethnicity of their spouses.
Further, the law is discriminatory as it applies only to Palestinians; family unification and naturalization remain available to all other foreign spouses of Israeli citizens. Thus, the law does not merely discriminate on the basis of nationality or ethnicity; it is blatantly racist.
The law therefore contravenes international law, which prohibits discrimination based on national belonging, specifically with regard to the right to citizenship, as well as international treaties to which Israel is a party. The state has claimed that that the ban on family unification was necessary and directed against all Palestinians, as they support the resistance against Israel, and thus are potential terrorists.
Although the state argued that 23 people of the many thousands of status-receivers were suspected of indirect involvement in terrorist actions, none of these was directly involved in any actual terror activity.
Adalah argued in its petition and in its final arguments that the state’s contention that three million Palestinians in the West Bank and Gaza all constitute a danger to the state is racist and indefensible, as asserting that all Palestinians are potential terrorists, defames and vilifies the entire Palestinian nation.
Further, the state’s attempts to justify the law on the grounds of terror activity by residents of the West Bank and Gaza granted status in Israel through family unification, relies on data which is insufficient and inconsistent. Further, even if the state’s data is reliable, the law is completely disproportionate given the fact that, even according to the state, very few individuals were involved in terror, while the law will violate the fundamental rights of many thousands of innocent families.
A three-judge panel of the Supreme Court held a hearing on the petitions in November 2003. A second hearing on the petitions was held in January 2004, challenging the constitutionality of the law before an enlarged panel of 13 justices. The Court has issued an order nisi and injunctions preventing the deportation of three of the petitioners, pending a final ruling on the petition.