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1- You may be interested in a very important case which was delivered the day before yesterday by my Court. Our Parliament enacted a temporary statute which has to be renewed every year. The statute provides a blank prohibition on family unification between Israelis and their spouses in the West Bank and Gaza. The reason given is one of security. The State found out that in 26 cases in which terrorists blew themselves up in Israel, they were assisted by an Israeli Palestinian who entered Israel through family unification. There are, of course, more than 2000 Arabs every year who enter Israel on a family unification basis. The question before the Court was: Is the statute constitutional? We were 11 judges.
2- In my opinion, I decided that the right to family life is a constitutional right of the Israeli partner or his/her child. This right includes not just the right to marry, but also the right to live in Israel. I also decided that the statute discriminates against Arabs, since all those who seek family unification from the West Bank are Arabs. As we do not have a special section in our Bill of Rights dealing with family rights or equality, I decided that those rights are part of our right to dignity. I moved then to the second stage of constitutional analysis, namely, justification. I decided that the blank prohibition is not proportional, and that the security reasons should find place in an individual check. My point was that the additional security rendered by the move from an individual check to a blank prohibition is not proportional to the additional suffering to the Israeli side of the family rendered by such a move.
3- The second major opinion was written by my colleague Cheshin. He decided that there is no constitutional right for family reunification in Israel, and that even if there is such a right, there is a good justification for its breach, because of security. One judge supported his reasoning.
– Three judges concurred with me on the violation of the rights, but agreed with Cheshin on the proportionality issue.
5- The eleventh judge agreed with me both on the violation of the rights, and on the missing justification. He thought that individual checking is a less restrictive mean which can achieve the same results as a blank prohibition, and he made several suggestions to this effect. He, however, refused to sign my conclusions that the statute is unconstitutional and void, because of the fact that the statute expires anyway within two months. He said that if the statute is renewed, his remark should be taken into account, and he joined thus to Cheshin`s judgment in deciding to dismiss the cases.
6- As you can see, technically, my view lost, but in substance there is a very sold majority to my view that the Israeli member of a family has a constitutional right to family unification in Israel with a foreign spouse, and that the statute is discriminatory. I also have a bare majority that the statute is not proportional, and therefore unconstitutional. The government announced immediately after the case that instead of a special statute dealing with security, it will try to enact a comprehensive statute dealing with all the problems of immigration to Israel, and that this law will be based on equality principles. The Minister of Justice announced this morning that if the Parliament will try to enact again the statute without any change, there is a high probability, according to the views of the Court, that the statute will be unconstitutional.
As you can imagine, this is a major case dealing with a most sensitive question of immigration to Israel by Arabs, mingled with security. I devoted a lot of my time and energy in drafting my opinion, and in convincing the judges that blank prohibition is unconstitutional in Israel. Some were convinced, while others were not.
With best regards,