Israeli Citizenship Laws are Unconstitutional

JURIST Guest Columnists Hassan Jabareen and Sawsan Zaher of Adalah argue that the political polarization of the Citizenship and Entry Into Israel Law deflects the real constitutional and legal issues at the heart of the controversy...
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Raneen, a 36 year-old Palestinian citizen of Israel, is married to 39 year-old Hatem, a Palestinian from the West Bank. They have been living together in the north of Israel since getting married in 1999, and they have three children. They have a normal family life, except for one thing: Hatem only has a temporary permit to stay in Israel for one year. The Interior Ministry has total discretion in deciding whether or not to issue this permit. Hatem's current permit will expire and he might not be able to get another one, he may be forced to separate from his family. This is the harsh reality created by Israel's Citizenship and Entry into Israel Law.

On January 11, 2012, the Israeli Supreme Court, in a 6-5 decision spanning over 230 pages, upheld the constitutionality of the Citizenship and Entry into Israel Law enacted in 2003. This law severely restricts Israeli citizens, overwhelmingly Arab citizens of Israel, from applying for entry of their Palestinian spouses or children from the Occupied Palestinian Territory (OPT) for the purpose of family unification. This law was amended in 2007 to also prohibit spouses from "enemy states," defined by the law as "Syria, Lebanon, Iran and Iraq," to enter Israel for the purpose of family unification.

Adalah, as well as several other human rights organizations and Knesset Member Zahava Galon, petitioned the Israeli Supreme Court to strike down the law. In response, the state alleged that the purpose behind this blanket prohibition against family unification was to prevent security threats against Israel, as it does not have the means to undertake individual checks. The state based its claims on its right as a sovereign to permit or prohibit the entry of any foreigner into its territory. However, data provided by the state revealed that from 1994 to 2008, among the more than 130,000 persons who have entered Israel for the purpose of family unification, only 54 were involved in some way in terror actions against Israel. Of these 54, only seven of them were indicted, convicted and sentenced to imprisonment and at least two of them were released from prison after only a short time. Notably undercutting the state's security argument, the law permits the entry of Palestinians from the West Bank to work in Israel and thousands of people possess such permits and enter Israel every day.

The majority of the justices on the Supreme Court ruled that the potential security threat to the lives of Israelis must prevail over the right to family life. Justice Asher Grunis, soon to become the chief justice of the court in March 2012, ruled that "human rights are not a prescription for national suicide." He further held that the social aspects of the Citizenship and Entry into Israel Law should be weighed against the potential harm to the lives of Israeli Citizens. The main themes of the majority opinions are that the purpose of the law is legitimate, and that the law is proportionate and constitutional. Justices Naor and Rubenstein added that the right to family life does not mean having the right to exercise that family life in Israel. The majority of justices based their decisions on European comparative case law claiming that other courts have also denied family unification of non-citizens. This interpretation of the case law contradicts three legal expert opinions examining UK, South African and European Court of Human Rights case law, provided to the Supreme Court by Adalah. The experts found that such case law applies only when both spouses are non-citizens. The experts argued that the Israeli Citizenship Law — in comparison with laws in other countries — violated the right to family life and is discriminatory and unconstitutional.

Five justices of the Supreme Court wrote minority opinions finding the law to be unconstitutional. The main theme of the minority opinions was that the law violates the right to family life, which is a constitutional right, and that it is not proportional, as it is sweeping in its prohibition by banning all cases of family unification without examining the circumstances of each individual and to what extent he or she may constitute a "security threat." Justice Edmond Levy, who wrote the opening opinion, differed from the other justices in the minority, holding that there was no need to examine this law based on the proportionality test, since the law itself is not for a good purpose. In his view, such a discriminatory law against the Arab minority contradicts the constitutional values of Israel as a "Jewish and democratic" state.

In May 2006, the Israeli Supreme Court also upheld this in a discriminatory laws [PDF] in the Knesset against Arab citizens of Israel, and the majority of the ministers perceive them as "disloyal," a "fifth column" and as a "demographic threat." In addition, the current government has strongly criticized the Supreme Court's activist role and has attempted to limit its powers of judicial review.

As a result of this decision, thousands of Palestinian families living in Israel, among them Raneen and Hatem's family, are under the immediate and tangible threat of forced separation. Due to the Supreme Court's ruling, while Jewish citizens of Israel enjoy the full right to marry any Jewish person living outside of the territory of Israel, even if he/she is a resident or citizen of an Arab "enemy" country (due the applicability of the Law of Return), Arab citizens of Israel do not enjoy that same right. As such, the law creates three tracks of naturalization in the State of Israel. The highest track is for Jewish people, who are automatically entitled to Israeli citizenship under the Law of Return. The second track is for non-Jewish foreigners, who can apply for Israeli residency status through a process of individualized interviews and background checks. The third and lowest track is for the Palestinian/Arab/Muslim spouses of Palestinian citizens of Israel, who are prohibited from entry for the purpose of family unification under the Citizenship and Entry into Israel Law.

The two Supreme Court decisions regarding family unification in 2006 and 2012 have created a serious legal debate in Israel as to whether demographic reasons — keeping a Jewish majority within the Green Line and to prohibit as many Palestinians as possible from residing in Israel — were behind the purpose of the law. The security reasons proffered by the state before the Supreme Court were not convincing since the data shows that the family unification process does not in fact create a security threat to Israel. In our opinion, the debate between the justices is one concerning the meaning of Israel as a "Jewish and democratic" state. One side perceives that the Jewish state should always keep its Jewish majority, and thus banning family unification will protect these values. The other side, while agreeing that Israel should maintain a Jewish majority, views such a sweeping ban as threatening the democratic character of the state, as no democratic state in the world prohibits family unification solely based on the ethnicity/national belonging of the individual.

As such, this debate makes the question of the equality of Arab citizens of Israel a disputed issue, and the principle of anti-discrimination as a matter of interpretation to be examined on a case-by-case basis. Although the 2012 ruling is a step backwards from the 2006 judgment, the 2006 decision indicates that the basic questions of equality for Arab citizens of the state remain undetermined, and thus the Court found it possible to suspend the constitutional protection of the right to family life in this case. This suspension of the rule of law puts many questions regarding Arab citizens' rights up for public and parliamentary debate. Thus the perception of this issue as political and not as one involving constitutionally protected rights legitimizes the government and Knesset actions in enacting more and more discriminatory laws against Arab citizens of Israel.

Hassan Jabareen is the Founder and General Director of Adalah. He has extensive experience in litigating landmark cases before the Israeli Supreme Court on behalf of Palestinians in Israel and in the OPT. Major cases include representing Arab political parties and leaders in elections disqualification cases and in political, criminal cases; and challenging the Citizenship Law which prohibits family unification between Palestinians from the OPT and Palestinian citizens of Israel, and the no-compensation law which banned Palestinians from the West Bank and Gaza from obtaining damages from Israeli security forces.

Sawsan Zaher is the Director of Adalah's Social, Economic and Education Rights Unit. She specializes in social and economic rights, working with Adalah since 2005, and was formerly a solo practitioner in a private law firm specializing in civil law from 1998 to 2003. Zaher established and coordinated the legal department for Arab women's rights in Kayan Feminist Organization in 2004 and 2005.

Suggested citation: Hassan Jabareen & Sawsan Zaher, Israeli Citizenship Laws are Unconstitutional, JURIST - Hotline, Feb 10, 2012, http://jurist.org/hotline/2012/02/jabareen-zaher-israel-citizenship.php.



This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

 

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