Israeli online daily Haaretz reported on Thursday that Supreme Court President, Justice Aharon Barak, wrote a private letter this week to an American friend stating that even though his opinion was voted down in Sunday’s High Court of Justice ruling upholding a ban on family unification, most of the other justices agree with his position that the law violates constitutional rights and is not proportional.
The law mainly targets Arab residents of Israel who marry Palestinians living in the Palestinian occupied territories.
Barak stated that the judges also agreed that if the Knesset were to extend the validity of the Citizenship Law in its current format, the court would apparently overturn it.
“Every Israeli member of a family has a constitutional right to family unification in Israel with a foreign spouse”, Barak wrote Monday in an email that reached Haaretz, "I also have a bare majority that the statute is not proportional, and therefore, unconstitutional."
The email was sent by Barak to a friend of his, a law professor at Yale University.
The position of Barak could have decisive ramifications regarding the continued legal-judicial conduct related to the Citizenship Law in Israel, Haaretz added.
It could also influence whether the government asks the Knesset to extend the law, whether the Knesset would agree to such a request, and whether additional petitions would be submitted against the law should it be extended in two months.
When asked about the email, Barak refused to comment and said that it is a personal matter.
Last Sunday, t he Israeli High Court ruled 6-5 to reject seven petitions against the amendment to the Citizenship Law, which prevents Palestinians married to Israeli Arabs from becoming Israeli citizens or permanent residents.
Barak said that this ban is considered a direct violation to the right to equality and family life, which were covered by the Basic Law on Human Dignity. He added that this violation is unconstitutional.
This position was disapproved by Justice Mishael Cheshin disagreed, and wrote the majority opinion upholding the ban on family unification.
Following is the email as published by Haaretz;
"My dear friend, you may be interested in a very important case which was delivered the day before yesterday by my Court… 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."
Barak describing in his email the positions of the ten other judges on the panel;
"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."
Referring to Justice Edmond Levy, Barak wrote: "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."
Barak also referred to comments Israel’s Justice Minister Haim Ramon made on Monday, in which he stated that, as the court president wrote, "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."
Meanwhile, a spokeswoman of the Israeli High Court, apparently speaking on behalf of Barak, said that Haaretz’ Thursday report distorted the text of the email, and that justice Barak did not explain in his email what was his position on the new legislation.