HCJ 10650/03 Abu Gwella et. al v

129. As we have seen, the arrangement that preceded the government’s decision and the
Law was not a procedure that automatically granted a status in Israel to children of
Israeli residents. Whether the child was born in Israel or outside the country, residency
was granted at the discretion of the Minister of the Interior and in accordance with the
“procedure for child registration” that was described above.
130. For the sake of argument, let us assume that there are purposes that can justify a
filtering process relating to granting children permanent-resident status in Israel (for
example, in the spirit of the judgment in Karlo, supra). Revoking the Respondents’
discretion, such that no child over the age of 12 can obtain a status in Israel in any
case, is an extreme action, which causes much greater harm than is necessary.
131. The revocation of discretion also contravenes basic concepts of law. An administrative
authority must weigh the merits of exercising a power given it, and must exercise it
reasonably, to the extent necessary, in good faith, in a non-arbitrary manner, without
taking into account extraneous considerations, and giving proper consideration to
fundamental rights and principles of our system of law (see Ra’anan Har Zahav,
Israeli Administrative Law (5657 – 1996) 103-109, 435-440, and the references
provided there; HCJ 3648/97, Bijebahan Petel and Three Others v. Minister of the
Interior and Three Others, Piskei Din 53 (2) 728, 770).
This duty of the government authority is a fundamental norm of administrative law,
and also finds expression in the common law regarding the granting of a status to
children. See HCJ 48/89, Issa v. District Office Administration et al., supra.
Revoking the authorities’ discretion compels it to act arbitrarily.
A law that requires the authorities to act arbitrarily, and compels the Respondent to be
“malicious with the backing of the law” undermines the foundation of administrative
law, and the fundamental principle of individual responsibility, and constitutes the
worst kind of law for “sidestepping the High Court.” Such a law should be treated in
only one way – by nullifying it.
Collective sanctions
132. By including requests for child registration with requests for family unification, in
order to freeze their handling completely, the law separates in gross fashion an entire
group, based on national origin, and imposes a sweeping, dreadful decree, without
distinction and without discretion. In effect, we have a collective sanction against
hundreds, and possibly thousands, of innocent children.
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