HCJ 10650/03 Abu Gwella et. al v

effect on children, the defect could be rectified. Let the
members of the committee now present to the Internal
Affairs Committee of the Knesset what the direct or
indirect effect is, and then it would not be necessary to
return the bill for first reading in the Knesset plenum.
The Committee’s legal advisor’s comments, like the Law itself, were ignored. The
explanatory notes to the proposed bill do not mention the harm to children that will
result from the bill. The harm to children was mentioned by Members of Knesset and
representatives of human rights organizations during the Committee’s hearings, but
not by the drafters of the bill. The only thing that the latter did was confirm, in the
course of the hearings, that the bill indeed applies to children, but denied that it would
harm them – for where there is no right, there is no infringement of a right. (See the
comments of Attorney Mazuz, quoted in Section 83 above.) Drafters of the bill on
behalf of the Ministry of the Interior and the Ministry of Justice failed to provide
figures and information on the subject, and relevant questions that were raised by
Members of Knesset and invitees to the Committee remained unanswered.
Unconstitutionality of the Law and possible remedies
136. At least as regards children, the Law is unconstitutional in that it fails to meet the
requirements of the limitations clause of the Basic Law, and the process by which it
was enacted was faulty to the core. This is not to say that it should not be nullified for
other reasons and as regards other people, and those matters will be heard, as stated, in
another framework.
137. Having reached this conclusion, three remedies are available:
A. The first possible remedy relates to Section 12 of the Entry into Israel
Regulations. This section makes an unreasonable distinction and discriminates
between children born in Israel and children born outside of the country. This
discrimination is especially grave in light of the provisions of the Law,
whereby the right of the former [children born in Israel] to receive a status is
clear, while the latter, if born in the Occupied Territories, are not granted any
status, not even following the exercise of discretion, in that the minister does
not have authority to exercise discretion in their cases. This prohibition, set
forth in the section [12] of the regulations, can be rectified by “red penciling”
the words “born in Israel” from the wording of the regulation. This change in
the wording of the regulation reflects, in practice, the Respondents’ policy
over the years, when they arranged the status of children born in Israel and
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