How the Knesset Ignored the High Court on Asylum Seekers

The High Court emphasized that when it decides a law is unconstitutional, the Knesset cannot approve it again without a change that solves the contradiction with a basic law.

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The Holot detention facility, September 2014.
The Holot detention facility, September 2014.Credit: AP

In the 217 pages of the High Court of Justice ruling that struck down the amendment to the Prevention of Infiltration Law (a year after overturning the previous amendment), there is a single sentence by Supreme Court Justice Uzi Vogelman concerning the Holot detention center that summarizes the matter: Let us not allow the title open facility' to deceive us; the requirement to be present for the three daily head counts, alongside the great distance from the towns in the region, eliminates almost any possibility to routinely leave the [detention] center. So is it therefore an open center?

Vogelman wrote a person needs an appropriate window of time to fill his life with real content, and asked the question: When he is required to appear three times a day in the detention center far from every major place of settlement, how can the detainee meet a partner? What hobbies can he pursue? When will he have the chance to meet his friends who have yet to receive a detention order?

A closed facility is similar to detention or prison, said Vogelman. The detention in Holot has a beginning for a person – but no foreseeable end. These words, as well as those written by Justice Edna Arbel in which the amendment is the same old lady in a new dress, demonstrate how the majority of the High Court justices viewed the matter: The state did not take their previous ruling seriously, in which they emphasized that imprisoning an asylum seeker without trial is forbidden, and the government tried to lead us all astray.

While the amendment that was overturned a year ago allowed the imprisonment of asylum seekers for three years without trial in the Saharonim prison, the more recent amendment only allowed the imprisonment of new asylum seekers who arrived in Israel, and only for a year. But at the same time the new amendment established the Holot facility, where asylum seekers could be imprisoned for an unlimited period.

The justices were aware of the difficulty in overturning a law legislated by the Knesset in response to a previous law they ruled unconstitutional, but the justices also observed that it seems the Knesset simply did not pay attention to their previous ruling: Justice Miriam Naor noted the unseemliness in overruling the law for a second time within such a short time period. She said that when the High Court determines that a law is unconstitutional, the Knesset cannot just go back and legislate it again without any changes, or with a change that does not solve the contradiction with basic laws, as was done in this case – the new amendment did not correct the violation of the basic laws the High Court listed in the previous case.

Vogelman also related to this point and said the High Court is not happy to return and overturn Knesset legislation, but the law significantly, deeply and fundamentally harms human rights.

A democratic society cannot deprive for such a period of time the freedom of people who do not represent a danger and are not serving a punishment for a crime they committed, wrote Vogelman. As a result there is no choice but to declare the annulment of the law: We did it without desire; we did it out of obligation.

The High Court reiterated what it had ruled in the past: It is impossible to hold a person in detention under the authority of a deportation order if no effective procedure is being taken against him. Holding in detention, for whatever the period, cannot come without a legitimate purpose, wrote Naor. A person cannot be detained on the basis of a deportation order when there is no possibility of deportation from Israel on the horizon; and since most of the people to which the law applies are those who Israel does not intend on returning to their native countries: Even according to the government, Eritrean asylum seekers, who make up 73% of the relevant population, cannot be returned to their country since under the principle of non-refoulement it is forbidden to deport a person whose life or freedom could be endangered by such a deportation. The Sudanese, in comparison, are not deported back to there because Israel does not have diplomatic relations with Sudan.

The High Court ruled (though by a six-to-three majority) that imprisonment in Saharonoim needs to end within 10 days, but the annulment of the section of the law concerning Holot (which was decided by a seven-to-two majority) was given a period of 90 days to implement. Nonetheless, the requirement of the detainees in Holot to report for the afternoon roll call was cancelled as of Wednesday.

One can only hope that this time the Knesset will take the ruling seriously and not take advantage of these 90 days to once again pass an unconstitutional law. The time has come for a policy that will relate to the asylum seekers as human beings worthy of protection.

In the next few days we will hear about various and dangerous initiatives to limit the powers of the High Court as a result of the ruling. Such limitations would harm the basic principles of democracy. Every person is entitled to enjoy the right to human dignity for being a person, said Vogelman in his ruling, and legislation that will uproot the ability of the High Court to protect this is fundamentally unacceptable.

The writer is a law professor at Tel Aviv University and a member of the board of the Association for Civil Rights in Israel, one of the petitioners in the High Court case.

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