Karl Marx’s famous dictum that history repeats itself, first as tragedy and then as farce, was proved once again by Monday’s meeting of the Knesset Interior and Environment Committee. There, Interior Minister Gideon Sa’ar and committee chairwoman Miri Regev announced their intention to legislate version number three of a law letting asylum seekers be held at either Saharonim Prison or the “open” detention facility at Holot.
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If the government’s response after the High Court of Justice overturned the law once was a tragedy, this meeting – after the court had just overturned a second version of the law – was a farce.
Its farcical nature was reflected not only in Regev’s erroneous reference to Justice Uzi Vogelman as Justice “Gillerman,” but also in her ridicule of the ruling and her promise to ensure that matchmakers are stationed at Holot. She was responding to a question Vogelman posed in his ruling: “How will the detainee find a partner?”
This farce attests to a lack of understanding of the ruling’s essence: that imprisoning asylum seekers, whether at Saharonim or Holot, is unconstitutional because it deprives them of liberty without a trial. Vogelman’s question, which Regev enjoyed ridiculing, was part of his description of reality: Contrary to Holot’s billing as an open facility, it’s a place where human beings are imprisoned – a place where they are denied the possibilities of liberty and a dignified life that are available to free people.
Regev’s ridicule of these statements, like her claim that she thought Vogelman was concerned about the asylum seeker’s “life,” shows how she envisions the proper fate of asylum seekers in Israel. At best, their lives will be protected, but nothing more. They will be deprived of all other rights, including the rights to freedom and to live in dignity. These rights necessarily include freedom from imprisonment, which indeed deprives the jailed person of any social ties, including finding a spouse.
Asylum seekers, Vogelman ruled, don’t lose their right to dignity, in the fullest sense of the term, just because of how they arrived in the country. But Sa’ar, Regev and Attorney General Yehuda Weinstein refuse to accept this conclusion.
Sa’ar said that any new law he submits to the cabinet will include the possibility of imprisoning asylum seekers at Saharonim, and that he has no intention of accepting all the court’s conclusions on Holot. This shows that he once again plans to ignore the High Court’s ruling and enact yet another law that unconstitutionally infringes on human rights. The suggestions raised during Monday’s meeting – for example, eliminating the noon head count at Holot – won’t right the inherent wrong of imprisoning asylum seekers.
The proposal to abolish the head count was actually made by Supreme Court President Asher Grunis in his dissenting opinion. But Sa’ar and Regev, who quoted his dissent over and over, apparently got confused between the majority and minority opinions – yet another element of the farce. It seems they forgot that the majority ruling is the one that’s binding.
It’s a pity the attorney general didn’t make clear to the interior minister and the Knesset members the principle laid down by the ruling: People whose only crime is being asylum seekers cannot be jailed, and no attempt to prettify their incarceration will work.
As the justices said in both rulings on the issue, foreigners can be imprisoned in Israel only for a limited time, and only for the purpose of facilitating their deportation. But despite the government’s pressure to get them to leave, asylum seekers from Eritrea and Sudan aren’t being jailed to facilitate their deportation, mainly because they can’t be deported under the principle of non-refoulement, which bars the deportation of anyone to a place where his life or freedom are in danger.
“There is no need for any reminder about the legal principle, deeply rooted in our jurisprudence, that a person cannot continue to be held in jail in circumstances where the possibility of deporting him from the country is not practical in the foreseeable future,” Vogelman wrote.
But it seems Sa’ar and Regev need such a reminder, as does the attorney general. Weinstein said he would oppose legislation aimed at taking away some of the High Court’s powers, but voiced support for enacting a new law to replace the one that has already been overturned twice.
Vogelman’s ruling has made clear that jailing asylum seekers at Saharonim would be unacceptable even if the detention period were shortened from the one year set in the version of the law that was just overturned.
“The question isn’t only quantitative – the maximum constitutional time for detention in custody – but ... whether it is permissible to hold someone in custody if no effective deportation procedure exists,” he wrote. “To this question, I answer – just as this court did before me in many rulings – absolutely not.”
Vogleman’s conclusion that calling Holot an open facility is misleading will also continue to apply even if the noon head count is canceled. In response to Grunis’ suggestion that the head count be canceled, Vogelman addressed this issue, too.
He wrote that the law on Holot was unconstitutional first and foremost because it did not set a time limit for how long people could be held at the facility and did not provide grounds under which a person could be released. As Vogelman put it, this and a “mosaic” of other unconstitutional provisions are the source of the law’s unconstitutionality.
It’s too bad the High Court didn’t learn from what happened after its first ruling. Instead, it once again overturned the law on the grounds of failure to pass the proportionality test (rather than because it didn’t serve an “appropriate purpose”).
And once again, it gave the state 90 days to implement the ruling, allowing for the farce that’s taking place now. We now have to hope this farce ends before there’s a need for a third trip to the High Court.