The familiar scene in our parts has taken place yet again: the High Court of Justice has struck down a law which required that 20 percent of the wages of an asylum seeker – called an “infiltrator’ in Israel’s lawbooks – would be withheld and placed in deposit, which would be returned if and when the asylum seeker leaves the country.
Again, as in a Pavlovian response, the cries of populists and ultra-nationalists can be heard, calling for an emasculation of the court and the removal of its power by legislating an overdrive clause that would enable the Knesset to ignore the High Court and make a mockery of it. In its defense of asylum seekers, the court fulfilled a classic role that only it can fulfill – the protection of the universal human rights of an unpopular minority with no political clout.
The court viewed the arrangement as an infringement of the petitioners’ property rights. On this backdrop, it examined two issues. Is the purpose of this arrangement – the creation of a financial incentive to hasten the departure of asylum seekers – a seemly one?
The judges, in a majority ruling, said it was. They then asked if it was proportionate? Most of the justices, except Noam Sohlberg, ruled that the arrangement was disproportionate when balancing the anticipated utility of the arrangement with the infringement of property rights it entails.
In the balance, averred the majority, no clear advantage could be discerned in this arrangement, in terms of its purpose. In the two years since it was enacted, the number of asylum seekers leaving the country has dropped, with a rise in the numbers going to Western countries (where one can assume that the deposit funds are not a decisive factor in the decision).
Moreover, people wishing to leave, regardless of their reasons, are finding it difficult to find a country willing to take them. The arrangement has a clear negative impact, constituting an incentive to work underground, in order to avoid having wages withheld.
The judges believed that the arrangement caused significant damage to the petitioners’ main, and usually sole property. Asylum seekers are one of the weakest populations in Israel, without access to social support mechanisms, making them vulnerable to exploitation. Their average base salary is 5,000 shekels ($1,420), less than the minimum wage. This infringement became more serious after the coronavirus crisis erupted. The bottom line is that the questionable advantage does not justify the serious harm done to their property rights.
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Justice Yitzhak Amit did not mince words in relating to the legislative branch, calling it like it is and using the term “robbing the poor and the stranger among us.” He found that this law contravenes the values of this country as a democracy, and particularly as a Jewish state, since Jewish law prohibits exploiting the stranger, based on Israel having been strangers in the land of Egypt.
The Torah also prohibits withholding wages, said Amit. Therefore, this law constitutes robbery. The real purpose of this law, said Amit, regardless of its declared intention, is to embitter the lives of asylum seekers to the point at which they relent, and this under circumstances in which they have nowhere to go, unless they relinquish the principle of non-refoulement, as stipulated in international law, agreeing to return to their countries of origin, where their lives or liberties are at risk.
Justice Uzi Fogelman also believes the arrangement is disproportionate. He wrote that he did not question Amit’s comments but was avoiding determining that the law violates Israel’s values as a democratic and Jewish state. The Supreme Court’s Deputy-President, Justice Hanan Melcer, as well as Justice Neal Hendel, stated that in addition to an infringement of property rights, the arrangement also violates the petitioners’ right to human dignity.
Justice Noam Sohlberg, in non-splendid isolation, rejected the petition. He averred that while the law did constitute an infringement of asylum seekers’ property rights, it was not that severe. In contrast, the social benefits of the deposit arrangement are real, he said, making the arrangement proportionate. Sohlberg examined the issue on the backdrop of the fact that the court had already struck down three such arrangements which had violated the liberty and freedom of movement of “infiltrators.”
He warned his colleagues that the custom of disqualifying such deals would become something permanent. It seems it would be more worthy to determine whether setting up such unconstitutional arrangements with regard to asylum seekers, who have no political representation, has become a permanent feature of the legislature. If so, the court is obliged to protect them, as a particularly vulnerable population.
It’s easy to claim that harming their property rights is not severe, especially if one feels no empathy or solidarity towards or with them. It’s easy to try and show concern for residents of southern Tel Aviv, while abusing asylum seekers drives them to crime, violence, overcrowding, also causing damage to their health, which impacts everyone in their surroundings.
The majority of judges differed from the minority in casting a sharp and comprehensive look at reality. They noted that the fence on the border with Egypt has totally stopped infiltration, ending the hysteria about the flooding of Israel with infiltrators. They noted that Israel has for years not examined requests for refugee status, and that withheld wages often are not deposited, with the state’s enforcement of this a laughable matter.
The majority of justices noted that, strictly speaking, asylum seekers are not allowed to work, and that they do work only because of an understanding that this prohibition will not be enforced. They make an important contribution to the economy by doing work Israelis are not interested in, such as cleaning and caring for senior citizens. The judges mentioned the agreement between the state and the UN Refugee Agency, which was retracted by Israel without any explanation. All these come together in writing a dark page in this country’s history, a country of refugees which one would have expected to show a humane attitude towards other refugees.
Attacks on the court’s decision are coming from those who deny universal human rights and the humanistic and Jewish character of Israel, even when these same people define themselves as liberal. The challenge facing our society ahead of Independence Day is to achieve true internal liberty, in addition to the sovereignty we’ve achieved – a liberty from prejudice, racism and the xenophobia within us.