Israeli Ministers Expected to OK Bill Bypassing High Court Rulings on Asylum Seekers

After multiple rulings by top court thwarting attempts to deport asylum seekers, Knesset proposes a new provision aimed at bypassing the court to 'guarantee that infiltrators will leave Israel'

Jonathan Lis
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Asylum seeker in South Tel Aviv.
Asylum seeker in South Tel Aviv.Credit: Meged Gozani
Jonathan Lis

The Ministerial Committee for Legislation will discuss on Sunday legislation of a new provision that will override the Basic Law on Human Dignity and Liberty in the case of asylum seekers. The provision allows the Knesset to re-enact parts of the Prevention of Infiltration Law, despite opposition from the High Court of Justice. The court has annulled or frozen a number of government moves to imprison or deport asylum seekers.

A coalition source estimated that the committee will support the proposal on Sunday, and enable it to advance in the Knesset.

On Monday the Kulanu party announced that it will support the move in principle, but will examine whether changes need to be made in the wording of the new provision. A senior party member said: “We will support the law, as [party leader Moshe] Kahlon has promised. If necessary we will request the introduction of changes relating to the minor details.”

Kahlon, who is also finance minister, said in the past that he would consider supporting such a provision if it applied to the anti-infiltration law only.

>> Read more | How to treat asylum seekers: a lesson to Israel from Canada

Kahlon at a coalition meeting, October 2018
Kahlon at a coalition meeting, October 2018Credit: Emil Salman

The legislative move, initiated by MK Shuli Mualem Refaeli (Habayit Hayehudi), seeks to amend the Basic Law such that “a provision of law relating to prevention of infiltration into Israel and a guarantee that infiltrators will leave Israel. A provision dealing with the period of their stay in Israel, which undermines rights guaranteed by this Basic Law, will be valid … if it is included in a law accepted by a majority of MKs and specifically states that ‘It is valid despite what is said in this Basic Law.’”

Mualem Refaeli explained in her proposal that it "aims to assert that the provision of law on the subject of the treatment of infiltrators and guarantees that they will leave Israel, which was passed by a majority of 61 MKs, will supersede the permanent provisions of this Basic Law even if the court ruled that this undermines the rights enumerated in the Basic Law on Human Dignity and Liberty.”

In an exceptional step, the explanation of her proposal quotes an interview in which Kahlon discussed the possibility of legislating the override clause.

“We all have values, sometimes conflicting values,” he said. “I don’t personally see any harm to the High Court in an override clause on a specific subject such as the infiltrators. Therefore, I intend to stand by my commitment and to support it. I don't think it damages the High Court.

In April the High Court froze a plan for deporting asylum seekers that was initiated in March by the government. The High Court ruled that Israel did not have an arrangement in place that would allow forced deportation of these individuals to Uganda, which at the time was called “a safe third country.” As a result, the government announced that it was unable to carry out its plan.

Subsequently, the government announced that it had reached an agreement according to which 16,000 asylum seekers would remain in Israel, and another 16,000 would leave and be absorbed in Western countries such as Canada, Germany and Italy. About a day later, however, Prime Minister Benjamin Netanyahu announced that this scheme too had been frozen.

In May the Ministerial Committee for Legislation approved a proposal that would limit the powers of the High Court, rather than legislate a specific clause pertaining to the anti-infiltration law. However, in light of the opposition of Kulanu and Kahlon’s announcement that his party's MKs would oppose the suggestion in the plenum – it didn’t come up for a vote.

This is not the first time that an override clause is being introduced into legislation in Israel. At the request of the ultra-Orthodox Shas party, in 1994 the government of Yitzhak Rabin legislated a similar provision that essentially bypassed the Basic Law of Freedom of Occupation. It was designed to prevent the High Court from allowing non-kosher meat to be imported into Israel.