State vs. High Court

How can Israel demand that its citizens respect and obey the law when the state itself does not?

Haaretz.
Haaretz Editorial
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Haaretz.
Haaretz Editorial

In a High Court ruling that invalidated a law which had allowed the state to imprison asylum seekers for three years, Justice Edna Arbel wrote that the state must start releasing the roughly 1,750 people imprisoned at the Saharonim detention center “immediately.” The state was given 90 days to complete the process. That was more than two months ago, and despite the urgency expressed in the ruling, the state so far has only released fewer than a fifth of those imprisoned.

In a recent High Court of Justice hearing on a petition to declare the state in contempt of court for not implementing that decision, representatives of the state said they intended to complete the release of those jailed within the time allotted. But that very same day, an alternative law was proposed that regulates the establishment of a “detention center” - which is nothing other than a prison facility - but in practice allows the continued imprisonment of asylum seekers. In addition to the state’s disregard of the moral concerns raised by the High Court of Justice, another worrying phenomenon appears here: the state’s evasion of the implementation of the court’s decision while keeping asylum seekers in prison until the new law is passed.

On Monday, in the High Court’s ruling to evaculate outposts built on private land, the president of the court, Asher Grunis, attacked the state’s behavior. He stated that “the handling process is being dealt with sluggishly, all the while the state continues to extend demarcation orders related to those same outposts... The time has come to order the state to meet and carry out its obligations.”

The phenomenon of evasion of High Court decisions was first documented by former deputy attorney general Yehudit Karp. In a 2010 memo, it was noted that despite instructions that the attorney general issued in the wake of the report, this phenomenon recurred.

The court ruling that ordered the establishment of a school in the Bedouin community of Abu Talul was implemented only after a contempt of court proceeding, in which the court determined that the state grossly disregarded its commitments. Court rulings on the separation barrier were implemented only after a number of contempt proceedings, which in one case compelled then-court President Dorit Beinisch to emphasize that “the decisions of this court are not just recommendations.”

Most cases in which the state ignored court decisions or delayed implementing them concerned the rights of weak populations, such as Palestinians in the territories, Arab citizens, migrant workers and now also asylum seekers. This demonstrates not only contempt and damage to the rule of law, but also discrimination against people for whom the rule of law is their only protection.

The fact that the state itself is emptying court decisions of their content constitutes a real danger to democracy; it threatens to undermine civil and social order. How can the state demand that its citizens obey the law and respect court rulings when the state itself does not?

Supreme Court Judges (from left) Edna Arbel, Eliezer Rivlin and Asher Grunis.Credit: Gil Cohen Magen

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