Israel’s High Court of Justice undermines democracy and sovereignty

Israel’s High Court of Justice recently ruled that the “infiltrators law” is unconstitutional. According to the Court, a law in Israel is unconstitutional if it contradicts two basic laws passed in 1992 by 32 MKs who had not intended to grant theses basic laws constitutional status, nor to empower the High Court to repeal regular laws.

Israel’s High Court of Justice recently ruled that the “infiltrators law” (which enables the government to detain illegal immigrants) is unconstitutional. According to the Court, a law in Israel is unconstitutional if it contradicts two basic laws passed in 1992 (“Human dignity and freedom” and “Freedom of occupation”). This “constitutional revolution” was unilaterally proclaimed by then Justice Aharon Barak. The “human dignity and freedom law” was passed by 32 MKs who had not intended to grant this basic law constitutional status, nor to empower the High Court to repeal regular laws. Yet Barak did just that, in effect granting the Court veto power over legislation.

In the absence of a constitution, there is no clear separation of powers in Israel. Barak was able to unilaterally expand the powers of the Court and, in effect, to establish a hierarchy of powers dominated by the judiciary because there was no constitution to stop him from doing so. Barak was harshly criticized for his judicial activism by leading legal scholars, such as Prof. Daniel Friedman and Prof. Ruth Gavizon. Barak was also criticized for the way he handled the dilemma between human rights and national security. Former Justice Michael Cheshin, for example, accused Barak of being willing to sacrifice national security and Israeli lives for the sake of human rights.

The Court’s decision to repeal the “infiltrators law” typically belongs to Barak’s legacy: it treats the legislative branch as a subordinate and it puts human rights before the national interest. Even the President of the Supreme Court, Justice Asher Grunis, wrote in his minority opinion that “If my colleagues’ opinion were to prevail, then the Court would establish norms that leave no freedom of action to the legislator. I cannot subscribe to this constitutional stance because it turns the Court into a legislator, if not in theory then in practice.”

Israel adopted the “infiltrators law” in order to deter further illegal immigration. Those who oppose the law claim that it has become unnecessary since illegal immigration has dropped significantly. This is a sophistic argument: illegal immigration has dropped precisely because the law deters potential illegal immigrants (and, of course, because the physical barrier built by Israel along the border with Egypt makes it nearly impossible to enter Israel illegally from Sinai).

Israel took special measures to stop illegal immigration because it is the only Western country that has a common border with Africa (notwithstanding the British jibe that Africa begins at Calais). As opposed to other Western countries, Israel cannot expel illegal Sudanese migrants because it does not have diplomatic relations with Sudan. Israel is a refuge to all Jews in danger, but it cannot afford to be a refuge to all the world’s persecuted individuals. In 1977, Israel granted refugee status and Israeli citizenship to 66 Vietnamese boat people who had been ignored by passing ships from East Germany, Norway, Japan, and Panama. What Israel was able to do for 66 Vietnamese refugees, it would not have been able to do for two million boat people.

Despite its special position among developed countries, Israel took measures against illegal immigration that are actually similar to, and often milder than, those adopted by other Western nations, many of which have a policy of immigration detention.

In the United States, about 31,000 non-citizens are held in over 200 detention centers, a practice made mandatory by legislation passed in 1996.

In Canada, immigration detention has no maximum time limit. In 2010, the Canadian government introduced a bill that imposes mandatory 12-month detention without access to independent review for illegal immigrants. In December 2011, a rejected Iranian asylum seeker was released by Canada after being detained for six years.

Australia puts all foreigners who arrive in the country without a visa in indefinite detention. The Australian High Court of Justice ruled in 2004 that the indefinite detention of illegal immigrants is constitutional. In 2014, the Court ruled that detention should be limited in time, so Australia transferred its indefinite detention centers to Papua New Guinea.

In Italy, illegal immigrants are sent to “Identification and Expulsion Centers” (illegal entry to Italy became a criminal offense in 2009). There are 14 detention centers in the UK and three in the Netherlands. In 2003, the Maltese government replaced its indefinite detention policy with an 18-month detention (the maximum under EU law).

By contrast, Israel’s “infiltrators law” limited the detention of illegal immigrants to one year. While Israel’s detention policy is justified by its small size, by its common border with Africa, and by the absence of diplomatic relations with Sudan, the High Court of Justice has imposed on the government, via self-granted powers, higher standards than those of Canada, Australia and of many EU members. This is an affront to Israeli democracy and sovereignty.