The High Court ruling
delivered Monday is a classic ruling because it defends the weak against the deprivation of freedom without proper legal proceedings. This is a classic ruling because it denies detention without a legal pretext. This is a classic ruling because it expresses the feeling of aversion towards collective punishment and stereotypical treatment of human beings.
The court raised its voice in favor of the voiceless people. It exercised its power in favor of the powerless people. Justice Arbel's statement that one cannot tolerate a situation in which a person becomes a tool or a device and is placed in detention "not because he personally constitutes a risk but in order to deter others" must resonate everywhere.
It's not for no reason that Justice Arbel concluded the ruling by mentioning the negative approach towards the exploitation of foreigners in the Jewish tradition. It is precisely on the border with Egypt,
where most refugees arrived from, that we should have remembered the command from the Passover
Haggadah that in every generation, a person is obligated to regard himself as though he actually left Egypt from slavery to freedom. The court gave this command a modern interpretation binding us to put ourselves in the shoes of the suffering side every single hour, especially when we're the side causing the suffering.
But the court did not only focus on the past. It's worth taking notice of the comment added by Justice Esther Hayut in regards to the future. She noted, following Amnon Rubinstein, Shlomo Avineri and Liav Orgad (authors of the book "Managing Global Migration: A Strategy for Immigration Policy in Israel") that "the State of Israel
remains the only Western democracy without an immigration policy." She stressed that this is an inappropriate and undesirable situation which negatively affects the State's critical interests and leads to "abuse of foreigners which disgraces us as a people and as a state."
Annulling the law took care of the symptom but failed to cure the disease. This comment can be seen as a warning. If the Knesset fails to adopt an immigration policy, the disgrace will remain, and other problematic symptoms will reach the court. Not because the court invited them, but because of the legislator's policy of denial.
This ruling is the highlight of the constitutional revolution, which began with the Mizrahi Bank ruling delivered in 1995. The Supreme Court ruled at the time, following Justice Aharon Barak, that Basic Law: Human Dignity and Liberty enjoys normative supremacy, and that a law contradicting the basic rights can be annulled.
The Supreme Court clarified at the time that from now on, the legislator is no longer "omnipotent" and cannot permit causing offense to a person in an anarchistic manner. Since then about 10 provisions of law have been annulled, and the current annulment is the most impressive example of this statement.