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Photo: Gil Yohanan
Infiltrators' protest outside Knesset (archives)
Photo: Gil Yohanan
Prof. Assaf Meydani
Cheap populism against High Court uncalled for
Op-ed: It seems someone in government decided it would be much more convenient to jail infiltrators for a year than to adopt an immigration policy.
The High Court of Justice's rejection of the "infiltrator law" was accompanied by calls to limit the High Court's powers. I am not sure that those people didn't even bother reading the long and fascinating ruling, and that's a shame.

 

 

Here's a reminder: The Prevention of Infiltration Law (amended in 2012) was overturned by the High Court in 2013. Within two months, the Knesset enacted a new law allowing the detention of infiltrators.

 

The public stand was that the lawmaker had gone too far with three years in a "detention facility," and so the amendment to the law reduced the jailing period to a year, with the aim of preventing infiltrators from settling in Israel and deterring them from coming to the country. An undeclared goal was to "break the detainees' spirit" so that they would ask to "voluntarily" leave Israel.

 

In retrospect, one could say that the goal has been achieved: Since the 2012 amendment, the number of infiltrators has dropped dramatically.

 

Could this goal have been achieved through more humane means? The High Court thought so. A review of the ruling actually points to the unbearable lightness of implementing the law.

 

It seems that someone in the government decided that it would be much more convenient to jail the infiltrators for a year than to come up with an immigration policy and implement it. According to the dissenting opinion of Judge Neal Hendel, it is the state's duty to adopt an immigration policy.

 

The petitioners slammed the one-year detention period, but as a matter of fact, from a comparative perspective the length of the detention is not that extreme. In most countries people are detained for four months, with the option of extending the imprisonment if the detainee refuses to cooperate with his or her deportation or when there is a delay in obtaining the required documents (which does not depend on the detainee) in order to execute the deportation. And even then, it can only be extended by a maximum of 12 additional months. In other words, infiltrators can be kept in custody for more than a year if necessary.

 

It should be stressed that this is an effective expulsion process. In other words, the imprisonment is not the essence of the matter – the important thing is the inquiry about the person, as he is a human. Moreover, the High Court has ruled, on behalf of the majority and minority judges, that the number of times the detainee has to report to the authorities – in the morning, in the afternoon and in the evening – is problematic, basically turning the detention facility in a desert prison.

 

It seems that the High Court result could have been achieved in a less dramatic decision. In other words, there was no need to overturn the entire law, but only several of its sections. That way, it seems, the High Court would have conveyed to the public that the amendment to the law is mostly proportional but is partially missing, and would have forced the state to reduce the number of times the detainee must report to the authorities to twice – morning and evening – and instead of a one-year detention, to adopt an effective process of detaining the person for four months while inquiring whether he is a refugee, a work migrant or an infiltrator.

 

But the High Court decided to overturn the law with a majority of votes, and that's its role as defined by the lawmaker in Basic Law: Human Dignity and Liberty in 1992. Despite the High Court's ruling and intervention, it has gained the trust of 60% of the public compared to less than 30% of the public which trusts the political system, and there is a reason for that.

 

The calls to limit the High Court and control its steps are inappropriate and miss the point. The "infiltrator law" is flawed. It is disproportional, both according to the majority opinion and according to the dissenting opinion.

 

The right thing to do would be to call on the Knesset to enact a more proportional law, which could be done within two months. It would be more difficult to formulate an immigration policy that would reduce the flow of illegal refugees and give priority to migrants in humanitarian distress. This is the challenge facing the State of Israel and that was what the High Court was aiming at.

 

Prof. Assaf Meydani is an associate professor at the School of Government and Society at the Academic College of Tel Aviv-Yaffo.

 

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