Analysis from Israel
Had the High Court not ruined its own credibility, migrant ruling might get the respect it merits.
After the High Court of Justice overturned a law last week that allowed illegal migrants to be held in detention for up to three years, The Jerusalem Post‘s editorial aptly summarized Israelis’ reactions as follows: “For the Left, the ruling was a vindication of their adherence to the universality of human rights,” while “For the Right … the decision was yet another indication that the High Court was dominated by a weak-wrist liberal consensus.”

It’s a sad commentary on the depths to which the court has sunk itself that neither side seriously considered what ought to be the default explanation of a High Court verdict: that it was rooted in relevant legislation duly enacted by the Knesset. Instead, they simply assumed the court was expressing a value judgment, and thereby taking sides in the heated debate over what Israel’s policy toward illegal migrants should be.

As it happens, I think the ruling was virtually mandated by the Basic Law: Human Dignity and Freedom, a quasi-constitutional law that subsequent legislation is supposed to comply with (or at least, so the court decided in 1995, and the Knesset never challenged that decision). According to the Basic Law, “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise,” except “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

The court concluded that even given the state’s justifiable interest in getting illegal migrants off the streets, throwing them in jail for three years is a disproportionate violation of the right to liberty guaranteed by the Basic Law, one too massive to be justified by the presumed benefit. I find it hard to disagree. For if a right to liberty means anything at all, it ought to mean you can’t be thrown in jail for three years when you haven’t committed any crime.

Granted, illegal entry into the country usually is a crime, albeit a minor one generally punishable by no more than three months’ imprisonment prior to being deported. But under international conventions Israel has ratified, it isn’t a crime at all if the illegal entrant is a bona fide refugee, which most of the migrants in question claim to be. That obviously doesn’t mean they actually are, and indeed, documents from other court cases clearly show that some aren’t. Yet since the state has never examined most of these migrants’ asylum requests, as required by those same international conventions, it’s impossible to know which are genuine refugees and which are just labor migrants.

Moreover, most of those jailed under the law come from Eritrea and Sudan – two countries so repressive that Israel, like other Western countries, long ago decided their nationals can’t be forcibly repatriated. Thus even if those nationals are just labor migrants, they still, through no fault of their own, can’t be deported, which is why they end up being jailed instead. But again, if a right to liberty means anything, it ought to mean you can’t be incarcerated for three years just for the misfortune of being born in a country to which you can’t be deported.  

Several justices stressed that their ruling in no way precludes less draconian steps to mitigate the problems these migrants pose to Israeli society. But they rightly deemed three years in prison excessive.

So how did a commendably narrow and defensible legal decision come to be viewed by both sides as if the justices were simply imposing their own value judgments on a hotly disputed policy question, that of how Israel should deal with illegal migrants? Partly, it’s because some couldn’t resist inserting themselves into this debate. For instance, Justice Isaac Amit wrote in his concurring opinion that once these migrants “reached our borders, wounded in body and soul, we should have welcomed them … bound up their wounds of body and soul and treated them with generosity and compassion with respect to work, welfare, health and education.”

That, to be blunt, is none of the court’s business. The migrant problem is a classic case of competing values: compassion for the stranger versus concern over their impact on both Israel’s own poor and its Jewish character. But decisions about how to balance competing values and competing policy considerations are properly the province of the country’s elected representatives, not an unelected court. As an individual, Amit is entitled to have an opinion, but as a justice, his job is limited to determining whether any solution these representatives devise comports with the law.

Still, the main ruling stuck pretty closely to legitimate legal analysis, so it’s hard to see the decision as a whole as a blatant intrusion into policy. It certainly didn’t warrant its opponents’ accusations of “judicial activism,” “steamrolling” the Knesset and dealing “an almost deadly blow to Israeli democracy.”

Yet the court’s own record made those accusations a reasonable conclusion to leap to for anyone who hadn’t actually read the 120-page verdict, which most people haven’t and won’t. Because time and again, the justices have imposed their own value judgments on controversial issues, in blatant defiance of what the law actually says (for examples, see here, here, here and here).

In so doing, the court has destroyed its own credibility. Like the boy who cried wolf, it has substituted its own policy preferences for the law so often that when it finally does what it’s supposed to do – base its rulings on actual law – nobody believes it anymore. Everyone simply assumes it has handed down yet another value judgment masquerading as jurisprudence.

Even worse, however, is that by undermining its credibility in this fashion, it has undermined the key function courts are supposed to play in a democratic society: the ability to resolve disputes peacefully in a way broadly acceptable to most players. Instead, it has turned itself into just another partisan player, whose decisions merely add more fuel to any ideological controversy it rules on. And it has thereby done inestimable damage not only to itself, but to the country as a whole. 

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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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