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. 

Subscribe to Evelyn’s Mailing List

How Israel’s Electoral System Brings the Country’s Fringes Into Its Center

Like Haviv Rettig Gur in “How and Why Israelis Vote,” I, too, think the advantages of Israel’s parliamentary system outweigh its disadvantages, and for essentially the same reason: because it keeps a great many people in the political system who would otherwise remain outside it.

Critics of the system’s plethora of small parties—as Gur notes, no fewer than 43 parties have been vying for Knesset seats in this year’s election—maintain that it should be streamlined and redesigned so that only big parties would be able to enter the Knesset. In that case, the critics argue, people who currently vote for small parties would simply switch their votes to large ones.

No doubt, some voters would do so—but many others would not. There are at least three groups among whom turnout would plummet if niche parties became by definition unelectable: Arabs, Ḥaredim (including some ḥaredi Zionists), and the protest voters who, in every election, propel a new “fad” party into the Knesset. (In 2015, as Gur writes, the fad party was Kulanu. This year, it’s been Moshe Feiglin’s pro-marijuana, libertarian, right-wing Zehut party, which Gur doesn’t discuss although polls have consistently showed it gaining five to seven seats.)

Together, these three groups constitute roughly a third of the country, and all three are to some extent alienated from the mainstream. If they were no longer even participating in elections, that alienation would grow.

Why does this matter? In answering that question, I’ll focus mainly on Ḥaredim and Arabs, the most significant and also the most stable of the three groups (protest voters being by nature amorphous and changeable).

It matters primarily because people who cease to see politics as a means of furthering their goals are more likely to resort to violence. Indeed, it’s no accident that most political violence in Israel has issued from quarters outside the electoral system.

Read more
Archives