Analysis

Overhaul backers turn thrice-struck asylum seeker law into emblem of court activism

Contrasting justices’ rejection of bill jailing African migrants with their approval of Gaza Disengagement Law, Simcha Rothman cuts to very heart of debate dividing Israeli society

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

African migrants protest at the Holot detention center near Ketziot, in the Negev Desert, southern Israel, February 17, 2014. (FLASH90)
African migrants protest at the Holot detention center near Ketziot, in the Negev Desert, southern Israel, February 17, 2014. (FLASH90)

Amid the fire and the fury of the last four months of protest against the government’s judicial overhaul program, there have been a few occasions in which debate has taken place over what exactly is at stake and what precisely the consequences of the controversial program might be.

One such occasion took place in the Knesset plenum in early March, as a bill designed to enable the Knesset to make legislation immune to High Court review, known as the “override clause,” was debated ahead of its first reading.

During that debate, Religious Zionism MK Simcha Rothman, one of the architects of the judicial overhaul program, invoked what has become for the Israeli right the example par excellence of judicial overreach and interventionism: the series of rulings by the High Court of Justice striking down legislation that allowed imprisoning African asylum seekers indefinitely and without trial after they crossed the border.

In his speech from the Knesset podium, Rothman railed against the court rulings that struck down or amended three separate Knesset laws addressing the issue, juxtaposed the rulings with decisions to allow authorities to remove settlers, and said the override clause was critical to thwart such judicial activism.

Human rights experts have said that the asylum seeker laws are among the worst instances of rights abuses by Knesset legislation that have been addressed by the High Court.

But for those behind the overhaul legislation, who reject the authority of the court to police the Knesset, Rothman’s diatribe cuts to the beating heart of the debate behind the bitter political divisions that have exploded onto the streets.

The Supreme Court convenes for a hearing on the Central Election Committee decision to disqualify Likud party member Amichai Chikli from running in the upcoming Knesset election, October 6, 2022.

That question asks whether Israel needs the High Court to protect human and civil rights, especially those of individuals and of minorities, against the will of the majority. Or, as the coalition argues, can we simply rely on the Knesset to rein itself in from the worst excesses of majoritarian rule?

Who protects rights?

In that speech from the Knesset podium in early March, Rothman was dismissive of those High Court rulings, claiming derisively that the court struck down the legislation in order to allow the asylum seekers to “work on their hobbies.”

The “hobbies” jibe referenced a minor comment by one of the justices in his written opinion in one of the three court rulings on the issue.

Rothman argued that protecting the rights of one group meant trampling those of another, denouncing the court for favoring the rights of the asylum seekers over what he said were the rights of the residents of south Tel Aviv that had been violated by the influx of those asylum seekers to the area.

But he also sardonically lauded the rulings for having “come down from heaven to help me explain how the legal system has taken control of Israel.”

By which he meant, that the court’s intervention in this issue on three separate occasions to defy the will of the majority as represented in the Knesset was the perfect example of the kind of judicial activism run amok that his judicial overhaul will ostensibly rectify.

“It is the Knesset that protects rights,” declared Rothman, “not the High Court.”

Religious Zionism MK and judicial overhaul architect Simcha Rothman speaks from the Knesset podium in favor of the High Court override bill, March 14, 2023. ( Screenshot Knesset Channel)

The asylum seeker issue has become a touchstone of sorts for those in the government making the case for clipping the High Court’s wings. To the right-wing, religious bloc pushing the court bypass legislation, the rights abuses identified and struck down by the bench are justified by popular sentiment against the asylum seekers among working-class Israelis living in glitzy Tel Aviv’s economically depressed south.

From the mid 2000s till 2012, approximately 60,000 African asylum seekers and migrants crossed into Israel, mostly from Eritrea and Sudan. Many of them ended up in south Tel Aviv, where residents complained bitterly of a deterioration in the quality of life and personal security in their neighborhoods.

A rise in crime and changes to the neighborhoods’ character led to widespread demands for government action.

So in order to deter asylum seekers from coming and to persuade those already in Israel to leave, the Knesset passed amendments to what is known as the “anti-infiltration” law on three separate occasions.

All three were struck down by the High Court for unconstitutionally and disproportionately violating the asylum seekers’ right to liberty, although the court allowed the third iteration of the law to stand on condition that a key provision be substantially amended.

In Prime Minister Benjamin Netanyahu’s first major address on the judicial overhaul program on March 23, he explicitly mentioned the High Court decisions on the asylum seekers as an example of undue judicial intervention in government policy.

In February, Justice Minister Yariv Levin, the other key architect of the judicial overhaul along with Rothman, cited the African asylum seeker rulings as a prime example of the High Court ignoring the will of the majority, arguing that since the elected majority of the Knesset had backed the legislation “the court can’t just come and decide that ‘we are asserting our values in place of those of the public and decision makers.'”

A 2018 push for the passage of a High Court override bill by right-wing leaders of the Netanyahu-led government at the time was also sparked by the decision on African asylum seekers.

And the Religious Zionism party’s 2022 election campaign manifesto even went so far as to state explicitly that after the judicial overhaul legislation is passed, the law on detaining African asylum seekers that the High Court had objected to would be re-legislated and immunized from High Court review.

The government’s override clause bill, as well as allowing the Knesset to shield legislation from High Court review, would drastically limit the scope for the court to strike down legislation, and require an 80 percent majority of the bench to concur in order to strike down a law, something almost unheard of in democratic countries.

These two stipulations would by themselves almost entirely negate the court’s ability to serve as a check on legislative power, even without the override clause itself.

The judicial review limitations bill passed its first reading in the Knesset plenum, although the government paused further advancement of the legislation in order to first force through legislation changing the Judicial Selection Committee, which would give the coalition near-complete control in appointing judges throughout the court system, before ultimately freezing that bill too in the face of massive public opposition.

Neither Rothman or Levin have given any indication that they are willing to abandon these measures, although some proponents of broad judicial reform have said that the override clause specifically could be scrapped.

But both Rothman and Levin have repeatedly stated that they do not believe there is any need for a judicial check on legislative power.

“The High Court exceeded its authority time and again, it went against this House again and again — against a majority of the right and left — so this [override] law needs to be approved in the name of the residents of south Tel Aviv, Gush Katif, Homesh, and for the glory of the State of Israel,” Rothman proclaimed in the recent Knesset debate on the override law.

Opponents of the coalition’s judicial overhaul program argue that without any moderating mechanism or framework to check the will of the majority, the Knesset is in fact likely to trample on individual and minority rights if that is the direction the political winds are blowing.

Although the current coalition holds up the asylum seeker rulings as the ultimate argument against judicial review of Knesset legislation, proponents of judicial intervention cite the asylum seeker laws as the ultimate argument for the critical necessity of judicial review.

Rights fight

The different versions of the amendments struck down by the courts provided for the incarceration without trial of asylum seekers in prison for three years, or their indefinite or long-term detention in a detention facility in the Negev desert, without processing their asylum requests, until the asylum seekers decide to leave.

African asylum seekers protest outside the US embassy in Tel Aviv, 06 January 2014. Thousands of African migrants, including many from Eritrea and Sudan, held a protest outside European and North American embassies in Tel Aviv against Israel’s refusal to grant them refugee status and the opening of ‘Holot’, the new detention facility in the country’s south. (Tomer Neuberg/FLASH90)

Opponents to these laws argued that the 1951 Refugee Convention to which Israel is a signatory prohibits penalizing asylum seekers even if they cross the border without authorization. They also pointed out that the state failed to process the overwhelming majority of asylum applications — meaning the validity of their claims for refugee status could never be determined, and the legality of their residence in Israel was therefore never proved one way or the other.

Above all, opponents of the laws argued that the state’s detention of the asylum seekers for indefinite or lengthy periods of time violated some of the most fundamental human rights protected by Israel’s quasi-constitutional Basic Laws.

According to Dana Yaffe, an attorney who is director of the Legal Clinic on International Human Rights at Hebrew University, the anti-infiltration laws represented some of the worst violations of human rights by a Knesset law since the High Court began to exercise judicial review over legislation in the 1990s.

“These laws violated the basic rights of the asylum seekers as human beings, including their right to liberty, dignity, and autonomy, without them having committed any crime, and also violated their rights as refugees since they faced severe danger in their countries of origin but were prevented from having their asylum claims heard,” said Yaffe.

In its first ruling striking down the 2012 version of the law, which allowed for the imprisonment of asylum seekers for three years without trial, Supreme Court Justice Edna Arbel wrote that the right to liberty was guaranteed in Israel’s Basic Law: Human Dignity and Liberty and was a critical precept of democracy.

African migrants protest outside Holot detention center near Ktsiot, in the Negev Desert, southern Israel. African migrants, most of them from Eritrea and Sudan, have in the past few weeks staged a number of protests against Israel’s refusal to grant them refugee status and the opening of ‘Holot’. February 17, 2014. Photo by FLASH90

“The right to liberty characterizes a democratic regime, and it is based on this country’s values as a Jewish and democratic state,” wrote the justice.

“Imprisoning infiltrators and revoking their liberty for a lengthy period is a fatal and disproportionate blow to their rights, their bodies, and their souls,” ruled Arbel.

She added that it also infringed on an asylum seeker’s family life, “social and leisure activities,” and negatively affected their property rights as well as their right to privacy and their general right to dignity.

Arbel noted the difficulties experienced by the residents of south Tel Aviv, but concluded that the state had other alternatives than incarcerating asylum seekers to solve that problem, and that the benefit the law might have to life in those neighborhoods did not outweigh the damage the law did to the right to liberty of the asylum seekers.

“We cannot revoke basic, fundamental rights and at the same time grossly violate the human dignity and liberty of a person as part of a solution to a problem which requires a holistic policy framework,” concluded the justice.

In short, the High Court ruled that the law the Knesset passed disproportionately violated one of the most fundamental rights which characterize democratic regimes, the right to personal liberty, and through such a violation also harmed numerous other basic rights of the asylum seekers.

The second incarnation of the anti-infiltration law, passed in December 2013, allowed for the imprisonment of an asylum seeker for a one-year period after entering Israel, and the indefinite detention of asylum seekers already in the country in the Holot detention center in the remote southwest Negev region.

It was in the High Court ruling striking down this new version of the anti-infiltration law in which Justice Uzi Vogelman, who wrote the opinion for the majority, noted that the ability of an asylum seeker to engage in his hobbies would be infracted by the law.

African asylum seekers protest outside the US embassy in Tel Aviv, 06 January 2014. Thousands of African migrants, including many from Eritrea and Sudan, held a protest outside European and North American embassies in Tel Aviv against Israel’s refusal to grant them refugee status and the opening of ‘Holot’, the new detention facility in the country’s south. (Tomer Neuberg/FLASH90)

But Vogelman argued out that there were other more basic rights that the law violated as well.

“Imprisonment extracts a heavy price from the prisoner. There are almost no rights which are not violated as a result. It revokes the right to liberty, violates the right to dignity, detracts from the right to privacy, negates the ability to lead a family life and limits an individual’s autonomy in the most basic manner,” wrote Vogelman.

And he added that the law violated the asylum seeker’s right to due process.

“The arrangements under the new amendment to the law for preventing infiltration substantially, deeply, and fundamentally violate human rights,” concluded the justice.

In short, the court ruled, the anti-infiltration law violated the most fundamental rights that are protected in democratic regimes.

Ultimately, the court partially upheld the final piece of legislation passed by the Knesset in 2014, allowing the state to detain African asylum seekers, but insisted this be for a maximum of 12 months instead of the 20 months sought by the government.

By 2018, there were no asylum seekers left in Israel who were subject to the 12-month detention period, leaving empty the NIS 323 million ($88 million) Holot facility that was built specifically to hold them.

From Holot to Gaza

To Rothman and others, the court’s misdeeds in the asylum seekers case were made even worse by the fact that just a few years earlier, the bench had rejected a request to strike down the 2005 Gaza Disengagement Law.

The law, which was passed under a coalition government led by the then-Likud leader and prime minister Ariel Sharon, was designed to codify Israel’s unilateral withdrawal from Gaza, which involved the involuntary evacuation of the 8,600 settlers in what were known as the Gush Katif settlements. It also paved the way for the removal of 680 settlers from four northern West Bank settlements.

An Israeli soldier evacuates Jewish settlers from their home in the Jewish settlement of Neve Dekalim, Gaza Strip. (Flash90)

“The hobbies of those who live in Homesh are not interesting,” said Rothman sarcastically, name-checking one of the former West Bank settlements. “The hobbies of south Tel Aviv residents are not of interest… But the hobbies of the infiltrators – that’s what the court fought for in 2013, 2014, and 2015.”

To Rothman and likeminded compatriots, the judges aren’t just activists, but political activists.

According to them, the High Court exercises judicial activism over legislation and government decisions not through an impartial evaluation of the purpose of a law balanced against the civil rights it supposedly harms, but rather on the basis of its own political ideology and world view.

In the Gaza Disengagement ruling, however, the court did in fact take the rights of the evacuees into account.

In a 10 to 1 ruling, the justices of the majority determined that the property rights and the right to dignity of the evacuees were being violated by their forcible evacuation from the Gaza and West Bank settlements.

Settlers from the Kfar Maimon settlement in Gaza protest against the disengagement plan, July 22, 2005.
(Flash90)

They ordered that eligibility for the compensation offered by the state to the settlers being evacuated be broadened, and insisted that residents under 21 also be provided with compensation. And in 2013, the court increased compensation payments to some 500 evacuee families whose homes were undervalued by the state.

But at the same time, the court ruled that the violation to the settlers’ rights was nevertheless within the boundaries allowed by Basic Law: Human Dignity and Liberty. The law stipulates that rights violations must be enacted for a positive purpose and the infringements must be proportional to the damage being done to those fundamental civil rights.

The court noted that since Israel’s control of Gaza was a “belligerent occupation” and therefore temporary in nature as long as Israel had not formally annexed the territory, the property rights of the settlers were not as strong as those enjoyed within Israel’s sovereign borders.

The Gaza Disengagement could not be achieved via any means other than to evacuate the Israeli population from the territory due to the danger to the lives of the settlers should they remain there after the military withdrawal, the court determined.

Settlers in the Israeli settlement of Kfar Darom in the Gaza Strip who barricaded themselves on a roof throw water, rubbish and chemicals onto security forces who are about to evacuate them under the terms of the Gaza Disengagement Plan. (Yossi Zamir/Flash90)

The compensation provided, as well as the reduced property rights of the settlers given the temporary nature of Israeli control over the territory, meant that the Gaza Disengagement Law was proportional to the violation of the settlers’ rights, and therefore constitutionally acceptable, the court found.

And the court determined that the stated purpose of the law, to bolster Israeli security, improve Israel’s diplomatic standing, and reduce Israel’s burden, among others, met the law’s standard of having a good purpose.

Against that background and in light of the compensation provided to the settlers in return for the damage to their property rights, the forcible evacuation was therefore constitutionally acceptable, the court ruled.

On the other hand, the court found that the damage to asylum seekers’ rights would not be proportionate to the expected public benefit the legislation might have, when bearing in mind that alternatives to long-term incarceration were available.

Israelis protest plans by Prime Minister Benjamin Netanyahu’s government to overhaul the judicial system, in Tel Aviv, Israel, April 1, 2023. (AP Photo/Tsafrir Abayov)

In striking down three separate pieces of Knesset legislation regarding the African asylum seekers, the court was not asserting its liberal predilections to allow non-Israelis to hone their hobbies regardless of the suffering of the country’s citizens, as Rothman would have it.

In actuality, the court limited its deliberations to the legal and constitutional aspects of laws regarding asylum seekers and settlers. In the Gaza case, the court even rejected an opportunity to weigh in on the goals of the disengagement, noting it had no competency to adjudicate the politics of the issue.

And in the cases of the asylum seekers, the court used the authority it still enjoys to tell the Knesset that there are limits to legislative power when the laws passed  violate fundamental civil rights that constitute the basis of democratic societies.

Indefinite incarceration or lengthy detention without trial was considered by the court to be too great an injury to the fundamental rights of liberty and due process for a democratic society to tolerate.

Should the government’s judicial overhaul legislation pass in full, the job of determining whether a law passed by the Knesset unjustifiably violates human and civil rights would fall to none other than the Knesset itself.

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