IDF watch over Sudanese migrants R370.
(photo credit:Yonathan Weitzman/Reuters)
Declaring that it had achieved its overall objective of stopping Interior Minister Eli Yishai from arresting a massive number of migrants, the Association for Civil Rights in Israel announced on Monday that it had withdrawn on Sunday its petition to prevent the realization of Yishai’s intentions.
The withdrawal came three days after the state attorney told the court that any public statements made by Yishai or his ministry had no legal standing, as only the Population Immigration and Borders Authority (PIBA) had the authority to announce official government policy on the issue.
The state attorney also indicated to the court that PIBA had made no such announcement because the government as a whole had not reached a decision on the issue. He then said that if any major decision were to be made on the issue, it would be announced by PIBA at least 30 days before it was due to be carried out.
In light of the state attorney’s statements, ACRI and the other petitioners withdrew their petition.
ACRI said that it still views Yishai’s prior announcement as problematic, calling it a “false announcement” and saying that it “raised panic and fear among one of the most disadvantaged groups in Israel.”
However, if ultimately ACRI’s goal had been to prevent the mass arrests, ACRI viewed forcing the state attorney’s hand in publicly invalidating Yishai’s authority to conduct the arrests as having achieved that goal.
The entire case was brought about by Yishai’s August 28 announcement that all Sudanese asylum seekers would have to leave the country by October 15, or face arrest and placement in the detention centers that are still being constructed in the South.
Yishai’s announcement was never contradicted by any major government official until the state attorney was forced to submit a position on the issue on October 25.
ACRI had already achieved an initial victory, winning a temporary freeze by the Jerusalem District Court on October 11.
Asked why it did not try to broaden the court’s temporary freeze into a permanent freeze against mass arrests to preempt such a government decision, there were indications that ACRI believed that the best strategy was to rely on the state attorney’s official statements that there was no decision yet and no need for a preemptive effort.
There were also indications that ACRI viewed the 30 days that the state attorney had committed to as not only giving it a opportunity to refile a petition if necessary, but also giving the public a clear chance to react and judge the government for any such changes in policy.
It is unclear how much public outrage there would be if such a decision was reached, in light of the fact that various reports, including polls showing as much as 75 percent of Israeli society supporting “expulsion” of “African infiltrators.”
Asked if they could trust that Yishai would not start mass arrests – given the statements made by senior Interior Ministry officials that even court orders would not stop the arrests – ACRI implied that they would rely on the State Attorney’s Office to enforce the rule of law and uphold its commitments to the court.
Aside from ACRI’s characterizing of its withdrawal of the petition as a victory, it may also have been a smart legal move.
Most courts follow a legal doctrine that they will not rule on an issue that is premature or where the injustice alleged has not yet been fully inflicted.
By withdrawing the petition before a final court decision, due on Tuesday, ACRI avoided a possible negative decision, while achieving some precedent from the court’s temporary freeze order and pushing the state to contradict Yishai’s public position on the issue.
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