Analysis: Gov’t adopts High Court’s ideas to forge new migrant policy

It will be difficult for justices to strike down law based on their own prescriptions.

By YONAH JEREMY BOB
Saharonim detention center 370 (photo credit: Eli Hershovitz/Physicians for Human Rights-Israel)
Saharonim detention center 370
(photo credit: Eli Hershovitz/Physicians for Human Rights-Israel)
How do you beat back an almost guaranteed petition to the High Court of Justice on a major controversial new migrants policy? Base the policy on essentially direct quotes from five of the nine justices (including the Supreme Court president and the justice who wrote the majority opinion) who struck down the old policy.
Late Thursday night a Justice Ministry-sponsored bill for a major revision in policy for dealing with the illegal African migrants problem was uploaded on the Israel Government Portal.
The new bill proposes that the practice of placing the migrants for three years in a special detention center be changed to only one year.
The old law’s provision which established the detention as a 24-hour situation is changed to permit the migrants to leave an “open” detention center during the day, while being required to sleep their at night.
The preamble to the bill quotes Supreme Court President Asher D. Grunis and Justice Neal Hendel as supporting most of the concept behind the old law and as being willing to uphold a revision of the law which would substantially shorten the three-year detention period.
Next, the preamble cites Justices Edna Arbel (who wrote the majority High Court opinion which struck down the old law), Uzi Vogelman and Deputy Supreme Court President Miriam Naor as having suggested the “open” detention center idea as a positive example of what other Western democracies have done to handle their migrant issues.
Also, the law said that it will initially run for only a three-year “emergency” period, following which the Knesset would need to reauthorize the law in order for it to continue – a sweetener for the High Court, as it can say it has not approved any permanent change in constitutional protections.
Various pro-migrant NGOs have already suggested they will return to the High Court to strike down any bill with similar provisions regarding a detention center, potentially setting up another round of judicial drama, should the bill become law.
No matter who is right or wrong in the world of theoretical ethics and philosophy, it is likely that the new bill, once passed, will be upheld by the High Court.
Instead of guessing how far it could push the boundaries of human rights law regarding the migrants, as the government did in constructing the old, nullified law, this time the government took its advice directly from the High Court, which will rehear any future petitions.
Simply put, it will be difficult for the court to strike down a new law based on prescriptions its own members suggested.
That said, the new bill is not a shoo-in.
Human rights groups will be able to argue that when the court referred to open detention centers, it meant open “for real,” in a way that would allow the migrants to travel.
In contrast, the current plan reportedly is to have the detention center in the middle of the desert, so it is unclear where the migrants will be able to travel to, aside from walking just outside the gate of the center.
Furthermore, the new bill requires migrants to “register” and present themselves at the detention center three times during daylight hours, also hampering any real chance at leaving the area, and has strict provisions for sending migrants who violate the registration requirements to closed detention.
But basing a new petition on these arguments may breed false hope for those opposing the new bill.
The High Court has a record of approving changes in policy that meet at least superficial conditions for not blatantly violating international law and domestic constitutional protections, even if human rights groups argue that the implementation of such a new policy still violates human rights.
In the famous legal dispute over Route 443, the High Court eventually (after years of delays) ordered the IDF to let Palestinians drive on the road, which allegedly was originally being paved for their benefit. (For an extended period during the second intifada and after, Palestinians were barred from the road on security grounds.) But when human rights groups argued that the implementation of the change in policy on the ground did not give Palestinians a way to get to Ramallah from 443, making it almost useless to them, the court did not intervene again.
While there are counterexamples, the point is that with polls consistently being anti-migrant and against even the court’s previous intervention of striking down the old law, the court is unlikely to intervene again, particularly when ideas are copied and pasted from its opinion.