ANALYSIS: African migrants trigger constitutional crisis for Israel

The High Court of Justice and the Knesset have been playing a dangerous game on the illegal migrants issue.

September 23, 2014 12:04
2 minute read.
Eritrean migrants in Israel

Eritrean migrants in Tel Aviv.. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

The High Court of Justice and the Knesset have been playing a dangerous game on the illegal migrants issue.

With the High Court’s unprecedented decision Monday to strike down the state’s migrant policy for the second time in one year, it has not only created a second administrative nightmare and embarrassed the politicians who passed the law, but pitted itself unusually directly against massive public opinion in Israel.

In some ways though, the Knesset is equally responsible for this separation of powers battle.

When the High Court struck down the old migrant policy in September 2013 in a 9-0 ruling, the reasoning the majority adopted clearly invoked international law, finding that most migrants could not be deported from Israel because of real fears of persecution or a lack of diplomatic ties with the home country.

This was a clear shot across the bow.

The court essentially stated to the Knesset: When you redo this policy, your acting presumption must be to integrate and not detain the migrants, or to detain them only temporarily while quickly granting refugee status to many of them if it is found they should not be deported.

Prime Minister Binyamin Netanyahu and the Knesset ignored the warning.

Cherry-picking from the justices’ different separate opinions, they fashioned a policy that incorporated the assessments of Supreme Court President Asher D. Grunis and Justice Neal Hendel on permitting the detention of migrants for up to one year, as opposed to the old policy of three years.

The law’s preamble cited Justices Edna Arbel, Uzi Vogelman, and Deputy Supreme Court President Miriam Naor as supporting the idea of open detention, as is done in some Western democracies in place of the old policy’s closed detention.

Netanyahu, Interior Minister Gideon Sa’ar, most of the Knesset, and even Attorney-General Yehuda Weinstein bet that by incorporating aspects of the five justices’ ideas and moderating the policy somewhat, along with massive public support, they could successfully override the court’s nullification.

Despite the risk of public anger and the possibility of massive backlash against the court, with some talking again of limiting its powers, the court called the Knesset’s hand and doubled down with its resounding decision.

Will the Knesset now try to limit the court’s powers – and are there enough votes for this when Yesh Atid and Hatnua have kept quiet and much of the opposition supports the court? If it does, would the court strike down such a limitation? These questions remain open, as the constitutional crisis between the court and the Knesset awaits resolution.

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