The High Court of Justice on Thursday gave the state 60 days to explain which of its responsibilities regarding the imprisonment of criminals could be farmed out to a private entrepreneur and which it was bound by the country's constitutional system to reserve for itself.
The decision came at the end of a hearing on a petition against a Knesset amendment to the Prison Ordinance allowing for the establishment of a private prison. The petitioners, the Human Rights Division of the Netanya Academic College of Law and retired Gundar Shlomo Tweezer, called on the court to overturn the law on the grounds that it violated the Basic Law: Government and the human rights granted to prisoners by the Basic Law: Human Freedom and Dignity.
The tender for the prison has already been issued and the state's representative at the hearing, attorney Yochi Gnessin, told the court the winner was to be chosen within the next few weeks.
At the beginning of the hearing, Justice Dorit Beinisch
, who headed the panel of three justices, interrupted the attorneys for the petitioners, Gilad Barnea and Aviv Wasserman, and appeared to be hostile to the petition. The court's policy, in general, is to not overrule Knesset legislation because of the constitutional principle of separation of powers. But as the hearing proceeded, she seemed to tone down her comments.
Barnea charged that the amendment marked "the first time the government is privatizing prerogatives belonging to the core of its responsibilities." Beinisch interrupted Barnea and told him it was not the first time and that the government had already privatized other crucial services.
The question, Barnea continued, was where to draw the line.
"Until what point can the state make itself smaller?" he asked the court. "In this case, the government has given up all its prerogatives and allowed a private company to implement them and make decisions generally reserved for the government."
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According to the amendment, the prison will be run entirely by the private company. Prison officials will be empowered to punish prisoners for misconduct, deprive them of benefits and strip search them.
Beinisch replied that the government had still not worked out the details of how the prison would be run by the government. The current law called for a single pilot project to see how it worked, she added.
"A pilot is an experiment using human beings," retorted Barnea. "The amendment is not a provisional law and the idea of building one experimental private prison will get lost. There is no precedent for this in terms of the breadth and depth of the prerogatives granted to a private company regarding people whose human rights must be protected."
According to Gnessin, the Knesset had not forcibly deprived the executive of its prerogatives to run prisons. On the contrary, it was the state that willingly yielded the prerogatives. Therefore, the petitioners were wrong in maintaining that the law violated the Basic Law: Government.
Furthermore, he said, the amendment did not deprive the government of all its rights and responsibilities regarding the imprisonment of criminals; the details still had to be worked out.
At this point in the proceedings, Justice Ayala Procaccia asked the state attorneys to list the prerogatives the state felt it could give up and those which it could not transfer to private hands. The court turned her question into a decision, ordering the state to provide the list within 60 days and giving the petitioners 30 days to respond.
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