In a landmark decision, the High Court of Justice on Thursday overturned a law providing for the establishment of a privately-owned and run prison on the grounds that it was unconstitutional.
The ruling was supported by eight of the nine justices including Supreme Court President Dorit Beinisch, Deputy Supreme Court President Eliezer Rivlin, Ayala Procaccia, Asher Grunis, Miriam Naor, Edna Arbel, Salim Joubran and Esther Hayut. Justice Edmond Levy voted against rejecting the law.
In her ruling, Beinisch wrote, "We have reached the conclusion that the very transfer of the powers to administer a prison from the state, which acts in the name of the public, to the hands of private businessmen who operate for profit, causes harsh and grave damage to the basic human rights of prisoners and to their personal freedom and human dignity."
Beinisch wrote that the incarceration of anyone was a violation of human rights but when it was done by the state, it was done for the public good. When the state allows a private group to incarcerate, the violation of human rights is being perpetrated for profit - both the state's and the private entrepreneur's
The law which the court nullified granted the warden of the private prison the right to order a prisoner to be placed in solitary confinement for up to 48 hours, order a prisoner to be strip-searched or take a urine test, or order guards to use of reasonable force in order to search a prisoner, as well as deny a prisoner the right to meet his lawyer.
It granted prison guards the right to search prisoners, arrest them without a court order, to use weapons to prevent a prisoner from escaping or use reasonable force to restrain him.
Beinisch concluded that although the Basic Law: Human Rights and Dignity provided an opening for a law that violated human rights, it could only be one "befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required."
She ruled that the law providing for the establishment of a private prison failed to meet these criteria because the economic benefit accruing to the state by allowing a private entrepreneur to administer the prison was not equivalent to the harm done to the civil rights of the prisoners in a private prison.
Avraham Koznitzky, the chairman of the Manrav Company which, along with Africa-Israel, won the tender to run the prison, told the Ynet internet news site that the High Court's decision would cost the state. "We invested NIS 235 million to build the prison," he said. "We are thinking of suing for NIS 150 million.
The petition was filed by the Human Rights Division of the Academic College of Law and retired Gundar Shlomo Tweezer.
Attorney Gilad Barnea, who represented the college, told The Jerusalem Post that "the ruling is very important because it establishes clear boundaries regarding what is permissible and what is not when it comes to transferring functions from the state to private hands. It is also important because the court determined that the social covenant is an important element in human liberty and that the court may overrule legislation that diminishes it."
Barnea added that the ruling set a world-wide precedent. So far, there had been only one other court challenge to the legality of a private prison - in Costa Rica - and the court rejected it. He said he was certain that other countries would study the High Court ruling carefully and that, at least in this sense, "we will be a light unto the nations."
He also said the ruling would have an immediate effect on three other cases involving the state's intention to privatize. One of the cases involves the hiring of private instructors at the police training center. A second involves the hiring of private instructors for the huge army base near Ramat Hovav in the Negev. The third is the government's intention to privatize the Bailiff's Office and the center for collecting fines.
Labor MK Ophir Pines welcomed the ruling, saying it was a "historic decision which determines that the Knesset may not privatize the basic responsibilities of the state."
The prison, which is located in the Beersheba area, is already built and ready to go into operation. It has a capacity of 800 prisoners and is built to a higher standard than the other prisons in Israel.
On June 18, at the request of the petitioners, the court issued an interim injunction preventing the state from transferring prisoners to the new facility.
Now, according to a source in the Israel Prison Service, the service will begin operating the jail.