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(photo credit: Courtesy)
An extended panel of seven High Court justices is due on Sunday to hear a petition by the Ramat Gan Academic College for Law against legislation passed two years ago allowing for the construction and operation of a privately owned prison.
Since the law was passed, the Prison Service awarded the franchise for the first such prison to businessman Lev Levayev. Levayev signed a 25-year contract with the state to build and run a prison to house 800 inmates.
The petition, filed by attorneys Gilad Barnea and Aviv Wasserman, head of the human rights division of Ramat Gan College, charged that the law violated Paragraph 1 of the Basic Law: Government according to which "the government is the executive authority of the State."
According to their argument, while the government may delegate some of its executive responsibilities to private agents, there are certain "core" responsibilities which it must execute itself. Otherwise, it loses its sovereign power.
These responsibilities include enforcement of the law, including the incarceration of lawbreakers.
"Not only is corrections one of the government's most basic responsibilities, it is probably the most sobering," they wrote, quoting from an article written by Prof. Joseph Field. "The ability to deprive citizens of their freedom, force them to live behind bars and totally regulate their lives is unlike any other power the government has. The responsibility for corrections goes beyond issues of cost efficiency and touches on whether a private company should be able to regulate the affairs of a citizen deprived of his freedom."
The petitioners pointed out that the law granted the head of the privately owned prison widespread powers, including handcuffing prisoners in public places, holding prisoners in isolation, search and confiscation, prohibiting a prisoner from seeing his lawyer, control over the prisoner's incoming and outgoing mail, disciplinary hearings, and the right to use firearms when necessary.
In its response, the state rejected the petitioners' allegation that the law released the state from its responsibility and maintained that it also gave it far-reaching supervisory powers. These powers included the obligation to appoint a team of Prison Service officials which was to be physically present in the prison 24 hours a day to oversee that the owners fulfilled their duties.
The state also rejected the constitutional argument raised by the petitioners to the effect that the law prevented the government from fulfilling its constitutional responsibility as the executive authority of the state. It argued that according to Paragraph 33 (e) of the Basic Law: Government, the government could delegate powers if a law specifically said it could.
The intellectual monthly, Eretz Aheret, devoted its latest issue to the controversy over the establishment of a private prison in the hopes of fanning a public discussion which, it alleged, had been almost totally lacking over an issue it described as crucial.
"This edition deals with a range of journalistic and philosophical questions regarding the legislation to establish a private prison," wrote the editor, Bambi Sheleg. "Who pushed the project and why; why was such an important law passed in only three months from the day it was brought before the Knesset Interior Committee; why weren't the committee's deliberations covered by the media; why did many MKs vote for a law without understanding its implications; why did the state refuse to publish the terms of the public tender...
"On June 18, the High Court... will determine a fateful question. Has the state crossed permissible boundaries in passing a law allowing a private prison? Did the Knesset not exceed its powers and cause irreversible damage to Israeli sovereignty?"
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