The dangers of “leave human rights to the courts”

It’s not just about the asylum seekers. A state that does battle with its own Supreme Court over human rights plays a dangerous game.

The new amendment to the Prevention of Infiltration Law demonstrates this reckless behavior. Less than three months ago, a nine-member panel of the Supreme Court unanimously ruled that imprisoning asylum seekers for an extended period of time violates their human rights and their dignity and was unconstitutional. With whirlwind speed, the Knesset today (Tuesday) passed an amendment that is only a slightly altered version of its previous enactment.

Instead of a three-year detention without trial, the period of detention is now one year. Instead of confinement to a prison camp, the law allows the state to confine asylum seekers to an “open facility”, where they must stay during nighttime and have to report for counting three times a day. The asylum seekers are permitted to work only within the facility, and are to be paid less than minimum wage. During their stay, they are subject to the discipline of prison guards. It does not require much imagination to see that this is imprisonment without trial, plain and simple.

By passing a revised law so similar to the one the Court has struck down, the government and Knesset are openly challenging the Supreme Court to intervene again, essentially saying to it: “go ahead and stop us!” The new law is likely to fail the Supreme Court’s constitutional review on the same grounds that led Court to strike down the previous one, barring a dramatic reversal of the Court’s previous opinion.

Such an attitude is dangerous in the long run. The Supreme Court is not just the defender of the weak and downtrodden. It is also the upholder of the law and of legal authority. In challenges to official state actions, the government enjoys the presumptive credit that it has acted properly; government representatives appearing before the courts are taken at their word; the Knesset’s laws are presumed to be valid.  A majority of cases against the government are decided in its favor on the strength of that credit. Very often, the mere possibility of an adverse Supreme Court decision is enough to get the government to quietly fix legally problematic actions before a ruling becomes necessary.

When the government flouts the Supreme Court’s rulings, all this may change. The trust between the executive, legislative, and judicial branches erodes, leading to more instances where the court will be willing to overturn decisions and invalidate laws.

The government’s deliberate choice to set itself upon a collision course with the Supreme Court over human rights hurts its ability to find creative solutions to legal challenges. From now on, the government can expect to face ever more circumspect and uncompromising judges in similar future cases. Indeed, this breakdown is already happening. In a recent decision to evacuate illegally built houses in the West Bank, the Supreme Court sternly warned that it might no longer rely upon promises of state representatives in such matters, because of the government’s repeated failures to carry out its promise to evacuate illegal construction.

The price for this attitude is diminished respect for democracy and the rule of law. Government decisions and the Knesset’s laws are tarnished as violating human rights. Meanwhile, the Court becomes embroiled in ever more political questions and is viewed as partisan. Everyone loses.

Article 11 of the Basic Law on Human Dignity and Liberty states: “All governmental authorities are bound to respect the rights under this Basic Law.” Neither the government not the Knesset is free to relinquish the role of human rights protector solely up to the Supreme Court. It should have been clear to the members of government and the Knesset, as it was to a unanimous panel of nine judges, that forcing asylum seekers into a cruel choice between prolonged imprisonment without trial or a “voluntary” return to lands of persecution where their lives are in danger violates basic human dignity and liberty.

Even if the government disagreed with the Supreme Court’s decision, it should not have put forward a law that flagrantly disregards the ruling handed down only a few months ago. To ignore the Supreme Court’s ruling and leave it up to the Court to set things right again hurts Israeli democracy. This is the lesson that was forgotten in today’s shameful vote in the Knesset.