In a unanimous and landmark ruling, the High Court of Justice on Monday said that holding undocumented migrants in custody for a period of three years without pressing charges is unconstitutional.
All nine justices agreed that part of an amendment to the "Anti-Infiltration Law," which allowed immigration officials to detain anyone who entered the country illegally for a period of up to three years (and in some cases for a longer period), amounted to a severe infringement on the rights of migrants as per Basic Law: Human Dignity and Liberty. Israel's basic laws have been recognized by the courts as its de-facto constitution.
As for the migrants who have already been incarcerated under the now-defunct provision, the High Court instructed the state to review each case on an individual basis with the goal of having them released within three months.
There are an estimated 55,000 African aliens in Israel, mostly from Eritrea and Sudan. About 1,750 have been placed in detention facilities. Many of the migrants live in Tel Aviv's southern neighborhoods, causing friction with the Israeli residents, who say the areas -- which had poor infrastructure to begin with -- have become rampant with crime because of the immigrants.
Justice Edna Arbel, who wrote the court's decision, said that "having the infiltrators denied of their liberty and locking them up for a protracted period constitutes a severe violation of their rights and harms their physical well-being and mental health. We must not right a wrong by creating another wrong. We cannot strip them of their basic rights while undercutting human dignity and liberty so blatantly, even as we try to find a solution to a problem that requires a proper political and diplomatic resolution. We must not forget our fundamental values, which draw inspiration from Israel's Declaration of Independence, nor can we discard our moral obligation towards every person, whoever he or she may be. These values serve as the underpinnings of our state, a Jewish and Democratic state."
Arbel said there were alternatives that may replace the existing mechanism. "You can force [the migrants] to report to the authorities every so often; you can impose restrictions on where they live; you can force infiltrators to stay within the confines of certain installations at night; to step up efforts against those who help them cross the border and so forth." Arbel conceded that the ruling would "not be easy for the Israeli public and would be particularly painful for the residents of southern Tel-Aviv, whose predicament is reflected through their genuine outcry, which deserves our empathy and understanding. We must be supportive."
Chief Justice Asher Dan Grunis said that "if the situation takes a significant turn for the worse -- for example, a dramatic increase in the number of infiltrators -- this would warrant further judicial review on the matters at hand." He further said that the Knesset is free to pass new legislation that would let the state incarcerate infiltrators so long as the detention period dropped significantly below three years.
Following the ruling, Prime Minister Benjamin Netanyahu said Monday he was determined to oversee the government's efforts to tackle the issue of illegal immigration. "Many countries still struggle with the issue of illegal immigration, but we managed to stop it; not a single infiltrator crossed our southern border last month. This was made possible because of a whole host of means, including the construction of a fence along the southern border. Even as we honor the High Court ruling, I plan to consult with the interior minister and the attorney-general and come up with a solution that complies with the decision, yet allows us to pursue our determined policy, which has already had thousands of infiltrators stopped or deported."
Interior Minister Gideon Sa'ar stressed that the government will try to find a legally sound solution to the problem in the wake of the decision. "On the face of it, the ruling hurts our ability to deal with those who enter Israel illegally. Israel is a nation of laws and we must study the ruling so as to come up with ways to uphold our national interests and the interests of our people, and this should include a new legislative arrangement. "
Right-wing MKs were highly critical of the court's decision on Monday, with some going so far so as to call for a law that would bypass the High Court and essentially reverse the ruling.
Habayit Hayehudi faction leader MK Ayelet Shaked, who is also the head of a caucus advocating the deportation of infiltrators, said that "the High Court of Justice essentially took down the defensive wall the Knesset had built to counter the waves of economic migrants and thus once again rendered our borders porous. The court dealt an almost deadly blow to Israeli democracy when it decided to steamroll the people's elected and representative body."
Internal Affairs and Environment Committee chair MK Miri Regev (Likud-Beytenu) repeated the famous phrase on the supremacy of the High Court, saying "There are judges in Jerusalem," while adding that "the pain still lies in south Tel Aviv. This is a decision that is divorced from the situation on the ground. It is a sad day for the residents of southern Tel Aviv."
Coalition Chairman MK Yariv Levin echoed this sentiment, saying that "through this crazy decision, the High Court set a new record when it comes to its recklessness; this will turn the State of Israel from a Jewish State to a nation that belongs to all its immigrants. The Knesset must legislate this law again and put an end to the judicial activism from the High Court, which was not authorized to engage in such conduct in the first place."
Knesset Speaker Yuli Edelstein said the Knesset would take up new legislation on this matter once it reconvenes for its winter session, next month. "We will have to work together to pass strong, yet proper, legislation that would help the residents of south Tel Aviv deal with their situation but also meets the High Court's constitutional muster."
Opposition leader MK Shelly Yachimovich (Labor) sounded a different note, saying that "the High Court of Justice once again set a clear national standard on moral issues. The infiltration law was very much in conflict with Israel being a democracy." Justice Minister Tzipi Livni (Hatnuah) said that "the problem of the infiltrators should be dealt with through constitutional means and the High Court of Justice should fend off the improper attempts to weaken the institution. I will fight any attempt to use this ruling to cripple the High Court of Justice."
Meretz leader MK Zehava Gal-On was pleased with the decision, saying "The High Court of Justice removed an ugly stain from Israel's law books and unanimously stated that you cannot deny liberty from innocent individuals for an extended period, even if their legal status in Israel is questionable."