Second Strike and You are (Finally) out? The Quashing of the Prevention of Infiltration Law (Amendment No. 4)
by Reuven (Ruvi) Ziegler
(this article has been cross-posted on the Oxford Human Rights Hub Blog)
On 22 September 2014, the Israeli Supreme Court sitting as a High Court of Justice quashed in a 217-page judgment (HCJ 8425/13 Anon v. Knesset et al, full text in Hebrew) the Prevention of Infiltration Law (Amendment no. 4) (full text in Hebrew). The amendment enacted two schemes: first, section 30A, authorising the detention for one year of any ‘infiltrator’ (the term was introduced by the above law, and shall be used in quotation marks in this discussion) entering Israel after the amendment’s coming into force. Second, Chapter D, authorising the holding in an ‘open’ residency centre of ‘infiltrators’ whose removal from Israel (according to the State’s official determination) proves to be ‘difficult’. ‘Infiltrators’ are to be held indefinitely unless they ‘voluntarily’ agree to return their state of origin, or to be transferred to a third state (see my critique of the legislation, and discussion of the proceedings before the HCJ).
Almost a year to the day, on 16 September 2013, the same panel quashed Amendment no. 3 that authorised the detention of ‘infiltrators’ for three years (see my analysis). This is the first time that the Supreme Court has re-annulled primary legislation. Following a brief outline of the judgment, I shall consider several themes that may be of comparative constitutional interest.
Justice Uzi Vogelman authored the main judgment, which holds both legislative schemes to be in violation of the constitutional rights to liberty (section 5 of Basic Law: Human Dignity and Liberty) and to human dignity (sections 2 and 4 thereof) by failing to satisfy the proportionality requirement in section 8 (the ‘limitation’ clause); the latter provision stipulates that ‘[t]here shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.’ Justice Vogelman emphatically stated that ‘infiltrators are people too. And if this merits explanation, let it be said explicitly: infiltrators do not shed any part of their dignity due to their method of arrival [or] by entering a detention or residency facility, and their right to human dignity remains intact even if they have arrived irregularly’ .
Six of the nine justices (Uzi Vogelman, Miriam Naor, Edna Arbel, Yoram Danziger, Salim Joubran, Esther Hayut) annulled section 30A (Chief Justice Asher Grunis and Justices Neal Hendel and Yitzhak Amit dissenting). A close reading of the previous judgment (HCJ 7146/12) reveals that Justice’s Hendel’s dissent should have been anticipated, as he dissented from the operative part of the otherwise unanimous judgment. Similarly, Chief Justice Grunis asserted in his concurrence that a re-enacted law authorising a significantly shorter detention period could pass constitutional muster. In contradistinction, Justice Amit’s dissent rests on distinguishing between section 30A and the quashed Amendment no. 3: while the former applies prospectively, and is hence directed towards a non-specific group of persons who have not yet transgressed the state’s borders, the latter applied retrospectively to ‘infiltrators’ who entered prior to its passage . However, as Justice Arbel noted, newcomers subject to the state’s jurisdiction enjoy constitutional rights to liberty and dignity ; moreover, a nulla poena sine lege principle seems out of context.
Seven justices (including Justice Amit) annulled Chapter D in its entirety. Chief Justice Grunis and Justice Hendel considered only the provision authorising three daily counts to be unconstitutional, and would have removed the second (midday) count requirement, leaving intact the morning and evening counts as well as the rest of Chapter D. The main judgment cautioned against letting ‘the name “open facility” to lead us astray’: it is “a facility similar in essence to a closed facility” which violates part of the minimum dignified life to which every person is entitled’ . Noting that ‘the requirement to be present for the three daily counts, alongside the great distance from settlements in the region, negates nearly any possibility to leave the centre on a routine basis’, justice Vogelman rhetorically asks: ‘is it, therefore, an ‘open’ centre’? [Id]. Indeed, even the dissenting justices observed that the scheme as it currently operates is akin to a closed facility: the significant difference between the majority and dissenting judgment pertains to the (in)ability to mitigate the harm caused by the scheme, and the consequent divergent remedies.
Legitimate Aims: Judicial ‘Cold Feet’?
Unlike in ‘round one’, the state conceded that ‘infiltrators’ enjoy the constitutional right to liberty; similarly, the state has not contested the applicability thereto of the constitutional right to dignity. Hence, following an appraisal of the detrimental effect of section 30A [46–7] and Chapter D [117–120] on the exercise of these constitutional rights, the main judgment proceeded to assess whether the infringements can be ‘saved’ by the Basic Law’s limitation clause. Rather than on the basis of their improper purposes, the provisions were quashed in light of their disproportionate effect (proportionality stricto sensu). This should not surprise those familiar with previous occasions on which the Israeli court exercised constitutional judicial review: it is one thing to say the state’s intentions were proper but the state got the balance wrong, quite another to reprimand the state for advancing illegitimate aims.
In relation to section 30A, the main judgment considered detention for the purpose of identification and classification to be a proper purpose, whilst refraining from declaring deterrence to be an improper purpose . Now, as a matter of course, the time required for identification and classification is short: hence, if deterrence were to be regarded as an unacceptable aim, then lengthy detention policies could not be maintained. In his dissent, Justice Amit states that immigration policy may rely on deterrence ; this stands in contrast to Justice Arbel’s concurrence, where she rejects the invocation of deterrence as an exclusive or as a primary legislative objective . It is regrettable that the main opinion has not explicitly ruled out reliance on deterrence for justifying immigration detention; nonetheless, the holding that the state may only detain migrants for facilitating their removal is noteworthy .
In relation to Chapter D, the legitimacy of the second stated aim (catering for the basic needs of ‘infiltrators’) was unsurprisingly validated, although the limited nature of provided services and, indeed, the selectivity in deciding who should be required to stay in Holot ought to cast doubt on the genuineness of its invocation. In contradistinction, the legitimacy of the first aim (prevention of settlement in population centres), which entails segregation, was rightly questioned; however, the main judgment refrained from rejecting its validity . Interestingly, in his concurrence, Justice Joubran emphasised that an immigration policy that aims to prevent settlement and integration ‘is not as such illegitimate’ . Finally, the main judgment has neither accepted nor rejected the petitioners’ powerful argument that underlying the legislative scheme is an attempt to ‘break the spirit’ of detainees in order to encourage their ‘voluntary’ repatriation .
In large panels, it is common practice for the main judgment to be circulated and for subsequent concurrences/dissent to refer to it. Nevertheless, this judgment exhibits a rare judicial ‘ping-pong’ between Justice Vogleman’s judgment and that of Chief Justice Grunis. In relation to section 30A, the Chief Justice queried whether, in light of the proportionality analysis, Justice Vogelman would have found a shorter detention scheme (e.g. eight months) acceptable ; namely, whether detention for any period can be justified when there are no realistic prospects of release. If so, the argument went, the main judgment inappropriately narrows the ‘margin of manoeuvre’ which the legislature should be accorded. Grunis’ query ‘forced’ Justice Vogelman to respond by defining the question as ‘not only “quantitative”…but also (and perhaps primarily) “qualitative”’, and stating that it is not permissible to detain ‘a person not subject to an effective removal proceeding’ . The ping-pong continued in the Chief Justice’s response, pointing to an alleged inconsistency between the earlier and later parts of the main judgment . In turn, Justice Vogelman reiterated that the state must meet the requirement of an effective removal proceeding .
The Regional/Security Context and the Divergent Narratives
The analyses were affected by the justices’ divergent narratives regarding the applicants, the extent to which Israel is shouldering ‘the burden’, and Israel’s presumed unique challenges. Justice Amit devoted several paragraphs to describing Israel’s position in the ‘first line of approach’ as a small and densely populated state surrounded by a ring of hostility. He compared the plight of ‘refugees’ from Syria ‘flooding’ neighbouring states with the observation that, since Eritrea and Sudan do not border Israel, it is not their only flight alternative, and its financial ‘attractiveness’ is taken into consideration . The sad irony of the fact that Israel is Syria’s only neighbouring country which refugees are prevented from entering may have been lost; similarly, Justice Amit’s reference to persons fleeing persecution in Sudan as guilty by association of that state’s hostility  is incongruent with the spirit of the refugee regime. Chief Justice Grunis lamented Israel’s inability to coordinate policies with its neighbours, unlike e.g. the EU . This contention overlooks the fact that African asylum seekers comprise roughly 0.6 percent of Israel’s population. In contradistinction, Justice Arbel noted that Israel’s burden is not higher than other Western states and certainly not of that of developing state who ‘surprisingly’ are shouldering the burden . One need only glance at the comparative figures of refugees from Syria in neighbouring states and in the European Union.
Justice Hendel challenged the premise that entrants from Africa are refugees, noting that they ‘choose to transgress the border whilst breaking the law’, and suggesting that ‘experience teaches us that a person wishing to be recognised as a refugee approaches the authorities’.  Notably, however, until recently, the state has not accepted asylum applications from persons considered non-deportable, unless they were held in detention. Moreover, Israel’s meagre refugee recognition rate of Eritrean and Sudanese nationals stands in marked contrast to other refugee-receiving states, as the main opinion clearly demonstrated  (see e.g. reports by the Hotline for Migrant Workers and more recently by Human Rights Watch).
Divergent Methodologies of Constitutional Review
In addition to the third daily count, which all justices agreed should be repealed, the main judgment scrutinised three additional elements of Chapter D’s legislative scheme: first, the fact that the Holot facility is operated by the Israel Prison Service symbolises deprivation of liberty and criminalisation ; second, the fact that the legislative scheme mandates staying in the facility for an indefinite period is doubly traumatising for vulnerable populations ; third, the absence of impartial and independent judicial review of decisions to transfer persons from the facility to detention at Saharnoim adds another layer of vulnerability .
The dissenting judges did not consider these arrangements to violate the rights to liberty and human dignity; Justice Hendel noted that the key distinction between a ‘closed’ and an ‘open’ facility may be achieved by removing the third (midday) count , while the Chief Justice, submitted that the legislative scheme just barely satisfies the limitation clauses’ requirements: in his view, at the present circumstances, it would be impermissible to hold an ‘infiltrator’ in the residency centre beyond the initial three-year period .
A methodological divergence between the majority and dissent concerns the main judgment’s holistic approach to appraising the constitutionality of Chapter D: Justice Vogleman suggested that it is incumbent upon the court to consider the cumulative effect of the abovementioned provisions on the exercise of the rights to liberty and human dignity: in this case, a grim picture emerges of an ‘infiltrator’ whose daily schedule and routine are set by wardens, who is liable to be detained in a closed facility following an administrative decision, and is spending time aimlessly, lacking an effective opportunity to leave the facility where he or she is held indefinitely . By contrast, the Chief Justice raised doubts whether the above approach to constitutional review is plausible , and Justice Hendel contended that ‘specific constitutional difficulties should be specifically remedied, as far as possible retaining the legislative framework’ .
The short lapse of time between the 16 September 2013 judgment, annulling Amendment no. 3, and the current judgment, prompted several justices to reflect on its effect on the constitutional dialogue between the legislative and judicial branches. Chief Justice Grunis emphasised that, in his view, the court must be doubly careful in constitutionally reviewing amended legislation enacted in light of its previous judgment . Justice Hendel regretted the fact that the court has not given sufficiently clear instructions to the legislature, and that the current judgment may lead to continued legal rambling.  In contrast, Justice Naor unapologetically posited that if the legislative branch re-enacts a quashed law, failing to remedy its constitutional flaws, it is incumbent on the court to annul the amended legislation, as inconvenient as this may be . Justice Arbel, who authored the previous judgment, referred to the Chapter D scheme as ‘the same lady in a different dress’ , implying that the Knesset had failed to implement the ratio of the court’s judgment.
Preparing for ‘Round Three’?
According to the operative part of the judgment, effective immediately, the provision authorising three daily counts should be construed as authorising only two (morning and evening) counts. Section 30A is also void with immediate effect. The rest of Chapter D will lapse in 90 days unless an appropriate legislative arrangement is substituted for it, so that detention of migrants in Israel will only be permitted on the basis of the Entry into Israel Law.
The political response to the judgment has been unwelcoming. Israeli Knesset member Ayalet Shaked (Habayit Hayehudi =‘The Jewish Home’ party) announced that she will request the government’s support for a tabled private member’s bill proposing to amend Basic Law: Human Dignity and Liberty by including a ‘notwithstanding’ provision similar to section 8 of Basic Law: Freedom of Occupation. According to the proposed amendment, a provision that is held to violate the Basic Law shall be in effect provided that it is included in an act passed by a majority of the members of the Knesset (61 MKs), which expressly states that it shall be of effect, notwithstanding the provisions of the Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated therein. Shaked’s likely plan is that following the constitutional amendment, and before the 90 day period lapses, the Knesset will re-enact Amendment no. 4 (it is noteworthy that Amendment no. 4 was enacted by a majority of 30 to 15 MKs).
If successful, the proposed constitutional amendment could significantly alter the relations between the judicial, legislative and executive branches. To date, violations of rights protected by this Basic Law have prompted most of the annulments of primary legislation. It is not inconceivable that the constitutionality of such a constitutional amendment will be challenged, a scenario which the former Chief Justice, Professor Aharon Barak, addressed in a recent article. It seems that ‘round three’ will dawn on us soon.