Effi Michaeli, warns against the full privatization of prisons and argues that such a decision represents a breach of boundaries that can transform Israel into a corporate regime.
In recent years, the issue of privatization has dominated socioeconomic discourse in Israel. Public discussion of the topic has focused on two essentially separate spheres: one, the sale or transfer of assets to various entities in the private sector; and two, the transfer of state powers to private entities that are taking the place of the state and exercising administrative judgment on its behalf.
The economic policy that has characterized Israel's recent administrations has entailed, among other things, the transfer of government authority to private bodies. As part of this process, the state hands over various powers in the fields of education, employment, welfare, health, etc. Several years ago, the state decided to take a significant additional step in the direction of a rightist economic policy, by which it seeks to place full authority for the management of prisons in private hands (starting with one facility on an experimental basis). This move on the part of the state, which won the support of the Knesset (Parliament) in the form of new legislation, breaches a circle of powers centered around the exercise of government authority over the citizens of the state.
The full privatization of prisons in Israel involves the transfer to private hands of all authority relating to prison management, including government powers whose dominant element is the exercise of police power. These powers include the use of force, the use of firearms, denial of rights, violation of privacy, curtailing of freedom, and infringement of prisoners' freedom of expression. The transfer of these powers leaves the state without effective authority in the management of the country's prisons, and in effect, turns this responsibility over to a private body.
Transferring these powers to a private entity severely undermines the sovereignty of the state. The term "sovereignty" originated in 14th-century France, and is used today, inter alia, to denote the independence of the modern state. In international law, sovereignty is a central concept relating to the state's authority to use internal force against its citizens and external force against its enemies. An examination of the nature of sovereignty in the modern state reveals that it is based on two unique and fundamental aspects: the conduct of war and the administration of justice. Studies have shown that these elements share a common denominator, namely, the exercise of a society's organized physical force.
According to this approach, criminal justice in the modern polity is the sole preserve of the state. Among the tasks of the modern state is to ensure compliance with its laws; as such, it is the only entity that has the legitimacy to apply legal force. The transfer to a private entity of the authority to exercise what are clearly government powers (with respect to the police, army, courts, and prisons, for example) constitutes a crucial blow to the principle of state sovereignty.
Along with the strike against state sovereignty, there is also a real danger to the protected rights of the prisoners who will populate private prisons in future. In Israeli constitutional law, there is a clear consensus that any harm to the rights of the individual in the name of public interest will at all times be carried out by the state, which is guided solely by the public good. By transferring the authority for prison management to a private concessionaire, who has a clear economic interest, the state is causing great harm to this supreme constitutional principle.
While the prison regimen, by its very nature, entails an infringement on many of the freedoms enjoyed by a free person, prison life does not necessitate denying the right of the prisoner to his physical integrity and to protection against harm to his dignity as a human being. Numerous studies in the Western world attest to grave damage to the rights of prisoners in privatized prisons around the world due to the unsuitability and lack of experience of employees of private concessionaires and to financial considerations that affect the decisions of the private body operating the prison.
The very creation of a process that transfers the power to use force into the hands of a private entity breaches the final barrier protecting the core powers of the state and violates the boundary between the public and private space. The privatization of prisons in Israel is similar—ideologically, constitutionally, and politically—to privatization of the army, the police, the judicial system, and the prosecutorial process.
This breaching of boundaries will pave the way for the transfer of all government powers into private hands, and may even lead to substantial changes in the structure of the regime in Israel. Such far-reaching changes are liable to turn the State of Israel into a corporate regime—a regime in which giant corporations apply administrative considerations in the name of the public interest. Under such a system, there will not be any entity to stand up to political pressures on the part of wealthy individuals, who will take steps, lawfully, to transfer what are clearly government powers into private hands. Private corporations will exercise government prerogatives with minimal supervision by public representatives. Without outside intervention in the privatization of Israeli prisons, such a scenario is possible.
At the time of the writing of this article, the author was representing the Human Rights Division of Ramat Gan Law School and Head Warden (ret.) Shlomo Tauser in a petition against the full privatization of the Israel Prison Service (HCJ 2605/05 Human Rights Division et al. v. Minister of Finance et al.).