In September 2013, the Israeli Supreme Court struck down an amendment of Israel's anti-infiltration law allowing prolonged detention of illegal immigrants. In an article originally published in Haaretz, Attorney Talya Steiner warns that the judgment pointed to significant flaws in Israel's process of policy-making.
The frenzy surrounding the High Court's decision to strike down the amendment of the Prevention of Infiltration Law is beginning to subside. The Court's 120-page judgment discusses the various legal questions that arise from the complex phenomenon of illegal immigration. One paragraph of the judgment, however, provides a rare glimpse into the manner in which Israeli policy is formulated. The disturbing picture that emerges from this passage has broad and significant implications.
The paragraph reads as follows:
"From the manner in which the issue was presented by the State, it appears that there are two, and only two, options. The first is the implementation of the arrangement specified in the amendment, which mandates placing the infiltrators in long-term custody until they can be deported, if ever; the second is the continued presence of large numbers of infiltrators in South Tel Aviv and other areas of the country without any regulation, supervision, or care."
The State argued before the Court that it faced a binary choice: either arrest illegal immigrants for an extended period of time (up to three years, according to the amendment) or allow their continued presence in South Tel Aviv, while causing serious harm to the residents of those neighborhoods. This argument, when coming from the State, is disturbing on several counts:
An essential step in the process of policy-making is raising a wide range of alternatives for consideration and systematically comparing the different options, while ranking them in terms of cost-benefit. Costs include not only monetary but also social costs, including infringement of rights. A methodical assessment of the alternatives is a minimal condition for rational decision making. From the State's statement to the Court, however, it appears that the question of whether there are alternatives to prolonged detention, and the possibility of an assessment of the relative effectiveness of such alternatives, was never even raised. If this is, in fact, true, this presents a serious failure at the policy level.
Moreover, for almost two decades, the Supreme Court has engaged in judicial review of legislation that violates rights. This process of review is conducted according to a set framework that is comprised of fixed stages. One of those stages, "the necessity test," examines whether there are other, less restrictive means that could equally achieve the goals. At this stage, the state is expected to justify its choice of its selected framework relative to other alternatives. The fact that the State appeared before the High Court of Justice without being able to present the range of alternatives considered and without an explanation for its choice, indicates that the State has not internalized the standard by which judicial review is conducted.
In their judgment, the judges cited examples of alternative, less restrictive measures, which are used in other countries. For example: establishing open or semi-open residential centers; imposing regional residential restrictions on illegal immigrants; releasing illegal immigrants with guarantors, while requiring them to appear periodically before the relevant authorities, and increasing the police presence in areas in which large numbers of illegal immigrants live. It is hard to believe that these alternatives, which the Court raised with little effort, did not occur to legislators and policy makers at the executive level. There is no excuse for the lack of in-depth discussion of these alternatives as part of the legislative process.
Wide-ranging and in-depth consideration of all options at the stage at which the least restrictive means must be chosen enables the legislature to generate creative solutions, rather than to fixate on the expected solution, which in this case is also the most extreme. In the words of Justice Miriam Naor later on in the ruling: "this could have been Israel's finest hour, had the State had the wisdom—in the reality that had been imposed on it—to find humane solutions, solutions that are in accordance not only with international law but also with the Jewish worldview."
The judgment at hand concerned the rights of illegal immigrants, the ultimate "Other" in society. But the flaws that it has revealed in the process of policy-making are a threat to us all. In this case, the omission of the vital stage of open-minded analysis and weighing of alternatives led—with insufferable ease —to the choice of an extreme solution that deprives people of their liberty for a prolonged period of time. The failures of the system could easily be directed at us in the future.
A version of this article was originally published in Hebrew in Haaretz on October 3, 2013.
Attorney Talya Steiner is a researcher at IDI conducting research as part of the Democratic Principles project and the Proportionality in Public Policy Project.