HOLOT DETENTION: TAKE FROM US OUR TIRED, OUR POOR, OUR HUDDLED MASSES YEARNING TO BREATHE FREE

There are three issues underlying treatment of these refugee/immigrants. First, and constitutionally foremost, is whether the Knesset can abrogate as applied the Refugee Convention an earlier Knesset approved. That is, does a past action of the Knesset EVER bind a sitting Knesset? None would argue that the Knesset could not abjure the Refugee Convention outright. But this is presumably unacceptable–I’d say most powerfully because it could endanger future Jewish refugees seeking ultimate sanctuary in Israel. Can, then, the Knesset amend the Convention after the fact as it might like? Can it, say, declare a class of refugee, defined ethnically or by geographic origin, beyond the protective covenant previously agreed? Does a treaty have constitutional standing beyond Knesset whim?

The issue is crucial to any concept of written constitutionalism, for, if the answer is no, then so called “Basic Laws” are also no block on said whim. I’d note here that already a direct violation of prior Knesset act is known: the previous Knesset passed a late law stipulating that the portfolio of ministries would be capped at a specific number without supermajority override, but after elections a bare majority could only be cobbled by offering more ministries than this cap; since a supermajority was impossible, the incoming Knesset simply ignored the prior restriction. While the matter was brought to a High Court Justice, she ruled that, as of that point, a government had not been formed, so she had no standing to rule. I do not believe the matter has again been petitioned–for any new government, in your fractured party electorate, might find itself in the same position. Here, then prior Knesset supermajority restrictions are ignored; why not, then, those in Basic Laws?

But the Knesset has not tried to internally amend the Refugee Convention. Instead, a prior government decided to begin deportations. The High Court enjoined this, saying individual refugee hearings must be given prior to deportation, but the government(s) obviously do not want to do this, for decision would itself become adjudicable, potentially changing criteria of expulsion, tying the government’s hands by the Court.

So, point two, the Knesset created Holot along with an earlier incarnation. The Court struck forcefully, asserting a degree of judicial supremacy, demanding the first facility be closed as against Basic Law. Note that the Court did not assert a constitutional grounding independent of prior Knesset act, for Basic Law is an earlier product of Knesset. The Knesset fiddled with the law, creating Holot, which the Court again forcefully struck down. The Knesset fiddled some more, with growing grumbling of changing the power of the Court to review law, possibly allowing piecemeal removal of Court ruling by the Knesset. The Court backed down, ruling, absurdly, that incarcerating individuals for more than a year violated Basic Law. If, after one year, individuals never convicted of a crime are released back into the general population, what conceivable point was there to their holding? Are they not, isolated from what community there might be or they might form, even less ready to establish a foothold on the outside? Does not Holot under the one year limit actually increase social instability consequent of refugees? The Knesset has offered financial incentives to depart Israel, but the High Court Justice writing the majority opinion said she could only assume that incarceration was not an attempt to induce acceptance of such money. But of course it was, as there is no rational basis for such incarceration absent crime in the first place. I conclude that the High Court Justice lied to herself to avoid a constitutional showdown.

The present iteration of this strange constitutional standoff is to deport thousands to Rwanda as a secondary safe harbor. But surely the UN High Commissioner of Refugees should be seen as an unimpeachable expert on this issue; the Commissioner, having already decried the option, will effectively send the ball back to the Court, it having to decide whether expert opinion exterior to Israel can trump governmental pronouncements. If the Court fails this, effectively, the government will have found a way to abjure the Refugee Convention on a piecemeal case by case basis, one step closer to full Knesset Supremacy.

Finally, point three, it is obvious that Israel cannot allow indefinite refugee influx. With global warming there will be greater social, economic, and political instability in Africa. An open door policy would indeed send waves of immigrants into Israel; the analogy with Germany is on point. The legal way to prevent this is to build a wall, even electrified if needed, and limit admissible points of access to cry refugee status (which the Convention allows). For example, the port of Haifa could be made such access, or Ben Gurion. Obviously, for either (or both) few penitents at the door would arrive.

The world in your area is about to become even harsher than it has been. But resolution of the present refugees is distinct from border control preventing new influx. What the government and Knesset are trying to do in this slow tempo death waltz is assert Knesset Supremacy over High Court decision. They are linking long term fear of immigration to legislative supremacy in a pure populist bid for final power. The move should be resisted not just for the present refugees, which are a pawn in this dance, but as well to preserve any semblance of constitutionalism binding the legislature. You have been in a slow motion constitutional crisis for over a decade, the Court ever stepping back from clear assertion of what its power should be. Soon it will be too late to assert anything of the kind at all.

NOVEMBER 25, 2017 AT 7:27 AM
Source: https://tlv1.fm/the-promised-podcast/2017/11/23/take-from-us-our-tired-our-poor-our-huddled-masses-yearning-to-breathe-free/