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Netanyahu’s extrajudicial end-run, to imprison African asylum-seekers

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African immigrants seen at a detention facility located in the south of Israel. August, 2012. (Photo: Moshe Shai/Flash90/Times of Israel)

I’ve seen the pattern before. Over the summer Israel’s high court declared an amendment to the anti-Infiltration Law of 2009 unconstitutional. The amendment extended the maximum imprisonment for those who entered the country illegally– namely would-be refugees who managed to walk from North East Africa to the Jewish state– from three months to three years. The court also ruled that the government must release all of the detained refugees within 90 days, effectively reinforcing the former limitation on imprisonment terms.

Like any other state with an independent judiciary, Israel’s high court had reviewed the facts in the case and made a ruling based on the law. But what came next highlights the complete lapse in order: Yesterday Netanyahu announced that he’s drafting plans to imprison asylum seekers for a year and a half in a remote jail near the Sinai border.

He and the Ministry of Interior are going rogue trying to turn this prison and other facilities into a quasi halfway house for refugees where Africans can leave during the day, but return to the prison at night to sleep. And so while the court has called for a release from incarceration the state is sanctioning housing in dismal jail cells with a pass to leave when the sun is up.

Haaretz explains:

[M]igrant workers will reside in the open facilities at night, but will be allowed to leave the compounds during specific hours to work, among other activities. Nevertheless, it is still unclear where the new facilities will be built, what specific restrictions will apply to its residents and how freely they will be able to move about.

“We cannot remain without tools at a time when we know that Israel is the only Western country that borders Africa,” said Interior Minister Gideon Sa’ar yesterday, and in a post on Netanyahu’s Facebook page.

“We must change the existing situation, which is unacceptable, in which tens of thousands of illegal migrants are in Israel. All of this is with the understanding that we are committed to acting according to the principles and values of Israel as a Jewish and democratic state,” he continued.

Teasing out this process, it becomes evident that the way in which politics are done in Israel is by constructing an extra-judicial set of tenets, beyond the checks and balances of the state. Israel has specific laws on equality and has articulated basic human rights standards. But Netanyahu’s policy interference subverts the democratic-value tenets within the legal system.

The end result is that Israel’s prime minister is making decrees that are beyond the law. This latest example looks less like a representative government and more like a king legalizing the unconstitutional.