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The immigrant as homo sacer, and the courts' intolerable contempt for liberty

How Israeli courts succeed in employing legal norms in a manner that excludes immigrants from the most basic principles of freedom and justice.

Immigrants of all kinds have become, to use Giorgio Agamben’s terminology, the paradigmatic homo sacer of our day – they are in the area of indistinction between the external and the internal realm of juridical order, the threshold where inside and outside do not exclude each other but rather blur into one another. They are in this paradoxical realm, in which they are included in the juridical order by means of being excluded from it and abandoned by it. The practices that apply to them are anchored in the Israeli juridical order through specific legal norms, but at the same time, those practices manage to renounce the most basic principles of juridical order.

The practices of each of the three branches of government in Israel position migrants as the paradigmatic homo sacer of Israel’s juridical order. The legislative branch, to cite just one example, recently legislated the draconian Prevention of Infiltration Law, which enables the administrative detention of asylum seekers for a minimum of three years. There are countless examples of this in actions taken by Israel’s executive branch. And the judicial branch largely ensures the migrants remain in this area of indistinction between inclusion and exclusion from the juridical order. Through formulas such as the “balance of convenience” and “chances of the appeal,” which ostensibly position migrants within the judicial order that we are familiar with, the judiciary excludes migrants from the basic principles of that very order – the sanctity of life, the right to liberty and the presumption of innocence.

We recently described how the Supreme Court refuses to issue orders to allow asylum seekers to remain in Israel pending a final ruling on their claims that they face danger in their country of origin. The right to liberty is treated similarly by all judicial instances. The formal legal framework in which legal proceedings are conducted on the detention of migrants has become a platform for the courts to severely twist principles of detention. The detention of migrants is based on the Prevention of Infiltration Law and the Entry into Israel Law, and takes the form of administrative, not criminal, incarceration. Accordingly, detention proceedings are conducted as civil proceedings, and general principles of civil legal proceedings apply to them, while principles that we are accustomed to in criminal cases, which focus on the right to liberty, are abandoned.

This is evident in the application of the principles of civil law, such as interim detention orders based on principles like “balance of convenience” and “chances of the appeal,” while principles that normally apply to detention are disregarded. Principles according to which liberty is the rule while detention is the exception; according to which an individual who has not been convicted of a criminal offense is presumed innocent; and according to which detention should be employed only if other means are not available.

Last week, the Supreme Court handed down two decisions that demonstrate this. The first decision was handed down by Justice Uzi Vogelman, and dealt with three Eritrean asylum seekers, who have resided in Israel for several years with staying permits, and were suspected of forging permits. The police decided not to prosecute the three, because it had the option to place them in administrative detention. And really, why should the state take the time to file charges, appoint an attorney, provide evidence, question witnesses and prove that the three are guilty beyond a reasonable doubt, when they can be placed in administrative detention for a minimum of three years under an order issued by an Interior Ministry clerk, without due process?

The three filed appeals to the District Court, claiming among other things that their detention is illegal because it is carried out by virtue of immigration legislation, whereas they cannot be deported due to collective protection for Eritrean nationals; because administrative detention for criminal purposes is illegal; and because the arrangement under which they are detained – the Prevention of Infiltration Law – is unconstitutional and void. Under the assumption that the legal proceedings would continue for quite some time, the three requested that they be released on bail until a decision is reached on their petitions. But the District Court applied principles of civil process and ruled that the chances their appeal would be accepted were slim, and that the balance of convenience justified their continued administrative detention throughout the course of the administrative petitions procedure.

The request to appeal this decision, deliberated by the Supreme Court, was rejected by Justice Vogelman, who applied a principle customary in civil proceedings, according to which no interim relief – through a mandatory injunction – is granted. (Releasing an individual from detention until the end of legal proceedings is such a mandatory injunction.) The question of custody, according to Justice Vogelman, must be determined in the framework of the main proceedings, and therefore there is nothing wrong with the District Court decision, according to which the three are to remain in administrative detention for the duration of the main proceedings (and there is no way to know how long they will last). Justice Vogelman found no reason to release the three on bail until a decision is handed down on the main proceedings.

It is not evident from Justice Vogelman’s decision, but it is clear to those of us who have read the requests to appeal, that the petitioners claimed that the entire proceeding cannot stand, because the Prevention of Infiltration Law, by virtue of which the three are detained, is unconstitutional and void. This claim is relevant, of course, not only in regards to their administrative detention for a minimum period of three years due to criminal allegations, but also regarding the question of their detention until a ruling is handed down on their petitions to the District Court. If the Prevention of Infiltration Law is unconstitutional and void, there is no legal framework that allows for their continued detention by the virtue of that law until a decision on the petition is handed down. The detainees raised the question of the constitutionality of the law; a decision on this matter is required for a deliberation on the legality of the detention until a decision is made on the petition – and the Supreme Court chose to ignore this.

It may be (but we will not know for sure, because Justice Vogelman has not shared why he disregarded the constitutional issue) that in certain circumstances, the decision on the validity of a law should be delayed in order not to rule on constitutional issues while considering the granting of an interim order. But this principle should be applicable only when considering the constitutionality of civil legal norms. When legislation enables the detention of individuals, here and now, and these individuals make claims against their detention, even during the interim procedure, there is no reason to refrain from a decision on questions of constitutionality. There is nothing preventing the court from ruling on claims of constitutionality during interim procedures, if a ruling is necessary to determine the the legality of the detention. The U.S. Supreme Court was not afraid to conduct a fundamental discussion on the constitutionality of a new immigration law in Arizona (Support Our Law Enforcement and Safe Neighborhoods Act) and to declare some provisions of the law unconstitutional in an appeal regarding a preliminary injunction. When it comes to detention, it is even more difficult to accept the approach adopted by Israel’s Supreme Court.

Another decision was handed down recently by Supreme Court Justice Daphne Barak Erez in an appeal of a Jerusalem District Court ruling. The case concerns a Filipino national whose partner and three children were granted legal status in Israel (one has permanent residency and the rest have temporary residency), and who had resided in Israel for years without a permit. The request that he submitted to regularize his status was rejected, he was arrested more than six months ago, and his petition to the Jerusalem District Court was denied.

To Justice Barak Erez’s credit, she did not follow the same path as her colleagues. She accepted the request and ruled that the Filipino father not be deported before a ruling is handed down on his appeal. The reason for this – the balance of convenience that tips towards the right to family life and the children’s welfare. Yet he remained in prison, “A fact that balances out concerns that he would evade immigration officials, and counteracts the uncomfortable sense that the sinner is being rewarded.”

As we know, it can take months until the appeal is heard. The man has been detained since May. How have the right to family life and the children’s welfare been protected by the father being imprisoned? And since when is detention aimed at remedying an “uncomfortable sense that the sinner is being rewarded?”

This post was translated by Orna Dickman.

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  • COMMENTS

    1. As far as I know, what a court shouldn’t do in interm acts is alter things such that the final disposition of a case is unenforceable. Deporting the father, above, would do that, as he may not be able to return by other causes later. Keeping individuals in detention pending a decision on constitutionality is another matter, as they can be later released.

      Absent real duress, administrative detention should only be a holding prior to criminal proceedings. If the police cannot prosecute for lack of evidence, then the charge they would make cannot be used to label the detained as “criminal,” allowing enhanced detention. So I think, as you, that the Infiltration Law violates separation of powers in a clear, dangerous way. But the courts can allow detention to continue under the presumption the ruling will go otherwise. What is missing here is indeed due process and speedy trial. But the ground premise of this law is that citizenship identifies the boundary of due process/trial. The US was similar for a very long time; all I recall without looking is that the Supreme Court has said that “at some point” prolonged detention becomes violation of due process–I think the boundary was vaguely around one year.

      The “reward for sin” is foregin to US jurisprudence. The determination there would be made on 1) probable flight, 2) job/home life benefit, 3) cost of incarceration for the State, 4) dangers association with incarceration, such as bodily harm while in prison, 5) magnitude of charged offense–which, I guess, is “sin,” although not yet judicially determined. The use of the word “sin” shifts perspective from charged offense to real offense. Nor is there really a “reward for sin” if ultimately he is deported, so use of the phrase here sounds much like a pre-judgement; an appeals court might vacate on that issue on grounds of prejudice alone.

      I think the author’s final stance is valid, but doubt the interm reasoning, but not his compassion.

      Reply to Comment
    2. ya3cov

      Disgusting to apply state of exception paradigm to the jewish settler colony. just stop.

      Reply to Comment

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