The last time Israel was ruled by judges was two and half millennia ago. Apparently that form of governance has now returned. The Israeli High Court of Justice has delivered a heavy blow to the national security of the Jewish state, Israeli democracy, and the Rule of Law.
By majority vote, the High Court struck down an amendment to the immigration law of 1954 giving the state the right to hold undocumented immigrants in open detention for up to two years while determining their ultimate disposition. The Knesset had revised an earlier amendment also struck down by the court, which had authorized a longer period of detention. The court based its judgment on general humanitarian and human rights principles, not on claims that "higher law" or precedent were violated by the amendment.
As is well known, thousands of economic refugees, mostly from Eritrea and Sudan, have illegally entered Israel in recent months, settling in the poorer areas of cities, particularly south Tel Aviv, where they have overburdened public services, violated housing regulations and added substantially to the incidence of crime.
These immigrants have, by definition, violated Israeli law simply by entering. They have no claim to a "right of return" because they are neither religiously nor ethnically Jewish, unlike the Ethiopian and Indian groups that have followed Jewish religious practices for centuries. The great majority are simply economic refugees.
This state of affairs is similar to the situation on the American border with Mexico, which has for many years seen large numbers of undocumented Mexican and Central American immigrants crossing its border, resulting in some eleven million illegals plus their children residing in the country. This has been a contentious situation within American society, which has struggled unsuccessfully for years to find an appropriate solution. This phenomenon involves serious health, crime and security concerns.
America is a country of 330,000,000 people, so that eleven million is about three percent of the population. Israel has a total population of nine million. There is no way Israel can successfully integrate tens of thousands of non-Jewish and undocumented aliens, who will eventually have children, without profoundly affecting Israeli society. In addition to health, safety, economic and terrorist concerns there are serious religious implications.
The High Court's decision is an example of judicial activism, amounting to legislation by the Judicial branch, breaching the democratic principles of separation of powers and the Rule of Law, not of judges. As such it is a threat to Israeli democracy. But equally important, it is a threat to the security of the Israeli state. Some of the immigrants are likely to be susceptible to anti-Israeli and anti-Jewish proselytization. Because of their status they do not qualify for most assistance provided to legal immigrants, nor can they be legally employed or integrated into any of the institutions of the Israeli state, such as the IDF. In other words, they introduce an element of instability and potential subversion which will seriously affect Israeli society.
It would appear that only two alternatives are now available to the government to deal with the situation. It can promote the passage of legislation restricting the scope of decisions of the High Court to truly judicial matters, such as the interpretation of laws and judicial review, and/or it can greatly expand border controls and expel immigrants who do not qualify for political asylum within the sixty days permitted by the court's decision, as well as expelling those already in Israel who commit crimes.
Norman A. Bailey, Ph.D., is Adjunct Professor of Economic Statecraft at The Institute of World Politics, Washington, DC, and teaches at the Center for National Security Studies and Geostrategy, University of Haifa.
Published by Globes [online], Israel business news - www.globes-online.com - on October 13, 2014
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