Despite warnings from its legal adviser that the proposal might not stand up in the High Court of Justice, the Knesset on Wednesday gave preliminary approval to an amendment allowing detention without trial for up to a year for African asylum-seekers who entered Israel illegally. A debate the bill grew heated Tuesday evening. The two primary parties involved were Minister of the Interior Gideon Saar and MK Dov Khenin (Hadash). Saar accused Hadash, Meretz and the Labor party of engaging in provocative behavior rather than focusing on the issues. “You all have chutzpah. You’re slandering the country,” he accused.
Turning to Khenin, he said, “You’re from a party that represented the unenlightened communist regimes. Chutzpah!” Khenin responded, “Do you have any other irrelevant things to say? Is this how an on-topic debate looks?” Saar responded, “You represent the illegal entrants, and I represent Israeli residents.” “Let’s not go back to the days of McCarthy,” Khenin said
One controversial part of the law states that illegal entrants from regions that are home to activities endangering the state of Israel will not be released. Hadash MKs argued that the rule is unconstitutional, but Saar rejected their arguments and left it in. Khenin argued that the proposed open detainment facilities would not solve the problem. Even if 3,000 people were sent to such facilities, more than 50,000 would remain free, he said. Khenin suggested that illegal entrants be trained to work, and be hired in the place of foreign workers who enter Israel legally from various countries. Attorney Reut Michaeli from the helpline for foreign workers argued that the proposed detention facilities would essentially be prisons, and that one year’s confinement would be a disproportionate punishment.
In September the High Court of Justice unanimously invalidated the previous amendment to the Anti-Infiltration Law, which allowed the incarceration of asylum-seekers from Africa for up to three years. An expanded panel of nine judges ruled that the law was unconstitutional and disproportionately impinged on a person’s right to liberty, as well as being in conflict with Israel’s Basic Law regarding freedom and dignity. The High Court instructed the state to examine the cases of all those incarcerated under the provisions of this law within 90 days.
The proposed changes in the law would reduce the period of detention without trial of illegal migrants from Africa from three years to one, and would no longer hold them in a locked facility but in one that was at least partially open.
Residents in the center and their bags, etc., could be subjected to a physical search, without any need for a court order, by officials of the detention center authorized to conduct such searches, as well as by police officers and military personnel, on entry to and departure from the center, on public transportation vehicles or if there are grounds for suspecting that the resident may be carrying a weapon or an illegal object.
The director of the detention center would be authorized to take appropriate measures against residents who fail to meet their obligations as specified by law. Such measures would include rebuke, the issuing of a warning, the imposition of a fine and restrictions regarding departure from the center.
MK Khenin said: “The legal opinion raises difficult questions as to the nature of the proposed arrangements in the proposed law. Our warnings yesterday evening in the Knesset plenum against the rushed and heavy handed nature of the law that the government is advancing received additional support this morning. I called on the chairwoman of the Interior Committee this morning to postpone the discussions so as to allow the government and also the committee to reexamine the law and to formulate other and proper arrangements.”
Maintenance workers or slaves?
The new law states the director of the open detention center would be authorized to employ the residents of the center in maintenance work and in ongoing services within the center itself. In accordance with the directives of the minister of public security and with the approval of the minister of finance, the residents would receive “reasonable compensation” for this work. The amendment makes it clear that there would be no employer-employee relationship between the state and any illegal migrant employed in a detention center. The interior minister would issue suitable instructions that would arrange in an orderly fashion how the migrants would leave, and then return to, the open detention center and the times of their daily roll calls. The migrants would be expected to be present for three daily roll calls at the detention center; this measure, the memorandum states, would prevent migrants from working outside the center.
Furthermore, the proposed amendment would enable migrants residing in the center to receive a monthly spending allowance; the amount of the allowance would be determined by the public security minister with the approval of the finance minister.
Any official in charge of border control would be authorized to transfer an illegal migrant to a closed incarceration facility if the migrant repeatedly fails to appear for roll call, works outside the center or endangers national security or public safety. For an initial violation of the conditions specified in the amendment, illegal migrants would be transferred to an incarceration facility for a period of three months. For a second violation, the period of incarceration would be six months, and, for each additional violation, the period of incarceration would be one year. The public security minister would appoint an individual qualified to serve in the capacity of a magistrate’s court judge as the official in charge of handling requests from the residents of the open detention center regarding the conditions of their residence in the center.