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Two Norms of Justice
Victor Aoso, a citizen of Ghana, was arrested on December 11, 2003, for being in Israel illegally. While he was in prison, his wife gave birth. Ten days passed between his arrest and his appearance before a special court (known as a Mishmoret court) that hears requests by foreign-worker detainees to be released on bail until their deportation. Aoso asked to be released on humanitarian grounds, because his wife had just given birth. His request was granted after he came up with bail of NIS 12,000.
Emanuel Asaima, who is also from Ghana, was arrested two days before Aoso. Five days passed until he was brought before the court and released, after he explained that he is the sole guardian of his six-month-old son. During his incarceration, the infant stayed with a nanny. Augustin Obo, a citizen of Nigeria, was arrested on December 17. Only 11 days after his detention was he brought before the court and asked to be released because his wife had just recently given birth and is suffering from psychotic attacks. He, too, was released.
The special court has been operating for two years under an amendment to the Entry to Israel Law. The court does not have the authority to cancel deportation orders, only to release detainees on bail, and they must hold the hearing within 14 days of an individual's detention. According to a study published this month by the Ministry of Industry and Trade's Manpower Planning Authority, about 96 percent of the hearings are held within the 14-day period; the average waiting time is six days, although hundreds of detainees have to wait nine days or more.
However, 14 days of detention without judicial review is an extreme deviation from the accepted criteria in Israeli law, which stipulate that every detainee is to be brought before a judge within 24 hours of his arrest. At least 10 percent of the foreign detainees are released following the hearing. If they were brought before a judge within a day of being detained, like Israelis, they would not be unnecessarily deprived of their freedom for days on end.
The point, though, according to attorney Michal Pinchuk of the Association for Civil Rights in Israel (ACRI), who together with the The Hotline for Migrant Workers has petitioned the High Court of Justice against the length of time foreign workers are held without judicial review, is that whereas in Israeli law the rule is freedom and detention is the exception, when it comes to foreign workers, the opposite principle is applied: the rule is detention and freedom is the exception. Moreover, the special court is appointed and financed by the Interior Ministry, the same body that issues deportation orders. This casts serious doubt over the independence of the court's decisions. It now appears that the state has been persuaded by arguments made by human rights groups in deciding to transfer the special courts to the Justice Ministry's authority. Last week, in a hearing held on ACRI's petition, Justice Dalia Dorner gave the state 60 days to report on progress in transferring the court and in reducing the waiting period for detainees to be brought before a judge.
At the same time, a comment made by Dorner in the course of the hearing indicates that she, like many judges, has no reservations about the behavior of the judicial system toward the foreign workers. "The key to their release rests with them," Dorner stated, explaining that the detainees can waive their right to a hearing, agree to deportation, and be released immediately in order to fly to their native land.
Many of them in fact do just that - according to the Manpower Planning Authority survey, nearly 30 percent of the detainees do not get a hearing. One of the main reasons for this is the policy that makes it possible for the Immigration Police to bypass the hearings, and thereby speed up the deportation pace and meet the quota set by the government. Immediately after arresting a foreign worker who has a valid passport, the police buy him a plane ticket, knowing that the court will refuse to hold a hearing for a detainee whose deportation date has already been set on the grounds that it does not have the authority to delay deportation. The Hotline for Migrant Workers has asked the Court for Administrative Affairs to rule on this procedure's legality.
The special courts have an intolerable case load. They are located in three detention facilities, and are run by four lawyers who are Interior Ministry employees. Every day, dozens of detainees are brought before the courts. The typical hearing lasts between six and 10 minutes, usually without an interpreter. The lawyer who constitutes the special court in Nazareth recently missed a month's work due to an accident, and was replaced by lawyers from Maasiyahu Prison. One of them had to deal with 85 cases in a single day. Because of the work load, it was decided that detainees in one of the prisons be represented by lawyers in the hearing process only in writing.
The special courts are the Israeli judicial system's backyard. It is hard to understand why there has not been a greater outcry against them. In the same way that the unacceptable norms applying to foreign workers - low wages, failure to pay on time, disgraceful conditions - have made their way into the Israeli labor market and caused similar phenomena, the distorted legal standards applied to foreign workers are liable to affect the entire judicial system. There is no such thing as one form of justice for foreign workers and another form of justice for Israelis, and anyone who fails to grasp this is endangering Israeli democracy.