Blog of the International Journal of Constitutional Law

Israeli Supreme Court says Privatized Prisons Unconstitutional

Until the early-1980s, Israel’s economy was one of the most centralized in the non-communist world. Over the last two decades, it has undergone considerable liberalization that at times amounted to a local version of an all-out Thatcherite neo-liberalism. During much of the 1990s, the Supreme Court was quite cooperative, granting property rights an elevated constitutional status, eroding the right to strike and collective bargaining, and pushing the right to basic education and childcare beyond the purview of human dignity.

This neoliberal, business-friendly interpretation of human dignity prompted fierce criticism by prominent legal academics in Israel. Some have even described the Court’s jurisprudence as “Lochnerisation” of Israeli constitutional law. The Court has taken note. While still a far cry from the progressive social rights jurisprudence in South Africa, India, or Brazil, the Court’s more recent jurisprudence on these matters is notably more balanced.

A pinnacle of this new jurisprudential line came earlier this week when the Supreme Court drew upon Basic Law: Human Dignity and Liberty to block a 2004 government plan that would have allowed a private contractor to build and operate a new prison near the southern city of Be’er Sheva. The arguments for such privatization replicated the economic rationale of similar initiatives in the United States, Germany and elsewhere. Essentially, the state would pay the franchisee $50 per day for each inmate, but would be spared the cost of building new prisons and expanding the Israel Prison Service’s staff.

In 2005, a petition was filed against the constitutionality of the prison privatization plan. On Nov. 19, 2009, a panel of nine justices, presided over by CJ Dorit Beinisch (replaced Aharon Barak in 2006), ruled (8:1) that a transfer of authority for managing a prison from the state to a private contractor whose sole aim is monetary profit would severely violate the prisoners’ basic human right to dignity and freedom. The Court held that the proposed plan to privatize prisons granted a private corporation an invasive authority over prisoners. For example, the manager of the private prison would have been authorized to sentence a prisoner to solitary confinement for as long as 48 hours, to order invasive inspections of a prisoner’s naked body and to authorize the use of reasonable force in order to search the prisoners. “When the power to incarcerate is transferred to a private corporation whose purpose is making money, the act of depriving a person of his liberty loses much of its legitimacy. Because of this loss of legitimacy, the violation of the prisoner’s right to liberty goes beyond the violation entailed in the incarceration itself” the Court held.

While the Court acknowledged the economic benefits of the privatization plan, the material aspect itself, it ruled, was not a key factor that the Court must consider when exercising its judicial review powers. As important value efficiency may be, CJ Beinisch wrote, it is not an absolute value when the most basic and important human rights for which the state is responsible are at stake. In a prison run by a private company, prisoners’ rights are undermined by the fact that they are transformed into a means of extracting profit.

Who would have thought that such a powerful statement (perhaps the first of its kind in the context of privatized prisons) against the pervasive “cult of efficiency” that drives commodification of social services would come from the Supreme Court of Israel of all constitutional courts worldwide.



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