The Supreme Court was right when it struck down the amendment to a prison ordinance that would have allowed private companies to manage prisons. The court ruled that the state would retain its monopoly to use force against citizens and that only a government agency has the right to restrict a citizen’s freedom. This is not only a matter of civil rights, but also a fundamental concept of government.
Even those who believe that the Supreme Court interferes more than it should in the government’s activities – whether regarding the security fence, routine military operations or government appointments – should agree that this was the right step, even though it impinges on the Knesset’s authority.
In this case, unlike others in which the court has usurped legislative rights, it is clear that by enacting the Basic Law on Human Dignity and Freedom, the Knesset restricted its own authority. The fact that the Supreme Court has largely refrained from striking down legislation and has sometimes tried very hard to avoid doing so attests to laudable self-restraint; if only it would act that way toward the executive branch as well. When the Knesset enacted prison privatization, the MKs acted incorrectly; it is to be hoped that after the latest ruling they will examine themselves rather than merely complain about the court.
Some observers see this ruling as a move by the Supreme Court against privatization in general. They are wrong. Even people who believe that the privatization frenzy that has gripped our political leaders has gravely harmed Israel’s ethical and social image must acknowledge that privatizing prisons – privatization of a key government role – is fundamentally different than the other examples of privatization.
The fight against moves that have harmed the nature of the welfare state or have transferred public assets to tycoons and real estate sharks – sometimes for half their real value – must be waged on the political level, without turning the Supreme Court into the economy’s CEO. On the other hand, attention should be paid to other areas in which the use of force has been handed over to the private sector. They may not be as blatant as prison privatization, but they are no less significant.
The Shin Bet security service, which protects – some say exaggeratedly – the country’s leadership, has transferred some of its functions to private security companies. Although their employees may not have the right to arrest or detain citizens, they bar citizens and their cars from entering certain locations. This borders on a significant infringement of civil rights; it could perhaps be acceptable if done by police officers or soldiers, but not by employees of private companies.
Another example is the army’s transfer to private security firms of its authority at certain crossing points from the West Bank into Israel, including gates in the security fence. This, too, is an unacceptable exercise of government power by private companies, and it does not matter if the people on the receiving end are Israeli citizens or Palestinians. In this respect, Israel has blindly followed the Americans, who delegated broad authority to private companies in Iraq to reduce the number of soldiers serving there.
This has proved problematic. Some employees of these companies have helped cause grave damage and injuries to innocent civilians in that occupied country. But there we are talking about activities that take place outside the borders of the United States. Here the process takes place within our borders or on our borders, and it should be stopped.
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