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Israel: Unconstitutionality of Privatization of Prisons

(Nov. 27, 2009) On November 19, 2009, the Supreme Court of Israel, sitting as a High Court of Justice in an extended panel of nine justices, accepted a petition against the privatization of a prison in Israel. The Court held that a 2004 amendment of the Prisons Ordinance (New Version), 5732-1971, which provided for the establishment, operation, and management of such a prison by a private corporation, was void. (H.C. 2605/05, Human Rights Division v. Minister of the Treasury, State of Israel [in Hebrew], the Judicial Authority website, (last visited Nov. 19, 2009); Prison Ordinance (Amendment No. 28), SEFER HA-HUKIM [official gazette], No. 1935, at 348 (5764-2004).)

The Court determined that the transfer of management and operation of a prison from the state to a private corporation by awarding it a franchise would cause harm to the constitutional rights of freedom of liberty and human dignity of the prisoners. According to the majority opinion, this harm is proportionally excessive and does not meet the requirements under section 8 of Basic Law: Human Dignity and Liberty, which allows violation of such rights only “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” (H.C. 2605/05, supra; Basic Law: Human Dignity and Liberty (as amended) [in Hebrew], SEFER HA-HUKKIM. No. 1391, at 5752 (5752-1992) & [in English translation], The Knesset [Israel's parliament] website, (last visited Nov. 25, 2009).)

The Court held that the responsibilities delegated by the amendment for “preservation of good order, discipline, and public safety” and “for the prevention of escape by persons held in captivity” are traditionally considered typical sovereign areas of authority. According to the decision, when the authority to take away the liberty of prisoners is given to a private corporation, the legitimacy of the imprisonment is harmed, and the extent of the harm to liberty is higher “because the penalty is enforced by an element that is driven primarily by economic considerations that are in actuality foreign to the implementation of the objectives of punishment that are public objectives.” (H.C. 2605/05, supra.)