In addition, in the explanatory notes to the The Arrests Law It is emphasized that "the detention is determined for the purposes specified in the law (clarification of identity and the purposes of the investigation, when a different treatment is made for the detention of a suspect and a witness, the examination of licenses and a search, as well as questioning at a roadblock)" (ibid., at p. 327). These statements also indicate that identity clarification is one of the two purposes of detaining a suspect or a witness. Similarly, at the beginning of the discussion in the Constitution, Law and Justice Committee, which dealt with the delay chapter of the The Arrests LawThe Minister of Justice at the time, David Libai, noted the following:
"This is the first time that the concept of detention has been introduced into Israeli law as a separate concept and distinct from detention, and therefore it requires a definition [...] Section 65 [Section 67 of the current Law - 16] determines the power to detain and the grounds for detaining, for what purpose it is permissible to detain: for the purpose of clarifying identity and for the purpose of investigation. To this day, this has not happened" (Minutes of Session 336 of the Constitution Committee, Law Law, 13th Knesset (May 22, 1995), p. 16).
- In view of the aforesaid, I do not accept the respondent's argument that in view of the powers granted In Sections 68-67 Law The Arrests, it should not be inferred from them that a requirement for a person to identify himself in the circumstances specified in section 4a(5) of the procedure is conditional on a "reasonable basis for suspicion".
- The Respondent further argues that in the Tabqa It was held that the exercise of the authority under Section 2 The Identity Card Law is not contingent on the existence of a "reasonable suspicion"; and that therefore, section 4a(5) of the procedure does not give rise to a difficulty.
I cannot accept any of this argument.
Indeed, the exercise of the authority under Section 2 According to the law, an identity card is not necessarily contingent on the existence of a "reasonable basis for suspicion." Thus, as detailed above, sections 4a(1)-(4) of the procedure detail four grounds for exercising the authority in question, which are not contingent on the existence of a "reasonable basis for suspicion" for the commission of an offense. This is due to the fact that, contrary to section 4A)5) for the procedure, the above four grounds do not deal with the same set of circumstances that are dealt with Sections 68-67 Law The Arrests. Therefore, these grounds do not render meaningless the balancing formula set out in the aforementioned sections of the law The Arrests, and therefore it is not necessary to exclude them from the scope of the application of Section 2 to the Identity Card Law. This, as clarified, is in contrast to section 4a(5) of the procedure, the leaving it in place will lead to the circumvention of the balancing formula in question and to emptying it of practical content.
- The respondent further argued that the cancellation of section 4a(5) of the procedure would severely harm the activity of the police, since the authority to require a person to identify himself is a basic, proportionate and necessary tool in its work; This is especially true in the circumstances detailed in the aforementioned section, which relate to the core functions of the police - Maintaining public order, preventing offenses and apprehending criminals.
Indeed, my determinations above do not negate the respondent's arguments regarding the importance of her authority to require a person to identify, in order to enable her to properly fulfill her duties. However, as explained above, with regard to the circumstances specified in section 4a(5) of the procedure, it was the legislature that decided - In the framework of Sections 68-67 Law The Arrests - that the threshold required for the exercise of the authority in question is a "reasonable basis for suspicion" for the commission of an offense. As stated, this threshold reflects the legislature's decision regarding the proper balance between the purposes of providing the police with tools to carry out their duties and maximizing the protection of human rights. In view of the aforesaid, in practice, the respondent's argument means that the said threshold set in the law The Arrests makes it difficult for her to fulfill her duties. However, this balance is determined by law The Arrests is not subject to criticism in our case, but rather is given to us as a foundation To examine the question of the interpretation of Section 2 to the Identity Card Law.
- To summarize this part, The Arrests Law Intended to regulate the institution of "delay" - with which the authority under Section 2 Identity Card Law - and states that in order to detain a suspect or even to demand that he identify himself, "reasonable grounds for suspicion" are required. This threshold was seriously enacted and reflects the formula for the balance set by the legislature, between the need to provide the police with tools to fulfill its duties and the need to ensure maximum protection of human dignity and rights; A need that is determined as a basic principle in the law The Arrests and expresses the principle of constitutional proportionality. In these circumstances, interpretation Section 2 The Identity Identity Cards Law, in a manner that grants a person the authority to detain a person in order to require him to identify himself due to "fear" of committing an offense - that does not amount to "reasonable grounds for suspicion" - It means emptying the content of the explicit arrangements that have been established In Sections 68-67 Law The Arrests, in a manner that is inconsistent with the rules of interpretation that apply to us.
In view of all of the above, I am of the opinion that the cancellation of section 4A(5) of the procedure should be ordered.