Another population that deserves special attention includes those whose individual circumstances make it exceptionally difficult for them to stay in the residence center. Chapter 4' The law does not obligate the Border Control Commissioner to consider releasing infiltrators in exceptional cases defined as required by law, and does not prescribe the circumstances under which the infiltrator will not be given a stay order in the first place (as opposed to the permanent detention arrangement In the section 30A to the law, which determines various grounds for release, including age, health status, and humanitarian reasons). It does not offer any mechanism by virtue of which the weakest – the sick, those who have been victims of human trafficking, those who have been tortured, raped and other atrocities – not to be held in the detention center. Individual infiltrators who were not referred to the detention center due to their personal situation, or who were later released from it, would not detract from the realization of the purpose underlying the legislation, and at most would detract from it to a significant extent. An individual examination would therefore not prevent the realization of the purpose of the law (see also the Adalah, at p. 43), and the absence of exceptions even "strongly emphasizes the disproportionality (in the narrow sense) of the sweeping prohibition" (Matter The Citizenship Law The first, at p. 349).
The conclusion is that the legislation that is the focus of our discussion does not meet the appropriate proportion to the benefit that arises from it. It crosses the same moral barrier that democracy cannot cross, even if the purpose it seeks to achieve is worthy (see Adalah, at p. 36). From hour Chapter 4' The law lacks a provision limiting the length of stay and grounds for release from the center, provisions that this court cannot add in an interpretive way to the lines of the law; And that not only that some of the arrangements of Chapter 4' The law is disproportionate, but the accumulation of unconstitutional aspects in this chapter taints the entire arrangement and makes it disproportionate – in view of the totality of the violations inherent in it, my opinion is that Chapter 4' The entire law violates human rights in a disproportionate manner. What is the appropriate constitutional remedy?
(VII) The Remedy
- Chapter 4 of the law is entirely unconstitutional. In view of the principle of separation of powers, we are not authorized to reformulate it for the legislature. Therefore, there is no choice but to order its cancellation. I will note that I have not lost sight of the opinion that a "permanent" law is not the same as a "temporary" law in terms of the constitutionality of the law, and that "anything that minimizes the constitutional invalidation of a temporary law is better" (Gaza Beach, at p. 553; The First Citizenship Law, at p. 450). However, the temporality of this or that law does not necessarily cure the constitutional flaws inherent in it, and even a "temporary" law is not immune from constitutional review. Indeed, in this spirit, President E. Barak, in the case of the First Citizenship Law, was of the opinion that the temporary nature of the temporary provision discussed there (the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Citizenship Law)) did not change the disproportionality in the Citizenship Law "in a real way" (ibid., at p. 346), and that it should therefore be repealed.
- As is well known, a declaration by the court of the nullity of a law or a provision thereof is not obligated to take effect immediately. It may have future (prospective) applicability, if the circumstances justify it, in order to enable proper preparation for nullity (Zemach, at p. 284; Yigal Marzel, "Suspension of the Declaration of Nullity," Mishpat Ve-Mishmal 9 39 (2006)). To this, it should be added that in our judgment in the Adam case we did not rule out an alternative of centers that were open or semi-open, while imposing proportionate restrictions on freedom of movement. In these circumstances, the legislature must be left with an appropriate period of time to do so. Therefore, I would like to suggest to my colleagues that we suspend the declaration of nullity for a period of 90 days, so that the declaration of nullity in relation to the entire chapter D will come into effect within three months from the date of the issuance of this judgment. My assumption is that this considerable period of time will suffice to formulate an appropriate legislative arrangement that will meet the limitations derived from the Basic Law: Human Dignity and Liberty.
- However, I am of the opinion that in relation to two particularly harmful arrangements found in chapter D of the Law, the declaration of nullity cannot be suspended for a period of 90 days. The first is the arrangement set out in section 32H(a) of the Law, which deals with the obligation to report to the center three times a day, which is supplemented by the attendance regulations. This arrangement means that in practice, the residence center does not function as an open center, but rather as a closed facility. Taking into account the severe and disproportionate violation of the right to liberty and the right to dignity, I propose that our declaration of the nullity of section 32H(a) of the Law and the nullity of Regulation 3 of the Attendance Regulations be suspended until September 24, 2014 at 13:00. In order not to thwart the requirement to report at night, and until the declaration of nullity relating to Chapter D of the entire Law comes into effect within 90 days, I propose that section 32H(a) of the Law be read so that a resident will be required to report to the center twice a day, on the dates of reporting as set out in Regulations 3(1) and 3(3) of the Attendance Regulations.
- Another arrangement that cannot be left in place for a period of 90 days is the one that allows the transfer of an infiltrator to custody, as stipulated in section 32K of the Law. This arrangement, which establishes an administrative body with exceptional authority to deny – without proactive judicial review – the liberty of an infiltrator for an extended period of time, severely and disproportionately violates the constitutional rights to liberty and due process. A 90-day waiting period before we declare it null and void will be – in these circumstances – disproportionate. Therefore, taking into account the Israel holidays that are applicable in the coming days and the need for a sufficient period of preparation, I would suggest to my colleagues that from October 2, 2014 until the end of 90 days from the date of the judgment, section 32K will be read so that in relation to each of the grounds listed in section 32K(a), the Border Control Commissioner will be authorized to order the transfer of an infiltrator to custody for a period not exceeding 30 days. Those who are held in custody on the day of the issuance of this judgment by virtue of such a supervisor's decision will be released at the end of 30 days of their custody or at the end of the date set for them by the supervisor – whichever is earlier.
(VIII) After these things
- After writing this, I received the opinions of my friends and colleagues, including the opinion of my colleague President A. Grunis, which I see fit to refer to in light of the differences of opinion that occurred between us. My colleague is of the opinion that section 30A of the Law and Chapter D of the Law (except in relation to the obligation to report to the center of the three-day stay) both pass the constitutional review. In my opinion, I detailed at length why my conclusion is different, and I do not wish to repeat what I said, but only to clarify what turned out to be necessary for clarification.
- I will begin with the dispute that arose between my colleague and myself in all matters relating to section 30A of the Law. As my colleague points out, the heart of the change made by the legislature in all that is stated in this section is the shortening of the maximum period of detention allowed in custody from three years to one year. His position is that given this change and other changes he mentioned, section 30A of the law as it is today stands under constitutional review. In particular, my colleague attributes weight to the fact that in his view we are dealing with "a constitutional question of a 'quantitative' nature", taking into account that what is subject to constitutional review – as he defines it – is not the custody itself but rather the length of the period of custody (paragraph 16 of his opinion). In this regard, my colleague is of the opinion that the legislature has extensive legislative "room for maneuver", and in this spirit he asks me: What can be said about legislation permitting the possession of custody for a period of six months; And what can be said about legislation that allows for custody for eight months? Is it constitutional? (Paragraph 20 of his opinion). And I answer: This, too, may be found to be unconstitutional – all depending on the question of the existence of an effective removal proceeding in the case of the detainee. In my view, one should not order the custody of a person whose removal is not expected, let alone for a long period of one year. The question, therefore, is not only quantitative – what is the maximum constitutional period of detention – but also (and perhaps mainly) qualitatively: is it permissible to hold custody of a person in whose case there is no effective deportation proceeding? I answer this question – as this Court has answered before me in extensive case law – in the absolute negative. Indeed, I am aware that the respondents claim that one of the purposes of section 30A of the Law is to identify and exhaust avenues for deportation. In my opinion, I noted that there is no flaw in the purpose of the law, which is intended to enable effective deportation proceedings (paragraph 51 of my opinion). However, a review of the Prevention of Infiltration Law reveals a gap between the declared purpose of the law and its wording. In our case, it is doubtful whether the legal outline that was created – which does not include any reference to the question of the existence of an effective removal proceeding – actually realizes the purpose of the said legislation (paragraph 55 of my opinion). This is especially true when in the case of most of the infiltrators, in any case, an effective deportation proceeding cannot take place at this time, given the policy of non-temporary deportation that applies to them (paragraph 56 of my opinion). This difficulty stands alongside the quantitative difficulty that arises in this context, which concerns the maximum duration of custody (and in this regard, I would like to note with due caution that in my view, when it comes to the deprivation of liberty in the most basic sense, the difference between depriving it for a period of six months and denying it for a year is a significant difference (and see in relation to a period of a few hours). Since this is the case, and I am even aware of the caution that this Court must exercise in a place where it declares a provision of a law null and void, I have not seen how we can avoid doing so in the case before us.
- My colleague the President and I also disagree with regard to the constitutionality of Chapter D of the Law. My colleague is of the opinion that this chapter – apart from the provision relating to the obligation to report at the center of the stay in the afternoon hours – is constitutional. As detailed in my opinion, my conclusion is different. First and foremost – and this is the main point – chapter 4 of the law is unconstitutional because it does not set a time limit for the purpose of staying in the detention center or offer any grounds for release from it. On this point, I will first note, by the way of my colleague's words (in paragraph 32 of his opinion), that I do not believe that much weight should be attributed to the fact that the Border Control Commissioner was authorized by law to order the stay of an infiltrator in a detention center "until a further date to be determined", since in addition to this, the Commissioner was authorized under the section not to set a date at all and to order his stay in the detention center "until his deportation from Israel. or until he leaves it" (section 32D(a) of the Law). It follows that even if an administrative decision can be made regarding the issuance of a time-bound stay order, which may reduce the infringement of the rights of the infiltrators (and no such decisions have been presented for our examination), this does not detract from the fact that the legal authority in itself – which is subject to constitutional review – allows for the issuance of a stay order that does not have a known expiration date. My colleague argues that an infiltrator will be able to submit a request for a period limit, and the Director-General's decision on this matter will be subject to judicial review. However, the legislature did not outline any criteria for the commissioner's discretion in this matter (which may be correct to be seen as a preliminary arrangement; and see and compare paragraph 91 of my opinion) any criteria for the discretion of the commissioner, and in any case this requires an active legal proceeding on the part of the infiltrator, with all the clear difficulties inherent in this (and see paragraph 179 of my opinion). In any event, this type of allowance is not required by the provisions of the law.
- The result, therefore, is that chapter 4 of the law is unconstitutional even because of what it does not contain. This deficiency in the law – the absence of a time limit for staying at the center and the absence of grounds for release from it – cannot be filled by this court. My colleague in his discussion rightly points out in section 30A of the Law that if we had determined the maximum period of custody, we would have been like putting ourselves in the shoes of the legislature, and that is not our role as judges (paragraph 15 of his opinion). This is also true with respect to chapter 4 of the law. A normative arrangement intended for the purposes that the amendment is intended to achieve, which allows the deprivation of a person's liberty for a period of three years (and this given the expiration date of the temporary provision) – a period that is disproportionate in itself – is unconstitutional for the reasons that were clarified in detail in my opinion. It is not the role of the court to "shorten" the period of stay set by the Chief Legislature or to add to Chapter D of the Grounds for Release Law as it sees fit. In this situation, there is no choice but to cancel the arrangement completely, in a manner that will enable the legislature, if it so wishes, to bring in its place another arrangement that includes a maximum period of proportionality for detention in the detention center and grounds for release from it. For this reason, in and of itself, it is appropriate in my opinion that we declare Chapter D of the Law null and void (as I noted in paragraph 164 of my opinion). The additional arrangements that I reviewed in my opinion support this conclusion, but it stands on its own feet even if there are those who believe that they are constitutional in themselves. I do not, therefore, argue that chapter 4 of the Law is null and void due to the "cumulative effect" of a number of violations of constitutional rights that in themselves stand the test of judicial review (so that "the whole is greater than the sum of its parts"; see Zemer Blondheim and Nadiv Mordechai, "Towards the Doctrine of Cumulative Effect: Aggregation in Constitutional Judicial Review," Mishpatim 44 569, 571 (2014)). First, because the absence of a delimitation of the length of stay and the absence of grounds for release are sufficient to lead to the conclusion that this entire chapter should be declared null and void; and second, because chapter 4 of the law consists of a mosaic of unconstitutional arrangements in and of themselves.
- But this is not the end of it. In my view, where we are dealing with a comprehensive legislative arrangement, it is incorrect that we conduct a detailed constitutional review of the provisions of the law in it without also looking at them from a bird's eye in a way that reveals the reciprocal relationship between them. And I will demonstrate: My colleague the President is of the opinion that the requirement to appear at the center of the stay disproportionately violates the right of the infiltrators to liberty. Is it possible to exclude the possibility that this conclusion would have changed if we had an arrangement limiting the length of stay in the detention center to a few weeks? Would this conclusion have changed if the law that created the Residency Center required the granting of improved welfare and welfare conditions to its residents and is managed by an essentially "civilian" government entity? How can we focus our gaze on a single legal provision, without reading it in conjunction with the other provisions that outline the reality of the lives of those who are subject to the comprehensive legislative arrangement issued by the legislature? A "cumulative" reading of the provisions of the law, including unconstitutional provisions that have implications for the constitutional provisions that stand next to them, is therefore a necessity when we are dealing with a legislative arrangement of this kind, which is subject to our constitutional review in this petition.
- Another matter to which I wish to address is the one described by the President as the "main difficulty" that I found in the arrangements reviewed above (and not him): the arrangement that allows the transfer of an infiltrator from the detention center to the custody set forth in section 32K of the Law. First of all I will clarify that as it appears from my words so far, my conclusion regarding the unconstitutionality of chapter D of the Law remains the same even without any connection to this last arrangement. On the merits of the matter, my colleague and I are not unanimous as to the interpretation of the said arrangement. In my opinion, I noted that, in my opinion, the review by the Detention Review Tribunal of Infiltrators cannot be viewed as a "proactive judicial review" of the decision to transfer an infiltrator to custody. On the other hand, my colleague the President is of the opinion that the authority granted to the Tribunal in section 30D(a)(1) of the Law – "to approve the detention of the infiltrator in custody [...]" – also entails the power not to approve his detention as aforesaid, including to order his release on any administrative grounds whatsoever. It seems to me that it is difficult to reconcile this interpretation with the language of the law and with the grounds for criticism exercised by the court on the decisions of the Director-General. And dove. My colleague does not dispute that ordinarily the authority of the Commissioner to order release from custody – as well as the authority of the Custody Review Tribunal (both by virtue of the Entry into Israel Law and by virtue of the law in question) to order release within the framework of judicial review – is limited to the grounds for release listed in the law, which are inextricably linked (see section 135(a)(2) of the Entry into Israel Law , which limits the grounds for release that the court is authorized to release by virtue of them to those listed in section 13F of that law); and section 30d(a)(2) of the law, which limits the grounds for release that the tribunal is authorized to release by virtue of it to those listed in section 30a(b) or (c) of the law; HCJ 7267/09 Abdoulaye v. Ministry of the Interior, [published in Nevo], paragraphs 10-12 (December 21, 2009); HCJ 1662/11 Biraha v. Ministry of the Interior, [published in Nevo], paragraphs 29-31 (September 1, 2011); Explanatory Notes to the Entry into Israel Bill (Amendment No. 8), 5761-2000, H.H. 117). These grounds are primarily humanitarian, and they do not relate to the decision regarding placement in custody itself – its legality or reasonableness. However, it appears that my colleague is of the opinion that while the term "to approve" within the meaning of section 30D(a)(1) should be interpreted in its "ordinary" sense (i.e., as one that does not allow the court to "approve" the custody unless there are some grounds for release listed in section 30B(a) of the Law), when we are dealing with a decision on placement in custody by virtue of section 30 of the Law, when it comes to a transfer to custody from the detention center, The very same term ("to approve") should be interpreted in a completely different way – as it allows the court not to approve the custody if there is any administrative defect in it that gives rise to grounds for doing so. The reason for the difference lies, according to my colleague, in the fact that section 32K(h) of the Law (Transfer to Custody from the Detention Center) applies section 30D of the Law (which referres, as stated, to the grounds for release listed in section 30A(b)), "with the necessary changes". From the application of the arrangement with the necessary changes, it is possible to learn, according to my colleague, the intention of the legislature to grant the court the authority to conduct judicial review of a decision appointed under section 32K of the Law on any administrative ground.
I find it difficult to agree with this conclusion, because it is difficult to reconcile with the language of Section 32K(The) law, which delimits the powers of the border control officer to order release from custody By virtue of Section 32K Law Only"If he is convinced that the aforesaid is fulfilled In the section 30A)II), and subject to the restrictions listed In the section 30A)IV), and all with the necessary changes." Indeed, Section 32K(The) The law includes at the end the box "and all with the necessary changes." However, since the licensing of the section is restrictive Explicitly the grounds for release from custody imposed under Section 32K To the law for those who subscribe In the section 30A)II) The law, in my opinion, is doubtful whether the clause – "and all with the necessary changes" – can be read as authorizing the Border Control Commissioner (or the Tribunal) to deviate from the list of grounds set out in the preamble of that very section. This conclusion is supported by the explanatory notes to the subsection 32K(e) of the law, where it is written that "according to the proposal, the Border Control Commissioner will be entitled, When the aforesaid is fulfilled In section 30a(b) or C(1) or (2) to order the release of the resident or infiltrator, as the case may be, from the place of custody, and his transfer to a detention center" (Explanatory Notes to Amendment No. 4, at p. 138; emphasis added – p. P).