Thus, in the words of Section 32K(The) The law and its explanatory notes indicate that the power of release granted to the Commissioner is limited to the closed list of grounds listed In the section 30A)II) for the law, that there is no exception; Where the supervisor is not authorized to release from custody for any administrative reason, it is doubtful whether the law can be interpreted in a way that authorizes the custody court to do so.  From this I have concluded that the box "with the necessary changes" does not have the power to change From the ground up The framework of authority expressly set out in subsections 32K(e) and(8) to the Law – which, as stated, are part of the specific arrangement prescribed In the section 32K to the law of its own – and to expand it considerably.  To this, it should be added that the respondents – who responded to the petition at length and in detail – did not claim this interpretation of the law, and therefore it is doubtful in my view whether there is room for us to adopt it on our own initiative.

And I will end with this.  The President's position is that most of the arrangements at the center of our examination should be declared constitutional.  As my colleague explained, this conclusion was reached, inter alia, "against the background of the concern about the contempt and dilution of important constitutional rights" (paragraph 2 of his opinion).  It is precisely this concern – the concern about the status of the important constitutional rights at stake – that led me to my own conclusion, according to which these arrangements are unconstitutional and null and void.

(IX)          Final Notes

198. As the time for signing approaches, I received additional comments from my colleague the President, which also require a brief address. First of all, section 30A of the law. As has already been clarified, placement in custody for the purpose of deportation requires an effective removal procedure.  Section 30A of the Law does not link the very possession of custody to the existence or absence of such a removal proceeding.  Against this background, my colleague is of the opinion, as stated in his last words, that instead of the invalidation of  section  30A of the Law, it can be interpreted in a way that will establish the missing connection in the Law.  In my view, it is not possible to do so, and there is no choice but to declare the provision of the law null and void.  And I will explain.
199. This is the rule that has been formulated in our case law, and there is no exception: Custody requires the existence of an effective removal proceeding. In order to deprive a person of his liberty in order to remove him, it is not enough to make a general declaration that the state intends to do so. Consistent action is required to formulate a path to expulsion as quickly as possible.  A section of the law authorizing a person to order  his detention for a long period  of time for the purpose of deportation (as opposed to the limited periods of time in the Entry into Israel Law) must give expression to the connection between the removal proceeding and the detention; it must impose on the state the burden of bringing the detainee's case to a periodic examination, the purpose of which is to ensure that a person does not remain in custody while the state is silent and does nothing to remove him; and it must include appropriate grounds for release in a case where there is no possibility of deportation.
200. An arrangement of this kind, which establishes such a connection and establishes grounds for review, does not appear within the scope of section 30A of the Law. What then do we do in this state of things? According to my colleague's approach – an approach that was not claimed by the state and which was not examined by us in the Adam case – even if we maintain that an effective removal proceeding is required as a condition for custody, section  30A of the law can be interpreted in such a way that it  is possible to keep an infiltrator in custody for a period of one year, provided that a deportation proceeding takes place in his case.  On the other hand, my opinion is that we must declare the provision of the law null and void.  Ostensibly, the two ways – my own, according to which it is correct that we declare the provision of the law null and void (nullity at the end of which the legislature will be entitled to bring about a new arrangement that meets the constitutional standards under the existing section) and that of my colleague, according to which it is possible to do so by way of judicial interpretation – lead to the same result.  However, my colleague's path is through judicial legislation, since it obligates the court to establish for the legislature an arrangement for the release of an infiltrator in whose case there is no effective deportation proceeding, including grounds for criticism that are not included in the law in its current version.  However, according to my approach, this work should be left to the legislature, who will determine a complete and exhaustive arrangement in this matter.
201. The arrangement before us obliges us to answer two questions: first, whether an effective removal proceeding is necessary for the purpose of custody; and second, whether the period of time for custody determined in section 30A of the Law meets the constitutional standards. On these two questions, the qualitative question and the quantitative question as defined by my colleague, I discussed in my opinion. As to the first question, my colleague proposes that even if we hold that there is a duty to conduct an effective removal proceeding, we will establish such an obligation in an interpretive manner, within the framework of the existing law.  Even if I had been willing to go a long way toward my colleague in all that was stated in the first question, and to assume for the purpose of the discussion that it is possible to read into the lines of the law an interpretive-jurisprudential way according to which in the absence of an effective removal proceeding, a detainee must be released from custody immediately, and even for that purpose a cause of release that is not among the grounds specified in the law (and as stated – I do not believe that this is the right thing to do), even then my conclusion would not have changed.  This is in light of the different answers that my colleagues and I give to the second question.  In my view, and as was explained at length in my opinion, the period for custody that is currently prescribed in section 30A of the Law – one year – is clearly disproportionate.
202. My colleague himself recognizes that there is no place for this Court to determine for the legislature what is the maximum permissible period of detention. For this reason, my colleague – according to his own words – refrained from stating so in the case of Adam (see his words in paragraph 15 of his opinion; paragraph 5 of his opinion in the case of Adam). This approach, of course, is acceptable to me, and it is what condemns me to the necessary restraint that leads to the result I have reached in this affair.  In other words, when the legislature has established a mandatory period of time for custody of one year (subject to the limited grounds in this section); And since this period does not pass the constitutional examination because, as stated, it is a disproportionate period of time, there is no choice but to repeal the provision  of section 30A of the Law.  In order to overcome it in an interpretive way, we must determine a different, shorter period of time for maximum custody.  We did not do so in Parashat Adam, and I did not think that it was right that we should do so now.  I share my colleague's view that an interpretive effort should be made in order to avoid canceling legislation of the Knesset.  However, I have not seen how, in our case, when we are confronted with a provision of the legislature that establishes a period of one year for custody (a period of time that in my view is disproportionate), it can be avoided.
203. In the margins, I will note that my colleague had another complaint, according to which this ruling that we are ruling here with regard to the provision of section 30A of the Law is not based on factual data as to the identity of the "new" infiltrators who will arrive after Amendment No. 4 has been enacted.  I turned and turned on this argument of my friend, and I did not see how it could change things.  The state did not argue before us, neither in writing nor orally, that the characterization of the infiltrators who entered after the enactment of Amendment No. 4 to the law is different from that of the infiltrators who arrived in Israel.  Since the data on this matter are in the hands of the state, and it did not see fit to raise such a claim, I did not see any reason to assume otherwise.  In any event, even if reality teaches that immigrants from countries to which deportation is possible will also infiltrate into the territory of the state, this will not cure the basic, deep-rooted flaw that fell into section  30A of the law.
204. Now to chapter 4 of the law, about which I will make two brief remarks, for everything has already been said. One is this: My colleague is of the opinion that given the authority of the Border Control Commissioner to limit the period of stay at the center, there is no defect in the fact that the provisions of this chapter do not contain grounds for his release. My opinion is different.  We are dealing with the provisions of the law by virtue of which thousands of people are being held, while violating their liberty and dignity, in a remote center in the desert.  They are required to stay there for a disproportionate period of three years (and that too on the assumption that the law will not be extended).  As I have already noted, it seems to me that all of the first arrangements require that when we are dealing with such a nuclear infringement of the right to liberty and the right to dignity, it will be the legislature – he and no one else – who will set a proportionate time limit for holding the center, as well as an arrangement that specifies the grounds for release from it.  According to my colleague's position, the determination that the legislature is obligated to do so is liable to limit the discretion of the Commissioner to limit the period of stay at the Center.  Given our decision today, I do not share this concern.  It is clear that there is nothing impediment to the legislature leaving broad discretion to the Commissioner in this matter, for example in the manner of determining appropriate grounds, and perhaps it is even appropriate for him to do so.  Given the severe harms of Chapter D of the Law, any other option other than setting a proportionate ceiling for such detention, as well as grounds for release in the primary legislation, seems to me to be difficult.  A second comment, which relates to the dispute – which is not the core of the matter – regarding the "disciplined" authority given to the Commissioner to transfer an infiltrator from the detention center to custody: as I noted in my opinion, there are limited, defined and limited grounds for release on the basis of which the court is entitled to conduct judicial review and release an infiltrator who has been transferred from the detention center to custody (as stated in paragraph 167 of my opinion).  However, as I have clarified, judicial review on the aforementioned grounds alone is not enough.  In this context, I have no choice but to repeat what I said in paragraph 197 above.
205. I will conclude with my remarks in the matter of Adam, to which my colleague referres, according to which there is no invalid in principle in the very establishment of a residence center (see paragraph 40 of my opinion there). I said these things, and I repeat them today. But a bill and a voucher on its side: In my opinion on Adam, I referred to the accepted standards mentioned in the UNHCR guidelines regarding open or semi-open accommodation facilities.  The legislature did not see fit to guide itself in acceptable international arrangements, and thus, of course, acted within the framework of the prerogative given to it.  However, this does not mean that the legislature is entitled to make arrangements that are inconsistent with the provisions  of the Basic Law:  Human Dignity and Liberty, as it did in my view in our case.
206. In the end, everything is heard. My colleagues and I do not see eye to eye on the question of the constitutionality of the arrangement that has been put before us. I have read very carefully the words of my colleague, and they did not convince me that it is possible to avoid declaring the nullity of section 30A of the Prevention of Infiltration Law as well as declaring the nullity of Chapter D of this Law.  This is how I understand what is required by our constitutional law, and this is how I will again suggest to my friends that we declare.

VI.          High Court of Justice 8425/13 - Summary

207. We have placed section 30A and chapter D of the Prevention of Infiltration Law for judicial review.  First, we examined the custody arrangement set out in section 30A of the Law, by virtue of which it is possible to hold custody of a person who has infiltrated into the territory of the State after the enactment of Amendment No. 4 for a period of up to one year (subject to grounds that allow for shortening or extending the period).  We began by insisting on the infringement of the right to liberty inherent in custody (an infringement that was not in dispute between the parties) and added that the possession of custody also violates the right to dignity.  Later on, we reviewed the declared purposes of section 30A of the Law.  We held that the purpose of "exhausting the channels of exit from the country" is appropriate in itself, but we pointed to the difficulties that arise in relation to the second purpose of the law – "preventing the recurrence of the phenomenon of infiltration" – which is essentially a deterrent purpose.  Afterwards, examine whether the infringement of  section  30A of the law is proportionate.  First, we found that there is a rational connection between custody and the prevention of the recurrence of the phenomenon of infiltration, but we expressed doubt as to whether custody does indeed promote the departure of a person who cannot be deported.  Second, we have determined that although there are alternative means that can advance the purposes of the law, it is not possible to point to an alternative measure that is less harmful that will realize the purposes of the law with a similar degree of effectiveness for custody.  Third, we have weighed the relative benefit of the law against the prolonged denial of the right to liberty, and we have found that it does not maintain proper proportionality.  Finally, when it was found that section 30A of the Law did not pass the constitutional examination, we declared it null and void and applied in its place the arrangement set forth in  the Entry into Israel Law, while noting that the grounds set forth in section 13f(a)(4) of the Entry into Israel Law will not apply for a period of ten days from the date of this judgment.
208. We then examined the constitutionality of chapter 4 of the law, which allows for the establishment of a residential center. This chapter (which was enacted as a temporary provision valid for three years) authorizes the Border Control Commissioner to issue a stay order for an infiltrator requiring him to stay in the detention center for an indefinite period. In the absence of a real dispute between the State and the petitioners regarding the violation of the right to liberty by this chapter, we were required to examine it in the outline set out in the  limitation clause in section 8 of the Basic Law:  Human Dignity and Liberty.  First, we reviewed the various purposes of the residence center – both those declared and those that are claimed – and discussed the difficulties that some of these purposes raise.  We noted that the purpose of "responding to the needs of the infiltrators" is appropriate; We discussed the possibility that chapter 4 of the law has an additional, hidden purpose, of encouraging "voluntary" departure – with all the difficulties involved.  Afterwards, we examined some of the arrangements in chapter D of the law on their merits.  We discussed the arrangement set forth in section 32H(a) of the Law, by virtue of which an infiltrator is required to report for three daily counts.  We found that this arrangement disproportionately violates the right to liberty and the right to dignity.  We also examined the difficulties raised by section 32C of the law, which authorizes the Israel Prison Service to operate the detention center.  We noted that although these difficulties do not amount to an independent violation of constitutional rights, they do intensify the harm that already exists in the center of residence.  Later on, we discussed the absence of provisions that limit the length of stay in the detention center or establish grounds for discharge from it.  We have seen that the absence of such provisions intensifies the violation of the right to liberty, and violates the independent violation of the right to dignity.  We were of the opinion that this infringement is disproportionate, and that it is sufficient – in itself – to establish grounds for the revocation of chapter D of the entire law.  We reviewed the arrangement set out in section 32K of the law, which deals with administrative authority to transfer an infiltrator to custody.  This arrangement was found to violate both the right to liberty and the right to due process due to the fact that the decision of the administrative authority is not accompanied by proactive judicial review.  We were of the opinion that this arrangement was also disproportionate.  Finally, we found that chapter D of the entire law is disproportionate even in view of the accumulation of the unconstitutional arrangements that make up it.  Therefore, we have determined that chapter 4 of the law does not pass the constitutional examination – even as a whole.  In the realm of relief, we have seen fit to suspend the declaration of nullity in relation to  the entire chapter 4 by 90 days from the date of the rendering of this judgment.  The declaration of nullity of the arrangement (section 32H(a) of the Law) was suspended for only 48 hours, after which it would be required to report to the center twice a day, in the morning and in the evening, as stated in paragraph 190 above.  We also suspended the declaration of nullity of the custody transfer arrangement (section 32K of the law) for 48 hours, at the end of which the Border Control Commissioner will be authorized to order the transfer of an infiltrator to custody for a period of up to 30 days only; and we ordered the release from custody of those who are held there for more than 30 days on the date of the rendering of this judgment by virtue of the Commissioner's decision as aforesaid.

High Court of Justice 7385/13

209. The conclusion that we have reached – according to which Amendment No. 4 is to be invalidated in its entirety – makes the hearing of the High Court of Justice case 7385/13 redundant. In the hearing before us, the petitioners in this petition relied on the state's position regarding the constitutionality of Amendment No. 4. It can be assumed that the invalidity of the amendment will lead the legislature to establish a new normative arrangement, given what is stated in this judgment, which will deal with a range of matters that require attention.  This may include a response to the claims of the petitioners, who are residents of south Tel Aviv.  Therefore, there is no place for us to address their claims regarding the alleged harm to them at this time, before the legislature has had its say on the issue.
210. I would like to emphasize that this conclusion that we reached in relation to the petition in the High Court of Justice case 7385/13 does not attest to the fact that the voice of the residents of south Tel Aviv was not heard in this proceeding. Their distress was before our eyes, and their pain over their living environment, which had changed its face beyond recognition, was clear and understandable to all. We live within our people.  We saw how the settlement of the infiltrators in the southern neighborhoods of the city changed the character of the area, added to the density and increased the daily difficulties of the local residents.  We read in the State Comptroller's report about a significant increase in planning and building violations in the area; about many businesses and peddlers operating without a license; about many "pirate" connections of gas installations and dangerous connections to the electricity grid; and on increasing the potential risk of fire (State Comptroller's Report, at pp. 75-83).  There is no dispute that the situation in south Tel Aviv is difficult and requires attention.  The duty to find appropriate solutions is at the door of the state authorities.  The plight of the residents of south Tel Aviv is not a decree of fate; It is in the hands of the legislative and executive branches.

Although we understand the petitioners' hearts, our conclusion is that the petition In a High Court of Justice case 7385/13 to be rejected, while the petitioners' arguments are fully reserved for them insofar as the new arrangement that will be determined does not provide a response to the alleged harms, and this without us expressing any position on the merits of the matter.

VII.        Unlocked

211. We found that section 30A of the Law is disproportionate. We found that chapter 4 of the law is disproportionate. We declared them null and void.  Indeed, "declaring a law or part of it null and void is a serious matter.  It is not easy for the judge to do so" (Investment Managers Matter, at p. 386).  As explained there, we also did not seek to put ourselves in the shoes of the legislature or to ask what means we would have chosen if we were part of the legislative branch.  We conducted a judicial review.  We did not examine the wisdom of the law; We examined its constitutionality.  Our conclusion was that the provisions of section 30A and chapter D of the law are unconstitutional.
212. We have not lost sight of the fact that the result of this judgment is that we are once again annulling primary legislation of the Knesset. We are aware of the weight of the doctrine of separation of powers. We do not ask to "plow without a permit in the field of the legislative branch", and "we will proceed carefully until we order the invalidity of a provision in the Knesset Law" (Commitment Association, at p. 518).  However, the arrangements established by the new amendment to the Prevention of Infiltration Law infringe on human rights in a substantial, profound, and fundamental way.  They do not meet the conditions of the limitation clause, and they do not pass constitutional review.  Therefore, it is only possible to declare them null and void.  We did it not willingly; We did so by virtue of our duty.
213. When the time has come to conclude, I would like to say this as well: There are now many among us who have come as uninvited guests. Some of the infiltrators have been in Israel for many years. They formed social connections and started families, adopted hobbies and acquired a language.  At this stage, their removal from Israel is not in sight.  Indeed, your stay is an economic and social burden on the residents of the country.  We are not blind to the difficulties faced by the residents of south Tel Aviv and other cities.  However, recent data show that the phenomenon of infiltration is not what it used to be.  Although Israel's southern border is not immune to uncontrolled crossing, and even though "new" infiltrators still pass through it and enter the country's gates, there has been a significant decline in the number of infiltrators entering Israel.  Only 45 infiltrators made their way to Israel in 2013.  From the time of the enactment of Amendment No. 4 to the law until June 2014, only 19 infiltrators entered Israel.  This change in circumstances requires rethinking.  It offers an opportunity to formulate a comprehensive solution from a lateral perspective.

Indeed, there is no dispute that the arrival of tens of thousands of infiltrators into Israeli territory is a complex issue; A complicated issue – but also a human issue.  The state has many tools at its disposal that enable it to deal with the phenomenon of infiltration, and the legislature is the sovereign to choose the appropriate legal solution.  Many legal solutions are considered – but they must be constitutional.  A constitutional solution must reflect the balance between the common good and the individual good.  He must reduce the harm to the residents of the city centers on the one hand, and the infiltrators on the other.  The legislature must choose a measure whose violation of human rights is proportionate.  The heart understands the difficulties, but the mind cannot tolerate the chosen solution.  Section 30A And Chapter 4' The Anti-Infiltration Law is unconstitutional.  They can't stand.

VIII.     Conclusion

214. I therefore propose to my friends and colleagues to reject the petition in High Court of Justice case 7385/13, and to accept the petition in High Court of Justice case 8425/13. If you listen to my opinion, section  30A of the Prevention of Infiltration Law will be repealed.  It will be replaced by the arrangement set out in the Entry into Israel Law.  The grounds for release set forth in section 13f(a)(4) of the Entry into Israel Law  will not apply for a period of ten days from the date of this judgment, i.e., until October 2, 2014.  Chapter 4 of the Prevention of Infiltration Law will also be repealed.  The declaration of nullity will be suspended for a period of 90 days.  The nullity of section 32H(a) of the Law will come into effect on September 24, 2014 at 13:00, subject to the provisions of paragraph 190 above.  The nullity of  section  32K of the Law will be as stated in paragraph 191 above.

Considering the result we have reached, I will suggest to my colleagues that we will not make an order for expenses In a High Court of Justice case 7385/13, and that the respondents will bear the petitioners' expenses In a High Court of Justice case 8425/13 In a total amount of 25,000 NIS.