However, this concern can be blunted by a series of measures, some of which have already been taken by the state, starting with the prohibition of transferring funds abroad, as mentioned by my colleague in paragraph 30 of his judgment, through the physical barrier in the form of the fence, and ending with the normative barrier set forth in section 30A of the Law, whose activity is forward-looking. Precisely since we are dealing with sophisticated and institutionalized smuggling networks, which operate in accordance with the degree of economic attractiveness of the target countries, and which, according to the state, are awaiting our ruling, the birds of the sky and the media will lead the voice and convey the message that the state distinguishes between a "done deed" for those who have already arrived in our country before the law was changed, and those who plan to reach it from now on, after Amendment No. 4 to the law.
- As noted by the Vice-President Justice Naor in the AdamThis could have been the best time for the state to find humane solutions for the infiltrators who already live among us. It is possible that the half a billion shekels that the state invests in locating, deporting, isolating and placing a few thousand of the tens of thousands of infiltrators in quasi-incarceration conditions could have borne a different fruit, if they had been invested in the welfare of the residents of south Tel Aviv and in finding other solutions for those who have already arrived in our country. Agriculture is desperate for working hands, hotels in Eilat are already looking for workers from Jordan - would we have been deprived of our share if we had allowed employment in a number of industries and in different places throughout the country? The fact that the infiltrators chose to concentrate on the neighborhoods of south Tel Aviv, and especially in the Shapira neighborhood, is not a coincidence, but rather a result of a lack of policy that has been going on for years.
However, as judges, we do not examine the wisdom of the law, but rather its legality, and the legislature may choose a different way to deal with the issue of infiltrators who are already in the country. As judges, we are entrusted with a somewhat dry analysis of the provisions of the law in order to examine its legality, and this is what my colleague Justice Fogelman did in his judgment. But this should not obscure the real picture that is presented to us. The practical implications of the provisions of Chapter D of the Law are almost imprisonment of people for a period that is ostensibly limited to "only" three years, but at the end of which there is also uncertainty. We are talking about guests, even if they are not invited to come to our country by way, whether guests for an hour or guests for two. Indeed, the entry of these people into the country was done illegally, but with a kind of reliance on a situation of breached borders and the lack of policy that prevailed at the time. It should be remembered that we are dealing with people who have been in Israel for several years, some of whom have already built a socio-economic network for themselves, even if it is weak and poor. Even if we are uncomfortable with the situation that has already been created, we must lift the curtain over that "bloc" of infiltrators and look directly at each and every one of them. This is the essence and essence of humanity – the recognition that what is seen from a distance as a blurred public image is a community made up of human beings, and that each person has a name, and each name has its own face, its own language, and its own way of realizing its human dignity. To the human face of each of the infiltrators, one can even add a dash of compassion for those thousands who were severely abused in the Sinai Peninsula and who came to us with bruises on their bodies and minds. Among them, there are even those who did not plan to come to Israel at all, but were kidnapped by smugglers and held in the Sinai Peninsula for extortion purposes, while subjected to horrific torture.
- My colleague Justice Vogelman outlined the state of affairs in various European countries, which are also dealing with immigration and refugee problems. We are not obligated to follow in the footsteps of those countries, but as a country that wishes to belong to developed liberal democratic countries, we must also identify our place in the line, look to the right and left, and examine whether we are isolated far at the end of the line, or in one place or another within the line. The conclusion that emerges from Justice Vogelman's instructive broad review is that the stay centers, which are the work of the Israeli legislature, are completely sinful of the character and purpose of the residence centers in various European countries. To be precise, the state does not have to adopt a model of residency centers designed to solve the housing and welfare problems of the infiltrators, as has been done in some European countries. As for myself, I also do not believe that it is the IPS's management of the detention center that "paints" the center as a detention facility, since the state is entitled to authorize a body or entity on its behalf to handle various tasks that time has brought about, in accordance with the needs and skills required for that mission, such as sending military medical teams and soldiers from the Home Front Command to assist a foreign country after an earthquake or sending police officers to a multinational surveillance force in Haiti (High Court of Justice 5128/94 Federman v. Minister of Police, Moshe Shahal, Piskei Din 48(5) 647, 656 (1995)). The arrangement authorizing the Border Control Commissioner to order a transfer to custody is indeed a rigid and disproportionate arrangement, but it could have been amended without a sweeping disqualification of the Chapter 4. However, the order to report three times a day and the lack of a horizon for the period of stay are provisions that bring the Holot detention center very close to a facility with the characteristics of an incarceration facility. This must be regretted, and therefore there is room for the disqualification of the Chapter 4 to the law in its current form.
- As someone who spent his childhood and youth in the Shapira neighborhood, the fate of the neighborhood and the nearby Hatikva neighborhood, whose streets I measured with my feet for many years, is very dear to my heart. It is heartbreaking that the neighborhood, which was about to join the development momentum in the city of Tel Aviv, now bears the lion's share of the issue of infiltrators with its meager infrastructure. As noted, this is not a decree of fate, and it was possible to adopt a policy that would have led to the dispersal of the population of infiltrators throughout the country. In any case, one may wonder whether the transfer of a few thousand to detention centers does indeed solve all the problems related to the presence of tens of thousands of infiltrators in south Tel Aviv. The court is not exempt from examining the practical-utilitarian aspect of the matter, since a severe infringement of rights, which does not bring benefit to another important social interest, is liable to be disqualified because it is disproportionate.
- Thus, I go hand in hand with my colleague Justice Vogelman in his conclusion regarding Chapter 4 to the law, but our paths are separate in all that is said about Section 30A of the law, and I will discuss this below.
Section 30A of the Law
- Do not compare Section 30A The law created Amendment No. 3 to the law, according to which infiltrators who have been in Israel for years could be held for a period of three years, without prosecuting them and without being able to be returned to another country. Section 30A Shorten the period to one year.
And the main thing. On the level of time, section 30A looks to the future, in contrast to the previous situation, where the detention also applies to the population of infiltrators that are already in Israel. On the geographical level, section 30A is viewed outside the borders of the state, as a normative barrier that complements the physical barrier of the fence. In terms of the target audience, the public to which the section is addressed is an unspecified public of infiltrators by force, in contrast to the previous situation in which the law also applies to the population of infiltrators in Israel.
- In the matter Adam I noted that we are dealing with an equation with two unknowns:
"Is there a causal connection between the normative barrier set out in the law and the dramatic decline in the number of infiltrators, or should this be attributed to the physical barrier in the form of the fence? And are we dealing with immigration or refugees – migrant workers who want to improve their economic situation, refugees fleeing for their lives, or those who are on the continuum between the two poles?" (Emphasis in the original – 11).