High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 30

President A. Grunis:

"The Knesset Law is in its  place: the law still expresses the will of the sovereign, who is the people, and therefore the law is the one that goes before the camp, including the court.  And that it is necessary to repeat this trite truth?...  Indeed, today the rule is that the Basic Laws have granted the court the power to annul laws.  This authority is, in my opinion, essential in an enlightened society...  It must be well preserved, so that it can be used in the proper case, but precisely because of this, great care must be taken not to be as wealth reserved for its owner to his detriment."

High Court of Justice 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485, 496 (1996) (hereinafter – the Local Government Center case)

1. It's been 18 years since these rebukes were heard from the judge Y. Zamir. We must repeat them again even today.  Declaring a law null and void is not a trivial act.  In constitutional petitions, the court is incumbent upon acting with special restraint, caution and restraint, lest it replace its own discretion with that of the legislature.  The court must not place itself in the shoes of the legislature, and in practice, instead of the legislature, determine the proper legislative arrangement.  Indeed, there is no doubt that judicial review plays an important role in the protection of human rights in Israel.  But in no way is it meant to be a means of replacing the discretion of the legislature with that of the court.  Against the background of these warning signs, we have already determined in the past that each of the two stages of constitutional review (the stage of infringement and the stage of proportionality) has an important goal in the overall constitutional analysis, and therefore it is not appropriate, as a rule, to skip the first stage (see, for example, Criminal Appeal 4424/98 Silgado v. State of Israel, IsrSC 66(5) 529, 553-554 (the judge T. Strasberg-Cohen) (2002); High Court of Justice 2442/11 Stanger v. Speaker of the Knesset, [Posted inNevo] Paragraph 24 of my opinion (June 26, 2013) (hereinafter – The Stanger Matter)).  It has also been stated in the past that care must be taken in interpreting the interpretation of a particular constitutional right, in order to prevent the dilution and dilution of constitutional rights (see, for example, High Court of Justice 7052/03 Adalah - The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, Piskei Din SA(2) 202, 395-396 (Vice-President (ret.) M. Cheshin (2006) (hereinafter – The Adalah case)).  Against this background, we have also become familiar time and time again with the "room for maneuvering", in which the legislature is entitled to choose the proportionate means that fulfill the purpose of the legislation, from among the variety of tools and means at its disposal.

These words are given additional validity in the matter at hand.  This is because this is not the first time that constitutional review has been exercised regarding an amendment to a law dealing with infiltrators.  As is well known, and we will return to this later, about a year ago this court invalidated a previous amendment to the relevant law.  Subsequently, the law was amended once again, with the Knesset giving its consideration to the court's comments and criticism.  It is clear that in such a case, the court must show double caution when it passes a matter of primary legislation through the constitutional filter.

2. I read with great interest the comprehensive opinion of my colleague the judge A. Fogelman, which spread out a wide and deep cover. My colleague proposes, in conclusion, that we order the sweeping repeal of Amendment No. 4 toPrevention of Infiltration Law (Offenses and Jurisdiction), 5714-1954 (hereinafter – The Prevention of Infiltration Law, or - The Law), which deals with the detention of infiltrators for a period of one year, as well as the establishment and operation of a residency center for infiltrators residing in Israel.  I disagree with my colleague's opinion on many points.  It should be said by now that I do not agree that the provision that allows an infiltrator to be held in custody for a period of up to one year should be disqualified.  However, I agree with my colleague that the provision stipulates the obligation to report for three attendance records per day, at the accommodation center for infiltrators (Section 32VIII(A) of the law), disproportionately violates the constitutional right to liberty, and therefore must be repealed, insofar as it is a matter of appearing at noon.  However, in my view, the same constitutional conclusion should not be drawn with respect to the other arrangements established by the Knesset in Amendment No. 4 to the Prevention of Infiltration Law, with respect to the center of residence.  In other words, my opinion is that there is no constitutional impropriety in the provisions regulating the establishment and management of the accommodation center, except for the provision that requires reporting three times a day.  My position is based mainly on the proper weight that should be given, in my opinion, to the caution required when exercising judicial review of primary legislation of the Knesset.  My position seeks to give significant expression to the space for maneuvering given to the legislature.  My constitutional conclusion came, inter alia, against the background of the concern about the contempt and dilution of important constitutional rights.

Background

3. On September 16, 2013, this court issued the judgment In a High Court of Justice case 7146/12 Adam v. Knesset [Posted inNevo] (The main opinion was written by the judge A. Arbel). In the aforementioned proceeding, an expanded panel of nine justices discussed the question of the constitutionality of the arrangement established by the Knesset in 2012, which allowed infiltrators to be held in custody for a period of three years (hereinafter: The Previous Petition).  This arrangement was established In the section 30A of the Prevention of Infiltration Law, as part of Amendment No. 3 to the Law.  All nine judges on the panel, including myself, unanimously ruled that the said arrangement does not meet the conditions of the limitation clause of the Basic Law: Human Dignity and Liberty, because it disproportionately violates the constitutional right to liberty.  Regarding the constitutional remedy, a majority opinion was determined by eight justices, of whom I was also a member (contrary to the dissenting opinion of my fellow justices). v. Hendel), that all the arrangements set out in the various provisions should be canceled In the section 30A to the Anti-Infiltration Law.  Everything, as detailed in the judgment we gave in the previous petition.
4. Following the cancellation of the Section 30A The Knesset enacted an additional amendment to the Prevention of Infiltration Law, namely Amendment No. 4 to the Law, which is the focus of the proceedings before us, and which was published in the Official Gazette in December 2013 (Prevention of Infiltration Law (Offenses and Jurisdiction) (Amendment No. 4 and Temporary Order), 5774-2013, S.H. 2419, 74; Below – Amendment No. 4)). Amendment No. 4 includes two new legal arrangements to deal with the phenomenon of infiltration into Israel.  The First Arrangement (Section 30A The Prevention of Infiltration Law in its new version) relates to the detention of infiltrators, i.e., in a closed detention facility.  According to the current wording of the Section 30A According to the law, the maximum period of detention for an infiltrator is one year (subject to certain exceptions specified in the law).  The new arrangement also establishes, inter alia, that its application will be prospective, so that only infiltrators who entered Israel after the entry into force of Amendment No. 4 to the law can be held in custody.  The Second Central Legal Arrangement Amendment No. 4 stipulates In Chapter 4' of the law, and the establishment of a residency center for infiltrators.  The arrangement set by the legislature regarding the residence center is very detailed.  It was regulated, inter alia, in the framework of extensive sub-legislation enacted following Amendment No. 4.  In essence, it can be said that an infiltrator held in the detention center is required to be there at all hours of the night (between 22:00 and 06:00) without the possibility of leaving it.  On the other hand, during the day, the infiltrator is free to leave the center of the stay.  However, he must report daily for three attendance records.  According to the regulations enacted by virtue of the Chapter 4' According to the law, those staying at the center must report for registration at any time between the following time range: 07:30-06:00 in the morning, 13:00-14:30 in the afternoon, and 22:00-20:30 in the evening (see, Regulations for the Prevention of Infiltration (Offenses and Jurisdiction) (Presence of a Resident in and Out of the Center) (Temporary Order), 5774-2013 (hereinafter – Attendance Regulations at the Center)).  It must be noted that the provisions In Chapter 4' The Law, relating to the establishment and operation of the Residency Center, was established as a temporary provision for a period of three years from the date of the commencement of Amendment No. 4 (see section 14 of Amendment No. 4).
5. As noted, my opinion is that there is no constitutional impropriety whatsoever In the section 30A to the Prevention of Infiltration Law as it is today. As stated, I do not believe that we should cancel the arrangement set by the Knesset regarding the detention of infiltrators for a period of one year at most.  As for the center of the stay, I agree with my colleague the judge Fogelman that the provision that establishes the obligation to report to the stay center three times a day, for the purpose of registering attendance, disproportionately violates the constitutional right to liberty, and therefore it must be revoked as stated below.  However, in my view, the same constitutional conclusion should not be drawn with respect to the other arrangements established by the Knesset In Chapter 4' to the law.  My position is that there is no reason to cancel all the arrangements relating to the accommodation center, but only the arrangement that establishes the obligation to report three times a day, so that the obligation to report will apply only twice a day: in the morning and in the evening, but not in the afternoon.  Everything as will be detailed now.

Section 30A of the Prevention of Infiltration Law - Custody

6. I will begin the discussion with the question of the constitutionality of the arrangement that allows the placement of infiltrators in custody for a period of a maximum of one year (Section 30A to the Prevention of Infiltration Law). As noted, in the judgment in the previous petition, I concurred with the opinion that the arrangement by virtue of which a period of custody of a maximum of three years was enabled, contradicts the Basic Law: Human Dignity and Liberty.  In his opinion, my colleague Justice states Fogelman that even holding infiltrators in custody, for a period of no more than one year, constitutes a constitutional violation that does not meet the conditions of the limitation clause.  I cannot join this conclusion.  I concluded my opinion in the previous petition with the following:

"...  Our judgment, which determines the nullity of section 30A of the Law, is correct at the time, and in light of the existing circumstances.  A material change in circumstances would justify a judicial reconsideration of the matter, if the Knesset re-enacts a similar law.  Moreover, our judgment relates to a law that established a period of three years of custody.  Even in the current circumstances, there is no impediment, in my view, to enacting a new law that will allow custody for a period significantly shorter than three years." (ibid., paragraph 5 of my opinion [my emphases - A.C.])

7. From the data presented to us, it appears that after the judgment in the previous petition was rendered, there was no adverse change in circumstances in terms of the entry of new infiltrators into Israel. On the contrary, there seems to have been a change in circumstances for the better.  Thus, while in 2011 about 1,400 infiltrators entered Israel every month, in 2012 there was a change and the number of infiltrators began to decrease.  Subsequently, in the first four months of 2013, fewer than 10 people infiltrated into Israel each month (see paragraph 2 of my opinion in the previous petition).  In the reply affidavit on their behalf, respondents noted 2-5 In a High Court of Justice case 8425/13, represented by the State Attorney's Office (hereinafter – Respondents), because in all of 2013, only about 45 people entered Israel as infiltrators.  The respondents further emphasized that the number of infiltrators in 2013 reflects a decrease of about 99.5% (!) compared to the number of infiltrators who entered Israel in the previous year, which is 2012 (about 10,000 infiltrators).  Already in the judgment in the previous petition, I noted that it is not clear whether the sharp decline in the number of infiltrators should be attributed to the physical barrier that was erected on the Israel-Egypt border, or to a law that allows the detention of infiltrators.  I also noted, and some of my colleagues also referred to this, that it is possible that the trend of reducing the entry of infiltrators into Israel should be attributed to a certain combination of all the aforementioned factors, and even to other reasons.
8. Following the ruling in the previous petition, the legislative authority decided to establish a new arrangement, which also allows for the detention of infiltrators. We will briefly discuss the differences between Section 30A of the law in its previous version, which is the clause that was invalidated in the judgment in the previous petition (hereinafter – Previous Arrangement), and the new arrangement established by the Knesset in that section of the law (hereinafter – Today's Arrangement).  First, the maximum period of custody was reduced, as noted, from three years to one year.  In addition, in contrast to the previous arrangement, the current arrangement has prospective applicability, as expressly determined by the legislature (see section 15 of Amendment No. 4, which states that "provisions Section 30A of the main law, as drafted In the section 5 This law shall apply to an infiltrator who enters Israel after the commencement of this law.").  In other words, the provision regarding a one-year period of detention does not apply to infiltrators who have already been in Israel, but only to those who entered Israel after the date of the commencement of the amendment (which is the date of its publication in the Official Gazette – December 11, 2013).  Against the background of the very limited scope of the entry of infiltrators in recent times, it is clear that the applicability clause of Amendment No. 4 has dramatically reduced the number of infiltrators who can be held in custody under the new arrangement.  It must be remembered that Section 30A The law in the previous arrangement that was struck down by this Court was intended to apply to the entire population of infiltrators, including those who were in Israel on the day of the commencement of Amendment No. 3.  It should be noted that while in the previous arrangement it was determined that the Border Control Commissioner Permitted Release an infiltrator on bail if "three years have passed since the date the infiltrator's custody began" (Section 30A(III) to the law in its previous version), after all, today's arrangement uses language A must, and states that "the Border Control Commissioner shall release an infiltrator on bail if a year has passed since the date the infiltrator began to be held in custody."Section 30A(III) to the law in its current form; But see the exceptions that appear In the section 30A(IV) to the law).  In addition, the time periods for bringing an infiltrator before the Border Control Commissioner have been shortened.  According to the previous arrangement, the infiltrator was obligated to bring the infiltrator before the supervisor within seven days of the beginning of the detention.  In the current arrangement, the period was shortened to five days (see Section 30A(A) to the law in the previous version and in the current version).  The period during which the infiltrator must be brought before the court for a custody review of infiltrators was also shortened.  According to the previous arrangement, it was obligatory to bring him before the court within 14 days of the beginning of the custody (Section 30The(1)(A) to the previous arrangement).  According to the new arrangement, in its current version, the period was shortened to ten days (section 7 of Amendment No. 4).  It should be noted that in the previous arrangement it was determined that the case of the infiltrator in custody must be brought to the Custody Review Tribunal for periodic review every 60 days (Section 30IV(A)(1) in the previous version).  According to the current arrangement, it must be brought for periodic inspection every 30 days (section 6 of Amendment No. 4).  Hence, the Knesset has internalized, to a large extent, its obligation to adapt the legal arrangement to the constitutional requirements.
9. In any event, it is clear that the main change between the previous arrangement and the current arrangement is the shortening of the upper threshold of custody from a period of three years to one year, as well as the prospective application of the new arrangement. It should be noted that the additional changes mentioned also reduced the extent of harm to the infiltrators.  However, it seems that there is no need at this stage to delve into all the new arrangements that have been set out in the fence Section 30A In its current version, in order to reach the obvious conclusion that the new arrangement also violates the constitutional right to liberty that is enshrined in In the section 5 30Basic Law: Human Dignity and Liberty.  This, if only because of the very authority to hold infiltrators in custody.  It is clear that the very fact that a person is physically in custody violates the constitutional right to liberty (for a review of the way in which the right to liberty has been interpreted in Israeli case law, see Aharon The Brilliance of Human Dignity - The constitutional right and its daughters Volume 1 343-344 (2013)).  In my view, this conclusion is necessitated by the broad way in which the constitutional right to liberty should be interpreted, due to its importance and centrality in itself, and as a means of promoting other rights (see, The Stanger Matter, paragraph 28 and the references Name).  When we found that even the new arrangement In the section 30A The Prevention of Infiltration Law violates the constitutional right to liberty, and it is necessary to examine whether it meets the conditions of the limitation clause.
10. The Fixed Limitation Clause In the section 8 30Basic Law: Human Dignity and Liberty, conditions the validity of a constitutional infringement on its compliance with four cumulative conditions: the infringement is by law or by virtue of an explicit authorization thereof; The law is in line with the values of the State of Israel; The law is intended for a proper purpose; and the violation of the constitutional right does not exceed what is required (the conditions of proportionality). I agree with my colleague the judge Fogelman Because the first two conditions are met in the case before us, namely, that it is a violation of the "law" and that the offending law is appropriate for the values of the State of Israel.  I also agree with my colleague that the law is intended for a proper purpose.  It should be noted, in this context, that in their reply, the respondents emphasized that the new amendment, with regard to the possibility of custody, is intended to achieve two objectives.  The first goal is to enable the authorities to act to identify the infiltrator and formulate "exit channels" for him from the country.  The second goal, according to the respondents, is to prevent the recurrence of the phenomenon of infiltrators, in other words, to serve as a deterrent tool for potential infiltrators.  I agree with my colleague's position, that the first objective is appropriate (paragraph 51 of his opinion).  As for the second goal – to prevent the recurrence of the phenomenon of infiltrators – my colleague refrained from expressing a firm position (paragraph 52 of his opinion).  On my own, I am prepared to assume that even the goal of deterring potential infiltrators may be a worthy purpose, although I accept that there is no need to decide on the issue.  In any event, my position on the issue of the purpose of keeping the infiltrators in custody was summarized in my opinion in the previous petition, and what I said there is also relevant to the present petition:

"I am prepared to accept that there are quite a few advantages in holding infiltrators in the custody of infiltrators.  Thus, when the time comes, and when it is possible to deport them from Israel, the authorities will be able to do so more easily. As long as they are in custody, they do not compete in the labor market with Israeli workers; They are not able to commit offenses that harm the citizens and residents of Israel, etc.  I am even prepared to go so far as to assume that the achievement of deterrence of potential infiltrators is also a worthy goal in certain circumstances, and additional advantages can be pointed out" (ibid., paragraph 4 of my opinion).

11. As to the conditions of proportionality: my colleague Justice Fogelman is willing to assume that the new arrangement passes the first two subtests of the conditions of proportionality: the existence of a rational connection between the goal and the means chosen to achieve it; and the test that examines whether the measure infringes the constitutional right in the least way. I accept that the new amendment passes both of the aforementioned tests (and see also my words in my opinion in the previous petition, paragraph 3).  The dispute between me and my colleague is whether Section 30A The law, in its new version, meets the third subtest of the conditions of proportionality, also known as the "narrow proportionality test".  As part of this test, the court is tasked with examining whether there is a "proper relationship" between the benefit that the law brings to the constitutional violation.  Contrary to my colleague's position, I do not believe that this question should be answered in the negative.  In my view, the law's infringement of the constitutional right to liberty is significantly less than the harm to which the original arrangement was led, which was annulled in the judgment in the previous petition.  Therefore, in view of the significant shortening of the period of custody from three years to one year, and in view of the scope of the legislative maneuver given to the legislature, I do not believe that there is room to order the cancellation of the Section 30A to the Anti-Infiltration Law.
12. As is well known, in the framework of constitutional review, considerable weight is given to the legislature's room for maneuver. It should be noted that the principle on the subject of the scope of maneuvering has been given various names in case law and legal literature, including the "proportionality domain", the "harm domain", the "limitation zone", the "consideration area", and more (see, Appeal Petition/Administrative Claim 4436/02 Ninety Balls - Restaurant, Friends Club v. Haifa Municipality, Piskei Din Noach(3) 782, 812 (2004) (hereinafter – The Ninety Balls Matter)).  The rule is that within the scope of maneuver, the legislature may choose the means it seeks to take in order to achieve the goals, provided that they are proportionate (see, for example, the The Ninety Balls, at pp. 812-813; High Court of Justice 8276/05 Adalah - The Legal Center for Minority Rights in Israel v. Minister of Defense, Piskei Din 62(1) 1, 37 (President (Ret.) A. Barak) (2006); High Court of Justice 10662/04 Hassan v. National Insurance Institute, [Posted inNevo] Paragraph 58 of the President's Opinion D. Beinisch (28.2.2012) (hereinafter – The Hassan case)).  And for example, the court conducting constitutional review does not assume, Necessarily, that the legislature has one and only legal (and constitutional) option to realize the purpose underlying the legislation, and that it must choose it, and only it.  The judicial review used by us assumes that in a large number of cases the legislature has at its disposal a variety of tools and means to realize the proper goal that it has chosen to promote.  Indeed, proportionality recognizes, by its very nature, the spaces of legislative discretion (for the approach according to which the discretion of the legislature is gradually reduced as the process of constitutional review progresses, see Aharon Lightning Proportionality in Law - The Violation of the Constitutional Right and its Limitations 508 (hereinafter – Barak, Proportionality in Law)).  Therefore, if the choice of the legislature, which was expressed in a certain provision of the law, does not deviate from the scope of maneuver, the court must respect the choice of the legislature.  In this regard, the President's words are appropriate D. Beinisch In a High Court of Justice case 2605/05 Academic Center for Law and Business v. Minister of Finance, Piskei Din 66(2) 545, 623 (2009) (hereinafter: The Prison Privatization Affair):

"When there are various options that may meet the requirement of proportionality, the legislature is given a legislative room for maneuver, which we call the 'proportionality complex,' within which the legislature is entitled to choose the option it deems appropriate.  The boundaries of the area of maneuver that is given to the legislature in a concrete case are determined by the court in accordance with the nature of the interests and rights at hand.  The court will intervene in the legislature's decision only when the means chosen by it significantly exceeds the boundaries of the legislative maneuver scope given to it and is clearly disproportionate."  [emphases added – A.C.]).