It should be noted that in case law we can find various statements from which we can learn that not every deviation from the scope of maneuver will justify the intervention of the court, but only a deviation Evident or Significant or Clear or when the measure chosen by the legislature is disproportionate Clearly (See, for example, Civil Appeal 6821/93 United Mizrahi Bank in Tax Appeal v. Migdal Kfar Cooperative, IsrSC 49(4) 221, 438 (The President) A. Barak) (1995) (hereinafter – The United Mizrahi Bank case); High Court of Justice 1661/05 Gaza Coast Regional Council v. Knesset of Israel, IsrSC 59(2) 481, 693 (2005) (hereinafter – The issue of the Gaza Coast Regional Council); Criminal Appeal 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, 375 (2008) (hereinafter – Parashat The Law on the Imprisonment of Unlawful Combatants); Parashat Privatization of Prisons, Name; Interest Hassan, paragraph 58). It should be noted, however, that in the legal literature an opinion was expressed according to which All A deviation from the room for maneuver, and not just a significant or significant deviation, justifies, in principle, a constitutional remedy (see, Barak - Proportionality in Law, at pp. 507-508). However, it seems that this position does not reflect the prevailing law (for a review of the differences between the two approaches, see Guy). Davidov "Constitutional Criticism in Matters of the Budgetary implications" The Attorney Matt 345, 364-366 (2008) (hereinafter - Davidov)). It may even be possible to reconcile the different approaches. It seems that it is difficult to accept that in any case of constitutional examination, the scope or room for maneuver of the legislature will be the same. It would seem that in this matter there is great importance to the essence and nature of a particular constitutional right and even to the nature of the constitutional infringement. In other words, the scope changes in view of the relevant constitutional right and the violation thereof (see also, The Ninety Balls, at p. 813).
- It is also important to note that when we are dealing with judicial review of primary legislation of the Knesset, the recognition of the legislative maneuvering space is a clear expression of the principle of separation of powers (see United Mizrahi Bank, at p. 438). The principle of separation of powers is one of the cornerstones of the Israeli system of government (see, High Court of Justice 4491/13 The Academic Center for Law and Business v. Government of Israel, [Posted inNevo] paragraph 15 of my opinion (July 2, 2014); Aaron Barak is a judge in a democratic society 104-103 (2004)). The legislature's room for maneuver therefore draws the "boundaries of the sector" of the court, within the framework of the principle of separation of powers, when it comes to examining the constitutionality of primary legislation of the Knesset. Let us reiterate that declaring a law null and void is a very serious matter, and it is not easy for the court to do so (High Court of Justice 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51(4) 367, 386 (1997)). Therefore, the court must respect the discretion given to the legislature. As long as the legislature's choice does not deviate from the scope of maneuver given to it, the court is not supposed to intervene in the Knesset's primary legislation. Indeed, the recognition of the maneuvering space is intended, first and foremost, to give expression to the fact that the legislature has at its disposal a variety of means and tools to realize the purpose underlying the law. At the same time, however, the principle of room for maneuvering is intended to give expression to the restraint and judicial caution that the court is obligated to exercise when conducting judicial review of primary legislation of the Knesset. The President insisted on this A. Barak In the matter United Mizrahi Bank:
"The question that the judge should ask himself is not what law properly balances the needs of the public and the individual that the judge would legislate if he were a member of the House of Representatives. The question that the judge must ask himself is whether the chosen balance falls within the scope of the limitation limitation. The court must examine the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective, and justified. The question is whether the law is constitutional..." (United Mizrahi Bank, at p. 438 [emphasis added - A.C.]).
- Indeed, "... If they have applied the constitutional tests set forth in the Limitation Clause on Knesset legislation, the court will act with judicial restraint, caution and restraint."High Court of Justice 4769/95 Menachem v. Minister of Transportation, Piskei Din 57(1) 235, 263 (2003) (hereinafter – Parashat MenachemOtherwise, the court may replace its discretion with the discretion of the legislature (High Court of Justice 1213/10 Nir v. Speaker of the Knesset, [Posted inNevo] Paragraph 27 (The President D. Beinisch) (23.2.2012)). It seems, therefore, that the legislature's room for maneuvering is ultimately derived from this judicial caution (the Gaza Coast Regional Council, at p. 553). It should be noted that the constitutional maneuvering space that we use when examining the conditions of proportionality is customarily compared to the realm of reasonableness customary in the field of administrative law. This is because, even within the realm of reasonableness, the court recognizes that the choice between a number of reasonable options is left to the governmental authority and not to the court (see, Barak - Proportionality in Law, p. 509). However, it is worth remembering that there are important differences between the cause of proportionality and the reason for reasonableness (see, High Court of Justice 5853/07 Emunah - National Religious Women's Movement v. Prime Minister, [Posted inNevo] Paragraph 9 of my opinion (December 6, 2007); Davidov, at p. 364). In any event, it is clear that the repeal of a law due to its unconstitutionality is not the same as the revocation of an administrative provision or a sub-regulation due to its illegality. It should be remembered that "in the repeal of a law due to its unconstitutionality, we are interested in the repeal of any piece of legislation Enacted by a body elected by the people" (Interest Gaza Coast Regional Council, Name; [Emphasis added - A.C.]).
- My colleague the judge Fogelman believes that holding infiltrators in custody for a period of no more than one year entails a disproportionate violation of constitutional rights. Examination of the opinion of my colleague Justice Fogelman, raises the following inevitable question: What is the period of custody which, according to my colleague, meets the conditions of proportionality? My colleague does not provide an answer to this question, although it can be understood from his words that the arrangements established in other countries are preferable to the arrangements established by the Knesset. Indeed, from the words of my colleague we can learn that the legislature may, in principle, establish a legal arrangement that allows the detention of infiltrators in custody, but for a period of time that is shorter than a year. However, it is difficult to understand from my colleague's words what is the maximum period of detention, which, according to him, meets the conditions of proportionality, and what are the exact limits of the legislative maneuvering space given to the legislature on the issue that is the focus of the proceedings at hand. I assume that even according to my colleague's approach, the legislature has some room for maneuver. It is clear that there is an inherent difficulty in answering the question of how long the period will stand the test. That is why even in the previous petition they did not give her an accurate answer. I will mention that in the judgment given in the previous petition, I noted that "... There is no impediment, in my view, to enacting a new law that will allow custody for a period of time Significantly shorter period than three years" (Name, paragraph 5 of my opinion; Emphasis added – A.C.). I deliberately avoided giving an exact figure, because if I had done so, I would have put myself in the shoes of the legislator. This is not my job as a judge.
- In the present case, special consideration must be given to the fact that this is a constitutional question of a "quantitative" nature. That is, in contrast to cases in which Its very existence of a particular arrangement subject to judicial review (for example, the arrangement that was the focus of the Privatization of Prisons), in his case, no. The very fact of being held in custody It is the one that is subject to constitutional review, but Length of Custody Period. In other words, the precise constitutional question in this case is whether the specific balancing point chosen by the legislature, on top of the spectrum of possibilities before it, meets the condition Basic Law: Human Dignity and Liberty. It should be noted that a famous case in which a constitutional question of a similar nature was on the agenda was the case that became clear In a High Court of Justice case 6055/95 Zemach v. Minister of Defense, IsrSC 35(5) 241 (1999) (hereinafter – Plant Matter). In this case, the court discussed the constitutionality of the arrangement that determined the maximum length of a soldier's detention by a judicial officer (96 hours; the arrangement was invalidated by the court). It should be noted that the court did not address the matter Plant To the principle of room for maneuver. In other cases as well, the court chose to ignore the room for maneuvering (see Davidov, at p. 368, note 97). My opinion is that it is not advisable to ignore this important principle. In any event, a review of other cases that have been clarified in case law can reveal the difficulty facing the court, when it is required to meet the third subtest of proportionality, and when we are dealing with a constitutional issue of a "quantitative" nature. Thus, for example, in the case of Menachem, the question of the proportionality of a particular provision inThe Traffic Ordinance [New version], which was conditional on receiving a license to operate a taxi on the payment of a fee of NIS 185,000. The court answered this question in the affirmative, but did not ignore the difficulty inherent in a constitutional examination based on "... On an assessment of uncertainty, [...] [e] involves predictions and professional considerations that are not always within the court's area of expertise."Name, at p. 263). In another case (in which regulations and not primary legislation were attacked) the question arose as to whether an addition of NIS 150 to the amount of a certain fee maintains a reasonable relationship between the benefit and the damage, within the scope of the proportionality test in the "narrow" sense. The justices who discussed the aforementioned proceeding were not unanimous on the aforementioned issue (see, High Court of Justice 2651/09 Association for Civil Rights in Israel v. Minister of the Interior, [Posted inNevo] Paragraphs 20-25 of the opinion of my colleague Justice Y. Danziger; Paragraphs 22-27 of my colleague Judge's opinion M. Naor (15.6.2011)).
- In my opinion, when the court is required to apply the third subtest of the conditions of proportionality, i.e., the question of the reasonable relationship between the benefit and the violation of the constitutional right, and it does so with regard to a constitutional question that is "quantitative" in nature, similar to the examples cited above, it must give considerable weight to the space of maneuver given to the legislature. This is mainly due to another factor that must be taken into account, which may affect the scope of legislative maneuvering: the fear of a judicial error (see and compare, my opinion on the matter). Adalah, at pp. 517-518; See also Davidov, at pp. 369-370). This concern is significantly heightened when we are dealing with a constitutional question of a quantitative nature. Certainly, it should not be inferred from my words that the scope of the maneuver must be stretched beyond what is necessary, to the point of taking control of the constitutional decision. This Court rightly noted that the due diligence required during judicial review of Knesset legislation "must not lead to stalemate" (Case: Gaza Coast Regional Council, at p. 553). However, it has already been said that "the scope of [the maneuver zone] is not fixed, of course, but depends on context and circumstances. There will be cases in which the scope will be relatively wide, and on the other hand, there will be cases in which this space will be very limited, or even not exist at all." The Ninety Balls, at p. 813; See also paragraph 12 above). My position is that when we are dealing with a constitutional issue that is of a "quantitative" nature, there is an increased obligation to take into account the scope of maneuver given to the legislature to determine the measure or rate (whether it is a matter of length of time, an amount or any other matter of a quantitative nature).
- In the circumstances of the case before us, of course, the intensity of the violation of the constitutional right to personal liberty should not be ignored. The harm is not simple. The new arrangement allows for the detention of infiltrators for a period of up to one year, and in the most exceptional cases, the period can even be extended. Placing every person in custody, in a closed detention facility from which it is not possible to enter and leave freely, constitutes a significant violation of the "hard core" of the constitutional right to liberty. It should be noted that in view of this conclusion, I do not see the need to address the question of whether the new arrangement even violates the right to dignity. However, on the other hand, it must be remembered that the infringement of the constitutional right to liberty in the new arrangement is less than the infringement that was inherent in the previous arrangement. This applies both to the period of time during which an infiltrator can be held in custody and to the applicability of the new amendment. We must also remember that the legislative purpose of removing illegal infiltrators from Israel is important and essential. This purpose allows the state to examine and exhaust the various avenues for the exit of infiltrators from Israel. In examining the extent of the law's usefulness, one must take into account the principle of sovereignty, which grants the state broad discretion to determine the policy of immigration and settlement in it, with all that this entails. Against the background of all this, and especially in view of the limited application of the current arrangement, as well as the shortening of the period of time during which an infiltrator can be held in custody, I have come to the conclusion that the legislature's decision does not deviate from the scope of legislative maneuvering given to it. I will reiterate that in the previous petition I noted that there is no impediment, in my view, to enacting a new law that will permit custody "for a period significantly shorter than three years." The legislature did indeed significantly shorten the period (to a period of one year) and established arrangements that minimize the constitutional violation of the right to liberty. The fabric of arrangements established by the legislature in the new amendment significantly reduced the infringement of the constitutional right. Therefore, in examining the degree of the relationship between the benefit achieved by the law and the violation of the constitutional right, I have reached the conclusion that the decision reached by the legislature falls within the scope of maneuver. We must respect this decision and not interfere in it.
- In his opinion, my colleague Justice Fogelman to the arrangements established in overseas countries regarding the detention of infiltrators. My colleague's in-depth review shows that in most countries of the Western world, shorter periods of time than a year have been set during which infiltrators can be held in custody. However, my colleague's review also shows that there are countries (Australia, Greece, Malta, and Italy) in which stricter arrangements have been established than those established in Israel. On this matter, I concur with the position of my colleague, the judge Y. Amit, which rightly pointed out the basic differences between the special challenges that Israel faces in the field of immigration, and those faced by most of the other countries mentioned in the review brought by my colleague Justice Fogelman (See, paragraph 15 of the opinion of my colleague Justice Associate). Suffice it to mention that Israel is the only Western country in the world that actually has a significant land border with the African continent (via the Sinai Peninsula). In addition, it should be remembered that for various reasons, including geopolitical and political reasons, the possibility of any person leaving Israel for one of the countries bordering it is limited. As a result, the exit options for infiltrators who have entered Israel are extremely limited. Obviously, the situation is completely different for most European countries.
- I will conclude with the following: It may be desirable for the legislature to establish a period of custody that is shorter than a year. It will even be argued that the period of detention with a maximum length of six months, similar to many countries in the Western world, is the maximum amount of time appropriate for the custody of infiltrators. My opinion is that against the background of all that has been said above, the choice between a period of custody of six months and one year clearly falls within the legislature's maneuverability, and it is certainly not a significant deviation. Therefore, there is no room for the court's intervention in the legislative arrangement established by the Knesset. The determination of this court that one period of possession is preferable to another, when both periods fall within the scope of the legislature's maneuvering, is tantamount to the court's entry into the legislature's shoes. The judge rightly noted Beinisch In Parashat Menachem (p. 280) that:
"...The requirement that the legislature must choose a measure that violates the constitutional right to an extent that does not exceed what is required in order to achieve the purpose of the law does not mean that the legislature must always adhere to the lowest level at the bottom of the ladder. Such a determination would be too difficult for the legislature, who would not be able to penetrate through the barrier of judicial review..." [Emphasis added – 1:3].