We see, therefore, that the Border Control Commissioner may limit the period of stay at the center "until a later date to be determined", and not necessarily until the date of the infiltrator's deportation from Israel or until his departure from Israel. And it should be done, even when the supervisor does not set a timer In advance The period of stay ("until a later date to be determined"), it is clear that it is possible to contact him after the beginning of the stay, with a request that he allocate the period. If the Commissioner refuses to do so, his decision is subject to judicial review. Therefore, the absence of specific grounds for release in the law does not imply that it is not possible to limit the period of stay at the center.
- The second reason What justifies, in my view, the conclusion that the arrangement for the present time passes the conditions of the limitation clause, is the fact that we are dealing with an arrangement that was established as a temporary provision that is valid for three years. The rule is that the court must exercise increased judicial restraint when it is required to examine the constitutionality of a temporary order. "After all, a 'permanent' law is not the same as a 'temporary' law in terms of the constitutionality of a law" (Matter Gaza Coast Regional Council, at p. 553; And see matter Adalah at p. 450 (Vice-President (ret.) M. Cheshin)). The court's intervention in a temporary order is more far-reaching than intervention in "regular" legislation of the Knesset (see, Mordechai Kremnitzer and Yael Cohen-Rimmer, "The Cumulative Effect of Proportionality: A New Layer in Israeli Constitutional Examination") The Israel Democracy Institute http://www.idi.org.il/BreakingNews/Pages/191.aspx (hereinafter – Kremnitzer and Cohen-Rimmer)). It should not be inferred, of course, from what I have said, that limiting the validity of a law, as a temporary provision, should "immunize" the law from judicial review. However, it has already been held in the case law of this court that "... There may be cases in which the court will decide, on the basis of considerations of judicial policy, to take into account the 'temporary' nature of a 'temporary' law as a reason for its proportionality, and on this basis it may assume – Without a ruling - that the law stands more than the scrutiny of constitutional review" (emphasis in original, A.C.)High Court of Justice 24/01 Ressler v. Knesset of Israel, Piskei Din 66(2) 699, 713-714 (the judge) A. Matza) (2002) and the References Name).
- As I have noted, the cancellation of the obligation to report in the afternoon hours, together with the fact that we are dealing with a temporary order that is valid for three years, constitute two cumulative data that justify refraining, at the present time, to determine that the arrangement does not pass the conditions of the limitation clause. I will clarify that according to my approach, the existing arrangement, even After Canceling the obligation to report at noon is an arrangement Extremely borderline With regard to his compliance with the conditions of the limitation clause, with regard to the period of three years. Therefore, I am prepared to go so far as to determine that in the circumstances Sustainability, an infiltrator cannot be kept in the detention center beyond a period of three years. This is in accordance with the established arrangements Today In Chapter 4' to the law (for example, regarding the absence of grounds for release), and even assuming that there is no obligation to report for the registration of attendance during the afternoon hours. Certainly, the aforesaid will have implications if the possibility of extending the temporary order is considered, in the absence of a negative change in the circumstances. For these reasons, I am of the opinion that the arrangement that was made In Chapter 4', as a three-year temporary order, succeeds For the time being. The examiners of the limitation clause, with regard to the length of the period of stay at the center.
- In his opinion, my colleague further refers to the arrangements that were established In Chapter 4' With regard to the possibility of transferring to custody an infiltrator who is staying in the detention center, or an infiltrator who is not staying in the detention center and who has not acted to renew a temporary permit to visit Israel. My colleague discussed these arrangements at length in his opinion (paragraphs 165-167 of his opinion). Ultimately, my colleague focuses on the format of judicial review of the decision to transfer an infiltrator to custody. As may be recalled, the authority authorized to order a transfer to custody is the Border Control Officer. The Commissioner may order a transfer to custody if he finds that an infiltrator residing in the center has committed a disciplinary offense among those specified in the law. Section 3220(A) The law establishes a series of grounds by virtue of which the border control officer may order the transfer of an infiltrator to custody. This is for periods to be determined by the Commissioner in the order, and subject to the time periods defined by the legislature In the section 3220(II) to the law. The maximum period of time is one year, but only for certain grounds, and only after transfer orders have already been issued for the concrete infiltrator for that reason.
- My colleague the judge Fogelman Holds that Bone The possibility granted to an administrative authority to order the transfer to the custody of an infiltrator residing in the center violates the constitutional right to liberty (paragraph 168 of his opinion). My colleague further states that the arrangement regarding transfer to custody also violates the constitutional right to dignity, due to its infringement of the "daughter's right" to a fair trial. In this context, my colleague focuses on the fact that the decision to transfer to custody is made by an administrative body – the person in charge of border control – and not by a judicial body. My colleague further states that there is a difficulty in the fact that there is no process of "proactive judicial review" of the decision of the Border Control Commissioner to transfer a person to custody from the detention center. My colleague further clarifies that the absence of proactive judicial review leads to a disproportionate violation of the right to a fair trial, as a subsidiary right of the right to human dignity. Therefore, my colleague refrained from examining the terms of the limitation clause in relation to the infringement of the right to liberty deriving from the very granting of the power to an administrative authority, to order the transfer of a person to custody (paragraph 184 of his opinion).
- As stated, with regard to judicial review of Bone The decision concerning transfer to custody, my colleague states that the law does not prescribe any specific arrangement of judicial review initiated, and it seems that this is the main difficulty that my colleague finds in the arrangements reviewed above. According to him, the only way to obtain the Director-General's decision is through the general arrangement that allows the filing of an administrative petition against the decision of an authority by virtue of the Prevention of Infiltration Law (see, Section 5(1) Detail 12(8) For the first addendum toAdministrative Courts Law, 5760-2000). However, my opinion is that a careful reading of the sections of the law leads to the conclusion that there is also a "proactive" judicial review of the decision to transfer to custody. Therefore, no constitutional problem arises relating to the absence of judicial review. In order to clarify my conclusion, there is no choice but to focus on a number of provisions of the law set forth in Amendment No. 4.
- The first important provision of the law for our matter is the one that was established In the section 3220(VIII) to the law. This provision states as follows [emphasis added - A.C.]:
"(VIII) Provisions of Sections 30B to 30F shall apply to a person who has been transferred to custody under this section, with the necessary changes and in this change: in section 30e(1)(a), instead of 'not later than ten days' shall be read no later than seven days."'''