(3) to order a change in the conditions of bail determined under section 30a(e), as well as to forfeit bail due to a breach of one of the conditions of release on bail."
I will mention again that by virtue of Section 3220(VIII) The law, has been applied Section 32IV(A) to the law quoted above, with the necessary modifications, Even a decision to transfer an infiltrator from the detention center to custody, due to the reasons listed In the section 32K(A) Law.
- My opinion is that the Section 30IV(A) The law authorizes the court to exercise full judicial review of a decision made by virtue of the Section 3220 By law, transfer to custody of a resident in the center of the stay. Section 30IV(A) states that the court may "Confirm the infiltrator's custody..." [My emphasis is A.C.]. It is clear that with regard to the scope of the Tribunal's powers, when it comes to examining whether there is "Confirm the infiltrator's custody", the court may examine whether there was a flaw, of any kind, in the decision of the Border Control Commissioner to transfer a detainee to the detention center. By saying a defect of any kind, I mean, of course, also the question of whether one of the grounds by virtue of which the Commissioner decided to transfer the detainee in the center to custody was indeed met. In my opinion, this is the obvious interpretation of Section 30IV(A), when it is applied, with the necessary modifications, to the permanent arrangement In the section 3220 to the law. It must be added that the judicial review conducted by the Tribunal is a judicial review initiated for all intents and purposes. The legislature explicitly determined that an infiltrator who was transferred to custody, by virtue of a decision of the Commissioner of Border Control, according to Section 3220 to the law, shall be brought before the court no later than seven days from the date of the commencement of his custody (See the following sections: Section 3220(VIII) and section 30(The)(1)(A) To the Prevention of Infiltration Law and section 1314(A) 30The Entry into Israel Law). This is not a legal proceeding that the infiltrator who has been transferred to custody is required to initiate himself. The proceeding takes place automatically, shortly after the transfer to custody, and by virtue of the explicit provisions of the law established by the legislature. It should also be noted that Section 30IV(A)(1) The law further clarifies that if the court approves the infiltrator's custody, it must determine "... that the infiltrator's case will be brought before him for further examination if the conditions he set are met or within a period of time that will not exceed 30 days." We see, therefore, that the legislature did not suffice with proactive judicial review immediately after the decision to transfer to custody. The legislature further demanded that there be periodic judicial review, at least every 30 days, as long as the infiltrator is in custody, all without the infiltrator initiating a proceeding in the matter. On top of that, Section 30and(A) The law further states that the decision of the Custody Review Tribunal of Infiltrators "is subject to appeal before the Court for Administrative Affairs." In other words, the legislature also regulated the manner in which the decision of the tribunal can be appealed.
- The aforementioned provisions of the law lead to the unequivocal interpretive conclusion that the legislature has established a mechanism of proactive judicial review of a commissioner's decision, according to Section 3220 The law requires the transfer of a resident to the detention center. Therefore, I do not agree with the words of my colleague Justice Fogelmanin paragraph 167 of his opinion, that "the very decision to order the transfer of an infiltrator to custody is therefore not subject to judicial review initiated by any judicial or quasi-judicial body, except for the grounds for release listed In the section 30A(II) to the law." Indeed, it seems that my interpretive position is also the declared position of the respondents, who noted in paragraph 247 of their reply that "... Any decision by the Border Control Officer regarding the transfer of a resident from the detention center to custody is subject to the review of the Infiltrators Detention Control Tribunal, in accordance with the relevant provisions set forth in Chapter C." For all these reasons, I do not believe that there is any problem of "lack of procedural judicial review" or "lack of procedural guarantees" regarding a decision to transfer to custody by virtue of Section 3220 to the law. This is in view of the fact that the legislature established a statutory mechanism of judicial review initiated by the Tribunal, by virtue of the arrangements that were established In the section 30III-30and law, which were applied "with the necessary changes" to a decision made under the Section 3220 to the law. The existence of a judicial review initiated in the framework of which the Tribunal may "Confirm the detention of the infiltrator", provides a response to the difficulties pointed out by my colleague the judge Fogelman In his opinion. In view of this conclusion, there is no need to address the burdensome question raised by my colleague, which relates to the scope of the right to a fair trial, as a derivative of the constitutional right to human dignity, and in more detail the question of whether the absence of "initiated" judicial review of a decision by an administrative body, which violates a person's liberty, may justify the annulment of primary legislation of the legislative branch. Indeed, since the legislature established in our case an arrangement of judicial review initiated by the legislature on a decision to transfer to custody in accordance with the רוניתSection 3220 The law does not need to address this complex matter, the answer to which is not self-evident (see, for example, the discussion in Prof. Yitzhak's book Nightingale Administrative authority, Volume 1 - Public Administration 278-280 (2nd edition, 2010)).
Before Conclusion
- The discussion so far shows that there is room, in my opinion, for the granting of constitutional relief only with respect to the obligation to report in the afternoon. My colleague the judge Fogelman In his remarks, he clarified that the arrangements he discussed in his opinion in relation to Chapter 4' The law "does not exhaust all aspects of this chapter that give rise to constitutional difficulties" (paragraph 183 of his opinion). I do not know what other arrangements my colleague is referring to in these words. Suffice it to note that the constitutional petition is pending for our decision (High Court of Justice 8425/13) was drafted in a comprehensive manner, with general reference to the provisions of the Chapter 4' to the law. The petitioners sought, in effect, to order the cancellation of the Chapter 4' All of this, against the background of their claim that the mere stay of an infiltrator in a detention center is unconstitutional. The respondents rightly noted in their response to the aforementioned petition, in relation to it, that "this petition is not directed at attacking an individual provision, one kind or another, In Chapter 4' to the Anti-Infiltration Law. It is directed to the complete cancellation of this chapter" (paragraph 176 of the respondents' response). I will mention that my colleague Justice Fogelman He clarified, both in the previous petition and in the present proceeding, that as far as he was concerned, there was no problem in principle with the very existence of an open or semi-open accommodation center for infiltrators. Indeed, I do not rule out the possibility, without expressing any position, that there are constitutional difficulties in the various individual arrangements that have been established In Chapter 4' of the law, which was not reviewed by my colleague in his opinion. I will clarify that even if there is a constitutional difficulty in a particular provision of the law, it is still necessary to ask whether it is appropriate to order its repeal. However, in relation to the individual arrangements that were established In Chapter 4' to the law, Not reviewed by my colleagues, we have not been presented with a sufficient legal and factual basis in order to be able to conduct an individual constitutional review in the framework of the current hearing. In this context, we must remember that the presumption of constitutionality that is customary with us obligates the court to assume that a law of the Knesset is not intended to violate constitutional principles (see: High Court of Justice 3434/96 Hoffnung v. Speaker of the Knesset, Piskei Din N(3) 57, 67-68 (1996) (hereinafter – The Hofnung Matter); Interest Plant, at pp. 267-269).
- Given these conclusions, I do not believe that it is appropriate to order the sweeping cancellation of the Chapter 4' to the Prevention of Infiltration Law, as my colleague proposes. In the opinion of my colleague, the judge Fogelman, "[]not only that some of the arrangements of the Chapter 4' are disproportionate to the law, but rather the accumulation of unconstitutional aspects in this chapter stains the entire arrangement, and makes it disproportionate" (paragraph 187 of his opinion). However, unlike my colleague, I find a flaw that justifies constitutional remedy only in the provision that obligates those staying at the stay center to report to the stay center three times a day (Section 32VIII(A) to the law). Therefore, this court can order a moderate constitutional remedy, which nullifies only this provision. I do not ignore the fact that in the previous petition we ordered, in a majority opinion, a cancellation Section 30A to the entire law (in its previous version). The arrangement that was set at the time In the section 30A The law allowed, as may be recalled, the detention of infiltrators for a period not exceeding three years. In the previous petition, we ordered the cancellation of the Section 30A In its entirety, although we found problems mainly in the arrangement that stipulates that the border control officer may release an infiltrator on bail if three years have passed since the beginning of his detention (Section 30A(III)(3) to the law in its previous version). However, as my colleague pointed out, the judge A. Arbel, in her opinion in the previous petition (paragraph 116):
"The revocation of the provision of section 30a(c)(3) will create a vacuum that the court is unable to fill, and this matter is within the scope of the Knesset... The court cannot put itself in the shoes of the legislature and determine a different arrangement in place of the one that was canceled, and the case in question is certainly not appropriate for this. Any determination will entail a variety of consequences that the court has no tools to examine. Moreover, the significance of the cancellation of the said section is broad. The arrangement enacted in the amendment to the Prevention of Infiltration Law depends almost entirely on the determination that an infiltrator can be held in custody for up to three years. Other periods prescribed by law depend on this period. Thus, for example, it would be absurd to determine that an infiltrator cannot be held for three years, but there are grounds for his release after nine months have passed since the infiltrator submitted a request for recognition as a refugee. The periods of judicial review were also determined in view of the length of time an infiltrator could be held in custody. As for the other provisions, they are already in the existing arrangement in the Entry into Israel Law. This means, therefore, that it is not possible to separate the parts of the amendment to the Prevention of Infiltration Law when its main provision is null and void."
- In our case, on the other hand, it is also possible to order the cancellation of the provision requiring every infiltrator who is in the center of the stay to report even at noon to register his presence, without creating a void that the court is unable to fill. In our case, it is possible to cancel the obligation to appear as aforesaid (Section 32VIII(A) to the law), without this leading to consequences that the court has no tools to examine. In our case, the arrangement that was enacted regarding the residence center does not depend entirely on the determination that the occupants of the residence are obligated to report for three attendance records per day (Section 32VIII(A) to the law). Indeed, it cannot be said that the different parts of the Chapter 4' to the Prevention of Infiltration Law, insofar as my position is accepted that there is a constitutional flaw but in the obligation to report for three attendance records per day (Section 32VIII(A) to the law). I will add, more than necessary, and without exhausting the issue, that my colleague's position is that it is possible to order a cancellation Chapter 4' All of this, due to the "accumulation" of unconstitutional aspects of his approach inherent in the concrete provisions that were established In Chapter 4' The law raises serious constitutional questions. In fact, my colleague's position seeks to learn about the existence of a "cumulative effect" of constitutional violations, which, according to his approach, justify the cancellation of the entire legal arrangement. This position is not without difficulties. Vedoku, 2Miscellaneous Criminal Applications 8823/07 Anonymous v. State of Israel, IsrSC 66(3) 500 (2010), the opinion was expressed that it is possible to order the cancellation of a provision of the law Certain, not only because it violates a protected constitutional right, but also because of the taking into account other legal arrangements that violate basic rights "in several aspects, or gradually" (Name, at p. 540 (Deputy President A. Rivlin), and see also my opinion Name, at pp. 573-576). However, in that case the doctrine was criticized (see mainly the words of my colleague, the judge). M. Naor, Name, at pp. 551-552; For a comprehensive review of the issue, see Zemer Blondheim and Nadiv Mordechai "Towards the Cumulative Effect Doctrine: Aggregation in Constitutional Judicial Review" Law Med 569 (2014); See also the criticism of Kremnitzer and Rimmer-Cohen). Suffice it to say, in this context, and without exhausting the issue, that there is an abysmal difference between the conclusion reached by this Court inMiscellaneous Criminal Applications 8823/07 and the result proposed by my colleague the judge Fogelman In the present case. While there at least some of the justices (including me) were of the opinion that the "cumulative effect" justifies the cancellation of a specific provision of the law (without canceling the other provisions that were found to be problematic due to the "cumulative effect" to which they contributed), in our case my colleague wishes to cancel the Chapter 4' All of it, due to the accumulation of concrete and specific harms that in his opinion are inherent within the arrangement itself. I do not agree with this position of my colleague which leads, in my view, to a far-reaching outcome. As stated, contrary to the previous petition, I do not believe that the cancellation of the arrangement that requires those staying at the center to report to the center three times a day, requires the cancellation of all Chapter 4' to the law.
- So far, we have discussed at length the pending constitutional petition (High Court of Justice 8425/13). However, we have before us another petition that was filed In a High Court of Justice case 7385/13 By the "Eitan - Israeli Immigration Policy" association and residents and property owners from south Tel Aviv. This petition was filed after the judgment in the previous petition was rendered, but before the enactment of Amendment No. 4. In the petition, the petitioners demanded that the relevant authorities take steps to deal with the phenomenon of infiltration. Following the enactment of Amendment No. 4, the petitioners relied on the position expressed by the respondents with respect to the constitutionality of Amendment No. 4. The plight of the residents of south Tel Aviv and the business owners there was, of course, at the forefront of my eyes when examining the usefulness of Amendment No. 4, in the framework of Israeli society's coping with the phenomenon of infiltrators. The Petitioners' Arguments In a High Court of Justice case 7385/13 constituted, to a certain extent, a response to some of the arguments raised in the constitutional petition. In any event, since I have reached the conclusion that there is no room for the court's intervention in the arrangements set out in Amendment No. 4, other than that relating to the obligation to appear for three attendance records per day, my opinion is that the petition In a High Court of Justice case 7385/13 She has exhausted herself and is doomed to be rejected.
Conclusion
- The decision on the constitutional petition before us is not simple. In the background of the decision, we must remember that only a year ago, the court intervened in primary legislation that sought to provide a solution to the phenomenon of infiltration. In the previous petition, the court canceled the legislative arrangement that allowed infiltrators to be held in custody for a period of no more than three years. As a rule, it can be said that in Amendment No. 4 to the Law, the Knesset internalized most of the comments of the court that heard the previous petition. Indeed, Amendment No. 4 is still not without difficulties. Therefore, I, too, have reached the conclusion that the provision requiring those staying at the center to report for attendance even in the afternoon should be declared null and void. However, we must not ignore the many positive changes made by the Knesset in Amendment No. 4, which we discussed at length. The court's intervention in Amendment No. 3 led to a new and better legislative arrangement. We must remember that the period of custody in Amendment No. 4 was significantly shortened from three years to one year. The new amendment excluded the vast majority of infiltrators currently in Israel from the application of the arrangement that allows custody (due to its prospective applicability). The nature of the residence center (according to Chapter 4' of the law) is completely different from the nature of custody (according to Section 30A to the law). This, among other things, was canceled after the obligation to report for registration at noon.
- The conclusion of my colleague, the judge Fogelman, which holds that a sweeping repeal of Amendment No. 4 should be ordered, is far-reaching. I can't agree to it. In this case, the court must take double and double caution, since it cannot be ignored that only a year ago we intervened in the "previous incarnation" of the law that was intended to deal with the phenomenon of infiltrators. Clearly, this background should not prevent the court from conducting a proper constitutional review of the new amendment. However, it certainly has weight with regard to the degree of judicial restraint. The court must also give weight to the scope of maneuver given to the legislature, especially when we are dealing with legislation of a quantitative nature. Insofar as it is an arrangement that allows an infiltrator to be held in custody for a period of one year (Section 30A to the law), after all, my opinion is that there is no reason for this Court to intervene in the arrangement established by the Knesset. As far as we are concerned, the detention center for infiltrators (Chapter 4' to the law), I was not persuaded by the words of my colleague, the judge Fogelman, that there was a defect that justifies a constitutional remedy in any of the arrangements that were established In Chapter 4' to the law. This is in addition to the arrangement that establishes the obligation to report for three attendance records per day (Section 32VIII(A) to the law). As I have noted, the other arrangements on which my colleague insisted do not, in my view, justify an additional constitutional remedy. My colleague himself refrained from stating that the infiltrators were constitutionally harmed by the fact that the detention center is run by members of the Israel Prison Service. My colleague discussed at length the harm inherent inherent in his view, in that Amendment No. 4 does not include proactive judicial review of a decision to transfer to custody. As I have shown, a careful reading of the provisions of the law shows that it establishes a mechanism for judicial review. I do not ignore the problem inherent in the fact that no specific grounds for release have been established for those in the detention center. However, it should be remembered that a decision ordering the transfer of an infiltrator to a detention center is subject to judicial review in any case based on his circumstances. I would like to remind you that the Border Control Commissioner may limit the period of stay at the center "until a later date to be determined" (Section 42IV(A) to the law). I will clarify once again that in my own view, there is no place in the existing circumstances to hold infiltrators in the detention center for a period exceeding three years.
- My colleague emphasizes in his opinion, as he noted in the previous petition, that he does not find any problem with the possibility in principle of establishing an open or semi-open accommodation center for infiltrators. In other words, it can be understood from his words that the establishment of an open, or semi-open, accommodation center is a legitimate tool in the toolbox of the legislative and executive branches for dealing with the phenomenon of infiltration. However, my colleague ultimately states that the Chapter 4' to the entire law, due to the "accumulation" of constitutional violations. I do not agree with this move, because not only are some of the injuries to which my colleague is referring not at all; It is highly doubtful whether it is appropriate to order a cancellation Chapter 4' All due to constitutional violations that can be resolved by way of constitutional remedy Moderate More. I am afraid that my colleague's approach does not give due weight to the principle that has been practiced with us since time immemorial, regarding increased judicial restraint when intervening in primary legislation of the Knesset. After all, as the judge said Y. Zamir In the matter The Center for Local Government (p. 496):
"Human dignity should not override respect for the law."
- Therefore, my opinion is that the petition should be dismissed In a High Court of Justice case 7385/13. As to the constitutional petition (High Court of Justice 8425/13), in my opinion, the order nisi should be made absolute, but in the sense that we declare the nullity of the Section 32VIII(A) The Prevention of Infiltration Law requires a resident of the Detention Center to report to the center "three times a day" on the dates set out in the regulations, regarding the obligation to report at noon.
In order to enable the Knesset to establish a new arrangement that meets the constitutional standards that I have adhered to, in relation to the hours of attendance, and if my opinion had been heard, I would suggest to my colleagues Suspend the declaration of constitutional nullity for 150 days. During the period of suspension of the aforementioned declaration of nullity, there is no reason, in my view, to obligate those staying at the center to report for attendance at noon. Therefore, and in order to enable the competent authorities to prepare for this, I would suggest to my colleagues and colleagues that Within 15 days from the date of this judgment, The attendance regulations at the center should be read as if they did not stipulate the obligation to report to the center "between 13:00 and 14:30" (Regulation 3(2) to the Attendance Regulations at the Center).