Post-Graduation Notes
- After I distributed my opinion, I was presented with the opinions of the majority justices who support the position of my colleague the judge Fogelman, as well as the other words written by my colleague the judge Fogelman With regard to what was stated in my opinion. As my colleague Justice points out Fogelman, our opinions differed on a number of key points. I think it is obligatory to relate to the additional words of my colleague as well as to some of the words of my colleagues and my colleagues the majority justices.
- With regard to my opinion, my colleague Justice clarifies Fogelman Because the disqualification of Section 30A The law is justified because there is no place to hold a person in custody if there is no effective deportation proceeding in his case (according to him, "it is not permissible to order custody of a person whose removal is not expected, and all the more so for a long period of one year"). It seems that my colleague is referring to infiltrators entering Israel from countries to which Israel applies the "non-deportation" policy (namely Eritrea and the Republic of Sudan). I do not ignore the reasons that underlie this principled approach of my colleagues. However, in my opinion, there is a fundamental difficulty in the way in which my colleagues relied on the data relating to the number of infiltrators to whom the policy of non-deportation applies. My colleague the judge Fogelman Notes, in this context, that "[]in the case of most of the infiltrators, in any case, there cannot be an effective deportation proceeding at this time..." My Fellow Judge A. Hayut further states that the infiltrators to whom Israel applies the policy of non-deportation constitute "the majority of the population of infiltrators in Israel..." (Paragraph 1 of its opinion). However, in referring to these data, my colleagues ignore the fact that Amendment No. 4 is not intended to apply to Rule The population of infiltrators already in Israel, but only those who entered and will enter Israel after the entry into force of Amendment No. 4. As may be recalled, contrary to the arrangement set out in Amendment No. 3, Section 30A The law in its current form Applied Prospectively, that is, only for those who entered Israel as an infiltrator After the entry into force of Amendment No. 4. In other words, the arrangement In the section 30A The law does not apply to anyone who resided in Israel on the eve of the entry into force of Amendment No. 4. As noted, the total number of infiltrators who have entered Israel since the entry into force of Amendment No. 4 is minimal compared to the number of infiltrators in previous years. It is unclear how many of the infiltrators who have entered Israel since the entry into force of Amendment No. 4 are from Eritrea or the Republic of Sudan, i.e., from countries to which the non-deportation policy is applied. This is in stark contrast to the data before the court in the previous petition, which examined Amendment No. 3, which was intended to apply to the entire population of infiltrators. At that stage, the court had a clear factual basis from which it could be learned that the vast majority of the infiltrators to whom the arrangement would apply were infiltrators who were difficult to remove due to the policy of non-deportation. Now, when we examine the constitutionality of Amendment No. 4, we do not have such data before us. Therefore, I do not agree with my colleague Justice (ret.) A. Arbel, noting that "determinations regarding the proportionality of the arrangements are made against the background of The data before us[My emphasis – A.C.]. Before the Court Not standing Data regarding the distribution of infiltrators to whom Amendment No. 4 will apply and to whom Israel applies the policy of non-deportation.
- Indeed, it is quite possible that the new arrangement will also trap infiltrators from countries to which Israel applies the policy of non-deportation. Is it because of this hypothesis, when before this court not There is a factual statistic.Indicates the distribution of the "new" infiltrators by country of origin, justified Repeal primary legislation of the Knesset and order the cancellation right now Section 30A To the entire law? My opinion is that this question should be answered in the negative. All this, while in the background we know with certainty that in recent times there has been a dramatic change in the scope of the entry of infiltrators into Israel, and that since the entry into force of Amendment No. 4, very few infiltrators have entered Israel compared to the past. All this, when we have no basis to assume that the distribution of infiltrators (by country of origin) who will enter Israel in the future will be identical to the distribution of infiltrators who entered Israel (by country of origin) prior to the entry into force of Amendment No. 4. My colleagues and fellow majority justices are not dealing with this difficulty.
- Even if I were willing to assume that the distribution of infiltrators who entered and will enter after Amendment No. 4 (by country of origin) will be identical or similar to that before the amendment came into force, this still does not justify the cancellation of the Section 30A to the law, and I will explain. Indeed, about 90% of all the infiltrators currently residing in Israel are from countries that have a non-deportation policy: the Republic of Sudan and Eritrea. But what about the remaining 10% who did not come to Israel from these countries? Why is it justified to cancel the provision for them as well? Section 30A To the law? Why can't we (even if we follow in the footsteps of my friends) Interpreting the Law In a manner that requires, on the one hand, the release of the infiltrators for whom the non-deportation policy applies, but allows, on the other hand, the detention of the infiltrators for whom the non-deportation policy is irrelevant and for whom an effective deportation procedure is underway? My friends do not answer these questions. In fact, at the basis of the aforementioned questions is a basic question of principle: why do my colleagues choose not to give in to the instructions of theLaw of Interpretation reasonable, which excludes infiltrators who cannot be excluded from the application of Section 30A, under the drastic move of canceling primary legislation of the Knesset? After all, a long-standing and deep-rooted halakha with us is that The court must make every legitimate interpretive effort to give Instruction Law of Interpretation reasonable, under its constitutional disqualification. This, in essence, is the presumption of constitutionality on which the judge M. Cheshin In these words: