In the previous petition, I was one of the majority justices who believed that the sweeping cancellation of the Section 30A to the law. However, Section 30A In its version at the time, he allowed a period of custody of three years. Now, it allows Section 30A The law has a retention period of one year. In my view, the period of custody of three years fails the constitutional tests, whether it is an infiltrator for whom there is difficulty in deporting, or an infiltrator for whom there is no such difficulty. The situation is different regarding the period of דוברOne year holding.
- I will add that from the words of my colleague the judge Fogelman With regard to my opinion, it appears that the current law, insofar as it is a matter of custody for a period of one year, was invalid in its eyes even if it was during the period of דוברHolding for a few weeks or even a few days. His approach suggests that the entire period of possession is liable to be found to be unconstitutional – all depending on the question of the existence of an effective removal proceeding in the case of the detainee. In my colleague's view, as it emerges from the addendum to his opinion, no custody of "a person whose removal is not expected" should not be allowed. This firm position is inconsistent with various statements made by my colleague, from which it was possible to learn, even if implicitly, that a period of custody shorter than a year could have passed the constitutional test (see especially paragraphs 78 and 79 of his opinion). This is despite the difficulty inherent in the lack of an expectation that the infiltrators who arrived in Israel will be removed from countries that have a non-deportation policy. Moreover, my colleague presented an overview of the arrangements established in other countries. As my colleague emphasized, these arrangements also concern Length Custody Period of illegal aliens that they cannot be removed for reasons that are not related to them (Paragraph 72 of my colleague's opinion, my emphasis - A.C.). For example, I will turn once again to American law (and this is what my colleague Justice wrote Fogelman With regard to the law he applied there, in paragraph 74 of his opinion: "... In the absence of reasons to the contrary, illegal aliens should be released from custody after Six months If it is unlikely that the deportation order issued in their case will be implemented in the near future" [emphasis in original – A.C.]). We see, therefore, that from my colleague's review, it appears that in various countries, infiltrators can be kept in custody, for one period or another, even if there is no effective deportation procedure for them (see also my colleague's review v. Hendel in paragraph 7 of his opinion in the previous petition). The question arises, therefore, as to why my colleague presented this "quantitative" and comparative review, even though it is now possible to learn from his words that there is no room for instruction Rule About custody?!
My colleague notes that it is possible that in the future a quantitative question will arise regarding the maximum length of detention in the custody of infiltrators. However, I was not persuaded by his words that it does not arise In the present petition A constitutional question of a "quantitative" nature. Various statements by my colleagues and the majority justices show that the quantitative aspect played a role in the constitutional decision in the proceedings at hand (see, for example, the words of my colleague Justice (ret.) A. Arbel in paragraphs 4 and 6 of her opinion). As I noted in my opinion, the "quantitative" nature of the constitutional question must affect the scope of the room for maneuver that should be left in the hands of the legislature.
- I also read the words written by my colleague the judge Fogelman In response to my position regarding Chapter 4' to the law concerning the establishment of a detention center for infiltrators. I would like to address two points that arise from my colleague's remarks. First, my colleague bases his constitutional conclusion also on the fact that the law does not establish grounds for release from the detention center. In my opinion I noted (paragraph 32) that by virtue of the Section 3224(A) According to the law, the Border Control Commissioner may limit the period of stay at the center. Therefore, it is clear that it is not correct to say that there is no possibility of leaving the residence center after entering it. In any event, my opinion is that the fact that the law does not specify specific grounds for release can teach – with an expansive interpretation To the section 3224(A) The law – that the legislature did not limit the discretion of the Commissioner to limit the period of an infiltrator's stay in the detention center, meaning that the Commissioner was given broad discretion in this context to consider all the considerations necessary in the matter. In other words, it is precisely the determination of specific grounds for release in the law, a solution that my colleague determines is more appropriate than the one chosen by the legislature, that might have limited the discretion of the Commissioner with regard to the limitation of the period of stay at the center for an infiltrator or a group of infiltrators who were transferred to the center under similar circumstances. Indeed, my colleague is correct in his determination that the time limit is not required by the provisions of the law. However, the allocation Possible, and it is explicitly enshrined in the provisions of the law. In addition, it is clear that the discretion of the Commissioner is also subject to judicial review. In its rulings, as part of the exercise of judicial review, the court could have outlined the various considerations that the Commissioner must consider when limiting the period of stay. Instead of choosing this reasonable interpretive solution, my fellow majority justices choose to repeal the law in its entirety.
- In addition to his opinion, my colleague Justice adds Fogelman and relates to the question of the existence of a "proactive judicial review" of a decision by the Commissioner regarding the transfer to custody by virtue of Section 3220 to the law. In my opinion, the interpretive issue that teaches about the existence of proactive judicial review does not arouse special complexity, and therefore I have addressed the issue In Short In my opinion. I will mention that in his opinion my colleague said that According to him, There is no judicial review initiated at all On the decision to transfer to custody by virtue of Section 3220 of the law (see paragraphs 182 and 184 of his opinion). However, as I noted in my opinion, in my opinion there is proactive judicial review of a decision made by virtue of Section 3220 to the law. Indeed, the existence of proactive judicial review is also clearly evident from the explanatory notes To the section 30IV to the law (enacted in Amendment No. 3 and not repealed in the previous petition) [my emphases – A.C.]:
"... In the matter that comes before the court, an infiltrator will be brought in for judicial review... This proactive judicial review is intended to ensure that an audit is conducted regarding the detention of a person who has not applied to the court or the court on his own initiative..." (Explanatory notes to thePrevention of Infiltration (Offenses and Jurisdiction) Bill (Amendment No. 3 and Temporary Order), 5771-2011, H.H. 577, at p. 599).