It seems, then, that the dispute The Real Among my friends My opinion does not in fact relate to the question of the very existence of proactive judicial review, but rather to an interpretive issue that concerns the scope of the powers of the court that exercises initiated judicial review. As stated, the provision relevant to our matter is the one that was determined In the section 30IV(A) to the law, which authorizes the court to "approve the detention of an infiltrator in custody..." My colleague does not dispute that this provision applies in two scenarios: The first scenario It is when we are dealing with a person who infiltrated into Israel after the entry into force of Amendment No. 4, and was transferred to custody immediately after his entry into Israel, for a period not exceeding one year, by virtue of Section 30A to the law (subject to exceptions set forth in the law). The second scenario relevant when it comes to a person who has been transferred to custody by virtue of a supervisor's decision under Section 3220 to the law.
- From the words of my colleague the judge Fogelman In the addendum to his opinion, it appears that in both cases, the tribunal is authorized to examine only if one of the grounds set forth in the law, which allows release on humanitarian grounds. However, my opinion is that the court is entitled to examine In both scenarios, even if there is a defect Actually the reason For which the infiltrator was transferred to custody. As noted, in the first scenario, the question is whether the whole grounds for placement in custody are met, i.e., whether the person brought into custody is an "infiltrator" (Claims of this kind have indeed been raised in the past; See and compare, AAA 4326/13 Halhalo v. Ministry of the Interior, [Posted inNevo] Paragraph 3 (July 9, 2013)). If the court finds that the person in custody is indeed not an "infiltrator" within the meaning of the law, is he entitled to Not to approve Keeping him in custody? In my view, this question should also be answered in the affirmative. This is if we take into account the clear instruction of the Section 30IV(A)(1) to the law. The same is true with regard to the second scenario, which deals with a transfer to custody by virtue of Section 3220 to the law. My opinion is that even in such a case, the court is authorized To examine whether the entire grounds for which the infiltrator was transferred, in the first place, to custody were met. Thus, for example, let's assume that a resident of the detention center was transferred to custody after the supervisor reached the conclusion that the reason that the detainee "caused bodily injury" existed (Section 3220(A)(4) to the law). The detainee who has been transferred to custody is brought before the court In a "proactive manner"" no later than seven days after his transfer to custody (Section 3220(VIII) to the law). In a case such as this, the detainee may, in my opinion, claim that the cause of transfer did not exist at all, in the first place, i.e., that the supervisor erred in determining that he "caused injury to the body". If the court finds to accept this argument, it is certainly entitled not to approve his continued custody. This is clearly evident From Section 30IV(A)(1) to the law.
- In view of the above, it is not in my opinion correct to interpret the Section 30IV(A) to law in a restrictive manner, The Prevention The court must find out whether the grounds for which a person can be transferred to custody in the first place existed. I will add that my colleague's interpretive conclusion is inconsistent with the clear language of the law. Section 30IV(A)(1) The law states that the court may "approve the detention of the infiltrator in custody, And if he approves as aforesaid, It will be determined that the case of the infiltrator will be brought before him for further examination..." [Emphasis added – 1:3]. The use of the phrase "And if he approves as aforesaid..." teaches us that the legislature believed that the court may also Not to approve The custody of the detainee. I will mention that Section 30IV(A)(2) The law enshrines the court's authority to release a person from custody if one of the humanitarian grounds is met. Hence, the authority to "not approve" the detention does not relate solely to humanitarian grounds for release. It seems that there is a difference that is not purely semantic between a decision on Release On behalf of a humanitarian cause, and a resolution Not to approve Custody. If my colleague's approach is correct, according to which the court may order release from custody only on humanitarian grounds, by virtue of Section 30IV(A)(2) In the law, the question arises as to why the legislature was not satisfied with this provision, and why did it grant the court the authority given to it In the section 30IV(A)(1) The law, to approve or not to approve the infiltrator's detention. According to my colleague's approach, this provision has no meaning. I will add that contrary to the words of my colleague, my interpretation of the relevant provisions of the law regarding proactive judicial review is consistent with the position presented by the State before this Court, and in this context I have no choice but to refer to the State's argument quoted in paragraph 40 of my opinion.
- In any event, and here in fact the main thing, even with regard to the question of the existence of judicial review initiated and the scope of the Tribunal's powers, my colleague Justice chooses Fogelman To give a certain and restrictive interpretation to the provisions of the Law, and in light of that interpretation, he comes to the conclusion that the provisions are unconstitutional. However, there is another, more expansive interpretive option. In view of this interpretation, which is acceptable to me, and in view of the presumption of constitutionality (see paragraph 52 above), there is no need to reach a constitutional examination. It is not clear why my colleague prefers the narrow interpretation in this state of affairs. Why make use of unconventional weapons – the repeal of a provision of the law – when it is possible to use conventional weapons – an interpretation of the law – and in fact reach the same result in this way?!
- I will add, before concluding, that with regard to my opinion, my colleague maintains that the absence of a delimitation of the duration of the stay at the detention center and the absence of grounds for release from the detention center are sufficient to lead to the conclusion that a declaration of nullity should be declared null and void Chapter 4' All of it. As for myself, I find it difficult to reconcile these words with what my colleague wrote in his opinion, in which he reiterated that Accumulation The problematic aspects of the law are what justify the repeal Chapter 4' (See in this context paragraphs 100 and 194 of my colleague's opinion). My colleague also addressed, in this context, issues that He was willing to assume that they in themselves stand the test of judicial review. This refers to a discussion held by my colleague regarding the entrustment of the management of the detention center to the Israel Prison Service (which, in my colleague's view, only "intensifies" the violation of the rights of the infiltrators, as stated in paragraphs 138 and 146 of his opinion). Therefore, it can certainly be said that my colleague in this case uses the doctrine of "cumulative effect", and goes far beyond the manner in which it was applied in case law. In the end, my colleague reiterates that There is nothing wrong in principle with the very establishment of a residence center (Paragraph 97 of his opinion). It is difficult for me to bridge the gap between this position of my colleague and the sweeping constitutional remedy proposed by him: the nullity of Chapter 4' to the entire law.
- Finally: If my opinion had been heard, we would have determined as detailed in paragraph 48 above.
The President