Vice President M. Naor:
I agree with the opinion of my colleague, the judge A. Fogelman. In my opinion, too, there is no choice but to cancel the Section 30A and Chapter 4', which were passed within the framework of the Prevention of Infiltration Law (Amendment No. 4), 5774-2013 (hereinafter: The Law).
- Section 30A of the law authorizes the Commissioner of Border Control, inter alia, to hold infiltrators in custody for a maximum period of one year. In this regard, I accept the position of my colleague Justice Vogelman, according to which the examination of the arrangement set out in section 30A is not limited to the question of the maximum period of time for custody that is considered constitutional. The constitutionality of this arrangement also depends on the question of whether it is permissible to hold custody of a person in whose case there is no effective deportation proceeding. This was our position in the High Court of Justice case 7146/12 Adam v. Knesset [published in Nevo] (September 16, 2013) (hereinafter: the Adam case), in which the constitutionality of the arrangement before us, in its previous version, was discussed. My colleague Justice A. Arbel insisted there that the possession of custody cannot be arbitrary, and that it should have a purpose, such as promoting the deportation proceedings of the detainee from the country. My colleague also noted the great difficulty inherent in custody whose main purpose is deterrence, and expressed doubt as to whether this purpose is appropriate (ibid., paragraphs 90-93; and see also there, paragraphs 17-19 of the judgment of my colleague Justice A. Vogelman). My colleague Justice A. Vogelman also noted in the Adam case that the power to detain persons illegally does not continue to exist if there is no effective removal proceeding (ibid., paragraphs 33-37). Like my colleagues, I noted in the Adam case that a deep-rooted principle in our case law is that "... A person cannot be detained if he cannot be deported within a certain time" and that "... The validity of an arrest by virtue of a deportation order does not cease to exist if there is no effective removal proceeding" (ibid., para. 2; see also: High Court of Justice 4702/94 Al-Tay v. Minister of the Interior, IsrSC 49(3) 843, 848 (1995)). Against this background, our conclusion was that the provisions of section 30A in their previous version are unconstitutional.
- Although the current fixed period is significantly shorter, the arrangement set out in section 30A of the Law in its current version suffers from the same flaw as the law in its previous version. As my colleague Justice Vogelman noted, there is a gap between the provisions of the arrangement set forth in section 30A of the Law and the declared purpose of detention – identifying the infiltrator and formulating avenues for leaving the country with respect to him (and see the details in paragraphs 54-55 of his opinion). The arrangement in its current version allows for a person to be held in custody for a year, even if he is not removable. Possession of custody, whatever its length, cannot be without a legitimate purpose. General deterrence in itself is not a legitimate purpose – even if its application is prospective. Infringement of liberty by way of detention can serve as a short-term solution for identifying the infiltrator, for clarifying his status and, if necessary, for exhausting effective procedures for his deportation (if any). In view of all of the above, custody for a maximum period of one year does not pass the tests of proportionality (in this context, see the arrangements accepted in various countries around the world in this area, as detailed in paragraphs 73-77 of the opinion of my colleague Justice A. Fogelman; also compare to the arrangement set forth in sections 30a(b)(5) and 30a(b)(6) of the Law, which allows the Commissioner to release on bail an infiltrator who has not begun processing his application for a visa within 3 months. or a decision was not made on his application for a visa within 6 months).
- My conclusion is that the arrangement set forth in section 30A of the law is unconstitutional. The significance of this determination is that section 30A of the law should be invalidated , despite the fact that only a year ago this court invalidated a previous amendment to the relevant law. This result is necessary, in view of the constitutional flaws in the law. As my colleague Justice Vogelman noted (in paragraph 212 of his opinion): "We did not do so willingly; We did it by virtue of our duty." There is a constitutional dialogue between the legislative branch and the judiciary: the Knesset enacts a law that in its opinion conforms to constitutional tests; The court passes the law under the baton of constitutional review. Sometimes, after the examination, the court reaches the conclusion that the law or part of it is unconstitutional. The dialogue is not limited to this: if necessary, the Knesset re-legislates (see: Aharon Barak, Judge in a Democratic Society, 383-384 (2004)). However, after the court finds that a piece of legislation is unconstitutional, the legislature must not re-enact it without any change, or with a change that does not resolve the contradiction with the Basic Laws, which the court pointed to; Such legislation "violates the Basic Laws themselves" (ibid., p. 388). In the law that is now under consideration, the Knesset did not correct the defect that we pointed out to it. Therefore, with all the dissatisfaction with the invalidation of a part of the law again within a short period of time, I see no choice but to cancel this arrangement as well, which suffers from the same flaw as the previous arrangement.
- As for Chapter D of the Law, which deals with the establishment of a residential center: this is an arrangement that did not exist in the previous law. My colleagues President Grunis and Justice A. Vogelman agree that section 32H of the law, which establishes the obligation to report to the center of the stay, disproportionately violates the constitutional right to liberty, and is therefore unconstitutional. I agree with this assertion. The disagreement between my colleagues is the question of whether the entire chapter of 4 should be canceled , or only the provision that establishes the obligation to appear. In this dispute, my opinion is the same as that of my colleague Justice A. Vogelman. In addition to the obligation to report, there are other major constitutional flaws that go to the root of chapter 4 of the law: the first flaw is the indefinite period of time – which can reach three years (which is the validity of the temporary provision under which chapter 4 was enacted) – during which an infiltrator can be held in a detention center. The other flaw is the absence of grounds for release from the detention center. I agree with my colleague Justice A. Vogelman that in the absence of arrangements regarding the limitation of the length of stay in the center and release from it, chapter 4 is unconstitutional. This is sufficient for me to join his position, according to which the cancellation of the entire chapter of chapter 4 should be ordered. In view of this position, there is no need for me to enter into a dispute among my colleagues regarding the existence of judicial review initiated by the decision to transfer an infiltrator from the detention center to detention, or the absence thereof; This is an issue that is in any case on the margins of the amendment to the Law, and which, in my opinion, does not have any bearing on the outcome of the petitions before us.
- I would like to expand a little on the matter of the second petition that was placed before us, which is the petition of the residents of South Tel Aviv (High Court of Justice 7385/13). Residents of south Tel Aviv pointed to the difficulties resulting from the settlement of a significant part of the infiltrators in this area. The responses of the state and the Knesset do not provide a solution to these difficulties. Amendment No. 4 to the law, which we would not even intervene in, does not provide a cure for the residents of south Tel Aviv, given that its actual application, at this time, is only about 3,000 infiltrators. The result we reached in the first petition (High Court of Justice 8425/13) does make it unnecessary to discuss the petition of the residents of south Tel Aviv on the subject of the amendment to the law. However, it is important to note that the state is required to protect the security and rights of the residents of south Tel Aviv, and that this protection often requires creative solutions. As I mentioned in the matter of Adam:
"The state is facing a reality of life – which is forced upon it like a tub – which it must deal with. This coping poses difficulties, which are accompanied by challenges. These challenges require creative solutions" (ibid., paragraph 5 of my judgment).