These words are only given more force in the time that has elapsed since the judgment was rendered in the Adam case. Despite the repeal of Amendment No. 3, only 4 infiltrators entered the three months after the judgment was handed down in the Adam case. 19 came into force after Amendment No. 4 came into effect until June 2014 (see paragraph 38 of the judgment of my colleague, Justice Vogelman). Our eyes see that we are in fact very far from a situation in which it is necessary to change the point of balance in terms of the purposes of the arrangements or in examining their proportionality.
- My colleague, Justice Amit, rules that the deterrent arrangement that is set In the section 30A It is intended to prevent a situation in which masses of additional infiltrators will flock to our doors. In my opinion, we are in a state of great uncertainty as to the reasons for the drastic reduction in the number of infiltrators, and as to the future flow of infiltrators, given one means or another. Indeed, my colleague may be right in his hypothesis, but it is also possible that he is wrong. It is possible that the construction of the border fence with Egypt, along with the arrangement prohibiting the removal of infiltrators' property from Israel, and other normative changes taking place in countries around the world, will cause the trend of slowing the arrival of infiltrators to Israel will continue. As I have shown in the matter AdamEven then, it was not possible to give an unequivocal explanation for the decline in the arrival of the infiltrators, since the authorities simultaneously promoted two initiatives – both the construction of the fence and Amendment No. 3 (see Adam, paragraph 99 of my judgment). There is, therefore, great uncertainty on the question of the additional benefit obtained from the prescribed measures, in the absence of the possibility of knowing what the number of infiltrators would have been had it not been for the enactment of the Section 30A. At least, in the months when it does not apply Section 30A After its cancellation in the matter Adam, the flow of infiltrators to Israel was very small, as mentioned. There is even more uncertainty regarding the additional damage that would be caused if this harmful measure was not taken. In my opinion, in this state of uncertainty, in the circumstances of the issue before us, and in light of the severe violation of human rights, significant weight should be given to the uncertainty in the formula for balancing benefit and harm. This is especially true when the harm of giving reality an opportunity to prove which hypothesis is true is not great. The State of Israel will always be able to "fire a powerful cannon" (in the words of my colleague, Justice Amit) and take drastic measures if it sees that the influx of infiltrators is increasing.
- A final comment on this subject concerns the distinction made by my colleague, Justice Amit, between harming an existing infiltrator public and a potential infiltration public. I see no room for this distinction in the context at hand. The examples that my colleague cites from the fields of administrative and civil law do not help. The distinction between a certain public and a non-specific public may be relevant when a person has no acquired right or when his acquired right is not violated. This is the case with regard to the enforcement of an administrative promise addressed to an unspecified public and one addressed to a concrete person, and the same applies to the argument that tortious liability should not be imposed when we are dealing with a general duty of the authority towards the public, since then the assumption is that the individual does not have a civil right to relief (see Israel Gilad: "Liability in torts of authorities Public and Public Servants" (Part I) Law & Government II 339, 366 (1995)). This is different in our case from in the case of infringement of the basic rights of the individual and not in the interest of an unspecified public (see דוברHigh Court of Justice 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, Piskei Din 61(2) 202, paragraph 16 of the judgment of Justice (as he was then called) Rivlin (2006)). It is indisputable that the right to liberty and human dignity is also available to the infiltrator who will arrive in the State of Israel tomorrow. Therefore, in this matter, I see no reason to distinguish between a violation of the rights of current residents in the country, and an infringement of the rights of residents who will come to the country in the future. My colleague's argument is somewhat reminiscent of the rule of "there is no punishment unless we warn", but since we are not dealing with criminal law, it is not relevant in my opinion to the matter at hand.
As stated, I concur with the conclusion of my colleague, Justice Vogelman, that section 30A does not meet the conditions of the limitation clause and is null and void.