As a result, there are countries where infiltrators are handled by immigration services or other bodies. At the same time, however, in many countries, the care and supervision of the infiltration population is entrusted to the Prison Service. This is the case in the United States, Canada, Denmark, New Zealand, and Ireland (above, Global Detention Project). Thus, it cannot be said that the Israeli legislature's choice to operate the open detention center by the Israel Prison Service is unusual and extreme compared to the practice in Western countries. I will add that even on the merits of the matter, I am not convinced that there is a real difficulty in this from a constitutional point of view, in comparison to the alternatives. It should be emphasized that no majority opinion has ruled out the mechanism of accommodation facilities in a sweeping manner from a constitutional standpoint, and this mechanism has passed the purpose test and other tests – with the exception of the third subtest of proportionality.
It should be noted that judicial review is concerned with examining the constitutional realm and not the realm of reasonableness. This does not mean that the former is necessarily wider than the latter. After all, the constitutional duty is to prevent the infringement of basic rights. But there is no single constitutional answer to many questions. I would even emphasize that the higher the normative level of the right that was violated, the narrower the constitutional scope. And vice versa. The relevance of our case is that the legitimate constitutional period for holding a person in a detention center must be longer than the period during which a person can be held in custody. To be precise: the period of three years, according to the Temporary Order, is the longest period. As time passes, the maximum period is shortened accordingly.
The Comparative Law Regarding the Detention of Infiltrators
- I discussed at length above the spectrum of approaches in various Western countries, with regard to the issue of the treatment of infiltrators. A more general question arises: What is the contribution of comparative law to constitutional review in general, and to constitutional review in our case in particular?
Sometimes the comparison can help develop directions of thought, raise questions, and present various solutions. Of course, the comparison does not require automatic acceptance of the positions of the comparative law. A "Made in Israel" constitutional legal approach must be developed, one that is rooted in the Israeli experience in all its forms. However, this may be an important tool. This is certainly when we are dealing with a comparison of constitutional methods that operate from similar basic values.