The cumulative reading of the facts
- Constitutional review is of great importance in all areas of law. In order for constitutional review to be well-founded and accurate, it is of utmost importance to recognize and present all the relevant facts. In the present case, which deals with the phenomenon of infiltration, the factual basis is unusual and unusual. Criticism must take this into account. Let me put it another way: My colleague, Justice A. Vogelman, elaborated on the significance of a cumulative reading of the sections of the law and the constitutional flaws that fell into it. In my opinion, no less important is the cumulative reading of the facts. My colleagues did mention these facts, but at the time of the constitutional review, they did not give sufficient weight to my view of their accumulation, as stated above.
I would even disagree, methodologically, with the approach that was presented regarding a cumulative reading of the sections of the law. According to this approach, if there is a constitutional defect – for example, signing three times a day in the open accommodation facility – additional defects add severity to the overall picture. However, my opinion is that this is not the way to examine a constitutional violation, but rather the opposite. Once the court has reached the conclusion that a certain provision should be revoked, then it is necessary to examine whether the remaining part reaches the level of a constitutional violation that requires repeal. I agree with the President's opinion that in the circumstances of the case, it is sufficient to cancel the requirement for the three signatures in order to Chapter 4 He will stand still. Even if it were determined, and not in my opinion, that there was room to limit the time spent in the facility, none of this would justify canceling all Chapter 4'. The remaining provisions are in their power to stand independently. If so, they should be left intact.
Change of circumstances
- Another point is the "surprising" success of the solution found by the state. In 2009, a significant increase in the scope of the phenomenon of infiltration began. From then until the end of 2011, about 37,000 infiltrators entered Israel – about half a percent of the population, at an increasing annual rate. The population of the infiltrators was not evenly distributed throughout the country. It focused on small areas of their territory, for example – but not only – the southern suburbs of Tel Aviv. The local residents were forced, against their will, to absorb many infiltrators in a relatively short period of time. This situation is completely different from the situation in Western countries, such as the United States and Germany.
In June 2012, large sections of the border fence between Israel and Egypt were completed, and at the same time, the implementation of Amendment No. 3 to the law (which was later invalidated In a High Court of Justice case Adam). Since then, there has been a steep decline in the number of infiltrators entering Israel. Thus, for example, in May-June 2014, not a single infiltrator entered the country (see at length paragraph 38 of Justice Vogelman's opinion, and paragraph 7 of the President's opinion).