Proportionality in Proportionality – Both in Audit and Remedy
- Ultimately, the majority opinion in this case is that the disqualification of Chapter D of the Law (Open Residence Center) should be ordered. This follows the accumulation of constitutional flaws in a number of sections in this chapter, first and foremost the obligation to report for registration three times a day; the management of the detention center by the Israel Prison Service; not limiting the length of time spent at the center; and the lack of proactive judicial review of the transfer of an infiltrator from the center to custody. In addition, the invalidation of section 30A of the Law (Custody of Custody) should be ordered.
In my view, the position of the majority justices is possible as a solution Legislative. However, in my opinion, it is not free from difficulties as a result of constitutional judicial review. Thus, for example, in the presentation of the third subtest of proportionality, my colleague Justice Vogelman gave weight to the doubts that arose in the first two subtests of proportionality. I am of the opinion that such an approach is liable to blur the proper distinction between the stages of constitutional analysis. However, this is not the main point. I would like to point out my reservations regarding four more central aspects of the approach of the majority justices: the tradition of the judiciary; operative lack of clarity regarding future legislation; the proportionality of the remedy; and the need for an interpretation that upholds the law.
- First, the rule is that this court is reluctant to annul laws. This reluctance does not stem from the fact that the court does not show responsibility; The opposite is true. Balanced constitutional review is intended to maintain the delicate relationship between the court and the Knesset and the government. The aspiration is to the extent possible not to order the nullification of laws. This is the tradition that has been formed in this court in recent years, even after the "Basic Laws Revolution." It deserves to be preserved. This is especially true in the present case: it cannot be ignored that this is a law that is coming to this court a second time.
This brings me to the next point. It seems to me that part of the difficulty stems from the fact that there is a certain lack of clarity in the position of my colleagues, both on the matter Adam and in this judgment. As mentioned, the two things that are at the center are custody and the open detention center. As for custody, there was room to direct the legislature more clearly. Is custody completely invalid in any situation? Is the debate really "quantitative," as the president defines it? The current judgment ostensibly came to clarify the matter, but it seems to me that the embarrassment has only grown. The same applies to the open facility. If the duration of the detention in the facility is limited in time, and the number of dates for registration is reduced, will this be sufficient from the constitutional point of view, according to the approach of my colleagues who hold the majority opinion? Unfortunately, the result, even of this judgment, is not sharp enough in my opinion, and I am afraid that it may lead to the continuation of the legal-constitutional skirmish. The difficulty is even more acute since this is the second time that the law has been invalidated, after many efforts have been made to meet constitutional standards.