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Political Censorship: Some Reflections on its Validity in Israel's Constitutional Law

Published online by Cambridge University Press:  12 February 2016

Pnina Lahav
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Extract

On 19 January 1976, the Government of Israel announced its intention to impose censorship on two categories of information:

(1) Information about the existence or content of a document relating to Israel's foreign affairs which is classified “top secret” or similarly classified and which is addressed from Israel to a foreign country or from a foreign country to Israel.

(2) Information relating to a visit by an Israeli official to a foreign country or a visit by a foreign official to Israel, or a meeting between an Israeli and a foreign official—when no diplomatic relations obtain between Israel and that country and when the visit or meeting was not conducted in public nor officially announced in Israel.

This step was the Government's response to a series of leakages which appeared in the preceding weeks in the press in Israel. Two publicized items had particularly outraged the Government. One item discussed President Ford's secret message to Prime Minister Rabin. The other item disclosed a secret visit by Foreign Minister Allon to Europe.

Type
Articles
Information
Israel Law Review , Volume 11 , Issue 3 , July 1976 , pp. 339 - 347
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1976

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References

1 The term Government is used to describe Israel's Cabinet, i.e., the Executive Branch and not the traditional three branches of Government. See sec. 1, Basic Law: The Government, “The Government is the executive authority of the State”. (1968) 22 L.S.I. 257.Google Scholar

2 Ma'ariv, 19 January 1976, p. 3 (free translation by the author).

3 This message was subsequently returned to Mr. Ford and the story of its return was published by both Ma'ariv and Ha'aretz on 23 January 1976, p. 14.

4 Ha'aretz reported in the same article (see preceding note) that this information had been published in Yediot Aharonot. Other leaked items were in reporter M. Gollan's book detailing the Government's negotiations with United States Secretary of State, H. Kissinger: a secret visit of a Soviet delegation to Israel and a secret decision by top officials to close down an Arab newspaper published in East Jerusalem, id. According to the Minister of Justice, these leakages had already caused grevious harm to vital state interests. They hindered secret communications between Israel and both friendly heads of state and countries which do not maintain diplomatic relations with Israel. The Minister of Justice also explained that the Order was essential if future harm to vital state interests is to be prevented and that the Order was but one weapon in an all-out governmental effort to stop leakages. Ha'aretz, 22 January 1976 p. 4. It is also worthy of noting that some reporters speculated that the order was designed to handle a future Israeli diplomatic offensive, the premature disclosure of which may cause considerable internal opposition, Ma'ariv, 21 January 1976, p. 3; Ha'aretz, 20 January 1976, p. 1.

5 (1957) 11 L.S.I. 186 at 190. Sec. 23 entitled “Aggravated Espionage”, provides in subsection (a) that “a person who delivers any secret information without being authorized so to do is liable to imprisonment for a term of fifteen years”.

6 However, notice the defences available in criminal proceedings under sees. 4 and 23(e) of the Security Law (see preceding note).

7 Goren, D., Freedom of the Press and National Security (Jerusalem, 1975, in Hebrew) 151–153.Google Scholar

8 The Committee has 22 members, of whom at least 11 opposed the order. Ma'ariv, 21 January 1976, p. 1.

9 Ibid.

10 Blackstone, Commentaries, IV, 151.

11 For an extensive discussion of this doctrine see Emerson, T. I., “The Doctrine of Prior Restraint” (1955) 20 L. and Contemp. Prob. 648.CrossRefGoogle Scholar

12 Sec. 33(a) “An information under this Law shall not be filed except by the Attorney General or with his written consent”.

13 Supra n. 5.

14 Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871; Ulpanei Hasrata v. Levy Gerry (1962) (IV) 16 P.D. 2407; The State of Israel v. Ben-Moshe (1968) (II) 22 P.D. 427; Livneh v. Prison Authorities (1974) (II) 28 P.D. 686.

15 New York Times Co. v. United States, 403 U.S. 713. 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).

16 Supra n. 14. In that case the Court interpreted sec. 19 of the Press Ordinance, 1933, as obtaining only when there exists a high probability of danger to vital State interests. The section empowered the Minister of Interior to suspend the publication of a newspaper if any matter appearing in that newspaper is, in [his] … opinion … likely to endanger the public peace”.

17 ibid., at p. 885. But cf. Yitshaki v. Minister of Justice (1974) (II) 28 P.D. 692.

18 E.g., Ulpanei Hasrata v. Levy Gerry, supra n. 14; Avidan v. Levy Gerry (1974) (II) 28 P.D. 776, 770. Notice Berinson J.'s opinion that he favours censorship only for purposes of national security, public order and perhaps foreign affairs. Id. The usage of perhaps indicates uncertainty and likelihood that if censorship in foreign affairs is applied, it is to be applied quite narrowly.

19 R. 87 provides that the Censor may “by order prohibit generally or specifically publication of matters the publishing of which … is, or may be, or may become, prejudicial to the defence of Palestine or to the public safety or to public order”. For a discussion see Medzini, M., “Censorship Problems in Israel—the Legal Aspect” (1971) 6 Is. L.R. 309.Google Scholar

20 For a detailed discussion see Goren, Freedom of the Press and National Security, supra n. 7 at pp. 178–223.

21 Rubinstein, , Constitutional Law of the State of Israel (Schocken, Tel Aviv, 2nd ed., 1974, in Hebrew) 214–216Google Scholar and references there, but compare Carboutly v. Minister of Defence (1949) 2 P.D. 15 and Al-Kouri v. Chief of Staff (1950) 4 P.D. 34, 47 where the Supreme Court interpreted strictly, emergency regulation 111 providing for administrative detention.

22 The rule in Kol-Ha'am provides that when the interests of national security and freedom of expression are balanced, the latter principle should be preferred unless reality actually mandates giving preference to the former, supra n. 14, at p. 881.

23 In Kol-Ha'am, the Minister of Interior's broad power to suspend the publication of newspapers, cited supra n. 16, was considerably narrowed through the Court's ruling that only high probability of danger would warrant such suspension. But cf. El-Ard v. District Commissioner (1964) (II) 18 P.D. 340 where the Court declined to interfere with the Government's decision to deny a licence to an Arab newspaper pursuant to regulation 94 (2) of the Defence (Emergency) Regulations 1945.

24 (1948) 1 L.S.I. 7.

25 For a translation and discussion see Elman, , “Basic Law: The Government” (1969) 4 Is. L.R. 242.Google Scholar

26 E.g., Attorney General v. Ostreicher (1963) 17 P.D. 2088 and Rubinstein, supra n. 21 at pp. 378–379. But the issue is not yet clearly resolved, Rubinstein, ibid.

27 Supra n. 14.

28 The other two categories defined in sec. 28(a) are: “(3) any other class of matters whose secrecy the Government regards as vital to the State and which it has proclaimed, by order, for the purposes of this section; (4) a matter which the Government has decided to keep secret: Provided that the disclosure and publication of such a matter shall only be prohibited to a person who knew about the decision. Sec. 28(b) provides that “the provision of subsection (a) shall not apply to things whose publication has been permitted by the Government, the Prime Minister or a person empowered by it or him in that behalf or is required under any law” (1968) 22 L.S.I. 257 at p. 262.

29 Professor A. Rubinstein thinks that Basic Law: The Government contains no sanctions for the violation of sec. 28. But see sec. 142 of the Criminal Code Ordinance, 1936, providing that “Every person who willfully disobeys any law…is guilty of a misdemeanour…” supra n. 21, at p. 320.

30 ibid., at p. 356.

31 Kol-Ha'am, supra n. 22.