Hostname: page-component-586b7cd67f-dsjbd Total loading time: 0 Render date: 2024-11-23T23:25:29.071Z Has data issue: false hasContentIssue false
  • English
  • Français

Human Rights and National Security*

Published online by Cambridge University Press:  16 February 2016

Itzhak Zamir
Get access

Extract

The State of Israel came into being forty years ago. Its Declaration of Independence proclaimed that the State “shall guarantee complete equal social and political rights to all its citizens without regard to religion, race or sex”. At the time there was a war being waged for Israel's independence, a war which is not yet over. The threat to Israel's security, both from within and without, is still very real. The struggle for security has been going on, unabated, for forty years, and it exacts a price. Among other things, it exacts a price in human rights. Freedom of expression, for example, is subject to military censorship. As a British judge once remarked, war is not waged in accord with the principles of the Magna Carta.

Type
Articles
Information
Israel Law Review , Volume 23 , Issue 2-3: Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Spring–Summer 1989 , pp. 375 - 406
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Ronnfeldt v. Phillips (1918) 35 T.L.R. 46, 47 per Scrutton L.J.

2 See the decision of the House of Lords in England in Liversidge v. Anderson [1942] A.C. 206. In the course of time it was the dissenting (courageous) opinion of Lord Atkin which gained much praise. ibid., at 225 ff. Recently the Supreme Court of Israel also took issue with the majority opinion in that case. See Bransa v. Commander of the Central Region (1982) 36(iv) P.D. 247, at 251–252. See also decision of the Supreme Court of Israel in Schnitzer v. Chief Military Censor (1988) 42(iv) P.D. 617, para.27 of the decision. This important decision, which deals with the proper balance between the authority of the military censor to protect national security and his duty to respect freedom of the press, was handed down on January 10, 1989, after this lecture was given, and I did not, therefore, refer to it in the text. See also the decision of the United States Supreme Court: Korematsu v. United States 323 U.S. 214 (1944). This decision, too, has been affected by the passage of time, and gradually the dissenting opinions have won high regard.

3 Already in Kol Ha'am v. Minister of the Interior (1953) 7 P.D. 871; 1 S.J. 90, Agranat J. stated (p. 880): “It is true that today all are agreed that, in moments of supreme urgency – when, for example, the state is at war or is undergoing a grave national crisis – greater weight (according to the particular circumstances of each case) will be given to state security” (1 S.J. 100). Agranat J. goes on to cite passages in the same spirit from decisions of the United States Supreme Court. Recently Barak J. expressed a similar sentiment in Schnitzer v. Chief Military Censor (supra n. 2). In para. 14 of the decision he states: “If the conflict between the two values (namely, between the value of security and the value of freedom of speech) is irreconcilable, with no possibility to preserve both at one and the same time, then the value of security takes precedence”.

4 Chava Kaufman v. Minister of the Interior (1953) 7 P.D. 534, at 536.

5 Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Government Press Office, Jerusalem, October 1987) 26 (p. 31 in English translation). See also Barzilai v. Government of Israel (1986) 40(iii) P.D. 505; 6 S.J. 1 The decision, which dealt with the pardon given by the President to four leading members of the General Security Service who were involved in what became known as the General Security Service Affair, included the following words by Ben-Porat D.P. (p. 579). “It cannot be overlooked that those who discharge a clear security function find it especially difficult to act always within the law. The measure of departure may vary from country to country, but it exists as a fact, also in democratic regimes whose fidelity to civil rights is beyond question.

Naturally, the smaller the deviation from the legal norm, the easier it would be to reach the optimal degree of harmony between the law and the protection of the State's security. But we, as judges who ‘dwell among our people’, should not harbour any illusions, as the events of the instant case well illustrate. There simply are cases in which those who are at the helm of the State, and bear responsibility for its survival and security, regaid certain deviations from the law for the sake of protecting the security of the State, as an unavoidable necessity” (6 S.J. 62–63).

6 Report of the Commission, supra n. 5, at 27 (p. 31 in English translation).

7 ibid., at 34 (p. 40 in English translation).

8 ibid., at 70 (p. 78 in English translation). This principle has always guided the Court. As far back as in Sheib v. Minister of Defence (1951) 5 P.D. 399; 1 S.J. 1, Olshan J. stated (at p. 411): “[T]he rights of the individual may not be restricted or removed by an official or Minister just because he thinks, perhaps correctly, that to do so will be of benefit to the State. It is for him to satisfy the legislature that such restrictions are essential or necessary, and it is only after the legislature has authorized them that the official or Minister may carry them into effect” (1 S.J. 14).

9 This view was clearly expressed in the Kol Ha'Am case, which dealt, it will be recalled, with the decision of the Minister of the Interior to suspend publication of a newspaper because it printed items which were liable, in the opinion of the Minister, to endanger the public peace. See Kol Ha'Am v. Minister of the Interior, supra n. 3, at 871. In this decision Agranat J. states (p. 880) that “here, there exist two competing kinds of interest, each one of which possesses a politico-social importance of the first order” (1 S.J. 99). He goes on to say (p. 881): “The same concern for preserving the security of the State is liable to have an injurious effect on the right to freedom of expression equally by reason of the mistaken approach that it protects only the individual interest of the citizen, wherefore that interest ought, as it were, to be disregarded whenever it comes into conflict with the social interest embodied in the security of the State. In this way, the authorities are liable unwittingly to overlook the great social value which the principle of freedom of expression adds to the efficacy of the democratic process, and they are liable to do so where the expected damage that the publication is likely to cause to the State is not so great as to justify doing away with the right” (1 S.J. 101). Since in the circumstances of the case there was no clear probability that publication of the material in the newspaper would endanger the public peace, the Court decided that the scales tipped in favour of the defence of freedom. Accordingly, the Court abrogated the decision of the Minister of the Interior.

10 In the Kol Ha'Am case (supra n. 3) Agranat J. stated (p. 880): “Indeed, the concern for preserving the security of the state in time of emergency is so liable to becloud all other considerations, that the authorities will be inclined, by dint ofthat concern, to prohibit or punish the making of statements or their written publication even at a time when they constitute no danger to the peace of the state or the nation” (1 S.J. 100). Agranat J. goes on to quote a decision taken in the House of Lords in England, which states: “Experience has taught us that in such times many things are done in the name of the executive branch purportedly for the public welfare, and against which English people are too loyal to their country to protest”.

11 William J. Brennan, “The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises”. The lecture was delivered in Jerusalem on December 22, 1987 at a conference on Freedom of Speech and National Security. The lecture will be published in Shetreet, Sh., ed., National Security and Free Speech (Kluwer, 1989).Google Scholar

12 Ibid., at 9.

13 Ibid., at 12.

14 Law and Administration Ordinance, 1948 (1 L.S.I. 7), sec. 9.

15 Regarding the authority to promulgate emergency regulations according to sec. 9 of the Law and Administration Ordinance, 1948, see Klinghoffer, H., “On Emergency Regulations in Israel” in Jubilee Volume for Pinchas Rosen (Jerusalem, 1962) 86.Google Scholar In the meantime, the government has empowered most ministers to issue emergency regulations. See Directives of the Attorney General, no. 60 012 dated 1 November 1985, on “Secondary Legislation Procedure and Guidelines”, para 29. This directive was also published in Zamir, I, “Secondary Legislation Procedure and Guidelines” (1986) 11 lyunei Mishpat 339Google Scholar, at 391. Some constraint on the use of this authority by a minister was included in the government regulation, requiring the minister to obtain prior cabinet approval. See Directives of the Attorney General, ibid. Prof. Klinghoffer and Prof. Shetieet suggested that the pertinent law be amended so as to distinguish between two different states of emergency an ordinary state, in which the power to promulgate emergency regulations will be more limited than it is now, and a state of actual war, which will require a formal declaration, and will bestow the far-reaching powers which the ministers now possess. See Shetreet, Sh., “The Grey Area of War Powers. The Case of Israel” (1988) 45 The Jerusalem Quarterly 27Google Scholar, at 47 Today, in the absence of any such distinction, it is permissible to promulgate emergency regulations and issue injunctions based on them in order to compel civil servants to perform their jobs, even in tranquil times and with no connection to national security See, for example, Klopfer-Naveh v. Minister of Education and Culture (1984) 38(iii) P.D. 233 In my opinion, although the broad wording of the statute regarding the issuance of emergency regulations permits such an interpretation, it would be preferable to adopt a narrower one, whereby there must be a substantive connection between use of the regulations and an emergency situation. This kind of interpretation would probably goad the govern-meni into sponsoring special legislation to regulate the matter of workers' strikes in the civil service. Such a law is preferable on two counts firstly, it could be designed to deal specifically with the problems of labour relations, secondly, a narrow interpretation would make it possible to confine the use of the power to issue emergency regulations to actual states of emergency.

16 The examination on these two levels does not cover the entire domain. On the first level, which relates to the limits of the authority, it is not sufficient to examine the authority on the level of legislation; it is also necessary to descend to the level of execution. This is particularly important when legislation assigns to a security agency powers which are far-reaching in scope and severity, and the question then arises as to when and how to wield the authority. As a rule, the answer is provided by a higher echelon, in the political defence establishment, to a lower one. Let us take, for example, the authority bestowed by the Defence (Emergency) Regulations, 1945 to pass the death sentence, or to demolish buildings. Once these powers have been conferred by law, the critical question from a practical point of view regards the policy which will guide and restrict the army prosecutor when he asks for punishment (in which cases will he be allowed to ask the military court for a death sentence?), and the army officer who serves in the field (in which circumstances can he decide to demolish a building?). On this level as well, there is a possibility that the scope of the authority granted to the executive arm will be broader than is necessary or justified. On the second level, which relates to supervision of the security action, with the aim of determining whether the use of power was proper, it does not suffice to have legal supervision, and it certainly does not suffice to have supervision by the courts. There are other instruments for this purpose. For example, the State Comptroller is responsible, among other things, for examining the operations of the defence establishment. However, it transpires that the existing supervision is not adequate in this area. This found expression, for example, in the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, supra, n.5. In this Report, the Commission criticizes (p. 78) “the GSS being hermetically closed to any outside criticism – which has been the case so far, with some rare exceptions” (p. 87 in English translation). The Commission suggests several ways to increase the outside scrutiny of the Service: ibid., at 78–81 (pp. 87–90 in English translation).

17 Preiss Ordinance, 1933 (Drayton, , Laws of Palestine, vol. II, p. 1214Google Scholar), sec. 4.

18 Ibid., sec. 19.

19 The Cinematograph Films Ordinance (Drayton, , Laws of Palestine, vol. 1, p. 135Google Scholar) and the Public Performance (Censorship) Ordinance (Drayton, , Laws of Palestine, vol. 2, p. 1264Google Scholar) both of 1927. On the discretion of the Film and Theatre Censorship Board see the Attorney General's directives, no. 21.565 of 1 December 1982. For an English translation of the directives see (1982) 17 Is.L.R. 511.

20 Penal Law, 1977 (L.S.I. Special Volume), secs. 134, 136. This law is essentially a new version of the Criminal Law Ordinance, 1936.

21 The infringement of human rights on the part of the Mandatory legislation was not limited to the area of security and public order. In other areas as well the Mandatory administration was given far-reaching powers, with no attempt to strike a balance between public and private interests. Thus, for example, the Land Ordinance (Acquisition for Public Purposes), 1943 which confers extreme powers of land expropriation, and also the Companies Ordinance which states that the High Commissioner (today the Minister of Justice) may refuse to permit the formation of a company “at his absolute discretion”: Companies Ordinance (New Version), 1983 (D.M.I. 761), sec. 17. However, in no other area did the Mandatory legislation grant such far-reaching powers to the administration as it did in the area of security and public order.

22 The Defence (Emergency) Regulations, 1945 (P.G., Supp. No. 2, no. 1442, p. 1055) were issued by virtue of sec. 6 of the Palestine (Defence) Order-in-Council, 1937 (Drayton, Laws of Palestine, Supp. 2, p. 268). This section states that regulations will be issued as “necessary or expedient for securing the public safety, the defence of Palestine, the maintenance of public order and the suppression of mutiny, rebellion and riot, and for maintaining supplies and services essential to the life of the community”. These purposes are so broad that they cannot be considered as setting any real limits, neither to the promulgator of the regulations nor to whoever wields the powers conferred by them.

23 Report of Protest Conference against the Defence Regulations (1946) 3 HaPraklit 62.

24 Ibid., at 60.

25 Ibid., at 58. At the protest meeting against the Regulations, which took place in February 1946, the Jewish Lawyers Association of Palestine adopted a resolution stating that these Regulations “deny the basic human rights from the residents…undermine the foundations of law and justice, constitute a grave danger to individual liberty and life and impose arbitrary rule with no judicial review”, ibid., at 62.

26 Divrei HaKnesset, vol. 46, p. 1708. Statements in this vein were expressed over the years in various contexts also by judges of the Supreme Court. Thus, for example, in El Assad v. Minister of the Interior (1980) 34(i) P.D. 505, at 513, Landau P. states of one of the Mandatory regulations that it is a “Draconian [regulation] which was issued by a colonial regime and does not comply with basic concepts of a democratic country with regard to freedom of speech and freedom of expression”.

27 On the attempts to abrogate the Defence (Emergency) Regulations, 1945, see Rubinstein, A., Constitutional Law of the State of Israel (Schocken, Jerusalem, 3rd ed., 1980, in Hebrew) 219–220.Google Scholar

28 Law and Administration Ordinance, 1948, supra n. 14, sec. 11.

29 Press Ordinance, 1933, supra n. 17, sec. 19.

30 Companies Ordinance (New Version), 1983, supra n. 21, sec. 17.

31 The Land Ordinance (Acquisition for Public Purposes), 1943, allows the Minister of Finance to acquire ownership of any piece of land if he is convinced that it is necessary for some public purpose, and in this context a public purpose is any purpose which the Minister of Finance has defined as such (secs. 2, 3).

32 On administrative detention according to Defence (Emergency) Regulations, 1945, see Dershowitz, A.M., “Preventive Detention of Citizens During a National Emergency – A Comparison Between Israel and the United States” (1971) 1 Israel Yearbook of Human Rights 295.Google Scholar See also Bracha, B., “Restriction of Personal Freedom Without Due Process of Law According to the Defence (Emergency) Regulations, 1945” (1978) 8 Israel Yearbook of Human Rights 296.Google Scholar

33 Emergency Powers (Detention) Bill, H.H. (1978) no. 1360, p. 294.

34 Emergency Powers (Detention) Law, 1979 (33 L.S.I. 89), sec. 4(c). This law permits the Court to carry out judicial review of administrative detention in a more thorough and effective manner than was customary under the Mandatory Defence Regulations. See Klinghoffer, H., “Preventive Detention for Security Reasons” (1981) 11 Mishpatim 286.Google Scholar On the situation prior to this law, see Baruch Bracha, supra n. 32. On the situation under this law, see Kahane v. Minister of Defence (1981) 35(ii) P.D. 253; Kawasma v. Minister of Defence (1982) 36(i) P.D. 666. Recently, in A. v. Minister of Defence (1987) 41 (ii) P.D. 508, at 516, Bejski J. adopted the view of Prof. Klinghoffer (in the foregoing article), according to which the court which examines an administrative detention order, is authorized to exercise its own discretion regarding the question of whether to issue a detention order, and even to substitute its discretion for that of the Minister of Defence. On administrative detention under the new law see Directives of the Attorney General, no. 21.297 dated 15 December 1982. For an English translation of the directives, see (1983) 18 Is. L. R. 150.

35 Kahane v. Minister of Defence, supra n. 34, at 257, per Kahan J.

36 Defence (Emergency) Regulations, 1945, regs. 108–110. On the power to issue restraining orders, see Directives of the Attorney General no. 21.932 dated 1 September 1984.

37 Prof. Amnon Rubinstein proposed as a further step on the road opened by Emergency Powers (Detention) Law, 1979 (supra n. 34), that regulations issued by virtue of emergency regulations be published in Reshumol, and that the censorship of mail, which was used for purposes having nothing whatever to do with national security, should be regulated. See A. Rubinstein, op. cit. supra n. 27, at 223–224.

38 In contrast to the negative record of the legislature, as manifested in the aforementioned failings, its record in the domain of the legislation which has been passed is more positive. As a rule, the Knesset has attempted in its laws to strike a proper balance between the needs of society and the rights of the individual. Still, in the area of national security the Knesset has been prepared to tip the scales in favour of security, at the expense of human rights, to a greater extent than in other fields. A clear example of this may be found in the Secret Monitoring Law, 1979 (33 L.S.I. 141). This law prohibits monitoring. However, two major exceptions were made: 1) monitoring for the prevention of offences or the detection of offenders; 2) monitoring for purposes of state security. For these purposes it is possible to obtain a permit to engage in monitoring. However, in order to obtain a permit to prevent offences or detect offenders, it is necessary no apply to the President of the District Court, whereas a permit for purposes of state security is obtained from the Prime Minister or the Minister of Defence. See secs. 4 and 6. It seems to me that there is no justification for this kind of distinction. Supervision of the infringement of privacy by means of monitoring should be in the hands of an external authority, namely, the court. Other laws demonstrate that the courts are considered competent and reliable to review also matters involving security secrets. Therefore, it would have been preferable, in my view, to determine that also a permit for monitoring for purposes of state security should be given by the President of the District Court.

39 See the recent case, Schnitzer v. Chief Military Censor (supra n. 2) para. 9ff. regarding the interpretation of the Defence (Emergency) Regulations, 1945.

40 By means of this criterion the court mitigated the sting of the Press Ordinance (Kol Ha'Am v. Minister of the Interior, supra n. 3), of censorship by virtue of the Public Performance (Censorship) Ordinance (Laor v. Film and Theatre Censorship Board (1987) 41(i) P.D. 421), and of the military censorship by virtue of the Defence (Emergency) Regulations, 1945 (Schnitzer v. Chief Military Censor, supra n. 2).

41 Al-Karbuteli v. Minister of Defence (1949–50)2 P.D. 5, at 15. See additional judgments dating from the early years of the State, in which the Court annulled administrative decisions in the area of security because of excess of jurisdiction or other deviation from the language of the law Eh Khouri v. Chief of Staff (1950) 4 P.D. 34 (an administrative detention order was annulled because the place of detention was not specified in the order), Alrahman v. Minister of Interior (1952) 6 P.D. 364 (an expulsion order which was signed by the regional army commander, instead of by the Minister of Defence, as required, was revoked); Sheib v. Minister of Defence, supra n. 8 (an instruction issued by the Minister of Education and Culture, at the initiative of the Ministry of Defence, not to employ someone as a school teacher because of opinions which he voiced on security matters, was annulled because the law did not grant authority to the M mister of Education and Culture to issue such an instruction), Aslan v. Military Governor of Galilee (1951) 5 P.D. 1480 (an order sealing off territory, according to the Defence (Emergency) Regulations, 1945, was revoked because it was not published in Reshumot).

42 Barzilai v. The Government of Israel, supra n. 5, at 555 (6 S.J. 40).

43 Ibid., at 622 (6 S.J. 104). The difficult question which arises in these instances is whether this rule, subordinating security to the law, is inflexible Is it, for example, forbidden to violate the law in order to protect security in the case of a threat to national survival, such as prior to or during a war? Another example, which is regularly cited to make a point, is this: security agents capture a terrorist who planted a time bomb in a crowded public building; the bomb is liable to explode any minute and cause untold death and damage. The terrorist refuses to disclose where the bomb was placed and thus does not permit the security agents to dismantle it and remove the threat which it poses to human life. Would it be forbidden, from a legal point of view, to use physical force against the terrorist – even torture – in order to compel him to disclose, as quickly as possible, where he placed the bomb? Does the well-being of the terrorist take precedence over the lives of numerous innocent people?

The answer to this question is complex: firstly, from a strictly legal standpoint the answer is apparently negative. The court which ruled in various contexts that security is subordinate to the law and that the security services have no right to violate the law, did not leave any room for an exception to this rule. As we indicated, the Report of the Commission of Inquiry into the Methods of the Investigation of the General Security Service Regarding Hostile Terrorist Activity (supra n. 5) took as an example the case of the time bomb in a crowded building and said (p. 39, p. 60 in the English translation) that “no activity in the field of security, however important and vital it may be, can place those acting above the law”.

Secondly, the strictly legal answer in this case rests on the assumption that the judicial system takes security needs into consideration and confers special powers on the security services, so that it is possible to safeguard national security adequately within the confines ofthe law, without violating the law. Thus, for example, in the case of the need to employ physical force against a terrorist who is not ready to disclose where he planted a time bomb, the law permits the use of such force in accord with sec. 22 ofthe Penal Law, 1977, which establishes the defence of necessity (see, The Report of the Commission of Inquiry, supra n. 5, at 47–49; 54–57 in English translation). In those cases where it transpires that the judicial system does not adequately answer the needs of security, the law may be amended in a manner and degree that is appropriate. This was also stated by the Commission (supra n. 8). Nevertheless, there may be more difficult cases, where the existing law does not allow talcing the steps needed to protect security and the hour is pressing and does not permit the delay involved in amending the law. However, even such difficult situations are provided for within the framework of the law. In such situations cabinet ministers are permitted to promulgate emergency regulations, in accordance with sec. 9 of the Law and Administration Ordinance, 1948, (supra n. 14), which can amend any law. Thus, even in an extreme situation it is generally unnecessary and unjustified to act contrary to the law.

Thirdly and lastly, there could be an exceptional case where one of the security agencies finds it imperative to take an illegal action in order to safeguard an important security interest because circumstances do not permit changing the law or promulgating emergency regulations. In such a rare instance, should the court grant permission to act contrary to the law? To my mind, the answer should be negative. The principal reason being that permission to violate the law involves great danger to the foundations of justice. The judicial system can tolerate a sporadic and rare breach ofthe law on the part of a security agency. It cannot, however, endure if the court rules that it is permissible to exceed the limits of the law. This point was well made by Justice Jackson of the United States Supreme Court in his dissenting opinion in the Korematsu case (supra n. 2), at 246: “A military commander may outstep the bounds of constitutionality and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Court”. If so, the question remains what should be the fate of someone who contravened the law, for the sake of national security, in this rare case. Should he be regarded as a criminal offender to be treated with the full severity ofthe law and made to pay a heavy personal penalty for an act which he committed for the benefit of the country? The answer is that even if the act was a breach of law, it is not imperative that the offender be heavily punished or be punished at all. The judicial system has created a variety of ways to deal with a case of this sort, according to the circumstances: the attorney-general, for example, can use his discretion and decide not to press criminal charges; the court can impose a token punishment; and the President can grant a pardon, even before the police investigation gets under way. In my opinion, this is a far better way to deal with rare cases of this kind than a legal provision which in advance permits an act in violation of the law.

43a Al-Karbuteli v. Minister of Defence, supra n. 41.

44 In Schnitzer v. Chief Military Censor (supra n. 2) Barak J. stated (para. 26): “The security nature of the administrative discretion deterred judicial review in the past. Judges are not security agents, and they should not intervene in security considerations. In the course of the years it has become clear that there is nothing unique in security considerations as far as judicial intervention is concerned. Judges are not administrators, but the principle of the separation of powers compels them to scrutinize the legality of the decisions taken by administrators. In this context, security considerations have no special status. These, too, must be effected in accordance with the law, and they, too, must be subject to judicial review. Just as judges are able and required to examine the reasonableness of professional discretion in every field, so, too, are they able and required to examine the reasonableness of the security considerations. This leads us to the view that there are no special limitations on the scope of judicial review of administrative discretion which deals with national security”.

45 See Harnon, E., Law of Evidence, Part Two (Faculty of Law, Hebrew University of Jerusalem, 1977, in Hebrew) 75ffGoogle Scholar

46 Chaya Kaufman v. Minister of Interior, supra n. 4, at 541, per Landau J. See also Abu Gosh v. Military Commander in the Jerusalem Corridor (1953) 7 P.D. 941, at 947. In El Assad v. Minister of the Interior, supra n. 26, at 515, Landau D.P. stated, “There is no doubt of the sincerity of the [district] governor's arguments, but in everything pertaining to information, he relies on what was collected by others, namely, security agents who supplied him with the information. In Kaufman it was pointed out that errors may occur in matters where the authorities operate also on the basis of hearsay evidence. There is a potential danger of harm in a situation where the case of a citizen is decided by the authorities, without any scrutiny whatever by the judicial arm, on the basis of information which reaches them from a ‘faceless accuser’. These things have been known to happen in the world, including the free world. There have even been cases of false information being given by a government agent who hides behind the cloak of confidentiality, and the well-known instance which was dealt with by this court in Ha-Etzni v. Amos Ben Gurion (1957) 11 P.D. 403, 3 S.J. 365, and subsequently in Applebaum v. A. Ben Gurion and S. Simonson v. A. Ben Gurion (1960) 14(ii) P.D. 1205 is a case in point”.

47 Ha-Etzni, supra n. 46; Law of Evidence (Amendment) Law, 1968 (22 L.S.I. 222), sec. 5A.

48 Evidence Ordinance (New Version), 1971 (2 L.S.I. [N.V.] 198), sec. 44(a).

49 See Livni v. State of Israel (1984) 38(iii) P.D. 729; Vanunu v. State of Israel (1987) 41(iii) P.D. 533; Shachshir v. Commander of I.D.F. in the West Bank (1989) 43(i) P.D. 529.

50 See, for example, Machul v. Governor of the Jerusalem District (1983) 37(i) P.D. 789 at 794. For criticism of this judgment, see Rettig, E., “The Sting: Privileged Evidence, the Obligation to Give Reasons for Administrative Decisions, and Freedom of Expression” (1984) 14 Mishpatim 108.Google Scholar See also Ayub v. Governor of the Jerusalem District (1984) 38(i) P.D 750.

51 In Ressler v. Minister of Defence (1988) 42(ii) P.D. 441, at 486, Barak J. wrote. “The judgments of the Supreme Court stated more than once that the security considerations of the army, both inside Israel as well as in Judea, Samaria and Gaza, are subject to judicial review, and that this review is not limited to the question of jurisdiction and the question whether security considerations do exist in the case at hand, but extends also to the whole gamut of grounds for review, including the question of the reasonableness of the security consideration”.

52 Hilu v. State of Israel (1973) 27 (ii) P.D. 169, at 177 For criticism of this judgment, see Geva, Biryamin, “On the Proper Balance Between the Security of the State and Civil and Human Rights” (1973) 5 Mishpatim 685.Google Scholar

53 Hilu v. State of Israel, supra n. 52.

54 Ibid., at 181.

55 Ayub v. Minister of Defence (1979) 33(ii) P.D. 113, at 118.

56 Amirah v. Minister of Defence (1980) 34(i) P.D. 90, at 93 See also, as additional examples, Marar v. Minister of Defence (1971) 25(i) P.D. 141; El Asmar v. Commander of the Central Region (1971) 25(ii) P.D. 197.

57 Diukat v. State of Israel (1980) 34(i) P.D. 1.

58 Samara v. Commander of Judea and Samaria Region (1980) 34(iv) P.D. 1.

59 Tamimi v. Minister of Defence (1987) 41(iv) P.D. 57. Another important judgment in this vein is Schnitzer v. Chief Military Censor (supra n. 2), in which the court nullified a decision of the chief military censor to prohibit the publication of an article on the Mossad (Intelligence Service).

60 Kawasma v. Minister of Defence (1981) 35(ii) P.D. 113.

61 Ibid., at 125.

62 See Kawasma v. Minister of Defence (1981) 35(i) P.D. 617.

63 Kawasma, supra n. 60, at 119–120.

64 Ibid., al 132.