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HCJ: When there is no certificate of privilege and the petitioners do not consent an ex parte hearing of the classified material, the ruling will be issued based solely on the unclassified material

HaMoked often petitions the High Court of Justice on behalf of residents of the OPT whose right to freedom of movement has been denied by the army. In most cases, the state does not present the court with evidence to substantiate its decisions and argues instead that the travel ban was imposed based on “information at the hands of security officials”. The state claims this information is classified, and agrees to present it to the court ex parte and in camera. The state, however, does not provide certificates of privilege.

This practice, pursued by the state in recent years, is possible only with the petitioners’ consent. Under Israeli law, a litigant is entitled to disclosure of all documents on which the other party relies in court, unless they are lawfully defined as classified. Evidence may be considered classified only if the appropriate minister issues a certificate of privilege.

In September 2009, a Palestinian from Bethlehem arrived at the Allenby Bridge border crossing on his way to Jordan. He was planning to visit some relatives in Jordan and then continue to Saudi Arabia for the Umrah pilgrimage. The army did not let him exit and ordered him to turn back. The man filed an objection against the travel ban with the DCO, which, according to the protocol in effect at the time should have been answered within six weeks, but when no response came after three months, on February 8, 2010, HaMoked petitioned the High Court of Justice (HCJ) to instruct the army to allow him to exercise his right to travel abroad.

The state relied on classified material, arguing that “travel abroad by the Petitioner, a Hamas activist, would put public safety at risk”. HaMoked did not consent to having the classified material presented to the justices ex parte and demanded the state disclose the documents or provide the certificate of privilege. Alternatively, HaMoked asked the court to issue an Order Nisi, as it had in two similar petitions filed by HaMoked, instructing the state to explain why it was violating the Petitioner’s rights. The state persisted in its arguments.

As the parties were waiting for the hearing, the HCJ issued a ruling, in the Mughrabi case, that when petitioners object to an ex parte hearing of the classified material and the state does not deliver a certificate of privilege, the ruling will be handed out based on the unclassified material only. Following this ruling, HaMoked reiterated its position that the state had not presented any unclassified information to substantiate its arguments and that the Order Nisi must be issued. Realizing it could no longer rely on the classified material, the state argued that the fact the petitioner had been an administrative detainee whose matter was brought before the HCJ was enough to prevent his travel abroad. The state added that “Just prior to the submission of this response [submitted February 29, 2012], and ahead of the scheduled hearing of the petition, security officials re-examined the matter of the Petitioner and have reached the conclusion that their decision remains”.

On March 6, 2012, just one week after its previous response, the state suddenly changed its position and decided to allow the Petitioner to travel abroad. After two and a half years of insisting on the travel ban, the classified material was suddenly put aside, the “security” arguments were abandoned, and the terrible threat the petitioner posed to public safety disappeared.

Very few people have the strength to fight for their fundamental rights in the face of the legal-bureaucratic monstrosity that is the occupation. It often takes a lengthy legal battle to have Israel retract its automatic response: “security refusal – classified material”. (02) 627 1698   (02) 627 6317

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