Case Number

HCJ 680/88

Date Decided

1-10-1989

Decision Type

Original

Document Type

Full Opinion

Abstract

The Petitioners sought to publish a newspaper article that was critical of the outgoing head of the Mossad, the Agency for Intelligence and Special Duties, on the occasion of the forthcoming appointment of a new Mossad head. The article did not mention his name or otherwise identify him. After several versions of the article were submitted for approval to the first Respondent, the Chief Military Censor, and after the Petitioners agreed not to publish certain parts of the article, the Censor forbade the publication of two matters: criticism of the head of the Mossad's effectiveness, on the ground that such criticism would affect adversely the Mossad's ability to function in general in the field of security policy; and disclosure of the impending change in leadership of the Mossad, on the ground that this could focus attention on the head of the Mossad and endanger his safety. The Chief Military Censor purported to act pursuant to authority vested in him by the Defence (Emergency) Regulations, 1945. The Petitioners sought the issuance of a rule nisi, directing the Respondents to show cause why they should not be restrained from interfering with the publication of the article, including the forbidden matter. The High Court considered the substantive issues raised by the case as if an order nisi had been granted and issued an order permitting publication of the article in the above respects, holding:

1. Although the Defence Regulations were promulgated by the Mandatory regime, they are now part of Israeli legislation and should be interpreted in harmony with Israeli democratic values. Such values give prominence to freedom of expression and freedom of the press.

2. The scope of judicial review of "subjective discretion" does not differ from the review of any other discretion. All administrative discretion must be exercised lawfully, that is: within the authority granted by the law granting discretion, for the purpose envisioned by the grant, reasonably, in good faith, on the basis of evidence reasonably evaluated, after giving due consideration of and balancing the other values involved.

3. The values to be balanced in this matter are state security and freedom of the press. There can be no effective exercise of freedom of expression without security. But free expression and public debate contribute to state security as part of the system of checks and balances.

4. Free expression may not be curtailed unless there is a near certainty that the publication will cause substantial and grave harm to security. This is especially so in the case of a prior restraint on the publication.

5. The Military Censor did not meet the burden of proof cast upon him to establish that there exists a near certainty of harm to security if the article will be published.

Keywords

Administrative Law -- Discretion, Administrative Law -- Judicial review, Constitutional Law -- Freedom of Expression

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