Case Number

HCJ 5973/92

Date Decided

1-28-1993

Decision Type

Original

Document Type

Full Opinion

Abstract

Following a number of brutal acts of kidnapping and murder committed by the Hamas and Islamic Jihad terrorist organisations is December, 1992, it was decided by the Government of Israel to empower the military commanders of Judea and Samaria and of the Gaza Strip to issue orders for the temporary deportation of the leaders of these two terrorist organisations who had taken part in organising and supporting acts of terror, for a period not exceeding two years. The two commanders thereupon issued (general) temporary provisions under the Defence (Emergency) Regulations, 1945 (from the time of the British Mandate but still in force in the territories) allowing for individual temporary deportation orders to be carried out immediately after being issued. An appeal committee was also set up, which would, however, hear appeals only after the deportation had already taken place. Altogether, 400 persons were deported to Lebanon under the deportation orders.

The defence authorities (the respondents) submitted that the deportation orders were lawfully carried out even though the deportees were not given an opportunity to bring an appeal and have it heard prior to deportation, since pressing emergency conditions required the deportation to be carried out without any delay. Moreover, they argued, prior hearing could be dispensed with, since the general deportation orders made express legislative provision in that respect. Alternatively, case law of the High Court recognises emergency situations where even an inherent right like the right to hearing will not be enforced.

The petitioners argued that the deportation orders were void, both because the general order itself was void ab initio, in particular owing to lack of sufficient legal basis for denying deportees a prior right of hearing, and also owing to defects in the individual orders. Moreover, they submitted that the deportation was contrary to international law since the 4th Geneva Convention of 1949 relating to Protection of Civilians in Wartime prohibits deportation in general and mass deportation in particular. It was also contrary to Israeli administrative law which grants the right to a hearing prior to deportation.

An additional argument of the petitioners was that an appeal committee was not set up prior to the deportation, and that was an additional reason for invalidating the orders. The argument was rejected outright by the Court, since a committee was indeed in existence prior to the deportation (under regulations l l l and 112 of the Defence (Emergency) Regulations.

In a per curiam opinion, the Supreme Court held as follows:

I. The Defence (Emergency) Regulations, 1945 including Regulation l l 2 dealing with deportation is in force in Judea and Samaria, and in Gaza. Its continued force was derived first from Jordanian law and subsequently from legislation enacted by the Israeli military administration.

2. According to the Defence (Emergency) Regulations, there must be sufficient evidence to support the deportation in each individual case. This requirement has been fulfilled.

3. Regulation 112(8) of the above Regulations provides that the advisory committee set up to hear appeals against administrative detention also has jurisdiction to examine deportation orders if so requested by a deportee. That Regulation does not, however, specify whether the appeal is to be heard before or after the deportation is carried out. A reasonable interpretation would be that the right of appeal under Regulation 112(8) should be exercised prior to deportation. However, denial of a right to a prior hearing does not necessarily lead to invalidation of the deportation orders. The correct remedy would be to allow a hearing to take place after the deportation under the same conditions as would have prevailed if it had taken place prior to the deportation.

4. The High Court of Justice will examine the legality of any act of the military government in accordance with the principles of Israeli administrative law. Those principles require grant of the right of hearing, and as far as possible the hearing, so as to be fair and effective, should be held in the presence of the person concerned (in this case, the deportee). Allowing such person to appear in person, and not just by his representative, may have prevented cases of mistaken identity or other errors of which there were a number in the present matter.

5. In exceptional circumstances, the rule allowing for the right to a prior hearing can be departed from, where security needs justify such departure. However, in the present case, it is not necessary to consider whether such exceptional circumstances exist, since the rule laid down in earlier case law applies here, whereby even where there has been no prior hearing, a hearing should be held subsequent to deportation, and this should afford the deportee the opportunity to put forward his case in detail; in any event, lack of a prior hearing does not invalidate the individual deportation orders.

6. The general temporary provision orders where invalid insofar as they sought in general to replace existing principles of natural justice which require a prior hearing to take place before carrying out deportation orders, without relating to specific exceptional cases.

7. The Court concluded as follows:

a) Lack of prior hearing did not invalidate the individual deportation orders. The Court ordered the right of hearing to be granted following the deportation.

b) The "provisional" (general) deportations order was invalid, for reasons stated, but this did not invalidate the individual orders.

c) Submissions regarding invalidity of individual deportation orders were to be considered by the advisory committee within the scope of the (subsequent) appeals.

Keywords

Constitutional Law -- Prisoners’ Rights, Constitutional Law -- State of Emergency and National Security, International Law -- Occupied territories

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