Human Rights NGOs Withdraw from a Constitutional Petition

On March 24, 2009, three human rights NGOs – The Public Committee Against Torture in Israel, The Association for Civil Rights in Israel and Adalah: The Legal Center for Arab Minority Rights in Israel, withdrew from a petition that they had submitted to the Israeli High Court of Justice (HCJ). This action was taken in protest of the HCJ decision to base its judgment on the constitutionality of the 2006 Criminal Procedure Law (Enforcement Powers – Detention) (Detainee Suspected of Security Offense) (Temporary Order) 2006, which permits classified evidence to be presented ex parte to the Court by the Israeli Security Authority; that is, in the absence of the petitioners and without their consent.

The Criminal Procedure Law (Enforcement Powers – Detention) (Detainee Suspected of Security Offense) (Temporary Order) 2006 (hereinafter: "the Detention Order") was enacted as a temporary law for a period of 18 months in order  to maintain a framework for the detention within Israel of Gaza residents, similar to the one enforced in Gaza under the military law that is no longer valid (Israel withdrew from Gaza in September 2005 and revoked the military law that applied to that area). This framework was deemed more conducive to meeting the needs of the Israel Security Authority (formally known as the General Security Service) than the ordinary legal framework that governs the detention of criminal suspects.

The Detention Order authorizes the State to detain suspects for up to 96 hours without judicial review (as opposed to the 24-48 hour limit of regular criminal procedure under Israeli law); it also permits conducting hearings to extend detention without the presence of the detainee (although the detainee must be represented at the Court hearing).[1] Moreover, the State may prevent the notification of the detainee of the Court's decision to extend his or her detention.

On December 27, 2007, the Knesset extended the validity of the law for three more years. On March 4, 2008, three Israeli NGOs – The Public Committee Against Torture in Israel, the Association for Civil Rights in Israel and Adalah: The Legal Center for Arab Minority Rights in Israel, responded by filing a petition to the HCJ against the constitutionality of the Detention Order.[2] The petition called for the annulment of the law since it violated the basic due process rights of detainees suspected of committing security crimes. The HCJ granted a provisional order and decided to hear the case in an expanded Court of nine Justices.

In the course of the proceeding, the State requested that the Court review ex parte the classified information pertaining to the interrogation techniques used by the Israel Security Authority, which it claimed justified the special detention arrangements under the Detention Order. The objection of the petitioning organizations notwithstanding, on March 24, 2009 the HCJ decided to accept the State's request. In protest, the three NGOs withdrew from the petition (the petition is still pending, since one petitioner – the Public Defender's Office, who is representing an individual detained under the Detention Order – has not withdrawn the appeal).

The reasons for the withdrawal of the NGOs are as follows: According to Israeli legislation, the Court is not explicitly allowed to admit confidential evidence without the consent of all parties to the case (except in a few proceedings in which the Courts have explicitly authorized the admission of classified evidence). For example, special rules under the Administrative Detentions Law and the Unlawful Combatants Law allow the ex parte admission of classified evidence.[3] 

Furthermore,  confidential evidence is presented with the consent of petitioners in many Supreme Court cases. When a petition is being filed against the State, the burden to prove any wrongdoing rests with the petitioner (the State enjoys a rebuttable presumption of proper administration); and when the State claims that its action was lawful on the basis of classified evidence, the presumption of proper administration cannot be rebutted unless the petitioner agrees that the Justices review ex parte the confidential evidence. The consent of both sides allows the Court to review evidence that otherwise would be barred in accordance with the Evidence Order.[4]

In the case concerning the constitutionality of the Detention Order, the petitioners objected to the presentation of confidential evidence claiming that since such evidence was not presented to the Knesset when it legislated the Detention Order, the Court too should not be allowed to examine this evidence in a case that challenges the Detention Order (it should be noted, however, that the classified evidence was presented before a Knesset Sub-committee in confidential hearings). The decision of the HCJ to view the confidential evidence despite the lack of agreement from the petitioners appears to be contrary to existing practices, and its legal basis is unclear.

The petition filed in the present case addresses the Detention Order – legislation that was meant to serve only as a temporary solution until the enactment of a permanent detention law that addresses the detention of suspected security offenders who are residents of Gaza.  Still, as is often the case in these matters, the validity of the temporary law has already been extended to three years beyond the original period.

Although, the procedure of presenting ex parte classified evidence is common in security related procedures that concern individual detention orders, the petition brought by the three NGOs challenged the constitutionality of the Detention Order. Therefore, the security reasons that underlie the ex parte admission of confidential evidence to the Court seem less relevant or appropriate.

This case also illustrates the increasingly fragile relationship between human rights NGOs, the Government, and the Israeli Supreme Court. The fact that the NGOs were willing to withdraw their petition, which may lead to the approval of the Detention Order simply because of the Justices' decision to view the classified evidence of the State, demonstrates an increasing lack of trust in the Court as an impartial adjudicator of security related issues.

Nevertheless, since the Public Defender's Office has not withdrawn an appeal that was attached to the petition, the constitutionality of the Detention Order may still be reviewed and the HCJ could still rule on the constitutionality of some of its provisions.

[1] Still, the effectiveness of such representation is uncertain as the authorities may delay attorney-client meetings; hence, it is not inconceivable that the attorney would appear at the detention extension hearing without having met the detainee.

[2] HCJ 2028/08 The Public Committee Against Torture in Israel et al. v. The Minister of Justice

[3] Article 5(e) of the Unlawful Combatants Law, 2002;

[4] The first case in which this doctrine was applied is HCJ 322/81 Dr. Najoa Mahul v. The Commander of the Jerusalem District.