The Supreme Court Sitting as a
High Court of Justice
HCJ 5211/04
Before: President A.
Barak
Vice-President E.
Mazza
Justice M. Cheshin
Petitioners: 1. Mordechai Vanunu
2. The Association for
Civil Rights in Israel
Respondents: 1. Head of the Home Front
Command
2. Minister of the
Interior
Petition for an Order Nisi
Date: 22 Tammuz
5764 (11.7.04)
For the petitioners: Atty. D. Yakir, Atty. O. Feller
For the respondents: Atty. S. Nitzan
JUDGMENT
Vice-President E. Mazza:
The main purpose
of this petition is the Petitioners’ request that the Court instruct Respondent
1 (Head of the Home Front Command) to cancel an order of restrictions and
supervision he had issued against Petitioner 1 (the Petitioner), and instruct
Respondent 2 (the Minister of the Interior) to cancel an order he had issued
barring the Petitioner from leaving Israel. Further, the Petitioners
ask the court to determine that the Defence (Emergency) Regulations, 1945, are
null and void, and also determine that regulation 6 of the State of Emergency
Regulations (Exit from the Country), 5708-1948 - as found in the annex to the
Extending of the State of Emergency Regulations (Exit from the Country)
Ordinance, 5709-1948 - is likewise null and void.
2. The
background of this proceeding is the ‘Vanunu affair’, which has preoccupied the
Court and Israeli society for the past 18 years. The main points of it are
known, and I will sum them up: starting in 1976, the Petitioner was employed as
a technician in a department of the Centre for Nuclear Research (CNR). During
the Peace for Galilee war he formed his
extremist-leftist worldview. The security agents met with him to discuss the
matter, and when he found out that his name was included in the list of
scheduled layoffs it intensified his negative attitude towards the State of
Israel in general and the CNR in particular. Finally, in late 1985, Petitioner
resigned from the CNR of his own initiative and left Israel. He went first to Thailand and then to Sydney, Australia,
where he changed his religion. Petitioner had secret information about the CNR,
which he had acquired and gathered without permission during his work there, as
well as photographs of premises and installations in the CNR which he had taken
in secret. Petitioner had resolved to have the photos published and to reveal
and publish his secret information. With this aim in mind he sought to contact
a journalist who would help him carry out his scheme. A journalist he met in Australia put
him in touch with Peter Hounam, a correspondent of the Sunday Times of London.
Hounam was interested in the Petitioner’s information and photographs and they
went to London
together. In London Petitioner revealed to Hounam and the newspaper’s
investigators (including an expert named Frank Barnaby) highly secret
information about the CNR, and gave them his photographs. When the Israel
embassy in London, in reponse to questions from the newspaper, confirmed that
the Petitioner had in fact been employed in the CNR, the Sunday Times published
(on 5.10.1986) a prominent story, illustrated with photographs from the site of
the CNR, including an extensive description of the work of the CNR, based on
the Petitioner’s revelations.
For turning over
the secret information and the photographs to unauthorized elements, the
Petitioner was tried by the District Court in Jerusalem. Having heard the evidence, the
Court convicted the Petitioner of aiding the enemy in its war against Israel,
providing secret information with the aim of harming the State’s security,
collecting secret information with the said aim - which constitute offences
against sections 99, 113(b) and 113(c) of the Penal Law, 5737-1977. Having
convicted him of the said offences, the Court sentenced the Petitioner (on
27.3.1988) to 18 years imprisonment, beginning 7.10.1986. The Petitioner’s
appeal against his conviction and against the severity of his sentence was
dismissed (CrimA 172/88 Vanunu v. State of Israel, IsrSC 43(3) 265);
having had all his requests for parole turned down, the Petitioner served almost
the entire term of his prison sentence, and was released on 21.4.2004.
3. The two
orders against which the present petition was filed were issued on 19.4.2004 -
i.e., two days prior to the Petitioner’s release from prison. The order of
restriction and supervision was issued by the Head of the Home Front Command,
using his authority based on regulation 6(2) of the Defence (Emergency)
Regulations, 1945, and based on
regulations 108, 109 and 110 of the said regulations. The order states that it
is ‘required and imperative for the defence of the State of Israel’. It orders
that during the first six months after his release from prison the Petitioner
will be subject to supervision by the Israeli police, and imposes restrictions
on his freedom of movement: he is required to inform the police in advance of
any change in his place of residence, and of his intention to spend the night
other than in his known place of residence. The order also prohibits the
Petitioner to approach without prior permission within 500 metres of places
listed in an annex to the order (airports, marinas, overland border crossings
and international borders) from which it is possible to leave the State of
Israel, including the territories of Judea, Samaria
and the Gaza
district. Furthermore, the order prohibits the Petitioner to enter (or try to
enter) without prior permission any of the foreign diplomatic representations
in Israel,
to maintain contacts or exchange information by any means whatsoever with
foreign nationals or residents, or to take part in Internet chatrooms.
The order
barring the Petitioner from leaving the country was issued by the Minister of
the Interior using his authority based on regulation 6 of the State of Emergency Regulations
(Exit from the Country), 5708-1948. The order states that the Minister is
convinced that there is a real risk that the Petitioner’s leaving the country
might harm the security of the State, and having considered the arguments
brought forward by the Petitioner and his attorney against the order and
finding them unconvincing, has ordered to bar the Petitioner from leaving the
country for twelve months from the issuance of the order.
4. The necessity
of imposing restrictions on the Petitioner - barring his exit from the country
and restricting his movements and contacts within the country - was concluded
by the Respondents several months before the date set for his release from
prison. Security agencies had assessed for some time that after his release the
Petitioner might again publish secret information, which if made public could
jeopardize the State’s highest security concerns. Statements made by the
Petitioner during his investigation and at his trial, letters he sent from his
cell to various elements in Israel and abroad, and intelligence information
gathered about him during his imprisonment, all suggested that seemingly not
all the secret information which had reached the Petitioner and been gathered
by him until the day he quit his job at the NRC was given to the Sunday Times
newspaper and published. It was estimated that additional secret information,
which he had not turned over, remained hidden in his heart and memory, and that
following his release from prison the Petitioner may publish this additional
information too. Concern that Petitioner intends and is capable of continuing
to harm the security of the State of Israel after his release from prison also
affected the decisions of the parole board and the courts, which repeatedly
rejected all of Petitioner’s appeals for early release. As the date of his
release drew near, security agencies once again analysed the material gathered
about the Petitioner, including recent material they had seized in his cell,
and their assessment of the risk to Israel’s vital security interests
was reinforced.
With this
background in mind, consideration was given to various ways of restricting the
Petitioner’s movements and contacts. The option of placing Petitioner in
administrative detention following his release was considered, but rejected due
to the extreme severity of completely denying his freedom at the end of the
long prison term he had served. Security agencies wanted to impose tight
restrictions on Petitioner’s movements, but the Attorney General’s opinion led
to the decision to impose more moderate restrictions. On 28.3.2004, the
Minister of the Interior informed Petitioner that he was considering barring
his exit from the country for twelve months after his release from prison. On
4.4.2004 the Head of the Home Front Command informed Petitioner that he was
considering imposing on him various restrictions, itemized in the letter, for
six months after his release. Petitioner and his attorney presented their
objections to the Minister of the Interior and to the Head of the Home Front
Command concerning the intention of issuing these orders against the
Petitioner. Rejecting the objections to his intention of barring Petitioner
from leaving the country, the Minister of the Interior noted that information
given him by the security agencies showed that during his work in the NRC
Petitioner was exposed to state secrets some of which he had not turned over
and had not been published. He also noted that statements made by Petitioner at
his trial, letters he wrote during his imprisonment, and material he had
prepared during his imprisonment showed that there was real danger and high
probability that were he to leave Israel after his release, Petitioner might
reveal state secrets which had not yet been turned over or published. The
Minister added that he had also weighed the degree of injury caused the
Petitioner by the order and came to the conclusion that in balancing the injury
caused the Petitioner by the order prohibiting him from leaving Israel as
against the imperative of protecting state secrets, the security interest must
take precedence. Similar arguments were stated by the Head of the Home Front
Command in response to the objections presented by Petitioner and his attorney
against the intention of imposing restrictions on Petitioner. In the reply to
Petitioner’s attorney, it was made clear that the purpose is to prevent
Petitioner from harming the security of the State, and that detailed
information had shown that such danger existed if the order were not issued. At
the same time, the General stated that, having examined the Petitioner’s
objections, he found grounds for modifying the restrictions he had intended to
impose, and itemized the modifications. The order he issued, described above,
reflects the modifications.
5. In their
written petition the Petitioners’ attorneys challenged inter alia the legal
validity of the laws on which the orders were based. The implication of
adopting this position would be that the Respondents had no authority to issue
the orders. By contrast, in their oral arguments before us, the Petitioners’
attorneys sought to convince us that there are no grounds for the Respondents’
concern that Petitioner might and is capable of harming the State’s security by
exposing its secrets; hence the restrictive orders should be dismissed, being
arbitrary, unreasonable and disproportionate. Before proceeding to discuss the
justice and reasonableness of the orders issued against Petitioner, I shall
explain in brief why, in my opinion, we cannot accept the Petitioners’
challenge to the validity of the laws on which the Respondents based their
authority to issue the orders.
6. The Defence
(Emergency) Regulations, 1945 are primary Mandatory legislation, which upon the
establishment of the State of Israel became - by virtue of section 11 of the
Government Administration and Law Ordinance, 5708-1948 - incorporated into
Israeli law. Soon after the establishment of the State it was argued before the
Supreme Court that the Defence Regulations should be repealed (as required by
the latter part of section 11 of the Ordinance), due to ‘changes arising from
the establishment of the State and its authorities’. Rejecting this argument,
the Court ruled that the Defence Regulations remain in force and had been
incorporated into Israeli law, and it was up to the legislature to change or
repeal them (HCJ 5/48 Lion v. Gubernik, IsrSC 1 58). Over the years this
ruling was reinforced many times; e.g., 680/88 Schnitzer v. Chief Military
Censor, IsrSC 42(4) 617; and recently HCJ 10467/03 Sharbati v. Head of
the Home Front Command, IsrSC 58(1) 810). The Petitioners’ attorneys argued
before us that the Court’s ruling that the Defence Regulations are part of
Israeli law is mistaken, and that in any case it is time to abandon it, since
it violates the values of the State and human rights as embodied in the Basic
Law: Human Dignity and Liberty.
The State of Emergency Regulations
(Exit from the Country), 5708-1948 were promulgated by the Minister of the
Interior by his authority according to section 9(a) of the Government
Administration and Law Ordinance. These were originally secondary legislation,
but when they were extended by primary legislation (in the Extending of the
State of Emergency Regulations
(Exit from the Country) Ordinance, 5709-1948) they were included in the annex
to the said Ordinance, and became part of the Ordinance. Thus the regulations
were upgraded to primary legislation. This is grounded in the Court’s ruling in
HCJ 243/52 Bialer v. Minister of Finance, IsrSC 7 424, and has been
reaffirmed repeatedly since that time. (See, for example, the decision of Justice
Barak in HCJ 4472/90 Local Authority Oranit v. the Minister of Finance,
IsrSC 46(1) 95, p. 99.) The Petitioners’ attorneys sought to convince us that
the ruling in Bialer was misguided and the time has come to repeal it.
They argued that emergency regulations are inherently secondary legislation and
no primary legislation can upgrade it to the level of primary legislation.
According to their argument, regulation 6 of the State of Emergency Regulations (Exit from the
Country) is an unreasonable secondary legislation and conflicts with basic
human rights, and the Court should either declare it invalid, or call for its
repeal.
7. I am not
persuaded by the arguments of the Petitioners’ attorneys, namely, that the
orders issued against Petitioner constitute a sufficient cause to reconsider
the justice of the rulings in the cases of Lion and Bialer. Over
the past five decades the Court has time and again repeated these decisions,
adopted them and invoked them, so that they have become well-established
rulings. For the Court to deviate from such entrenched rulings it must be
persuaded that there are weighty reasons for doing so. In the absence of such
reasons, the Court cannot do better than refer the Petitioners to the
legislature; (cf. CrimA 101/77 Ringelstein v. State of Israel, IsrSC
32(1) 623, decision by Justice Haim Cohn p. 627; and CrimA 2534/93 Malissa
v. State of Israel, IsrSC 51(2) 612). The Petitioners’ attorneys did not
offer weighty arguments to justify reconsidering the justice of the rulings
made in the cases of Lion and Bialer.
Furthermore:
even if the Court accepted the Petitioners’ argument that the Defence
(Emergency) Regulations and regulation 6 of the State of Emergency Regulations (Exit from the
Country) were not primary legislation, this would not be sufficient to abrogate
them. Even if it were true that despite their incorporation in primary
legislation they remained secondary legislation, they constitute in any event
‘validity of Laws’ which section 10 of Basic Law: Human Dignity and Liberty
secures from abrogation. However, the Petitioners assumed that if their
argument - namely, that the State of Emergency Regulations are secondary
legislation - was accepted, this would pave the way to their principal
argument, namely, that the Court is empowered to declare them null and void, or
to instruct that they be made void for being clearly unreasonable. But this is
not such a simple matter: secondary legislation which has been affirmed by a
parliamentary committee may be seen ‘as having been indirectly legislated by
the Knesset itself’ (as stated by Justice Berenson in HCJ 108/70 Manor
v. the Minister of Finance, IsrSC 24(2) 442, 445). Consequently a rule was
established that the Court must be extremely cautious before it intervenes in
secondary legislation that has been affirmed by a parliamentary committee (see:
HCJ 4769/90 Zidan v. the Minister of Labour and Welfare, IsrSC 47(2)
147, p. 172, with the quoted precedents). Needless to say, the principle that
guides the Court when asked to intervene in secondary legislation affirmed by a
parliamentary committee applies a fortiori to consideration of the State of Emergency Regulations,
which were confirmed in a law passed by the Knesset plenary.
However, even if
we were not faced with the obstacles that bar us from intervening in the
binding validity of the State of Emergency
Regulations, I would not accept the Petitioners’
argument that the regulations must be repealed because they are clearly
unreasonable. True, the implementation of emergency legislations - the ones
that concern the present case and others that do not - injures not only the
rights of individuals against whom they are implemented, but also injures the
values that Israel, as a Jewish and democratic state, is obliged by its basic
legislation to respect. Unfortunately, the implementation - like the very
existence - of the emergency legislation is sometimes imperative, due to the
fact that the State of Israel is still subject to danger and threats from
within and without; and if this imperative were not so widely established, the
case of the present Petitioner has served to demonstrate it. This does not mean
that in actually implementing the emergency legislation the authority is free
to ignore the basic rights of the affected individuals. The principle states
that while the Basic Law has not detracted from the force of the ‘Validity of
Laws’, it does influence their interpretation. The same principle applies to
the emergency legislation. This means that though the Court does not examine
the status of the emergency legislation while considering the tests of the
limitation clause set in section 8 of the Basic Law, the Court is obliged to
examine the justification of implementing a provision of the emergency
legislation, as in the present case. That is to say, the Court’s examination is
not supposed to focus on the reasonableness of the given provision in the
emergency legislation, as such, but on the justice of applying it in the individual
case brought before it. The Court must base its examination on two criteria:
does the application of the emergency provision to a particular individual in
the given circumstances meet its general purpose; and does the injury caused to
the individual by its application pass the test of proportionality.
8. In
challenging the reasonableness of the orders, the Petitioners’ attorneys argued
that the Respondents had no justified cause, based on genuine security
considerations, to bar the Petitioner from leaving Israel and to restrict his
movements and contacts within the State. They argued that the orders were
issued for improper reasons: they were intended only to injure the Petitioner,
either in order to continue to punish him for his acts, or to detter others who
possess state secrets and warn them of their fate if they revealed them. As for
the Respondents’ concern that Petitioner would reveal and cause to be published
state secrets that he had not previously disclosed, they argued that this concern
is unfounded. They maintain that during the interview Petitioner had with the
staff and consultants of the Sunday Times in 1986, Petitioner had disclosed all
the secret information in his possession. There being no dispute that since he
resigned from his post at the NRC - about 18 years ago - he has not obtained
any more secret information, there is no basis for the suggestion that
Petitioner can still reveal secrets of any kind. As for statements made by
Petitioner in the past - during his trial and his imprisonment - that he still
had secret information that he had not revealed and would do so after his
release, they argued that these were without value. They sought support for
this argument with a written opinion from the expert Frank Barnaby, who had questioned
Petitioner for the Sunday Times in 1986. The expert stated that the questioning
held at that time had elicited all the information Petitioner possessed.
Furthermore, the Petitioner’s attorneys asked the Court to trust the
Petitioner’s declaration that he neither wished to nor could expose additional
state secrets, and once released, he intends to act only in the ideological and
public sphere against nuclear arms in Israel and other countries. The
Petitioners’ attorneys argued that the restrictions imposed upon Petitioner
were designed, inter alia, to stop him from using legitimate means to protest
against Israel’s
political and security positions. They also noted the severity of the injury
caused Petitioner by the imposition of the said restrictions, mainly the
prohibition against leaving the country. They argued that ever since his
actions were published Petitioner has been denounced as a traitor and made into
an object of hatred and loathing among the Israeli public. Now that he has
served his sentence, Petitioner wishes to rehabilitate his life, to support
himself and have a family, but he has no real chance of doing so in Israel.
Therefore, with the object of creating a new life for himself in another place,
he wishes to leave Israel
for good.
9. We have found
no reason to doubt the Respondents’ assessment that Petitioner’s lengthy
imprisonment did not discourage or weaken his desire and intention of
disclosing and publishing secret information about the NRC, garnered by him
during his employment there. Petitioner clearly expressed his determination to
do so on many occasions. We give particular weight to passages quoted by the
Respondents from letters sent by Petitioner from his prison cell to various
people. Thus, for example, he wrote in a letter of 15.11.1998, which was seized
when in his possession:
‘To all the
espionage agencies of Israel and the world: I Mordechai Vanunu inform you....
that I, the moment I am free or have the opportunity, I will publish all the
secrets and information I have about Israel’s nuclear weapons and all the
activity at the NRC in Dimona. This time I shall go to America, the Congress, the Senate, the White
House, to England, Europe and testify under oath, report to them about the
crimes of the racist, Zionist, Jewish State.’
A letter
Petitioner sent on 1.8.2000 (to Mrs Plotkin) declares that he is able to
testify ‘about all the materials produced by the reactor in Dimona.’ In a
letter dated 8.12.2000 (to Ms O’Hearn), Petitioner declares that when he is
free he would be willing ‘to work for foreign espionage agencies.’ In a letter dated 26.12.2000 (to Mr Ernest
Schwartz), Petitioner expressed the hope that once he is released he would
travel to the International Agency in Vienna and
testify about Israel’s
nuclear secrets. Another letter to Ms O’Hearn, written in June 2003, implies
that Petitioner also hopes to obtain financial remuneration from writing a book
in which he would reveal the secrets he knows. He states, inter alia, that ‘if
anyone asks for an exclusive interview or some deal to do with the book, he
will have to pay a million dollars for it.’
10. There is,
therefore, no doubt that Petitioner’s desire to disclose secret information
about the NRC remains as firm and determined as ever. But does Petitioner still
have the capacity to continue harming the State by exposing its secrets more
than he did with his disclosures that were published by the Sunday Times about
18 years ago? The Respondents argue that this question, too, must be answered
in the affirmative. Substantial evidence for their position was obtained
recently. Petitioner’s cell was searched prior to his release. In it were found
crates containing thousands of letters and documents, and a number of
notebooks. Upon examination these were found to contain orderly notes and many
diagrams handwritten by Petitioner during his imprisonment. In these notes and
diagrams Petitioner reconstructed from memory structures, installations,
methods and processes which existed and operated in the NRC during his employment
there. It was explained to us that most of the writing constituted information
that Petitioner had learned and memorized in the course of his assignment as a
technician in one of the departments of the NRC, where he worked for about ten
years. But among the data which he recorded in his notebooks there was also
secret information which Petitioner had gathered in other departments of the
NRC, to which according to the standard procedures he had no right of entry. It
arose in the course of his interrogation and at his trial that the decision to
gather secret information for the purpose of having it published had matured in
Petitioner’s mind about two years before he resigned, and that during the last
two years of his work (mainly when he was on night shift) he would enter other
departments of the NRC, hunt for secret material and photograph documents
which, even if he did not always understand them, he estimated that they
contained top secret data. It goes without saying that when he was arrested the
written material in his possession was seized, but Petitioner appears to be
gifted with exceptional memory. The notebooks seized in his cell reveal that he
could recall in minute detail the data and processes to which he had been
exposed in his work, and had also memorized other data and processes he had
learned about from the documents he had secretly copied and photographed in
other departments of the NRC.
11. The
discovery of these notebooks gave rise to two questions: one, for what purpose
did Petitioner memorize this material? Two, what may be learned from these
notebooks about the quality and scope of the secret information Petitioner
retains in his memory? The first question was discussed before us, partly in
open court and partly in camera, but in the presence of Petitioner and his
attorneys, who were not prevented from examining the notebooks. The second
question was discussed before us in camera, with the consent of Petitioner’s
attorneys, without Petitioner and his attorneys being present.
Concerning the
first question, Petitioner’s attorneys argued that the fact that Petitioner
recorded the secret material did not mean that he intended to publish it. They
argued that Petitioner recorded the material from memory in order to exercise
his mind and his memory, which might have deteriorated in the conditions of
isolation in which he spent a major part of his imprisonment. This strange
explanation does not hold water. It is enough to look at the notebooks to see
that meticulous, painstaking labour was invested in the scores of diagrams and
pages of text. Moreover - whatever he had written in Hebrew he later took the
trouble to translate into English. The Respondents’ attorney was correct in
stating that Petitioner’s notebooks were plain evidence of his intention to
cause the material to be published after his release from prison. He must have
written down the secret information he had stored in his mind for fear that he
would forget it, and probably in order to recapitulate what he remembered, then
translated it into English in order to have it accessible - or at least ready
to be repeated orally - and get it published when he was released from prison.
12. As stated,
the second question was discussed in camera out of the presence of Petitioner
and the Petitioners’ attorneys. In this context we were shown confidential
opinions of experts on the subject (of which only the unclassified portions
were shown to the Petitioners’ attorneys). The court having studied these
written opinions, it heard the experts give detailed explanations and answers
to our questions. We cannot reveal the contents of these exchanges. What we can
state is that having examined the notebooks, the experts concluded that the
material recorded in them included not only the secret information that
Petitioner gave the Sunday Times at the time, but also additional secret
information which apparently he did not give the newspaper and that at any rate
has never been published anywhere. This finding corresponds with what
Petitioner himself said when interrogated by the security agencies (before his
trial), concerning the information he had given the Sunday Times’ correspondent
and the newspaper’s investigators. The explanations we received from the
experts persuaded us that the Respondents were correct in assuming that
Petitioner still retains in his memory secret information which, if published,
could damage incontestable security interests of the State of Israel.
13. Petitioner’s
attorneys also protested against the severity of the restrictions imposed upon
him. We agree that the restrictions are harsh and burdensome. However, we see
no just cause to intervene against them.
The Minister of
the Interior based his decision to bar Petitioner from leaving Israel on the authority vested in him by
regulation 6 of the State of Emergency
Regulations (Exit from the Country), 5708-1948. This
regulation, which was extended by the Extending of the State of Emergency Regulations
(Exit from the Country) Ordinance, 5709-1948, and the text of which appears in
the annex to the said Ordinance, states:
The Minister of the Interior may bar a person from
leaving Israel
if there is reason to suspect his exit might jeopardize the security of the
State.
No one disputes
the importance of the right of every person to leave Israel. More than five decades ago
this Court determined that ‘a person’s freedom to move out of the country is a
natural right’ (Justice Silberg in HCJ 111/53 Kaufman v. Minister of
the Interior, IsrSC 7 534, 536). Since that time - does it need mentioning?
- this freedom has been enshrined in the Basic Law: Human Dignity and Liberty, which determined (in section 6 (a)) that ‘every
person is free to leave Israel’.
But the Basic Law did not detract from the Minister’s authority embodied in the
said regulation 6, which is a ‘valid laws’, in the sense defined by section 10
of the Basic Law. At the same time, as has been said, though the Basic Law does
not invalidate regulation 6, it does affect its interpretation - hence the
great caution which the Minister of the Interior must exercise in applying it,
in view of the major importance of the right of the individual who is injured
by its application (cf. statement my colleague the President made in a
different context from the present one, in CMA 6654/93 Binkin v. State of
Israel, IsrSC 48(1) 290, 293.) It
must pass a double test: the purpose of issuing the order and its
proportionality.
The order issued
by the Minister of the Interior against Petitioner has withstood the double
test. What we have seen proves that there is substantial risk that if allowed
to leave Israel Petitioner may publish secret information that he possesses,
which if published may jeopardize the security of the State. And it has already
been ruled that a substantial risk that the exit of a person from the country
may jeopardize the State’s security entitles the Minister of the Interior to
use his authority to bar the person’s exit (HCJ 448/85 Daher v. the Minister
of the Interior, IsrSC 40(2) 701; and HCJ 4706/02 Sallah v. Minister of
the Interior, IsrSC 56(5) 695). The order issued by the Minister of the
Interior is proportional. Given the circumstances of the case, the Minister
could not have confined himself to issuing a partial restriction of the right
to exit the country, since it is all too obvious that once Petitioner is
allowed to leave the country, the State would not be able to control his
activities. Yet it should be noted that the Minister confined himself to
prohibiting Petitioner from leaving the country for a limited period of twelve
months. This does not signify that at the end of the said period the Minister
will be unable to issue another order prohibiting Petitioner from leaving the
country for an additional period. It means that the Minister has undertaken to
reconsider, at the end of the present period of prohibition, if the risk that
Petitioner’s exit from Israel
might jeopardize the State’s security remains so strong as to justify issuing a
new prohibition order.
14. Concerning
the purpose of the restrictions that the Head of the Home Front Command imposed
on Petitioner’s freedom of movement within the State, and on his freedom to
maintain contacts with others as he sees fit, we received (in camera) detailed
explanations from a representative of the General Security Service. We cannot
disclose these explanations, and all we can say is that the restrictions
imposed on Petitioner were designed to improve to some extent the ability of
the Israeli police and security agencies to supervise Petitioner so as to prevent
him from using his liberty to move about freely either to violate the order
forbidding him from leaving the country or to communicate the secret
information he possesses to unauthorized elements. On the face of it,
Petitioner’s attorneys were correct in stating that the restrictions imposed on
Petitioner by the Head of the Home Front Command are not very efficient and
cannot guarantee the purposes for which they were issued. But this ‘flaw’
(which is indeed a flaw from the standpoint of the authorities) is due to the
General’s decision to alleviate, as much as possible, both the substance and
the scope of the restrictions to be imposed on Petitioner. For this alleviation
surely the Petitioner has no cause for complaint.
15. The
above-stated reasons have led me to the conclusion that this petition must be
dismissed.
Vice President
President A. Barak:
I concur.
President
Justice M. Cheshin:
I concur.
Justice
Held, as stated in the opinion of
Vice-President E. Mazza.
Issued this day, 8 Av, 5764 (26.7.04).
President Vice-President
Justice
