HaMoked often petitions the HCJ on behalf of Palestinians deprived by the military of their right to freedom of movement. In most cases, the state suppresses the evidence on which it bases its decisions, and pleads in court that the denial of freedom of movement is founded on "information held by security officials". The state defines the information as "privileged", and consents to presents it to the court in sealed ex parte hearing. Invariably in these cases, the state presents no certificates of privilege.
This practice, employed routinely by the state in recent years, requires the petitioners' consent. The Israeli law stipulates that a litigant is entitled to review all documents the other party intends to rely on in court, unless legally privileged. Evidence becomes confidential once a certificate of privilege has been issued, signed by the appropriate government minister.
In May 2010,
HaMoked contacted the State Attorney's Office concerning four of its petitions, in which the state claimed – without the petitioners' consent or a certificate of privilege – that the evidential material was "privileged". HaMoked demanded to receive the relevant documents or alternatively the certificates of privilege. Only five months later did the State Attorney's Office respond to the issue at hand, and disregarding HaMoked's legal arguments, contended that the current practice was suitable "in the context of the reasonableness of an administrative decision".
In a hearing
on one of the petitions, the HCJ Justices sided with HaMoked's position and clarified to the state that unless it issued a certificate of privilege, it could not rely on the material it deemed 'privileged' without allowing HaMoked to examine it. In an
additional response, the state repeated its claims, adding that the issuing of certificates of privilege placed a 'heavy burden' on the Prime Minister and the Minister of Defense.
HaMoked reasserted the importance of certificates of privilege, emanating from the petitioners' right to due process, in providing them with safeguards – assuring their matter has been examined by an authorized senior administrative official rather than a junior official; and allowing them, if they wish, to petition for disclosure.
Following an additional hearing at the Supreme Court – in which the state persisted in refusing to present a certificate of privilege or allow the petitioners to view the material concerned – the HCJ accepted HaMoked's position and issued an
order nisi, compelling the state to explain the grounds for the military's refusal to allow the petitioner to travel abroad, and present the evidence on which it relied.
A similar order nisi has been issued in another petition. Thus, the Supreme Court has made it clear to the state that when it seeks to suppress the evidence on which it relies "on security reasons", it must issue a certificate of privilege as prescribed by law.
