Center for the Defence of the Individual - The HCJ rejects HaMoked's petition: the justices base their decision on state claims against another man
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15.02.2012

The HCJ rejects HaMoked's petition: the justices base their decision on state claims against another man

A 26 year old student who lives at his parents' home in a village near Ramallah, pursuing his Masters degree at the Birzeit University, was granted a scholarship for a desirable internship program of the department of natural sciences at the Bonn-Rhein-Sieg University in Germany.


Another young student, age 22, who lives at his parents' home in a village near Hebron, is in his second year of undergraduate studies in accounting at the W.I.S.E University in Jordan.

 

These two students do not know each other and are not associated in any way. So how are they connected? They are both Palestinians who arrived in August and September 2011 respectively at the Allenby Bridge border crossing, i.e., the only exit point available to West Bank Palestinians, about to set off for their studies abroad, but were prevented by the military from leaving their own country on grounds of "security", without a signed warrant, explanation or a set time limit.


Under the military procedure, a person banned from travel abroad can submit an objection to the decision to bar their exit and to which the military must within 8 weeks time. Both students filed objections at the District Coordination Offices (DCO) near their homes, in Ramallah and Hebron respectively. With the academic year fast approaching, and with no reply from the military, HaMoked filed two urgent petitions to the High Court of Justice (HCJ), requesting to order the military to let the petitioners travel abroad, clarify when the bans would expire, and reveal the reasons for them. 


In its response to the MA student's petition, the state contended that the objection to his departure abroad was based on his criminal record and classified security intelligence material. Similarly, in its response to the BA student's petition, the state relied on classified information, and asserted that "security entities" remained adamant on banning his exit. Unusually, the state openly presented a statement to the police, presumed to be indicative of the danger emanating from the student. 


The justices decided to consider the two petitions jointly, and a hearing was scheduled for October, 3, 2011. The decision to hold a joint hearing contradicts common practice, whereby a party in law should be given his day in court, and the proceedings conducted with decorum. But this was not all. HaMoked argued its cases separately, but the state representative argued the state's position in each case only after he made an opening statement "concerning both cases". The court then proceeded to review the classified materials against the petitioners both at the same time. Recall, these petitioners were not acquainted or associated in any way. 


The court issued its decisions that same day, rejecting both petitions. In the ruling on the MA student's case, Deputy Chief Justice Rivlin wrote that the state had presented open material about him "including the statements to the police" and that the justices had "reviewed this material as well as the classified material", and found no cause to intervene in the state's decision. But this was not the case. There were no statements to the police in the open material in the MA student's petition, and none were presented to the court. It seems that the statements referred to in the decision were the ones presented in the other case, that of the BA student. Therefore, HaMoked filed a motion for correction or clarification of the judgment, with the state representative's consent, who realized that the decision included an error.  

On January 15, 2012, the court issued a brief – and, prima facie, puzzling – decision that "there is no room to correct the ruling", this and nothing more.


A joint hearing on petitions – especially ones involving classified materials – is likely to lead to a mix-up such as happened here. Claims which were raised in one petition slipped into the decision on the other petition and all because the court heard the parties simultaneously in two petitions concerning two separate individuals.   

 

The court should give the petitioner due attention, enabling him to present his case on his own – particularly if he is confronted with classified material, in which case the court is supposed to serve as the ears and mouth of the petitioner – this is the way to avoid making such errors in decisions which deal with human beings and their basic rights.

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