In petitions filed on behalf of Palestinians from the OPT to the Supreme Court and the Courts for Administrative Affairs, the state often claims in its response that it has classified material which makes it impossible to grant the remedy sought by the petitioner. In such cases, the
state never presents a certificate of privilege signed by the Minister concerned.
Over the years, a practice evolved, whereby, after receiving the petitioner’s consent, the state presents the classified material to the judges in an ex-parte closed hearing (i.e., without the petitioners or their counsel being present and without the public).
With the establishment of the Appeals Tribunal, a more injurious arrangement was adopted: the Tribunal would initiate an intense day of ex-parte hearings, during which only representatives of the state and the Israel Security Agency appeared before the court regarding various cases. The appellants and their counsels would not be present at all on that day, and were thus denied the possibility to plead their case immediately before or after the classified material was presented. At the end of this daylong session, the Tribunal would schedule a hearing for a later date, to be held in the presence of both parties. Clearly, this complete separation between the hearing of the classified material and the hearing of the appellants’ claims in the matter further harmed their chances to defend themselves against the allegations facing them.
In the framework of
an administrative appeal, HaMoked sought to challenge and bring to an end this wrongful arrangement of the Appeals Tribunals, and have it replaced by the arrangement practiced in the courts.
On December 25, 2017, the
Court for Administrative Affairs in Jerusalem ruled that the arrangement applied in the courts would now apply also to the Appeals Tribunal. The court accepted HaMoked’s position that the appellant’s presence and the hearing of their arguments immediately before or after the presentation of the classified material, will allow the judges to reach more correct and informed decisions, while minimizing the inherent infringement of the right to due process caused by the ex-parte hearing.
Following the judgment,
the Appeals Tribunals have begun scheduling hearings in the presence of both parties, according to the court’s instructions.
