HaMoked to the HCJ: cancel the nighttime curfew imposed on several residents of the Jerusalem neighborhood of ‘Isawiya under archaic British Mandate legislation
On February 13, 2020, HaMoked petitioned the High Court of Justice (HCJ) on behalf of five Jerusalemite Palestinians living in the ‘Isawiya neighborhood, to cancel the restriction orders issued against them by the military home front commander, which prohibit them from leaving their homes from 20:00 in the evening until 06:00 in the morning. Additionally, HaMoked demanded the revocation of Regulations 108-110 of the Defense (Emergency) Regulations of 1945
, pursuant to which the orders had been issued. Alternatively, HaMoked asked that should the court legitimize the authority to issue such orders under Regulation 110, it should cancel the procedures in which the orders had been issued for being unfair, unreasonable and disproportionate.
One of the petitioners is a 20-year-old accounting student who worked evening and night shifts at hotels until the order was issued. The student, who has no criminal record, has been arrested some 15 times by the Israeli security forces and each time released after a few days, without any indictment, usually by court order. On December 31, 2019, Israel Security Agency, Israel Police and Israel Border Police arrived at his home and served a notice of intent to issue a restriction order against him, listing as grounds that “You are a major popular terror activist in the neighborhood where you live. In this context it is known that you are involved in public disturbances and the throwing of fire bombs”. According to the notice, the deadline for submitting an appeal against the order was December 27, 2019 – three days before the notice was served.
In the petitions, HaMoked argued that the draconian orders were issued without the petitioners having been given a meaningful opportunity to contest them ahead of time; they were thus denied the right to be heard, and the constitutional right to due process; and additionally their rights to freedom of movement, education, freedom of occupation and dignified livelihood were severely breached.
HaMoked also argued that the restriction orders were issued by the military commander without authority, as there was newer and more appropriate legislation than these regulations, and in this instance, the Criminal Procedure (Powers of Enforcement – Arrests) Law 5756-1996, and the Counterterrorism Law, 5776-2016. The 1996 Law of Arrests (as it is commonly called), allows restricting a person’s movements even without a grounds for arrest, but with judicial approval. The Counterterrorism Law, albeit draconian, still gives the authorities more proportionate tools for tackling what the state calls terror. HaMoked clarified that the Defense (Emergency) Regulations – enacted 75 years ago by the British Mandate rule – allow imposition of harsh restrictions, including arrest and incarceration, ban on movement and removal from one’s area of residence – all through military orders and based on information that is kept classified. Moreover, the Regulations grant the executive branch almost total discretion, without any review mechanism or a duty to strike a balance between the needs of security and human rights. Therefore, concluded HaMoked, their use in this day and age cannot be justified.
HaMoked noted that although under the HCJ case law the Regulations are still in effect even after the enactment of Israel’s constitutional basic laws, they must be interpreted in the spirit of Basic Law: Human Dignity and Liberty, including the principle of proportionality. HaMoked clarified that even should the court uphold the use of Regulation 110, it should be limited to preventing a future threat and exceptional circumstances of security necessity. Evidently these are not the circumstances in the current cases, and therefore the authorities should have followed the basic principle, whereby a person’s liberty should only be limited as part of a fair legal proceeding wherein the suspect is given every opportunity to defend themselves. HaMoked argued that it appears these orders constitute an attempt to circumvent the judicial process, in the absence of sufficient evidence to pursue criminal proceedings against the petitioners.
In the petitions, HaMoked described the intensive operations of the Israeli security forces in ‘Isawiya in recent months, as part of which they “raid educational institutions, close down stores and carry out mass-arrests, few of which end in indictments”. HaMoked voiced concern that the restriction orders were another step in this policy, and in fact constituted prohibited collective punishment, intended to intimidate the local population.