Today, 24 March 2009, at a hearing held before an expanded panel of nine justices of the Israeli Supreme Court, three human rights organizations - The Public Committee Against Torture in Israel, the Association for Civil Rights in Israel (ACRI) and Adalah: The Legal Center for Arab Minority Rights in Israel withdrew a petition challenging the constitutionality of harsh criminal procedure law that applies to "security suspects" overwhelmingly Palestinians from the Occupied Palestinian Territory (OPT). The petition was withdrawn in protest against the Supreme Court's unprecedented and illegal decision to hear secret evidence presented by Israel's General Security Service (GSS) ex-parte, in the absence of the petitioners, relating to the constitutionality of the law.
The court's decision means that it would decide on the petition regarding the constitutionality of the law on the basis of this secret evidence, without giving the petitioners the opportunity to examine, discuss or question it. The organizations argued that the court's decision has no legal basis and contradicts previous Supreme Court judgments. The organizations pointed out that this decision sets a dangerous precedent which significantly harms future possibilities for judicial review of laws that violate human rights.
The law being challenged by the organizations is the “Criminal Procedure (Enforcement Powers – Detention) (Detainee Suspected of Security Offense) (Temporary Order) 2006”. It was legislated as a temporary order for 18 months but was extended for an additional three years in December 2007. The Ministry of Justice apparently intends to turn it into a permanent law. The law permits the detention of suspects for 96 hours without judicial oversight (in comparison to 24 hours, or 48 hours, in cases of other detainees), the possibility of extending the suspects detention in their absence, and without allowing them to defend themselves, and even the withholding of information on whether the detention was extended or shortened. These restrictions add to a series of other harsh limitations on the rights of detainees that existed prior to this law. The organizations warned that if this law is not canceled, an individual's liberty could be taken away in the first stage, with no judicial review and at the second stage without hearing the detainee or seeing him and with no opportunity for counsel to make an effective argument in his or her defense. Furthermore, implored the organizations, this law creates a wide scope for detainees to be tortured.
Despite the severity of the law, of which even the State acknowledges, the organizations decided to withdraw the petition and announce their decision during the course of the hearing. This decision was made because of the unprecedented decision by the court to decide on the constitutionality of a law based on information privy only to the GSS (Shabak) and withheld from the petitioners and from the public. The organizations' representatives announced that they cannot be parties to such an improper legal process in which the constitutionality of a law that violates human rights is deliberated based on secret evidence.
Attorneys Eliyahu Abram from PCATI, Lila Margalit from ACRI and Fatmeh El-‘Ajou from Adalah submitted the petition. Attorneys Bana Shoughry-Badarne from PCATI, Dan Yakir from ACRI, and Hassan Jabareen from Adalah argued the case before the court.
H.C. 2028/08, The Public Committee Against Torture in Israel, et al., v. The Minister of Justice, et al.