¹ See: The decision in H.C. 676/84 of November 27th, 1984, at p. 385; the judgment in H.C. 676/84 of January 6th, 1985 at p. 561; and the judgment in H.C. 750/84 of January 14th, 1985, at p. 609.

² Former Minister of Defence in Israel, and a Minister in the present Government of Israel.

³ 38(iv) P.D. 385 and 561. The exact translation into English of the first respon dent's title would be: The Legal Advisor to the Government. However, the title used by him in English seems to be: The Attorney General of the State of Israel. See (1984) 19 Is.L.R. at 294. Henceforth he will be referred to as: The Attorney General (or : the A.G.).

⁴ Unfortunately, so it seems to me, the facts as stated in the first decision in H.C. 676/84, and in the final judgment in that case, regarding some particulars as to the application for the requests for legal assistance from a court in Israel, and the delivery of the requests to Israel, are not clear cut. For instance, from the beginning of the first decision, at p. 387 it appears that the two requests of the Court in New York made on August 22nd and on September 17th, 1984 concerned the questioning of witnesses, whereas the specification which follows leads to the conclusion that the first request concerned the discovery of documents and the second was in regard to the questioning of witnesses.

⁵ See 38(iv) P.D. at 563.

⁶ K.A., vol. 26, no. 899, p. 689. This Convention will hereinafter be referred to as the Hague Convention of 1970. This Convention—as stated in K.A. 26—was signed by Israel on November 11th, 1977 and came into force in regard to Israel on September 17th, 1979. Rules regarding the implementation of the Hague Convention of 1970 regarding ithe taking of evidence were published, interestingly, several months before the date on which it was signed by Israel as aforesaid. See K.T. 3703 of May 1st, 1977, p. 1518. See Lapidoth, R., “Note on the Publication of Treaties” (1972) 7 Is.L.R. 368CrossRefGoogle Scholar.

⁷ Unfortunately not all the details of the matter have been stated fully in the Court's decision and in some passages—so it seems to me—the text is not entirely exact. Therefore some guesswork is inevitable in this case. For instance, the reference to Art. 3 of the Hague Convention of 1970 with regard to the way in which one of the requests for foreign legal assistance has been transmitted in H.C. 676/84 (38(iv) P.D. 563) unfortunately does not seem to be accurate. Art. 3 deals with details which a Letter of Request should specify whereas Art. 2 is the one which deals with the transmission of such Requests.

⁸ 31 L.S.I. 102, 105.

⁹ The Hebrew words (S.H. 5737–1976/77, p. 92), which in the authorized translation into English have been translated into “any matter of public policy” can also be translated into “any rule of public order”, which seem to me closer to the meaning in which they were used in the present instance. The exact meaning of this phrase, even in its original language, i.e. in Hebrew, is hard to define. Levin J. suggested giving the phrase a broad interpretation so as to include in it any matter which is injurious to the public interest (p. 570). It seems that the phrase “public policy” had caused a certain degree of trouble not only to judges in Israel, but even long ago in England. See Lord Denning's, citation in his judgment in Enerby Town Football Club Ltd., v. Football Association Ltd., [1971] Ch. 591, 606Google Scholar: “I know that over 300 years ago Hobart C.I. said the ‘Public Policy is an unruly horse’. It has often been repeated since….”

¹⁰ Unfortunately the Court's decision of November 27th, 1984 did not state clearly with regard to every one of the A.G.'s refusals, whether it rested on only one of the two reasons—prejudice to the security of the State and prejudice to public policy—or on both. The words “for the same reason” immediately following the specification of both reasons, cause some confusion on this point. However, so it seems, most of the refusals rested on the sole ground of prejudice to the security of the State. In regard to one specific question in a series, which the A.G. refused to allow, it seems quite clear that the A.G.'s refusal rested at first on the ground of prejudice to public policy only. This was the refusal in regard to which the order nisi was issued on November 27th, 1984.

¹¹ 10 L.S.I. 93.

¹² As to contractual international law see an obiter dictum of J., Witkon in H.C., 390/79, J. Dwaikat and others v. The Government of Israel and others, 34(i) P.D. at 29Google Scholar, where he explained that it is not part of municipal law unless adopted by national legislation. A translation into English of this judgment—wherein the word “conventional” is used as an equivalent for “contractual”—has been published in Appendix A to Vol. I of “Military Government in the Territories Administered by Israel 1967–1980” edited by M. Shamgar and published by The Hebrew University of Jerusalem, The Faculty of Law, The Harry Sacher Institute for Legislative Research and Comparative Law, 1982, at p. 404. The relevant section is at the bottom of p. 437. Unfortunately several words have seemingly been mistakenly omitted from the sentence immediately preceding the above mentioned one regarding conventional (in the sense of contractual) international law. See also Dinstein, Y.: The International Law and the State, (Shocken Publishing House Ltd., and Tel-Aviv University, 1971, in Hebrew) 143Google Scholar.

¹³ K.A. 26, no. 899, p. 689 at 696.

¹⁴ 31 L.S.I. 102.

¹⁵ I.e., the request.

¹⁶ The foregoing sentence may call for clarification. However, it seems to be a close translation of the Hebrew sentence included in the judgment which it represents, and which is uncommonly formulated.

¹⁷ “First” may have been used here also in the sense of “preliminary”.

¹⁸ The Court referred in this connection to: Actes et documents de la onzieme session, 7 au 26 Octobre 1968, tome IV, p. 210.

¹⁹ It is not clear what is meant by “in advance” (or “initially”) in this context. Such an expression is not included in Article 36 of the Hague Convention of 1970 as published in K.A. 26, p. 689 at 707. Article 36 of the Hague Convention of 1970 is only mentioned but not cited in the judgment. This Article provides: “Any difficulties which may arise between contracting States in connection with the operation of this Convention shall be settled through diplomatic channels”.

²⁰ The above summary is close to what may be termed a “free translation” from the Hebrew text at p. 389 of the judgment.

²¹ I.e., of the British Mandate for Palestine.

²² Questions regarding the ratification of treaties in Israel and the application of international treaties have repeatedly arisen and have been deliberated in judgments and in articles. See for instance the cases of H. Kamiar, 51 P.M. 13, 57 P.M. 184 and 22 (ii) P.D. 85. For comments on the District Court's decision of April 21st, 1966 in S.P. (Jerusalem) 5/65 see: Lapidoth, R., “On the Validity of the Extradition Treaty between Israel and Switzerland” (1966) 22 HaPraklit 328Google Scholar and Blum, Y.Z., “The Ratification of Treaties in Israel” (1967) 2 Is.L.R. 120Google Scholar. See also Feinberg, N., “Declarative and Constitutive Treaties in International Law” (1968) 24 HaPraklit 433Google Scholar. Recent directives of the A.G. regarding the process of ratification of international treaties have been published in (1984) 19 Is.L.R. 292.

²³ S.H. 1984, p. 78.

²⁴ It is not absolutely clear which “factor” (or body) is meant by this term, but apparently it refers to the public authority in the foreign state, which is competent to act in order to enforce the International Convention.

²⁵ Free translation

²⁶ 2 L.S.I. (N.V.) 198, 208. Sec. 44 of the Evidence Ordinance (New Version), 5731–1971 provides:

“Privilege in the interest of the State”

“44(a) A person is not bound to give and the court shall not admit, evidence regarding which the Prime Minister or the Minister of Defence, by certificate under his hand, has expressed the opinion that its giving is likely to impair the security of the State, or regarding which the Prime Minister or the Minister of Foreign Affairs, by certificate under his hand, has expressed the opinion that its giving is likely to impair the foreign relatons of the State, unless a Judge of the Supreme Court, on the petition of a party who desires the disclosure of the evidence, finds that the necessity to disclose it for the purpose of doing justice outweighs the interest in its non-disclosure.

(b) Where a certificate as referred to in subsection (a) has been submitted to the court, the court may, on the application of a party who desires the disclosure of the evidence, suspend the proceedings for a period fixed by it, in order to enable the filing of a petition for disclosure of the evidence or, if it sees fit, until the decision upon such a petition”.

²⁷ Apparently the petitioner estimated that he would have better chances to overcome the obstacle of prejudice to State security if the matter were handled according to the procedure stipulated in sec. 44 of the Evidence Ordinance (N.V.) 5731–1971.

²⁸ Sec. 8 of the Law of 1956 became sec. 12 of the Law in its consolidated version of 1977. Sec. 44 of the Evidence Ordinance (N.V.) was added to this Ordinance in 1968. See 22 L.S.I. 222—Law of Evidence (Amendment) Law, 5728–1968.

²⁹ This was done with reference to H.C. 171/69, P. Filzer and another v. The Minister of Finance and another, 24 (i) P.D. 113.

³⁰ Shamgar P. refrained from using the word “justification”, here seemingly in order not to create the appearance that a question of “justice” is involved here.

³¹ Free translation from 38 (iv) P.D. 391.

³² 36(iii) P.D. 449, M. Lugassi and another v. The Minister of Communication and others. See: Sharon, P., “A Digest of Recent Israeli Cases” (1982) 17 Is. L.R. 524CrossRefGoogle Scholar.

³³ Free translation from 38(iv) P.D. 392.

³⁴ Shamgar P. made a similar remark in the judgment delivered on January 6th, 1985. See H.C. 676/84, 38(iv) P.D. 561 at 566 and so did Ben-Porat D.P. in H.C. 750/84, 38(iv) P.D. 609 at 612, although she phrased it differently.

³⁵ See supra n. 32.

³⁶ The Court did not specify the nature of “the efforts” mentioned and the identity of those who were involved in making them. The Court did. however, mention that when the time will come, sec. 26(b) of the Commissions of Inquiry Law, 5729–1968 (added to this Law in 1979: 33 L.S.I. 100) has to be honoured. This section provides:

“(b) The Government may, by order, with the approval of a Knesset Committee to which it has applied therefor, permit the inspection or publication of any such report of a commission of inquiry or of any such other matter mentioned in subsection (a) or of any such part of either as has not been published”.

³⁷ By “prior decision” the Court seemingly meant the Inquiry Commission's classification of the relevant documents as secret and not a previous decision of the A.G.

³⁸ Former Chief of Staff of Israel and a Minister in the present Government of Israel.

³⁹ See at p. 563.

⁴⁰ See supra nn. 6 and 7.

⁴¹ It may be of interest to note, that Art. 12 of the Hague Convention of 1970 (cited above) contrary to sec. 12 of the Legal Assistance to Foreign States Law (Consolidated Version), does not include “prejudice to any matter of public policy” as a reason for which the execution of a Letter of Request may be refused, and that seemingly this fact was not raised in Court. As stated, the A.G.'s refusal to grant the Request concerned, in his written reply to the petitioner and in his comment delivered to the Court on Nov. 25th, 1984 was based on sec. 12 of the consolidated version of the Legal Assistance to Foreign States Law.

⁴² The fact that the Court used the word “notification” (at p. 565) may mean that it was not in the form of an affidavit which is the usual form for filing an opposition to making an order nisi absolute. See rule 9(a) of the Procedure in the High Court of Justice Rules, 5744–1984, K.T. No. 4685 of August 12th, 1984, p. 2321.

⁴³ Snowcrest (Israel) Ltd., v. The Mayor of Bnei.Brak and another, 27(i) P.D. 632.

⁴⁴ Although the Court made a point of it that the reason of prejudice to the security of the State was not mentioned by the A.G. in his reply to the petitioner and that it was only added by him later, it seems that the Court did not attach importance to the fact that this reason was also not included in the A.G.'s above mentioned comment of Nov. 25th, 1984, but only after the issue of the order nisi.

⁴⁵ However, the Court seemed to have found no reply to the puzzling question why the reason of prejudice to State security had not been raised from the beginning also in regard ito the sixth question to Mr. Bar-Lev, especially as this reason was given—from the start—for the refusal to allow the other questions to be put to him.

⁴⁶ The President himself made a remark to this effect. See p. 567 of the judgment.

⁴⁷ Apparently the President meant a precedent of a case of such a forced encounter.

⁴⁸ The words “as well” or “also” have seemingly been used to mean “even”. Otherwise it would probably mean that such practice is common here.

⁴⁹ The Hague Convention of 1970 in this case.

⁵⁰ Time Inc. v. The Attorney General and others, 38(iv) P.D. 609.

⁵¹ 38 (iv) P.D. 385 and 561.

⁵² I.e. after the issue of the order nisi in H.C. 676/84.

⁵³ See supra n. 8.

⁵⁴ Unfortunately there seems to be a certain (printing?) error in the text, between the marginal letters A and B at p. 611 of the judgment. Add to this the Court's immediately following remark regarding the “not too clear contention on this point” of the petitioner's representative, and the use of the word “apparently” becomes apparent.

⁵⁵ See at p. 611.

⁵⁶ It is possible that it was thought that such examination could show whether the reason specified by the A.G. for his refusal was genuine. However, as has already been stated, the Court rejected the assertion which hinted at an undue manipulation by the A.G. in regard to the reason which he stated as the ground for his decision.

⁵⁷ I.e. the opinion expressed in the just mentioned affidavit.

⁵⁸ Free translation from the Hebrew text at p. 612 of the judgment.

⁵⁹ See supra n. 34.

⁶⁰ It should be recalled that a certain “freezing of prices” was prevailing in January 1985.

⁶¹ See Adjudication of Interest and Linkage Law, 5721–1961, 15 L.S.I, 214. which was amended several times.