1 P.G. no. 1422, suppl. no. 2 (1945), p. 1089. Regulation 119 provides:

(1) A Military Commander may by order direct the forfeiture to the Government of Palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter or street that inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land.

(2) Members of His Majesty's forces or of the Police Force, acting under the authority of the Military Commander may seize and occupy, without compensation, any property in any such area, town, village, quarter or street as is referred to in subregulation (1), after eviction without compensation, of the previous occupiers, if any.

2 See The Israel Association for Human Rights & others v. Commander of the Central Command (1989) 43(ii) P.D. 529.

3 Article 53 provides: “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organisations, is prohibited, except where such a destruction is rendered absolutely necessary by military operations”.

4 With regard to this point, Elon, D.P. cited approvingly the following extract from The Geneva Convention of 12 August 1949, Commentary, Pictet, J.S., ed., (Geneva, 1958) vol. 4, p. 302Google Scholar: “The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases ‘where such destruction is rendered absolutely necessary by military operations’. The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand.

Furthermore, it will be for the occupying power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying power to circumvent the prohibition set forth in the Convention. The Occupying Power must therefore try to interpret the cause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done”.

5 Sec. 32 of the Protection of Privacy Law, 1981 (35 L.S.I. 136) provides: “Material obtained by the commission of an infringement of privacy shall not be used as evidence in court, without the consent of the injured party, unless the court, for reasons which shall be recorded, permits it to be so used or if the infringer, being a party to the proceeding, has a defence or enjoys exemption under this Law”. Sec. 13(a) of the Secret Monitoring Law, 1979 (33 L.S.I. 145) provides: “Nothing recorded by way of secret monitoring in contravention of the provisions of this Law shall be admissible as evidence in court”.

6 Drayton, , The Laws of Palestine (1933) vol. III, p. 2581Google Scholar.

7 Article 51 provides: “…For the purpose of these provisions matters of personal status means suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons”. (Ibid.)

8 38 L.S.I. 282. Sec. 40 provides: “A District Court shall hear - … (2) any matter not within the exclusive jurisdiction of another court; where another court has concurrent jurisdiction in any matter, the District Court shall be competent to hear it so long as it is not being heard by the other court…”

9 The ERA Law, (S.H. 1208, p. 48) of which there is as yet no authorized translation, expressly prohibits the fixing of a lower compulsory retirement age for women than that fixed for men. Where a collective employment agreement purports to establish different compulsory retirement ages for men and women, the latter are granted the right to retire at any age between that fixed for women and the compulsory retirement age fixed for men. However, as explained in the above text, the ERA Law was enacted only after the petition was submitted to the High Court.

10 Boronovsky v. The Chief Rabbis of Israel & others (1971) 25(1) P.D. 7, at 35 (per Agranat P.).

11 See supra n. 9.

12 E.g., sec. 13(a)(1) of the Courts Law (Consolidated Version) 1984, 38 L.S.I. 271, which provides that all Judges shall retire on pension upon attaining the age of seventy years.

13 E.g., sec. 11(e) of the Severance Pay Law, 1963, 31 L.S.I. 189, which provides: “Where a female employee resigns after reaching the age of sixty years or a male employee after reaching the age of sixty-five years, the resignation shall for the purposes of this Law be regarded a dismissal…”

14 To give but two examples of the different laws referred to by Bach J. in this context: sec. 1 of the Male and Female Workers (Equal Pay) Law, 1964, 18 L.S.I. 165, provides: “An employer shall pay to a female worker a wage equal to the wage paid to a male worker at that place of employment for the same work”; sec. 1 of the Employment (Equal Opportunities) Law, 1981, 35 L.S.I. 350, provides: “A person in need of an employee shall not refuse to accept a person for employment … by reason of his sex…”

15 5 L.S.I. 171.

16 The Hebrew noun translated as “proceeding” in this provision — “pe'ula” — might also be understood more generally as referring to an “act” (i.e., a legal act).

17 See the example given in supra n. 13.

18 See the example given in supra n. 12.

19 Chativ & other v. National Labour Court & others (1986) 40(i) P.D. 673, at 695 (per Shamgar P.).

20 36 I.L.R. 35.

21 State of Israel v. Gershon (1983) 37(iv) P.D. 156, at 158 (per D. Levine J.).

22 According to the expert testimony before the lower court, delivery of the information in question would have constituted “economic spying”, an offence carrying a maximum twenty-year sentence under Swiss law.

23 32 L.S.I. 134. Sec. 12(b) of the CC Law provides: “The Minister of Finance or the Controller may direct a person to deliver information relating to the implementation of the provisions of this Law”; sec. 17(b)(2) provides: “A person who does any of the following: … refuses or fails to deliver, upon request, any information, document or book which he is under duty to deliver … is liable to imprisonment for a term of one year or a fine of 100,000 pounds”.

24 2 L.S.I. [N.V.] 198. Sec. 47 provides: “(a) A person is not bound to give evidence involving the admission of a fact constituting an element of an offence with which he is, or is likely to be, charged. (b) Where a person has asked to be excused from giving evidence on the ground that this is likely to incriminate him as specified in subsection (a), and the court has rejected his request and the evidence has been given, the evidence shall not, without his consent, be used against him in proceedings in which the fact disclosed by the evidence is an element, (c) Where a person has elected to testify at his own trial as a witness for the defence, this section shall not apply to him in respect of the offence with which he is charged at that trial”.

25 Kariti v. The Attorney General (1964) 18 P.D. 477, at 500 (per Halevi J.).

26 In discussing the “rules of the judges”, S. Levine J. described the rules, adopted by Israeli case law, as the source of the obligation placed on the police to warn suspects under investigation of their right to remain silent. He noted that sec. 12 of the Evidence Ordinance (New Version) prescribed that a confession was admissible only if given “freely and by will”; the purpose of the warning was to guarantee that this condition was satisfied, and that both the suspect and the investigator understood that the former had the right not to incriminate himself. While failure to give the warning would not automatically invalidate the confession, such failure certainly created a real danger.

27 S. Levine J. was further prepared to accept the claim that the warning given on the occasion of the second investigation had referred, not to the unlawful activities of Israelis in Switzerland, but rather to the appellant's failure to answer questions during the course of the first investigation. In other words, during the second investigation, the appellant was questioned both in connection with his conduct during the first investigation, as well as in connection with his foreign investment activities for Israelis. The warning had, according to S. Levine J., referred only to the former, with respect to which the appellant did have the right to remain silent.

28 Sec. 22 of the Penal Law, 1977 (L.S.I. Special Volume) provides, inter alia: “A person may be exempted from criminal responsibility for any act or omission if he can show that it was only done or made in order to avoid consequences which could not otherwise be avoided and which would have inflicted grievous harm or injury on his person, honour or property or on the person or honour of others whom he was bound to protect or on property placed in his charge” (at 15).

29 On this point, S. Levine J. was following previous case law concerning the interpretation and application of sec. 22 (e.g., Shukrun v. State of Israel (1984) 38(ii) P.D. 617, at 620 (per Natanyahu J.) and cases cited there.

30 The final provision of sec. 22 subjects the defence to the proviso that the person who committed the offence “did no more than was reasonably necessary for that purpose and that the harm caused by him was not disproportionate to the harm avoided”.

31 These were the harms which, according to S. Levine J., the final provision of sec. 22 required be weighed against each other and not, as the appellant had done, the harm which he would cause to himself by remaining silent (i.e., a maximum one year prison term) as against the harm which he would have caused to himself had he delivered the information demanded by the Israeli authorities (i.e., a maximum twenty years prison term under Swiss law).

32 In this context, Bach J. referred, inter alia, to certain explanatory statements appended to the draft of the CCL which stated that the proposed law was consistent with the immunity against self-incrimination.

33 See supra n. 23. Bach J.'s point here is clear: on the wording of sec. 17(b)(2), no offence is committed where the person under investigation refuses to deliver information which he is not under a duty to deliver, i.e., information the delivery of which would prove self-incriminatory. According to Bach J. the mere fact that the information was requested does not entail the requisite “duty” to deliver the information; for otherwise there would have been no need to add the words, “is under duty to deliver”.

34 With respect to this point, Bach J. referred to, and interpreted, sec. 47 of the Evidence Ordinance (see supra n. 24), which he (apparently) considered as exhausting the possible legal foundations for the rule that self-incriminatory evidence would not be used against the person compelled to give such evidence. This rule is embodied in subsection (b) of sec. 47 and, according to Bach J., applied only to a concrete situation where the immunity under subsection (a) also applied, but was overridden by the court.