Justice Miriam Naor to state attorney: " Which law authorizes The Military Commander to issue instructions to a civilian Minister?"
During the proceedings it turned out that the Supreme Court Library has no copy of legislation issued by the West Bank military governor
This morning, the Supreme Court in Jerusalem saw tense proceedings regarding the appeal by the Gush Shalom movement to rule invalid the tenders to establish a "Regional Radio" for Israeli settlers on the West Bank. At the conclusion, Justices Naor, Hayut and Fogelman instructed Adv. Avi Licht of the State Prosecution to present to the court, within 20 days, the legal basis which enabled the West Bank Military Commander to authorize the Minster of Communications to issue such tenders, and to present a list of similar pieces of legislation where it is the Military Commander from whom authority flows to the civilian government and its ministers.
Advocates Gabi Lasky and Smadar Ben Nathan, representing Gush Shalom, argued that such legislation has no basis in internal Israeli law. Therefore, the authorization to establish a settler radio granted by the Commander to the Minister of Communications and to the Second Broadcasting Authority - a statutory body - was granted without legal authority. It should be declared null and void, together with the radio tenders issued on its base.
In the beginning, it seemed as if the court was going to rule out of hand against the Gush Shalom appeal. Judge Miriam Naor, who headed the three-judge bench, actually suggested to Adv. Lasky to withdraw the appeal. This was mainly because, in the judges' opinion, one of the main arguments cited in the appeal has become moot - namely, that persons who in the past operated pirate radio broadcasts might win the tenders and establish the new radio station, and in this way law-breakers would end up rewarded.
The Second Autority's affidavit, present to the court, stated that only one group had presented an offer to operate the new radio, and that "This Group had not been previously involved pirate broadcasting" (the reference, obviously, was to the "Arutz 7" pirate settler radio, but it was not mentioned by name during the court proceedings). Adv. Lasky insisted upon continuing with the appeal proceedings, stating that the new innocent broadcasting group might still be a camouflage for the old pirate broadcasters, and that anyway there were other, weighty reasons for declaring the radio tender null and void.
The court's deliberations tuned mainly on the state assertion that the Military Commander 's authorization to the Minister of Communications was no more than a continuation of the authorizations given in the past three decades for conducting daily life in the settlements according to the Israeli law, known informally as "The Enclaves Law" (Mishpat Hamuvla'ot). Conversely, Adv. Lasky argued that this was a new development, without precedent and without a legal basis.
The judges posed many difficult questions to Adv. Lasky, asking whether it was her intention to use the settler radio issue in order to effectively overturn the entire legal basis according to which daily life in the settlements is conducted in such spheres as health, education, welfare etc. She reiterated, however, that there had indeed been cases where the Military Commander authorized lower-ranking civil government officials to act in certain functions at the settlements. However, an authorization to a government minister to carry out a ministerial function has only been given through a specific Knesset law, which is consistent with basic democratic principles. With regard to the settler "Regional Radio", no such legislative base has ever been provided.
Judge Hayut took made many inquiries regarding the Military Commander's authority to instruct Israeli civil authorities to exercise their functions in the Territories, without having a Knesset legislation authorizing such exercise. At the climax of the proceedings, Judge Miriam Naor addressed the state representative, Adv. Avi Licht: "Who has authorized the Military Government to tell the Prime Minister, or one of the Minsters, to go and do this or that? Is this not like a foreign government giving instructions to Israeli ministers?"
During the discussion, Adv. Licht made a reference to the "Communications Annex" - the latest of eleven Legislative Annexes enacted by the West Bank Military Commander to regulate daily life in the settlements. It suddenly turned that there the Supreme Court library has no copy of these Annexes, which according to Adv. Licht "Spread over thick folders". Adv. Lasky added that these Annexes, which constitute pieces of legislation of substantive importance, are also not available in Israeli public libraries and the libraries of Law Faculties at Israeli universities, nor do their texts appear in the online legal resource websites available to Israeli lawyers and jurists. "This is nearly a secret legislation" she said.
Justice Naor also expressed surprise at the state's assertion that even civil judges who deal with local issues in the settlements and with the appeals on such verdicts are acting solely under the Military commander's authority, without any authorization in a Knesset law; the three judges raised doubts on the legality of this practice, too.
In the aftermath, Judges Naor, Hayut and Fogelman posed many questions to Adv. Licht. As mentioned, they concluded by instructing him to provide within twenty days the legislative references providing a judicial basis for the settler radio tenders.