FROM THE SUPREME COURT OF ISRAEL

"Justice" No. 6 August 1995

The Right To Dispatch Police Outside the Borders of Israel

Noam Federman v. Minister of Police, General Inspector of Police Originating Motion 5128/94 before President Shamgar, Justice Goldberg, Justice Orr, Justice Zamir, Justice Dorner, Application for Order Nisi, Delivered on 4.10.94. Precis

This petition concerned the Israeli govemment’s decision in September 1994 to accede to the United States’ request to dispatch a delegation of Israeli policemen to join the multi-national supervisory force then operating in Haiti. The multinational force comprised representatives from 20 countries and acted under the terms of UN Security Council Resolutions 917 and 940 providing for the return of democracy to Haiti. The Israeli force was to comprise 30 volunteers, who were to have supervisory and liaison functions, and who would be under the orders of the US commander in the region. The purpose of the force was defined as

1) ensuring the preservation of law and respect for human rights;

2) assisting the local police with advice, training and investigations;

3) the force would not have operational duties.

The petitioner objected to the dispatch of Israeli policemen on two main grounds:

1 . Israel should not intervene in conflicts with which it is unconnected.

2. Under the Police Ordinance, the Minister of Police and Inspector General of Police are not authorized to involve police forces in disputes outside the borders of the state, where the issues involved are not the direct concern of the state.

The Supreme Court unanimously dismissed the petition. The judgment was given by President of the Supreme Court, Justice Meir Shamgar.

Judgment

President Shamgar noted that by virtue of Section I of the Basic Law: the Government, the government is the executive authority in the state and that while various laws confer powers on the government and its ministers, its powers are wider than those set out in any particular law; or, put differently, the authority responsible for performing the functions of the state in respect of innumerable matters, exercises, for the purpose of fulfilling these functions powers which are not stipulated by statute but which have been described by Justice Zamir as "administrative powers" or "inherent powers" (Law and Government, Vol. 8 1, A, II 2-113, Heb.).

However, Justice Shamgar noted that these powers are not unlimited; for example, where powers are given expressly and solely to one body, another body, including the government, cannot exercise them. The right to exercise administrative powers is residual and therefore where legislation deals with a particular issue, general governmental powers are inapplicable. There is no person and no authority which is above the law or which is free from its constraints.

Moreover, there are actions which are outside the scope and competence of the government, because carrying them out without legislative consent is contrary to fundamental normative concepts which arise from the nature of Israel’s governmental system. This is true in relation to basic rights which are part of our positive law, whether incorporated within a Basic Law or not. Thus, for example, the government would not have power to close a newspaper on the basis of an administrative executive decision, if there is no express provision providing for this, even if no Basic Law has yet been enacted providing for freedom of speech. Such an action would be contrary to the fundamental tenets relating to human freedoms which are embedded in our system, and which may only be circumscribed by legislation. This means that the basic right of free speech, which is part of our positive law, creates a restriction which binds the hands of the executive authority and prevents it from infringing, without lawful agreement, the prohibition on violating the freedoms conferred by it.

"General" or "inherent" powers have been described by various scholars as the legacy of the prerogative of the British crown, as expressed in Israel’s common law. In President Shamgar’s opinion, however, the powers arose of themselves from the very fact of the establishment of the state and its authorities.

And in any event, irrespective of the roots of the inherent powers, the Israeli legislature did not see fit to leave this matter within the framework of the ‘oral law’ but incorporated an express provision in the Basic Law: the Government, to the following effect:

Section 29 – Powers of Government:

The Government is competent to do in the name of the State, subject to any law, any act the doing of which is not enjoined by law upon another authority.

President Shamgar noted that within the framework of its residual powers, the government manages the state’s foreign relations. It establishes contacts with states and international organizations, hosts heads of state and is hosted by them, maintains dialogues with them, assists with advice and material aid, such as agricultural development aid in the countries of Africa and South America, and even gives active aid to victims in times of distress, as well as holds out an open hand to the Jewish people in the Diaspora.

These are matters of inherent power of the government administers the affairs of the state, not only directed inwards but also directed externally.

President Shamgar clarified that of course the legislature may enact laws which deal with issues which fall within the inherent powers of the government, in such a case the government would act in accordance with the principles established by the law. Thus, for example, the legislature can remove the signing of international agreements from the arena of the general powers of the government in the area of foreign relations – today part of the inherent power of the government – and provide for it in legislation. In this context, President Shamgar suggested that consideration be given to the possibility of anchoring in statute issues of international foreign aid. Such legislation exists in England and the U.S.

Nevertheless, in the absence of such legislation, the existing constitutional norm applies to the effect that contacts and activities on the international level fall within the general powers of the executive authority which today draws its power from Section 29 of the Basic Law: the Government.

President Shamgar noted that foreign relations are a wide and multi-faceted field. It includes not only formal relations with other states but also dialogue, mutual assistance, advice and consultations. Aid comes in many different styles.

In the instant case, Israel had been asked by a friendly state to take part in advice, training and supervision of police forces in a third country, in which the international community was attempting to restore democracy.

Israel has no legislation which refers to the sending of advisors or supervisors of the type requested, to a foreign country. Did this mean that the State of Israel had no power by law to send advisors? In the absence of a law, was there no power to send ambassadors, consuls or envoys to a foreign country? In the absence of a law, was it forbidden to send a delegation of doctors to Rwanda or experts to deal with natural disasters in Armenia?

In President Shamgar’s view, such powers were conferred on the government within the framework of its general powers in accordance with Section 29 of the Basic Law: the Government – in the same way that the government had power to receive foreign advisors and experts in Israel, without express agreement in law.

Of course, all this is subject to accepted parliamentary review. President Shamgar stated that in his view there is no justification and no legal basis for restricting the power of the State of Israel in comparison with other sovereign states which act in this field, without specific legal provisions.

With regard to the issue whether the police delegates could be policemen in service, President Shamgar noted that the police serve under the terms of the Police Ordinance (New Version) – 1971.

Section 3 of the Ordinance – Duties of the Police, provides as follows:

The Israel Police shall be employed for the prevention and detection of offences, the apprehension and prosecution of offenders, the safe custody of prisoners and the maintenance of public order and of the safety of persons and property.

Other legislation provides for additional police powers. It is undisputed that the powers of the Israel Police, as a force which operates on the basis of these laws, are conferred on it only in the areas under the control of the State of Israel, and in this framework it acts for the purposes set out in the Ordinance. Accordingly, the Israel Police and Israeli policemen are not empowered to exercise police powers conferred upon them by the various laws, outside the territory controlled by the State of Israel.

Here there was no intention to exercise police powers in Haiti. Moreover, even from the point of view of public international law, the source of the power for the actions of the multi-national force, including the Israeli police delegation, within the territory of Haiti, were the resolutions of the Security Council and the orders of the local united command acting in accordance with the decisions of the UN.

The volunteer forces being sent to Haiti were sent on the basis of their personal expertise for the purpose of giving advice and guidance, within the framework of the international body, and with the agreement of the local government authorities, and not for the purposes of exercising powers in accordance with any Israeli legislation.

The fact that the government of Israel was asked and decided to send a delegation of policemen as its representatives in the multi-national observation force ensued from the substantive nature of the task which the delegation was to fulfill in terms of the expertise of its members, in the same way that military and civilian doctors were sent to treat Rwandan refugees, rescue forces were sent to Armenia, and agricultural experts were sent to other countries.

The delegations did not fulfill their regular statutory functions in accordance with the laws of Israel in the places to which they were sent, but rather state missions within the framework of the foreign relations of the State.

Accordingly, the Court found no room to intervene in the govemment’s decision and the petition was dismissed.

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