Mahmud Bakr Hijazi v Minister of Justice

Date22 December 1965
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as the High Court of Justice.
Mahmud Bakr Hijazi
Minister of Justice.

The individual in international law Aliens Position of Treatment by and responsibilities of receiving State Right of foreign national to appoint foreign counsel Subjective and objective criteria for appointment Significance of defendant's wishes International Convention on Civil and Political Rights, 1966 (Article 3 (c)) The law of Israel.

Summary.The petitioner, a resident of Jordan, was convicted by a Military Court of four offences and was sentenced to death. His application to be represented by a Jordanian lawyer had been refused and an Israeli lawyer was appointed to act for him. On appeal, the Military Court of Appeal remitted the case back to the court of first instance with the observation that the convicted person was entitled under the law to counsel of his own choosing. The Minister of Justice, however, after consulting the National Council of the Chamber of Advocates, denied the petitioner's application to be represented by a particular Jordanian lawyer.

The High Court of Justice, in making (by a majority decision) the order nisi absolute, noted that the right to appoint foreign counsel was not a right vested in an accused person and that the powers of the Minister of Justice were not limited to considerations of the personality of the lawyer chosen but ranged over all the circumstances that might justify the choice. The need for a foreign lawyer was not a matter of the subjective feelings of the accused but depended on objective criteria determining the special circumstances that warranted an exceptional appointment of this kind. The Minister must reconsider the convicted person's application in this light.

The following is the text of the judgment:

Per Sussman J.:

The petitioner, a resident of the Kingdom of Jordan, was charged before a District Military Court with four offences under section 58 of the Defence (Emergency) Regulations, 1945, for each of which the punishment is death. At the opening of the proceedings before the Military Court the petitioner made application for a lawyer from his home country to be appointed to defend him. The Military Court refused the application of the petitioner but appointed the [Israeli] advocate Avigdor Mishali as defence counsel. We understand from the affidavit in reply of the respondent that Mr. Mishali conducted the petitioner's defence throughout the trial.

The petitioner was found guilty of all four offences alleged against him and was sentenced to death. A few days later, the petitioner sent Mr. Mishali a letter (Exhibit 2) asking him to lodge an appeal against that judgment. Mr. Mishali did as he was requested and lodged an appeal with the Military Court of Appeal. The notice of appeal sets out no fewer than 14 grounds of appeal, some of them even divided into sub-grounds. The first ground of appeal was put in the following terms:

The court below erred in not granting the repeated request of the appellant to appoint foreign counsel to defend him.

[The judge considered briefly some of the other grounds of appeal and continued:]

2. When the matter came before the Military Court of Appeal on 27 June 1965, the chief Military Prosecutor was asked to answer the first ground of appeal, set out above, and after having heard his reply the Appeal Court set aside the conviction without considering the other grounds of appeal and ordered a new hearing by the District Military Court with a different bench. The reason given by the Military Court of Appeal was that the lower court had denied the accused his right to be represented by counsel of his own choice. After citing section 23 of the Chamber of Advocates Law, 1961, and holding that the petitioner was not an Israeli national, the Court went on to say in paragraph 7 of its judgment:

3. In remitting the case back to the lower court, the Military Court of Appeal laid down directives and restrictions as follows: the petitioner must within three months submit for the approval of the Minister of Justice a list of a number of lawyers, whether of the appellant's own country or of some other Arab State or other country, each of whom will be prepared to appear for him in Israel, and the list must be accompanied by the appellant's consent to the appointment of each of the lawyers mentioned, as approved by the Minister of Justice, and by proof of their readiness to come to Israel and defend the petitioner. If no such list was submitted, the petitioner would defend himself either in person or with the assistance of a local lawyer whom he would choose.

4. We have heard from the petitioner that Mr. Mishali continued to visit him and also helped him in dispatching letters to Arab countries in order to find defence counsel. Finally, Mr. Jacques Varges was found, who says that he holds a French passport and is a lawyer in Algiers and that he came to Israel and interviewed the petitioner in prison. Mr Varges expressed in writing his readiness to defend the petitioner (Exhibit 9) and on 21 September 1965 the petitioner made application (Exhibit 6) to the respondent to approve the appointment of Mr. Varges as counsel for his defence.

5. On 4 October 1965 the director of the office of the Minister of Justice replied on his behalf to the application (Exhibit 10) and, after citing section 23 of the said Law in full, asked of the petitioner the special circumstances to justify the application, as provided in that section. These circumstances were put to the Minister in paragraph 3 of the petitioner's letter of 19 October 1965 (Exhibit 12), the translation of which (Exhibit 13) is as follows:

The respondent passed on copies of these two letters to the chairman of the Chamber of Advocates in view of the fact that under section 23 he must consult with the National Council of the Chamber, and asked for its opinion.

6. The National Council of the Chamber of Advocates dealt with the matter at a meeting held on 9 November 1965, and adopted the following resolution:

The respondent was informed of this resolution the following day (Exhibit 15), the chairman of the National Council writing that

7. Thereafter, the respondent decided to reject the petitioner's application and so informed him in a letter dated 14 November 1965 (Exhibit 16), which closes with the following words:

It is against this refusal of the application that this Court at the request of the petitioner issued the order nisi.

8. The subject matter of section 23 of the said Law is, as the marginal note puts it, Foreign defence...

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