Military Prosecutor v Atef Jamal Aahad Saad

JurisdictionIsrael
CourtMilitary Court (Israel)
Israel, Military Court sitting in Nablus.
Military Prosecutor
and
Atef Jamal Aahad Saad and Others.

Warfare on land Occupation of enemy territory Legislative, judicial and administrative functions of Occupant Jurisdiction of military courts Continuance of former emergency regulations without express repeal Effect of emergency law Parallel existence of emergency laws with all ordinary legislation The law of Israel.

Summary.The defendants were charged with a number of grave security offences. At the commencement of the proceedings a preliminary plea was put in on their behalf, that the Defence (Emergency) Regulations, 1945, under which they were charged, had ceased to be of effect in the West Bank since May 1948, when the Jordan Defence Law had been extended to the area.

Held: that these Regulations were still in force, never having been repealed either explicitly or by implication by the Jordanian legislator and the presumption was therefore that he intended to leave them in effect. The Jordan Defence Law was an emergency law and any provisions thereof could only abrogate an earlier law with regard to the specific matter with which such provision dealt.

The following is the text of the judgment:

1. When proceedings had reached the stage of preliminary submissions counsel for the defence raised before us a plea of want of jurisdiction. They urged that the Court had no jurisdiction to try the defendants on the fifth count of the indictment, which charges them with membership of an unlawful association contrary to regulation 85 (1) (a) of the Defence (Emergency) Regulations, 1945, because these Defence Regulations (hereinafter called the Regulations) have been rescinded and are without effect in the West Bank, having been replaced by the Jordan Defence Law of 1935 as extended to the Bank by notice published in the Jordanian Official Gazette of 16 May 1948 (see Exhibit S/4/a/ and its translation S/4/b). In support of their argument they added that for a continuous period of twenty years, from the termination of the Mandate and the entry of the Jordanian Forces into the West Bank until its conquest by the Israel Defence Forces in June 1967, the Regulations had never been acted upon, utilized or followed, except pursuant only to Jordanian law. Lawyers and the local courts had considered the Regulations as rescinded. Accordingly, the unavoidable conclusion was that no military court has authority to try the defendants on this count and that it should be struck out.

2. To substantiate this argument defence counsel were assisted by two local lawyers of repute and standing, one of whom had for years served as Judge and then President of the Nablus District Court and as a member of the Supreme Court in Jerusalem, while the other was a well-known private lawyer in Nablus.

3. As regards calling the two local advocates to testify before us, I wish to point out that we admitted their testimony not as expert witnesses on local law, since we are aware of the rule that a court will not hear witnesses on the law according to which it tries a case, and we proceeded on the assumption that, if we have authority to try the defendants under the Regulations, then as a military court we are trying them accordingly under the local law. We permitted the testimony of the two local lawyers to be heard because of the importance and the difficulty of the problem and because also these two local lawyers in fact represent the legal understanding of this point among local lawyers, and in making their submissions to us they were actually putting the case of a large group of lawyers who identify themselves with them in this matter as regards argument, analysis and reference to authorities.

In view of this situation, and basing ourselves on sections 9 and 10 of the Security Provisions Order, 1967, which enable us, in the interests of justice, to deviate from the customary rules of evidence and procedure, we have decided to regard the testimony of the two lawyers as defence pleas, that is we have permitted the two witnesses to argue and substantiate the submission of want of jurisdiction on behalf of the defence, and that for the reasons stated above.

4. And now, as to the dimensions of the matter. From a factual standpoint the situation is as follows:

(a) On 13 May 1948 King Abdullah sealed a Law enacted by the Jordanian Parliament (supplementary to the Jordan Defence Law, 1935), according to which the Jordanian Law was extended to where-ever the...

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