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Justiciability

Published online by Cambridge University Press:  12 February 2016

Alfred Witkon
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The purpose of this article is to discuss the problem of drawing a line between law and politics, as it presented itself to courts in Israel. Any such discussion must take as its starting point the judgment of the late President of the Supreme Court of Israel, Dr. M. Smoira, in Jabotinsky v. Weizmann So far as I know, it was here that the term “justiciable” was first used in this context in Israel. This was a case concerning the formation of a new government. The former government, headed by Mr. Ben-Gurion, had received a vote of non-confidence and resigned. The President of the State, after consulting the parties, asked Mr. Ben-Gurion to form a new government and, upon his refusal, had let the matter rest. The petitioner's complaint was that the President should have called upon each and every one of all the 120 members of the Knesset until one was found who succeeded in forming a new government. He applied to the Supreme Court, sitting in its original jurisdiction as a High Court of Justice, for a writ of mandamus against the President ordering him to do so. Two points were submitted by the Attorney General in opposing the grant of an order nisi. His first submission was that the Court should assume no jurisdiction over the President of the State. In this submission he failed, but he succeeded on his second ground, which concerns us here, namely that the matter, being “political”, was not justiciable.

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Articles
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Israel Law Review , Volume 1 , Issue 1 , January 1966 , pp. 40 - 59
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1966

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References

1 (1951) 5 P.D. 801. In English translation S.J. vol. 1, p. 75. Quotations are given from the English translation.

2 Israel's legislative assembly.

3 Under the Law of Transition, 1949, the President had no such immunity as was later conferred upon him by sec. 9 of the Office of the President of the State Law, 1951, and now by sec. 13(a) of the Basic Law (The President). Nor was the Court prepared to draw an analogy from the position of the King in England.

4 Palestine Order in Council, 1922, art. 43, and Courts Ordinance, 1940, sec. 7, as then in force, and now, with no material change, the Courts Law, 1957, sec. 7.

5 71 S.Ct. 624 at 637. It may be observed that Frankfurter did not use the term “justiciability” in this case in the narrower sense of having legal—as distinct from political—significance. To him it meant primarily the need for the petitioner to show standing. This is the sense in which the term is used extensively in American case law where even wider meanings are indicated, including practically any ground upon which (particularly under the Declaratory Judgment Act) a suit could be dismissed in limine. International Harvest Hat Co. v. Caradine Hat Co., D.C.Mo. 17 F Supp. 79; see also 51 Corpus Juris Secundum (C.J.S.) “Justiciable”, 36 C.J.S., “Federal Courts,” and other references in Words and Phrases. Frankfurter J., in his celebrated judgment in Baker v. Carr (1962) 82 S.Ct. 691, used the word “justiciable” sparingly, preferring to speak of a political question, but other judges in this, as well as in other cases, use these terms almost synonymously and, it would seem, this is nowadays the practice in England as well.

6 S.J. vol. 1, p. 87.

7 At p. 88.

8 The Court further relied on Mississippi v. Johnson (1867) 4 Wall 475 (U.S.) and M'Culloch v. Maryland (1819) 4 Wheat. 316.

9 Levi v. Rabbinical Court, Tel Aviv-Jaffa (1959) 13 P.D. 1182, per Sussman, J., and see Dr.Zamir, , “The Jurisdiction of the High Court of Justice” in Studies in Law in Memory of Abraham Rosenthal, (1964) 225.Google Scholar The distinction between jurisdiction and justiciability was emphasized by Brennan J. in Baker v. Carr (1962) 82 S.Ct. 691.

10 Under the law prevailing in 1951, no time limit was fixed for the duration of the Knesset. In the same year a law was passed fixing the ordinary term of any future Knesset at four years, and this is so now under sec. 34 of the Basic Law (The Knesset), whereby only the Knesset can provide, by legislative act, for its prior dissolution.

11 Basic Law (The Knesset) sec. 33.

12 Binnenbaum v. Tel Aviv Municipality (1951) 6 P.D. 375; A.C. v. Dizengoff Co. Ltd., (1957) 13 P.D. 1026.

13 For lack of space this survey is confined to political cases. But it is well to remember that these are not the only ones which embarrass the courts. Thus, in an ordinary libel case from which there certainly was no “escape” for the judges, involving the reputation of the late Zionist leader, Dr. Kastner, the Court had to embark upon a lengthy enquiry into the fate of Hungarian Jewry under Hitler, a task which, as all the judges complained, had better been left to the historians: A.G. v. Grunwald (1958) 12 P.D. 2017. On a different level, in Lavie v. Tel Aviv Secondary School No. 4 (1964) unreported, it was hard to convince the petitioner that his complaint about his son's low marks at school was not a justiciable issue.

14 Lebovich v. O'Connor, C.A.N.Y. 309 F. 2nd 111.

15 An outstanding example of this in Israel was the famous case Rufcisen v. Minister of Interior (1962) 16 P.D. 2428, where the High Court had to decide whether a man who was born as a Jew, but had accepted the Catholic faith and become a monk, was still a Jew for the purpose of the Law of Return (whereby he would be entitled to Israel citizenship automatically and not only by naturalization, as was offered to him). Here the legislator had purposely abstained from defining the term “Jew”, leaving this delicate and highly political questions in the hands of the court.

16 So Holmes J. in Prentis v. Atlantic Coastline Co. (1908) 211 U.S. 210.

17 In an article published in Oxford Essays in Jurisprudence (1961) 265. It is significant that this as well as the articles referred to below by Prof. Summers in (1963) 26 M.L.R. and Prof. Stevens in (1964) Public Law 221, appeared under the heading “Justiciability”. Formerly, the term was not widely used in England. It is not defined in Stroud's or Burrow's dictionaries, whilst Jowitt merely states: “'Justiciable'—proper to be examined in courts of justice.”

18 “Justiciability: The Restrictive Trade Practices Court Re-examined” in (1964) Public Law 221.

19 Re Chemist Federation Agreement (No. 2) [1958] 3 All. E.R. 448, per Devlin J.

20 549 H.C. Deb. (5th Ser.), col. 2029.

21 199 H.L. Deb. (5th Ser.), col. 231.

22 For further reference see the above-mentioned articles and also Viscount Jowitt L.C. in (1951) 25 Australian Law Journal 296, and Lord Evershed M.R. in (1961) 61 Col. L.R. 761.

23 Note in particular the famous clashes with trade-unionism (Taff Vale Rly. v. Amalgamated Society of Rly. Servants [1901] A.C. 426) leading to the Trade Disputes Act, 1906, and more recently Rookes v. Barnard [1964] 1 All E.R. 367, which was overruled by legislation. The attitude of the courts in workmen's compensation cases also appears to have caused bitterness, hence their exclusion from this field under the National Insurance (Industrial Injuries) Act. 1946, and the non-appealability of decisions of the National Health Service Tribunals.

24 So Lord Finlay in Crown Milling Co. v. The King [1927] A.C. 394, 401.

25 The number of books and articles on this subject has become legion; outstanding are the contributions of Stone, J., Province and Function of Law (1946)Google Scholar and Legal System and Lawyers' Reasonings (1964) and of Friedmann, W., Legal Theory (1960) at pp. 402, 449 ff.Google Scholar, with reference to the restraint of trade cases.

26 Resale Prices Act, 1964 (c. 58).

27 Not least by appointing judges in ever increasing measure to chair committees on highly political questions.

28 82 S.Ct. 691.

29 At p. 734.

30 At p. 737.

31 At p. 775.

32 Standing, in this sense, should not be confused with the other aspect of this term whereby the petitioner must be the party personally affected and not a mere meddler in other peoples' affairs.

33 Indeed, even a decision by the legislator himself cannot change the law of the land, unless passed as a law: Stockdale v. Hansard (1839) 9 Ad. & E.l; Bowler v. Bank of England [1913] 1 Ch. 57.

34 (1949) 2 P.D. 330, 334.

35 (1951) 5 P.D. 523, 529.

36 Other cases where standing was denied were Bergman v. District Commissioner of Jerusalem (1960) 4 P.D. 57 (expropriation order); Schwartz v. Competent Officer under Emergency Regulations (1950) 4 P.D. 57 (also a matter of expropriation); Freund v. Custodian of Absentee Properties (1950) 4 P.D. 333 (order for vacation of premises) and Society of War Damage Claimants v. Minister of Finance (1951) 5 P.D. 1070 (discrimination in distributing war damages fund). Standing was affirmed by Berinson, J. in Schneider v. Director of Development Authority (1959) 13 P.D. 891Google Scholar.

37 Contractors' Organization Centre v. Minister of Commerce and Industry (1951) 5 P.D. 1544, where, however, the law itself left considerable discretion to the Court.

38 (1952) 6 P.D. 795.

39 SJ. vol. 1, p. 75.

40 As expressed in a separate opinion in that case at p. 802.

41 (1953) 7 P.D. 919.

42 Cohen v. Local Council of Gan Shmuel (1959) 13 P.D. 244.

43 (1961) 15 P.D. 197.

44 (1957) 11 P.D. 1490.

45 See n. 34 above.

46 Mogul Steamship Co. v. McGregor [1892] A.C. 25, confirming the freedom to make price maintenance agreements, though intended to squeeze out competitors.

47 Landau, J. quotes Bacon (as reported in Holdsworth, History of English Law, IV 352)Google Scholar: “Sometimes there is a glut of things when they be in excessive quantity, and Her Majesty gives a licence of transportation to one man…sometimes there is a scarcity or a small quantity, and the like is granted also. These and divers of this nature have been in trial at the Common Pleas…where, if the judges do find the privilege good and beneficial to the commonwealth, they then will allow it; otherwise disallow it.” There seems to have been no hesitation on the part of judges in the 16th century to decide questions of economic policy.

48 See also Mehandes Ltd. v. Minister of Transport (1961) 15 P.D. 1989 (where Sussman J. upheld a concession granted to Leyland against the opposition of Swedish truck manufacturers) and Rehovot Packing House Ltd. v. Minister of Agriculture (1962) 16 P.D. 20.

49 (1962) 16 P.D. 1023.

50 (1962) 16 P.D. 2101.

51 Cohn J. again examined the petitioner's standing in this case, but made the farreaching distinction that whereas in a case under sec. 7(b)(2) of the Courts Law, 1957, the Court will interfere only where the public authority owes a legal duty to the petitioner, it will do so in a case under sec. 7(a) even where the petitioner cannot rely on a legal duty but has merely a legitimate interest in the matter.

52 Hamessayer Ltd. v. Controller of Road Transport (1964) 18 P.D. (III) 245, 253. See also Jafo Sun Ltd. v. Minister of Commerce and Industry (1963) 17 P.D. 737, where Berinson J. gave his opinion on a certain policy directive; Aruaz v. Binister of Posts (1963) 17 P.D. 578: refusal to interfere with policy decision not to allow television in Israel; Kellerman v. Minister of Transport (1963) 17 P.D. 131: refusal to interfere with import policy; Domb v. Minister of Commerce and Industry (1963) 17 P.D. 2467: no interference with refusal to grant loan from the development budget, and Braude v. Minister of Interior (1956) 10 P.D. 564: refusal to interfere with a decision to amalgamate local areas.

53 De Smith, S. A., Judicial Review of Administrative Action (1959) 18Google Scholar.

54 Both by preventing him from taking part in the judicial process (Prohibition del Roy (1608) 12 Co. Rep. 65) and by curbing legislation by proclamation (Case of Proclamation (1610) 12 Co. Rep. 74).

55 Bonham's Case (1610) 8 Co. Rep. 114.

56 City of London v. Wood 12 Mod. 682, 687.

57 In England, the case of Harper v. Home Secretary [1955] Ch. 238 could be mentioned here; certain dicta in this case, by Sir R. Evershed M.R., seem to suggest that interference in an extreme case would not be entirely impossible.

58 (1965) 19 P.D. (I) 377.

59 With great respect I prefer the second ground for dismissing the petition, viz. that it was sufficient for the map to have been deposited by the time the law came into force. It seem to me that laws which are based on faulty assumptions of law or of fact may, in certain circumstances, be of no effect. A well known example of an act on an erroneous appreciation of the law is found in I.R.C. v. Ayrshire Employers' Insur. Assoc. [1946] 1 All E.R. 637, where the House of Lords refused to give effect to such an Act. And in case of an erroneous factual assumption, does such an act really create a praesumption juris et de jure? It is difficult to see how, for instance, a criminal prosecution could have been maintained, particularly if the map had never been deposited. See also Z. Cowen in (1952) 15 M.L.R. 282 and (1953) 16 M.L.R. 273, and the American view in Sutherland, Statutory Construction (1962) II 351.

60 As already mentioned different rules apply to statutes, such as by-laws, made by a subordinate legislator.

61 See R. v. Local Government Board ex p. Arlidge [1914] 1 K.B. 160 and Liversidge v. Anderson [1942] A.C. 206.

62 “Constitutional and Administrative Law” in proceedings of the Lawyers Convention in Israel (1958) 188, and (1961) XVII Hapraklit 230. This view is shared by Dr.Rubinstein, A.: “Entrenched Provisions in Fundamental Law (The Knesset)” (1965) XXI Hapraklit 421Google Scholar; and see Centlivres C.J.'s celebrated judgment in Harris v. Minister of Interior (1952) A.D. 428, 470.

63 At p. 73.

64 [1964] 2 All E.R. 785, 792, 793.

65 E.g. sec. 3 of the Parliament Act, 1911, and sec. 3(7) of the House of Commons (Redistribution of Seats) Act, 1949.

66 Representation of the People Act, 1949.

67 Election Law, 1959, sec. 11.

68 Sec. 41.

69 41 Knesset Debates, 922 of 13.1.65.

70 S. J. vol. 1, p. 75. It may also be mentioned that the scope of the President's power of pardon has recently come up for review before the Court, without its power to do so having been questioned: A. G. v. Matana (1962) 16 P.D. 430.

71 (1876) 1 Q.B.D. 487.

72 (1959) 13 P.D. 959.

73 (1956) 10 P.D. 1825.

74 The subject was fully described by Sir William Holdsworth in (1941) Col. L.R. 1313, an article which is noteworthy particularly because of the learned author's doubts as to the correctness of the decision in The Fagerness [1927] P. 311.

75 [1906] 1 K.B. 613, 639.

76 McNair in 1921/22 B.Y.I.L. 57.

77 (1952) 6 P.D. 1145; similarly in Al Yussuf v. Military Governor (1954) 8 P.D. 341. In Reiner v. Prime Minister (1965) 19 P.D. vol. 2, 485, the petitioner asked for an order directing the Government not to enter into diplomatic relations with Germany and not to accept the German envoy as ambassador. The Court considered both matters as essentially political and non-justiciable.

78 (1955) 9 P.D. 135.

79 The Twilight of the Supreme Court (1934) 111.

80 Administrative Law (1957) Pt. 1, p. 104) referring to Kelsen and Merkl.

81 The difference between an objective non-political decision and a non-objective political one was fully analysed by Alf Ross in his book On Law and Justice (1958). If a note of doubt may be ventured it is that, in terms of this distinction, a “political” decision may be influenced by outside considerations to such an extent that it can be regarded as corrupt, whereas a non-political legal decision may ignore political considerations to such an extent as to be divorced from reality, if not outright irresponsible.