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Forty Years of Public Law

Published online by Cambridge University Press:  16 February 2016

David Kretzmer
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Extract

It would be impossible in a short lecture to give a comprehensive survey of all the changes that have occurred in the last forty years in that branch of law known as “Israel common law”. I will not, therefore, try to do so. Instead, I wish to single out the most distinctive phenomenon in this area of law. I refer to the conceptual/intellectual revolution in the outlook of the court regarding the nature of its judicial function. The original view, according to which the sole function of the court in the area of public law is to decide disputes between citizens and public authorities, has been abandoned and replaced by an outlook that views the court as an institution responsible for the legality of public administration, or, as the court itself is accustomed to defining the matter, for the rule of law.

I shall divide my discussion into two parts. In the first part I will briefly discuss the prominent changes that have occurred in the judicial decisions regarding public law in recent years, and the judicial philosophy underlying these changes.

Type
Public Law
Information
Israel Law Review , Volume 24 , Issue 3-4: Israel Law—Forty Years , Summer–Autumn 1990 , pp. 341 - 355
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990

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References

1 See the remarks of Y. Kahan J., in Shapira v. State of Israel (1982) 36(i) P.D. 337, at 357; Zamir, , Administrative Procedure in Israel and Article 46 of the Palestine Order-in-Council (Jerusalem, 1974, in Hebrew) 94Google Scholar; Bracha, B., Administrative Law, vol. 1(Tel-Aviv, 1986, in Hebrew) 28Google Scholar.

2 See Barzilai v. Government of Israel (1986) 40(iii) P.D. 505; 6 S.J. 1.

3 See Kahane v. Speaker of the Knesset (1985) 39(iv) P.D. 85; Kahane v. Speaker of the Knesset (1986) 40(iv) P.D. 393.

4 See Mi'ari v. Speaker of the Knesset (1987) 41(iv) P.D. 169.

5 Aloni v. Minster of Justice (1987) 41(ii) P.D. 1.

6 Ressler v. Minister of Defence (1988) 42(ii) P.D. 441.

7 See Sarid v. Speaker of the Knesset (1982) 36(ii) P.D. 197; “Kach” Party Group v. Speaker of the Knesset (1985) 39(iii) P.D. 141; and both cases of Kahane v. Speaker of the Knesset, supra n. 3.

8 The most prominent example of this phenomenon is Reiser v. Speaker of the Knesset (1988) 42(ii) P.D. 142.

9 For a description of the Court's early approach to the question of status see Segal, Z., Standing Before the Supreme Court Sitting as a High Court of Justice(Papyrus, Tel-Aviv, 1986, in Hebrew) 78–80Google Scholar. See also Association of Insurance Companies Ltd. v. Minister of Finance (1982) 36(i) P.D. 230; Bar-Shalom v. Zorea (1977) 31(i) P.D. 796.

10 See Barzilai v. Government of Israel, supra n. 2; Aloni v. Minister of Justice, supra n. 5; Ressler v. Minister of Defence, supra n. 6.

11 See Jabotinsky v. Weizmann (1951) 5 P.D. 801; 1 S.J. 75.

12 Supra n. 6.

13 See Israel Contractors and Builders Center v. Government of Israel (1980) 34(iii) P.D. 729; Dapei Zahav Ltd. v. Broadcasting Authority (1981) 35(i) P.D. 421; Ressler v. Minister of Defence, supra n. 6.

14 Supra n. 6.

15 For one case in which the petition was decided on grounds of reasonableness alone see Zucker v. Minister of Interior (1988) 42(iv) P.D. 529.

16 The reference is the Contractors Center v. Government of Israel and Dapei Zahaf v. Broadcasting Authority, supra n. 13.

17 See, e.g., Barasneh v. Central District Commander (1982) 36(iv) P.D. 247.

18 See Nof v. Attorney General (1983) 37(iv) P.D. 326; Ha'Etzni v. State of Israel (1988) 42(iv) P.D. 406.

19 See “Kach” Party Group v. Speaker of the Knesset, supra n. 7, at 146.

20 See Rubin v. Berger (1987) 41(i) P.D. 73, at 78.

21 See Segal v. Minister of Interior (1980) 34(iv) P.D. 431, at 441; see also “Kach” Party Group v. Speaker of the Knesset, supra n. 7; Kahane v. Speaker of the Knesset, supra n. 3.

22 See “Kach” Party Group v. Speaker of the Knesset, supra n. 7.

23 See Flatto-Sharon v. Knesset Committee (1981) 35(iv) P.D. 118, at 141; “Kach” Party Group v. Speaker of the Knesset, supra n. 7; Ressler v. Minister of Defence, supra n. 6.

24 See Ressler v. Minister of Defence, supra n. 6, in which President Shamgar states: “Judicial oversight has always existed, because it arises from the nature, the function and the manner of operation of the judicial branch, and from the remedies within its power”.

25 Leon v. Gubernik (Acting District Commissioner of Tel-Aviv) (1948) 1 P.D. 58; 1 S.J. 41.

26 Regulation No. 48(I) of Defence Regulations, 1939, (Amendment No. 2 of 1945); Defence (Amendment) Regulation (No. 2) 1945 (P.G., Supp. 2, No. 1392, p. 161).

27 The second petition was considered in Zeev v. Gubernik (Acting District Commissioner of Tel-Aviv) (1948) 1 P.D. 85; 1 S.J. 68.

28 1 L.S.I. 7.

29 See Leon v. Gubernik, supra n. 25, at 66 (S.J. at 49).

30 Id.at 69 (S.J. at 52-53).

31 Id.at 70 (S.J. at 53-54).

32 See the remarks of Silberg and Witkon JJ. in National Groups v. Minister of Police (1970) 24(ii) P.D. 141. See also the remarks of Barak J. in Schnitzer v. Chief Military Censor (1988) 42(iv) P.D. 617.

33 Supra n. 27.

34 See Neiman v. Chairman of Central Elections Committee (1988) 42(iv) P.D. 177.

35 Leon v. Gubernik, supra n. 25, at 79 (S.J. at 66).

36 Id.

37 Jabotinsky v. Weizmann, supra n. 4.

38 3 L.S.I. 3.

39 See Witkon, , Politics and Law (Jerusalem, 1965, in Hebrew)Google Scholar.

40 See the remarks of Barak J., and Shamgar P., in Ressler v. Minister of Defence, supra n. 6.

41 See Jabotinsky v. Weizmann, supra n. 11, at 814 (S.J. at 8).

42 Barak J. states in Ressler v. Minister of Defence, supra n. 6: “The mistake was subsequently clarified, in that it has been emphasized that there is a difference between legal jurisdiction”.

43 See National Groups v. Minister of Police, supra n. 32, at 164; Flatto-Sharon v. Knesset Committee, supra n. 23, at 125.

44 See Association of Life Insurance Companies Ltd. v. Minister of Finance, supra n. 9, at 234.

45 (1948) 1 P.D. 109.

46 1 L.S.I. 76.

47 Supra n. 45, at 113.

48 Al-Karbuteli v. Minister of Defence (1949-50) 2 P.D. 5.

49 Id.at 15.

50 Bejerano v. Minister of Police (1949-50) 2 P.D. 80.

51 Id.at 82-83.

52 Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871; 1 S.J. 90.

53 The outstanding decisions in this sphere are: Zitrin v. Disciplinary Tribunal (1987) 41(ii) P.D. 337; Kahane v. Broadcasting Authority (1987) 41(iii) P.D. 255; Laor v. Film and Theatre Censorship Board (1987) 41(i) P.D. 421; Schnitzer v. Chief Military Censor, supra n. 32.

54 The main examples of this approach in the sphere of criminal procedure are discussed by E. Harnon, in this issue, p. 592.

As far as the occupied territories are concerned one may cite examples from two spheres:

a. House Demolition: This measure is used as a form of punishment imposed by a military commander. The collective element of the measure is blatant. In a series of decisions the Court has refused to interfere in the legitimacy of this measure or the reasonableness of its use: see, e.g., Sahawil v. Commander of Judea and Samaria (1980) 34(i) P.D. 464; Hamed v. Commander of Judea and Samaria (1981) 35(iii) P.D. 223; Hamam'ra v. Minister of Defence (1982) 36(ii) P.D. 755. In a recent decision the Court somewhat softened the measure when it ruled that it may not be used unless the house-owner has been given a hearing and a chance to petition the Court. Association for Civil Rights in Israel v. Commander of the Central Region (1989) 43(ii) P.D. 529.

b. Unification of Families: Since the decision in Samara v. Commander of Judea and Samaria (1980) 34(iv) P.D. 1, in which the Court interfered in the refusal to allow the husband of a local resident to remain in the area, the Court has refused to interfere in the refusal of military commanders to allow foreign spouses of local residents the right to reside permanently in the area. See Shahin v. Commander of IDF in Judea and Samaria (1987) 41(i) P.D. 197; Al-Saoudi v. Head of Civil Administration in Gaza (1987) 41(iii) P.D. 138; Shraab v. Head of Civil Administration in Gaza (1987) 41(iv) P.D. 670. For a criticism of the Court's approach in this matter, see Dinstein, Y.“Reunion of Families in the Administered Territories” (1988) 13 Iyunei Mishpat 221Google Scholar.