Eldad & the Supreme Court V

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Dr. Israel Eldad

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Jabotinsky Distorted
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Jerusalem: A Burning Issue
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A New Type of Jew
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Foundation Stones
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Dr. Eldad & the Supreme Court of Israel
Selected Judgments

Biography: Dr. Israel Eldad
by Chaim Yerushalmi

BIBLICAL COMMENTARY

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page 5

Dr. Eldad and the Supreme Court of Israel

9.    It should be pointed out at this stage that in spite of the the clear intimation by the Minister of Defence of the reason for his objection to the petitioner, that is to say, his unlawful activities, and in spite of the indication of the sources in which the language objected to, which was used by the petitioner, is to be found, no article or copy of an article written by the petitioner, reflecting these inciting opinions, has been brought before us, either in the affidavit of the second respondent or as an annexure thereto. I do not mean to say that this fact enables us to review the conclusion of the Minister of Defence. We are not competent to do so. As is well-known, however, a writ of mandamus is designed to serve as a means of enforcing compliance with the law and not as an instrument to help in its evasion. It is for this reason that a writ of mandamus will not issue where it appears that it will lead to unlawful acts, or that it is contrary to the public interest. Similarly no relief is granted to a person who approaches this court with unclean hands. If, therefore, any proof at all had been produced before us that the petitioner by his words and articles had in fact broken the law, we should have said that it was these acts on his part which had caused the difficulty in which he has now found himself, and that it is no duty of ours to give him assistance. This, however, as I have said, has not been proved or even argued. It is true that counsel for the second respondent, in the course of his argument, did say that the petitioner was at one time a member of “Lechi” - a fact admitted by the petitioner, as I have said, in his first words to this court - and submitted that it is a legal presumption that the petitioner has continued to remain a member of “Lechi” so long as it has not been proved to the contrary. These matters, however, are not relevant to the argument, for neither the Minister of Defence in his letter to the petitioner nor the second respondent in his affidavit based their objections to the petitioner on his past membership of the “Lechi” organisation. it is too late at this stage to put forward this submission.

10.    It is appropriate at this point to refer to section 8 of the Education Ordinance, which was enacted to meet a situation similar - though not in every particular - to the situation with which we now have to deal.

    According to that section the Director may require the dismissal of any teacher, whether in a public or private school, or in an assisted or unassisted school. Before he may do so, however, a judicial enquiry must be conducted by a judge or magistrate appointed for the purpose and it must first be shown, to the satisfaction of the Minister of Education, that the teacher imparted teaching of a seditious or disloyal character. It is true that this section only applies to a teacher who has already entered upon his duties. And we are dealing with the case of a person who has not yet started working as a teacher. We must also not disregard the important fact, however, that the institution of the third respondent is not a government institution, but an entirely private one. The Government is perhaps entitled to employ in State institutions only those persons of whom it approves and may refuse to employ persons whose opinions do not conform with its own views. 1 say “perhaps” since this question, in its concrete form, does not arise here. The second respondent admits that for the reason stated above - and correctly so - a. 8(3) has not yet been applied to the petitioner, and time question that now arises is as follows : Whence did the second respondent derive the authority to send to the principals of school a circular of the nature of the one sent to the third respondent? This brings us to a subject of which some indication has been given in my previous remarks.

11.    The second respondent acts under the provisions of time Education Ordinance and time Education Rules, in which the rights and powers of the Director of Education in his relationship with schools, principals, teachers and local authorities are set out in detail. There is, however, no mention in the Ordinance or Rules referred to of any right or power to demand of the principals of schools, government or private, not to employ a teacher in their schools save with his prior consent. It seems to me, there fore, that from this point of view time second respondent exceeded his authority, and that the circular which he sent to the principals of schools as well as the notice of his objection to the employment of time petitioner which followed that circular, have no validity. They constitute an interference — albeit with the good, though mistaken, intention of fulfilling a public duty — with the right of citizens to enter freely into contracts of service. This interference is legally objectionable for two reasons. In the first place, it creates the impression that the Minister of Defence, and not the second respondent, is the final arbiter in the question of who is arid who is not suitable to be a teacher — in any event it would appear that that was the case here. In the second place, the petitioner was administratively disqualified from being a teacher without having been given the opportunity of appearing before a tribunal or public board in order to defend himself against his accusers. (No board exists because the legislature did not think of establishing one). A procedure such as this is not permissible.

12.    Now there arises the important question whether this court is obliged, or even competent, to direct the second respondent to cancel the notification of objection which he sent to the third respondent in regard to the petitioner. I must confess that at first I found gm-eat difficulty in deciding this question and found myself confronted with what appeared to be a twofold difficulty. In the first place, so 1 thought, what is the necessity of formally cancelling the notice of objection? This notice, so it would seem, is in any case void since it was sent without authority. The third respondent, therefore, may regard it as a worthless piece of paper ; and if lie does not wish to, will not be bound to act in accordance with its tea-ms. In the second place, since the law did not autho- rise the second respondent to send notices of objection such as these, it is obvious that it did not concern itself with this problem at the outset and imposed no duty upon the second respondent, nor conferred upon him the right, to cancel such notices. Will this court assume authority in these circumstances to direct the second respondent to cancel the notice of objection which he issued in this case? In doing so, under what principle would it be acting?

13.    1 said that I found difficulty in deciding at first, but I have eventually reached the conclusion that it would be proper in a case of this kind for the court to act and issue the writ of mandamus. It is true that principals of schools were fully entitled to regard the circular - and the third respondent was also entitled to regard the notice of objection - of the second respondent as invalid and were entitled not to act in accordance therewith. Had they done so there could have been no complaint against them, and it is unnecessary to add that they would not have been penalised for failure to obey instructions of the competent authority. We must not, however, disregard the internal relationship between the second respondent and the principals of schools. He is the Director of the Department of Education of the Government, and they are the principals of educational institutions in the State There are many bonds which bind the schools to the Ministry of Education . The schools - even private and non-subsidised - are dependent upon the goodwill and often also upon the help of officials of the Ministry of Education in matters of guidance, advice, recommendations, and similar matters. I do not mean to say that if another public official, who was a complete stranger to matters of education, expressed opinions and gave decisions in matters of education, this court could not interfere with his conclusions and decisions. This question does not arise before us in these proceedings and does not demand an immediate solution, in the present case, however, it is beyond all doubt that because of the relationship between schools and the Minister of Education the second respondent exercises indirectly a most powerful influence over principals of schools, even in regard to matters which are beyond the scope of his limited authority, and that such directors will not always see their way clear to disregard such instructions even if they are entitled to do so. A very real piece of evidence which shows that this is so is the fact that, in the case before us, the third respondent actually applied to the second respondent for instructions, although he was under no obligation to do so. In these circumstances, in order to avoid the doing of injustice and with the object of ensuring that the bounds of the authority of public servants are adhered to, this court will certainly express its opinion in the matter.

continue

9.    It should be pointed out at this stage that in spite of the the clear intimation by the Minister of Defence of the reason for his objection to the petitioner, that is to say, his unlawful activities, and in spite of the indication of the sources in which the language objected to, which was used by the petitioner, is to be found, no article or copy of an article written by the petitioner, reflecting these inciting opinions, has been brought before us, either in the affidavit of the second respondent or as an annexure thereto. I do not mean to say that this fact enables us to review the conclusion of the Minister of Defence. We are not competent to do so. As is well-known, however, a writ of mandamus is designed to serve as a means of enforcing compliance with the law and not as an instrument to help in its evasion. It is for this reason that a writ of mandamus will not issue where it appears that it will lead to unlawful acts, or that it is contrary to the public interest. Similarly no relief is granted to a person who approaches this court with unclean hands. If, therefore, any proof at all had been produced before us that the petitioner by his words and articles had in fact broken the law, we should have said that it was these acts on his part which had caused the difficulty in which he has now found himself, and that it is no duty of ours to give him assistance. This, however, as I have said, has not been proved or even argued. It is true that counsel for the second respondent, in the course of his argument, did say that the petitioner was at one time a member of “Lechi” - a fact admitted by the petitioner, as I have said, in his first words to this court - and submitted that it is a legal presumption that the petitioner has continued to remain a member of “Lechi” so long as it has not been proved to the contrary. These matters, however, are not relevant to the argument, for neither the Minister of Defence in his letter to the petitioner nor the second respondent in his affidavit based their objections to the petitioner on his past membership of the “Lechi” organisation. it is too late at this stage to put forward this submission.

10.    It is appropriate at this point to refer to section 8 of the Education Ordinance, which was enacted to meet a situation similar - though not in every particular - to the situation with which we now have to deal.

    According to that section the Director may require the dismissal of any teacher, whether in a public or private school, or in an assisted or unassisted school. Before he may do so, however, a judicial enquiry must be conducted by a judge or magistrate appointed for the purpose and it must first be shown, to the satisfaction of the Minister of Education, that the teacher imparted teaching of a seditious or disloyal character. It is true that this section only applies to a teacher who has already entered upon his duties. And we are dealing with the case of a person who has not yet started working as a teacher. We must also not disregard the important fact, however, that the institution of the third respondent is not a government institution, but an entirely private one. The Government is perhaps entitled to employ in State institutions only those persons of whom it approves and may refuse to employ persons whose opinions do not conform with its own views. 1 say “perhaps” since this question, in its concrete form, does not arise here. The second respondent admits that for the reason stated above - and correctly so - a. 8(3) has not yet been applied to the petitioner, and time question that now arises is as follows : Whence did the second respondent derive the authority to send to the principals of school a circular of the nature of the one sent to the third respondent? This brings us to a subject of which some indication has been given in my previous remarks.

11.    The second respondent acts under the provisions of time Education Ordinance and time Education Rules, in which the rights and powers of the Director of Education in his relationship with schools, principals, teachers and local authorities are set out in detail. There is, however, no mention in the Ordinance or Rules referred to of any right or power to demand of the principals of schools, government or private, not to employ a teacher in their schools save with his prior consent. It seems to me, there fore, that from this point of view time second respondent exceeded his authority, and that the circular which he sent to the principals of schools as well as the notice of his objection to the employment of time petitioner which followed that circular, have no validity. They constitute an interference — albeit with the good, though mistaken, intention of fulfilling a public duty — with the right of citizens to enter freely into contracts of service. This interference is legally objectionable for two reasons. In the first place, it creates the impression that the Minister of Defence, and not the second respondent, is the final arbiter in the question of who is arid who is not suitable to be a teacher — in any event it would appear that that was the case here. In the second place, the petitioner was administratively disqualified from being a teacher without having been given the opportunity of appearing before a tribunal or public board in order to defend himself against his accusers. (No board exists because the legislature did not think of establishing one). A procedure such as this is not permissible.

12.    Now there arises the important question whether this court is obliged, or even competent, to direct the second respondent to cancel the notification of objection which he sent to the third respondent in regard to the petitioner. I must confess that at first I found gm-eat difficulty in deciding this question and found myself confronted with what appeared to be a twofold difficulty. In the first place, so 1 thought, what is the necessity of formally cancelling the notice of objection? This notice, so it would seem, is in any case void since it was sent without authority. The third respondent, therefore, may regard it as a worthless piece of paper ; and if lie does not wish to, will not be bound to act in accordance with its tea-ms. In the second place, since the law did not autho- rise the second respondent to send notices of objection such as these, it is obvious that it did not concern itself with this problem at the outset and imposed no duty upon the second respondent, nor conferred upon him the right, to cancel such notices. Will this court assume authority in these circumstances to direct the second respondent to cancel the notice of objection which he issued in this case? In doing so, under what principle would it be acting?

13.    1 said that I found difficulty in deciding at first, but I have eventually reached the conclusion that it would be proper in a case of this kind for the court to act and issue the writ of mandamus. It is true that principals of schools were fully entitled to regard the circular - and the third respondent was also entitled to regard the notice of objection - of the second respondent as invalid and were entitled not to act in accordance therewith. Had they done so there could have been no complaint against them, and it is unnecessary to add that they would not have been penalised for failure to obey instructions of the competent authority. We must not, however, disregard the internal relationship between the second respondent and the principals of schools. He is the Director of the Department of Education of the Government, and they are the principals of educational institutions in the State There are many bonds which bind the schools to the Ministry of Education . The schools - even private and non-subsidised - are dependent upon the goodwill and often also upon the help of officials of the Ministry of Education in matters of guidance, advice, recommendations, and similar matters. I do not mean to say that if another public official, who was a complete stranger to matters of education, expressed opinions and gave decisions in matters of education, this court could not interfere with his conclusions and decisions. This question does not arise before us in these proceedings and does not demand an immediate solution, in the present case, however, it is beyond all doubt that because of the relationship between schools and the Minister of Education the second respondent exercises indirectly a most powerful influence over principals of schools, even in regard to matters which are beyond the scope of his limited authority, and that such directors will not always see their way clear to disregard such instructions even if they are entitled to do so. A very real piece of evidence which shows that this is so is the fact that, in the case before us, the third respondent actually applied to the second respondent for instructions, although he was under no obligation to do so. In these circumstances, in order to avoid the doing of injustice and with the object of ensuring that the bounds of the authority of public servants are adhered to, this court will certainly express its opinion in the matter.