Eldad & the Supreme Court VI

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Dr. Israel Eldad

Principles for a Hebrew Liberation Movement
by Dr. Eldad

Memorial for Fighters for the Freedom of Israel
by Dr. Eldad

Jabotinsky Distorted
by Dr. Eldad

You Should Be Ashamed!
by Dr. Eldad

Temple Mount In Ruins
by Dr. Eladad

The Fith of Iyar
by Dr. Eldad

The Challenge of Jerusalem
by Dr. Eldad

The Jewish Defense League of Shushan Habira
by Dr. Eldad

An Open and Distressed Letter to Menachem Begin
by Dr. Eldad

Elnakam: Story of a Fighter
for the Freedom of Israel
by Dr. Eldad

The Israel Restraint Forces
by Dr. Eldad

The Real-Politik of Our Sages
by Dr. Eldad

Jerusalem: A Burning Issue
& Trial of Faith
by Dr. Eldad

A New Type of Jew
by Dr. Eldad

Foundation Stones
by Dr. Israel Eldad

Dr. Eldad & the Supreme Court of Israel
Selected Judgments

Biography: Dr. Israel Eldad
by Chaim Yerushalmi

BIBLICAL COMMENTARY

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page 6

Dr. Eldad and the Supreme Court of Israel

14.    The answer to the second difficulty, namely, how this court can order a public officer to do something which lie is under no obligation to do, may be gathered from the very nature of a writ of mandamus. There are three elements in such a writ, namely :

(1) a clear legal right in the petitioner to receive the relief which he claims ;
(2) a public duty upon the officer to do what the petitioner asks the court to compel him to do ;
(3) the absence of an alternative remedy.

    The petitioner in the case before us, as has been said in his affidavit which has not been denied by the second respondent, has fulfilled the requirements of the Education Ordinance which qualify a person to follow the occupation of a teacher. In the light of what was said in Bejerano v. Minister of Police, (1), the petitioner has acquired a legal right to engage in the occupation of a teacher and to insist that public officers will not interfere with him in earning his living by carrying on his profession. The second respondent acted under the completely mistaken impression that he had the right to direct the third respondent at the outset not to employ a teacher otherwise than with his consent, and to object to the candidature of the petitioner thereafter. These acts, which were done without authority, are not only calculated to prejudice a particular class of citizens but actually do prejudice one of them, namely, the petitioner. In the circumstances such as exist in this case, a public officer has failed in his public duty . and the officer must make good the harm done by setting aside the act which lie did without authority. The mandamus to be issued by this court will direct the second respondent to fulfil this public duty towards the petitioner. So far as the third element referred to is concerned, it is not disputed that the petitioner has no alternative remedy. In my opinion it would be appropriate in these circumstances that a writ of mandamus be issued.

15. The court cannot of course direct the second respondent to cancel the circular which he sent to principals of schools, including the third respondent, since no prayer for such relief has been included in the application of the petitioner. The reason for this is that the petitioner had no knowledge of this circular when he filed his application. It only came to his knowledge from the affidavit of the second respondent. The notice of objection, being as it is a natural and necessary consequence of the circular, cannot remain in force, and the writ of mandamus will apply to it alone. it is clear that the setting aside of the notice of objection of the second respondent does not mean the giving of consent to the employment of the petitioner as a teacher in the educational institution of the third respondent. The setting aside of the notice of objection is based on the fact that the issue of that notice was from its inception an act which fell beyond the authority of the second respondent. That is all, and no more.

OLSHAN J. It is my opinion that were we to refuse to accede to the application of the petitioner, we would be a party to turning the principle of “the rule of law”, which prevails in our State. into a sham. The fundamental meaning of that principle is that if there are to be restrictions on the liberty of the individual it is because such restrictions are essential for preserving the real liberty of the subject or the public interest. These restrictions must be laid down by the law, that is to say, by society which reflects its opinion in the laws which are enacted by the parliament which represents it, and not by the executive authority, whose duty it is merely to carry into effect these restrictions, in accordance with such laws.

    The rule inherent in this principle shows that the rights of the individual may not be restricted or removed by an official or Minister just because he thinks, perhaps correctly, that to do so will be of benefit to the State. it is for him to satisfy the legislature that such restrictions are essential or necessary, and it is only after the legislature has authorised them that the official or Minister may carry them into effect.

    It is true that in our time, with the increased intervention of the State in the life of the individual, the task of the legislature has become more difficult and complex. It is not always easy to foresee every circumstance which may arise and to meet it by a reference to it in the statute. A tendency therefore exists to confer powers of subordinate legislation, in such statutes, upon the administrative authority, or of leaving the decision in each case to the discretion of the administrative authority in the light of the general principle laid down by the legislature in the statute. When the legislature leaves the decision as to the imposition of restrictions to the discretion of the executive authority, it follows that the legislature, while laying down the general principle, does not concern itself with the detailed circumstances in which the restrictions should be imposed, but leaves the determination of those circumstances to the discretion of the executive authority. This tendency, which is increasing, presents a serious obstacle to the application of the principle of the “rule of law”. It does not, however, destroy it completely, for the transfer of such power in a particular statute to the executive authority still does not enable that authority to act as it pleases, even in regard to areas not covered by the statute, in other words the executive authority is not free to impose restrictions just because it regards them as desirable, unless the statute which deals with the particular matter gives it the power to impose such restrictions if it deems them necessary. If a power such as this is not included in a particular statute, it is for the executive authority to satisfy and induce the legislature to confer such power upon it. For so long, however, as such power is not accorded to the authority, it may not assume such power itself. Were the position otherwise, the whole principle of the “rule of law”, one of the guarantees of democratic rule in the State, would be turned into a meaningless concept, and all the statutes which deal, for example, with the regulation of the employment of citizens in various professions, would become of secondary importance.

    Let us take as an example the Medical Practitioners’ Ordinance. That Ordinance lays down a number of conditions for the issue to a person of a licence to practise the profession of medicine. If the Minister of Health, without being authorised by the Ordinance so to do, were to instruct private hospitals not to employ doctors without his prior consent, he would thereby, in fact, add a further condition to those laid down in the Ordinance for the em ployment of doctors in their profession — a condition not laid down by the legislature. The citizen, therefore although lie fulfilled the requirements of the law, would find himself dependent upon the favour of the Minister.

continue

page 6

Dr. Eldad and the Supreme Court of Israel

14. The answer to the second difficulty, namely, how this court can order a public officer to do something which lie is under no obligation to do, may be gathered from the very nature of a writ of mandamus. There are three elements in such a writ, namely :

(1) a clear legal right in the petitioner to receive the relief which he claims ;
(2) a public duty upon the officer to do what the petitioner asks the court to compel him to do ;
(3) the absence of an alternative remedy.

The petitioner in the case before us, as has been said in his affidavit which has not been denied by the second respondent, has fulfilled the requirements of the Education Ordinance which qualify a person to follow the occupation of a teacher. In the light of what was said in Bejerano v. Minister of Police, (1), the petitioner has acquired a legal right to engage in the occupation of a teacher and to insist that public officers will not interfere with him in earning his living by carrying on his profession. The second respondent acted under the completely mistaken impression that he had the right to direct the third respondent at the outset not to employ a teacher otherwise than with his consent, and to object to the candidature of the petitioner thereafter. These acts, which were done without authority, are not only calculated to prejudice a particular class of citizens but actually do prejudice one of them, namely, the petitioner. In the circumstances such as exist in this case, a public officer has failed in his public duty . and the officer must make good the harm done by setting aside the act which lie did without authority. The mandamus to be issued by this court will direct the second respondent to fulfil this public duty towards the petitioner. So far as the third element referred to is concerned, it is not disputed that the petitioner has no alternative remedy. In my opinion it would be appropriate in these circumstances that a writ of mandamus be issued.

15. The court cannot of course direct the second respondent to cancel the circular which he sent to principals of schools, including the third respondent, since no prayer for such relief has been included in the application of the petitioner. The reason for this is that the petitioner had no knowledge of this circular when he filed his application. It only came to his knowledge from the affidavit of the second respondent. The notice of objection, being as it is a natural and necessary consequence of the circular, cannot remain in force, and the writ of mandamus will apply to it alone. it is clear that the setting aside of the notice of objection of the second respondent does not mean the giving of consent to the employment of the petitioner as a teacher in the educational institution of the third respondent. The setting aside of the notice of objection is based on the fact that the issue of that notice was from its inception an act which fell beyond the authority of the second respondent. That is all, and no more.

OLSHAN J. It is my opinion that were we to refuse to accede to the application of the petitioner, we would be a party to turning the principle of “the rule of law”, which prevails in our State. into a sham. The fundamental meaning of that principle is that if there are to be restrictions on the liberty of the individual it is because such restrictions are essential for preserving the real liberty of the subject or the public interest. These restrictions must be laid down by the law, that is to say, by society which reflects its opinion in the laws which are enacted by the parliament which represents it, and not by the executive authority, whose duty it is merely to carry into effect these restrictions, in accordance with such laws.

    The rule inherent in this principle shows that the rights of the individual may not be restricted or removed by an official or Minister just because he thinks, perhaps correctly, that to do so will be of benefit to the State. it is for him to satisfy the legislature that such restrictions are essential or necessary, and it is only after the legislature has authorised them that the official or Minister may carry them into effect.

    It is true that in our time, with the increased intervention of the State in the life of the individual, the task of the legislature has become more difficult and complex. It is not always easy to foresee every circumstance which may arise and to meet it by a reference to it in the statute. A tendency therefore exists to confer powers of subordinate legislation, in such statutes, upon the administrative authority, or of leaving the decision in each case to the discretion of the administrative authority in the light of the general principle laid down by the legislature in the statute. When the legislature leaves the decision as to the imposition of restrictions to the discretion of the executive authority, it follows that the legislature, while laying down the general principle, does not concern itself with the detailed circumstances in which the restrictions should be imposed, but leaves the determination of those circumstances to the discretion of the executive authority. This tendency, which is increasing, presents a serious obstacle to the application of the principle of the “rule of law”. It does not, however, destroy it completely, for the transfer of such power in a particular statute to the executive authority still does not enable that authority to act as it pleases, even in regard to areas not covered by the statute, in other words the executive authority is not free to impose restrictions just because it regards them as desirable, unless the statute which deals with the particular matter gives it the power to impose such restrictions if it deems them necessary. If a power such as this is not included in a particular statute, it is for the executive authority to satisfy and induce the legislature to confer such power upon it. For so long, however, as such power is not accorded to the authority, it may not assume such power itself. Were the position otherwise, the whole principle of the “rule of law”, one of the guarantees of democratic rule in the State, would be turned into a meaningless concept, and all the statutes which deal, for example, with the regulation of the employment of citizens in various professions, would become of secondary importance.

    Let us take as an example the Medical Practitioners’ Ordinance. That Ordinance lays down a number of conditions for the issue to a person of a licence to practise the profession of medicine. If the Minister of Health, without being authorised by the Ordinance so to do, were to instruct private hospitals not to employ doctors without his prior consent, he would thereby, in fact, add a further condition to those laid down in the Ordinance for the em ployment of doctors in their profession — a condition not laid down by the legislature. The citizen, therefore although lie fulfilled the requirements of the law, would find himself dependent upon the favour of the Minister.