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Published online by Cambridge University Press: 16 February 2016
Professor David Kretzmer has reviewed the development of administrative law in Israel and reached the conclusion that a revolution has occurred. The revolution manifests itself in the substantial widening of the scope of judicial review over administrative acts. For example, the Supreme Court is now willing to review the legality of parliamentary proceedings. This revolution, in his opinion, reflects a change in the conception of the Court's function in this realm. In the past the Court saw itself as limited to the function of deciding controversies between two opposing parties. Today, it is as if another function has been added, and the Court perceives itself as the guardian of the rule of law. Therefore, it is likely to become actively engaged in protecting the rule of law and to invalidate a governmental decision even absent a controversy in the traditional sense. The Court acts in this manner without explaining the basis or the reason for the role that it has assumed. Thus, the question may well arise whether this revolution is legitimate. On the basis of Professor Kretzmer's comments one may ask if indeed the Court, in the struggle over the rule of law, has taken on a function not its own, and in doing so itself infringed upon the rule of law.
1 Kretzmer, David, “Forty Years of Public Law”, in this issue, p. 341Google Scholar.
2 22 L.S.I. 114.
3 The National Insurance Law, 1953 (8 L.S.I. 4), itself constituted a social revolution of sorts which also changed the face of administrative law. It placed new obligations on almost every person vis-à-vis the administrative authority (such as the obligation to make social security payments), and at the same time provided the citizen with new rights as against the administrative authority (such as the right to receive pensions of various sorts). It established a variegated administrative apparatus with broad executive, legislative and adjudicative powers. In the area of legislation, the power to issue regulations for implementing the law was used many times, and at present under the National Insurance Law numerous regulations exist containing thousands of provisions regulating in detail the relations between the National Insurance Institute and the insured. In the area of adjudication, a National Insurance Tribunal was established, which afterwards was subsumed into the Labour Court, which has jurisdiction to adjudicate controversies between the insured and the Institute. The original law established only four categories of insurance. Since then many more categories were added. In 1968, a consolidated version of the law was published, and since then the law has been amended another seventy times. As a practical matter, the influence of this legislation on the national economy and on private life has been enormous. As a legal matter, the change it brought about in the relations between the individual and government is no less significant than any revolutionary ruling issued by the Court in administrative law. The enormity of the influence and importance was multiplied many times by the addition of other central laws in the early years of the state and afterwards, such as the Defence Service Law, 1949 (3 L.S.I. 112), the Compulsory Education Law, 1949 (3 L.S.I. 125), the Absentees' Property Law, 1950 (4 L.S.I. 68), and others.
4 See, e.g., Al-Karbuteli v. Minister of Defence (1949-50) 2 P.D. 5; Bejerano v. Minister of Police (1949-50) 2 P.D. 80; Dr. Sheib v. Minister of Defence (1951) 5 P.D. 399, 1 S.J. 1; Israel Society of Distillers v. City of Rishon LeZion (1953) 7 P.D. 113; Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871, 1 S.J. 90.
5 Kardosh v. Registrar of Companies (1961) 15(ii) P.D. 1151; Registrar of Companies v. Kardosh (1962) 16(ii) P.D. 1209; 4 S.J. 7.
6 Attorney General v. M. Dizengoff & Co. (Navigation) Ltd. (1959) 13 P.D. 1026; 3 S.J. 53.
7 Trudler v. Elections Officer to the Agricultural Committees (1963) 17 P.D. 2503.
8 Peretz v. Kfar Shmaryahu (1962) 16(iii) P.D. 2101; 4 S.J. 191.
9 Sytex Corporation Ltd. v. Minister of Trade and Industry (1976) 30(i) P.D. 673.
10 Binenboim v. City of Tel Aviv (1952) 6 P.D. 375.
11 Attorney General v. M. Dizengoff & Co. (Navigation) Ltd., supra n. 6.
12 Dapei Zahau Ltd. v. Broadcasting Authority (1981) 35(i) P.D. 421.
13 Lansky v. Minister of Interior (1972) 26 P.D. 337.
14 Berger v. Minister of Interior (1983) 37(iii) P.D. 29; Aloni v. Minister of Justice (1987) 41(ii)P.D. 1.
15 For example, Laor v. Film and Theatre Censorship Board (1987) 41(i) P.D. 421.
16 Supra n. 4.
17 Jabotinsky v. Weizmann (1951) 5 P.D. 801, 1 S.J. 75; Ashkenazi v. Minister of Defence (1976) 30(iii) P.D. 309.
18 Becker v. Minister of Defence (1970) 24(i) P.D. 238; Ressler v. Minister of Defence (1982) 36(i) P.D. 81; Ressler v. Minister of Defence (1982) 36(i) P.D. 708. See generally Segal, Z., Standing Before the Supreme Court Sitting as a High Court of Justice (Tel Aviv, 1986, in Hebrew)Google Scholar.
19 Minister of Finance v. Oniyot Michal Umasa (1958) 12 P.D. 1849.
20 Ressler v. Minister of Defence (1988) 42(ii) P.D. 441.
21 Mi'ari v. Speaker of the Knesset (1987) 41(iv) P.D. 169. See also in this matter Bendor, A., “Justiciability in the High Court of Justice” (1988) 17 Mishpatim 592Google Scholar; Kretzmer, D., “Judicial Review of Knesset Decisions” (1988) 8 Tel Aviv University Studiesin Law 95Google Scholar.
22 “Kach” Party Group v. Speaker of the Knesset (1985) 39(iii) P.D. 141.
23 Segal v. Minister of Interior (1980) 34(iv) P.D. 429, at 441.
24 Ibid., at 435.
25 Kinsley v. Registrar for Cooperative Societies (1960) 14 P.D. 2297.
26 Trudler v. Elections Officer to the Agricultural Committees, supra n. 7.
27 Segal v. Minister of Interior, supra n. 23, at 441.
28 HaRav Dayan v. Minister of Religious Affairs (1955) 9 P.D. 997.
29 Segal v. Minister of Interior, supra n. 23; Aloni v. Minister of Justice, supra n. 14.
30 See, e.g., Ressler v. Minister of Defence, supra n. 20, remarks of Deputy President BenPorat regarding standing at 509, and remarks of President Shamgar regarding justiciability at 514 ff. See also, for another example regarding justiciability, the remarks of Elon J. in Mi'ari v. Speaker of the Knesset, supra n. 21.
31 See, e.g., “Kach” Party Group v. Speaker of the Knesset, supra n. 22.
32 Segal v. Minister of Interior, supra n. 23.
33 Aloni v. Minister of Justice, supra n. 14.
34 Ressler v. Minister of Defence, supra n. 20.
35 Mi'ari v. Speaker of the Knesset, supra n. 21.
36 Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) Law, 1969 (23 L.S.I. 53).
37 12 L.S.I. 85.
38 Bergman v. Minister of Finance (1969) 23(i) P.D. 693.
39 Mi'ari v. Speaker of the Knesset, supra n. 21.
