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Legislative Reaction to Judicial Decisions in Public Law*

Published online by Cambridge University Press:  16 February 2016

Hans Klinghoffer
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Extract

It is known to lawyers in this country, and no news to those who deal with public law or are concerned with the drafting of legislation, that the legislative and the judicial branches of government are engaged in a continuous dialogue. The role of the courts in the dialogue consists of interpreting statutes to be applied by them, while the legislator at times enters into discussion with the Judiciary by reacting to a court decision through legislative action. It is these phenomena in the field of legislation, occurring as reactions to decisions of the courts, which will be briefly considered in the present article.

The determination of the legislative power to act in reply to a judgment of a court may be based on a number of different reasons. One possible reason is that the court expressed an unfavorable opinion upon the contents of a statute and the legislator, in response to the criticism of the judges, amends the statute in order to do away with the imperfections revealed by the court.

Type
Articles
Information
Israel Law Review , Volume 18 , Issue 1 , Winter 1983 , pp. 30 - 48
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1983

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References

1 (1969) (I) 23 P.D. 693. For an English translation of the judgment and a detailed discussion on this case see “Judicial Review of Statute” (1969) 4 Is.L.R. 559Google Scholar. See also Bergmann, , “The Supremacy of the Knesset” (1971) 6 Is.L.R. 117Google Scholar and Klein, , “A New Era in Israel's Constitutional Law” (1971) 6 Is.L.R. 376Google Scholar.

2 Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) Law, 5729–1969, (23 L.S.I. 53).

3 Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) (Amendment) Law, 5729–1969, (23 L.S.I. 218).

4 Election (Confirmation of Validity of Laws) Law, 5729–1969 (23 L.S.I. 221).

5 (1968/69) H.H. 322. For text of Basic Law: The Knesset, see 12 L.S.I. 85.

6 In Ressler v. Broadcasting Authority, (1977) (II) 31 P.D. 556, the High Court of Justice refused to determine whether certain provisions of the Elections (Modes of Propaganda) Law, 5719–1959, encroached upon electoral equality, on the ground that they were excluded from judicial review by the confirmation of validity Law of 1969.

7 (1981) (IV) 35 P.D. 1.

8 Elections (Modes of Propaganda) (Amendment No. 6) Law, 5741–1981, (1980/81) S.H. 198. This Law did not enjoy the protection of the validatory Law of 1969, as the latter preceded it.

9 Elections (Modes of Propaganda) (Amendment No. 7) Law, 5741–1981, (1980/81) S.H. 331.

10 (1981) (IV) 35 P.D. 4.

11 See supra n. 8.

12 See supra n. 9.

13 Law and Administration (Further Provisions) Ordinance, 5708–1948, secs. 5 and 6 (1 L.S.I. 26); Areas of Jurisdiction and Powers Ordinance, 5708–1948, sec. 3 (1 L.S.I. 64); Jerusalem Military Government (Validation of Acts) Ordinance, 5709–1949, sec. 2 (2 L.S.I. 112); Municipal Corporation of Jerusalem (Validation) Ordinance, 5709–1949, secs. 2 and 3 (2 L.S.I. 113); Supreme Court Judges (Validation of Appointments) Law, 5710–1950 (4 L.S.I. 113); Rabbinical Courts (Validation of Appointments) Law, 5712–1952, (6 L.S.I. 62); Sharia Courts (Validation of Appointments) Law, 5714–1953, (8 L.S.I. 42); Rabbinical Council (Miscellaneous Provisions) Law, 5715–1955, (9 L.S.I. 129); Municipal Corporations Ordinance (Amendment) Law, 5717–1957, (11 L.S.I. 170); Local Councils Ordinance (Amendment) Law, 5717–1957, (11 L.S.I. 176).

14 For example, the Rabbinical Council (Miscellaneous Provisions) Law of 1955 was only a response to the judgment given by the Hight Court of Justice in (1955) 9 P.D. 997; the 1957 Laws amending the Municipal Corporations and Local Council Ordinances followed in the wake of the judgment in (1957) 11 P.D. 214.

15 (1951) 5 P.D. 1480.

16 1 L.S.I. 7.

17 Ibid. at 1486–87 (per Shereshevsky J.).

18 Powers conferred under sec. 9 of the Law and Administration Ordinance, 5708–1948.

19 Emergency Regulations (Continuance in Force of Provisions), 5712–1951, ((1951/52) K.T. 286).

20 As provided in the enabling Statute (supra n. 18), emergency regulations shall expire three months after they are made unless they are extended or revoked at an earlier date by a Law of the Knesset, or revoked by the regulation-making authority.

21 Law and Administration Ordinance (Amendment No. 2) Law, 5712–1952, (6 L.S.I. 39).

22 (1969) (II) 23 P.D. 447. For a further discussion on this case see Akzin, , “Who is a Jew? A Hard Case” (1970) 5 Is.L.R. 259CrossRefGoogle Scholar and Ginossar, “Who is a Jew: A Better Law?” ibid., at 264.

23 Sec. 3 of the Law of Return (Amendment No. 2), 5730–1970, (24 L.S.I. 28).

24 Later, when another son was born to Shalit and the father asked the Registration Officer to record him as a Jew by ethnic affiliation, his demand was again rejected but this time the negative decision of the Officer was confirmed by the Court because in the meantime the Law had been amended as explained above: Shalit v. Minister of Interior (the second Shalit case): (1972) (I) 26 P.D. 334.

25 (1954) (III) 8 P.D. 1524.

26 Food Control (Pig-Raising) Order, 5714–1954, (1953/54) K.T. 933.

27 (1956) 10 P.D. 40.

28 ibid. at 54.

29 (1956) 10 P.D. 734.

30 Ibid. at 752.

31 11 L.S.I. 16.

32 Supra n. 25 at 1531.

33 16 L.S.I. 93.

34 (1980) (IV) 34 P.D. 429.

35 (1980/81) H.H. 66.

36 (1980/81) S.H. 114.

37 (1968) (II) 22 P.D. 343.

38 1 L.S.I. [N.V.] 247.

39 Ibid. at 362 and 363.

40 (1976/77) H.H. 28.

41 This is in spite of the fact that under orders of the Minister of the Interior the said power is given (or purports to be given) to the local councils of categories A and B and to regional councils, that is to local authorities which are not municipalities: Local Councils (A) Order, 5711–1950, sec. 1946 (7), ((1981/82) K.T. 772); Local Councils (B) Order, 5713–1953, sec. 140, ((1980/81) K.T. (Suppl. “Local Government”) 128); and Local Councils (Regional Councils) Order, 5718–1958, sec. 63 (7), ((1957/58) K.T. 1259.

42 (1979) (III) 33 P.D. 480.

43 2 L.S.I. [N.V.] 158.

44 33 L.S.I. 170.

45 Sec. 93B of the Ordinance according to the Amendment.

46 See (1978/79) H.H. 212.

47 (1949) 2 P.D. 80.

48 Ibid. at 82–84.

49 12 L.S.I. 24.

50 The above Commodities and Services (Control) Order of 1961 was published in (1960/61) K.T. 1977 and revoked in (1975/76) K.T. 1035. For the amendment of the Traffic Regulations, see Reg. 271 as published in (1980/81) K.T. 715. The High Court judgment referred to is Mitrani v. Minister of Transport (H.C. 337/81, delivered on July 10, 1983, not yet published).

51 (1957) 11 P.D. 403. For an English translation see (1968) 3 S.J. 365.

52 Ibid. at 412.

53 ibid. at 416.

54 (1966/67) H.H. 182.

55 Law of Evidence (Amendment) Law, 5728–1968, (22 L.S.I. 222), now incorporated into the Evidence Ordinance (New Version), 5731–1971, (2 L.S.I. [N.V.] 198), secs. 44–46.

56 1 L.S.I. [N.V.] 5.

57 (1957) 11 P.D. 659.

58 Ibid. at 666.

59 Divrei HaKnesset, vol. 47, p. 865Google Scholar (the bill was introduced by the author who was then a member of the Knesset).

60 The new Interpretation Law, 5741–1981 ((1980/81) S.H. 302) through its sec. 31 retained sec. 42 of the Interpretation Ordinance.