Case Number

HCJ 910/86

Date Decided

6-12-1988

Decision Type

Original

Document Type

Full Opinion

Abstract

The question raised by this petition to the High Court of Justice involves the legality of the long-standing arrangement whereby students of Yeshivot (Talmudical colleges) are granted deferment of their military service for so long as they continue their full-time studies. This arrangement was instituted as long ago as 1948, and has been reconfirmed by successive Ministers of Defence and governments of Israel ever since. It has been tile subject of a number of earlier petitions to the High Court questioning its legality, all of which were dismissed.

The petitioners submitted that they were entitled to bring the question before the Court as being personally involved, in view of the fact that their army reserve service is prolonged as a result of the extensive deferment, amounting to exemption, of Yeshivah students from military service and that the burden of reserve service for them and others in their position would be considerably alleviated if Yeshivah students were recruited into full-time military service.

The petitioners argued that the decision of the Minister of Defence purportedly on the basis of section 36 of the Defence Service Law [Consolidated Version], 1986, to defer the full-times military service of Yeshivah students, requires Knesset legislation to give in effect. They also submitted that the decision was ultra vires, was based on extraneous and discriminatory grounds and was totally unreasonable.

The High Court ruled as follows:

1. The legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced.

2. While the classical rule was that it is not sufficient for a petitioner merely to show that a governmental authority is in breach of the law, without showing prejudice to his own interest, there have developed several important exceptions to this rule, which have the effect of liberalising the rules of locus standi and making them more flexible. Thus, wherever a petitioner can point to an issue of particular public importance or to a serious flaw in the functioning of a public authority, it would only be right for him to bring such a matter to the attention of the Court whose rule is to review the legality of the acts of public authorities. An even more liberal attitude would allow standing to a "public" petitioner in all cases, thus recognising the actio popularis.

3. In the present case, the standing of the petitioners must be recognised both from the point of view of the "classical" approach which requires proof of an interest in the subject matter of the petition, and from that of the more liberal attitudes which either recognise exceptions to the rule requiring establishment of an interest of the past of the petitioner, or dispense with the requirement of "interest" altogether.

4. The question before the Court is a constitutional one of primary public importance relating to the rule of law, in respect of which the locus standi of the petitioners is impregnable.

5. (per former Deputy President Miriam Ben-Porat): Only where a public authority's action is blatantly unlawful or where an overwhelming important public issue is involved would it be permissible to depart from the basic principle requiring a petitioner to show that he has an interest in the subject matter of the petitioner.

6. The concept of locus standi should not be confused with that of justiciability. The former relates to the question how far the petitioner is the right person to bring the particular issue before the Court, whereas the latter relates to how far the issue is one suitable for judicial consideration.

7. Two forms of justiciability should be distinguished - normative and institutional justiciability. While normative justiciability answers the question whether there exist legal criteria capable of determining the dispute before the court, institutional justiciability answers the question whether the court is the appropriate organ for such determination, rather than any other organ such as the legislature or the executive.

8. All activities, including those of a political nature or matters of policy, are governed by legal norms of one kind or another. There is thus no such thing as a "legal vacuum". Legal norms may be permissive (e.g. "an individual may perform any act, unless it is specifically prohibited") or prohibitive ("governmental entities may not perform any act unless specifically permitted").

9. Lack of normative justiciability means in effect lack of cause of action. In most cases, a submission of lack of normative justiciability has to contend with the general legal norm which obliges governmental bodies to act reasonably, and such reasonableness is examined by legal criteria.

10. (per Barak J): The argument that, in view of the separation of powers an issue of a political nature must necessarily be determined by a political organ, and is therefore institutionally nonjusticiable, is an erroneous one. On the contrary, judicial review of government activity, even if it is of a political nature, ensures that separation of powers is safeguarded. Indeed, where a political or ideological issue is involved, the judge may not express his personal view, but such issue is still justiciable with regard to its legal aspect, and a court cannot refrain from dealing with it without harming public confidence in the rule of law. Thus, the whole doctrine of institutional and (non) justiciability is highly problematical an is only applicable in special instances where it can be shown that public confidence in the judiciary is more likely to be prejudiced than public confidence in the rule of law.

11. (per Shamgar, P.): It is not desirable that all issues concerning governmental activity be referred to the courts, thus depriving other authorities of their proper function. Separation of powers implies a proper balancing of functions between the three powers of government.

Justiciability must be examined by the double test of its normative and institutional aspects. The issue of institutional justiciability must be settled by the judge in accordance with his sense of expertise.

12. (per Ben-Porat, D.P.): The question of justiciability should be left open for further consideration: predominantly it is a matter of the limits of judicial restraint.

13. The question whether a governmental authority is competent to carry out a particular governmental function such as granting deferment to Yeshivah students is normatively justiciable, and is connected with the proper inter­pretation of s. 36 of the Defence Service Law [Consolidated Version].

14. In the present case, institutional non-justiciability is inapplicable. Basically, the question whether Yeshivah students should be drafted into the armed forces is a matter of public policy which should be determined by the political authorities. However, the question of the legality of deferment of those students' military service is a legal question which is for the courts to settle.

15. The Minister's power to defer military service can only be lawfully exercised on the basis of one of the grounds enumerated in section 36 of the Defence Service Law. In exercising his power, he may take into account considerations other than those relating purely to defence, such as requirements of education, the national economy, family or religious factors, all of which come under the general heading of "other reasons" in the said section.

l6. The Minister must exercise his discretionary power to defer military service in a reasonable manner, allowing appropriate weight to the various relevant considerations. The Court will not substitute its own discretion for that of the Minister, but will confine judicial review to the question whether the Minister of Defence may take into consideration the factor of religion and whether in the circumstances the weight he attributed to that factor was reasonable. The Minister may take the religious factor into consideration, so long as it does not bring about substantial harm to security.

17. In Israel, a democratic and pluralistic society, there is no consensus on the issue of military service for Yeshivah students, and this strengthens the view that the Minister can legitimately take the religious factor into consideration when deciding on that issue.

18. The petitioners have failed to rebut the presumption of reasonableness of governmental action and so have failed to show that the Minister's action in continuing to allow deferment of Yeshivah students' military service was unreasonable. There is therefore no ground for intervention of the High Court of Justice in the Minister's decision.

19. However, the decision on deferment of Yeshivah students' military service ought to be reviewed from time to time in the light of current defence requirements; in the view of Shamgar, P., such review should take place annually.

20. (per Shamgar, P.): The fact that the Minister of Defence has acted in this matter consistently with his predecessors in office strengthens the reasonable­ness of his action.

Keywords

Army, Constitutional Law -- Separation of Powers, Justiciability

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