Case Number

CA 525/63

Date Decided

6-6-1964

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The Attorney-General applied for an order against the applicants to remove their children from a Christian missionary school where they had placed them and to arrange for the children's education in a Jewish school. In those proceedings in the Tel Aviv District Court, the applicants requested that the sitting judge should disqualify himself because he was an orthodox Jew and people might gain the impression that he would therefore not deal with the matter impartially. The judge refused to do so and the applicants moved the Supreme Court to have the hearings transferred to another judge of the Tel Aviv District Court.

Held (1) The statutory provisions regarding transfer of cases go only to change of venue in the strict sense of place of trial and not the personality of the judge, and then only when the judge concerned consents thereto.

(2) A judge may certainly possess personal views and beliefs but he must not allow these to pervert his allegiance to the law either in letter and spirit. Judges are presumed to be conscious of and to abide by this obligation.

(3) Whilst there is no dispute that a judge's decision not to disqualify himself should be subject to judicial review, there is no room for the notion that a litigant should be able to choose to be tried by a judge whose views please him.

(4) The decision of a judge not to disqualify himself may be an administrative and not a judicial act, and as such open to review like any other administrative act by the High Court of Justice especially when no right of appeal against the act exists. As a judicial act, the decision is not reviewable under the High Court's statutory powers. In the absence, however, of any remedy, the decision may be challenged indirectly or incidentally by way of an ordinary appeal against the judge's final judgment in the case. A decision on a challenge to the composition of a court before it has been constituted is an administrative act. A like decision after the proceedings have commenced isa judicial act which can only be contested by ordinary appeal.

(5) The High Court of Justice will not order prohibition either against a court or a particular judge where the remedy of appeal is available.

(6) Interlocutory appeal against a judge's decision not to disqualify himself is in any event only possible under the law in respect of civil and not criminal matters. The legislature might well consider a reform of the law in this regard.

Keywords

Administrative Law -- Competent authority, Administrative Law -- Discretion, Constitutional Law -- Equality Before the Law, Courts

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