Case Number
HCJ 3/58
Date Decided
10-30-1958
Decision Type
Original
Document Type
Full Opinion
Abstract
The district of Nahlath Yitzhak consisting of 250 families had for very many years been part of Tel Aviv Municipality. Since 1949 a movement to sever this connection had gathered strength and in 1950 a petition to this end, signed by 353 residents, had been delivered to the Ministry of the Interior. Tel Aviv had claimed that the petitioners were not authorized to speak for all the residents and the matter was left in abeyance until 1956, when it once more became active on the delivery of a similar petition signed by 491 persons. The Minister then appointed a commission to inquire into the question, in accordance with sec. 5(1) of the Municipal Corporations Ordinance. The commission was composed of seven individuals, including a representative of the Histadrut and the General Zionists respectively. It held five meetings at which the various interests were heard but not those residents in favour of retaining the connection with Tel Aviv. Between the last two meetings, the General Zionist member had died but the Minister did not appoint a substitute and directed the remaining members to complete the inquiry, which they did in July 1957, recommending by a majority of four in favour of the separation. In October the Minister publicly announced his decision to detach the district from Tel Aviv and attach it to Givatayim. Thereupon the opponents of the separation drew up and delivered a petition signed by 182 persons and sought an interview with the Minister. The latter refused abruptly to change his decision, observing that he had reached it after careful examination of all the data, that the petition contained names which had appeared on the earlier petitions and that the number that had signed these showed a overwhelming majority in favour. An additional petition signed by 180 other persons was then delivered, making a total of 360 in favour of the existing arrangement. In the meantime, opposition had also been voiced by the major industrial establishment in the area but had been rejected. Finally in December, the scheme was put into effect.
The petitioners now claimed that in issuing the proclamation bringing the scheme into effect the Minister had acted improperly because he had refused to hear those who opposed it, that the commission was improperly appointed because it was a condition precedent that the Minister should be convinced of the desirability of the proposed change, that even if properly appointed, the commission had lost its competence to act upon the death of one of its number before completing its task, and that as a quasi-judicial body the commission had offended the rules of natural justice by not hearing the other side.
Held:
(1) The commission was properly appointed, the documentary evidence showing that the Minister had before appointing it reached an affirmative attitude in the matter, although it would have been preferable if the Minister had made a personal statement and held himself available as a witness.
(2) Notwithstanding the death of one of its members, the commission had been unaffected in view of the direction to carry on its work. Even if a new commission had been appointed, all the evidence received by its predecessor could have been received, since its function was administrative or at most quasi-judicial.
(3) Although under the duty to hear the other side, the commission did not have to seek out the other side on its own initiative and in the circumstances the latter had to blame themselves if their views were not represented to the commission.
(4) The juridical nature of the Minister's action was not of a nonjusticiable sovereign or legislative kind. Neither was it of a quasijudicial nature to render it subject to the rule audi alteram partem. There was no lis and no finding of fact upon which he had to make his decision. But according to a long and well-established rule of the common law, despite recent divergences therefrom, the citizen must be given a fair hearing when his person, property, status and the like were liable to be affected. In this regard, the Minister's behaviour, although motivated by good faith, was here defective. True democracy calls for diligence in eliminating the bureaucratic barriers that stand between the government and the governed. The latter must be satisfied that decisions affecting their position result from a consideration of all views and interests involved.
Keywords
Administrative Law, Courts
Recommended Citation
Silberg, Moshe; Sussman, Yoel; and Witkon, Alfred, "Berman et al. v. Minister of Interior" (1958). Translated Opinions. 93.
https://larc.cardozo.yu.edu/iscp-opinions/93
