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The Temple Mount Case

Published online by Cambridge University Press:  12 February 2016

Claude Klein
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Type
Cases
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Israel Law Review , Volume 6 , Issue 2 , April 1971 , pp. 257 - 265
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1971

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References

1 This well known problem stems from section 11 of the Law and Administration Ordinance, 1948 which provides: “The Law which existed in Palestine on the 5th Iyar 5708 (14th May 1948) shall remain in force insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and of its authorities” (1948) I L.S.I. 9.

2 See Bergman. v. The Minister of Finance and State Controller. (1969) (I) 23 P.D. 693 (“Judicial Review of Statute” (1969) 4 Is.L.R. 559); Shalit. v. Minister of Interior et al. (1969) (II) 23 P.D. 477–608 (Akzin, , “Who is a Jew? A Hard Case” (1970) 5 Is.L.R. 259CrossRefGoogle Scholar and Ginossar, , “Who is a Jew: A Better Law?” (1970) 5 Is.L.R. 264)CrossRefGoogle Scholar. Also the TV case, which was not published, since it was an interlocutory order of Berinson J. on November 3, 1969 which permitted the transmission of TV programmes on Friday evening.

3 (1967) Seler HaHukim at 499. (1967) 21 L.S.I. 76. Section 1 provides: “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places”. Section 4 provides: “The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice make regulations as to any matter of such implementation”.

4 The Protection of Holy Places Law, 1967. (See preceding note).

5 (1948) 1 P.D. 58; 1 S.J. 41.

6 As Smoira P. wrote in the case quoted: “…(for example) according to an Order by the Director of the Department of Immigration in regard to places of entry to Palestine, 1943 (…) as amended, Allenby Bridge is one of the lawful places of entry into Palestine. Although in terms of section 15 (a) of the Law and Administration Ordinance, 1948, the word “Israel” is to be substituted for the word “Palestine” wherever it appears in any law, it is clear without any necessity for special consideration that the establishment of the State and its authorities necessitates the deletion of Allenby Bridge from the Order referred to” (At the time Allenby Bridge was in Jordan; now it constitutes again a “lawful” place of entry into the West Bank). The same theory in Diab v. Attorney General 1 S.J. 269 at 281.

7 Silberg J. at 158.

8 In the civil appeal Alikim Haetzani and 3 others v. Amos Ben Gurion (1957) 11 P.D 403, the question was the reception of the rules laid down in Duncan v Cammell Laird and Co. [1942] A.C. 624, relating to the Crown's privilege with regard to the production of evidence. J., Landau ruled that “…we shall rely upon the rules of evidence at common law only insofar as there is no contradiction between them and the principles of the constitutional construction of our country” (at 409).Google Scholar

9 Silberg J. at 157; Witkon J. at 162.

10 At 209.

11 At 173 “…to this day no doubts were expressed about the correctness of the theory which lays down that the words ‘and such modifications…’ in Section 11…are relating to technical modifications only”. Berinson J. introduces an additional reason: the reception of Mandatory law is an unique action, which may not be repeated “it doesn't continue afterwards if there are territorial changes”. This theory explains inter alia why the Palestine Order-in-Council (the Western Wall), 1931, was not made part of Israeli Law as from 1967, when the Western Wall passed under Israeli jurisdiction. With regard to the reception of the Palestine Order (Western Wall), 1931, see the very stimulating analysis of Prof.Nimmer, Melville B. in “The Uses of Judicial Review in Israel's Quest for a Constitution” (1970) 70 Colum. L. R. 1217 at 1248, n. 134.CrossRefGoogle Scholar

12 See Witkon, A., “Justiciability” (1966) 1 Is.L.R. 40Google Scholar; “Politics and Law” (in Hebrew) lecture delivered in memory of the first President of the Supreme Court Dr. M. Smoira; 1965 (Publication of the Israeli Bar and the Hebrew University). See also the judgment delivered by J., Witkon in the Shalit Case (1969) (II) 23P.D. 477 at 532Google Scholar; also the more “restrained” opinion of Landau J. in the same case (at 522 and at 530).

13 In the United States the interest in this question arose particularly after the well known Baker v. Carr decision (1962), 369 US 186; also the Powell v. McCormack issue 395 U.S. 486. See also: Summers, Robert S., “Justiciability” (1963) 26 M.L.R. 530CrossRefGoogle Scholar; The Supreme Court 1968 term 83 HLR at 62; Sharpf, Fritz W., “Judicial Review and The Political Question: A Functional Analysis” (1966) 75 Yale L.J. 517CrossRefGoogle Scholar; in England: Marshall, Geoffrey, “Justiciabiiity” in Oxford Essays in Jurisprudence. (1961) at 265Google Scholar; Stevens, , “Justiciability—The Restrictive Trade Practices Court Reexamined” (1964) Public Law 221Google Scholar; see also Prof.de Smith's, remarks, under the title “Are there Unreviewable Discretionary Powers” in Judicial Review of Administrative Action (London, 2nd ed, 1968) 271.Google Scholar

14 As a matter of fact the word does not appear in the comprehensive article of SirHoldsworth, William S. “The History of Acts of State in English Law” (1941) 41 Colum. L.R. 1313CrossRefGoogle Scholar. Witkon, op. cit., at p. 44.

15 Hillel Oppenheimer v. Minister of Interior and Health (1965) (I) 20 P.D. at 328; also (1966) 1 Is.L.R. at 465.

16 At 215–16.

17 At 215; G. Marshall op. cit. at 287.

18 See the attempt at a comprehensive list in Sharpf, op. cit., at 537 (on the basis of the judgment of J. Brennan in Baker v. Carr) and the detailed list in the footnote at the same page.

19 Without formally quoting it, J., Witkon evidently bases himself on Reiner v. Prime Minister (1965) (II) 19P.D. 485Google Scholar. In this case, the Court was asked to issue an order against the establishment of diplomatic relations with the Federal Republic of Germany and not to accept the German Ambassador designate.

20 Witkon J. points upon the fact that this kind of question is new in Israeli Law, but he cites the precedent of R. v. Metropolitan Police Commissioner, ex parte Blackburn [1968] 1 All. E.R. 763 where Lord Denning M.R. ruled (at 769): “It must be for him (i.e. the Commissioner of Police) to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter…” The problem was whether it was the Commissioner's duty to enforce the law against gaming houses. Confidential instructions decided that the law would not be enforced. The applicant sought an order of mandamus against the Commissioner of Police to compel him. The fact that in the English case, the problem of locus stanai also arose (see at 770 and Salmon L.J.775) distinguishes it from the present case.

21 1 S.J. 75: the petitioner, Member of the Knesset, complained that the President of the State had not asked each of the members of the Knesset to form a new government, after Mr. Ben Gurion had refused to do so. It was in this decision that Smoira P. used for the first time the word “justiciability”, see at 88 “…it may be said that the whole subject of the duty of forming a government…is non-justiciable…”

22 This resembles the French theory of “actes de gouvernement”. These “actes” are non-justiciable. However all attempts to develop a theory to explain such “actes”. failed. See: Virally, Michel “L'introuvable acte de gouvernement” (1952) Revue du droit public 317Google Scholar; Puisoye, Jacques, “Pour une conception plus restrictive de la notion d'acte de gouvernement” (1965) 21 Actualité juridique-Droit administratif 211Google Scholar; Vedel, G., Droit administratif (4th ed., 1968) 270–75.Google Scholar

23 In fact the present case was not the first in which the Supreme Court dealt with the Temple Mount and the right of access of Jews and others to it. In a previous case, the petitioner sought an order from the Court, that the control over entry to the Temple Mount should be in Jewish hands. The Court rejected the petition, mainly on the ground that it was too general, see Ben Dov v. Minister of Religious Affairs (1968) (I) 22 P.D. 440.