Judicial Review in the High Court of Justice Flashcards
What are the four phases of the High Court of Justice?
Phase I (1948 to mid-1980s) — deference to legislature; Phase II (mid-1980s to mid-1990s) — starts to take on more of an activist role; Phase III (mid-1990s to 2012) — expands its powers over judicial review to extend to statutory acts passed by the Knesset (Constitutional Revolution); Phase IV (2012 onwards) — now acting in a far more prudent fashion, exercising more restraint in exercising powers of judicial review.
Basic Law: Judiciary.
Section 15 states that the seat of the Supreme Court is Jerusalem, the Supreme Court shall hear appeals against judgments and other decisions of the District Courts, and the Supreme Court shall sit also as a High Court of Justice.
What actions can be taken by the Supreme Court (prerogative writs)?
Quo warranto, prohibition, mandamus, habeas corpus, and certiorari.
Compared to the Supreme Court of Canada, how does access to the High Court of Justice compare?
More accessible, relatively low court fees with exemption possible. Open to all members of the public including non-citizens and Palestinian residents; deals with over 2,000 petitions per year. No witnesses, just written petition backed up by affidavit.
How many justices at the High Court of Justice must decide on the validity of a petition?
One of accepted, three if rejected.
What happens upon an order from the High Court of Justice that a petition is valid on its face?
An order nisi (temporary order) is granted asking the government to explain why it refuses to accede to the petitioners request. After a hearing, the High Court of Justice decides whether to make the temporary order permanent or not.
What are the threshold requirements of accessing the High Court of Justice?
Clean hands; no unjustified delay; exhaustion of remedies; ripeness; no theoretical questions; justiciability; and standing.
What is the clean hands requirement?
Must be acting in good faith.
What is the no unjustified delay requirement?
Must approach the courts immediately — there is no statute of limitations, as the “we know it when we see it” approach is taken.
What is the ripeness requirement?
There is still some way to go before it is appropriate for the courts to address whether the issue is legal or not.
What is the no theoretical questions requirement?
Needs to be based on an actual situation, not a theoretical question.
What is the justiciability requirement?
Matter that the courts can or cannot decide on; decisions which are loosely viewed as political or policy cannot be answered by the High Court of Justice.
What is the standing requirement?
Who can approach the High Court of Justice with questions — whether they are affected by the decision and have a direct interest at stake. Public petitions are not allowed.
When are public petitions allowed?
If the matter at stake is of great public importance — the High Court of Justice has widened the scope of its involvement in the public arena.
Ressler v Minister of Defence.
Any matter is justiciable on the “reasonableness” standard; if the petition raises issues of great public importance, the standing requirement will be set aside and the matter will be adjudicated.
There is a distinction between ‘institutional justiciability’ and ‘normative justiciability,’ where the “reasonableness” standard is to be applied to government actions for normative justiciability, and the High Court of Justice is required to uphold the rule of law for institutional justiciability.
