Justiciability

Abstract

The purpose of this article is to discuss the problem of drawing a line between law and politics, as it presented itself to courts in Israel. Any such discussion must take as its starting point the judgment of the late President of the Supreme Court of Israel, Dr. M. Smoira, in Jabotinsky v. Weizmann So far as I know, it was here that the term “justiciable” was first used in this context in Israel. This was a case concerning the formation of a new government. The former government, headed by Mr. Ben-Gurion, had received a vote of non-confidence and resigned. The President of the State, after consulting the parties, asked Mr. Ben-Gurion to form a new government and, upon his refusal, had let the matter rest. The petitioner's complaint was that the President should have called upon each and every one of all the 120 members of the Knesset until one was found who succeeded in forming a new government. He applied to the Supreme Court, sitting in its original jurisdiction as a High Court of Justice, for a writ of mandamus against the President ordering him to do so. Two points were submitted by the Attorney General in opposing the grant of an order nisi. His first submission was that the Court should assume no jurisdiction over the President of the State. In this submission he failed, but he succeeded on his second ground, which concerns us here, namely that the matter, being “political”, was not justiciable.