Segal v. Minister of Interior
The Time Determination Ordinance, 1940, established the legal basis for Summer Time” (i.e., Daylight Savings Time). The petition raised the questions whether the establishing of Summer Time was mandatory or discretionary, and whether the Minister of the Interior lawfully exercised his discretion in deciding not to exercise his authority under the Ordinance. In addition, the petition required that the Court address the question whether a public interest petitioner has legal standing before the High Court of Justice, where the petitioner has no personal interest. The petition also raised the issue of whether the Court must defer to the competent governmental agency’s interpretation of a statute that mandates that the agency take some action. The High Court of Justice granted the petition (Deputy President H. Cohn, Justice S. Levin concurring, Justice A. Barak dissenting), and ordered that the Minister of the Interior institute Summer Time as required under sec. 2(1) of the Ordinance.
Per Deputy President H. Cohn:
1. The Court is not an appellate instance that addresses the question of whether the Minister was right or wrong in his discretion. The argument that the Minister attached too much importance to one consideration and not enough to another cannot serve as grounds for the Court’s intervention as long as the considerations were material.
2. (a) The question of the Ordinance’s interpretation is purely a legal question, as to which the good or evil of Summer Time is immaterial.
(b) If the language of the Ordinance allowed only the construction made by the Minister, it would be preferred over any other possible construction, but the language of the Ordinance does not allow the construction that the Minister propounds. According to the language of the Ordinance, introducing Summer Time is not a matter for the discretion of the Minister, but a duty imposed upon him.
(c) The Minister is not authorized to change the law by refraining from determining the period of its applicability. His restraint frustrates the law, and in a state under the rule of law, the change and abrogation of a law are matters for the legislature and not the executive.
3. (a) The Court will not admit petitions of world reformers who apply to the Court not to realize their own personal rights, but to bring salvation to the entire community.
(b) Standing is no more than a function, or consequence, of the role of the Court to issue relief when and where justice demands. Where a petitioner relies solely on the argument that a decision of a public authority affects a public interest in which he has an interest, without contending a real violation of his personal sphere, the Court will not ordinarily grant standing, but there are exceptions to this rule.
(c) Where the law imposes a duty upon a governmental authority that refuses to exercise it on discretionary grounds, being of the opinion that, under the correct construction of the law, the duty imposed upon it is outweighed by its discretion, the Court will not permit the authority to hide behind a petitioner’s lack of standing to prevent the law’s proper construction by the Court. In such a case, arguing lack of standing is unbecoming. It would be proper for the Respondent to remove all obstacles to the proper construction of the law so that the acts of the authority be corrected.
(d) If – as in the present case – the Respondent argues a lack of standing, the Court will not admit that argument or hear it on the merits, not because it is possibly wrong, but rather despite the fact that it is possibly right. The Court’s duty is to give reign to the law, and when the Court has the opportunity to fulfill its duty, it will not shirk it only because of the specific characteristics of the petitioner.
(Per Justice Barak):
(e) Violation of a right always grants standing, regardless of whether the right is special to the petitioner or common to him and others.
(f) In the instant case, the Petitioner and the other members of the public do not have a right. The law imposes a duty to act lawfully, and the unlawful exercise of power might result in the invalidation of a decision, but such a duty does not entail a correlative right of members of the public that gives rise to standing. If the duty to exercise authority lawfully pertained to standing, every person would always have standing in law, because there is always a duty to exercise authority lawfully.
(g) A petitioner lacking a specific interest, but holding a general interest in lawful administrative action, also has a dispute with the administration and might present a proper factual situation sufficient for the Court’s resolution.
(h) A government that knows in advance that it is not subject to judicial review might not give reign to the rule of law. The doors of the Court should be open to a sincere and serious petitioner who points to a public issue that needs to be resolved for the sake of justice. The rules of standing are not intended to protect the government or to enable it to predetermine “dead areas” of judicial review. The rules of standing are intended to protect the Court, and the Court should determine the tests for its intervention according to changing needs.
(i) The Court must consider the factors that justify a refusal to hear a petition on the basis of the principle of “interest”, but also examine the effect of its refusal on the principle of the rule of law.
(j) In the instant case, the change in the current time in relation to Greenwich Mean Time has a direct and real effect on the life of each member of the public. The Petitioner therefore has a real, direct interest that merits protection.
(Per Justice Levin):
(k) The justices of this Court hold different views in regard to standing, and it is often difficult to harmonize the approaches adopted in judgments by different panels.
(l) We cannot relinquish the requirement of standing, and I cannot agree with the approach of Deputy President Cohn that the content of the petition decides the Court’s willingness to intervene. I would also refrain from general statements that are not necessary to the case before us. It would be better that this matter develop gradually.
(m) Inasmuch as we have found that the Ordinance is obligatory, the question is to whom this obligation is owed. If it is a duty toward every individual, then each has a “right” to demand its enforcement. The fact that a duty is imposed in regard to a large number of citizens does not deny the power of an individual citizen to petition for its enforcement.
(n) The question whether sec. 2(1) of the Ordinance grants a “right” to the Petitioner is one of construction that may be guided by legal policy. I prefer an approach of broad construction of a legal provision that interprets it as granting a “right” as opposed to breaching the boundaries of standing. In sec. 2(1) of the Ordinance, the legislator acted to benefit every citizen, and this is sufficient to grant the Petitioner the right to demand its enforcement. This approach makes it unnecessary to address the question to what extent the Petitioner must show that he suffered a real injury, although I am of the opinion that the Petitioner met that test even in accordance with the approach of those who hold a narrow view of standing, inasmuch as the Minister’s failure to fulfil the duty may directly, significantly and materially influence the conduct of the Petitioner’s daily life.
Per Justice Barak (dissenting):
4. The construction by which the Minister’s authority is mandatory is possible, but it is not the only possible construction. There is a second construction under which the authority is discretionary. This is not only textually possible, but consistent with the possible legislative purpose, and is the only one that does not lead to unreasonable results.
5. As to whether the Minister lawfully exercised his discretion, it appears that the considerations weighed by the Minister are relevant and cannot be considered extraneous. Considerations in regard to religious communities are not extraneous. Just as the Minister may consider the interests of farmers and industrialists, town and village residents, young and old, so he may consider the interests of religious and secular persons.
6. While some of the factual findings in regard to the effects of summer time are disputed, under such circumstances, the Minister may choose the finding that appear acceptable to him.
Per Justice S. Levin (concurring):
7. (a) In terms of the desired policy, the approach that the authority is discretionary is not preferable to the approach that it is mandatory, and vice versa. Either approach can be argued in terms of lege ferenda. The question before the Court is purely one of interpretation.
(b) The question for the interpreter is whether to ignore the phrase “in each year” in the Ordinance, and whether to interpret the term “may” as “shall”. The latter appears preferable in that it gives full meaning to the entire section.
(c) The interpretation that the authority is mandatory is further supported by the fact that when the Ordinance was enacted, the parallel English statutes – the Summer Time Act 1922, and the Summer Time Act 1925 – established a permanent arrangement for “Summer Time”, and it was that arrangement that was contemplated by the Mandatory legislator.
|Cohn, Haim Herman