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Published online by Cambridge University Press: 12 February 2016
The Administrative Procedure Amendment (Statement of Reasons) Law, 1958 imposed on every public servant, the duty—subject to certain exceptions—to give the reasons in writing, for a negative decision, when requested to use his statutory authority.
However, no time-limit for furnishing its reasons was laid upon the administrative authority and no legal sanction was placed on failure to perform this duty except in the case of litigation, where the burden of proof that the public servant has legally used his authority was placed on the public servant. In other words, the presumption of legality was thus in favour of the citizen and not of the decision (sec. 6(A)). This measure is certainly important, but it is already within the field of litigation, while the importance of the Law is in the realm of non-litigious procedure.
In that situation, deliberate or negligent silence on die part of a public servant was enough to make the Law's provisions ineffective. The citizen could only bring an action before the High Court of Justice, a proceeding which is available in every case. Does this mean, therefore, that the 1958 Law did nothing more than to add another action, for failure to give reasons, to those generally available to the individual? If so, it set about it in a very roundabout way!
1 (1958) 13 L.S.I. 7.
2 It is true that, according to sec. 6 of the Interpretation Ordinance (New version), 1954, “where no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed”. This at all events requires litigation in order to instigate a decision, or to determine the notion of “convenient speed”.
3 For the whole of the 1958 Law, see Prof. H. Klinghoffer's analysis: “Comments on the 1958 Law” “Verwaltungsverfahrensgesetze des Auslandes” Schriftenreihe der Hochschule Speyer, vol. 31, (1967), “Die Begrundung von Verwaltungsbescheden” in Israeli Reports to the Eighth International Congress of Comparative Law (The Institute for Legislative Research and Comparative Law, Jerusalem, 1970) 176–195. See also: Pelley-Karp, Judith, “The Israeli Statement of Reasons Act, 1958” (1963) Am. J. Comp. L. 72.CrossRefGoogle Scholar
4 It should be noted that even before the 1958 Law, administrative regulations had imposed a duty to give reasons.
5 The name of the Law before the amendement was Administrative Procedure Amend ment (Statement of Reasons) Law, 1958. In 1969 it became the Administrative Procedure Amendment (Decisions and Statement of Reasons) Law, 1958 (Sefer Hahukim 147). Hereafter the sections referred to in our text are those of the Law as amended in 1969.
6 For the United States, Administrative Procedure Act, 1946; for Great Britain, Tribunals & Inquiries Act, 1958, sec. 12.
7 For analysis and comment on the duty to state reasons and for comparison with American and British legislation, see Judith Pelley-Karp, op. cit., supra n. 3. It may be said that the duty to state reasons in United States and Great Britain is laid essentially upon bodies which have to fulfil a “quasi judical” role.
8 The same is true for the duty to state reasons, laid down in sec. 2 A of the Law of 1958.
9 Cf. Duguit, Léon, Traité de droit constitutionnel (3rd ed. 1927), vol. I, p. 327et seq.Google ScholarBénoit, Francis-Paul, Le droit administratif français (Dalloz, 1968) 522et. seq.Google ScholarHauriou, Maurice, Précis de droit administratif (5th ed., 1903) 266.Google Scholar Marcel Waline gives the following definition: “Unilateral administrative acts are characterized by four points: 1) They are juridical acts. 2) They are acts of the administrative authority (in exceptional cases, of a private person empowered by Public Law). 3) They are acts which have an objet administratif. 4) They are acts capable of being linked to the execution of law or the exercise of a power deriving from susceptible to the Constitution. (Précis de droit adminstratif (ed. by Montchrestien, , 1969) 316).Google Scholar It is to be noted that the expression “by law” relates more particularly to the fourth point of the definition; one could moreover, pushing the comparison a little further, match the other elements of the definition with the contents of sec. 2(A), namely: 1) The decision which a public servant must take following a request will constitute a juridical act. 2) The author of the act, “the public servant” of Israeli law, corresponds to the “autorité administrative” (administrative authority) of French law. This point constitutes the formal aspect of the definition. 3) The “administrative object” is, by contrast, the material aspect of the definition. “Administrative object” excludes from the definition legislative or judical acts and the acts of the administrative authority which do not relate to the administrative function, but which it performs as would a private individual. It is to be remarked that Waline's definition here presented is not unanimously accepted by learned opinion. Cf. in particular Benoit, Francis-Paul, Le droit administratif français (Dalloz, 1968) 509–520.Google Scholar For Bénoit, the criterion is the juridical character of the act, which is determined either by the legislator or by the courts. The characteristic juridical feature of unilateral administrative acts is the possibility of recours pour excès de pouvoir.
10 Two essential types of action exist in French administrative law: Recours de la légalité or recours pour excès de pouvoir, whose object is essentially annulment for illegality of the act impugned; and Recours de pleine juridiction, whose object is to ensure the performance of administrative contracts or to obtain compensation for loss caused by the administration.
11 But the category does not seem to give rise to a duty to state reasons in Israeli law. Is this not in fact the province of the discretionary power which sec. 3(1) of the 1958 Law excludes from the duty to state reasons? Moreover, the examples of acte-condition of general application which we have given are expressly excluded from the duty to state reasons (sec. 3(3) for the appointment of an official). Decisions on the naturalization of an alien are similar in nature to decisions on the entry and residence of aliens, an area which does not give rise to the duty to state reasons (sec. 9).
12 The duty to state reasons does not at all seem to have to apply to this category. Only the High Court of Justice can, by an order nisi at the request of a private individual, summon the administrative authority to furnish reasons for its act or omission, in the sphere of delegated legislation.
13 One gains a similar impression as regards the duty to state reasons: sec. 7 of the 1958 Law provides “[this] Law shall not derogate from any other law dealing with the statement of the reasons for the decisions of administrative authorities”. What interpretation should be given to this provision? Does it totally withdraw the application of the 1958 Law when there exists another legal provision? or does it merely accord preference to the lex specialis. And in the latter case, it is one of two things: either a specific provision imposes a more stringent obligation than that of the 1958 Law and it is understood that the later does not apply, or else on the contrary, the specific provision is less stringent, and one may assume that the 1958 Law, by reason of the generality of its terms, applies in so far as it completes the provisions of the lex specialis. But nothing could be less certain! Cf. H. Klinghoffer, op. cit. p. 194–5.
14 Some contries have enacted a Code of Administrative Procedure. For example Austria in 1925; Spain, with the Law of July, 17, 1958; Czechoslovakia, Government Regulation of 1955; Yugoslavia, Law of 1956; Poland, Code of 1960. The existence of such code does not always bear witness to the democratic character of the regime! Draft codes exist in Italy, Switzerland, Holland, and Belgium. On the question in general cf. Rapport général du 16ème Congrès International des Sciences Administratives, Dublin, September, 1968 (Brussels, Institut International des Sciences Administratives). In particular the article by B. Wennergren, “La Protection des citoyens dans les procédures administratives (à l'exclusion des recours jurisdictionnels)”. See also the Israeli report by Boim, Leon, “Hanmakat Hahlatot Ha-Minhal”, Iyunim be-Bikoret ha-Medinah, No. 20 (Feb. 1969, Hebrew) 23.Google Scholar
15 Conseil d'Etat, March 5, 1948. Roch—Rec. 112: …a ministerial decision which did not fulfil all the formal requirements of an “order” (arrêté) had been considered as such since the statute had provided that the decision will be taken by way of “orders”.
16 Conseil d'Etat, March 29, 1957, Fédération des Syndicats du Lait—Rec. 222; May 17, 1957, Simonet, summing-up by Heumann—Rec. 315.
17 Conseil d'Etat, Jan. 24, 1958, Syndicat National Force Ouvrière des Officiers de Police. R.P.D.A., 1958 n. 79.
18 (1864) IV Dalloz 120.
19 (1900) IV Dalloz 77.
20 (1965) Dalloz 70; Code Administratif (1969) 220. The first two paragraphs are drafted as follow: “Except in the matter of public works, recourse cannot be had to the administrative court except by way of an action directed against a decision, which is to be brought within two months of notification or publication of the decision impugned. If the authority maintains silence on a complaint for more than four months, it is to be deemed a decision to reject the complaint”.
21 Conseil d'Etat, 1956, Delzant—Rec. 421.
22 From this point of view, the Israeli citizen is, generally speaking, better provided for; the time-limit for bringing an action is governed by the equity principle of laches which provides for a flexible time-limit depending on the circumstances of each case.
23 This situation applied only to the recours pour excès de pouvoir and not to the recours de pleine juridiction.
24 This situation applied only to the recours pour excès de pouvoir.
25 (1964) 18 P.D. 657. To which interpetation the High Court seems bound by the terms of the statute itself: sec. 8 of the 1958 Law amends two other statutes; the amendment consisting of deleting the words “according to his discretion”, the intention thereby being to oblige authorities acting by virtue of these statutes to state reasons for their decisions.
26 See infra n. 30.
27 In the French Conseil d'Etat's phraseology.
28 El Ard v. District Com. of North-Nazareth (1964) (II) 18 P.D. 342.
29 (1968) 22 L.S.I. 222.
30 Binyamin Shapira v. Regional Bar Association (1971) (I) P.D. 325.
31 Conseil d'Etat, July 4, 1952, Boussegni—Rec. 353; Conseil d'Etat, May 19, 1905, Juvenon—Rec. 448; Conseil d'Etat, March 25, 1955, Société Mayol-Cinéma—Rec. 181.
32 Cf. Landbadère, A. de, Traité elémentaire de droit administratif L.G.D.]. (4th ed.) Vol. 1, p. 254 and 454.Google Scholar Concerning an unreasoned judgment of the High Court of Justice, cf. Gabizon, Ruth, “The Obligation of the Court to Give Reasoned Decisions” (1970) 2 Mishpatim 89Google Scholar, and Zamir, I., “On ‘Justice’ in High Court of Justice” (1970) 26 Hapraklit 212.Google Scholar See also Levine, D., Judicial Tribunals in Israel (Tel-Aviv, 1969, Hebrew) 18et seq.Google Scholar
33 Conseil d'Etat, July 28, 1952, Jozet—Rec. 431.
34 Conseil d'Etat, May 6, 1953, Soulet—Rec. 211.
35 (1950) III Sirey 41 with the summing-up of Letourneur.
36 Schwartz, B., French Administrative Law and the Common Law (1954) 211.Google Scholar
37 A.J.D.A. Reports 1971 (II) 44, and A.J.D.A. Reports 1971 (I) 150. Pacteau, B. (note) (1971) II Dalloz 344.Google Scholar
38 Cited by Soto, Jean de in “Recours pour excès de pouvoir et interventionisme économique” Etudes et Documents du Conseil d'Etat (1952) 72.Google Scholar
39 The Anglo-Saxon systems and in particular the British Tribunals and Inquiries Act 1958 are not as far from this standpoint as one might think. Is it not precisely the ‘quasi-judicial’ matters which are the object of that Act? Cf. J. Pelley-Karp, op. cit., and also (1963) 3 Br. J. Ad. Law 35.
40 Waline, M., Droit Administratif (Sirey, 8th. ed.) 436et seq.Google Scholar, and Lanbadère, A. de, Traité élémentaire de droit administratif (1967) Vol. I, p. 501et seq.Google Scholar; B. Schwartz, op. cit., p. 194.
41 Conseil d'Etat, May 4, 1948, Connet.
42 Conseil d'Etat, May 28, 1954, R.D.P., 1954, 509, summing-up of Letourneur, note Waline. See also Conseil d'Etat, Jan. 19, 1922, (1954) III Dalloz 36.
43 Conseil d'Etat, Jan. 26, 1968, Actualité Juridique, Droit Administratif (1971) 196.
See also Etudes et Documents du Conseil d'Etat (1969) 153. On the same lines, is Conseil d'Etat, Dec. 11, 1970, “Crédit Foncier de France” Actualité Juridique. Droit Administratif (1955) 405.
44 However in certain matters where real rights are not at issue, the judge is more circumspect, e.g., control of aliens: Conseil d'Etat, April 22, 1955. Association Franco-Russe, with summing-up by Heumann, (1955) Revue Administrative 405.Google Scholar
45 Sec. 7(a) of the Courts Law 1957, 11, L.S.I. 157.
46 Conseil d'Etat, December 4, 1964, Coreos—Rec. 620; Conseil d'Etat, November 18, 1955, Petalas—Rec. 548.
47 Conseil d'Etat, 1944, Trompier—Gravier, and note by De Soto, (1945) Dalloz 111.
48 Conseil d'Etat, July 1, 1966, Société d'Exploitation de la Clinique Rech—Rec. 847. Conseil d'Etat, July 13, 1965, d'Alexis—Rec. 428.