Ahmed Shauki el Kharbutli v Minister of Defence

JurisdictionIsrael
CourtSupreme Court (Israel)
Docket NumberCase No. 19
Date03 January 1949
Israel, Supreme Court (sitting as the High Court of Justice).

(President: Smoira, C.J.; Olshan and Cheshin, J J.)

Case No. 19
Ahmed Shauki el Kharbutli
and
Minister of Defence and Others.

Mandates — Rights and Duties of Mandatory — Duty of Courts to Examine Validity of Legislation in Light of Mandate — Mandate for Palestine — Whether Part of Law of Palestine — Validity of Defence Regulations.

The Facts.—This was an application for a writ of habeas corpus. The applicant had been placed under arrest in 1948 by the appropriate military authorities purporting to act under powers conferred by the Palestine Defence (Emergency) Regulations of 1945. Regulation III thereof empowered a Military Commander by order to direct that any person shall be detained in such place as may be specified by the Military Commander in the order of detention. Counsel for the applicant argued that the detention order was invalid for the reason, inter alia, that Regulation in was invalid as being ultra vires Articles 2 and 9 of the Mandate for Palestine.

Article 2 of the Mandate put on the Mandatory the responsibility for placing the country under such political, administrative and economic conditions as would secure the establishment of the Jewish national home and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race or religion. By Article 9, the Mandatory was responsible for seeing that the judicial system established in Palestine assured to foreigners, as well as to natives, a complete guarantee of their rights.

Held: that, for reasons of municipal law, the order nisi must be made absolute and the applicant released. The Mandate was part of the law in force in Palestine, and the Courts of Israel were entitled to examine whether Mandatory legislation was ultra vires the Mandate. The Emergency Regulations were not ultra vires. The Court said, per Olshan, J.:

“The basis of the first argument of Counsel for the applicant is the decision of this Court in Leon v. Gubernik [Annual Digest, 1948, p. 42], when this Court expressed an inclination to accept the argument that an Ordinance would be invalid if it were contrary to the Mandate. It is perhaps surprising that after the establishment of the State of Israel we should still have to consider the question whether the Mandate was once part of the law in force in Palestine, or whether it was simply a ‘document’ containing a...

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