November 02

Yoav Dotan: Relative Voidness and Remedial Flexibility in Israeli Administrative Law

The consequences of a judicial finding of a defect in an administrative act constitute one of the most puzzling issues in administrative law. According to traditional doctrine, serious flaws such as ultra vires or infringement on natural justice, entail the invalidation of the relevant act (e.g. Ridge v. Baldwin [1964] AC 40). Yet the meaning of invalidity and its implications are far from being clear. This is particularly the case since the invalidity can be declared not only by an appellate court or in the course of judicial review proceedings, but also in a collateral attack, i.e. in proceedings that do not focus directly on the search for a remedy to invalidate the act, but in which the question of the act’s validity is raised incidentally (e.g. Craig, Administrative Law 7th ed. 2012, 744). Traditional doctrine distinguishes between acts that are void and voidable. Voidable acts are valid until successfully challenged by a proper challenger in suitable proceedings of direct attack. Void administrative actions, on the other hand, are in principle subject to challenge in any legal proceedings, by any party (i.e. in a collateral attack). In addition, according to traditional theory, and since void actions are considered ‘null and void’, they are incapable of carrying any legal effects. Hence, when a court declares their invalidity, the declaration carries retroactive force and the parties subject to void orders may ignore them or resist their enforcement (e.g. Daymond v. Plymouth City Council [1976] AC 609; Wade & Forsyth, 235‒236 11th ed., 2014).

The grave consequences that traditional doctrine attributes to invalidity are rooted in the centrality of the concept of ultra vires as the principal pillar of judicial review. The rigidity of this doctrine, however, yields serious problems from both analytical and practical points of view. Contrary, perhaps, to intuition, there is no analytical imperative dictating that a void act (or even an act that is ‘null and void’) can bear no legal consequences whatsoever. As Paul Craig justly notes, the concept of voidness is not necessarily absolute, and the question is largely one of legal policy (Craig 2012, 749). On the practical level, this concept of rigid, ‘absolute’ voidness may produce distorted outcomes and grave injustice. This is particularly the case in collateral proceedings in which the defect in the administrative act can bear unexpected consequences for parties and issues that had never been contemplated in the original administrative setting in which the act occurred. A good illustration is the well-known case of DPP v. Head ([1959] AC 83). There, a man prosecuted for carnal knowledge of a ‘mental defective’ was able to plead that the detention order under which the victim was incarcerated had not been validly made; the detention order was therefore a nullity and the essential element of the offence was lacking.

Despite its obvious deficiencies, the traditional concept of validity still influences administrative law today. To be sure, courts and commentators sought to soften and qualify this rigid concept by certain exceptions (e.g. Craig 746-7); alternative concepts such as ‘partial’ invalidity (Wade 241-3) and ‘second actor’ theory (id. at 251-4) have been put forward. Still, the whole topic is the source of much confusion.

Israeli administrative law followed the footsteps of English law until the late 1970s. In 1980 in the cases of Shapira v. The State of Israel (CA 768/80 & FH 12/81) the Supreme Court deserted the traditional doctrine and introduced a genuine concept called ‘relative voidness’. The case involved criminal proceedings against a construction company and its managers. They were charged for constructing two residential buildings without building permits. The defendants argued that the local zoning commission had issued construction permits for the two buildings. It turned out, however, that these permits were tainted with serious defects. One permit was ultra vires, since the local commission had no authority under the zoning law to issue it. The other permit was defective since the commission had failed to properly publish its issuance, as required by statute, thus infringing upon the hearing rights of potential objectors. The opinions of the five justices on the bench differed with regard to the various parameters of the concept of validity, and the consequences of the above-cited defects in the criminal proceedings. The case, however, became celebrated for one statement by Justice Barak:  –

The concept of voidness…is always relative and flexible…The voidness of a decision should always be related to the nature of the infringed right, the remedy, the process within which the remedy is sought and the parties who apply for it. (AC 768/80 at 363).

At the time this concept was presented, its exact meaning and scope were not fully clear. Within a few years after the Shapira decisions, however, the Supreme Court adopted relative voidness as its principal doctrine regarding invalidity of all types of legal actions. The Court openly rejected the concept of ‘absolute’ voidness and replaced the traditional distinction between void and voidable with the new doctrine (CA 866/95 Sussan; CA 2413/99 Gispan). It applied relative voidness to procedural defects, such as infringement on natural justice (HCJ 2911/94 Baki), publication requirements (HCJ 3081/95 Romeo), and various other kinds of administrative defects. It did not stop short of using the concept in cases of jurisdictional defects. It applied relative voidness to preserve validity in cases of jurisdictional errors (CA 2413/99 Gispan), and used the concept even in cases of clear excess of jurisdiction. Thus, for example, in one criminal appeal the Court ruled that – even  though the defendant was charged in the district court, while according to statute he should have been brought before a magistrates court – still, under relative voidness, and since there was no miscarriage of justice, his conviction must stand (CA 5937/12 Tubul). As to the claim that relative voidness might compromise the importance of the principle of legality in administrative law, Justice Zamir commented:

Relative voidness applies…also to jurisdictional defects. Indeed, it is common to say that excess of jurisdiction is a very serious defect. This is the case in some, but not in all cases. There are various types and colors of ultra vires. Accordingly, in some cases excess of jurisdiction is none but a light, even technical, defect, that caused no injustice. It is neither reasonable nor desirable that the impact of ultra vires would be the same in the light case as in the grave case. (id. at Sec. 17).

The Court applied relative voidness not only with regard to individual acts but also concerning defects in regulations and other statutory instruments. For example, in the case of The Center of Local Government v. Ministry of Education (HCJ 2910/04) a statute required the minister to consult a parliamentary committee before issuing regulations. The minister failed to formally consult with the committee. The court found, however, that the ministry had conducted some informal consultations with members of the committee before issuing the regulation; i.e., in essence, the minister had a good knowledge of the committee’s position concerning his action. Accordingly, the Court used relative voidness to preserve the validity of the regulation.

The widespread use of relative voidness in Israeli administrative law no doubt carries some desirable consequences. It enables the courts to avoid unintended and unwanted consequences of invalidity due to the rigidity of the traditional concept of voidness as nullity. This is particularly the case in collateral attack, in which defects in an administrative act may have distorted and unexpected consequences. Arguably, however, the doctrine’s extensive use in proceedings of direct attack may yield difficulties. This is because the doctrine, in essence, empowers the court to avoid invalidation of an action, even where it is tainted by serious defects, and when the remedy is sought by the pertinent party in proceedings designated to ensure the legality of the action. Some degree of flexibility at the remedial level seems inevitable in any legal system. Relative voidness, however, provides Israeli courts with an easy path to exert maximal flexibility. At the same time, they are spared the need to carefully develop reasoned criteria as to how and under what circumstances such judicial discretion in this field should be used.

It seems that the notion of the excessive flexibility of relative voidness has caught the attention of the Supreme Court. In a recent case in which the Court was called to examine the validity of a building permit that was issued contrary to the requirements of the local zoning masterplan, it expressed some uneasiness with relative voidness, as Justice Meltzer stated:

In those cases in which the court resorts to relative voidness in order to avoid unjustified harm to important interests due to the annulment of an administrative action it can consider using suspension of the declaration of invalidity instead of relative voidness. Thus, it would achieve the preservation of those public interests…but at the same time it would convey a clear message that the action was unlawful and that the proper remedy is complete voidness. (HCJ 7666/14 Adam, Teva V’Din at para. 42, citing Marzel 2005)

It is too early to predict whether this statement marks the beginning of a trajectory towards limiting the courts’ use of relative voidness, but it certainly points to the dynamic nature of the law in the field.

 

References

Daymond v. Plymouth City Council [1976] AC 609.

DPP v. Head ([1959] AC 83.

Ridge v. Baldwin [1964] AC 40.

 

Shapira and Co. Netanya Contractors Ltd v State of Israel (CrimA 768/80 36(1) PD 337 (1981) & FH 12/81 36(3) PD 645 (1982)).

HCJ 2911/94 Baki v. Minister of Interior 48(5) PD 291 (1994).

CrimA 866/95 Sussan v. State of Israel 50(1) PD 793 (1996).

HCJ 3081/95 Romeo v. Scientific Council of the Israel Medical

Organization 50(2) PD 177 (1996).

LCrimA 2413/99 Gispan v. Chief Military Prosecutor 55(4) PD 673 (2001).

HCJ 2910/04 The Center of Local Government v. Ministry of Education 59(3) PD 625 (2004).

CrimA 5937/12 Tubul v. State of Israel (Oct. 21, 2013), Nevo Legal Database (by subscription, in Hebrew).

AdminA 7666/14 Man Nature & Law v. Appeal Board for Planning and Building Central District (Oct. 18, 2017), Nevo Legal Database (by subscription, in Hebrew).

 

Paul Craig, Administrative Law (7th ed. 2012).

William Wade & Chrisptopher Forsyth, Administrative Law (11 ed., 2014).

Yigal Marzel, Suspending the Declaration of Invalidity 9 Law & Government 39 (2005) (Heb.).


Yoav Dotan is a professor and former dean at the Faculty of Law at the Hebrew University, Jerusalem. His main areas of interest are public law, administrative and constitutional law, judicial review, regulation and privatization. He was a visiting professor at Columbia Law School, Fordham Law School, University of Miami Law School and served as a Non-residential fellow at Edmond J. Safra Research Lab at Harvard University (2012-13). He has been the recipient of grants, fellowships and prizes such as the Israel Science Foundation grant and the Shneior Zalman Cheshin Prize. His recent book Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel (2014) was published by Cambridge Un. Press.  He published in journals such as Law & Society Review, Oxford Journal of Legal Studies, Public Law, Administrative Law Review and American Journal of Comparative Law. He served as the President of the Israeli Association for Law and Society (2012-14).