The Standing Doctrine: What Went Wrong?

Abstract

The Israeli High Court of Justice has the power to decline to hear a case even though it has subject-matter jurisdiction, and even if the petitioner has proven its claim. The rational for the HCJ's screening authority is that the petitioner or the petition do not meet the minimal requirements necessary to grant review. Discretionary authority is based on the premise that the kind of decisions the Court makes in determining whether to grant review are significantly different from the considerations relevant to a decision on the merit.

Among these minimal requirements that control the decision to grant a review was standing (locus standi): the petitioner to the HCJ had to assert his own legal rights and interests, as oppose to rights and interests shared by others or by the public in general, in order to entitle him to a hearing on the merits of the dispute.

However, since the beginning of the 1980s, the HCJ started loosening to the point of abandoning the standing requirement: the petitioner to the HCJ need not show standing if the petition raises issues of constitutional importance or of utmost public concern. In the past decade, an opposite trend could be identified, although not that conspicuous or settled, reflecting a wary of citizen-initiated lawsuits in which the plaintiff alleged no personal injury beyond a concern that the government had acted unlawfully. Justices, mostly but not solely from the "conservative camp" of the HCJ, increasingly but sporadically, deploy an intermediate approach, qualifying the permissive approach by a list of limiting exceptions and other judicial means.

Unfortunately, this reverse "velvet" trend does not solve, and indeed it exacerbates, the problem. Evidently, because the standing doctrine has once again become an ideological battle ground between liberal and conservative justices about the role of the HCJ. But more importantly, because the Court retains substantial discretion whether to employ standing or not. In other words, the intermediate approach transforms the standing doctrine from a tool to constrain the Court's discretionary screening authority into a tool to expand it.

Keywords: Standing, High Court of Justice, Israel, Judicial Review