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Colonial Cases

Artas Springs Case, 1925-1926

[mandate status]

Artas Springs Case

Judicial Committee of the Privy Council
Supreme Court of Palestine
1925-1926
Source: The Palestine Bulletin, 19 January 1926

 

PRIVY COUNCIL HEARS ARTAS APPEAL.

LONDON, January 18 (P.T.A.)

   Considerable interest has been aroused throughout England in the Artas dispute a judgment in which has been appealed against in the Privy Council.  The judgment in appeal is that of the Supreme Court of Palestine, which consisted of the Chief Justice, Sir Thomas Haycraft, and the Vice-President of the Court of Appeal Mr. Justice Corrie, and the plaintiff is the Palestine Government.  The ordinance refers to the special law enacted by the Palestine Government for the transfer of water from the Artas spring to Jerusalem.  The Privy Council consisting of the Lord Chancellor, Lord Cave, and Lords Dunedin and Parmoor, heard the appeal this afternoon.

   Sir Douglas Hogg, K.C., the Attorney-General, acting on behalf of the Palestine Government, delivered a long address in which he pointed out the right in law of the Palestine Government to demand a revised judgment to that given by the Supreme Court.  The case, he said, raised grave issues because the judgment of the Supreme Court renders the ordinance in question null and void.  The case stressed an important constitutional issue: whether a Palestine Court could declare an order by the legislature of the country an invalid document.  Sir Douglas further submitted that there was nothing in the Ordinance inconsistent with the Mandate which Great Britain possessed in Palestine neither was there any interference with civil rights of any of the inhabitants of the country.

   Prior to the case being adjourned, Lord Dunedin pointed out that Palestine had been conquered by the Allies, who had allowed the League of Nations to make the arrangements for the constitution of the country, as a Mandated area, but, declared, Palestine could not be regarded as an independent country, for the sole and whole reason that it was a country secured to a great power by the right of conquest.  Judgment in the case has been reserved.

 

The Palestine Bulletin, 28 January 1926.

URTAS SPRING ORDINANCE BEFORE PRIVY COUNCIL.

   The Privy Council, on the 18th inst. (as already reported by cable) consisting of the Lord Chancellor and Lords Dunedin and Parmoor, heard an appeal by the Governor of the Jerusalem-Jaffa district and President of the Jerusalem Water Supply Commission, from an order of the Supreme Court of Palestine on June 25th last granting an injunction against the authorities at Jerusalem from interfering with the eater at Urtas Springs, by which it was desired to supplement the ordinary supply from Solomon's Pool.

ATTORNEY-GENERAL EXPLAINS CASE.

   The Attorney-General, Sir Douglas Hogg, K.C., explained that the case raised grave issues, as the Supreme Court granted the injunction against the Governor and the other appellant on the ground that the ordinance authorising them to interfere with this water supply was invalid and void.

   The respondents, Suleiman Murra and the Rev. Isaac Bandak, for themselves and the inhabitants of Urtas, said there was no right to bring this matter to the Privy Council, that all ordinances in Palestine were void because the Order in Council which purported to authorise the High Commissioner to promulgate ordinances has no effect, and that the ordinance which specially applied was void as inconsistent with the terms of the mandate under which this country was administering or supervising the affairs of Palestine.

THE MANDATE.

   The position of this country was that of a mandatory to the League of Nations, and there was a provision that if this country acted in a way inconsistent with its authority under the mandate, other countries could bring that before the conference at The Hague.  That had already been done in one instance in which he, (the Attorney-General) had represented his country.

   The Urtas Springs at present watered a thousand sheep and donkeys and cattle, and it was early last year that the Governor apprehensive of a severe position arising in Jerusalem from failure of water, authoriser Jerusalem to go to these springs.

   His ordinance prohibited the taking of water which would interfere with drinking ort domestic use of the people of Urtas and the watering of their cattle and trees and provided that if it ever interfered with their growing crops there was to be compensation.  One of the judges who granted the injunction deemed to think there should be compensation in every case.  But there were no other interferences.  The rest were prohibitions of interference.

NOTHING IN THE ORDINANCE INCONSISTENT WITH THE MANDATE.

   Sir Douglas said the important constitutional question was whether w Court of Palestine could declare an order of legislation null and void because the court thought it offended against one of the principles of good government specified in the mandate.  The court said it overruled the ordinance because it was inconsistent with the Mandate in failing to safeguard the civil rights of the inhabitants, and took from the court disputes for damages under the Urtas ordinance, as referring them to an arbitrator appointed by the High Commissioner, whose final award excluded the courts.

   The Attorney-General submitted there was nothing in the ordinance inconsistent with the Mandate or interfering with civil rights.

   Mr. De G. Ruyther, for the respondents, complained that it was proposed to set up a tribunal other than that specified by the Mandate, the civil courts for dealing with civil rights.

THE RIGHT OF CONQUEST.

   Lord Dunedin said there was much talk of civil rights, but he doubted if there were any.  By right of conquest the whole rights of the people perished.

   The country was conquered by the Allied Powers, and the Allied Powers had said to the League of Nations: "You may maker this arrangement, but in respect of the right of the Allied Powers."  The Allies were the people from whom the whole thing sprang by right of conquest.

   Judgment was reserved.

WHAT THE DECISION OF THE PALESTINE SUPREME COURT SAID.

   The decision of the Supreme Court of Palestine against which the Governor of the Jerusalem District and the President of the Jerusalem Water Supply Commission said in part:

Before deciding the question raised by the Petitioners that the ordinance is repugnant to and inconsistent with the Mandate, we have to be surd that we are obliged to adjudicate at all on such a question.  If we are, it will be extremely inconvenient to the Government and to the Courts of Justice because of the manner in which the Mandate is drawn and the wide field of enquiry which it appears to open up to the Courts on the invitation of persons who are opposed to this or that ordinance.

   We are satisfied that we are bound by the general rule that the validity of Laws made by a Legislature which is not sovereign but the creature of some instrument of Government, may be questioned by the local Courts on the ground that they are repugnant to some provision to be found in that instrument.

   The (Palestine) Attorney-General argues that the intention is not to render invalid an Ordinance which is repugnant to a provision of the Mandate, but that it is direction to the local legislature, an infringement of which would render the local Government liable to the interference of the Secretary of Stat and the League of Nations.

   But this is a peremptory Order.

CHARACTER OF THE PALESTINE MANDATE.

   The Mandate is a political and not a legal document and likely to contain expressions of good intention which are more easy to write than to read.  We are, however, bound to read them and give them a practical value and the reiterated insistence on the Mandate in the Order-in-Council obliges us to determine what is the meaning of "Safeguard civil rights."

   No efficient Government can carry on its work without prejudicing the rights of the citizens.  The Mandate provides for certain cases of unavoidable interference with civil rights.  It appears from reading the Mandate generally, that laws may be made which interfere with civil rights in the interest of the community and at the same time we are told that civil rights must be safeguarded.  For taking control of the water, authority may be inferred from the Mandate.  But if the Ordinance does not pretend to provide full compensation for water rights infringer that can hardly be called "safeguarding the civil rights of all the inhabitants."

   The Ordinance as it now stands is repugnancy to and inconsistent with the Order-in-Council, 1922, and with a provision in Article 2 of the Mandate and is not a valid Ordinance.

 

The Palestine Bulletin, 17 February 1926.

PALESTINE GOVERNMENT WINS ARTAS APPEAL.

PERMANENT MANDATES COMMISSION MEETS AT ROME.

....

PALESTINE GOVERNMENT WINS ARTAS APPEAL.

LONDON, February 16 (P.T.A.)

   The Judicial Committee of the Privy Council has given judgment in the appeal brought by the Palestine Government against the decision of the Palestine Supreme court in the Artas Case.  The Privy Council allowed the judgment of the Supreme Court to be set aside, and approves the ordinance issued by the Palestine Government relating to the use of the Artas Springs for the provision of water to Jerusalem.  The judgment continues that [that] of the Supreme Court of Palestine (Sir Thomas Haycraft and Mr. Justice Corrie) must be set aside, as its construction of Article 2 of the Mandate held by Great Britain in Palestine was not justified.  If it were possible to appeal against any Government ordinance before the Supreme Court of Palestine, no effective legislation would be possible.  Judgment orders respondents to pay the costs of the proceedings and the appeal.
 

The Palestine Bulletin, 2 June 1926

THE WATERS OF URTAS.

   "Sowt Es-Shaab" writes that in accordance with the government ordinance on Urtas waters, the Water Board has now discontinued its use of the spring waters, as the period fixed in the law has now elapsed.  Village representatives are now negotiating the price of the water that has been drawn from Urtas springs during the year.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School