Privy Council’s Decision in Urtas Water Question Interprets Article 2 of Palestine Mandate

(Jewish Telegraphic Agency Mail Service)

An important decision concerning the British Mandate of Palestine was taken in the Judicial Court of the Privy Council.

In the Judicial Court of the Privy Council there being present the Lord Chancellor, Viscount Dunedin and Lord Parmoor.

It was an appeal from an order of the Supreme Court of Palestine restraining the District Governor of the Jerusalem-Jaffa District and the President of the Jerusalem Water Supply Commission from taking water from the springs at Urtas, a village near Jerusalem.

The Lord Chancellor, delivering their Lordships’ judgment said:

In the month of May, 1925, the water supply of Jerusalem was causing anxiety; and on May 25 the High Commissioner for Palestine, acting under the Palestine (Amendment) Order in Council, dated May 4, 1923, promulgated an Ordinance (called the Urtas Springs Ordinance, 1925) empowering the High Commissioner by order published in the Official Gazette to authorize the municipality of Jerusalem or such other authority as undertook the supply of water to Jerusalem, to take water from the springs in the village of Urtas for augmenting the supply contained in the reservoirs at Solomon’s Pools upon certain conditions set out in the Ordinance. On the same day the High Commissioner, acting under the Urtas Springs Ordinance, published in the official Gazette an order whereby he authorized the municipality of Jerusalem to take over for a period not exceeding 12 months from the date of the order the water arising from the spring in Urtas for the purpose mentioned in the Ordinance. It appears that the spring at Urtas is the private property of the inhabitants of that village, who use the water for drinking and other domestic purposes, for watering their animals, and for the irrigation of land planted with trees or with vegetables or other crops; and the respondents, who represent the inhabitants and landowners of Urtas, objected to the taking of the water and applied by petition to the Supreme Court for an injunction. The Supreme Court granted the injunction asked for, but stayed the operation of the order pending an appeal to his Majesty in Council, for which special leave has been granted.

A question was at one time raised whether an appeal would lie from the Supreme Court of Palestine to his Majesty in Council; but on the argument of the appeal this point was not pressed, and in their Lordships’ opinion there is no doubt as to the competence of such an appeal. Provision for such appeals has been made by the Palestine (Appeal to Privy Council) Order in Council dated October 9th, 1924.

Before dealing with the substance of the appeal it is necessary to refer in some detail to the Ordinance which is in question, and to the instruments under which it was made.

By the Mandate for Palestine dated July 24th, 1922, the Council of the League of Nations, acting under Article 22 of the Covenant of the League, entrusted to Great Britain the administration of the territory of Palestine which formerly belonged to the Turkish Empire. The Mandate contained the following among other provisions:

Article 1.–The Mandatory shall have full powers of legislation and of administration save as they may be limited by the terms of this Mandate.

Article 2.–The Mandatory shall be responsible for placing the country under such political, administrative, and economic conditions as will secure the establishment of the Jewish National Home, as laid down in the Preamble, 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 and religion.

Article 11.–The Administration of Palestine shall take all necessary measures to safeguard the interests of the community in connection with the development of the country, and, subject to any international obligations accepted by the Mandatory, shall have full power to provide for public ownership or control of any of the natural resources of the country or of the public works, services and utilities established or to be established therein.

By the Palestine Order in Council dated August 10th, 1922, provision was made for the administration of Palestine by a High Commissioner with full executive powers; and authority to make Ordinances for the peace, order and good government of Palestine was entrusted to a Legislative Council, subject to a provision that no Ordinance should be passed which should in any way be repugnant to or inconsistent with the provisions of the Mandate. The institution of a Legislative Council did not prove successful; and on May 4th, 1923, an amending Order in Council was made by which the legislative authority was transferred to the High Commissioner, who was thereby authorized to promulgate such Ordinances as might be necessary for the peace, order and good government of Palestine, subject to a condition that no Ordinance should be promulgated which should be in any way repugnant to or inconsistent with the Mandate. It is under the authority conferred by this Order in Council that the Urtas Springs Ordinance was promulgated.

It is unnecessary to state in full the provisions of the Ordinance, but the effect of it was, first to secure to every inhabitant of the village of Urtas a sufficient supply of water for drinking and other domestic purposes, and for his animals and for watering his trees and permanent plantations, and, secondly, to provide compensation for any loss which he might suffer by the use of his land for pumping machinery or the laying of pipe lines, or the destruction of his vegetables or other crops or his inability to sow further crops; any question as to the sufficiency of the supply under the first category or as to the compensation payable under the second being referred to arbitration.

The Ordinance was held by the Supreme Court of Palestine (Haycraft, C. J., and Corrie, J.), to be ultra vires and void, on grounds which are fully stated in their judgments. They interpreted Article 2 as requiring that where in the interest of good government the Administration interfered with the antecedent rights of any inhabitant he should receive full compensation for such interference, this being, as the learned Chief Justice said, a “recognized principle of sound legislation.” Having arrived at this interpretation of Article 2, they proceeded to inquire whether full compensation was in fact provided by the Ordinance for the water taken; and they held, upon grounds to be hereafter referred to, that it was not, and accordingly that the Ordinance was an infringement of Article 2, and was therefore ultra vires and void.

In their Lordships’ opinion the Supreme Court was fully justified in entertaining an argument as to the validity of the Ordinance, and it was the right and duty of the Court to examine the terms of the Mandate and to consider whether the Ordinance was in any way repugnant to those terms.

MEANING OF ORDINANCE

But it appears to their Lordships that the construction put by the Supreme Court upon Article 2 of the Mandate is not justified by its terms. That article stipulates that the Mandatory shall be responsible for (among other things) “safeguarding the civil and religious rights of all the inhabitants of Palestine irrespective of race and religion.” This does not mean–as the Supreme Court recognized–that all the civil rights of every inhabitant of Palestine which existed at the date of the Mandate are to remain unaltered throughout its duration; for if that were to be a condition of the Mandatory’s jurisdiction no effective legislation could be possible. Nor does it, in their Lordships’ opinion, mean that in every case of expropriation for public purposes full compensation shall be paid. Their Lordships agree that in such a case and in the absence of exceptional circumstances, justice requires that fair provision shall be made for compensation. But this depends, not upon any civil right, but (as the Chief jstice said) upon principles of sound legislation! and it cannot be the duty of the Court to examine (at the instance of any litigant) the legislative and administrative acts of the Administration, and to consider in every case whether they are in accordance with the view held by the Court as to the requirements of natural justice. In their Lordship’s opinion the key to the true purpose and meaning of the sentence quoted from Article 2 of the Mandate is to be found in the concluding words of the article, “irrespective of race and religion;” and the purpose of the article is to secure that in fulfilling the duty which is incumbent upon every Government to safeguard the rights from time to time belonging to the inhabitants of the territory, the Mandatory shall not discriminate in favor of persons of any one religion or race. There is no suggestion that any such discrimination is to be found in the Ordinance now under consideration.

But even assuming (contrary to their Lordships’ opinion) that any legislation providing for the appropriation of property to public uses without proper compensation would be an infringement of the Mandate, and therefore of the Order in Council, it does not appear to their Lordships that the Urtas Springs Ordinance would be invalid on that ground. The right to sufficient water for the purposes mentioned in the proviso to section 2 of the Ordinance was specifically reserved to the villagers; and it was fully competent to the High Commissioner in reserving this specific right of a somewhat special character to provide for the determination by a specially designated person of any difference which might arise as to the limits of the right.

It is true that no compensation is provided for a breach of the proviso in section 2 of the Ordinance; but this is because a breach of that clause would be a wrong for which the persons aggrieved would be entitled to recover full damages in the local courts.

It is only necessary to add that, even if objection could be taken to the provisions of section 5 of the Ordinance, it may be doubted whether that objection would of itself be sufficient to render invalid the Ordinance as a whole; but upon this point it is unnecessary for their Lordships to express a final opinion.

For these reasons their Lordships are of opinion that this appeal should be allowed, and that the order of the Supreme Court should be set aside and the petition dismissed, and that the respondents should pay the costs of these proceedings, including the costs of this appeal; and they will humbly advise His Majesty accordingly.

The Attorney-General and the Hon. Stafford Cripps appeared for the appellants; Mr. De Gruy-ther, K. C., and Mr. Kenworthy Brown for the respondents.

Solicitors: Messrs. Burchells; Messrs. Ellis, Willes, Ingpen and Armitage.