Opposition in the legislative and executive branches of the
Israeli government is building to the most recent attempt of
the High Court to assert that it can decide on any issue that
it sees fit to decide, that "everything is justiciable," as
High Court President Aron Barak has said on many
occasions.
On Tuesday afternoon the Knesset plenum was to hold a special
session, called by Knesset Speaker Reuven Rivlin and the
chairman of the Knesset Committee Ronny Bar On, to discuss
the recent rulings by the High Court of Justice. Two rulings
in particular rankled the legislators. One case was an appeal
to the Court by parents of children with special educational
needs, demanding that the Court force the government to live
up to its legal responsibility to provide funding to allow
their children to participate in the regular education
system. The second case was an order issued by the Court last
week ordering the government to clearly define within 10 days
what "living with human dignity" means. The second case was
the most controversial.
According to the Court, the Basic Law: Human Dignity and
Freedom requires the government to ensure that every citizen
can live with dignity, and this includes having sufficient
money to do so. The Court wants to be able to evaluate
whether recent cuts in guaranteed income benefits for the
poor do not violate the Basic Law on Human Dignity and
Freedom.
At least three different research bodies have suggested
different definitions of what living with dignity means. The
Court has asked the Government to submit what it considers
the definition of dignity. If the government does not do so,
the Court threatened to use one of the definitions that other
bodies submitted to it.
However, the most telling objection, which was even voiced in
an editorial in Ha'aretz, a paper that usually
supports the High Court, was that these matters are best left
to the executive and legislative branches of government. As
many commentators noted, the power of the purse is the most
basic power of the legislature.
Rivlin, the Knesset Speaker, told Ha'aretz that the
High Court had overstepped its authority in both cases.
"These matters are at the very heart of the executive and
legislative branches. The Supreme Court cannot suggest
monetary alternatives for items it decides should not be
cut," Rivlin argued.
"There is no democratic country in which the court determines
policy and priorities. This is not its jurisdiction; it is
the authority of the government and Knesset. It is a primary
duty of the government and parliament to define social
rights. If the High Court interferes in determining social
conditions, tomorrow they'll also want to decide what the
size of the defense budget should be," the Knesset speaker
added.
Attorney Uriel Lynn, who served as chairman of the Knesset's
Constitution, Law and Justice Committee at the time that the
Basic Law: Human Dignity and Liberty was passed, claims that
the committee had no intention of including a section on
social rights in the legislation.
Lynn told Ha'aretz, "We never imagined that the
budgetary allocations for social rights would be brought into
Basic Law: Human Dignity and Liberty, via the back door.
Social rights are a subject that is under the government's
authority, and the government is charged with distributing
resources as it sees fit.
"The High Court does not have the authority to examine the
issue of how the nation's resources are divided. The judicial
branch has grossly overstepped its authority."
Writing in the Jerusalem Post, veteran commentator
Evelyn Gordon noted that this interpretation requires a
highly forced reading of the Basic Law in question. The
closest the law comes to mentioning a right to live in
dignity is in Article 2: "There shall be no violation of the
life, body or dignity of any person as such," and Article 4,
"All persons are entitled to protection of their life, body
and dignity."
Certainly the most reasonable interpretation of these clauses
is that the state must not do something that will violate
dignity, and not that it must provide every citizen with a
minimum income determined by the Court.
She also points out that the dignity guaranteed must be
financed by taking the property of other citizens through
taxes, in express violation of Article 3 ("There shall be no
violation of the property of a person"). The government has
no other source of money.
Moreover Gordon argues that the approach of the Court was
specifically rejected by the Knesset on numerous occasions at
the time of passage of the law and in subsequent years.
She writes, "Since 1948, the Knesset has considered no less
than 15 proposed Basic Laws on social rights, all of which
sought to define employment, education, health care and
welfare as constitutional rights. One of these was submitted
by the Justice Ministry in the early 1990s alongside Human
Dignity and Freedom, proving that the jurists who drafted
Human Dignity and Freedom did not consider it to encompass a
right to welfare payments.
"MKs have submitted at least four others since Human Dignity
and Freedom was enacted in 1992; MKs Yuli Tamir (Labor) and
Eti Livni (Shinui) are currently working on yet another,
which would guarantee all citizens `a decent level of social
security, health and social welfare.' Thus Knesset members
clearly share the ministry's view that these rights are not
covered by Human Dignity and Freedom; if they were, a
separate Basic Law on the subject would not be needed.
"Even more telling, however, is that of the 15 bills
submitted on this subject since 1948, not a single one even
succeeded in passing its first reading. This demonstrates
that not only did the Knesset that enacted Human Dignity and
Freedom oppose according welfare payments' constitutional
status (that same Knesset rejected the accompanying Basic Law
on social rights), a majority of virtually every Knesset
since the establishment of the state has opposed such a
move."
Rivlin has criticized the Court along these lines almost
since he became Speaker.
For many years the chareidim were the only ones who
complained about the encroachment of the High Court on areas
not properly in its domain. Chareidi analysts warned that if
the Court was not restrained, it would eventually impinge not
only on religious rights, but on other areas as well. This
forecast seems to be coming true now.
