The Supreme Court ruling (HCJ 366/03; 888/03), which refused to rule that the cuts in guaranteed income benefits are illegal, has succeeded in eliciting a great deal of criticism already. There are those who accused the Supreme Court of being shameless and of acting as a Thatcherite court which is working on behalf of the country’s wealthiest ten percent, and those who wonder where the Supreme Court’s judicial activism has gone.
I will open by saying that, in principle, I feel that the criticism of the ruling is justified, and I would sign on every word of the minority opinion expressed by justice Edmond Levy who presented an apposite analysis of the right of an individual to live in adequate conditions as an integral part of the right to human dignity. This position contravenes the minimalist perception of a minimally dignified existence expressed by President Aharon Barak, which was supported by the majority of the Supreme Court justices. The reasoning of the majority opinion is unconvincing in my opinion. Despite the fact that the reasoning is both disappointing and unpersuasive, it is not surprising, and merely represents the ongoing policy of judicial passivism in relation to social and economic rights.
Moreover, in my opinion, the severe criticism voiced by the court, ignores two central perspectives by which the issue should be examined.
Firstly, one must remember that the cuts in guaranteed income benefit were carried out by the Knesset through legislation. We can blame the Ministry of Finance personnel who initiated the legislation, and the Supreme Court, which did not intervene to stop it. However, in the public debate on the issue there is a tendency to forget that the Knesset plenum is not made up of finance ministry officials or Supreme Court justices, but rather members of Knesset, who in the final analysis, are the ones who determine policy on such issues. The public debate which accuses the ministry personnel as the initiators, and the Supreme Court justices for failing to intervene, is an extremely worrying development as it exonerates the politicians from any responsibility for this issue, and us as citizens, from our obligation to call to account, first and foremost, our representatives in the Knesset. The Supreme Court, one must remember, is not a substitute for correct decision-making by state agencies, which in this case is the Knesset. Although the court can criticize and overturn decisions that violate human rights – and in this case one would hope that they would do so – it is still only a secondary player in this story.
Secondly, it appears that the public has forgotten the severe criticism that was directed at the court when, during the hearing of the case, justice Dorner issued an order nisi which called on the state to define what constitutes a minimally dignified existence. As a result of this court order the Knesset took the rare step of accusing the court of overstepping its mandate and of intervening on issues that are not within its authority. It was, however, the Knesset that exceeded its authority by taking this position. The criticism of the Supreme Court’s intervention, especially when it comes from the Knesset, overstepped recognized limits and presented a real threat to the independence of the Supreme Court.
It is not only the Knesset that is creating a storm. The Haaretz newspaper, published an editorial entitled, “With all due respect, it is not within its jurisdiction”, which also expressed the opinion – which to this day I have still not managed to understand upon what judicial thesis it is based – that this issue is not within the authority of the Supreme Court.
Thus, now, during the “social welfare” period before the elections, it is extremely fashionable to criticize the Supreme Court`s ruling and to accuse the court of abandoning society`s poor. One should not forget that it was not so long ago that it was fashionable to attack the court for its very involvement in the case. The position that social and economic rights are not worthy of the full protection of the court, which relates to the court`s illegitimate intervention in budgetary considerations, was a dominant concern during the court`s deliberations on guaranteed income benefit when Justice Dorner issued the order nisi. Although we should welcome the fact that included in the current criticism of the ruling is a clear recognition of the role of social and economic rights, one should also remember that the court’s deliberation on the issue was in the backdrop of claims – mistaken ones – that it was acting with no jurisdiction, a criticism that was voiced at the very heart of Israel`s liberal discourse. When such claims originate from the Knesset, it is already, almost a threat.
last updated : 02/03/06
