Do Israeli courts adequately defend the right to housing? Attorney Gil Gan-Mor explained why not at the TAU & Minerva International Interdisciplinary Workshop: “Housing as Human Right, Tel Aviv and Berlin” (20/12/12)
During the social protests of summer 2011, low-income families and individuals gathered in a tent city in the Hatikva neighborhood of south Tel – Aviv. They were not homeless sleeping rough in the streets before the protest, but without doubt in acute housing distress. Many were single mothers. None of them owned their own apartments.
Some were on the never-ending waiting list for public housing. Some received rental allowances, covering only a small part of their actual rent, and some spent half or more of their income on housing expenses. Many could not come up with the deposit to rent a decent apartment.
They left their homes to protest the results of two decades of non-existing housing policy, the huge cuts to the housing assistant budgets, privatization and market led approach.
At the end of the summer the city decided to cleanse the public garden of its new tenants. Evacuation orders were given to the protesters, but many of them did not have anywhere to go. Some were offered a one time financial stipend to leave the tent city but the city did not offer them permanent housing solutions.
The families filed a petition to theTel Aviv Administrative Court, asking the court to suspend their eviction until all the families would have permanent solutions and to order the city to exercise its responsibility to provide housing for the poor.
What did the court rule? I’ll get to that later.
Before that, I’ll give you some background on the right to housing under Israeli law. First, the right to housing is not included in any basic laws, which inIsraelis an alternative to a constitution. All the proposals to enact a Basic Law on Social Rights included provisions on the right to housing, but these proposals were not supported by the government and fell.
Under regular legislation, the right to housing is also insubstantial compared to other social rights. For example, the right to education is protected by the Compulsory Education Law and the right to health is protected by the National Health Insurance Law. There are very few laws which guarantee different aspects of the right to housing and even the most basic safety nets, such as eligibility for public housing are secured only by internal regulations of the Ministry of Housing.
It is against this backdrop that the courts had to deal with complaints regarding violation of the right to housing. Let’s examine how they handled some of these cases.
One of the first cases was the Gamzo case. Mr. Gamzo could not pay alimony due to his sever economic situation and his ex-wife started proceedings against him. Mr. Gamzo said that if the debt will not be eased, he will become homeless.
The Supreme Court held that for poor people who cannot pay their debts, the risk of imprisonment is not the only danger, and often this is not the worst danger. If the debtor becomes homeless, if he is starving, it is also a danger, and sometimes likely to have a greater impact on him than prison. The Court held that the constitutional right to dignity, which is protected by the Basic Law: Human Dignity andLibertyalso protects the right to exist in dignity. A person who lives in the streets, said the court, and has no accommodation is a person whose human dignity has been violated.
The question of a constitutional right to housing was later discussed several times regarding the questions of tenants about to be evicted due to failure to pay their mortgage.
According to Israeli law, home foreclosure does not put en end to a debt. The debtor has to pay the debt to the last Shekel. If the value of the home after the sale is not high enough, the debtor may lose his home and still owe money to the bank. This is of course a very difficult situation for the family, who cannot secure alternative accommodation.
Due of this threat, section 38 of the Execution Office Law states that the court may order to evict a family only after it is convinced that it will not become homeless and that it has reasonable housing or an alternative arrangement has been provided for them by the bank. However, the banks found a creative way to bypass it. Without exceptions, they added a clause in all mortgage contracts in which the borrower waives his right to alternative accommodation. In practice, the intention of the Knesset became a dead letter.
One of the arguments brought by tenants was that this practice is contrary to their right to dignity. In several cases, the Supreme Court ruled clearly that Article 38 was meant to balance between property rights of the bank and the debtor’s right to a roof, which is also a constitutional right. The court reasoned that making the social aim of article38 adead letter raises constitutional difficulty, but because the law was protected from invalidation the court could only minimize the possibility of banks denying tenants their rights, using creative interpretation. Eventually, the pressure helped and the law was amended in 2008 so that alternative accommodation protection is now compulsory.
We have seen that the Court recognized the right of a person not to be left homeless as a constitutional right protected by the right to dignity.
A bigger challenge to the court was a petition from 2003. The petitioners, individuals and NGOs (Commitment to Peace and Social Justice and ACRI) challenged the legality of cuts of income supplement benefits paid to individuals and families.
Among the petitioners was a 53 years old man. According to his testimony, after his business failed and he got divorced he could not find work, in part because of his age. He does not have an apartment and lives with friends. He has many debts, and he is liable to pay maintenance for his son. Income supplement benefit of 1600NISper month was his only income.
The main argument of the petitioners was that the cuts reduced the income of the recipients under the minimum threshold necessary to live in dignity. Therefore, the court needed to define what “living in dignity” actually means, when it comes to social rights like housing.
Now before we proceed, we have to stop and ask ourselves what “living in dignity” should mean when it comes to housing. We can present a narrow or wider definition.
A narrow definition would mean that the right to live in dignity is to have a roof over your head somewhere or in other words not to be homeless.
I don’t believe that this narrow definition can stand. It is like saying that the right to health sums up in the right to get life saving treatments and no more than that, or that the right to freedom of speech means that you can speak your mind only in your private home.
The right to adequate housing must include a broader definition. It should mean that a person is entitled to a home which is physically safe, where the person can live with his family in privacy and in adequate conditions that fit modern society. Adequate housing must be affordable which means that other basic needs are not threatened or compromised. For example, no one should deny his children dental care just to be able to pay the rent.
Adequate housing should include legal security of tenure which guarantees legal protection against forced eviction, harassment and other threats. Adequate housing must be in a location which allows access to employment options, health-care services, schools, and other social facilities; and it should be culturally adequate.
We can see these categories in the UN General Comment 4 of the CESCR.
Back to our case – the Court choose a very narrow definition of what it means to live in dignity.
Chief Justice Aharon Barack wrote the majority opinion (adopted by the court), and rejected the petition. Barak ruled that the right to dignity defends only a person’s existence. A person’s right to dignity, said Barak, is breached if he suffers acute distress. Accordingly, a person should be guaranteed a minimum of material means, and the state must ensure a “safety net”. In this context, said Barak, it must ensure that a person has accommodation, where he could realize his privacy and be protected from the weather.
The minimum, according to that is just a little more than a bed in a homeless shelter and no more than that.
In contrast, Justice Edmond Levy held a minority opinion. He would have accepted the petition. According to Levy, to realize the right to live in dignity, a person’s life must hold a promise for the foreseeable future. A monotonous and goalless survival can not be seen to be living in dignity. Levy said that to live in dignity means to have adequate conditions that allow the person to function reasonably within the society to which he belongs.
To conclude the ruling, the Court recognized the right to housing as a part of the right to dignity, but defined it very narrowly, to almost the minimum extent possible.
This approach was later strengthened in a recent case of Hassan v. the National Insurance Institute. This case, headed by Chief JusticeDorit Beinisch, is a precedent-setting decision. It rejected the state’s argument that judicial review of social rights violations should be restricted and more moderate than judicial review of political rights violations. This is a very important statement.
But when it comes to the scope of the right to live in dignity, the judgment followed the previous one, repeated the ruling that the right means the minimum and no more. The court went out of its way to be clear that it was talking only about the existence of minimal needs using rhetoric like hunger, homelessness, humiliating poverty.
The court ruled that the right requires the state to act in a variety of measures, according to its resources, including by providing public housing under certain conditions.
We have seen that the Court has formulated a very partial protection of the right to housing.
Dr. Amir Paz Fox argues that the court interpretation of the term dignity leaves many families coping with harsh living conditions without constitutional protection; for example, a family living in terrible overcrowding, or someone who escapes homelessness only due to the help of social organizations or relatives.
Prof. Daphne Barak-Erez, now Supreme Court Justice, and Prof.Eyal Grosssuggest that the legal development of the right to human dignity in the Supreme Court judgments was much more activist regarding civil rights that are not explicitly included in a Basic Law. For example, the Court interpreted the right to dignity as including the right to freedom of expression, the right to equality and the right to family life.
However, when it comes to social rights, the Court interpreted the right to dignity in a narrow way requiring the state only to provide basic living needs. Barak-Erez and Gross also indicate the imbalance between the court protection of civil rights with clear economic aspect like property rights and freedom of contracts while similar constitutional protection of social rights is lacking. Because of this imbalance, social plans are sometimes perceived as a constitutional violation, which all that remains is to hope that the court “will save it” through the limitations clause.
Now let’s move fromJerusalem, where the Supreme Court is located, to Tel Aviv. Let’s examine how the administrative court in Tel Aviv handled cases regarding violations of the right to housing.
The first example is the case of Yoseff v. The Ministry of Housing. In this case a 42 year old man from Tel Aviv petitioned theAdministrative Court and asked to be eligible for public housing. He said he suffers from a mental disability at a level of 75%. Due to his disability, he is unable to work and earn a living. He receives a small rental allowance, but the amount is not enough, he says, to pay his rent. The State offered him public housing in “Kiryat Shmona” or “Nazareth Ilit” in the north ofIsrael, which he refused.
The reason that such a person with sever mental disability is not eligible for public housing is a systematic policy of over 20 years to reduce public housing units. During these years the state did not build or buy new apartments. Therefore, the eligibility criteria are very strict. Only 100% disability of those confined to a wheelchair or families with very low income and with three or more children are entitled to an apartment.
The Court was very empathetic to the plaintiff’s condition. The petition raises difficult humane issues, said the court. If it were possible to assist the petitioner, and other disabled people in his condition, it would indeed be helpful. Assisting people like the petitioner is also important in terms of public interest. We as a society, stated the court, have responsibility to those who are in need, sick or disabled.
But beyond empathy, the court refused to intervene. The Court noted that it cannot take responsibility for the allocation of public resources, and that the court just has to make sure that this allocation is made according to logical, non-discriminatory criteria, and is as fair as possible.
The court did not go into the question of whether there is a constitutional violation of the plaintiff’s right to live in dignity. The court found that the criteria were not discriminatory – because disabled people confined to a wheelchair have special accessibility needs that the plaintiff did not have.
Maybe so, but eventually the petitioner remains without practical housing solution other than sending him to the far north, tearing him from his life, community and friends.
Now let’s go back to the start, to the families in the tent city at the Hatikva public park (Amsalem v. Huldayi). How did the court address those families with a clear housing distress, about to be evacuated from the tent city, where they spent several months protesting their situation? Did it demand the city exercise its power to provide housing?
The answer is no. The Court was determined that the evacuation should not be delayed. The court noted that the city does not deny its responsibility to take care of residents in need, but it does so in its capacity, while exercising discretion and that the Court must not replace the judgment of the city or order the city to exercise its powers to provide housing.
The court said it has no factual basis to know that there is a suitable source of funding to help the families. I should mention that as far as I know, the court did not require the municipality to present such data or possible solutions.
The Court further noted that imposing liability on Tel Aviv municipality to build public housing might result in a flood of poor families from other cities that would come to Tel Aviv. Furthermore, the court held that a person’s right to live in a place where he can realize his privacy and his family life and be protected from the whether, the exact quote from chief justice Barak, does not grant a right to housing in Tel Aviv above all places.
This last comment is particularly interesting because there was no dispute that the families were residents of Tel Aviv. Without housing in Tel Aviv they would be excluded from the place where they grew up, work and have family, friends and community.
It is also mean that the court saw no problem making the city of Tel Aviv, a strong city and wealthy city into an excluding city, that offers possibilities only to the wealthy and rejects its poorer residents.
The court obviously held a very narrow approach of the right to housing, treating housing in Tel Aviv as luxury, and not as a right.
The court is very concerned of the implications its ruling on Tel Aviv, should it accept the petition. But it is totally blind to the social consequences of its ruling. It is not difficult to understand that the concentration of low-income populations in the periphery will intensify the burden imposed on poorer cities and will wider the social gaps.
To sum up, we can see that so far the courts have failed to adequately defend the right to adequate housing. Indeed – the courts can not alone bear the burden of protecting social rights, like the right to housing. The Knesset is responsible to legislate and protect the right to housing, and government and cities must act to provide affordable housing solutions in every neighborhood. But courts must be more active as well.
The courts were more active and more creative in defending civil rights which sometimes serve banks and landlords rather than poor tenants. The court should not abandoned the interest and rights of the less wealthy and protect the right of people to live in dignity, not just to survive, but to live in adequate conditions, to have a meaningful life and to be able to fulfill their potential. Thank you.
