Social and economic rights as a result of constitutional revolution of Israel

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Social and economic rights as a result of constitutional revolution of Israel

Barak explained his reluctance to incorporate the full gamut of ESR into Basic Law: Human Dignity and Liberty by reference to legitimacy-associated problems: `It seems that minimal positive rights can be inferred from the right to human dignity… Beyond that the constitution should specify particular rights in order to confer a constitutional supra-legislative status upon positive claims for state action presented by the individual. Inferring broader particular positive rights from the general principle of human dignity is problematic' (unofficial translation). As will be discussed below, this position, which is in itself quite problematic, was essentially embraced by the Supreme Court in the 1996 Friends of GILAT case. C. The Failure to Include Economic and Social Rights in the Israeli Judicial Bill of Rights The third and last constitutional avenue which could have been utilized to promote the constitutional status of ESR in Israel is to include them in the judge-made list of human rights - the Israeli judicial bill of human rights. The inclusion of new rights in the list invests them with only partial constitutional status, as Knesset legislation cannot be invalidated on the basis of the bill of rights. Nevertheless, in reality, this would have gone a considerable way towards constitutionalising ESR given the centrality of statutory interpretation and administrative oversight in the Israeli constitutional discourse. In any event, this has not happened during the 1990s. Although the legal doctrine continued to recognize the validity of the judicial bill of rights, no new rights were created.

It should also be noted that article 10 of Basic Law: Human Dignity and Liberty limits the Courts' competence to invalidate pre-existing Knesset legislation. Thus, the status of rights protected under the Basic Law is significantly different from the status of rights exclusively protected by the Israeli judicial bill of rights only with respect to their effect vis-a-vis new legislation. enactment of the 1992 basic laws, the interpretive possibilities generated by their open-ended language and the prospect of enacting additional basic laws were perceived as more attractive avenues of developing the constitutional discourse. In contrast the judicial bill of rights was viewed as an outdated legal tool befitting a pre-constitutional era. D The Friends of GILAT Case The Supreme Court's scepticism towards ESR in the 1990s is epitomized by the 1996 Friends of GILAT case, the first major case, in which a constitutional entitlement to a social right was discussed. The GILAT program was an educational-psychological program designed to address the cognitive needs of young normal children (aged 1-6 years) raised in grossly dysfunctional or extreme poverty-ridden families. It aimed at strengthening and developing the covered children's cognitive skills, so to enable their eventual incorporation in the regular school system (as opposed to the special education system). Although the program was ran by a private non-profit organization (The Friends of GILAT Association), the Ministry of Education provided financial support and allocated personnel for the program. In 1994 the Ministry decided to discontinue its support of GILAT and to seek more comprehensive alternative programs instead. This last decision was challenged before the Supreme Court by the Friends of GILAT Association, which argued, inter alia, that the decision fails to respect the constitutional right to education of children covered by the program. Justice Or, writing for the Court, dismissed the petition, holding that the Ministry's decision was reasonable.

At its height the GILAT program encompassed some 50 children in a limited number of municipalities around Israel. The Ministry undertook to directly sponsor a Statewide program which would replace the support of GILAT. It seems, however, that a personal fall-out between the Chair of Friends of GILAT and several Ministry of Education officials spurred the later to reassess its involvement in GILAT. GILAT, ibid., at 31. administrative law. According to Or, the Ministry was fully competent to substitute a private program, with partial scope of coverage, with a comprehensive State-run program. As the petition did not challenge the validity of primary legislation, or could have ended his discussion there (and we believe his decision on the merits would have legally sound had he done so). Instead, he chose to specifically address the constitutional argument raised by the applicants. While acknowledging the social importance of education, Or held that the constitutional claim must be supported by the language of a valid constitutional text. However, Basic Law: Human Dignity and Liberty contains no explicit reference to the right of education, and there was, in his view, a body of authority that it should not be construed as containing one. Two other potential legal sources supportive of the right to education identified by the applicants - the 1948 Israeli Declaration of Independence and the 1989 Convention on the Rights of the Child (CRC) - have also been rejected by Or has having no conclusive legal status (the Declaration) or no status whatsoever under domestic law (CRC). Or also opined that the language of both instruments does not entail an obligation upon the State to undertake specific funding obligations, especially not with regard to pre-primary education. It is not clear to what degree Justice Or's position is representative of the views of the full Court. The two other Judges who set on the bench in GILAT supported Or's position on the outcome of the case.

Still, we submit that Or's opinion in GILAT symbolizes the failure of the Supreme Court throughout the 1990s to effectively promote the constitutional status of ESR. It demonstrates the Court's reluctance to incorporate ESR into Basic Law: Human Dignity and Liberty, while it engaged, at the same time, in a parallel project of incorporating a number of non-enumerated civil and political rights into the same text. Further, the highly formalistic stance towards the incorporation of ESR into Israeli constitutional law underscores the Court's conservatism when it comes to addressing the status of ESR. This is illustrated by Or's resistance to use of the Declaration of Independence and international law (including treaties to which Israel is party) as legitimate constitutional law sources - even not as interpretive aids. The unwillingness of the Court to utilize even the Israel judicial bill of rights doctrine, which facilitated in the past the development of numerous civil and political human rights, and to discuss the development of the right of education within its context is also disappointing and indicative of lack of creativity, and perhaps lack of will to be creative, when the promotion of ESR rights is at stake. IV. Implications of the Failure to Recognize Economic and Social Rights as Constitutional Rights In this part we will assess and criticize the main implications of the conclusion that post-GILAT Israeli constitutional law does not recognize ESR as constitutional rights. Our position is driven not only by moral and political considerations, but also by our understanding of the role human rights should play under existing Israeli law, if it were to be properly and consistently construed.

It is notable that President Barak rejected a petition to rehear the GILAT case on the basis that Justice Or's discussion of the right to education was obiter dicta. israel legislation revolution law

It is interesting to note that in other cases, the Supreme Court embraced a more hospitable attitude towards utilization of the Declaration of Independence and international law as legal sources. We also criticize the failure of the Supreme Court to abide by its own human rights rhetoric and doctrines when ESR are concerned. The first and immediate problem arising out of the failure to constitutionalise ESR is the freedom it gives the legislature, and probably also administrative agencies, to cut down social service (e.g., unemployment benefits, pensions, health services) and to impinge upon economic and social interests without having to face meaningful standards of judicial review. Indeed, in recent years a string of government-sponsored laws cutting back social expenditures has passed in the Knesset, without the restraining effect of a possible constitutional challenge. The shortcomings of the present constitutional situation are demonstrated in the 2004 Adam, Teva Va-Din case. In that case the Supreme Court reviewed a challenge to the lawfulness of a 2002 amendment to the Planning and Building Law, which released the government from the need to commission environmental impact assessment surveys in respect to certain national infrastructure projects. The new legislation also introduced strict deadlines for the submission of public objections to such projects on environmental grounds. In rejecting the petition, President Barak held that the constitutional threshold has not been met with regard to any of the constitutional rights which the petitioner argued would be adversely affected by the harm to the environment that might ensue from the new planning and zoning procedures - the right to life, the right to body integrity, the right to property.

Both laws reduce child allowance, unemployment and old age benefits, income assurance and cut down government health expenses.

It is perhaps instructive that President Barak addresses the right to life and the right human dignity and the right to property. The end result is that a piece of legislation that President Barak himself characterized as inadequate, and which has the potential to render meaningless protections afforded by many ESR (the right to health, the right to adequate standard of living and the right to a satisfactory environment itself) has survived a constitutional challenge, by virtue of the exclusion of ESR from constitutional law. It is doubtful whether the same result could have been reached by the Court with respect to legislation compromising civil and political rights (e.g, legislation authorizing lower level of evidence for disqualification of political parties or severe time restriction for submission of appeals in certain criminal cases). The other side of the coin is that claims directed at the government to improve social conditions (e.g., addition of new drugs and treatments into the state-sponsored `health basket' or more affordable public housing) lack constitutional support. This seriously weakens the positions of individuals and NGOs committed to the promotion of economic and social causes. For example, numerous petitions seeking to introduce new drugs and treatments into the `national health basket' (which is subsidized by the State) have failed by reason of inadequate constitutional grounds. The exclusion of social rights from the dominant Constitutional discourse also influences societal perceptions of entitlements and perpetuates the image of ESR as charity-type privileges, which the government can accord or deprive at its discretion. A second problem, which was already alluded to, is the imbalance created in the Israeli constitutional system. The choice to promote one group of rights and not to promote another has specific legal and social implications: Civil and political rights, often having dominant negative to body integrity under article 2 of Basic Law: Human Dignity and Liberty, which introduces negative obligations upon the State, and not under article 4 of the Basic Law, which introduces positive obligations.

The preferred status of the first group of rights implies that courts assign the burden of showing the constitutionality of contested social instrument or policy interfering with constitutionally protected negative rights upon the party supporting the instrument or policy and not upon the party objecting thereto. In practice, this often means that the `haves' - the property owners, whose right to property is constitutionally protected - are better protected than the `have nots' - the workers and the welfare dependents, whose social rights are not constitutionally protected. The outcome of the constitutional deliberations of the 1990s - the constitutionalisation of civil and political rights and the failure to constitutionalise ESR - thus entrenches the existing balance of power and allocation of resources within Israeli society and stands in the way of social reform. This development has been derided by one Israeli scholar as the Lochnerisation of Israeli constitutional law. Specifically, it is argued that governmental plans to tax or regulate capital or businesses in order to promote social welfare would have to meet formidable legal obstacles - the constitutional rights to property and the constitutional freedom of occupation (encompassing, according to the Supreme Court freedom from governmental interference in the conduct of businesses). In such cases, the government must demonstrate that the restrictions upon the right to property and freedom of occupation meet the conditions specified in the constitutional limitation clause (except the `lack of excessive restriction' test which, according to some justices, ought to be refuted by the party challenging constitutionality).

Although the burden to justify pro-ESR measures can be realistically met, and indeed has been met in a few cases, the current legal situation produces a chilling effect, which complicates taxation reform, business regulation and other redistribution or reallocation projects. These developments have to be appreciated in the context of the ideological tensions characterizing Israeli politics from the mid-1990s and until the present day. The declining economic conditions in the country (attributed inter alia to the almost concurrent collapse of the peace process and NASDAQ), combined with the ascendancy of rightist economic agendas in the Israeli political system (dominating both the Likud and the Labour parties) have put the Israeli welfare State under increased pressure. In the last decade, the bon ton among influential government officials responsible for steering the national economy has been to support dramatic cuts in government spending on social programs and welfare, and to reverse the trend of a steady increase in such spending (from 1948 to the mid 1990s). The unraveling of the traditionally robust Israeli welfare State has resulted in a dramatic increase in income gaps between Israeli citizens and in the proliferation of private welfare agencies, which are typically under funded and often unqualified. The Supreme Court's lack of interest in promoting the constitutional status of ESR serves, perhaps unintentionally, the purposes of those who attack the Israeli welfare State. Thus, while the Court might be driven by an old school agenda of legal prudence, the implications of its policies are highly divisive. Some critics of the Supreme Court did in fact try to link the Court's position on ESR to sociological factors.

The requirement that manpower companies deposit securities to guarantee compliance with labour laws as a licensing prerequisite is constitutional despite its interference with freedom of occupation. Closing of a drug rehabilitation centre is justified despite the constitutional freedom of occupation of the association responsible for the operation of centre, because of the overriding need to protect the rights of patients in the centre.

For example the national health expenditure per capita rose in by 19% between 1991 to 1996 (in real money value). that the Court's anti-ESR bias can be explained through reference to the elitist composition of the Supreme Court, which affects the discourse among its judges. This discourse had allegedly embraced neo-liberalist (or neo-libertarian) positions, which are out of synch with the views of large parts of the population and are oblivious to the urgent needs of Israeli society. Other domestic and international critics have portrayed the Court's attitude as part of a more general human rights problem. They have noted that Arab Palestinians - both Israeli citizens and residents of the Occupied Territories - being in the most vulnerable economic and social situation, are the most conspicuous group adversely affected by the legislator and Court's refusal to constitutionalise ESR. The approach towards ESR is, according to these critics, part of the systematic discrimination of Arab Palestinians by the Israeli political and legal system. We do not fully subscribe to these modes of criticism, since they fail to explain the Court's willingness to uphold non-constitutional social legislation152 and to protect the civil and political rights of the disenfranchised, including, at least in some cases, the civil and political rights.

The Supreme Court's constitutional jurisprudences is designed to legitimate social inequalities. Indeed, the focus of the CESCR Committee concluding observations on the implementation of the ICESCR in Israel have addressed to a large extent the plight of Palestinians inside Israel and the Occupied Territories. Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Article 16 and 17 of the Covenant, Israel, UN Doc E/C.12/1/Add.27 (1998); Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Article 16 and 17 of the Covenant, Israel, UN Doc E/C.12/1/Add.90 (2003).

We do believe, however, that the Court's conservatism can be explained through reference to the classic liberal background of the judges and to their hesitance to clash with the other branches of government on matters of social policy, entailing considerable financial consequences. In this respect, the Israeli case does not differ from the experience of other jurisdictions which viewed for many years ESR as illusory or non-justiciable rights, entailing difficult political choices. The political context of the Court's decisions on ESR needs to be somewhat elaborated upon. The awkward manner in which the Israeli constitutional order was created in the 1990s - the pronunciation of the constitutional revolution by the judiciary without such clear intent on the part of the drafters of the Basic Laws - has led the political branches to view with suspicion and disapproval judicial attempts to develop the Israeli constitution, in a way which significantly limits the legislative power of the Knesset. Attempts to develop constitutional law so as to encompass ESR involving significant expenditures have been particularly criticized since they were perceived as indicative of unrestrained judicial activism, which fails to respect the policy-making prerogatives and expertise of both the executive and the legislator. Indeed, recent Supreme Court decisions requiring the government to allocate significant funds for the education of children with specific needs and to explain its refusal to establish standards for what constitutes minimal conditions for subsistence were harshly criticized in political circles and were met with an unequivocal Knesset denunciation.

Courts are ill-equipped to review a claim of discrimination against Arabs in the allocation of State religious services funds, as the courts cannot assess the implications of altering the existing State budget.

On January 13, 2004 the Knesset adopted by a majority vote a non-binding statement voicing concern with respect to “recourse by the Supreme Court to issues which are obviously within the scope of authorities of the executive and legislative branches; the Knesset warns, on the basis of respect to the judiciary, in general, and to the Supreme constitutionalization of ESR, no doubt complicates the task of the judiciary. It does not however release the courts from their responsibility to protect the human rights of all individuals in Israel, as far as the existing legal order so permits. We see no use in revisiting here in extend the policy arguments supporting the importance and the justiciability of ESR, the indivisibility of first and second generation rights and the narrowing of the differences between the two. These arguments have been developed by many authors, including the present writers, elsewhere. It suffices to note that in the Israeli context, the legal case against the constitutionalisation of ESR is particularly weak. This is because the Israeli Supreme Court has taken an activist position on a wide variety of topics and has been willing to recognize through interpretive means numerous human rights, which are no less vague in nature than ESR, which are as politically divisive as ESR, and which impose upon the government positive obligations of conduct, including assumption of expenditures. For example, one has to assess the Court's failure to recognize a right to work or housing in the light of its willingness to recognize a right of access to court; and its failure to recognize a constitutional right to health or education, in the light of its willingness to recognize a positive right to equality. Barak himself admits that the delineation of `circles of rights' under the three model theory he created is somewhat arbitrary. He does, however, suggest that a distinction could be drawn on the basis of `enlightened public perceptions'. Barak argues that such perceptions associate human dignity with matters of `private will autonomy, freedom of choice and personal growth of the individual, while viewing human beings as equal Court, in particular, against the continuation of this trend, which might develop into an Israeli constitutional crisis”.

Even if one was to accept this highly individualistic and negative-rights oriented premise, one cannot but wonder whether ESR such as the right to education or the right to work are not related to `personal growth'. In addition, other ESR, such as the right to adequate standard of living or the right to health, seem to be as much a condition to a life of dignity and liberty as the freedom of assembly or the right to a defence attorney. Thus, viewed from a policy perspective, the Supreme Court's refusal to recognize ESR, while actively promoting an expansive list of civil and political rights, is indefensible. Another key deficiency of the Court's approach towards ESR is the dissonance it perpetuates between Israeli law and international law. In 1991, Israel ratified the ICESCR, which protects some of the most important ESR (including the right to work, the right to adequate work condition, the right to organize, the right to social security, right to family, right to adequate standard of living, right to health, right to education, right to culture and to enjoy the benefits of scientific progress). The Covenant specifically provides in article 2(1) that: `Each State Party to the present Covenant undertakes to take steps… with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures' (emphasis added). While this is not an absolute obligation to incorporate the Covenant into domestic law by way of legislation (among other reasons, because of the progressive nature of most of the obligations laid out in the Covenant), States are obliged to devise incorporation strategies, which will ensure the full realization of the covered ESR over time. Legislation is clearly the best method, which the Covenant and the International Committee on Economic, Social and Cultural Rights (ESCR Committee) recommend.

Other rights not mentioned in the ESR include the right to a healthy environment, the right to legal aid and the rights of the disabled.

While Israeli law does recognize many components of the ESR covered by the Covenant (e.g., the right to primary and secondary education, the right to specified health services, etc.) it does not promote other components (e.g., right to housing). Moreover, the denial of constitutional status from nearly all ESR puts the future of the existing social benefits system in question, and underlines their nature as revocable privileges, as opposed to entrenched rights. This state of things has led the ESCR Committee to note its concern regarding Israel's failure to incorporate ESR into its domestic law and to specifically criticize the 1997 draft Basic Law: Social Rights as providing an insufficient level of protection to the rights covered by the Covenant. The problem of inadequate incorporation has been aggravated by the Court's reluctance in GILAT to attribute any interpretive value to the CRC (to which Israel is a party). This approach contrasts with a long established interpretive `presumption of conformity', according to which Israeli law should be construed as far as possible in a consistent manner with the State's international obligations. While it is still unsettled whether the doctrine also applies to interpretation of the basic laws, the presumption could certainly inform the interpretation of ordinary legislation and the judicial assessment of the legality and reasonableness of administrative measures (including the decision challenged in GILAT). Once again, the unwillingness of the Supreme Court to utilize readily available legal doctrines in order to promote the status of ESR arguably reveals a bias against them. Such bias seems to sit well with the scepticism demonstrated by the Court in the 1980s and most of the 1990s towards international law in general.

As indicated above, the only ESR which President Barak had been willing to incorporate into the 1992 basic laws have been the right to equality (including positive aspects of the right) and the right to minimum subsistence. In fact, Barak's approach with regard to the latter right closely resembles the `core obligations' approach developed by the ESCR Committee. According to the Committee, the general provisions regarding the progressive manner of implementation of the ICESCR do not release States from their obligations to do everything within their power to immediately protect the core of ESR - freedom from hunger, right to shelter, emergency medical services etc. While the willingness of the Barak Court to incorporate some core ESR obligations into the constitutional right to human dignity somewhat alleviates the problem of Israel's non-compliance with the ICESCR, the general problem of failure to incorporate many ESR rights (especially those entailing positive obligations) still remains. However, some developments in the last few years in the constitutional jurisprudence of the Supreme Court raise hope for a better future, as far as ESR are concerned. These developments are the topic of the fourth and last part of this article. IV. A Renewed Interest in Economic and Social Rights: A (Partial) Judicial Change of Heart? The GILAT case and the general reluctance on the part of the Supreme Court to embrace ESR and to promote their constitutional status have generated a barrage of academic criticism directed against the Court. These criticisms seem to have encouraged some of the judges on the Court to re-evaluate their position on the legal status ESR.

There is still considerable legal controversy whether the right to equality is covered by Basic Law: Human Dignity and Liberty.

Concurrently, by the late 1990s it became clear to many Israeli jurists that the likelihood that new basic laws would soon pass the parliamentary process is rather low and that judges were the most suitable players to constitutionalise ESR. Finally, the change in the political climate in the 1990s - the increased integration of Israel in globalization processes and progress in peace negotiation throughout much of that period - have created increased openness on the part of the Israeli judiciary to international law, in general, and to international human rights law, in particular. The combined thrust of these developments, as well as other factors such as: (a) the continued erosion of the Israeli welfare state; (b) the solidification of legal and political acceptance of the validity of the constitutional revolution theory (as far as it pertains to the protection of first generation rights), which served as the basis for attempts to apply these rulings with respect to ESR; and (c) the increase in the effectiveness of NGOs committed to social causes and interested in pursuing their agenda via court litigation - have led to renewed interest on the part of the Supreme Court (as well as other courts, especially - labour courts) in the status of ESR. A first sign of the unease felt by some Supreme Court judges because of the exclusion of ESR from the constitutional discourse can be identified in Justice Zamir's opinion in the 1998 Contram case, which criticized in obiter dicta the Barakian rights model: “According to President Barak, `democratic system of government is based upon the recognition of the human rights of the individual… the role of government is to sustain a society which will respect human rights'…

The case dealt with revocation of license to operate a warehouse in response to non-disclosure on the part of the applicant of relevant legal and factual data. It raised the nature of the obligations that the State and the individual owe each other. In my view, this is a partial conception. A democratic system of government is more than recognizing and enforcing human rights… Man is more than a cluster of rights. He is also a cluster of needs, tendencies and ambitions. Thus, one should not declare that the role of government is to protect human rights. Indeed, this is a supreme role. However, it is merely one of the roles. One must also declare, in the same breath, that an additional role is to promote the human welfare of all human beings. Another role is to create social justice. Human rights should not overshadow human welfare and social justice. Human Rights cannot only serve the satiated man. Every man ought to be satiated so that he can enjoy, in practice, not only nominally, human rights.' Although Zamir discusses ESR in non-rights terms (underscoring the exclusionary effect of the dominant constitutional discourse), the point is clear. The focus on civil and political human rights is unsatisfactory both in meeting actual needs and in promoting justice. The next sign of change can be found in the Supreme Court's increased willingness to protect the positive component of the right to dignity, encompassing minimal standards of living and positive equality. In 2001, the Court held in Gamzu that debt collection procedures must ensure a hard core of the right of the debtor to human dignity, including his right to minimum human conditions of subsistence. This holding has been recently applied in Court dicta with regard to environmental conditions, which are incompatible with the right of individuals to minimal standards of living. In another line of cases, the Court has found past allocations of governmental funds for social programs and services and for municipal infrastructure projects to be discriminatory against the Arab minority in Israel. As a result, it instructed the government to modify its funding policies.

In yet another related development the Supreme Court invalidated in 2002, at the request of New Discourse - a social action NGO - a government land development program, which would have enabled a small group of farmers on Kibbutzim and Moshavim to collect considerable compensation fees for lost agricultural land, arguably at the expense of residents of poor towns and neighbourhoods which would be excluded from the planned financial `windfall'. This arguably confirms an increased awareness on the part of the Court to the need to promote social justice and to scrutinize distributional implications of social policy. Another avenue of reform has been the growing inclination of the Supreme Court to construe social legislation broadly, in a manner indicative of the greater importance attributed to ESR in the Israeli legal system. For example, in Halamish, the Court recommended that the Minister of Labour and Social Affairs exercise his powers to facilitate, through the promulgation of regulations, the eligibility of non-resident Israeli citizens to collect old-age insurance payments. Justice Dorner, writing for the Court, noted that expansion of insurance coverage is consistent inter alia with the growing acceptance of the right to social security as a human right under international law. The most impressive decisions of the `born-again' Supreme Court relating to the status of ESR in Israel were rendered in the two cases.

However, on January 19, 2005, the Supreme Court held that the government`s position that the expansion of old-age benefits to Israelis living abroad will have to await better economic tines is not unreasonable. According to the Compulsory Education Law, 1949, as amended throughout the years, primary and secondary education in Israel is free. This has been supplemented by the Special Education Law 1988, which provided free education in special schools for children with special needs. However, both laws did not specifically address the following question: if parents of children with special needs wish to integrate them in the ordinary school system (in the hope that it will facilitate their better integration in society), who shall incur the integration costs (mainly, personal teaching assistance hours) - the parents or the State? Until 2002, the Ministry of Education required parents of children with special needs to incur some or all of these expenses, a policy resulting in the de facto exclusion of children with special needs, coming from non-affluent families from ordinary schools. This policy was the subject of proceedings before the Supreme Court brought by a group of parents of children suffering from the Down syndrome, who sought to impose the costs of integrating their children in ordinary schools upon the government. Justice Dorner, writing for the Supreme Court in the 2002 YATED case, accepted the petition and ordered the Ministry of Education to accept the integration costs. The decision is particularly important due to its reasoning. Deviating from GILAT, Dorner explicitly held that Israeli law recognizes a right to education. The existence of this right is independent from any basic law and ought to be viewed part of the Israeli judicial bill of rights. This conclusion was based upon a variety of legal sources - international law, comparative law (citing Belgian, South African, Spanish, Irish, German and US member States constitutional provisions), Jewish law, education legislation and judicial dicta regarding the importance of education. She also noted in this regard that the right to education is linked to the principle of equality, given the potential of education to close social gaps.

Justice Dorner held that the Special Education Law 1988 must be construed in the light of the fundamental values of the Israeli legal system - specifically, the right to education, the principle of equality and the right to special education deriving from both of them. In addition, she held that the law ought to be construed in accordance with the international obligations of the State of Israel - specifically, with the right to education and the obligations to address the special needs of disabled children enumerated in article 13 of the ICESCR and articles 23, 28-29 of the CRC. The Ministry of Education's interpretation of the law was thus found to be unlawful and the Court ordered it to assume upon itself, within a prescribed period of time, the integration costs. The second petition, Marciano v. Minister of Finance brought in late 2003 by a group of parents of children with special educational needs and by two Members of Knesset, criticized the unsatisfactory pace of implementation by the government of the special legislation that was adopted by the Knesset following the YATED judgment. The new amendment to the Special Education Law required the government to fund the integration of children with special educational needs in ordinary schools, but authorized the government to implement the law gradually, according to budgetary considerations. Relying upon this exception the government allocated no integration funds for 2003 and a nominal allocation of funds (35 million NIS) for 2004. Justice Dorner writing again for the Court accepted the petition and instructed the government to immediately allocate sufficient funds for the implementation of the law in the current school year (2003-2004) and to prepare for regular and reasonable allocations in future years.

Marciano vice Minister of Finance, judgment of 16 Dec. 2003 (not yetpublished). required to implement the law represents a rough minimal standard of sufficiency, which the State cannot derogate from without nullifying the right of education and the right of equality of children with special education needs. A subsequent petition by the State for re-examination of the Marciano decision before an expanded chamber of the Supreme Court was rejected in May, 2004. The decision of the Court in the YATED and Marciano cases may signify a radical transformation in the approach of the Supreme Court towards ESR. First, the Court had been willing to accord, for the first time, a constitutional status (albeit a weak one - as no review of the validity of legislation can be undertaken on their basis) to a central ESR - the right to education, through legal deduction from binding and non-binding legal sources. This marks the revival of the Israeli judicial bill of rights doctrine, as an instrument for constitutional development. In fact, there is no reason that other ESR, such as the right to health or the right to adequate working conditions, also supported by international law, comparative law, Jewish law, specific legislation, judicial dicta and other common law rights, would not be similarly recognized as constitutional rights in the future. Second, the Court's willingness to apply a `presumption of conformity' with relation to international human rights treaties to which Israel is a party goes a long way towards incorporating them in Israeli domestic law. It could even be argued that the presumption results in partial constitutionalisation of the rights covered by the said treaties. In this respect, the YATED case continues a line of Supreme Court cases rendered in the late 1990s and the early 2000s, which reveal greater willingness on the part of the Court to apply the presumption of compatibility. Finally, the willingness of the Court to issues specific remedies, notwithstanding their considerable financial implications, indicates a `taking rights seriously' approach which underscores the potential of rights-talk to change reality in the field of ESR protection.

However, several caveats need to be mentioned. The YATED case does not accord ESR a full constitutional status, as Justice Dorner explicitly reserved judgment on the question whether the right of education can be incorporated in the language of Basic Law: Human Dignity and Liberty. Furthermore, she did not address the question whether the two interpretative presumptions (compatibility with the judicial bill of rights and international obligations) apply with respect to the text of the basic laws. In short, YATED does not fully remedy the failure to constitutionalise ESR in Israel. In this context, it is notable that the decision of the Court in Marciano is based upon the administrative law duties of the government to exercise its discretional powers reasonably, and not upon constitutional law. In addition, both cases dealt with the interpretation and implementation of social legislation adopted by the Knesset with a view of promoting a specific social right - the right to education. It is unclear whether the Court would be similarly inclined to develop a pro-ESR constitutional construction without such clear indicia of legislative will. Finally, it can be doubted whether Justice Dorner's pro-ESR views would be acceptable to all other judges on the Court. Given the fact that Justice Dorner, one of the most liberal judges among recent Supreme Court judges, had been in a minority position on a variety of issues, it remains to be seen whether other judges would embrace the dicta of the YATED and Marciano decisions.

Conclusions. The status of ESR under Israeli law is not yet settled. Although the YATED and Marciano cases clearly create some room for optimism among supporters of ESR, it remains to be seen whether the Court is willing to change the negative approach vis-a-vis the promotion of ESR, which has characterized its decisions and intellectual climate in the 1990s.

Perhaps the most important of these cases is a petition challenging the lawfulness of cuts in social security subsistence payments adopted by the Knesset in the 2003 budget law. This case might require the Supreme Court to consider the possibility of invalidating, for the first time in its history, legislation conflicting with positive ESR obligations. At the heart of the case, stands not the recognition of the right to minimum condition of subsistence but rather the methodology of ascertaining that minimum. At the same time, strong normative considerations, including Israel's obligations under the ICESCR should encourage the Knesset to reinvigorate the constitutional enactment process and to finally pass Basic Law: Social Rights. Such a development is particularly timely in the light of the deteriorating economic and social conditions in Israel and the ensuing unraveling of the welfare state. A more rounded-up and well-balanced constitutional order could slow down the process and promote serious discussions, inter alia, in judicial for a regarding the human rights implication of the economic policies of the last decade. We believe the Israeli experience is valuable despite some of its idiosyncratic features. It reaffirms trends in international law and in the constitutional law of numerous other countries towards more vigorous protection of ESR. It also underlines the indivisibility of human rights and the increasing willingness of the judicial system to recognize linkages between human rights (dignity and standard of living; equality and education). Finally, it demonstrates the benefits of inter-systemic cross-fertilization. The Israeli debate is evidently influenced by developments in international law and by comparative law. We believe it could also influence parallel debate conducted in other jurisdictions. This is yet another affirmation of the universality of human rights and their potential applicability to every form of social organization, everywhere.

The literature

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