A recent High Court of Justice ruling makes a mockery of the claim that the court engages in judicial activism: frequent, eager intervention in cabinet and Knesset decisions. Justices Dorit Beinisch, Eliezer Rivlin and Asher Grunis decided not to intervene in a law that grants tax breaks to certain communities, despite the series of petitions that have been filed since 2002 alleging that these benefits are arbitrary and discriminatory. This is not judicial activism, but a clear sign of inappropriate judicial passivity.
When judicial intervention seems to be blatantly necessary, in light of proven infringement on a constitutional right of the first importance such as equality, the harm done by refraining from such intervention is especially stark. Such restraint impairs the High Court's execution of its primary function - defending individual rights against the power of the government. That is always true, but it is particularly true when what is at stake is failure to prevent discrimination, which former Supreme Court president Aharon Barak defined as "the worst of all feelings."
The court's judicial restraint is evident in its handling of the many petitions against the tax breaks, which were filed, among others, by local authorities, the Association for Civil Rights in Israel and Adalah - The Legal Center for Arab Minority Rights in Israel. All these petitions had a key constitutional argument in common: This section of the income tax code undermines the principle of equality and reflects arbitrariness in the government, because no uniform, equitable and worthy criteria for granting the benefits were ever set.
The blatant discrimination against Arab towns is clear from the fact that not a single one of them receives the tax breaks, while Jewish towns in the same geographic area do receive them. There is also discrimination against some Jewish towns.
Instead of setting criteria, the legislature took the unusual approach of listing the recipient towns by name in the law. This essentially constitutes personal legislation - a law tailored to the intended beneficiary rather than the subject matter.
The justices acknowledged in their ruling that the existing legal situation had been left in place despite warnings from former attorney general Menachem Mazuz dating back to 2006. That is when Mazuz made it clear to the prime, finance and justice ministers that he would not be able to defend the law's constitutionality. Despite this, the High Court proceedings dragged on and on, until late 2009, when the attorney general announced that because this was a "complicated" issue, he could not make any promises about when, if ever, the process of changing the law would begin.
Only now did the court finally deign to issue a ruling on the matter. And the ruling, written by Supreme Court President Beinisch, stated that if the situation has not changed by the time the 2011-12 budget receives final approval from the Knesset, the court will have no choice but to issue an injunction against the government that would obligate it to begin the legislative process of setting uniform, equitable criteria for granting the tax breaks.
The justices stressed that "while Knesset members and cabinet ministers are admittedly free to act on the basis of political considerations, and are not barred from taking coalition considerations into account when regulating socioeconomic matters, this freedom of action is not absolute; it has restrictions and limitations. It is limited whenever it infringes on a constitutional right - in this case, the right to equality."
Given this statement, and the court's finding that the existing law is inequitable and not based on clear criteria, it is hard to accept the justices' explanation that they refrained from issuing a definitive ruling, both now and in the past, because they thought the cabinet and Knesset would have the sense to resolve the problem without judicial intervention. It is even harder given the ruling's own assertion that the cabinet and Knesset "systematically, over the course of several years," refrained from working to amend the discriminatory law, in defiance of the attorney general's position.
Given this latest ruling, which enables further delay, one can safely assume that the cabinet will not hasten to submit a corrective bill the moment the new Knesset session begins in a few days' time, and that the Knesset will not hasten to pass such a bill. It seems that only a prompt, unequivocal ruling overturning the existing law could get the legislative ball rolling.
The justices ought to realize that in a situation where the cabinet and Knesset do not immediately implement even unequivocal High Court rulings, there is little chance of them showing respect for judicial restraint.
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