An End to the Stipends / Constitutional Questions

The High Court of Justice ruling yesterday that there can be no budgetary allocations that discriminate between students and yeshiva students raises a series of constitutional questions.

The High Court was careful not to order the immediate cancellation of instructions governing the Law on the Budget, in light of the fact that special stipends have been given to yeshiva students for more than 20 years for basic living expenses, but made it clear that a similar arrangement cannot be part of next year's budget.

The ruling, read by Supreme Court President Justice Dorit Beinisch, with the support of six of the seven other justices, was based on the argument that while yeshiva students benefit from "special funding," other students do not enjoy the same stipends. The law ensuring stipends for yeshiva students as part of their subsistence, according to the ruling, contradicts the law on subsistence payments which does not guarantee similar payments for any student.

The High Court based its ruling on the fact that this segment in the budget runs contrary to the law on the fundamentals of the budget, which obligates the state to provide monetary support on an equal basis.

The court limits its review, by saying that not every violation of the provisions of the law on the fundamentals of the budget doesn't justify revocation of a clause in the annual budget law "unless it involves a deviation from those provisions that reflect fundamental rights and principles."

The carefully worded ruling raises some confusion as it offers significant innovation in constitutional jurisprudence. According to standard practice, it is impossible to do away with a regular law unless it runs contrary to the orders in a Basic Law, which is considered to be more binding than regular legislation. The law on the basis of the budget, despite its fundamental importance, is not a Basic Law.

In 1999 the High Court ruled on a petition by a Masorati movement against the financial support the government was giving to ultra-Orthodox groups, which they claimed contradicted the laws governing the budget and regular law. In the court's opinion, it was authorized to revoke a provision of the annual budget law if it contravened the law on the fundamentals of the budget, due to the special significance of setting down principles and rights.

With yesterday's ruling, the High Court ruled definitively that starting next year the current practice in the law of the budget cannot be put in effect as it undermines equality among students, and contravenes the law on the fundamentals of the budget which establishes the principle of equality.

The ruling offered a lesson in civic studies to the Knesset by arguing that all students are equal.

The need for such a basic law has been raised in the Knesset from time to time for about the last 35 years.