Legal Analysis / Root Canal for the Cabinet

Yesterday's High Court of Justice ruling, which overturned a cabinet decision to add children's dental care to the "health basket" of state-subsidized treatments, performs root canal on the phenomenon of hasty, politicized government decisions that seek to circumvent the letter and spirit of Knesset legislation.

The court's decision - that the law does not cover dental care, and the cabinet therefore cannot add such treatments without the Knesset's consent - upholds the fundamental principle that the executive branch is subject to the laws passed by the Knesset. Under the terms of the National Health Insurance Law, the cabinet should have submitted its decision to the Knesset Labor, Welfare and Health Committee for approval. Its failure to do was effectively an attempt to bypass the Knesset, and hence illegal.

The ruling also touched on another constitutional issue of great importance, due to the fact that the Knesset and the cabinet each submitted its own, conflicting interpretation of the law. The cabinet's position, as argued by the State Prosecutor's Office, was that dental care could be viewed as falling under the law's provision for "ambulatory medical treatment." The Knesset's legal advisor said the law did not cover dental care.

The court found the Knesset's position more persuasive, but stressed that this was not because it gave any extra weight to the Knesset's interpretation of its own laws. The court, wrote Justice Hanan Melcer, does not consult the Knesset on how to interpret the law.

It thereby reinforced its long-standing rule that once a law is passed, the Knesset no longer has any say over it: Interpretation is the province of the courts. This rule is essential to the principle of a separation of powers.

But the ruling also bolstered the Knesset's status as an independent body whose views on the interpretation of laws deserve to be heard, rather than being subsumed under the executive branch's positions. That was the norm until several years ago, when the position of an independent Knesset legal advisor was created: The attorney general used to represent both the executive and the legislature, even when their interests might conflict.