The Dignity of Justice Dorner

Justice Dalia Dorner is due to retire in a few months, and this is a pity, for she will leave a vacuum behind her in many areas. More than anything, she will be missed by those who admire her clear, precise and literal legal thinking, which has no fear of swimming against any current.

Sunday's High Court of Justice ruling on the petition filed by the Association for Civil Rights in Israel (ACRI), the Commitment to Peace and Social Justice Association and the Movement for Fighting Poverty - which demanded scrapping the cuts in guaranteed income allowances - is a significant breakthrough.

The High Court gave the state 10 days to explain how it determined that the average cut of 30 percent in the guaranteed income allowances of close to 100,000 families does not infringe on their basic right to "dignified human existence," as stated in the Basic Law on Human Dignity and Freedom.

This ruling represents a breakthrough, first because it simultaneously halts the Economic Arrangements Law's galloping bypassing of democracy and forces the government to find a convincing explanation for the cut in the guaranteed income allowances of so many families during a period of deep recession. But it also redefines, in clear language, the need for an additional basic law on social rights in the constitution that is being developed.

Justice Dalia Dorner is due to retire in a few months, and this is a pity, for she will leave a vacuum behind her in many areas. More than anything, she will be missed by those who admire her clear, precise and literal legal thinking, which has no fear of swimming against any current.

Some years ago Dorner chose to open her section of the ruling in the case of Carmela Buchbut (who killed her abusive husband) with the words: "Carmela Buchbut was a battered wife." Faced with farmers' lawyers, she posed razor-sharp questions during hearings of petitions filed by the Democratic Rainbow and others in lands cases. In the latest case too, Dorner was true to form.

Surprisingly, she lingered less on the question of whether or not the Arrangements Law was proper and rational, and more on the matter of principle - if the state's view that the cuts did not harm the minimal right to dignified human existence, what exactly is that vague term, "minimal human existence?"

Thus Dorner linked the deliberation from the outset, to the slow but important process which, although it was supposed to develop in the Knesset, is actually crystallizing in the High Court, and to the internal dispute between jurists who have a social approach and Supreme Court President Aharon Barak.

Barak has done a certain about-face on the Basic Law on Social Rights. Three years ago he was still saying the Basic Law on Human Dignity and Freedom covered all issues, including social ones, and reiterated his interpretation from 1994 that "human dignity assumes minimal human existence."

This assumption is defined as an "intermediate model" - interpretation that neither expands nor reduces a law - that includes only the minimum by way of exclusion. In other words, it is clear that human dignity is harmed by the lack of housing and bread, but it is unclear whether the lack of education, for example, or damage to health due to poverty, also harm human dignity.

Now, in the Gamzo ruling - exempting a man from paying excessive child support - and in the preface to the book "Bnei Svara" (Men of Reason), as well as in later remarks, Barak has changed his tune and said it "would be fitting for the Knesset, as the established authority, to grant social rights the status of explicit basic constitutional rights."

Dorner, as is her way, went one daring step further. The Knesset dawdles, and only now after all the proposals faded or failed are Yuli Tamir (Labor) and Eti Livni (Shinui) working hard to reword the Basic Law on Social Rights. But Dorner gave clear expression to the role of the High Court as a defender of the weak and the last restraint against damage caused by fanatic economic policies and irresponsible political behavior.

Even someone who believes, as Finance Minister Benjamin Netanyahu does, that the only remedy for the economy's ills is a transition to a completely free and open market, must understand that if this process is done too quickly and precipitously it could lead to a collapse of society - because it rests on too skimpy a social security net.

Netanyahu himself once said that the book has not yet been written about a closed economy that opens up all at once. Now it is possible to see a few such drafts - in Eastern Europe, for example. Perhaps he should read them, before he writes another one.

The petitioners presented the court with a definition of "minimal human existence" from the 1970s, written by state-appointed commissions. According to that definition, the minimum income required for a two-parent family with two children was at least 40 percent of the average wage in the economy - in other words, NIS 2,800.

The petitioners likewise submitted a description by the Central Bureau of Statistics, which borrowed an absolute system used in other countries to measure poverty - a basket of basic commodities - and came up with a figure of NIS 6,994 for a family of four.

And what is your definition? Dorner asked the state's representatives. They were relying on the intermediate model - housing, bread and clothing - which Barak himself dismissed long ago.

The MKs who voted in favor of the cuts devoted just three meetings to the matter - the Capital Tax Law required 6 commissions and 15 years. The court, by insisting on steering the Israeli constitution to the right place where constitutions stand - South Africa and France, for example - has now forced the Knesset to examine the decision using new standards.

There is no doubt that after the High Court's decisiveness, the state will now find it difficult to find a literary trick that will redefine dignified existence as a monthly income of NIS 2,300. This is the allowance for a family of four, which the state declared before the High Court did not infringe on minimal dignified existence. What luck that in that lofty building at least there still remains a little dignity.