The High Court's Judicial Passivity

If we thought this activism stopped at the Green Line, the High Court proved that its attitude toward society also suffers from 'judicial passivity.'

On what is the myth of the Supreme Court's "judicial activism" under the leadership of President Aharon Barak based? On the court's scandalous evasiveness, for years, in ruling on the matter of targeted killings, or perhaps on its rejection of the petition by social organizations against the cutback in welfare allowances?

If we thought until now that this activism stopped at the Green Line - and that only on the other side did our tower of justice reveal itself to be a broken reed, evading moral and legal decision-making, refraining from expressing a view on the legality of settlements and assassinations and, for many years, avoiding a ruling on torture - the High Court demonstrated last week that its attitude toward Israeli society also suffers from the most worrisome "judicial passivity." No, we do not have a courageous Supreme Court that rules on controversial matters of principle. When the two other branches of government, the executive and legislative, are tainted with deep corruption, this should be especially troubling: The lofty image of our "sacred seat of judgment" is becoming less and less real.

One day last week, the media exposed the social situation of Israel in a nutshell: a High Court ruling recognizing the "constitutional right to live in dignity," but rejecting the petition of social organizations against the cutback in welfare allowances; a report from the Adva Center indicating that only the income of the top two deciles has risen since 1990, while the social gap has grown wider; and a United Nations report noting an alarming increase in poverty, hunger and unemployment in the territories.

Thus the true and complete picture of Israel 2005 was unfurled. Alongside an enlightened High Court ruling, expressed in noble words and devoid of any practical implication, a picture arose of flagrant social injustice on both sides of the Green Line. The court spoke in lofty terms about human dignity in a society in which only the rich succeed in improving their lot while the number of poor people in the country and in the territories it occupies continues to grow. Whoever thought that the trampling of human dignity did not cross over to inside the Green Line and that our "active" Supreme Court would take some step to restore it was mistaken on both counts.

The petition of the social organizations, which focused on welfare allowances, applied only to citizens of Israel and, therefore, the High Court's ruling on the right to live in dignity only addresses citizens of Israel. This is an infuriating distinction. Aren't the hundreds of thousands of unemployed Palestinians (27 percent, according to UN data) people whose dignity has been trampled? It was easy for the court to ignore their existence, because the social organizations also make this groundless distinction.

This distinction is invalid not only from a moral perspective, according to which two types of residents are living under the state's rule: those who are eligible to live in dignity and those who are not. It also does not apply, practically speaking. The social injustice was born with the occupation. The exploitation of workers from the territories, who worked under disgraceful wage conditions in Israel, was a harbinger of subsequent exploitation. When laborers from the territories were prevented from working in Israel, foreign workers replaced them. Next came the flowering of the culture of subcontractors and temp workers, and this trampled the rights of the worker in Israel. The way to restore social justice follows the same route: Only the end of the occupation will herald the beginning of the establishment of social justice within Israel.

Social justice cannot be divided demographically. A society that exploits weaker population groups - Palestinians, foreign workers, our own local poor - can never be considered just. When more than half of the residents of the territories under our control and responsibility are defined as poor, and more than a third of them have difficulty obtaining food, the poverty and blow to human dignity cannot be confined there. Thus, the High Court erred twice: Once when it made do with lofty words, and again when it chose to ignore the places where poverty reaches its deepest dimensions.

If the UN report on poverty in the territories had been submitted to the High Court, perhaps Justice Edmond Levy would not have remained alone in his opposition to rejecting the social organizations' petition. Even if the justices had sufficed with reading the "Alternative Poverty Report" recently issued by the Latet organization, which includes photographs by Ziv Koren that reflect the face of poverty in Israel in its full cruelty, then it would also have found it difficult to state aridly that "the serious charge by the petitioners that people are living in our state whose dignity has been hurt - was not made abundantly clear." Doesn't the picture of the humiliated elderly people waiting in line at the soup kitchen testify to "an offense to human dignity?" (According to Latet, the need for soup kitchens rose by 25 percent during the past year.) Doesn't the sight of people searching for food daily in piles of trash make the picture of poverty "abundantly clear?" What else does the court want as admissible evidence?

President Barak's words are sparkling and exciting as always: "The right of a person to dignity is the right to conduct his regular life as a human being, without distress defeating him or leading him to unbearable poverty." In Ofakim, Yeruham and Jenin, these words can only elicit a bitter smile. Instead of the speeches laden with syrupy pathos by Barak and his colleague Mishael Cheshin, it would be preferable to have the High Court frankly state its position: Poverty in Israel is not our concern, and the trampling of human dignity does not pertain to us. Now we know that there is no reason to prevent Professor Ruth Gavison from joining the Supreme Court: She would find there a passive institution lacking courage, just as her heart desires.