Professor Hagit Ginat (Professor of Law, Bar-Ilan University) began the discussion by outlining the meaning of social security – what is included, who is eligible, and its characterization as a safety net. She stated the most basic meaning of social security is the assurance of basic and vital needs of a person regardless of their abilities (examples include unemployment and welfare). She stated that Israel interprets social security in a relatively narrow manner, as part and parcel of “human dignity” and is not a separate constitutional right. Interpretations of social security She added that as with any social right we must decide how broadly we want to interpret social security, how broadly we want to protect it, how much detail to include in the constitution about what exactly social security includes, as well as details about who is eligible (citizens, residents, all persons within the borders of the state). Additionally, she stated that we need to keep in mind the requirement this places on the state and the extent to which the state may fall short based on difficulties to accomplish its stated task. Professor Ginat explained that some states recognize universal right to social security- a right that is intrinsic to individuals, regardless of their situation and active need of the benefits. She continued by stating that some states extend the right only to those who need it. Based on this she argued that is much better to say “every person has the right to…” rather than “any person who needs it has a right to,” both because it’s more coherent and consistent with other human rights, and because restricting it to those who “need it” establishes doubt regarding the extent of applicability of the right as a human right, leaving an uncomfortable gap for undesirable interpretations. Protection of the handicapped Chairman (**) stressed that the state must protect the handicapped in the constitution. There is no current basic law that protects them. He pointed out that there are over 600,000 handicapped in Israel, including Arabs and Jews, secular and religious, young and old, etc; the state’s financial support reaches some 160,000 people who are congenitally or naturally handicapped. Chairman(**) concluded by citing a law partially passed in 1968, the “Law of equality of handicapped persons” that protects handicapped rights. He recommended that the committee adopt this language to establish the constitutional basis for the protection of handicapped individuals. MK Ravitz pointed out that there is a real financial difference depending on whether we use the word “dignity” or “equality.” Guaranteeing the handicapped an equal life is a much more expensive thing. The Chairman responded by saying that equality is the core issue, and if that is entrenched in the constitution, then all the rest – including questions over financial matters, will fall into place. MK Michael Eitan asked if the phrase “each person has the right to happiness” might be enough for a handicapped person to make constitutional claims. Additionally, he asked if it is necessary to specify the handicapped in order to protect their rights. Basic principals versus specific details Professor Ruth Ben-Israel (Faculty of Law, Tel-Aviv University) stated that a person’s right to social security as protected by the universal declaration of human rights and other international documents, demonstrate that in the constitution it is only necessary to state the basic principle of social security, not the details. She argues that flexibility will serve us well in the coming decades and centuries. She stated that she is unhappy with the current court’s interpretation of social security, but still argues that we must state the right of social security without the details. Professor Ben-Israel continued to make two recommendations: 1. One article can include all of the social and economic rights conditional on state financial ability; there is no need to have a whole list of rights in separate articles. 2. Principles of interpretation should be written out for the court, perhaps in Article 2 where we traditionally have the stated goals of the laws/guidelines for judicial interpretation, we should add to the list the priority of “social justice.” Power of the court in interpretation MK Eitan stated that many do not trust the court and its interpretations; that there is a legitimate fear about giving the court too much power, and that Professor Ben-Israel’s suggestions do just that- give the court even more power. Professor Ben-Israel explained that she took MK Tamar’s recommendations from her subcommittee’s recommendations, made a few changes, and gave the court very specific guidelines. She stated that the court must take into account state financial considerations, Knesset legislation, and principals of social justice. Two recommendations: 1. Knesset sets a minimum standard MK Eitan proposed an unconventional approach, he asked whether it is possible to state a multi-year minimum in the budget that the Knesset has to allocate and legislate, and let the court decide whether it’s meeting that minimum, and then the Knesset can play with any amounts above that minimum? He continued by explaining that it would balance a hard minimum with the danger of having the court set state economic priorities. The court would referee; make sure the Knesset is meeting its own minimum requirements, lest the promises made at the start of the term fall by the wayside towards the end. MK Eitan added that this proposal would require a multi-year plan at the start of the term. 2. The Knesset legislates, the court interprets The conventional alternative is to let the Knesset legislate once and have the court rule based on the Knesset’s laws and principles. This allows for the possibility of the courts imposing their priorities upon the Knesset, forcing us to put the symphony ahead of the handicapped.
Restrictions on the Court Professor Ben-Israel pointed out that according to her proposal there are three restrictions on the court:
1.reasonability and financial ability 2.shall be interpreted according to the 1948 Declaration of Human rights of the United Nations, the International Covenant on Economic, Social, and Cultural Rights of the United Nations, the Declaration of the International Labor Organization, and other international accords. (MK Ravitz and MK Eitan asked why the torah is not included as a source and MK Eitan began to list some of the social security rights laid out in the Torah.)
3. (**) Restrictions on social security rights Professor Ben-Israel also stated that social security rights should be granted not to all persons, but to all residents. That is to exclude foreign workers and tourists, because of the heavy cost involved in social and economic rights. Yes, non-residents deserve some rights, but not all of these need to be laid out in the constitution. (Children of people with limited rights such as foreign workers and illegal aliens, can be given additional rights in ordinary legislation.) MK Tamir stated that it is necessary to entrench more basic rights for every person, if we exclude them from the full list of rights. She pointed out that other constitutions specify a few extraordinary rights that apply to all. For example, South Africa guarantees emergency medical treatment to all. [www.gov.za/structure/constitution.htm ] Distinction between social security and dignified existence Professor Ben-Israel pointed out that there is confusion between the right to social security and the right to dignified existence, each guarantees a different thing. For instance, dignified existence guarantees minimal requirements – a roof, food, etc. Social security, meanwhile, could be interpreted identically, and Barak did so in the famous Supreme Court case, Manor v. The Minister of Finance (HC 5578/02); However, it can also be interpreted in a broader way to include more extensive rights, a safety net to people who lack things, and it can be of any quality or size. MK Eitan points out the principle, [which exists in Jewish law (Deuteronomy 15,8; Ketubot 67b) and in the 9/11 restitution policies] that sometimes one person’s “dignified existence” is higher than another’s regular standard of living. Professor Ben-Israel conceded to the legitimacy of the principal. However, she emphasized that a “social-democratic” interpretation gives it a different meaning. Professor Ben-Israel continued by stating that various options for interpretation are the reason she feels it necessary to have a basic guarantee of social security in Article 3. Additionally, she wrote in her recommendation about the right to a dignified existence, but didn’t specify “human” in order to stress that it includes both “human” and “financial” dignity. Eyal Sandberg (deputy legal advisor to the committee) pointed out that Professor Ben-Israel left out the words “To satisfy his basic needs.” She concedes that yes, she did, but she would be willing to restore it as a legally binding goal. Furthermore, she responded by explaining that there are things that she intentionally did not include, such as what kinds of equality, (**) Protection of retirees Former MK Yaacov Gil (Association of Senior Citizens), stated that we need to pay attention to the retirees who are living longer and longer. They must be protected in the constitution lest the young be protected at the expense of the old. There are 700,000 organized retirees; they are hurt whenever they are competing for resources with the young. Responsibility to advance rights Professor Avraham Doron (Hebrew University) explained how rights have expanded over the years to include civil and now social rights. However, he argued, we are not only talking about protection of rights, but also about the removal of obstacles, the responsibility to advance rights, positive protection. He stated that we must write, “to respect, to protect, and to fulfill.” Professor Dorn also expressed concern over the discussions regarding the Knesset’s financial ability and suggested that we use the concept of “proportionality.” Ruti Horn (legal advisor to social security) stated that including the words “social security” means raising the bar from basic human existence and dignity to something higher. MK Eitan explained that he wants to institute only a fair minimum. However, a fair minimum means that the minimum will change because the standards of fairness change, not because the minimum number of calories needed to survive has changed. He argued that the standard of fairness change and develop and that anything above fairness should be left open for debate. Sandberg pointed out that the term ‘Existence’ pulls the bar down, however MK Eitan wants to use the term “dignified existence” to pull it up. He stated that we are still talking about calories; that is still the measure; [but the term “dignity” turns this into three meals a day and wine for kiddush]. MK Eitan added that no one dies of hunger in Israel, but the fact that they live off of charity and rummaging through garbage bins is by all means unacceptable. Protection of national insurance in the constitution Avraham Fein (representative, holocaust survivors group) argued that if we use national insurance as the basis of social security, we should include this in the constitution in order to avoid the leakage of funds. Fein explained that he represents a population that is old, sick, disabled, and dependent on various state institutions for health and economic concerns. MK Eitan argued that this is not something constitutional; Fein argued that certain elements of national insurance and state institutions should be protected in the constitution. Protection of interpersonal relationships Einat Albi of Tel Aviv University argued that constitutional text related to social security should deal with more then state-citizen relations. She stated that we need to take into consideration interpersonal relationships, such as person-insurance company; that social security must also be protected even in the relationships between people and the national insurance company. MK Eitan questioned whether contractual agreements should be covered by the constitution’s social rights section. Professor Ben-Israel disagreed, she stated that is not necessary to specify these relationships, and simply extends the same responsibility that exists today in the basic law of human dignity and liberty in Article 8 of her proposed chapter. Professor Ginat concluded the meeting with 3 summarizing points:
Social security is an institutional idea, not a constitutional idea. The issues that the national insurance agency deals with are important, but they are not constitutional, they are legal.
We should trust that the courts would not let social security go beneath a certain minimum.
Regarding workers and non-workers: we can define who has claims to the rights we are laying out. Additionally, we need to consider whether we give a person the right to give up his/her rights. This is usually not dealt with in constitutions – the outstanding ones are Greece and Switzerland, however most states are able to deal with this through ordinary legislation.
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