From the court's archivePetition to the High Court of Justice

סלאח חסן נ' המוסד לביטוח לאומי

HCJ 10662/04 was decided on 27 February 2012.

The court's decision, in its own words.

It is important to clarify that in our decision, that section 9A(b) of the Law violates the right to a minimum dignified subsistence, we did not address the definition of what a minimum dignified subsistence is, what it includes, or what it should include. The starting point for our discussion is that the state has an obligation to determine what the minimum subsistence conditions are, and to establish the welfare system accordingly (see, in this context, the judgment of the German constitutional court BVERFG, A7: 1BVL 1/09, 1BVL 3/09, 1 BVL 4/09 from 09.02.2010. For an abstract of the judgment in English, see

The ruling came on 27 February 2012.

Court: The Supreme Court
Case: HCJ 10662/04
Opened: 2004
Decided: 27 February 2012
Length: 90 pages

This is how to cite the ruling.

בג"ץ 10662/04 סלאח חסן נ' המוסד לביטוח לאומי (27.2.2012)

The full text of the ruling, in the Hebrew the court gave it in.

פסק-דין

IN THE SUPREME COURT OF THE STATE OF ISRAEL SITTING AS THE HIGH COURT OF JUSTICE

HCJ 10662/04 HCJ 3282/05 HCJ 7804/05

Before:

Hon. President D. Beinisch

Hon. Justice M. Naor

Hon. Justice E. Arbel

Hon. Justice E. Rubinstein

Hon. Justice S. Joubran

Hon. Justice E. Hayut

Hon. Justice U. Vogelman

Petitioners inHCJ 10662/04:

1.Salah Hassan

2.Sawt el- Amel /The Laborer’s Voice – Defending the Rights of Workers and Unemployed

3.Adalah – The Legal Center for Arab Minority Rights in Israel

Petitioners in HCJ 3282/05:

1.Meirav Ben-Nun

2.Yael Be’er Salaman

3.Chen Hazan-Gilboa

4.Sigalit Bakar

5.Avigayil Avihu

6.Mechuyavut -- Commitment to Peace and Social Justice

7.Itach – Women Lawyers for Social Justice

Petitioners in HCJ 7804/05:

Idit Edan

Respondents in HCJ 10662/04:

1.National Insurance Institute 2. Ministry of Industry, Trade and Labor

Respondents in HCJ 3282/05:

1.National Insurance Institute 2. Minister of Social Affairs

Respondents in HCJ 7804/05:

1.National Labor Court

2.National Insurance Institute

The Supreme Court sitting as the High Court of Justice

[November 8, 2011]

Before President D. Beinisch, Justices M. Naor, E. Arbel, E. Rubinstein, S. Joubran, E. Hayut, U. Vogelman

Facts: The Income Support Law, 5741-1980 granted income support benefit under some conditions. Section 9A(b) of the Law set out a conclusive presumption according to which, anyone who owns or uses a vehicle is deemed to have an income the size of the benefit and is therefore not entitled to receive the benefit (unless he is included in one of the exceptions prescribed by law). The Petitioners were individuals dependent on the income support benefit, together with several non-profit organizations. Their main argument was that Section 9A(b) of the Income Support Law constituted an unconstitutional violation of the right to a minimum dignified subsistence.

Held: There is no basis for distinguishing clearly and unequivocally between social rights and political rights based on the positive or negative obligations of the state or on the question of allocating resources. The Court held that the right to a minimum dignified subsistence is at the heart and core of the right to human dignity, which is established in Basic Law: Human Dignity and Liberty. It stated that minimum dignified subsistence is a precondition, not only for preserving and protecting human dignity, but also for exercising other human rights. President Beinisch noted that the income support benefit has a pivotal position in protecting the right to a minimum dignified subsistence. She determined that Section 9A(b) of the Income Support Law violated that right, as it established a categorical rule, whereby anyone owning or using a vehicle would not be eligible for the income support benefit, with no consideration given to the individual question of whether that person indeed has income that would ensure his ability to exercise his right to a minimum dignified subsistence. She stressed that the problem with the conclusive presumption was that it became the only component in determining a person's estimated income. President Beinisch ruled that the conclusive presumption, which lead to a full denial of the be nefits to anyone who possessed or used a vehicle (beyond the exceptions delineated in the law), was an inflexible and unsuitable means that unnecessarily violated the constitutional right to a minimum dignified subsistence. This violation was not held to be proportional, as the Court considered there to be other possible means for fulfilling the legislative purpose, which violated the constitutional right to a lesser degree. President Beinisch noted that the case at hand further demonstrated the problem inherent in applying sweeping arrangements to cases in which eligibility for any assistance is denied. Justice Arbel added that a comprehensive arrangement by the legislator was required in relation to social rights that had not yet been established in Basic Law that enjoy constitutional status. The petition was accepted and the Court declared the invalidity of Section 9A(b) of the Income Support Law.

On behalf of the Petitioners in HCJ 10662/04

Adv. Sawsan Zahr

On behalf of the Petitioners in HCJ 3282/05

Adv. Keren Shemesh Perlmutter; Adv. Netta Ziv

On behalf of the Petitioners in HCJ 7804/05

Adv. Eduardo Wasser

On behalf of the Respondents in HCJ 10662/04, HCJ 3282/05 and HCJ 7804/05

Adv. Chani Ofek; Adv. Orna Rosen-Amir; Adv. Carmit Naor

JUDGMENT

President D. Beinisch:

Preface

1.The petitions before us deal with the policy of the National Insurance Institute, under which the ownership or use of a vehicle precludes eligibility for an income support benefit. Initially, the petitions were directed against the entire gamut of arrangements that reflected that policy, as they were in effect in 2004, when the first petition was filed (HCJ 10662/04). After an order nisi was granted in the original petitions, the Income Support Law, 5741-1980 (hereinafter: the Income Support Law or the Law) was amended and the policy that was challenged in the petitions was established in section 9A of the Law. Following that development, the Petitioners requested leave to amend their petitions, challenge the constitutionality of section 9A of the Income Support Law. The main claim made in the petitions is that section 9A (b) establishes a conclusive presumption that anyone who owns or uses a vehicle is deemed to have an income the size of the benefit and, therefore, he is not eligible for an income support benefit. This presumption, by virtue of which the benefit is denied, is alleged in the petition to be an unconstitutional violation of the right to a minimum dignified subsistence.

The Petitioners

2.The Petitioner in HCJ 10662/04 is married and the father of five children. The Petitioner has received an income support benefit since October 2001. The Petitioner submitted an application to the National Insurance Institute (hereinafter: the NII) to approve his use of a vehicle for the purpose of transporting his blind daughter without having to forfeit his income support benefit, to which he was entitled at that time. His request was refused because the Petitioner did not prove a medical need of the type that would enable him to possess a vehicle under the Law, while receiving an income support benefit. The petitioner was joined by Sawt el- Amel /The Laborer’s Voice and Adalah – The Legal Center for Arab Minority Rights in Israel (hereinafter: Adalah), which also represented the Petitioners in this petition.

3.The Petitioners in HCJ 3282/05 are five single-parent women, who, due to the provisions in section 9A of the Income Support Law concerning the ownership or use of a vehicle and, prior to that, the parallel provision in the National Insurance Regulations, were denied the income support benefit. For that reason, Petitioners 1-3 were required to repay the amounts they had received as a benefit from the National Insurance, the claim for the benefit by Petitioner 4 was denied and monies were deducted from the benefit of Petitioner 5. The Petitioners were joined by Mechuyavut -- Commitment to Peace and Social Justice and Itach – Women Lawyers for Social Justice (hereinafter: Itach), which also represented the Petitioners in this petition. The Petitioner in HCJ 7804/05 was also a single-parent at the time the petition was filed, and her income support benefit was canceled when it was learned that she maintains a joint household with her ex-husband and makes frequent use of his vehicle.

4.Each one of the women Petitioners before us has a harsh and complex life story. All are single-parents who were shouldering the burden of supporting and caring for small children at the time the petition was filed. Some of the Petitioners earned their livelihoods by working in jobs for meager pay and others had no livelihood at all and subsisted from the income support benefit and/or solely from child support payments. In their petition, the Petitioners claimed that the use of a vehicle enabled them to go to work and, for some of them, even lowered the cost of travel compared with public transportation. Petitioner 1, a single-parent of two who has a hearing handicap, required a vehicle for the purpose of caring for her children and for transporting the equipment she requires for her work. She alleges that the cancellation of the income support that she received from the NII led her to give up the vehicle in her possession and to stop working. However, when it came to light afterwards that she uses her parents' vehicle about three times a month, her income support benefit was canceled altogether, which left her and her children to live solely from child support payments and the child allowance totaling NIS 1,841 per month. At the time the petition was filed, Petitioner 2 lived in a remote town without any public transportation, and she required a vehicle to obtain basic services of food, health and education for her son, who suffers from a chronic disease. Over the years she had worked and received income support pursuant to the Income Support Law. When it came to light that she was regularly using a vehicle owned by her mother, her benefit was canceled retroactively and her debt to the NII was set at NIS 114,000. Petitioner 3 also required a vehicle due to lack of frequent public transportation to her place of residence. During the period of time in which she required the income support benefit, the business she owned failed, she divorced her husband and was caring for a-year-old baby. Her benefit was also canceled when it came to light that she was using her ex-husband's vehicle. The decision to cancel her benefit ultimately compelled her to move her place of residence to a central location where she could manage without the use of the vehicle. With regard to Petitioner 4, it was alleged that travel on public transportation required her to change four bus lines on every trip to her workplace and to take her child – who, at the relevant time, was a year old infant – along with her. The Petitioner's claim for the income support benefit was denied because of the vehicle that was placed at her disposal by her family, who financed most of the expenses. Petitioner 5 also required a vehicle to reach her workplace – various prisons in the north of the country, which are not accessible by public transportation. As long as she used her father's vehicle, and due to the father's medical disability, her income support benefit was not canceled. After her father sold his vehicle, and the Petitioner began to use the vehicle of one of her acquaintances, her income support benefit was canceled. Cancellation of the benefit compelled her to quit her job and submit a claim for a full income support benefit. That claim was approved and Petitioner 5 received an income support benefit for a period of time until she no longer needed it.

5.The petitioner in HCJ 7804/05 was divorced and the mother of a little girl at the time the petition was filed. Her income support benefit was canceled after the NII came to the conclusion that she was running a joint household with her ex-husband (which, in itself, does not negate eligibility for an income support benefit, but requires examination of the eligibility of such a nuclear family) and, accordingly, the debt to the NII was said at about NIS 17,000. Afterwards, it transpired that the Petitioner also made frequent use of her ex-husband's vehicle and the Regional Labor Court ruled that even though there was not enough evidence of the existence of a joint household, the Petitioner should be denied the benefit due to the use of a vehicle. The National Labor Court agreed with the conclusions of the Regional Labor Court regarding the use of the vehicle, but added, above and beyond the necessity, that the gamut of evidence indicated the existence of a joint household (NII Appeal 300/03 Idit Idan – National Insurance Institute (unpublished, March 15, 2005)). In the petition, the Petitioner challenged the arrangement established in the law and requested that we vacate the judgment of the National Labor Court.

The normative basis

Before we discuss the main claims raised by the parties in the petitions before us, we will describe the normative basis required for the matter.

The purposes of the Income Support Law

6.The Income Support Law, which establishes the arrangement that is attacked in the petitions, was enacted in 1980. Its intricate provisions create the last safety net available to residents of the state who suffer privation. The main purpose of the law is to support residents of the state who find themselves in a situation in which they cannot obtain their basic needs. As established in the explanations to the Income Support Bill, "The purpose of the proposed law is to ensure every person and family in Israel, who are unable to provide themselves with the income required for subsistence, of the resources to obtain their basic needs" (Bill 1417 of September 30, 1979, 5740, at p. 2 (hereinafter the Income Support Bill); see also Abraham Doron and Johnny Gal “The Income Support System in Israel in a Comparative International Perspective," 58 Social Security 5, 5-6 (2000) (hereinafter: Doron and Gal); for details on all the welfare systems available to the needy population, see Ruth Ben Israel, Social Security, at 898-899 (2006) (hereinafter: Ben Israel)). That support is implemented by means of a differential benefit that is adapted to the age and family status of the applicant. Beginning in 2006, the benefit has been derived from a basic amount that is updated each year in accordance with the rate of the rise in the economy’s Consumer Price Index, which enables it to be updated and adapted according to the economic situation and the cost of living in Israel (see the definition of "the basic amount" in section 1 of the Income Support Law, and the benefit rates established in the second addendum to the Law. In the past, it was updated according to the average salary in the economy – see section 1 of the Law; Ben Israel, at p. 872).

7.The basic presumption inherent in the Law is that the best way to achieve and ensure a minimum subsistence is by working. This presumption reflects two complementary aspects of the Law: first, an income support benefit is given only to someone who is not capable of supporting himself on his own. The nature of the benefit, by definition, is residual: it is only given to a resident of the country who does not receive sufficient income from working, a pension or another source of income, and does not have sufficient resources to cover his basic subsistence (Income Support Bill at pp. 2-3). Second, the supplementary aspect of providing alternative income to an individual is to prevent a situation in which that income becomes, in itself, an incentive not to work. The purpose of the benefit is to provide the individual with subsistence during the intermediate period in which he finds himself without resources, but not to prevent him from reentering the job market. To the contrary – the state wants to encourage its residents to work, and not to remain needy and dependent on public support for a lengthy period of time. The Law therefore strives to ensure that the benefit will be a temporary – and not a permanent – alternative to working (cf.: Doron and Gal, at pp. 8, 23-24; Arieh Lieb Miller “Income Support Laws in Israel Compared with the Law in West Germany, Labor Law Yearbook A91, 92-93 (1989); Ben Israel, at pp. 843-845). It should be noted that along with the income support benefit, which is designed to help those who cannot support themselves, the Income Support Law also enables the provision of an income supplement benefit, which is designed to help individuals who have succeeded in finding jobs, but whose pay is low and is not sufficient for basic subsistence.

8.The two main tests that establish a person's eligibility are derived from these principles: the income test and the employment test. The income test, which is the focal point of the petitions before us, delineates rules for quantifying and estimating the income of the benefit applicant. Its purpose is to examine whether the applicant has sufficient income to cover his basic subsistence needs, or he requires the benefit. The rules for examining different incomes, quantifying them and considering them in the decision on granting the benefit are established in Chapter D of the Law and the Income Support Regulations, 5742-1982 (Ben Israel, at pp. 872-874; National Labor Court Hearing 43/04-162 Haviv Dahan – National Insurance Institute, Labor Court Judgments 15 351 (1984)). The employment test makes eligibility for the benefit contingent upon the applicant's making every possible effort to find work that provides income, which exceeds the amount of the benefit (and, in the language of the Law, he has maximized his earning power). Therefore, the applicant must be lacking in sufficient work or be unfit for work (pursuant to a list of exemptions set forth in section 2 (a) of the Law and in the First Addendum): and if he is able to work, he must be willing to accept any work offered to him by the Employment Service that is compatible with the state of his health and physical fitness (Ben Israel, at 880; National Insurance Appeal 232/99, Idit Uri v. National Insurance Institute, Labor Court Judgments 38 157, 163-168 (2002); hearing no. 41/91-3 Ahias Meir – Employment Service, Labor Court Judgments 13 61 1981)). Therefore, the purpose of the employment test is double: it ascertains that the benefit applicant is, indeed, in need of assistance from the state and is not choosing a life of willful unemployment and, concomitantly, it refers the individual to obtaining assistance by finding work, thereby improving his chances of extracting himself from the cycle of poverty and advancing toward self-fulfillment and becoming self-supporting. The employment test therefore gives expression to the second purpose of the law, whereby state support of the individual is intended to be a temporary arrangement, by virtue of, and after which, the individual can recover and stand on his own two feet.

9.In addition to these two substantive tests, the Law also specifies conditions of residency and age. The residency condition focuses on the boundaries of the social safety net for residents of the state who hold residency status for at least two consecutive years. The age condition limits the benefit to residents over 25 years of age, on the assumption that at a younger age, the person can usually support himself or he is still dependent on others – mainly members of his family – and, therefore, he should not be deemed as someone who requires support from the state. Alongside this rule, exceptions were established that also enable the benefit to be granted to someone who is below the threshold age. By their nature, those exceptions were designed to provide a response to situations in which the circumstances of the applicant’s life attest to the fact that he is incapable of supporting himself, notwithstanding his youth.

The ramifications of ownership or use of a vehicle for entitlement to the benefit

10.Based on the purposes of the Income Support Law, the provisions of the law that were enacted establish the significance of ownership or use of a vehicle with regard to eligibility for the benefit. The main chapter dealing with the benefit and its rate is Chapter C of the Income Support Law. Section 5 (B) in Chapter C of the Law states:

Rate of the benefit

The benefit for an eligible person who has an income shall be an amount equal to the difference between the benefit to which he would have been entitled under subsections (A) or (E) if not for the income, and the income.

This section reflects that the income test is conducted individually for each benefit applicant, in order to assess his eligibility for the benefit and the rate of the benefit that he will receive, if he is found to be eligible. "Income," for the purpose of calculating eligibility for the benefit and the amount of the benefit, is defined in Chapter D of the Law, in sections 9 – 12 (B). These sections enumerate a long series of data that must be taken into account when determining the income of a benefit applicant. Among these data, for example, the applicant's direct income is examined – including, e.g., other pensions paid to him, maintenance payments or payments made to someone undergoing vocational training, and "indirect" payments, such as income from property. Chapter D also enumerates income that will not be taken into account in the income test, among them, for example, the child allowance and grants to discharged soldiers.

Among the provisions listed in Chapter D of the Law, the relevant provision to the matter at hand is set forth in section 9 (A) (5) as follows:

Income

9 (A). In this Law, “Income” means income from sources set forth in section 2 of the Ordinance [the Income Tax Ordinance – D.B.], even if it was not generated, produced or received in Israel, including…

(5) Amounts that shall be deemed income from property that is a vehicle as stated in section 9A (emphasis added – D.B.).

Section 9(A)(5) therefore shows that in calculating the income of the benefit applicant, income from property that is a vehicle must also be taken into account. It should be emphasized that the Petitioners before us are not attacking the constitutionality of section 9(A)(5), i.e., the actual determination that a vehicle can be taken into consideration in determining a person's income. Their claims focus on the concrete arrangement determined in this matter in section 9A, which specifies the situations in which a vehicle will be deemed property from which monthly income is generated and the significance of this income on the rights to the benefit. The following is stated in section 9A(a) and 9A (b):

Special provisions in the matter of property that is a motor vehicle

9A. (a) In this section, "vehicle" means a motor vehicle as defined in section 1 of the Transportation Ordinance that is owned by the claimant or used by the claimant or his child who is with him, except for a motorcycle.

(b) In the matter of this Law, subject to the provisions of subsection (c), a vehicle is deemed property from which monthly income is generated in an amount that is no less than the amount of the benefit that would have been paid to the claimant if not for the provisions of this subsection. (emphasis added – D.B.)

The insertion of the sections – section 5(b) and sections 9A (a) and 9A (b) – leads to the conclusion that anyone who owns or uses a vehicle is not eligible for an income support benefit, as his “income” from the vehicle is deemed equivalent to the amount of the benefit that would have been paid to him if he did not own or use a vehicle. The meaning, therefore, is that the benefit applicant is deemed to have an income that is above the income threshold that entitles him to the income support benefit and, therefore, as someone who does not need the assistance of the state. It should be noted that at the start of adjudication of the petitions before us, section 9A (b) did not contain the connection of use of a vehicle even though, de facto, the NII interpreted section 9A as also precluding the regular use of a vehicle. The section was amended in 2007, during adjudication of the petitions, and this interpretation was established in the Law, so that now, both ownership and use of a vehicle are deemed a presumption that precludes granting the income support benefit.

11.Section 9A (c) continues and establishes a series of exceptions for which the income support benefit will not be denied to someone who owns or uses a vehicle. This section was also amended during adjudication of the petitions before us, so the range of exceptions set forth therein was expanded. Prior to the amendment, the exceptions focused on cases in which the vehicle is required by the benefit applicant for medical reasons. In 2007, two more exceptions were added to the Law (sections 9A (c) 6 and 9A (c) 7)), which enable payment of the income supplement benefit under certain conditions, even to someone who is working and using a vehicle, or to someone whose earnings ceased a short time before the time for which the benefit is claimed. Section 9A (c), which enumerates the exceptions to the rule of ownership or use of vehicle, states as follows:

9A. (c) A vehicle shall not be deemed property from which income is generated if one of the following conditions is fulfilled –

(1) (deleted)

(2) The claimant or a member of the claimant's family requires the vehicle for the purpose of medical treatment provided outside their home, pursuant to a prearranged treatment program or at least 6 times a month for a period of time exceeding 90 consecutive days, all pursuant to the rules and conditions established by the minister; in this matter, "family member" means someone whom the claimant drives to medical treatment, as stated in this section, who is the claimant's spouse, son, daughter or parent, provided that the family member as stated does not have an additional vehicle.

(3) The claimant, his spouse or child is disabled in his legs and receives payments from the state treasury for maintaining the vehicle and, with regard to someone who does not receive payments as stated – a qualified doctor, as defined pursuant to the provisions of section 208 of the Insurance Law, determined that he requires transportation due to his being disabled as stated, pursuant to the rules, conditions and the period of time determined by the minister.

(4) The child of the claimant is paid an allowance pursuant to the provisions of Part 6 of Chapter 9 in the Insurance Law.

(5) The vehicle registration was deposited with the authority authorized to issue that same registration, and as long as the registration is deposited, one of the following conditions is fulfilled:

(a) The claimant is not capable of working at any job whatsoever due to illness, provided that the period of time in which the vehicle shall be deemed property from which no income is derived as stated in subsection (b) does not exceed six months from the date on which he submitted a claim for the benefit.

(b) The vehicle is a tractor as stated in the Transportation Regulations, 5721-1961, provided that the tractor is not in use and the claimant has a farm that is not operational.

(6) The claimant has a monthly income from the sources set forth in section 2 (1) or (2) of the Ordinance [the Income Tax Ordinance – D.B.], in an amount that exceeds 25% of the average salary, and if he or his spouse have reached retirement age – in an amount that exceeds 17% of the average salary, the claimant does not have an additional vehicle and the vehicle meets one of the following conditions:

(a) The engine volume does not exceed 1300 cc and in the month for which the benefit is paid, seven or more years have passed since its year of production.

(b) The engine volume does not exceed 1600 cc and in the month for which the benefit is paid, twelve or more years have passed since its year of production.

(7) The claimant does not have a monthly income from the sources set forth in section 2(1) or (2) of the Ordinance [the Income Tax Ordinance – D.B.], or his income as stated is less than the amounts at the beginning of paragraph (6), provided that all the following conditions are fulfilled:

(a) In the month for which the benefit is paid or the two months preceding it, the claimant was dismissed from his job; in this matter, “dismissed” includes resignation under circumstances that would entitle him to unemployment pay for the first 90 days from the date of termination of the job, pursuant to the provisions of section 166 (b) of the Insurance Law.

(b) In the month for which the benefit is paid, the claimant does not have an additional vehicle, and his vehicle fulfills the provisions of paragraph 6(a) or (b).

(c) In the ten months preceding the month in which the claimant was dismissed, the claimant was paid a benefit under this Law and the claimant fulfilled the conditions set forth in paragraph (6).

Therefore, the meaning that emerges from all the aforementioned sections is that a benefit applicant who owns or uses a vehicle, and whose situation is not included in one of the exceptions, is not entitled to receive an income support benefit.

The constitutionality of that arrangement is the issue to be decided in the petitions before us.

The Petitioners' arguments

12.The Petitioners in HCJ 10662/04, the Petitioners in HCJ 3282/05 and the Petitioners in HCJ 7804/05 (hereinafter, for the sake of convenience, we will term all of them together: the Petitioners) submitted their arguments separately, but the petitions were heard together. Even though not all the Petitioners challenged the same aspect of the Law, there is a series of pivotal arguments that is common to all of them and we will focus on those below.

13.The main argument that arose in the pleadings of the Petitioners is that section 9A (b) of the Income Support Law establishes a conclusive presumption that denies the benefit to someone who owns or uses a vehicle. According to the argument, this presumption violates the right to a minimum dignified subsistence, since it denies a person’s' right to an income support benefit even if, under the circumstances of his life, the user’s ownership of a vehicle does not attest to the fact that he possesses the means for a minimum dignified subsistence. The categorical denial, it was argued, prevents examination of whether the user’s ownership of a vehicle attests to an exceptional standard of living, and it applies whether the use or ownership entail only small expenses or they are required for a minimum dignified subsistence. The Petitioners point out that such a need may arise due to illness, residence in a remote area with no public transportation connection, or due to a desire to go to work. It was further argued that the violation of the right to a minimum dignified subsistence is increased in cases of denial of the benefit because the income support benefit lies at the core of the protection of human dignity. Therefore, when analyzing the violation of the right, it was argued that the lack of the benefit should not be balanced against other means that the state provides or may provide to its citizens, since other government support is not stable like the income support benefit and, in some cases, is also not established in law. The Petitioners in the three petitions did not argue that the ownership or use of vehicle is a vital component of a minimum dignified subsistence, but they did argue that the use of a vehicle can help them to lead normal lives: to appear at the employment bureaus, to search for new jobs, to access medical treatment, and to maintain social lives. The Petitioners in HCJ 10662/04 (who are represented by Adalah – The Legal Center for Arab Minority Rights in Israel), added that for the Arab recipients of the benefit, who constitute 26% of all the benefit recipients, the use of public transportation cannot serve as an alternative to the use of a vehicle, since most of the Arab villages have no regular and frequent public transportation at all.

14.Another argument made in the petitions, particularly in HCJ 7804/05, is that the legislature did not address the question of what constitutes "use" of a vehicle, for which the income support benefit will be denied – even though it is now expressly established in section 9A (a) of the Law. According to the arguments, the tests that were formulated in the rulings of the Labor Court greatly expanded the definition of the use so that, in fact, any use of a vehicle leads to denial of the benefit, even if it is not equivalent to the use made by an owner. It was further argued that the exceptions that were added to the Law in 2007 do not mitigate the violation of the right, for several reasons: first, because they are relevant to only a small number of needy people who earn at least 1,850 shekels a month (an amount equivalent to 25% of the average salary in the economy, as stated in the exceptions) and possess an old vehicle. Second, many benefit applicants utilize a vehicle that belongs to family members or acquaintances, and they cannot affect its value. Third, there are many groups that are not working at all but the use of a vehicle is still vital to running their own lives and fulfilling their parental duties. Finally, many benefit applicants, primarily women, do not hold permanent jobs and, therefore, their income varies from month to month in a manner that does not enable them to regularly rely on the existence of the exception. For all these reasons, the Petitioners argue that the exceptions added to the Law do not resolve the problem arising from the fact that a conclusive presumption has been established in the Law which denies receipt of the benefit.

15.We will note that a dispute arose between the Petitioners and the Respondents on the question of the constitutional review that should be implemented in this case. According to the Respondents – whose position will be described in detail below – the mechanism of judicial review of the violation of social rights and the conditions of eligibility for social rights should be limited, and it should be separated from the judicial review of the constitutionality of civil and political rights. The Petitioners, particularly the petitioners in HCJ 3282/05, opposed the constitutional analysis model proposed by the Respondents. They argue that the proposed model – which endeavors to focus the constitutional examination on the stage of determining whether a right has been violated – does not allow for effective judicial review of laws that violate the right to a minimum dignified subsistence. Moreover, the Petitioners conceded the Respondents' detailed argument, whereby the interest protected by the Law should be defined as the interest of preventing a life of existential deprivation only in regard to those persons who find themselves in that condition because of reasons beyond their control, but they argue that that last component of duress should not be added to the definition of the right itself. In their opinion, the requirement of duress must be examined as part of the examination of the purpose of the legislation and the proportionality of the violation, while an examination of the circumstances under which a person finds himself in a state of existential deprivation and an examination of the existence of the conditions justifying his extraction from that deprivation, must be made, only after it has been proven that the person is suffering from existential deprivation and that his right not to live in such a manner has been violated. The Petitioners further argued that since the examination of whether the benefit applicant suffers from existential deprivation because of reasons beyond his control is founded on a factual system that is based on various eligibility tests, which include, inter alia, an examination of the family's situation, the requirement to maximize earning power and to conduct a detailed test of income – there is also a practical logic in conducting it at this stage of examining compliance with the tests in the limitations clause, and not at the stage of determining violation of the right. To this the Petitioners added that the position whereby a condition of duress must be read into the definition of the right to a minimum dignified subsistence reflects the outlook whereby people choose a life of poverty and that the individual has a scope of autonomy in choosing his economic status. Such a position, it was argued, ignores the fact that people's economic situation is also derived from the social status into which they were born and to their ethnic, religious and sectorial affiliation. It was argued that emphasizing the individual's scope of choice in circumstances where his ability to choose is limited undermines the state’s obligation to adopt arrangements that narrow the social gaps.

16.With regard to the conditions of the limitations clause, the Petitioners focus their arguments on the conditions of proportionality. With regard to the first subtest, it was argued that there is no rational connection between the use or ownership of a vehicle and the purpose of the law, since no income – even conceptual – could be generated from the use they made of the vehicle. The Petitioners pointed out the fact that from a factual standpoint, the family support that was given to the benefit applicant by placing a vehicle at her disposal several times a week cannot, for the most part, be converted into a monetary payment, and that such assistance is equivalent to the assistance provided by the family in minding and caring for the children – assistance that is given by means of existing personal and family capital. It was further argued that the fact that a conclusive presumption from which there could be no deviations had been established for a basic matter such as a subsistence benefit, is contrary to the natural rules of justice and, hence, is not proportional.

17.The Petitioners further argued that the second subtest, the test of the means with the lesser violation, does not exist in this matter either. The main argument that was made in this matter is that with a conclusive presumption that cannot be refuted and from which there can be no deviations, the legislature should have chosen a means that allows for the assessment of the economic value of the use of a vehicle and deduction of that value from the amount of the monthly benefit. The Petitioner in HCJ 7804/05 emphasized that a person who works and receives a vehicle from his employer is entitled to deduct the value of the benefit generated by the vehicle pursuant to the rate for deducting the benefit in accordance with the income tax regulations, while someone who uses a vehicle that he did not receive from his employer, even if such use is required for his work, is denied that benefit completely. The Petitioners further argued that the law does not comply with the third test of proportionality either. They argue that the Respondents' insistence on quantifying the family assistance given to the benefit applicants constitutes a negative incentive for family members to help one another, and attests to the state's shirking its responsibilities vis-à-vis the individuals. Additionally, the savings and efficiency attained by the sweeping denial of the benefit do not match the damage caused by denial of the benefit from those who need it for a minimum dignified subsistence.

18.It should be noted that the Petitioners in HCJ 10662/04 chose to focus their petition on the claim of discrimination, whereby Amendment 28 to the Income Support Law, in which two exceptions that are set forth in sections 9A(c)6 and 9A(c)7 of the Law were added, discriminate between recipients of the Income support benefit and the income supplement benefit. This is because these sections enable recipients of the income supplement benefit, under the conditions set forth therein, to possess a vehicle without losing their benefit, and do not allow for a similar arrangement for recipients of the income support benefit. The Petitioners argue that this arrangement discriminates in an arbitrary and comprehensive manner between recipients of the income support benefit and recipients of the income supplement benefit, and violates the constitutional right to a minimum dignified subsistence, and the right to property by recipients of the income support benefit. This discrimination, it was argued, is not for a proper purpose. The Petitioners are not protesting the concrete arrangements set forth in these sections but, rather, are asking to apply it, mutatis mutandis, to the group of income support recipients as well.

The Respondents’ arguments

19.The Respondents focused their responses and the affidavit in response on the question of whether section 9A (b) of the Law does, indeed, violate the right to a minimum dignified subsistence. According to the Respondents, section 9A (b) embodies the "pure" socioeconomic policy of the legislature. This policy, it was argued, is not given to judicial review because it establishes a series of social rights that have not reached the status of basic rights. Only a narrow and very limited part of this policy is covered by the constitutional right to dignity in the sense of the right to not live a life of existential deprivation caused by duress and, according to the Respondents, the current case does not fall within the boundaries of the right at all.

20.The Respondents argue that a distinction should be made between the constitutional analysis in a claim of violation of a civil right and the constitutional analysis in a claim of violation of a socioeconomic right, in two main ways. First, the scope of the constitutional right should be limited and the interest protected by law should be narrowly defined as the interest of preventing a life of existential deprivation caused by duress. Second, the Respondents believe that the constitutional examination should be focused on the first stage and the question of whether the protected right has been violated at all should be examined. They argue that the importance of focusing on the stage of the violation is designed to delineate the boundaries of the right to a minimum dignified subsistence, and to ascertain that the judicial review is applied only to the core of the right, and not to its marginal parts, to which an economic policy can be applied that is not subject to constitutional judicial review. Accordingly, it was argued, the Court must examine only the existence of the rational connection between the conditions of the eligibility (i.e., the ownership or use of a vehicle) and the interest protected by the Law. This test is a test of relevancy – i.e., it is sufficient that there is some connection of relevancy (absence of arbitrariness) between the protected interest and the means for constitutional review so that the Law will stand the test of constitutionality. According to the Respondents, focusing on the first stage of the constitutional examination (i.e., at the stage of the violation) "does not render the constitutional analysis superfluous but, rather, moves the substantive tests that are implemented in the second stage, to the first stage of determining the existence of the violation" (affidavit in response on behalf of the Respondents, dated November 12, 2009, at p. 8).

21.As to the essence of the Petitioners' arguments, the Respondents argue that the rationale underlying denial of the benefit from someone who owns or uses a vehicle is the high cost and the significant expenses entailed in maintaining a vehicle. According to the Respondents, calculations of the monthly cost of maintaining a vehicle, based on the statistical models, indicate that the monthly expense is very close to the amount of the average benefit and, therefore, justifies denying eligibility for the benefit. This rationale encompasses the presumption, pointed out by the Respondents, that it is highly possible that the vehicle’s maintenance expenses are funded from the benefit recipient’s independent income, which he did not report to the National Insurance Institute at the time his eligibility for the benefit was examined. Hence, it was argued, since the income test is the main test for examining eligibility for the benefit, denying the benefit is justified where there is a basis for assuming that the benefit applicant has unreported sources of income. According to the Respondents, this rationale is also valid in cases in which the vehicle is not owned by the benefit applicant and another person pays for the ongoing expenses of maintaining the vehicle. In such a situation, they argue, the benefit applicant should be deemed to have been given the amount of the vehicle's value and the amount of the value of the vehicle's use by the vehicle's owner. The Respondents emphasize that in many cases, the vehicle is made available by family members, who are obligated under Israeli law to care for members of their family. Therefore, it was argued, we should not encourage a reality in which the public treasury finances the existential needs of a person, thereby enabling others to finance needs that are not of an existential nature.

22.From the standpoint of the right to dignity, which is the main right under examination, according to the Respondents, the interpretive model for extending the scope of the right to dignity is the model of existential deprivation caused by duress. According to that model, the constitutional obligation of the state arises only where a danger is created that a person will be forced, because of reasons beyond his control, to live in existential deprivation. When an individual can be required to make a proper change from a normative standpoint, a range of choices opens up before him, which negates the assumption that he is forced to live in a state of existential deprivation. This interpretive model ascribes a limited and narrow meaning to the right to not be forced to live in existential deprivation, which relies, according to the argument, on the fact that that right is derived from the right to human dignity.

The questions that must be decided

23.The petitions before us raise the constitutional question of the arrangement established in section 9A(B) of the Law. The main question to be decided by us is whether this arrangement – which means sweeping denial of the right to the income support benefit for anyone who owns or uses a vehicle (and whose case does not fall within the realm of one of the exceptions set forth in the Law) – violates a constitutional right. If we find ourselves responding to this question in the affirmative, we must further examine whether that violation fulfills the requirements of the limitations clause and, therefore, constitutes a permitted violation. This pivotal question raises a series of "derivative" questions, which are also required for the decision. These encompass the question of the scope of the violated right, which is the right to a minimum dignified subsistence (or, by its other names: the right to minimal subsistence conditions or the right not to live in existential deprivation), and the question of the connection between it and the right to dignity. In the wake of the position presented by the Respondents, the question also arises as to what judicial review model should be applied in examining the constitutionality of a law that is alleged to violate social rights, and if, as argued by the Respondents, a different constitutional model should be adopted with regard to the violation of social rights. These are the questions that we will deal with first.

The stages of judicial review

24.Since the enactment of the new Basic Laws in 1992, the generally accepted constitutional examination in our legal system is divided into three main stages (see, among many others: HCJ 6821/93, United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49 (4) 221 (1995) (hereinafter: the Mizrahi Bank Case); HCJ 1715/97, Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367 (1997); HCJ 6055/95, Tzemah v. Minister of Defense, IsrSC 53 (5) 241 (1999); HCJ 4769/95, Menahem v. Minister of Transport, IsrSC 57 (1) 235 (2002) (hereinafter: the Menahem Case); HCJ 1661/05, Gaza Coast Regional Council v. Knesset, IsrSC 59 (2) 481 (2005) (hereinafter: the Gaza Coast Case); HCJ 6427/02, Movement for Quality Government in Israel v. Knesset, IsrSC 61 (1) 619 (2006) (hereinafter: the Movement for Quality Government Case). In the initial stage, the question of violation is examined, during which the Court examines whether the relevant law violates a right or rights that are established in the Basic Laws. If the answer to this is negative, the constitutional examination comes to an end (see, e.g., the analysis of the question of violation of the right to dignity in HCJ 366/03, Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60 (3) 464 (2005) (hereinafter: the Commitment Society Case). If the answer is affirmative, meaning that the existence of a violation has been proved, the constitutional analysis proceeds to the second stage: examining the constitutionality of the violation.

A constitutional examination of the violation of the basic right is conducted by applying the requirements established in the limitations clause in Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. A violation that fulfills the requirements of the limitations clause is a permitted violation of basic rights. Such a permitted violation reflects the concept that basic rights are not absolute and, under certain conditions, may be violated (see, e.g., the Mizrahi Bank Case, at 433; Gaza Coast Case, at 545). A constitutional violation of the basic right concludes the stages of constitutional review and the law is declared to be constitutional. If it is found that a law violates a basic right in a way that does not fulfill the requirements of the limitations clause, the third stage commences, which is the stage of determining the remedy. In this stage, the Court determines the result of the unconstitutional law (see, e.g., HCJ 7505/98, Corinaldi v. Israel Bar Association, IsrSC 53 (1) 153, 162-163 (1999); CA 586/94, Azor Sports Center Ltd. v. State of Israel, IsrSC 55 (2) 112, 133-134 (2001)).

As noted by President A. Barak in the Movement for Quality Government Case: “This division into three stages is important. It is of assistance in the legal analysis. It is intended ‘to clarify the analysis and focus the thinking’... It clarifies the basic distinction, which runs like a golden thread throughout human rights law, between the scope of the right and the degree of protection afforded to it and its de facto realization” (id., 670). This division into stages laid the foundations for a uniform judicial review of violation of all of the rights encompassed by the Basic Laws which, as a result, achieved a constitutional, supra-legal status. This division circumscribed the boundaries of constitutional discourse, as part of the limitations imposed by the establishing authority on the legislative authority’s use of its power to violate rights set forth in the Basic Laws. This division also created the analytical basis for a distinction between the conceptual scope of constitutional rights and the scope of the protection given to them by the limitations clause. In fact, given the many years that have elapsed and the large number of judgments dealing with constitutional analysis, it can be stated that this division has become a basic axiom of constitutional law in Israel.

25.Nonetheless, the Respondents have devoted most of their energies to establishing the argument for adopting a different method of constitutional analysis for examining the petitions before us – a method of analysis that is affected by the fact that the right scrutinized by the constitutional examination is the right to a minimum dignified subsistence. Their main argument is that the judicial review of legislation alleged to violate that right should be limited, compared with the judicial review exercised for other rights, so that the examination would focus solely on the first stage – the examination of violation of the right. At the same time, the Respondents argue that considerations taken from the second stage of constitutional review should be “imported” into the first stage of the examination. In other words, the Respondents think it appropriate to make use of some of the tests in the limitations clause, even at the stage of examining the violation of the right.

Several reasons for this argument were cited. First, the Respondents argue that the restricted format in which the right to exist with dignity has been recognized in our legal system – a minimum subsistence – requires the application of stricter criteria than usual in examining the violation of a right, and that the Court should reduce the transition to the second stage of the constitutional examination. Second, the Respondents argue that the methodology used for the constitutional analysis of socioeconomic rights should be different from that used by the Court to examine other basic rights, because legislation that deals with allocating resources for socioeconomic issues does not usually involve constitutional aspects, while, on the other hand, it reflects determinations that concern pure policy. As such, the Court, as a general rule, should reduce the exercise of judicial review in legislation that affects the right to minimal conditions of existence, in contrast to other basic rights. Both of these reasons should be rejected.

The distinction between civil and political rights and socioeconomic rights

26.First we will examine the Respondents' argument that a different constitutional model should be applied when we examine a social, or economic right, in contrast to a civil or political right. This argument requires us to address the nature of the rights and the historical background that led to the current development with regard to the status of the social rights.

It is customary to classify the historical development of human rights into two "generations" of rights. The first generation encompasses human rights that are called "civil-political" and the second generation encompasses human rights that are called "socioeconomic." At the heart of the first generation rights, which developed at the time of popular uprisings for democratization at the end of the 18th century, was the desire to limit the power of government. Accordingly, these rights are characterized by the fact that the obligation of the government facing them is “negative” in nature and proclaims that the government must not impair the life of the individual, interfere in his actions, or restrict his liberty. In the second generation, the social concept developed, whereby rights that impose “positive” obligations on the government to care for the individual, to protect him against violations of his rights by others and to promote his welfare must also be recognized (Yuval Shany, "Economic, Social, and Cultural Rights in International Law," Economic, Social, and Cultural Rights in Israel, 297, 302-304 (edited by Yoram Rabin and Yuval Shany, 2004) (hereinafter the book will be termed: Economic, Social, and Cultural Rights in Israel and the article will be termed: Shany); Guy Mundlak, "Socioeconomic Rights in the New Constitutional Discourse: From Social Right to the Social Dimension of Human Rights" (Yearbook of Labor Law 7, 65, 93 (1999) (hereinafter: Mundlak), Theodor Meron, On a Hierarchy of Human Rights, 80 AJIL 1 (1986). A kind of "intergenerational struggle" developed between the two generations of rights, over the priority to be given to each one of the generations in national and international law. In international law, this issue found expression in the splitting of the international human rights covenant into two separate covenants: the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights, 1966 (hereinafter: the Covenant on Social Rights). The two covenants were ratified by Israel in 1991.

27.Behind the concept that there is competition between social rights and political rights, is the supposition that the two types of rights are inherently different from one another and are exercised at the expense of one another. One of the arguments akin to the arguments made by the Respondents in the petitions before us is that while social rights impose an "affirmative" obligation on the state, the political and civil rights impose a "prohibitive" obligation. The former, so the argument goes, must be limited in their implementation because they require the allocation of state resources, which ultimately come from the pockets and property of the state's citizens. In practice, a natural limitation applies to the exercise of those rights because they are always dependent upon the resources available to the government and their implementation is connected to allocation of the state's resources (see, e.g., HCJ 3071/05 Gila Louzon v. Government of Israel (not yet published, July 28, 2008) (hereinafter: the Louzon Case); and Ruth Gabizon “On Relations Between Civil-Political Rights and Socioeconomic Rights" in: Economic, Social, and Cultural Rights in Israel 23, 42 (hereinafter: Gabizon); Shany at p. 304)).

28.Even though that is the traditional approach, it is not the only approach. Over the years, critical voices have been increasingly heard to the effect that the dichotomous classification of social rights as "positive" and political rights as "negative" is far from reflecting the practice of exercising human rights and that every human right actually has positive and negative aspects alike (C. Taylor, Wha t’s Wrong with Negative Liberty? 2 Philosophy and the Human Sciences: Philosophical Papers 211, 215, 221, 228-229 (1985); S. Holmes and C.R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes, 35, 39, 44-48 (1999)). Thus, "defending civil-political rights may entail the imposition of positive obligations and public expenses no less than those required to protect socioeconomic rights, and handling socioeconomic interests may only require refraining from interfering." (Gabizon at p. 42-44; see also Aharon Barak, Preface, in Economic, Social, and Cultural Rights in Israel 5, 7). Take, for example, the right to life, which heads the list of civil and political rights in the Covenant on Political Rights. In order to preserve human life, the state is required "to implement actions” at the broadest scope: for that purpose military forces are established to protect the lives of the citizens from outside threats; for that purpose, police forces are established to protect the lives of the citizens from crime and the undermining of the social fabric; for that purpose the state is required to restrain its power and act with caution – and the means of caution cost a great deal of money in themselves. Similarly, the right of a person not to be discriminated against and not to be treated with prejudice also requires the allocation of considerable resources at times. Sometimes the right to equality is only of a negative nature but many times it imposes a positive obligation on the state to rectify discriminatory wrongs in the society and make facilities, services and public functions fully accessible to all members of the population (HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49 (4) 94 (1995); HCJ 7081/93 Botzer v. Maccabim -Reut Local Council, IsrSC 50 (1) 19 (1996)). This is also the case with regard to other classic civil-political rights, such as the right of expression. For the purpose of exercising the right, the state is required to protect anyone who says things that are not to the public's liking and maybe attacked or threatened because of his words. Therefore, the police are required, as a matter of course, to allocate public resources for the purpose of safeguarding protests and marches and for the purpose of protecting the freedom of expression of public personages and political figures. This is also the case when the state itself has not prohibited expressing opinions, nor has it intervened or interfered with their expression (see in this context: HCJ 153/83 Levi v. Southern District Police Commander, IsrSC 38 (2) 393 (1984); HCJ 2557/05 Majority Camp v. Israel police (not yet published, December 12, 2006)). The most prominent example of the political right that requires the state to allocate resources might be the right to vote and to be elected, in which enormous resources are invested, from the actual holding of elections every few years to the resources required to ensure the accessibility for every person to exercise his right to vote (see, e.g., Gabizon, at p. 42). Therefore, these examples attest to the fact that even when the state itself is willing to fulfill its part and to refrain from action, it may still be obligated to take action to protect the exercise of civil and political rights. With that in mind and according to the accepted outlook today, there is no basis for distinguishing clearly and unequivocally between social rights and political rights based on the positive or negative obligations of the state or based on the question of allocating resources. The ostensible gaps between the rights are mainly the result of historical evolution and not of real differences between the rights themselves. Indeed, "affirmative" and "prohibitive" alongside one another are integral parts of the protection of human rights, whatever their nature may be.

29.Moreover, insofar as there is a certain distinction between civil-political rights and social rights – if only in the scope of the positive obligations that is generally imposed on the state in each one of the groups of rights – the question still remains as to whether that justifies deviating from the constitutional review model that was established among us more than two decades ago? In my opinion, the answer to that is negative. There are several reasons for that conclusion.

First, we must remember that precisely in the context of the right to dignity that lies at the heart of the petitions before us, the constitutional obligation imposed on the legislature is an expressly positive obligation, in accordance with section 4 of Basic Law: Human Dignity and Liberty, which establishes that "All persons are entitled to protection of their life, body and dignity" (for the two aspects of the right to human dignity, see the Commitment Society Case at p. 749 and also below). Against the obligation is the right, and alongside it is the judicial remedy, and those are not subject, in the Basic Law, to a constitutional examination that differs from the one given to the other rights established therein. Therefore, the distinction that the Respondents wish to make has no basis in the internal structure of the Basic Law.

Second, it seems that the Respondents' arguments rely in principle on the claim that exercising the right to a minimum dignified subsistence requires the allocation of resources that may "overflow" into areas which, in essence, are a policy decision that is not given to judicial review. But this reason also does not justify the application of a different model of judicial review of social rights. It is a well-known rule that the Court will not intervene in questions of pure policy, but it would be proper to examine the constitutionality of various actions, even if they have, or might have, budgetary ramifications. No one disputes the fact that the exercise of many rights entails budgets available to the state and the manner of their allocation. This is certainly the case with regard to the exercise of social rights (See the Louzon Case, paras 10-11 of my judgment). In effect, even the Covenant on Social Rights establishes that the state is not exempt from implementing the measures that are essential for exercising those rights, but it recognizes the fact that the state's ability to promote those rights depends on the resources at its disposal (see section 2 (1) and section 11 of the Covenant on Social Rights). Indeed, the positive protection of human rights – civil, political or social – tends, as a rule, to require ongoing sources of funding which may, by nature, be limited by, and dependent on, the financial situation of the state and the scope of the resources at its disposal (see: Barak Medina, The State's Duties to Provide Basic Needs: From a “Discourse of Rights” to a “Public Finance Theory” in Economic, Social and Cultural Rights in Israel 131; see also section 2 (1) of Covenant on Social Rights). But in a legal system in which the relativism of human rights is preserved, as in our system, the place for arguments about budgetary constraints and conflicting interests is generally in the second stage of the constitutional examination, which examines the purpose of the violation of the right and its proportionality. That stage provides a broad platform for justifying a violation of the right for reasons of lack of budgetary resources, and those considerations should not be transferred to the first stage of examining the essence of violation of the right.

Third, accepting the Respondents' position may lead to the application of a different constitutional model with regard to two violations of exactly the same right. The right to human dignity is a prominent example of that because of the many facets of that right. "The right to human dignity," noted President A. Barak “… constitutes a collection of rights that need to be protected in order that dignity may exist…These rights are likely to be included within the framework of “ civil” (or “political”) rights, and even within the framework of “social” (or “economic”) rights (the Commitment Society Case at p. 481). Indeed, the right to dignity encompasses a variety of rights. Some of them are derived from it and some of them express the basic meaning of the term "human dignity." In our legal system, the right to equality, under certain conditions, has been declared an integral part of the right to human dignity, as has the right to family life (see: the Movement for Quality Government Case; HCJ 7052/03 Adalah – Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61 (2) 202 (2006); hereinafter: the Adalah Case). Alongside those rights, the right to a minimum dignified subsistence has been recognized. Can some legal basis be found for the argument that a violation of one aspect of human dignity will lead to the application of one model of judicial review, and a violation of another aspect of human dignity will lead to another model of judicial review? Clearly, the answer to that is negative. Such selective application is inconsistent and has no part in the prima facie distinction between the rights, in the language of the basic laws, or in the tradition of constitutional law in our legal system.

30.I also cannot accept the additional argument made by the Respondents that the narrow scope of the right to a minimum dignified subsistence justifies narrowing the constitutional analysis to the first stage – the stage of the violation. First, the "safety belt" that is required, according to the Respondents, to prevent a situation in which the constitutional protection will be broadened and will be "stretched" to cover rights that are not established in the Basic Laws, exists in the narrow definition of the right. There is no theoretical reason to apply different and stricter rules of analysis to the right, which, in any case, is narrowly defined. Second, this argument – insofar as it is designed to indicate the difficulty of lifting the burden of the violation of a right that is narrowly defined – states the obvious. In any case, when a court exercises judicial review on legislation, at the first stage the burden of proving the fact that the law violates the right rests with the petitioners (see, e.g., the Commitment Society Case, at p. 484, 491-492; the Movement for Quality Government Case, at p. 671-672) and there should be no transition to the second stage of examination if no violation of the right has been found. Moreover, adopting the Respondents' approach means passing the burden of proof to the Petitioners almost completely. If we accept their approach, the Petitioners would have to prove both the violation of the right and the relevancy of the means that were chosen in the legislation. However, the burden of proving the relevancy or, in other words, the rational connection test, is generally that of the Respondents as part of the customary division of the burden in constitutional law. Changing the rules of the constitutional examination in the case before us means releasing the Respondents from the need to prove the constitutionality of the means that were chosen by them.

31.The argument made between the lines by the Respondents, to the effect that the ambiguity of the social rights makes it difficult to pinpoint their violation and, therefore, justifies the application of stricter tests in the first stage of the constitutional review, should also be rejected. Like the arguments pertaining to the distinction between "positive" and "negative" aspects or between "affirmative" and "prohibitive" obligations, the arguments about ambiguity that are ascribed precisely to social rights should also be rejected. Ambiguity is not a problem reserved only for social rights (and it is doubtful whether the argument in itself is accurate: for developments in the concretization of the social rights in international law, see Shany, at p. 321-325). This court has struggled more than once with the issue of the scope and boundaries of political and civil human rights. Does freedom of expression also spread its protection over pornographic expression? Does affirmative action constitute a violation of equality or does it express a relevant distinction? What are the boundaries of the right to privacy in the workplace (see, e.g., HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women, and 11 others v. Council for Cable TV and Satellite Broadcasting, IsrSC 58 (3) 65, 79, 82 (2004); HCJ 454/94 Israel Women's Lobby v. Government of Israel, IsrSC 58 (5) 501 (1994); Labor Court Appeal 90/08 Inbar – State of Israel – Supervisor of the Employment of Women Law (not yet published, February 8, 2011)). These are but a few examples of the inherent difficulty of examining the scope of rights of all kinds. The theoretical difficulty is basically interpretive. It does not pertain to the distinction between civil rights and social rights but, rather to the distinction between the essence of the right and its marginal aspects. The more the violation pertains to issues at the core of the right, the easier it is to discern the violation and the protection of the right will be expanded, and vice versa when we are dealing with the marginal aspects of the right. Pinpointing the "geometric location" of the violation of the right is in the purview of the court as an interpretive action, whether the matter involves civil rights or social rights.

Indeed, decisions on the scope and boundaries of social human rights are sometimes complex and since they are new rights in our legal system they have not yet been given sufficient legal interpretation in this Court. Even the academic and legal discourse on social rights developed at a slower pace and there are many reasons for that, but this is not the place to discuss them. The ambiguity will, therefore, be removed as the Court addresses the interpretation of the social rights. Indeed, in the words of Prof. Guy Mundlak, “The problem is one of cause and effect. The more social rights are pushed outside the walls of judicial forums due to their inferiority and due to the problem of ambiguity, the more the ambiguity of their meaning will increase. The best way to clarify the ambiguity is by a judicial confrontation with the meaning embedded in those rights. This is not an unknown type of judicial task. It is hard to imagine private law in Israel without ambiguous terms that have been clarified comprehensively in case law, such as reasonableness, good faith and negligence” (Mundlak, at p. 99).

Therefore, the very fact that we are dealing with the right to dignity, which encompasses the right to a minimum dignified subsistence, does not justify applying a different judicial model for constitutional review. We will therefore turn to analysis of the alleged violation of the right to a minimum dignified subsistence, in an orderly manner.

Violation of the right

32.In the first stage of the constitutional examination that is customary in our legal system, as stated, we must examine whether section 9A(b) of the Income Support Law violates the right to dignity and, in its framework, the right to a minimum dignified subsistence. The answer to that question requires us to interpret and determine the scope of the constitutional right to dignity in the context adjudicated by us and the provision that allegedly violates that right. We will begin, therefore, with the interpretation of the right to dignity; we will move on to interpretation of the provisions of section 9A(b); and, finally, we will examine the relationship between the right to dignity and the Income Support Law, and its ramifications for analysis of the violation of the right.

On human dignity and the right to a minimum subsistence

33.The right to human dignity is established in Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law). The Basic Law establishes, as stated, both the prohibition on violating the right to dignity and the obligation to protect it:

Purpose

1.A

The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

Preservation of life, body and dignity

2.There shall be no violation of the life, body or dignity of any person as such.

…

Protection of life, body and dignity

4.All persons are entitled to protection of their life, body and dignity.

…

Application

11.All governmental authorities are bound to respect the rights under this Basic Law.

A person’s right to dignity under the Law is a right with two facets: a negative facet, which proclaims that violation of the right must be prevented, and a positive facet, which imposes an obligation on the government authorities to protect the right. In the words of President A. Barak, "The two aspects, the negative (passive) aspect and the positive (active) aspect are different parts of the whole, which is the constitutional right to dignity. They both derive from the interpretation of the right to dignity, as enshrined in the Basic Law. Neither aspect takes precedence over the other” (the Commitment Society Case, at p.749).

34.A series of judgments has already established that human dignity, in the constitutional sense, also encompasses and includes the right to a minimum dignified subsistence. This Court held that human dignity includes the right to a minimum dignified subsistence, both in cases that raised the negative aspects of the right and in cases that raised the positive aspects of the right (cf.: HCJ 161/94 Atari v. State of Israel (unpublished, March 1, 1994); LCA 4905/98 Yosef Gamzu v. Na’ama Yishayahu, IsrSC 55 (3) 360, 375-376 (2001); LCA 5368/01 Pinchas Yehuda v. Attorney Yosef Teshuva, Receiver, IsrSC 58 (1) 214 (2003); HCJ 4128/02 Adam, Teva Va -Din – Israel Union for Environmental Defense v. Prime Minister of Israel, et al., IsrSC 58 (3) 503, 518 (2004); HCJ 5578/02 Rachel Manor et al. v. Minister of Finance et al., IsrSC 59 (1) 729, 736 (2004) (hereinafter: the Manor Case) AAA 3829/04 Yisrael Twito, Chairman, Mikol Halev Association v. Jerusalem Municipality, IsrSC 59 (4) 769, 779 (2004); HCJ 1384/04 BetZedek Association – American-Israeli Center for Promoting Justice in Israel. Minister of Interior (unpublished, March 14, 2005); HCJ 4634/04 Physicians for Human Rights v. Minister of Internal Security, paragraph 12 of the decision of Justice A. Procaccia (not yet published, February 12, 2007); the Commitment Society Case, at p. 482-484). Indeed, the extension of human dignity to the right to a minimum dignified subsistence is now understood and this position has already been established in our case law (see: A. Barak, Legal Interpretation – Constitutional Interpretation, 423 (1994) (hereinafter: Barak, Constitutional Interpretation): "Human dignity assumes a minimum of human subsistence… This concept is shared by all models with regard to human dignity").

35.The right to a minimum dignified subsistence is at the heart and core of human dignity. A life of starvation and homelessness and a constant search for help are not a life of dignity. A minimum dignified subsistence is a condition not only for preserving and protecting human dignity, but also for exercising other human rights. There is nothing poetic about living in poverty and deprivation. Without minimal material conditions, a person cannot create, aspire, make his own choices and exercise his liberties. In the fine words of Justice Y. Zamir, “Human rights must not be just for those who have enough. Every person must have enough, so that he or she can enjoy human rights, in actuality and not just by law." (HCJ 164/97 Conterm Ltd. v. Ministry of Finance, Customs and VAT Division, et al., IsrSC 52 (1) 289, 340 (1998); and see also Gabizon at p. 45: "A person who struggles to attain minimal subsistence conditions does not have the real freedom to strive to achieve any goals").

36.In their arguments, the Respondents claimed that the right to a minimum dignified subsistence is a right derived from the right to human dignity and, as such, it does not enjoy the scope of protection given to the right to human dignity as a right that is expressly enumerated in the Basic Law. I believe that the right to a minimum dignified subsistence should not be deemed a right that is derived from the right to human dignity but, rather, should be viewed as a right that constitutes a genuine expression of human dignity. The right to a minimum dignified subsistence is not, as argued by the Respondents, a right that expands the content and scope of the constitutional right to dignity but, rather, it is rooted very deeply in the core of the constitutional right to dignity (see the analogy used by Judith Karp: "The value ‘human dignity’ can be viewed as being surrounded by circles of content. As though the legislature had cast the ‘human dignity’ stone into the smooth waters of the lake of the Basic Law, and when it touched the water it created ever-widening circles that strike one another on their margins and are filled by one another, and each circle is the result of another, and they flow into one another and move away from their source until they fade away.” Judith Karp, "Questions on Human Dignity According to the Basic Law: Human Dignity and Liberty,” Mishpatim 25 129, 136 (1995); see also Hillel Sommer, The Non-Enumerated Rights: on the Scope of the Constitutional Revolution, Mishpatim25 257, 329-330 (5757)). Can the right to dignity exist without respecting a person's right to minimal conditions of human subsistence? Doesn’t a person’s right to not live in hunger, without a home and without the ability to cover himself with clothing express his human dignity? Indeed, among the many meanings that can be given to the concept "human dignity," particularly when emphasis is placed on the word "human," the most fundamental of them is the one pertaining to the unique dignity of man, to the most essential conditions of his survival. If we have defined the fundamentals of the right to dignity metaphorically, as reliant on the fact that man was created in God’s image, it appears that that image is harmed, first and foremost, if he is reduced to abject, humiliating poverty.

What is the connection between the Income Support Law and the right to a minimum dignified subsistence?

37.What is the connection between the right to a minimum dignified subsistence and the Income Support Law, whose purposes and structure we discussed above? As I noted above, the right to a minimum dignified subsistence is inherent in the core of human dignity. The obligation of the government authorities is-à- vis the right is twofold, as indicated in sections 2 and 4 of the Basic Law, which state that they must preserve it from violation and ensure that it is protected. This obligation can be fulfilled in many ways. It is implemented by a variety of means, systems and arrangements in Israeli law – all closely connected to the resources available to the state and the manner in which they are allocated. Protection of the right is woven into the welfare legislation like a golden thread, inter alia, by providing state health insurance to every resident, free education, and providing public housing to the needy under certain conditions. The income support benefit provided under the Law is only one of the mechanisms that ensure protection of a person's right to a minimum dignified subsistence, however, it has a pivotal position in protecting the right. As an income-replacing benefit, it is designed to enable those who are eligible to receive it to procure what they need for their basic and minimal subsistence. In the absence of another means, such as purchase coupons or direct supply of vital commodities, it has no substitute. The importance of this is so great that I doubt whether it does not have ramifications for the protection and preservation of other human rights, such as the right to life (see: Yosef Katan, The Problem of Poverty: Causes, Components and Coping Mechanisms, Review of Professional Literature 7, 11-12, 45, 75 (2002); Lia Levin, A "coalition of exclusion": Non take-up of social security benefits among people living in extreme poverty. Access to social justice in Israel 225, 225 [sic] (2009)).

38.In view of the network of welfare mechanisms available in Israel and the relative place of the Income Support Law in those mechanisms, it can be established that the Income Support Law is designed to complete the protection of the right to a minimum dignified subsistence (cf.: the words of President A. Barak in the Commitment Society Case, at p. 483-484). The law is designed to ensure the residents of Israel with the minimum resources they require to satisfy their vital needs when they are unable to do so themselves. The purpose of the law is, therefore, to ensure a minimum dignified subsistence. There is no debate about this purpose among the Respondents and the Petitioners. While the Income Support Law is not the only means utilized by the state for exercising the right to a minimum dignified subsistence, it is one of the main means for protecting it. The importance of the income support benefit in ensuring a minimum dignified subsistence is the basic reference point for deciding the petition before us.

Does section 9A(b) violate the constitutional right to a minimum dignified subsistence?

39.Section 9A(b) relies on the test established in section 9A(5) of the Law, whereby a vehicle is property that must be calculated in the income test of a person applying for a benefit. This income, by its nature, is not considered income in the regular sense of the word, because it does not refer to income such as income generated from work or from income-yielding property. Income from a vehicle is conceptual income. It is based precisely on the concept of the expense that is required for the purpose of maintaining and using a vehicle and that expense is calculated as though it was part of the income of the benefit applicant – under the presumption that the person must have sufficient income to finance the expense.

However, section 9A(b) establishes a fiction. The fiction lies in the incontrovertible presumption that the amount of income "produced" from the vehicle is equal to at least the amount of the benefit. The meaning of this is clear: the very ownership or use of a vehicle is sufficient to lead to denial of the benefit. In such a case, the benefit applicant is held to be someone whose income attests to the fact that he does not require the safety net provided by the state.

40.The question asked in the petitions before us is whether this arrangement violates the right to a minimum dignified subsistence. The answer to that is affirmative. The arrangement violates the right to a minimum dignified subsistence because it establishes a categorical rule whereby anyone who owns or uses a vehicle will not be eligible for the income support benefit, with no connection to the individual question of whether that same person does, indeed, has income in an amount that will ensure his ability to exercise his right to a minimum dignified subsistence. Hence, it is clear that when the income support benefit is denied to someone who needs it for the purpose of minimal subsistence, the right to a minimum dignified subsistence is violated.

41.No one disputes the fact that ownership of a vehicle or use of a vehicle may help in estimating a person's income. The Petitioners did not dispute the assertion in the Law that a vehicle is property from which income is generated, and justifiably so. A vehicle is, indeed, a possible means for estimating income. Accordingly, the ownership or use of the vehicle has a certain economic significance, which can be estimated and quantified for the purpose of including it in the test of a person's income. The problem that lies in the conclusive presumption is not actually the need for ownership or use of a vehicle as a component in estimating a person's income but, rather, in the fact that it becomes the only component in determining the estimated income. The ownership or use of a vehicle – because they are held to be income of at least the same amount as the benefit – obviate the need to examine a person's economic state more thoroughly. The meaning is, therefore, that ownership or use of a vehicle become threshold conditions for eligibility for the benefit. That threshold condition is unequivocal and incontrovertible. It is sufficient to prove ownership of a vehicle or regular use of another person's vehicle in order to deny the benefit.

42.This result violates the right to a minimum dignified subsistence for all the benefit applicants who, in actuality, do not have sufficient income for minimal subsistence. That is the situation, for example, in cases in which the benefit applicant does not have a vehicle of his own but makes some use of the vehicle of another person – a relative or acquaintance. In such a situation, for the most part, the benefit applicant does not bear the regular payments for maintaining the vehicle (such as payment of the insurance and vehicle registration), nor does he enjoy the potential income that exists by the very ownership of a vehicle. Where a person also uses the vehicle of another person and, at most, pays for token gasoline expenses, what is the justification for ascribing to him the whole gamut of costs borne by the owner of the vehicle? According to the Respondents, even in a case of use of a vehicle, those users should be deemed to have been given the value of the ownership in money. That claim is dubious, in my opinion. After all, it cannot be said that the possibility given to a person of using a vehicle that is owned by another attests necessarily to the fact that the vehicle owner has the ability to assist the benefit recipient in other ways. More than once, a person will enable another person to make use of property (including a vehicle) in their possession because, at that time, he does not need it for his own purposes, even if he is unable to give the other person direct assistance – financial or otherwise. In a situation in which a person makes use of the vehicle of a relative or acquaintance when they do not need it, without the vehicle being placed at his disposal for him to use on a regular basis, we cannot conclude that those who assist him necessarily possess the means to give that person alternative income equivalent in value to the vehicle, with its various expenses. At most, the family assistance can be deemed to be equivalent in value to income in the amount of the value of the actual use made of the vehicle which, in itself, may be significantly less than the value of the minimum income.

As such, it emerges that the provisions of section 9A(b) of the Law may lead to denying the benefits to individuals who need it and do not have alternative source of income, nor the ability to obtain such sources from others. The fact that section 9A(b) of the Law ostensibly enables any use of a vehicle to deny eligibility for the benefit – and the National Labor court judgment interpreted this to mean that using a vehicle only twice a week will also lead to that result – strengthens that apprehension.

43.The situation of the petitioners in HCJ 3282/05 demonstrates the problem with the conclusive presumption and the violation that it causes. Most of the Petitioners did not own vehicles but made use of a vehicle that was made available to them by relatives or friends. Petitioner 1, for example, was denied the benefit after it was proven that she used her father's vehicle three times a month, and no more. After cancellation of the benefit, the Petitioner was left to support herself on NIS 1,800 a month from child support and child allowances. The benefit of Petitioner 2 was canceled after it transpired that she made regular use of a vehicle owned by her mother, notwithstanding the fact that she lived in a remote town without any public transportation. No effort was made to quantify the value of her use of the vehicle, in order to examine whether she was, indeed, given assistance in the amount of the benefit. Petitioner 3 was forced to move to another place of residence so that she would not have to make use of a vehicle, and only then was she found eligible for the benefit. All the Petitioners argued that they did not have alternative sources of income and they did not bear the expenses of maintaining the vehicle, except for extremely limited gasoline expenses.

Among them all, it seems that the case of Petitioner 5 demonstrates, more than anything, the main difficulty inherent in the conclusive presumption and the negative results that its implementation may generate. Petitioner 5 worked for her livelihood and was found eligible for the income supplement benefit because her income from work was not sufficient. She used the vehicle to reach her job in various prisons in the North that are not accessible by public transportation. As long as she used her father's vehicle, her benefit was not canceled because of her father's disability. When her father sold his vehicle, one of her acquaintances enabled her to use his vehicle and this led to cancellation of the benefit. As a result, she was forced to resign from her job and submitted an application for a full income support benefit (instead of the income supplement that she had received beforehand). The result of canceling the benefit that was paid to Petitioner 5 was, therefore, not only a blow to her ability to stand on her own two feet, but also a violation of one of the purposes of the Income Support Law – encouraging people to go out to work.

44.In the nature of things, we must assume that the aforementioned violation of the right to a minimum dignified subsistence does not extend to all the benefit applicants. Indeed, there may be benefit applicants who have sufficient income to supply their own basic needs and, therefore, canceling the benefit as a result of the conclusive presumption does not harm their ability to live with dignity. However, it can harm anyone to whom the aforementioned presumption does not apply and the use of a vehicle does not prove that he is not in need of income support. As a result, the conclusive presumption established in section 9A(b) violates the right to a minimum dignified subsistence with regard to some of the benefit applicants, even if it does not violate the rights of all of them. This is a real and significant violation. Considering the pivotal place of the income support benefit in the network of welfare mechanisms in Israel, denying the benefit means denying the last safety net for those who need it the most.

45.This harsh result is exacerbated by the fact that the conclusive presumption established in section 9A(b) is contrary to the customary manner of examining eligibility for an income support benefit in Israel – by means of an individual examination that is conducted for each and every benefit applicant, the purpose of which is to assess the extent of their need for the benefit. As part of the individual test, the NII examines, inter alia, the age of the benefit applicant, his income, his assets and the various payments made to him by the state. In the individual examination, the family unit to which the benefit applicant belongs is also examined and NII representatives examine the applicant's ability and desire to integrate into the job market. All these are designed to present the NII with a detailed picture that is as accurate as possible regarding the applicant's status, to ensure that the benefit is given to those who really need it. To enable the NII to stay abreast of the situation, section 20 of the Law also instructs the benefit applicants and recipients to notify the NII in writing within three days of any change that occurs in their family status and income, and any other change that might affect their eligibility for the benefit or the rate of the benefit.

However, contrary to the individual examination of a person's income, the presumption set forth in section 9A(b) creates a categorical rule whereby the ownership or use of a vehicle is equivalent to income in the amount of the benefit. Irrespective of a person's actual income, from the moment it is proven that he owns or uses a vehicle, the NII deems him someone who has a sufficiently high income and, therefore, he does not require assistance. In practice, the ownership or use of a vehicle obviate the need for the other income tests established in the Law, and there is no real need for an individual examination of the benefit applicant and for examining his true economic ability, because, in any case, the same fiction that is inherent in section 9A(b) cannot be refuted by it.

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