Case Number
HCJ 10662/04
Date Decided
2-28-2012
Decision Type
Original
Document Type
Full Opinion
Abstract
This Petition challenges the constitutionality of section 9A(b) of the Income Guarantee Act. The main claim the Petitions raise is that section 9A(b) establishes an absolute presumption whereby those who own or have access to the use of a vehicle shall be seen as having an income at the amount of the benefit, and thus their right to the benefit of income guarantee is revoked. It was argued that this presumption unconstitutionally infringes the right to minimal dignified human existence.
The Supreme Court sitting as a High Court of Justice granted the Petitions and declared the unconstitutionality of section 9A(b) of the Income Guarantee Act.
President Beinisch:
The central purpose of the Income Guarantee Act is to support residents of the country who find themselves in situations where they cannot provide themselves with their basic needs. The point of departure embodied in the Act is that the primary way to accomplish and ensure a dignified human existence is through work. This assumption is reflected in two complementary aspects of the Act. First, income guarantee benefits are granted only to those who cannot support themselves on their own. Second, the purpose of the benefit is to sustain a person in the intermediate time period when they have found themselves without resources, but not to prevent them to once again be integrated into the workforce. The Act aspires to ensure that the benefit is a temporary, rather than permanent, alternative to employment.
These principles lead to the two main tests for establishing one’s right to the benefit: the income test and the employment test. The income test sets guidelines to quantify and evaluate the income of the person requesting the benefit. Its purpose is to examine whether this person has satisfactory income in order to meet basic life needs. The employment test conditions receiving benefits upon making every possible effort to find employment that provides an income that is higher than the benefit amount. The person requesting the benefit must lack satisfactory work or be unable to work, and to the extent the person is able to work, they must be willing to accept any work that is suggested by the Employment Services and which fits their health and fitness. In addition to these two substantive tests the Act also sets residency and age requirements.
Based on the purposes of the Income Guarantee Act regulations were put in place to define the implications of owning or using a vehicle for purposes of the right to the benefit. From the provisions as a whole it appears that a person seeking the benefit who owns or uses a vehicle and their circumstances are not covered by one of the exception established in the Act, is denied income guarantee benefits. In other words, those who own or use a vehicle are viewed as though they have an income at the amount of the benefit, and thus their right to the benefit is revoked. The issue is whether the above arrangement infringes upon a constitutional right, and if so – whether this infringement meets the requirements of the Limitations Clause. This central issue leads to “derivative” issues. A first of those is the question of what model of judicial review should be applied to examining the constitutionality of a statute that is claimed to have violated a socioeconomic right.
The constitutional analysis that has been acceptable in our system since the enactment of the Basic Laws in 1992, is separated into three primary steps. In the first step the question of the infringement is examined, where the Court examines whether the relevant statute infringes upon a right or rights that are enshrined in the Basic Laws. Should the answer be in the affirmative, the constitutional analysis moves onto the next step: examining the constitutionality of the infringement. This analysis is done by applying the requirements set in the Limitations Clause. An infringement that meets the requirements of the Limitations Clause is a permissible infringement. To the extent that it is found that the infringement does not meet the requirements of the Limitations Clause, it is the turn of the third step – the step of determining a remedy. In this step the Court considers the implications of unconstitutionality. This analytical separation has become a foundation of Israeli constitutional law. As opposed to the Respondents’ argument, the mere fact that we are concerned with the right to minimal dignified human existence does not justify a different judicial model of constitutional review.
According to the currently common approach, there is no foundation for clearly and strictly distinguishing between socioeconomic rights and political rights on the basis of the positive or negative duties of the state or on the basis of the issue of resource allocation. The seeming differences between the rights are primarily the product of historical evolution rather than of actual differences between the rights themselves. Indeed, “act” and “fail to act”, side by side, are an integral part of protecting all human rights, whatever they nature. But to the extent that there is a certain distinction between civil or political rights to socioeconomic rights, it still does not justify diverging from the acceptable model of review. Favoring the Respondents’ position may result in applying a different constitutional model in for the purposes of two different infringements of the very same right. Such selective application cannot stand on the artificial distinction between the rights. It has no source in the language of the Basic Rights, nor in the constitutional legal tradition of our system.
The right to minimal dignified human existence is at the core and the heart of human dignity. A minimal dignified human existence is a condition not only for protecting and preserving human dignity, but also for enjoying other human rights. As opposed to the Respondents’ arguments, the right to minimal dignified human existence ought not be seen as deriving from the right to human dignity, but it must be seen as the right that constitutes the real expression of human dignity. Of the range of meanings that can be attached to the term “human dignity” the most profound is that which goes to the intrinsic dignity of a person, to the minimal necessary conditions for human existence and survival. The income guarantee benefit granted under the Act is but one of the mechanisms that guarantee the protection of one’s right to a dignified existence, but it still holds a central place in protecting this right. It should be clarified that the point of departure is that the State has the duty to establish what are minimal conditions of existence and that the entirety of the welfare arrangements granted in Israel must satisfy the “cart” of conditions necessary for a minimal dignified existence. In this “cart” the income guarantee benefit takes central stage, and thus, revoking it leads inherently to an infringement of the right to a dignified human existence.
Section 9A(b) sets a fiction. The fiction is rooted in the presumption, which cannot be rebutted, that the amount of income “produced” by the vehicle is at least equal to the amount of the benefit. Therefore, the ownership or use of the vehicle alone is sufficient to lead to the benefit being revoked. This arrangement infringes upon the right to a dignified human existence because it sets a categorical rule that anyone who owns or uses a vehicle would not be entitled to the income guarantee benefit, and this regardless of the individual issue of whether such a person actually does have an income that could guarantee their right to a minimal dignified human existence. It should be emphasized that the difficulty of the absolute presumption is not a result of the mere need to own or use a vehicle as a component of assessing one’s income, but instead a result of the fact that this component becomes the exclusive element in assessing the income. The difficulty is exacerbated by the fact that the absolute presumption established in section 9A(b) conflicts with the manner in which it is acceptable to examine the right to an income guarantee benefit in Israel – through an individual test whose purpose is to assess the extent of the need for the benefit.
Thus section 9A(b) infringes upon the right to a minimal dignified human existence. Does this infringement pass muster under the tests of the Limitations Clause? Indeed it seems that this section meets the requirement for a worthy purpose. Preventing abuse of the state support and welfare system and the attempt to ensure that state support is provided only to those who are most in need of it are worthy social ends. And yet, it must be found that the infringement embodied in section 9A(b) is disproportionate. Indeed, the provisions of section 9A(b) passes the test of the rational connection, although somewhat barely. Still it does not pass the test of the least restrictive alternative. It is possible to point to several reasonable alternatives that could realize the constitutional purpose at the foundation of provision in section 9A(b) while more limitedly, if at all, infringing the constitutional right to minimal dignified existence. For existence, it would have been possible to set a rebuttable presumption.
The case at hand is an example of the challenges in applying blanket arrangements where the right to a particular form of state assistance is revoked. Blanket arrangements, by their very nature, do not consider the individual circumstances of each and every person. Though there are situations where individual examination would not realize the purposes of the legislation. In such circumstances there is no escape but to establish a blanket arrangement. However, this is not such a case. The Legislature was aware, in the Income Guarantee Act, of the importance in establishing an individualized consideration mechanism. This path is suitable for the significance of the relevant right, and the centrality of the income guarantee benefit in protecting the right. And indeed, the mechanism to assess income as established in the Act ensures that a rigorous individual examination of each person seeking the benefit would be performed. Since this is the legislative mandate, and an individualized assessment is performed in any event in order to examine the other components of a person’s income, there is no justification for moving to a blanket arrangement as to the ownership or use of a vehicle in particular.
All of the above is sufficient for a finding that the infringement of the provision in section 9A(b) upon the right to a minimal dignified existence is not proportional. It should still be clarified in terms of the narrow proportionality test that it is difficult to accept that conserving state resources alone outweighs the harm caused to individuals whose right to a minimal dignified human existence is violated. Although such means make the work of welfare services more efficient – blanket arrangements tend to always be simpler to apply and administer compared to individual examinations – however this goal must not be achieved at any cost. “Efficiency” is not the ultimate goal when we are concerned with violating the most fundamental and significant human rights that the State is entrusted with guaranteeing. This is the case generally, and it is the case specifically when examining the income of a person, which is performed in any event on an individual basis.
Finally: section 9A(b) of the Income Guarantee Act must be declared unconstitutional and struck down. The striking down of the section will come into effect in six months.
Justice Naor:
The difficulty results from the fact that section 9A(b) creates an absolute presumption that completely revokes the benefit from owner or users of a vehicle (aside from the exceptions stipulated in the Act). This absolute presumption may violate the most important of all constitutional rights – the right to a minimal dignified existence. This violation must be resolved. The solutions to be south are those which would assess the real circumstances of those requesting the benefit, without using the fictions embodied by absolute presumption, which do not always reflect the situation as it is.
Justice Vogelman:
The right to minimal dignified human existence is at the core of the constitutional right to dignity. The arrangement established in section 9A(b) violates this right in a manner that is not proportional. And yet: this is not to say that the State’s position that owning or using a vehicle may be a reliable indication as to one’s financial circumstance should be rejected. Rather – that setting an all encompassing arrangement by creating an absolute presumption that does not empower the authority to investigate the facts as they are and that restricts a person requesting the benefit from proving that the ownership or use of the vehicle are not tantamount to an income at the amount of the benefit in the special circumstances of one’s case, disproportionately violates the right of some of those who receive the benefit to a minimal dignified human existence.
Justice Arbel:
The methodology of the constitutional analysis applied to socioeconomic rights should be not different than that which is employed to examine other constitutional rights. There is not place to pull back on exercising judicial review on legislation that implicates the right to minimal existence as distinct from other basic rights.
The right to a minimal dignified human existence is rooted deep in the heart of the constitutional right to dignity. The arrangement whereby anyone who owns or uses a vehicle shall not be eligible for income guarantee benefits, regardless of whether they in fact have an income that would ensure their minimal dignified existence, is arbitrary. This is a categorical threshold requirement, which results in a disproportional violation of the minimal dignified existed of the person from whom the benefit is denied.
Indeed, to the extent that we are concerned with realizing the right in a manner that requires a broad and extensive allocation of resources, the need for restraint on the part of the Court is acknowledged. However in cases where the Court faces a disproportional violation of the socioeconomic rights of a particular group, in a manner that undermines the minimal existence conditions of this group, it must intervene despite the restraint to which it usually holds itself. This is the case here.
It must be emphasized that only the regulation of socioeconomic rights in a basic law would lay the proper normative foundation that could afford fundamental constitutional protections to such rights, would make explicit their supremacy and the commitment to respect them, and the sooner; the better.
Justice Hayut:
The right to a minimal dignified human existence is a social right that is included with the most important rights. As Justice Zmir wrote in HCJ Kuntram, it is imperative that no person is hungry so that they may enjoy, effectively and not only theoretical, their human rights.
Justice Rubinstein:
Miminal existence is the essence of the Income Guarantee Act. It represents a proper social approach whereby the public provides a safety net for every person in Israel lest they fall into poverty and hunger. This approach is deeply rooted in generations of Jewish tradition, and the State of Israel – as a Jewish and democratic state – would not be able to properly realize its values in the absence of establishing such a safety net.
Indeed, section 9A(c) details the exceptions designed to soften the relevant absolute presumption. But still – when viewing the cases in the petitions at hand, where people at the most harsh socioeconomic circumstances and where the use of a vehicle does not at all raise them into a position of a minimal dignified existence – it clearly seem they must be entitled to the safety net and revoking their income guarantee is disproportional to the extent that warrants intervention.
And it should be noted, the Court does not by any means come to say that keeping a vehicle shall not be a factor in assessing entitlement. The Court’s position is to ensure a minimal dignified existence through individual assessments, and we are concerned with a situation where there may be an inherent possibility for such assessment.
Even when we are concerned with social and economical rights, there is no place to diminish the stage of constitutional examination as to the balances of setting the scope of the right itself. As was the position of President Barak in the past, considering the public interest must be done within the framework of the requirements of the Limitations Clause. In our case, the public interest was found to be lacking.
Finally, Jewish law is saturated with duties of charity, and this is also of the values of the State of Israel as a Jewish and democratic state, as noted. This gives further force to the reasoning behind this decision.
Justice Joubran:
The right to a minimal dignified existence is a paramount right and it is the cornerstone to one’s right to dignity, at times even more compared to all other rights. It is known that poverty and distress create a vicious cycle from which it is difficult to come out. This is a reality that elicits a sense of isolation and a distance and suffocates hope for a change. Without minimal conditions one cannot exercise their liberty. Without minimal living conditions they cannot conduct completely autonomous and full life and they cannot become a contributing member of their society and their community. Therefore, this reality, of poverty and distress, is often tied to other gaps that divide society and lead to the development of resentment and hostility between those who have plenty and those who have not the most basic needs.
The violation of the right to minimal dignified existence in this case, which results from the absolute presumption established by the Act, compels one to choose between holding a vehicle or using it – even if these do not necessarily indicate that one has sources of income which one has not reported – and receiving the benefit. This infringement is particularly severe in cases where the vehicle serves its owner or user for basic daily needs that are not detailed in the Act’s exceptions. There are many regions around the country where it is impossible to access the grocery store, medical services or educational institutions without a car. In this context, it should be noted, that although a vehicle is not necessarily a basic good that is included in the right to a minimal dignified existence, this right should be considered as imposing a duty upon the state to provide some form of transportation to its residents. This duty, which is the positive aspect of the right to freedom of movement, places a particularly heavy burden where the state wishes to revoke the ability to use a vehicle from residents who have no other form of transportation. Revoking the ability to use a vehicle in such areas is an extremely severe violation.
The section is unconstitutional because it does not meet the test of the least restrictive means. The burden to show that the legislative purpose is realized to a lesser degree were the alternative mechanism be adopted was not met by the Respondents. Having said this, even were the costs of particular assessments to increase, such increase is not expected to be very significant. This because in any event within the current mechanism the state operates a system of personal investigation in order to ensure the lack of use of a vehicle, whose costs are not insignificant. In any case, the Respondents have not even met their burden to demonstrate that the alternative means would realize the legislative purpose with significantly higher costs. Nor does the section pass the narrow proportionality test. The mechanism of income guarantee is one of the last assistance mechanisms in Israel for any person who cannot support themselves. We should exercise double and triple caution where one is denied this mechanism. The harm caused by a person fraudulently receiving a benefit to which they are not entitled is exceedingly smaller than the harm caused by leaving a person without minimal living conditions.
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Judicial Review, Insurance
