Social and economic rights as a result of constitutional revolution of Israel - Реферат

Instead, he chose to specifically address the constitutional argument raised by the applicants. While acknowledging the social importance of education, Or held that the constitutional claim must be supported by the language of a valid constitutional text. However, Basic Law: Human Dignity and Liberty contains no explicit reference to the right of education, and there was, in his view, a body of authority that it should not be construed as containing one. Two other potential legal sources supportive of the right to education identified by the applicants - the 1948 Israeli Declaration of Independence and the 1989 Convention on the Rights of the Child (CRC) - have also been rejected by Or has having no conclusive legal status (the Declaration) or no status whatsoever under domestic law (CRC). Or also opined that the language of both instruments does not entail an obligation upon the State to undertake specific funding obligations, especially not with regard to pre-primary education. It is not clear to what degree Justice Or’s position is representative of the views of the full Court. The two other Judges who set on the bench in GILAT supported Or’s position on the outcome of the case. Still, we submit that Or’s opinion in GILAT symbolizes the failure of the Supreme Court throughout the 1990s to effectively promote the constitutional status of ESR. It demonstrates the Court’s reluctance to incorporate ESR into Basic Law: Human Dignity and Liberty, while it engaged, at the same time, in a parallel project of incorporating a number of non-enumerated civil and political rights into the same text. Further, the highly formalistic stance towards the incorporation of ESR into Israeli constitutional law underscores the Court’s conservatism when it comes to addressing the status of ESR. This is illustrated by Or’s resistance to use of the Declaration of Independence and international law (including treaties to which Israel is party) as legitimate constitutional law sources - even not as interpretive aids. Indeed, in recent years a string of government-sponsored laws cutting back social expenditures has passed in the Knesset, without the restraining effect of a possible constitutional challenge. The shortcomings of the present constitutional situation are demonstrated in the 2004 Adam, Teva Va-Din case. In that case the Supreme Court reviewed a challenge to the lawfulness of a 2002 amendment to the Planning and Building Law, which released the government from the need to commission environmental impact assessment surveys in respect to certain national infrastructure projects. The new legislation also introduced strict deadlines for the submission of public objections to such projects on environmental grounds. In rejecting the petition, President Barak held that the constitutional threshold has not been met with regard to any of the constitutional rights which the petitioner argued would be adversely affected by the harm to the environment that might ensue from the new planning and zoning procedures - the right to life, the right to body integrity, the right to property. Both laws reduce child allowance, unemployment and old age benefits, income assurance and cut down government health expenses. It is perhaps instructive that President Barak addresses the right to life and the right human dignity and the right to property. The end result is that a piece of legislation that President Barak himself characterized as inadequate, and which has the potential to render meaningless protections afforded by many ESR (the right to health, the right to adequate standard of living and the right to a satisfactory environment itself) has survived a constitutional challenge, by virtue of the exclusion of ESR from constitutional law. It is doubtful whether the same result could have been reached by the Court with respect to legislation compromising civil and political rights (e.g, legislation authorizing lower level of evidence for disqualification of political parties or severe time restriction for submission of appeals in certain criminal cases). This seriously weakens the positions of individuals and NGOs committed to the promotion of economic and social causes. For example, numerous petitions seeking to introduce new drugs and treatments into the ‘national health basket’ (which is subsidized by the State) have failed by reason of inadequate constitutional grounds.