The debate on the Tal Law is over the legal existence of a right to equality.
By DAN IZENBERGyeshiva study 88(photo credit: )
The petitioners against the Tal Law branded the legislation unconstitutional and demanded that the High Court reject it on the grounds that it discriminates against the non-haredi community and therefore treats it unequally.
The state argued that the Basic Law: Human Dignity and Freedom does not include equality among the human rights it guarantees.
The question of whether Israeli citizens and residents are guaranteed the right to equality in accordance with the basic law has been raised in the past, but the court has not handed down a definitive ruling until now.
The reason for the confusion has to do with the fact that the right to equality is not expressly stated in the Basic Law: Human Dignity and Freedom. The question is whether the right is implied.
In dealing with this issue, Supreme Court President Aharon Barak first addressed the concept of human dignity. Barak wrote that there are three basic approaches in legal literature to the definition of human dignity - the narrow approach, the broad approach and the middle way. The court had already accepted the middle way as its guiding principle, he wrote.
According to this approach, human dignity involves more than just protection from physical injury or humiliation. It is based on the "worthiness of each individual and the sanctity of life and human freedom."
This definition means that human dignity includes, as a constitutional right, more than the few elements specifically included in the law, even though it does not include every right one can think of. Now the question is whether equality is included among those elements of human dignity that are defined as constitutional rights.
The most prominent previous ruling dealing with this question was the case of Alice Miller, who wanted to become an IAF pilot. When she was rejected because of her sex, she petitioned the High Court on the grounds of discrimination and her right to equal treatment with men.
Miller won, but in the ruling, former justice Dalia Dorner explained that she was treating the concept of equality in its most elementary form. Miller had been humiliated by her rejection and the Basic Law: Human Freedom and Dignity clearly protected every individual from humiliation.
But Barak wrote that Dorner had adopted the narrow definition of "equality," whereas he preferred, here too, to adopt the middle way. Barak quoted the late justice Haim Cohn, who wrote that "the dignity that cannot be injured and deserves protection is not just a person's reputation, but his status as an equal among equals. Hurting his dignity does not mean only slandering him or insulting him, but also discrimination, suppression, bias and racist and humiliating treatment."
According to this definition, wrote Barak, "the Tal Law clearly violated the right to equality and therefore the Basic Law: Human Dignity and Freedom in the sense that the law expresses the autonomy of the individual will, freedom of choice and freedom of action of the human being as a free person. It violates that group of rights and values, whose protection is required to uphold the human dignity of each member of the majority, who are obliged to serve in the army. While the majority of members of society are obliged to serve a full and prolonged military service, often at personal risk, the yeshiva students are offered the chance to be relieved of it. This situation damages the most basic and elementary freedom there is among members of the same society."
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