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Minority report This afternoon, as a rare, 13-member panel, the High Court of Justice will gather to hear a petition to cancel the law that cuts child allowances for families without army veterans. It will be only the second time in its history that the court gathers all the justices (with an odd number to guarantee a majority vote) - an indication of the dramatic importance of the decision. The petitioners want a June 2002 amendment to the National Insurance Institute law to be canceled. Meanwhile, the amendment has been frozen through temporary injunctions. According to the amendment, child allowances were cut on the basis of military service by parents or siblings. In families in which a parent or sibling did serve, allowanceds were cut by 4 percent. For other families, the child allowances were cut by 24 percent. The petition claims "thus, the law in effect discriminates between children on the basis of the security service of their parents or siblings." Seven petitions went to the High Court on the issue, some from Arab and leftist MKs, and some from organizations like Adalah and the Association for Civil Rights in Israel. At one point, Justice Michel Cheshin complained that he was only seeing organizations, not people, complaining about the law. But the ACRI petition represents people. One is Yom Tov Cohen, a father of two who has a 100 percent disability. The other is Elena Kozlov, a single parent and new immigrant. Even if they wanted to, neither could serve in the army. Thus, ACRI plans to bring not only the classic populations who don't serve in the army - Haredim and Arabs - but the handicapped, new immigrants and single parents, to court, showing how the law is discriminatory. All are harmed by the cut in the child allowance. There's a difference, says ACRI, between the Arabs, whom the state does not want to draft, and the Haredim, who chose not to be drafted (and are compensated in other ways). The cutbacks affect many families in economic distress. According to the petition between 322,000 to 375,000 families are adversely affected by the law. But beyond the social issue, the petition raises a particularly challenging constitutional issue for the court: Does inequality between the children justify annulling the law, as unconstitutional. To answer the question, the justices will have to decide whether equality is a constitutional value included in the Basic Law for Human Dignity and Freedom. A positive answer will give that value a higher status than regular legislation, and allow the cancelation of laws that harm or contradict equality. The Basic Law was passed in 1992 by a coalition that included MKs from religious parties. They conditioned their agreement to the law on the removal of any mention of rights that they believed harmed religious values. One was the right to equality. The religious politicians feared that upgrading that right to the constitutional level would strengthen demands for equality by various sectors such as homosexuals, women, gentiles, and worst of all, as far as the religious parties were concerned, non-Orthodox Jewry. Later, when the Knesset's Constitution, Justice and Law committee was headed by Meretz MK Dedi Zucker, he pushed through an amendment instructing it to be interpreted "in the spirit of the Declaration of the Independence," which includes the value of equality. In any case, even if equality somehow does not fit in with the Jewish character of the state, there is no doubt democracy cannot exist without it, and the justices, in articles and verdicts, have made an effort to include equality as part of the constitutional bill of rights being formed by the Basic Laws - and their precedents. Various interpretations There are three judicial approaches to the issue of equality. Court President Aharon Barak believes that equality is an integral part of "Human Dignity" and therefore is part of the Basic Law. Justice Dalia Dorner takes a narrower view, saying that harm to equality will be considered a violation of the Human Dignity Basic Law only if it causes tangible humiliation. Justice Michel Cheshin takes the narrowest approach: rights not specifically and explicitly mentioned in the Basic Law cannot be added by the courts. Therefore, the court hearings on the child allowance issue is critical. If the court annuls the law, because of harm to equality, it will open two fronts: the first will be legal, expanding the authority of the court to cancel laws because of values that are not specifically mentioned - or even removed - from Basic Laws, the constitutional bill of rights the Knesset has given us, no matter how handicapped the law may be. The second front is political: The petition is a challenge to the politicians and Haredi parties who, if the law is annulled, will be able to say it is proof that the Supreme Court bypasses the Knesset and uses its interpretations of the law to counter the explicit wishes of the legislature. Ironically, of course, the Haredim would benefit from the court annuling the law, because it would eliminate the deep cut in the child allowances. The road to canceling the law is not so simple. First, the petitioners must prove there is inequality and that it was unreasonable and unjustified, in other words, prohibitively discriminatory. Even if the law is not egalitarian, it can be legal if it meets the condition that it it meant for a worthy purpose, and is not excessive. ACRI's lawyers, Sharon Avraham-Weiss and Dan Yakir, argue that the inequality is prohibitive "because children should not be punished for the fault of their parents." According to the lawyers, "children have the right not to be discriminated against because of the deeds or status of their parents ... unlike adults, who mostly behave and express positions out of free choice and are responsible for their actions, children do not have a choice and depend on the decisions of their parents. In that sense, the harm to the child allowances on the basis of their parents' not having served in the army, is an extreme example of unjustifiable discrimination, and the children have the right to be protected from such discrimination. Children should not be required to bear the responsibility - moral, social or legal - for their parents failure to serve in the army, irrespective of the reason their parents did not serve." The state, represented by attorneys Osnat Mandel and Hani Ofek, claim the cutbacks have a worthy purpose: shrinking the deficit and improving conditions for those who serve in the army. Those are the kinds of decisions about values the state has the right to make, within the context of the law, to give benefits to those who serve in the army. ACRI's lawyers do not dispute the first argument about the budget, but they believe that benefits for army veterans belong in legislation for demobilized soldiers, and not in the child allowance laws. In general, the state and the petitioners are divided over issues that combine semantics and essence. The state claims the parents are the beneficiaries of the child allowances, while the petitioners claim it's the children who are the beneficiaries, and therefore those who are damaged by the cutbacks. The state says the law is meant to benefit the demobilized soldiers, the petitioners say the law is meant to harm the children of families that did not serve in the army. Unreasonable cut A key question is whether the cutback in the child allowances was reasonable and measured. Is a 20 percent gap between families whose allowances are cut 4 percent and those whose allowance is cut 24 percent, a tolerable government policy that the court would prefer not to intervene in? Originally, the proposed cut in allowances was 70 percent, but Attorney General Elyakim Rubinstein warned Finance Minister Silvan Shalom that was such a huge gap, it would be impossible to defend in court. "Since the reduction specifically harmed defined populations, it is is a blow to human dignity, according to the narrow definitIon [Dorner's - M.G.]," said Rubinstein in his letter to Shalom. "The inequality between veterans and non-veterans is so great, and the link between service and the kind of benefit is so great, that it will be impossible to defend the constitutionality of the proposed legislation," said Rubinstein about the original 70 percent cut. Now the difference is less, and the petitioners have a left a back door for the court, which does not like overturning laws. They argue the actual law authorizing the cutback was so hastily promulgated, with so many shortcuts through the legislative system, that in effect it is a regulation, an administrative order, and not a law. By Moshe Gorali