Right to Dignity

Eyal Zanberg, the deputy Legal Advisor to the Constitution, Law and Justice Committee, began the meeting by stating that the term “dignity” is both broad and ambiguous. The question to be discussed was whether the constitution should define the term clearly, or leave it to the courts to decide. He also noted that “dignity” overlapped many other rights within the Constitution.

Dr. Hillel Sommer, the Political Rights advisor to the Committee, of the Interdisciplinary Centre, Herzliyya, said that there exists a broad consensus that dignity constitutes a right, but that there was no consensus regarding the court’s recent interpretations. The right to dignity, he noted, tends to be given extra weight in countries where it is central to the constitution. Therefore, the tern “dignity” should not be broadly defined, as the question of its definition will end up being the key to many court decisions.

Dr. Sommer proposed using the term “inherent dignity”, to differentiate between the minimal dignity that every human being is entitled to, and honour. Every person is entitled to basic minimal sustenance and dignity.

Eyal Zandberg asserted that to date, the court has used the term “dignity” to interpret and make choices between competing rights. Committee Chairman MK Michael Eitan (Likud) noted that at present, the definition of the term “dignity” is separated into many categories. Therefore, he asked, why is the broad concept of “dignity” still necessary? He proposed the term “dignity” be replaced with the term “autonomy”. Dr. Sommer argued that a change to “autonomy” didn’t solve the problem of over-broadness.

Eyal Zanberg argued that the term “autonomy” did not successfully cover the concept of “dignity”, as dignity is something inherent in every individual and affects how they are treated by others. MK Eitan replied that he was not concerned with how others related to him, as an abstract concept. All he cared about was preventing others from harming his rights. That is why he preferred to speak of “autonomy”.

Yehudit Karp believed that the starting point should be the international treaties on dignity and human rights. She asked whether the various individual rights should be defined in order to achieve universal human dignity, or whether the term “human dignity” should be used, hoping that it ensures the various specific rights. She believed that human dignity does not exist in a vacuum, but instead equality with others constitutes an integral principle of human dignity. Therefore, the term cannot be removed from the social context. A person’s self-image, she argued, constitutes dignity, and is directly relative to their social standing. Dignity, therefore, should be a right in the constitution, not just a goal. The court should be empowered and encouraged to use “dignity” both as a tool for interpretation, and as a stand-alone right.

MK Eliezer Cohen (National Union) stated that the more recent the constitution, the more detailed regarding what constitutes “dignity”.

Dr. Sommer believed that every person has a basic right to sustenance, included in a conception of “dignity”, and apart from other social rights. Chairman Eitan disagreed, believing that the topic should be covered completely by social rights, even though it was related to dignity. He argued that social rights were relative to society as a whole - for instance, minimum wage is set relative to average wage – and not derived from the inherent value and dignity of man. Therefore, they should be covered separately.

Dr. Sommer argued that, distinct from social relativity, there exist basic and fundamental rights to minimal goods. MK Eitan countered glibly that someone’s dignity would not be satisfactorily fulfilled if they had solely a tent and a jug of water, but lived next door to a millionaire.

Dr. Sommer differentiated between these two rights: social rights and basic, minimal sustenance. Michael Eitan disagreed, believing the former to be a fundamental part of the latter. Dr. Sommer noted that basic minimal sustenance is currently guaranteed by the courts, whilst social rights are not protected by judicial rulings. He quoted High Court Justice Barak: “Bread. Water. And perhaps vegetables.”

MK Eitan continued to argue that dignity constituted a relative concept. It was impossible for everyone to enjoy identical lifestyles and luxuries, but there must be proportionality between people of different socio-economic levels. He noted that this point-of-view was not based on law, but politics.

Eyal Zandberg reiterated that the current Basic Law does not ensure this minimisation of socio-economic disparity. Chairman Eitan stated that he believed this broader view of “dignity” must be protected, and that the ensuing judicial review should be more limited.

Yossi Cohen interjected, saying that the committee should not be trying to solve social issues with either legislation or the constitution, as this cannot be accomplished legislatively. MK Eitan replied that progressive taxes constituted just such an attempt. Israel, he claimed, is plagued by social inequality, and the tax system acts to redress the balance.

Zanberg noted that by deleting an explicit and broad reference to the “Right to Dignity”, Israel would be the first country to write a new constitution, and negate a right that existed prior to its ratification. MK Eitan argued that as the Basic Law regarding dignity had been terribly misused by lawyers (even being cited, for example, in landlord-tenant disputes), its deletion might be necessary. Zanberg replied that misuse itself is not sufficient reason to exclude the right from the constitution. Chairman Eitan countered that the Basic Law had been misused not by lawyers exclusively, but by the court as well. Israel would not be the only democracy which did not specify a broad “right to dignity” in its Constitution.

Zangerg said that there existed an alternative to either including only a broad right, or specifying particular rights. The Constitution instead could specify particular rights as a closed list, and state explicitly that they are considered the deconstructed elements of “human dignity”. Thus, the concept of “human dignity” itself could remain a protected value. He suggested granting broad rights to dignity, and specifying that certain rights are included. He proposed, however, that this specification would not constitute an exhaustive list.

MK Eitan acknowledged that he was willing to mention dignity as the basic value for all rights in the Constitution, but that he was not willing to give a broad definition without knowing what the consequences (both morally and legislatively) would be. He continued the he was willing to specify rights that placed positive and socially-relative obligations upon society, but noted that the constitution must be able to deal with the uncertainties of the future. Therefore, it was a further question of whether these rights should be included in the Constitution, or left to ordinary legislation.

Sommer questioned whether the court should have the authority to void laws on the basis of “dignity” alone. Zanberg asked whether this was rooted in a fear of judicial activism. Dalit Dror (Justice Ministry) argued that judicial activism would be limited by a complete constitution. MK Eitan countered that judicial activism could not be limited if “dignity” were a broad, undefined right.

Yael Gosky asked what defence individuals would have against laws that harm their autonomy, should the constitution have no reference to a broad Right to Dignity. Dr. Sommer interjected that every law harms individual autonomy. Zanberg responded that although the boundary is unclear, this does not imply that there is no area that really constitutes human dignity.

Dr. Sommer and Chairman Eitan agreed that every law must be judged through the filter of the limitation clause. The first filter, they argued, should be that of the elected political body. The domain of Human Dignity should be decided in the Knesset, not in the courts. MK Eitan added that, in any case, there are certain principles which are above any written constitution.

Dalit Dror asked MK Eitan whether he would be willing to write “personal autonomy” within the constitution. On replying in the affirmative, he was reminded by Zanberg that “personal autonomy” would be far more problematic, in that it could potentially be interpreted even more broadly. Dr. Sommer argued that this could render virtually any law unconstitutional. Eyal Zandberg noted that, in Israeli and international judicial practice, the right to “dignity” or “autonomy” had never been interpreted such that it invalidated most laws.

Dr. Sommer said that, historically, explicit references to slavery had disappeared from modern Constitutions.

Considering Israel’s present centrality in human trafficking for prostitution, there exists regular legislation on the subject in Israel. This legislation refers to trafficking in humans for prostitution purposes only however, there exists a proposal to broaden it.

Karp argued that the issue at stake was the conditions in which the person was held. Zanberg argued that the relevant issue was that no human should be the object of trade. Karp replied that while the principle was sound, many people in practice are, due to circumstances, enslaved. Slavery may still exist, in a different form. She was therefore against the specification of “trade”, as in could confuse the issue.

Zandberg continued by noting that this point highlighted a difference between Dignity and freedom. Would a person be allowed to forgo his own minimal dignity, for instance, to sell himself into slavery? Modern consensus is that “voluntary slavery” is also prohibited.

MK Eitan said that there would be three proposals: one not including “slavery”, one including “slavery”, and one including “trade”.

Sommer said that although the concept was held in great importance in Israel, it should not be included in the Constitution. Dror disagreed, arguing that as it related to a number of separate rights, and the Court has ruled that basic rights do not terminate upon an individual’s death, it should possibly be included.