Shaul Weisman (left), who petitioned against the Large Families Law, and his brother Nissan Weisman, Sunday in the High Court of Justice. "The law turns women into a source of production and children into the means of production." (Photo: Lior Mizrahi / BauBa)

When the State of Israel wishes to reward its Haredi [ultra- Orthodox] or Arab citizens, or alternatively, to hurt them, its lawmakers tend to make use of one of these two criteria: having many children or lack of military service. Most Haredim and Arabs meet these two criteria, and so the objective is realized. On Sunday, the High Court of Justice heard two petitions to invalidate two laws - one that hurts Haredim and Arabs, and another that benefits them.

The harmful law - which is rooted in two sections of the Emergency Economic Program Law - cuts by 24 percent the children's allowances granted to parents who did not serve in the army or in national service frameworks. No fewer than seven petitions were submitted to revoke this cutback, which came into effect July 1. The petitions were submitted by MKs Abdulmalik Dehamshe, Mohammed Barakeh, Yossi Sarid and Ran Cohen, the Association of Civil Rights in Israel, the Regional Committee of Arab Local Authorities, and a Haredi reserve soldier. The reserve soldier, Zvika Herbst, 38, from Elad, who performs 25 days of reserve duty a year in a regional-command burial unit, claims he is being treated with gross injustice: He was included in the category of those subject to loss of NII allocations because he did a shortened regular army service of four months, due to his enlistment at an older age.

The High Court of Justice panel, headed by Supreme Court President Aharon Barak, with Justices Dalia Dorner and Asher Gronis, decided that the subject constituted a weighty constitutional issue; the justices issued a temporary restraining order of one month, to freeze implementation of the law. They decided that any further hearings would be heard before an extended panel of the court, which will convene in one month's time.

The second petition heard by the same justices on Sunday was opposed to a beneficial law. It wished to invalidate the "Halpert Law," an amendment to the National Insurance Law that was initiated by MK Shmuel Halpert. The amendment determined that families would receive generous allowance increases from the fifth child and on. This petition was initiated and spearheaded by Shaul Weisman, who also enlisted in the effort his daughter Adi, a law student, and his elder brother, attorney Nissan Weisman. "I've been losing sleep because of this law," says Shaul, a land assessor by profession and a Ph.D. candidate in law, who submitted the petition because of the public interest that he has in the issue.

Indeed, after long sleepless nights, the "fighting family" produced a detailed petition, overflowing with colorful graphs and selected references from the worlds of law, economy, philosophy, Jewish law and political theory. The petition is drafted in high-flown language, flowing with metaphors and quotes. It ends with these words: "This court faces a historical decision, for this time and for the future, that regards the complexion of the state, and whether it will remain - in keeping with the words of the Declaration of Independence - a secular, Zionist, Jewish and democratic state that educates the individual to eat from the fruit of his labors and not to rely on the labors of others."

The petition's aim is to prove that the law undermines the foundations of the State of Israel as a Jewish and democratic state. Promoting the birth rate through legal means, the Weismans claim, encourages population growth specifically in those population sectors that pose a risk to the Jewish and democratic existence of Israel (the Arabs and the Haredim, respectively).

"We feel that democracy has to be protected from demographic and clericalist dangers," states the petition.

In practical terms, the petitioners seek to prove that the generous allowances granted from the fifth child on have nothing to do with the struggle against poverty: "The actual purpose of the law is essentially to support the family of the yeshiva student, for whom the Torah is his craft, in order to observe the commandment of `Be fruitful and multiply' without having to concern himself with the livelihood of his family. This law will encourage large families that live in poverty, to make childbirth a source of income."

According to Weisman, this inappropriate objective is attained by improper means, "whose entire aim and purpose is gaining control of the reins of government through the taxpayer's money." And this taxpayer, in Weisman's view, is "like Friday and like the Gibeonites.' [Man] Friday is the servant of Robinson Crusoe, and the Gibeonites are the woodcutters and water drawers, who by their labor support the slackers.

In the course of the hearing, Supreme Court President Barak asked the petitioners: "Assuming that the purpose of the law is to preserve the coalition, and assuming that the government wants to encourage a high birthrate, why should we intervene? Why is this a legal issue, and not a political one?"

Weisman replied that there were innumerable legal problems involved: discrimination, unsuitable purpose, harm to equality, harm to property, lack of fairness, lack of proportionality and even harm to women - "The law turns women into a source of production and the children into the means of production. That is gender-based discrimination."

He also summoned a report of the National Security Council that confirms his claim that the law produces the opposite outcome of what it set outs to do: encouragement of higher birthrates will only increase poverty.

Attorney Osnat Mandel, who heads the High Court of Justice Department in the State Attorney's Office, represented the state. She responded that "the share of large families among the poor families is more than double that of the overall rate in the population." This revelation, which asserts that families with many children tend to be closer to the poverty line, should come as no surprise. The disagreement between the Weismans and Mandel focuses on the connection between the larger allowances and the solution to the problem; the argument between the Weismans and the justices revolves around the connection between the petition and the legal solutions that are in the court's authority to provide.

The High Court of Justice devoted Sunday morning to hearings on social troubles that have been exacerbated by draconian economic measures that have particularly affected society's weaker elements. Aside from the two petitions that concerned children's allowances, Barak, Dorner and Gronis also heard arguments from representatives of pensioners and of handicapped victims and widows of work accidents, who complained about cutbacks in allowances and pension payments.

The justices expressed a sincere concern for the troubles of the petitioners, but also expressed their doubts as to their ability to offer succor. "The Basic Laws make it legal to harm property, equality and other rights. You have to persuade us that this runs counter to suitable purpose and that the harm is not proportional," said Barak.

Dorner provided more detail: "The purpose is an emergency program to extricate the economy from its state of crisis. That is a suitable purpose. It is clear that the law is not socially beneficial, but that is a matter for the Knesset. We want to be persuaded that the damage is not proportional. For example, does the cutback in allowances bring people to the threshold of hunger? That would constitute damage that is not proportional."

It is also a matter of statistics. For instance, in a hearing on the petition that was brought by the pensioners, Dorner told Mandel: "I have the feeling that in this hasty bit of legislation, there are things that went unchecked. How many people live on the income allowance? Is this their only allowance?"

Mandel, armed with experts and advisors from the National Insurance Institute, tried to put her finger on the numbers but in the end could only promise to furnish the information to the court at a later date.

Still another petition dealt with the higher ceiling for the levy of National Insurance premiums. Attorney Yehuda Talmon, acting for an organization of the self-employed, opened with a devastating quote from George Orwell's 1984: "`Peace is war, freedom is slavery, truth is lie.' To these I would like to add - and National Insurance is Income Tax. The finance minister was throwing dust in the public's eyes when he said the tax burden would not increase."

Again, Dorner was not impressed: "This is a subject for an article about public criticism. We will intervene only if the law is unconstitutional." Mandel said that this was at most a problem affecting the upper percentiles.

In all of the petitions heard Sunday, except for the first, the hearings were completed, and verdicts will be rendered at some time in the future. Only the petition that considered the cutback of allowances of children whose parents have not served in the army, was given "preferential treatment" from the justices, in the form of a delay of the law's implementation, and the decision to continue the hearing before an expanded panel of justices.

These are significant indications that the issue raised by the petition presents particularly thorny legal questions. Among other things, the High Court of Justice will have to consider whether it is possible to "punish" children and hold back their allowance only because their parents did not serve in the army or in national service.

Shaul Weisman does not understand why his well-grounded petition on the issue of large families did not receive similar treatment. He quickly drafted a convoluted, grandiloquent rumination on why this might be the case, and appended it to the file as a supplementary argument once the hearing was over.

Weisman does not only flaunt the magnitude of his arguments but also the moral and professional backing he gets from high-ranking jurists. "One retired high-ranking judge told me that the court would do everything it could to evade your petition. Do everything you can to prevent them from evading it."

In the meantime, the Weismans' biggest concern is that the High Court of Justice will lean toward the opposite pole: Not only would it not invalidate the benefits to Haredim and Arabs for their contributions to a higher birthrate, but would go even further, and restore the allowances they lost for not having served in the army.