Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

23 Iyar 5761 - May 16, 2001 | Mordecai Plaut, director Published Weekly








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Constitutionality of Draft Deferments to be Reviewed by Court
by Yated Ne'eman Staff

In one of its usual provocative rulings the Israeli High Court issued a show-cause order and decided to appoint an expanded panel of 11 justices to hear three petitions asking it to overrule a Knesset provisional law on the grounds that the law violates the principle of equality embedded in the Basic Law: Human Dignity and Freedom.

The provisional law extends by two years the current arrangement whereby the defense minister may grant two-year draft deferments to yeshiva students. It was passed by the Knesset with a large majority.

The panel of justices Supreme Court President Aharon Barak, Theodore Or, and Dorit Beinisch also named the Vaad Hayeshivos as a respondent. "The Vaad Hayeshivos Be'Eretz Yisroel is hereby added as an additional respondent to the petitions. It is permitted to respond to the petitions, if it is interested in doing so, within 15 days."

The court gave the respondents -- the state, the Knesset, the Vaad Hayeshivos in Eretz Yisrael, and Yaakov Ma'alimi, a yeshiva student represented by attorney Yoram Sheftel -- 60 days to present their arguments.

The petitioners, MKs from Meretz and Shinui and attorney Yehuda Ressler, will then have 30 days to respond, after which the court will set a date for the hearing.

Chareidi rabbonim said that these decisions of the High Court are particularly frustrating. "Aharon Barak is trying, with all his might, to set up the High Court as an arbiter of public issues, deciding on issues that are thoroughly political. At first the High Court said that its only desire was to anchor the arrangement about the draft status of yeshiva students in orderly legislation. Now, after a law was passed with a large majority, the Court comes and accepts a petition that undermines even this completely democratic legislation of the Knesset. Barak is just remanding the issue to the full panel in order to try to present an appearance of examining the issue objectively and without preconceptions. However by now everyone in the State of Israel knows that the High Court is approaching the whole issue with a one-sided and predetermined approach.

"After Chief Justice Barak himself expressed his opinion about the case in a public speech the day before the original arguments in this round before the High Court, he should have recused himself and all the justices that are beholden to him from sitting on this issue. But he continues to ignore the basic rules and elementary norms of objectivity and court behavior, due to his burning desire to impose his own political and ideological opinions on the entire fabric of public life in Israel. All citizens of Israel and especially the chareidi citizens will not accept this intolerable behavior, as if there were only one man and only one ethical approach that stands above all the normal measures of what is expected from public figures."

During the hearing, Sheftel tried unsuccessfully to persuade the court to reject the petitions out of hand. One of his arguments was that the Basic Law: Human Dignity and Freedom does not guarantee the right of equality. He did not contest the fact that the provisional law granting draft deferments to yeshiva students is discriminatory, but said that the basic law does not prohibit discrimination. He also said that other groups, including new immigrants over the age of 22 and Arabs, are also exempt from military conscription.

The ruling brought the issue of draft deferments for yeshiva students almost back to square one.

On December 9, 1998, another panel of 11 justices ruled that the system introduced almost fifty years previously soon after the state was created, whereby the defense minister grants draft deferments according to his own discretion on the strength of a minor provision of the law, was improper. It gave the Knesset a year to legislate the arrangement it wanted.

Eight months later, under the pressure of the chareidi parties which made it their foremost political priority, prime minister Ehud Barak appointed a committee headed by retired High Court justice Zvi Tal to hammer out the draft of a law which would hopefully satisfy all the sides.

The committee presented its report and recommendations on April 13, 2000. They aroused a storm of controversy. The bill passed its first reading on July 7 but bogged down in the special committee headed by MK Salah Tarif, which was appointed to prepare it for its second and third readings.

Meanwhile, the deadline set by the High Court had long passed and the government asked for several extensions. On December 20, the High Court refused the government's latest request, meaning that the draft deferral system would become illegal. The Knesset, functioning without a proper government in the period immediately preceding the elections for prime minister, hurriedly passed a four-and-a-half month provisional law legalizing the draft-deferral system. Later, after Sharon formed his unity government, it extended it by two more years.

The progress in the yeshiva student draft case in the High Court prompted MKs to call for a renewal of efforts to approve the legislation based on the Tal Committee recommendations.

The Knesset House Committee is scheduled to appoint a new chairman for the ad-hoc committee on the yeshiva student draft legislation to replace Minister Sallah Tarif. The Likud's candidate for the position is MK Yisrael Katz.

Katz said he believes it should not take more than a few months to approve the legislation. "The present situation is the worst," he said. "The Knesset cannot avoid responsibility and must approve the legislation."

The Tal Committee legislation keeps army service for yeshiva students optional, but establishes special frameworks for chareidi service and also enables them to enter the work force after age 23 without facing the draft.

The law being challenged in the High Court was a two-year stopgap measure that legalizes the fifty-year practice of deferrals that was declared illegal by the court in 1998.

MK Rabbi Avrohom Ravitz (United Torah Judaism) called on Prime Minister Ariel Sharon to push the Tal legislation through the Knesset within 60 days in its present form.

MK Yigal Bibi (National Religious party) said the Knesset should be given time to approve the Tal legislation, since it did not have time because of the election. He warned that the court will provoke a backlash in the Knesset if it cancels the two-year draft exemption law.

Shas issued a statement condemning the court's decision, saying that it is a "severe blow to the Knesset's sovereignty and authority." The court is "undermining democracy and its institutions by voiding its decisions time and time again," the party said in a statement, adding that the court is inciting the Torah world and Judaism.


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