Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

16 Iyar 5761 - May 9, 2001 | Mordecai Plaut, director Published Weekly








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Israel High Court Declines to Issue Provisional Order Against Draft Deferrals
by G. Lazar

The Israel High Court did not comply last week with the request of MKs Yossi Paritzky, Ran Cohen, and Naomi Chazan of Meretz, Attorney Ressler and the Hitorerut Movement, to issue a provisional order against the Knesset decision to extend the existing temporary order for the draft deferral of yeshiva students for an additional two years.

Chief Justice of the High Court Aharon Barak announced that he will refrain from ruling on the issue, and is transferring the decision to a panel of three judges.

Barak added that he hopes that political parties and recognized bodies will join the appeal as respondents, and that they not use only the current respondent, Attorney Yoram Sheftel, who represents only two students.

It should be noted that on 10 Iyar the Hebrew edition of Yated Ne'eman attacked Justice Barak for having publicly expressed his opinion on an issue before the deliberation in court, noting that such behavior has no precedent in the judicial system. Barak gave a lecture on 9 Iyar in Herzliya, where he attacked the Knesset decision, saying, "The State must not discriminate between its citizens on the basis of religion or race, and the rights and obligations of a religious person should be identical to those of a secular one."

To this, MK Rabbi Ravitz responded: "This is an absurd situation since the Knesset has passed a law extending the deferral arrangement for two years by a large majority. This was done at the request of the High Court, and in that way the Knesset was obeying the Court's ruling. It is inconceivable that the High Court bring the Knesset to task for obeying the High Court's own ruling."

Journalist Yoav Yitzhak wrote on 10 Iyar that Barak's behavior is an unprecedented deviation in the judicial system, especially since it was perpetrated by the Chief Justice of the High Court himself. Yitzhak notes that all judges in the Israel judicial system in general -- and the High Court in particular -- are very cautious about making statements outside of court regarding issues currently on the court agenda. In this case, Barak behaved in a highly unusual manner: expressing his personal opinion a day before deliberations on the same issue were to take place in his own court.

Barak's expressions against the law passed by the Knesset came in the wake of the decision of Attorney General Eliakim Rubinstein to issue a provisional order against the Knesset, saying that two years is too long a period, and that four months is sufficient time in which to enact the bnei yeshiva Draft Deferral Law.

Barak said: "In the wake of the position of the Attorney General which states that the temporary order extending the exemption by two years is illegal, a situation has resulted in which there is no one to defend the Knesset law. As a result, it is fitting that institutional bodies join as respondents."

The Government's attorney, Osnat Mandel, said that she supports Barak's proposal.

Barak didn't set a new date for the deliberation, however Yated Ne'eman has learned that the deliberation will take place this on Thursday, 17 Iyar.

Rabbi Avrohom Ravitz told Yated Ne'eman that the fact that Barak refrained from issuing a provisional order as requested by the petitioners, indicates that Yated's article of 10 Iyar criticizing Barak for expressing his private opinion in public before the deliberation may have had an impact. Rabbi Ravitz said that we must continue to be on the alert on this issue.

Rabbi Moshe Gafni told Yated Ne'eman that he plans to ask Justice Minister Meir Shetreet to take appropriate measures against Barak for having expressed his private opinion before deliberations on the issue took place. Rabbi Gafni sharply criticized Barak and said that by transferring the deliberation to a three judge panel, Barak wants to focus public deliberation on the issue in the High Court chambers, thus putting the Court in the limelight.

Barak should really have dismissed the petition entirely for two reasons: A) It involves a law accepted by the Knesset by a majority. B) Barak should have disqualified himself and not have spoken out or made any decision. He shouldn't have even made the decision to transfer the deliberation to a panel of three judges because he had already expressed his opinion on the subject before the deliberation.

"Barak proved in his lecture in Herzliya that he doesn't understand anything about the issue of the deferrals of bnei yeshiva," Rabbi Gafni said. Rabbi Gafni also related to the opinion of the Attorney General and said that Rubinstein's statements are political and express his private world view, not a judicial ruling. Rubinstein's remarks about regarding what he calls, "the obligation for equal division of the draft duties" are ridiculous, since only 20 percent of Israel's citizens serve in the army reserves. "If Rubinstein believed that Israel cannot exist without Torah study, he would not have made such remarks," Rabbi Gafni concluded.


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