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.
