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.
