Prime Minister Ehud Barak instructed the IDF on Sunday to
prepare groundwork within the next 60 days for drafting
chareidi yeshiva students. Trying to straddle the fence and
keep all options open, at the same time he appointed Minister
Michael Melchior to head a panel that will recommend
"improvements" to the controversial Tal bill.
Last week the High Court of Justice decided not to grant an
extension to the Knesset to make legal arrangements for the
draft status of yeshiva students, who currently receive
deferments (see details below).
Melchior has not yet said he will accept the appointment,
saying that the discussion of chareidi military service needs
to be divorced from the upcoming election.
Barak said he would seek changes to the Tal Bill based on the
following principles: that no one will be forcibly drafted;
that those not drafted will serve in their communities within
the framework of national service; and that "those who give
more will receive more" from the state, in terms of monthly
stipends while in the army or national service.
At the same time, the Knesset is on track to pass a law next
week that would let the defense minister continue to issue
deferrals to yeshiva students for the next four months. Under a
compromise worked out by House Committee chairman Sallah Tarif
(One Israel), Knesset Speaker Avraham Burg, and Shas MK Yitzhak
Cohen, another ad hoc committee has been established in the
Knesset to prepare the four-month deferral bill, sponsored by
Cohen. The committee is to meet on Thursday to prepare the bill
for its first reading, after Tarif insisted on holding an
official discussion on the move.
Tarif has agreed to put the bill to a first reading next
Monday, the Knesset's last session before it goes on election
recess. If the bill passes a first reading, Tarif has pledged
to push it through to its second and final readings the same
day. However, as a committee chairman he could use his power to
maneuver a delay in legislating the temporary measure.
During the Knesset recess, Tarif can convene the ad hoc
committee on the Tal legislation to prepare the bill for its
second and third readings. The government can also call a
Knesset session to put the bill to a vote.
According to the Hebrew edition of Yated Ne'eman, the
initiative by the Shas MK came as a result of pressure
Barak and many One Israel MKs oppose the four-month bill.
However, it is expected to be approved with the support of
religious and Arab MKs, and the Likud.
The Ruling of the High Court
In a 9-2 ruling of an expanded court of eleven justices on
Wednesday, 23 Kislev, the Court refused to grant the Knesset a
fourth extension to arrange legislation concerning military
exemptions granted to yeshiva students. Concomitantly, the
Court did not obligate the army to draft yeshiva students
immediately, but allowed it time to prepare itself for such a
step. However, starting Wednesday 23 Kislev, the Minister of
Defense is not authorized to sign deferrals for yeshiva
students who fall under the category of Torasam umanusam
as has been done for more than 50 years.
Nine of the justices of the Supreme Court, led by Chief Justice
Aharon Barak, were with the majority that refused to grant the
additional extension. Two of the judges, Mishael Cheshin and
Yaakov Turkel, dissented from the majority verdict.
In his written opinion, Justice Barak criticized the
procrastination which took place regarding the passage of
legislation, and delineated the developments of the events
since the first ruling on the issue two years ago, as well as
the previous requests to grant the Knesset an extension to pass
a law. The Court said that the underlying issue is essentially
political and shouldn't be decided by judges.
In its ruling, the High Court acknowledged the difficulties
created by both the security situation and the coming
elections, but rejected them as justifications for granting an
extension as well as the argument that the IDF needs more time
to prepare. Aharon Barak attributes the real reason for
Knesset's failure to extend the current arrangement even
temporarily--while it considered more permanent legislation--to
its own internal political divisions.
In his ruling, Chief Justice Barak also rejected the request of
UTJ Knesset members Rabbi Ravitz, Rabbi Gafni, Rabbi Litzman
and Rabbi Halpert, to join the appeal. Though they wanted to
secure an extension for arranging the pertinent legislation, he
says that the MKs should have joined the deliberations a long
time ago when the substantive issues were being decided. The
fact that UTJ was excluded from the deliberations meant that
the Court could respond only the Government and the Knesset
which have dragged their feet on passing a bill, and not to UTJ
which has exerted extreme efforts to push through
At the end of the verdict, Justice Barak wrote: "Under the
circumstances, in which more than two years have passed since
issuing our verdict, we cannot grant an additional extension."
However, he did say the court would allow the Israel Defense
Forces a "reasonable period" in which to prepare itself to
implement the ruling. The court does not expect the IDF to act
"from one day to the next," wrote Justice Barak.
Justices Mishael Cheshin and Yaakov Turkel dissented, with
Cheshin basing his dissent on the political-security situation
and Turkel on the army's need for time to prepare.
In respect to Barak's refusal to include the chareidi MKs as
responders in the appeal, Cheshin also disagreed with the
majority. He wrote: "We must remember that our decision was not
and is not just an ordinary decision. It is a unique decision,
a decision with deep consequences in the life of the State and
the community of Israel. In common parlance one could say that
this decision has broad and deep consequences. The special
character of this decision justifies hearing those MKs who
represent the community upon whom our decision touches
Shas leader Eli Yishai said that the Knesset must ensure that
yeshiva students can continue to study, and should not "use
them as hostages" for political purposes.
UTJ MK Rabbi Avraham Ravitz said that the fact that the High
Court keeps on referring the matter back to the Knesset is to
be welcomed. " . . . the High Court should not intervene in
matters affecting values and principles. Such matters should be
left for the Knesset. If at the outset the judges would have
said that this was a matter for the Knesset, and not made a
time restriction, that would have been totally in order. But to
write a judgment and make a time limit is unacceptable. At a
time when the Knesset is about to go into recess because of the
elections, the judges come along and say, `Go to the Knesset,'
leaving the court's judgment hanging over our necks."
He says that the Knesset must pull itself together and act
courageously, by postponing any decision on the matter for
another four months, as by then the elections will be over. All
of the religious MKs--both UTJ and Shas--agreed not to join any
coalition government before this matter is sorted out.
Rabbi Ravitz said that the politicians and army know that these
decisions won't provide the army with even one more soldier,
but they are capable of creating such chaos that will make it
impossible for us to live in this State.
"If they insist on drafting, they will not get any soldiers out
of it. The prisons would be filled with geishas. What
would they do with this large group of people? Israel would
become the only country in the world which does not let its
population study Torah. They have been trapped by their own
"Some people claim that chareidim have to obey the law like
anyone else. My reply is that there are also other laws, such
as the Law for the Prevention of Fumes from Diesel Engines.
Does anyone obey this law? And then you have the law that
forbids work on days of rest. Do citizens obey this law and
close shopping centers which are open on Shabbos illegally?
There are more powerful things than laws: `For they are our
life and the length of our days, and we will delve in them day
and night.' There is no alternative. They will have to come to
an agreement with us."
UTJ MK Rabbi Moshe Gafni also said that the army won't gain a
single soldier as a result of the High Court's decision and
yeshiva students engaged in full-time learning will continue
their studies with dedication come what may. "The only question
is, how much harassment will the chareidi public have to
endure." Furthermore, he says the court is acting illogically
in calling for legislation on such a sensitive and fundamental
topic during an election period when the whole political system
is in a state of chaos.
MK Yuval Steinitz (Likud), said: "It is a very bad signal to
Israeli democracy that our High Court is interfering in such a
very political issue and exercising such judicial activism."
Rabbi Gafni also accused Ehud Barak of not taking care of the
proposed law and of letting his own personal considerations and
electioneering take precedence over his responsibility towards
the State and to the delicate relations between different
population sectors in the country.
"Now the High Court has made a ruling, at a time when the
Knesset is in the middle of legislative proceedings on this
matter, and Barak is still not presenting the law for a
"I am also surprised by the actions of Shas who, when agreeing
ten days ago not to support early Knesset elections, did not
make it an absolute condition for their support that the law be
brought to a vote, and all the legislation be enacted in the
form of a Temporary Provision.
"I hope that the Prime Minister will come to his senses, and
put a stop to this ongoing fiasco by completing legislative
proceedings for a Temporary Provision by means of a Bill
sponsored by the government."
The bill set forward by Iztik Cohen to extend the current
system of deferrals by four months came up for a preliminary
reading on Sunday and passed 45-16. Barak arrived to vote
against the proposal. Likud leader Ariel Sharon voted in favor,
reversing his vote against the exemptions last summer, which
had angered chareidim. The bill was approved with the support
of the religious parties, the Likud and Arab parties. Shinui
and Meretz voted against it. One Israel MKs were split on the
The IDF is not hiding its preference for this bill. They
consider the current situation in the territories and the
amount of time and resources needed to carry out the necessary
preparations for the drafting of chareidi soldiers into the
ranks of the IDF to be the main problems at this time. The most
the IDF has done is prepare a list of conscripts to be called
According to a court ruling on December 12, 1998, the
arrangement granting yeshiva students automatic deferrals from
military service had created a sense of inequality in Israeli
society and was illegal.
When the arrangement was first implemented in 1954 by Prime
Minister David Ben Gurion, approximately 400 yeshiva students
were affected. Now the figures have grown to include some