The High Court rejected a petition to annul the military
deferment law for yeshiva students but determined that the
law infringes on the dignity of the majority group that is
obligated to serve. The decision was reached by a majority of
eight judges against semiretired Deputy Chief Judge Mishael
Cheshin.
The petition sought to revoke the law that the Knesset passed
four years ago after the High Court ruled that only the
Knesset — not the Defense Minister as had been done for
50 years previously — is authorized to settle the issue
of drafting yeshiva students. The law subsequently legislated
was based on the recommendations of the Tal Committee and
came to be known as the Tal Law. The law was implemented for
a five-year trial period scheduled to end next summer.
Four High Court petitions were filed against the law —
at a time when the IDF plans to exempt tens of thousands of
reserve soldiers by the end of 2006 as part of reforms in
army regulations — claiming it "undermines the
principle of equality" established by the Basic Law of Human
Dignity and Liberty.
In a reply to the High Court, the State claimed that the
current legal arrangement is appropriate for the time being
even if it is not the ideal arrangement for the overall issue
of drafting yeshiva students. "The arrangement was made in
light of the assumption that yeshiva students cannot be
enlisted coercively," read the State's reply.
Six judges joined the decision of High Court President Aharon
Barak, who determined that the time is not ripe to address
the question of whether the law disproportionately infringes
on the constitutional right of human dignity. Although the
petitions were rejected, the judges stated, "If no
substantial change takes place the law is liable to become
unconstitutional."
In his minority opinion Judge Cheshin revealed once again, as
his final retirement from the High Court approaches, his well-
known views on the observant sector. "The Military Deferment
Law is totally void," he writes, "and deferring the
recruitment of yeshiva students contradicts three supreme
principles on which the State of Israel is built: the State
being a Jewish state; the State being a democratic state; and
equality."
Following the decision MK Rabbi Avrohom Ravitz said that
while the judges say the law conflicts with human dignity and
liberty as well as the principle of equality, they also say
it was permitted to legislate the law and therefore it cannot
be revoked. "We have a dispute with Barak, of course, over
whether it is human dignity to studying in yeshiva or go to
the army. It is an ideological dispute.
"But on the other hand Judge Cheshin's determination is
chutzpah. He should have disqualified himself from stating an
opinion in this matter since his opinion is always
automatically slanted against the chareidi public."
MK Rabbi Moshe Gafni said the High Court is not authorized to
judge such issues. "These are matters that touch at the core
of the existence of the Jewish people. This clearly involves
the worldview of millions of Jews in Israel and around the
world throughout the generations [who held] that the Jewish
people cannot exist without Torah scholars. Unfortunately
there are Jews who do not know the true secret of the
existence of the Jewish people and all of the High Court
judges meet this description. The remark by the High Court
President that `everything is justiciable' is a faulty
remark. The moment the Knesset legislates a law the High
Court does not have the authority to judge it since these are
matters of worldview.
"In the present case we backed the clauses of the law
pertaining to Torah scholars for whom Toroso umnoso,
for without them we lack the merit to continue to exist. Thus
for the court to deliberate the matter is irrelevant.
Furthermore we have seen that the High Court rules on a
matter that appears to be to our advantage and then
immediately afterwards balances it with a ruling to our
disadvantage.
"I understand where Mishael Cheshin is coming from. He
doesn't let chareidi children eat lunch in school, so he
wants them to go to the army where they'll get some food to
eat."
