Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

19 Iyar 5766 - May 17, 2006 | Mordecai Plaut, director Published Weekly










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Shema Yisrael Torah Network
Shema Yisrael Torah Network











High Court Upholds Law Allowing Deferments for Yeshiva Students

By Betzalel Kahn

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."


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