Analysis: Coalition changes to ‘equal burden’ law likely to run into High Court brick wall

Goal of Lapid’s law was to increase haredi participation in the IDF and national service by 2017 by several thousand participants per year.

By YONAH JEREMY BOB
Updated: NOVEMBER 4, 2015 03:45
Haredi protest in Jerusalem against draft (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Haredi protest in Jerusalem against draft
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
It all seemed so simple when the only thing that mattered was politicians in backrooms working out deals.
Yes, the 2013 government under pressure from Yesh Atid Party leader Yair Lapid had passed a March 2014 law requiring the ultra-Orthodox to join the IDF and, for the first time, under penalty of criminal sanctions for draft-dodgers.
But Lapid was out of the 2015 government, the haredim were back in, and within five months everyone agreed they would pass a new law that would eliminate the criminal sanctions.
This essentially would return the status quo of the so-called Tal Law, by which haredim were encouraged to join the IDF voluntarily, but there were no teeth to the law.
Defense Minister Moshe Ya’alon, who always stood with the haredim on this issue, made it clear that he would not apply any criminal sanctions against ultra-Orthodox draft-dodgers anyway.
But now that the coalition has reached the five-month deadline and is getting serious about amending the law, it has been shocked by Attorney-General Yehuda Weinstein’s prediction that the change will not pass muster at the High Court of Justice.
Is Weinstein alarmist or prophetic? First, if amending the law makes it look like the Tal Law, which the High Court struck down in February 2012 and which paved the way for Lapid’s new solution, including real sanctions, why would anyone be surprised that the High Court would reject the amendment? But let’s go a level deeper.
With Lapid’s law on the chopping block, people have forgotten that there were petitions to the High Court against that law, which said that even its sanctions and more ambitious draft goals were not serious enough to fix the inequality of haredim avoiding IDF service.
The NGO the Movement for the Quality of Government in Israel argued that the new Lapid law was still unequal and grants too much favored treatment to the ultra-Orthodox.
The goal of Lapid’s law was to increase haredi participation in the IDF and national service by 2017 by several thousand participants per year over the small percentage who have been serving until now.
The movement attacked the law on multiple grounds, including its failure to require universal service, its permitting many haredim who serve to defer their service from age 18 to 21, and its incremental approach of increasing haredi participation over the next three years.
It said that non-haredim must serve when called-up above the age of 18, with no categorical exceptions or delays either related to age or achieving incremental progress.
When the High Court heard oral argument in April 2015, many thought that the nine-justice panel agreed with the NGO’s premise that the law was unequal, and spent much of the hearing questioning the state as to the scope of the inequality.
The justices’ questions seemed to suggest that the state was reserving for itself too much discretion in how long to try to achieve quotas and regarding what sanctions would apply if quotas were not met, as well as when those sanctions would kick in.
The state had argued that the law is a massive improvement, but the historical context is complex and patience and discretion are needed so as not to alienate the ultra-Orthodox community.
If the big question then was whether the state had too much discretion, even though there were obligatory criminal sanctions for draft-dodgers, because it was still staging the drafting of more haredim over three years, how does the government expect the High Court to consider a watered-down law with even more discretion? It should also be noted that the April hearing was run by former Supreme Court president Asher D. Grunis, who has since been replaced by Miriam Naor, who while no Aharon Barak, is considered somewhat more activist.
To get through this tightrope walk without the court striking the law, Prime Minister Benjamin Netanyahu will likely need to keep some amount of sanctions which the haredim do not like, while watering down the law enough so that they still feel they have achieved a victory.