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High Court rules 'Tal Law' can't be extended
By JOANNA PARASZCZUK AND JEREMY SHARON
02/21/2012
Majority of six justices against three says that the law that defers IDF service for yeshiva students is unconstitutional.
 
The High Court of Justice ruled late Tuesday evening to accept a petition against the legality of the Tal Law.

The law, which the Knesset passed in 2002, was designed to encourage ultra-Orthodox men to enlist in the IDF or for national service, while allowing exemptions for those who choose to study Torah full-time instead of serving.

In a majority ruling of six justices against three, the High Court determined that the law, the full title of which is the Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law, is not constitutional, and therefore the Knesset cannot extend it in its present form when it expires on August 1.

The law was originally passed as a temporary law requiring renewal every five years.

The Movement for Quality Government watchdog group petitioned the High Court in 2007 against a Knesset vote that extended the law for an additional five years.

Prime Minister Binyamin Netanyahu, who originally sought to extend the law in its current form, said in response that he had already announced before Tuesday’s ruling that the Tal Law would not be continued in its current form.

“In the coming months, we will formulate a new law that will lead to a more just share of the burden of military service [among] all sectors of Israeli society,” he said.

Foreign Minister Avigdor Liberman, chairman of senior coalition partner Israel Beiteinu, welcomed the ruling. Opposition from his party and the Independence faction to the law’s extension led Netanyahu to back away last month from his plan to advance the law without change.

Opposition leader Tzipi Livni welcomed the ruling, saying that justice had been served.

“The Zionist majority should replace the government, which is enslaving our future to sectors who are keeping it in power and harming the public,” she added.

Defense Minister Ehud Barak also welcomed the court’s ruling.

“I have said several times over the last few weeks that after 10 years, the law did not meet expectations and did not result in the required change in widening the circle of people participating in civic duties,” Barak said, calling on the government to act quickly to pass a new law that would “bring equality to Israeli society.”

Barak said he had suggested allowing the army to choose suitable people, and giving significant rewards to soldiers, which would include allowing them higher education and the chance to choose a career and enter civilian life on the right foot.

However, the defense minister also suggested setting a quota of 2,000 to 3,000 Torah prodigies who would be allowed to carry on studying. The remaining haredim (ultra-Orthodox) would be integrated into national service and later on into employment, in order to stimulate both personal and national growth.

MK Moshe Gafni of the haredi United Torah Judaism Party said his party would study the ruling, but added that “those who study Torah under the framework of ‘The Torah Is Their Profession’ [which provides for exemptions from military service] will continue to study Torah. In their merit the world continues to exist, as the Prophet Jeremiah pointed out.”

Supreme Court President Dorit Beinisch voted in the majority decision, alongside justices Miriam Naor, Elyakim Rubinstein, Hanan Melcer, Neal Handel and Esther Hayut. Justices Asher Dan Grunis, Eliezer Rivlin and Edna Arbel took the minority opinion.

Other petitioners included attorney Itay Ben-Horin from the Forum for Equality in the Burden of Military Service, who slammed the law as a “failure” in a Knesset discussion earlier this month between activists and politicians seeking to abolish the legislation.

The petitioners argued that the law did not work because it permitted yeshiva students to avoid mandatory military service, and created inequality by transferring the burden to other groups in society.

Ben-Horin said on Tuesday night after the court ruling was published that this was a “historic and exciting day.”

“After 10 years of intense struggle, it has been clearly stated that the evasions must stop,” Ben-Horin told The Jerusalem Post. “Now the pressure is on the Knesset, which must decide on a law that requires service for everyone – either military or civilian service – and that whoever gives more, receives more.”

The question placed before the High Court was whether the Tal Law withstood the proportionality test determined in the so-called “limitations clause” of Basic Law: Human Dignity and Liberty, and whether it was thus constitutional.

Though Israel does not have a formal constitution, its Basic Laws are constitutional in nature, and the High Court examined whether the Tal Law violated the limitations clause, which allows the Basic Law: Human Dignity and Liberty to be infringed upon by new laws “befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than required.”

The High Court was asked to decide whether data the state had presented regarding the law’s implementation showed that it would be able to realize its objectives in the future. The majority six justices found that the law did not withstand that proportionality test and therefore was not constitutional.

Beinisch said the Tal Law had been enacted with the hope that it would ignite a societal process that would lead to members of the haredi population wishing to serve in the IDF or to perform national service.

However, the hope that accompanied the law had been dashed, she said.

She noted that over the years, the court had examined the issue of service deferral with restraint and moderation and had monitored the societal processes required to implement the Tal Law’s complex objectives.

Beinisch said the court had delayed making a decision on the current petitions, in order to examine the law’s implementation over an extended period. However, she continued, as time passed, it became clear that the law had not realized its basic objectives and that the arrangement of service deferral that existed prior to its enactment had become entrenched.

The state had presented the court with detailed information about the number of haredi youths who had entered the army or national service, as well as the number of haredi men who chose to leave the yeshiva for a “year of decision.”

Analysis of the data, Beinisch said, indicated that the Tal Law had failed.

In 2010, 600 haredi youths were inducted into the special IDF service tracks established under the Tal Law, while 1,122 undertook national service.

According to IDF figures, a total of 1,282 ultra-Orthodox men enlisted for IDF service in 2011, out of a potential pool of 8,500, representing an enlistment rate of 15 percent.

National enlistment rates are approximately 75%, excluding the Arab sector, which is exempt from military service.

In addition to IDF service, 1,079 ultra-Orthodox men enlisted for national service programs in 2011.

The court said that while the data indicated an increasing trend of haredi youths entering the army and volunteering for national service, in the 10 years since the Tal Law had passed, the rate of increase was insufficient.

Arbel and Rivlin, who took the dissenting opinion, said that the executive branch should be granted an additional period to realize the law’s objectives. Arbel noted that the legislative process in which the Tal Law was enacted had been based on the work of a committee convened over a lengthy period, and been thorough, meticulous and intense.

Grunis also dissented, and said the petitions should be rejected because, in his opinion, there was no justification for judicial review of a law passed by Knesset where the majority has granted a benefit to the minority.

MK Moshe Matalon (Israel Beiteinu) welcomed the ruling as just and ethical.

“The existing status quo is twisted and should not be preserved at any price,” he said, adding that his party would work for a just and equitable solution to replace the Tal Law.

MK Nitzan Horowitz (Meretz) called the law “a national disgrace” and said that even though the High Court had taken an unnecessary amount of time, it had arrived at the right decision.

“The injustice of the Tal Law will pass from the world,” he declared. “The haredi politicos have to understand that Israel has to change direction if it wants to be an advanced and democratic state.”

However, UTJ MK Yisrael Eichler, speaking on Radio Kol Hai on Tuesday night, challenged the notion that the law was unconstitutional.

“The State of Israel has no constitution, and it is a fiction to talk about [what is] constitutional or not constitutional,” he said. “It’s an agreed-upon lie, and I reject the right of the High Court to determine what is constitutional and what is not. [The justices] are not elected by the public, but political appointees.”

Only the Knesset can determine what is and is not constitutional, the MK added.
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