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
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.
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
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
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
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.”
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
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.”
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.”
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
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
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
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
However, the hope that accompanied the law had been dashed, she
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
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.”
the data, Beinisch said, indicated that the Tal Law had failed.
600 haredi youths were inducted into the special IDF service tracks established
under the Tal Law, while 1,122 undertook national service.
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
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
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
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
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
However, UTJ MK Yisrael Eichler, speaking on Radio Kol Hai on
Tuesday night, challenged the notion that the law was
“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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