"There is no reason why my kids should serve in the army if others don't serve."
By DAN IZENBERGharedim near soldiers298(photo credit: Ariel Jerozolimski)
An expanded panel of nine High Court justices on Thursday rejected four petitions claiming that the Tal Law was unconstitutional even though it violated the Basic Law: Human Freedom and Dignity. But the panel warned that unless the law achieved better results in the next year and a half, the court would revoke it on those grounds.
Hours after the High Court of Justice upheld the Tal Law IDF Chief of Staff Lt.-Gen. Dan Halutz slammed the decision, claiming that the burden of serving in the IDF needed to be shared by the entire nation.
"There is no reason why my kids should serve in the army if others don't serve," Halutz said at a conference in Beersheba. "It would be fair if it [the burden] was shared by everyone… if they won't serve in the army then they should do national service or volunteer in their communities."
Yeshiva students who did not serve in the army, Halutz said, were not breaking the law but when the decision was made years ago to grant haredim an exemption from military service the number of students was far smaller, he said, than it was today.
"This phenomenon won't be able to continue for much longer," Halutz said, "for the simple reason that we will cross a line that without this critical number of potential recruits the defense establishment will not be able to fulfill its missions."
Retired justice Mishael Cheshin, who cast the lone minority vote, said the law should be nullified because it violates the very essence of the State of Israel. The law determines that any genuine yeshiva student of military age who wants to defer his military service may do so, and grants him one year to work without studying and without being drafted. It is a provisional law which is due to expire in August 2007, although the Knesset can extend it for up to five more years if it wants to.
Supreme Court President Aharon Barak, who wrote the majority decision, summed up his 65-page ruling by saying, "Alongside our decision that the petitions are rejected, because at this point in time we cannot determine that the law is unconstitutional, there is reason for concern that the Military Deferment Law [as it is formally named] will become unconstitutional. Indeed, our ruling today is that the Military Deferment Law is not yet unconstitutional, but there is cause for concern that it will become so unless there is a significant improvement in the results it has achieved [so far] in practice."
The petitions were submitted four years ago by the Movement for Quality Government, private attorney Yehuda Ressler, and the Meretz and Shinui parties immediately after the Knesset passed the law, which is popularly known as the Tal Law.
The petitioners were disappointed by the outcome, even though the High Court was critical of the government's performance and warned that the law was still in danger of rejection.
"The result simply isn't correct, not from a constitutional point of view or a legal point of view," said Ressler, who submitted his first petition against the special treatment of yeshiva students in 1981. "It inconceivable that there is a distinction between one person's blood and another's without the court intervening. There is a strange partnership going on here. We send them to study in yeshivot and they send us to battle. What kind of state is this? What kind of Knesset is this?"
The chairman of the Movement for Quality Government, Eliad Shraga, said that the decision was part of the "total decline of Israeli society. Today, another signpost has been erected. It will lead to the fact that eventually many good people, secular and others, will not serve in the IDF."
From the time the state was established until 1998, the defense minister was allowed to grant military draft deferments to haredim who were of conscription age but were studying in yeshivot. At first, the right was restricted to a certain number of deferments each year and to certain yeshivot. Eventually, these restrictions were lifted.
By 1998, as the number of deferments granted by the defense minister substantially increased, the High Court ruled that it was not enough to allow this practice to continue on the basis of secondary legislation and that the Knesset had to pass a law establishing the rules governing it.
Four years later, the Knesset passed the Tal Law, named after retired justice Zvi Tal, who headed a committee that studied the matter and made the recommendations which served as the basis for the legislation.
The law was based on several elements. It established the legal right of yeshiva students who wanted to continue their studies without interruption to do so. It also offered them a "year of decision," in which they could leave the yeshiva without fear of being conscripted. At the end of the year, they could choose between three alternatives: returning to their studies, performing a truncated military service and then serving in the reserves, thereby enabling them to stop studying and start working, or performing a year of public service and then going to work without fear of being conscripted.
The petitioners charged that the law was unconstitutional because it violated the Basic Law: Human Freedom and Dignity, which included the principle of equality. The law, they charged, granted benefits to the haredim which were not available to the rest of the population, who were forced to serve.
The High Court majority agreed that the Military Deferment Law did indeed violate the Basic Law: Human Freedom and Dignity. In fact, the ruling constitutes a landmark decision in that it established in clear terms which elements of the concept of equality are included in the idea of human dignity and expanded them beyond the court's narrow definition up until now.
But the court added that Basic Law: Human Dignity itself took into account that some Knesset laws may be considered constitutional even though they violate the law, if they are for a worthy purpose and in keeping with the values of Israel as a Jewish and democratic state.
In order to determine whether any law meets these criteria, the High Court has established a series of tests. The first one is to determine whether the law was passed for a worthy purpose.
Barak wrote that, in theory, it did. The law, said Barak, was the result of a social compromise between conflicting elements. Its first aim was to establish the unequivocal legal right of yeshiva students to receive draft deferments. The second was to redistribute the burden of military service so that at least a higher number of yeshiva students would serve in the army, or if not in the army, than at least in the public service. The third was to increase the number of haredim who work instead of study, and the fourth was to carry out this change in a gradual manner, cautiously and with the consent of the haredi community.
"Are these aims worthy?" asked Barak. "In my opinion, the answer is 'yes.'" But Barak emphasized that it was not enough that the law was theoretically for a worthy purpose. It also had to be proved that the law achieved the purposes it set out to achieve. This could only be determined by the actual results in the real world.
However, these results were affected by the degree to which all of the elements of the law had been put into place. According to the Tal Law, the army had to come up with military service options that would be attractive to haredim, such as a shorter term of service and certain types of duties. Secondly, it called for the government to establish options for public service for those who wanted to serve but were rejected as unsuitable by the army.
The law has been in effect for almost three years, but neither of these two essential elements has been provided.
Keeping this in mind, wrote Barak, the statistics indicated that the law has failed to achieve its proclaimed aims.
According to the figures presented by the state on December 9, 2005, 1,432 yeshiva students had taken advantage of the "year of decision" and 618 had completed the year. Of those, 74 joined the army, and 103 were waiting for the state to provide them with opportunities for performing public service. Another 239 were undergoing conscription procedures, but it was too early to say whether they would actually enlist. The rest returned to the yeshiva.
On the other hand, 45,639 yeshiva students did not take advantage of the opportunity provided by the Tal Law to leave the yeshiva at all.
Barak wrote that these results were very poor. Only 3 percent of all yeshiva students chose to try out the "year of decision," and only a small percentage of those who did have actually joined the army so far.
Yaakov Katz contributed to this report.
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