Court has yet to decide whether law is discriminatory against most Israelis.
By DAN IZENBERGsoldier prays at kotel(photo credit: Courtesy)
Only 139 out of 45,639 haredim of military conscription age have joined the army in the past three years, since passage of the Tal Law, one of whose aim was to increase haredi participation in the army, the state announced during a High Court hearing on Sunday.
The court convened to hold its final hearing on four petitions demanding that the law be repealed because it violated the Basic Law: Human Freedom and Dignity by discriminating against most Jewish Israelis who are obliged by law to serve in the army.
The Knesset passed the Tal Law in 2002, after the High Court ruled in 1998 that it was not proper for the Defense Minister to grant deferments to haredim on the basis of secondary legislation. The Knesset committee that drafted the law tried not only to encourage more haredim to join the army, but also to leave the yeshivot and join the work force.
The law, named after former Supreme Court Justice Zvi Tal, who headed a public committee charged with finding a compromise between the haredi and non-haredi communities, states that after at least four years of guaranteed military deferment and study in the yeshiva, each student between the age of 23 and 27 may take one year off studies without being drafted. During this so-call "year of decision," the student may join the army, work or learn a trade. If the student who has worked, studied or performed public service decides not to return to the yeshiva, he must perform a truncated compulsory military service, and annual reserve duty, and is then free to join the civilian workforce without any further draft obligations.
The Knesset approved the law for a five-year trial period. But four petitioners, including the Movement for Quality Government, Shinui, Meretz and private attorney Yehuda Ressler, charged that the law should not have been passed in the first place. Furthermore, they now argue that it has proven to be a failure, as the statistics provided by the state had proved.
Supreme Court Justice Aharon Barak, who heads a panel of nine justices hearing the petitions, asked the state to explain what the purpose of the law was. He also said the statistics were important to understand whether the law had failed or succeeded so far.
For example, he asked the state's representative, Attorney Osnat Mandel what proportion of the yeshiva students should continue studying, serve in the army and work in order for the state to regard the law as a success.
Barak added that it was possible for a law to violate the Basic Law: Human Dignity and Freedom, as long as it was proportional, served a good purpose and was in keeping with the values of the state as a Jewish and democratic state. The statistics would help determine whether the law was proportional and served, or achieved, a good purpose or not.
The state's representative, Attorney Osnat Mandel, replied that the aim of the law was to integrate the haredi community into Israeli society at large.
But Barak challenged the response. "Wasn't one aim to get more haredim to join the army?" he asked.
Mandel also said she could not answer his question about what the state regarded as a proper distribution of haredim of military conscription age among yeshiva students, soldiers and workers.
But Barak also asked the petitioners whether they did not think the state should be given more time to improve the Tal Law by establishing more attractive work and military options for the haredim.
Deputy Supreme Court Justice Mishael Cheshin told Mandel he sensed that the state's plans and projections were made without any input from the haredi community. "Everything [the government] has done has been unilateral," he said. "All we are doing here is talking to ourselves."
Later on, he charged that the state's position bordered on lack of good faith.
The High Court will hand down its ruling on the petitions at a later date. It has been loathe to strike down Knesset legislation over the past 13 years, even though Barak has maintained that it has the right to do so to uphold the "constitutional" laws passed in 1992, the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation. Since then, the court has struck down only three relatively minor pieces of legislation. Judging by Sunday's hearing, it might do so again, and for the first time regarding a major piece of legislation. But in making its decision, the court is also likely to take into account the fact that the law is due to automatically expire in two years.
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