Israel’s Supreme Court, sitting as the High Court of Justice, ruled unanimously today that the state must act to draft yeshiva students, and that it was not possible to continue state financial support to yeshivas for students who had not received an exemption from military service.
The panel of nine justices found that at present there was no legal framework allowing a distinction to be made between yeshiva students and others due for military service. Accordingly, the state has no power to order sweeping avoidance of conscription, and must act in accordance with the Defense Service Law.
The 42-page ruling was written by acting president of the Supreme Court Judge Uzi Vogelman, with the concurrence of the other eight justices: Yitzhak Amit, Noam Sohlberg, Daphne Barak-Erez, David Mintz, Yael Willner, Alex Stein, Ofer Grosskopf, and Gila Canfy-Steinitz.
The judges ruled that the government’s decision allowing haredim (ultra-Orthodox Jews) who declare that their Torah study is their vocation not to be conscripted, after the law (the so-called Tal Law) regularizing this had been repealed, was flawed "since the government thereby instructed the military authorities to apply illegitimate selective enforcement."
The ruling states that the distinction between yeshiva students and others liable for military service has no anchor in law, and that in seeking to distinguish between the two groups in enforcing the law "the government severely harmed the rule of law and the principle that all individuals are equal before the law."
The judges rejected the government’s claim that the military authorities had discretion as to which groups in the population to conscript. This, the judgment states, "undermines the very existence of the duty to be conscripted that applies equally to the citizens of the state, and also contradicts the duty of the administrative authority to exercise its discretion in an egalitarian fashion."
The judgement states that the government has been acting unlawfully, and that "the difficulty in this state of affairs has become sharper in view of the continuing war in which the State of Israel finds itself, with its consequences for the army’s need for manpower to fulfil its vital tasks… The current stance of the defense establishment is that there is a concrete and urgent need for additional manpower."
The judges pointed out that, in 1949, when exemptions were first granted from military service on the grounds of Torah study as a vocation, the number of yeshiva students thereby exempted was just 400, and that over the years the number had grown to a completely different order of size. According to the figures presented by the state, at the end of June 2023 the number stood at some 63,000.
The court found that, as a result of the conclusion that there was no normative framework for exempting yeshiva students from conscription, it was not possible to continue transferring financial support to yeshivas and kolels (institutes of higher rabbinic studies) for students who had not received a lawful exemption or whose service had not been lawfully deferred.
On the issue of separate legal representation for different government ministries and agencies, the judges reaffirmed that, in the absence of a court ruling on the matter in question, the Attorney General’s interpretation of the law was binding on the executive arm.
The petitioners calling for the end of discrimination in conscription were The Movement for Quality Government in Israel, the Brothers in Arms movement, and 240 mothers of both male and female combat soldiers. At the same time, petitions by the Ayalon Social Rights Forum and the Civil Democracy Movement were heard focusing on ending state support for Torah institutions whose students avoided conscription. Both groups argued that there was no legal basis for not conscripting yeshiva students.
In order to try to block intervention by the High Court of Justice, the government is currently promoting a bill allowing most yeshiva students to be exempted from military service. The bill is under discussion in the Knesset Foreign Affairs and Defense Committee before second and third readings. In the High Court hearing, the court made clear that there was no room to wait for further legislation after it had already waited six years, and after the issue had not been resolved in the past twenty-five years.
Published by Globes, Israel business news - en.globes.co.il - on June 25, 2024.
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