Israel High Court Rules That Tal Law is Unconstitutional and Cannot Be Extended

The Israeli High Court of Justice ruled thisevening to accept a petition against the legality of the Tal Law, passed by the Knesset in 2002. The law was designed to encourage frum men to enlist in the IDF or for national service, while allowing those who choose not to serve but to study Torah full-time instead to be given an exemption.

In a majority ruling of six justices against three, the High Court determined that the law, whose full title 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 1st.

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 it’s 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 which will lead to a more just share of the burden of military service by all sectors of Israeli society,” he said.

Foreign Minister Avigdor Liberman welcomed the ruling. Opposition from his party and the Independence faction to the extension of the law led Netanyahu to back away last month from his plan to advance the law without change.

Opposition leader Tzipi Livni (Kadima) 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.

MK Moshe Gafni of United Torah Judaism said that the party would study the ruling but added “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.”

Speaking on Radio Kol Chai to night, MK Yisrael Eichler, also of UTJ, challenged the notion that the law is unconstitutional. “The State of Israel has no constitution and it is a fiction to talk about [what is] constitutional or not constitutional, it’s an agreed upon lie and I reject the right of the High Court to determine what is constitutional and what is not,” he said. “[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.

Supreme Court President Dorit Beinisch voted in the majority decision, alongside Justices Miriam Naor, Elyakim Rubinstein, Chanan Melcer, Neal Handel and Esther Chayut.

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 law.

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

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

“After ten years of intense struggle, it has been clearly stated that the evasions must stop,” Ben Horin told The 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 withstands the proportionality test determined in the limitations clause of Basic Law: Human Dignity and Liberty, and is 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 so-called “limitations clause”, which allows the Basic Law: Human Dignity and Liberty to be infringed 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 presented by the state regarding the law’s implementation show that it would be able to realize its objectives in the future. Six justices against three found that the Law does not withstand that proportionality test and therefore is not constitutional.

Beinisch said that the Tal Law was enacted with a hope that it would ignite a societal process which would lead to a situation in which members of the charedi population would wish to serve in the IDF or to perform national service. However, the hope that accompanied the law had been dashed, the Supreme Court President 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, as time passed it became clear that the law had not realized its basic objectives, she continued, and that the arrangement of service deferral that had 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 charedi men who chose to leave the yeshiva for a “year of decision.”

Analysis of the data, Beinisch noted, indicates that the Tal Law has failed.

In 2010, 600 charedi 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 to 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 to national service programs in 2011.

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

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

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

{The Jerusalem Post/Matzav.com Newscenter}

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