Prof. Mordechai Kremnitzer presents a contrasting view to Prof. Yedidia Stern's assertion that the Israeli Supreme Court's ruling on the exemption of ultra-Orthodox men from military service in Israel is "Judicial Activism at its Height."
The Supreme Court makes a great punching bag. No matter how it rules, someone will take a swing at it. But if the Court's conduct regarding the conscription of ultra-Orthodox men is judged by its results, one must admit that were it not for the Court, there would not have been any positive change in this realm. The change began with the petition of MK Amnon Rubinstein in 1998, when the High Court rejected the exemption of all yeshiva students by the defense minister, and ruled that an issue of such importance cannot be determined solely by the executive branch, and asserted that an arrangement regarding this matter must be determined first by legislation rather than by ministerial order.
At the time, the Court merely delineated the lines of responsibility between the authorities and did not deal with the issue itself. That is judicial restraint at its best. The Tal Law would never have come into being had it not been for this ruling. Anyone who sees the Tal Law as desirable must therefore be grateful to the Court, and must also note that relying on the political system when dealing with complex questions is like relying on a house of straw. Even critics of the Court acknowledge that "the increase in the number of ultra-Orthodox recruits in recent years . . . stemmed, in part, from the revolving sword of the legal system" (Prof. Yedidia Stern, "Judicial Activism at its Height," Makor Rishon, February 24, 2012). It is also clear that without the Court's ruling, the Plesner Committee would never have been established, and there would be one less framework that has the potential to bring about positive change.
While the Court cannot be an agent for social change on its own, within Israeli society, it serves as a catalyst for social changes that are made in cooperation with political and social bodies. The reduction of discrimination against Arab Israelis and women in the military are clear examples of this. The issue at hand—the conscription of ultra-Orthodox Jews—is another.
Examination of the Court's actions since the enactment of the Tal Law shows that the Court gave the legislature a great deal of leeway, treating the government authorities with a great deal of respect and allowing them to correct the flawed situation themselves. It was in 2006, that the Court first found that the Tal Law was not fulfilling its purpose in the amounts desired, but instead of immediately striking down the law, as the Israeli legal system actually requires, the Court decided to postpone its decision in order to allow the authorities to do what was necessary. The Court also exercised great restraint after the first five years of the Tal Law, when the Knesset decided to extend the law for an additional five years despite the Court's decision. Following this extension, the Court issued an interim decision that the rate of implementation of the law was far from what would be expected, and allocated 18 months for increasing the rate of implementation before the petition would be heard. Only when it became clear to the Court that not enough had been done to fulfill the purpose of the law, which was to promote equality in sharing the burden of military service, was the petition accepted and the law struck down. The implementation of the law's disqualification was then postponed by an additional six months.
The Court waited for over six years for the authorities to correct the distortion that was already grounds for striking down the law in 2006. In the years that had passed since 1987, the number of yeshiva students whose army service was deferred nearly tripled, rising from 1,674 a year, which was approximately 5% of each intake, to some 4,000 a year, which is approximately 14% of each intake. In 2011, the total number of draft deferments reached almost 62,000. It was for good reason, then, that the first Plesner team concluded that the implementation of the Tal Law had been a failure. The Court's conduct, therefore, was the total opposite of judicial activism, haste, or impatience. Had the Court been accused of dragging its feet, that accusation would have had a far more solid basis in reality.
The criticism of the Court's ruling has both a factual basis and a legal one. Factually, critics mention the positive changes that have taken place in recent years as a result of the Tal Law. However, these changes are only admirable if you settle for a cursory examination of the data and ignore the full picture. For example, critics of the Supreme Court ruling point out that in 2010, a total of 1,650 recruits were drafted into the army and national civil service. This number, however, does not reflect the number of soldiers in one draft intake; rather, it refers to recruits from several draft years. Similarly, the picture is not complete and is even misleading if a distinction is not made between military service and national civil service, if there is no differentiation between those who study Torah and those who don't, and if there is no examination of the duration of military service, the age of those who serve, the cost and resources necessary from the army, the percentage of potential conscripts who are exempted from service, the nature of the national civil service that is being proposed as an alternative, and the results of the Tal Law's "year of decision" [a year which yeshiva students spend outside of their yeshiva settings in order to decide whether they want to join the workforce or remain in the world of Torah study—a decision which affects their exemption from the army.]
In 2010, a total of 500 yeshiva students joined the army. As stated above, these soldiers were from several draft years. This figure does not include recruits of the Haredi Nahal—about 400 men—because they are not yeshiva students; rather, they are ultra-Orthodox youth who dropped out of yeshiva study. The rate of yeshiva students who join the army is thus less than one percent of all the yeshiva students who are allowed to defer their army service. The length of their military service is 16 to 24 months, depending on the length of their training and their family status. Their service involves pre-military training, training courses during the service itself, and a relatively large stipend, because at age 24, they are married with children. Even people with incredible imaginations would have a hard time seeing this as real progress toward equality in sharing the burden of army service, when it is compared to the service of other soldiers. Similarly, we can understand why the military is not overjoyed at the prospect of having soldiers perform military service with these kinds of limitations.
The Court pointed out problematic changes in the new drafting procedures that were introduced in March 2011. These include a provision that allows anyone over the age of 22 who is exempt from military service to choose between military service and national-civil service, regardless of his family status or medical condition. This change revokes the supremacy that had been given to military service beforehand, and endangers the willingness of Torah scholars to serve in the army in the future. In 2011, the number of people who served in national civil service was approximately 1,100. That service, however, is for only one year, most of it takes place within the ultra-Orthodox community, and most of it—contrary to a Knesset decision—takes place in special education settings or in mentoring arrangements, and is structured in a way that allows some of the people who serve to complete all their hours of service during several days a week or on weekends only. The supervision and oversight of national civil service was criticized by the State Comptroller.
As for the "decision year"—the year that enables a 22 year-old with a draft deferral to work for a year and postpone his military service for another year-it turned out that the great promise of the Tal Law failed. Despite the relatively large number of young people who left their yeshiva settings for a decision year, it did not actually result in significant enlistment in the military, in national service, or in integration in the workforce.
The critics of the Supreme Court ruling also base themselves on a variety of predictions and prophecies. According to one of these predictions, changing the Tal Law will damage the trend of involvement of the ultra-Orthodox in the military and in the workforce. It is not clear why this hypothesis is being considered rather than the complete opposite-that changing the Tal Law and the amended law itself will strengthen these positive trends. According to another social prophecy, it is very likely that military service would harm the Ultra-Orthodox lifestyle. The basis for this evaluation is not clear. Moreover, it is not at all clear that the special, segregated frameworks for military service that have been set up in consideration of the needs of ultra-Orthodox soldiers are a greater threat to the Haredi lifestyle than integration in the workforce.
As for the legal basis, there is so much focus on protecting the identity of the ultra-Orthodox community that another identity is totally eclipsed-the identity of the Israeli who is required to pay for the discrimination against him by sacrificing his freedom, his labor, his money, and sometimes even his life. It is not only ultra-Orthodox soldiers, incidentally, who are shaken up by their army service. The preparation for military service and the service itself change the lives and identities of other soldiers in deep and profound ways as well, and the encounter between the ultra-Orthodox and other Jews challenges the identity of both sides. If individuals from each group are affected by encounters with the other and change their way of life as a result, it is an expression of individual autonomy and of the individual's right to leave his group-whether fully or partially. From a liberal perspective, this is not a reason for mourning.
I see no justification for stripping the problem of its distinctive legal characteristics: the right of equality, which is entrenched in the right to human dignity, versus the right to culture. It is not clear at all why our legal system presents the identity of Ultra-Orthodox society-against which Zionism rebelled-as a stronger legal card than the right to equality, embodied in the right to human dignity, which is part of the State of Israel's fundamental beliefs as expressed in its Declaration of Independence. If the concepts "identity, values, and society" are barriers to judicial oversight of legislation, judicial review of laws that often involve social questions, moral questions, and questions of identity should be abandoned. There is no point in establishing judicial review of laws if that review will be emptied of content and legitimacy. There is no justification for having judicial review focus exclusively on the protection of minorities. While that is an important function of judicial review, it is also important to protect the rights of all individuals in society, certainly no less than defending the rights of groups in society.
While on the topic of minorities, it is not clear that the group of people that works and serves in the army, and is unequivocally committed to the right of equality, is not a minority group. In our political system, due to the security agenda, the possibility of oppression of the majority by the minority is very real. It is very difficult to deal with this possibility politically, and it cannot be dismissed out of hand. It is hard to find solace in political arrangements between the Zionist parties and the ultra-Orthodox parties, which have non-democratic internal structures and party platforms, as we are witnessing the violation of the value of equality that emerged from such arrangements.
One is forced to ask whether it would have been better if the Court had accepted the petition against the Tal Law filed by Attorney Yehuda Ressler in 2007. Had it done so, perhaps the problem would not have reached its current dimensions.
Critical review indicates that the Tal Law was passed after proper legislative work. However, it does not reveal the political and coalitional constraints that were imposed on the Tal Commission at the outset. Due to these constraints, the Commission's mission was to find constitutional support for the widespread lack of recruitment that existed at the time rather than to change this phenomenon, and this is apparently the root of the evil. The criticism of the Court does not deal with the flaws the Court found in the existing law—not just based on theoretical evaluation, as is the norm in judicial review, but based on the years of experience accumulated since the law was passed. In terms of the relationships between the authorities, it was revealed that the legislature did not properly fulfill its duty to establish an arrangement that would resolve the problem, and the arrangement that emerged as a result of the process is a hollow solution that gives the executive branch the power to drain the law of content. Fundamental flaws were found in the option of automatic deferral of military service to age 22 and in granting yeshiva students full autonomy in choosing between the various paths outlined in the law. It is not at all clear why it is appropriate to object to the real need to amend the law in a way that will enable the legislature to fulfill its responsibility vis-à-vis the executive branch and will enable the determination of arrangements that don't include inherent barriers against military service.
It is very unfortunate that in order to justify a flawed law, a basic value of our legal system is being severely depreciated—the value of equality. Especially since the situation is one in which the equality is literally between one person's blood and another's, and there is a profound gap between the obligations that are imposed on young people who are not ultra-Orthodox and the options that are available to ultra-Orthodox young men.
Court bashing is a regular phenomenon. It delights the Court's enemies and detractors; it delights the dominant political forces, which are thrilled to be released from the Court's yoke and to govern with no limitations, and it also has no risk: If after the Court's ruling the political system will be able to repair the damage, the political system will be able to take credit for the success. If not, we've already told you: It's the Court that's at fault. Bash the Court—save the homeland.
Prof. Mordechai Kremnitzer is Vice President of Research at IDI and Professor Emeritus of Law at the Hebrew University of Jerusalem.