As the Shaked Committee votes on its proposal for the Haredi draft, Prof. Yedidia Z. Stern warns that the proposal's recommendation to grant a blanket exemption from service to Haredi men of draft age during a three-year "adjustment period" after the passage of the law is both inequitable and ineffective. As a result, it would be reasonable for the High Court to strike down the law if passed.
The Shaked Committee has begun voting on the provisions of its proposed bill for equality in sharing the burden of military service in Israel. This is the final stretch of a social, political, and legal process that has spanned several years and is intended to correct an imbalance as old as the State of Israel. The members of this Knesset committee have engaged in serious discussions over the course of many months, as befits the issue. However, it is very probable that the law that emerges from the work of the committee will be so problematic that Israel's High Court of Justice will have no choice but to declare it unconstitutional.
The High Court is a major player on the issue of the Haredi draft. Two years ago the Court struck down the Tal Law. This led to a chain of events that brought us to where we are today: the ruling coalition dissolved, new elections were held, a coalition without Haredi parties was formed, and three committees were established: the Plesner Committee, the Peri Committee, and the Shaked Committee. Last week, the High Court intervened again, issuing a yellow card to the Knesset for having failed to enact the necessary new law. In both of these cases, however, the High Court's intervention is difficult to justify.
The High Court's repeal of the Tal Law was a blatant act of judicial activism, as it invalidated a law that had been the result of balanced and judicious work by a public committee headed by a respected former High Court justice, that had been passed repeatedly by the legislature, and that was valid for approximately a decade. The recent High Court intervention is also puzzling given that the Shaked committee is in the midst of intensive work on the issue of the Haredi draft and is currently at the stage of voting. However, even those who believe that the High Court should refrain from getting involved in sensitive issues of identity and social discord, as I do, would agree that the Court should intervene in extreme cases in which there are serious violations of the principle of equality. Unfortunately and absurdly, the law that is currently being drafted by the Shaked Committee is likely to be so inequitable that even according to those like me who believe that the High Court should not get involved in matters of identity, such intervention will be necessary.
What are the issues with the Shaked Committee's proposed bill? The legislation on which the committee is voting stipulates that there will be an "adjustment period" that will be in effect from 2014 until mid-2017, during which there will be a de facto draft exemption for all Haredim. More precisely: tens of thousands of young ultra-Orthodox men aged 18 and above on the day that the legislation is passed will be able to avoid military or civilian service, and by the time they reach age 22, they will be free to do as they please. In addition, although the proposed legislation sets ambitious conscription targets for each of the three years of the "adjustment period," these provisions are essentially empty words, since the law does not include any arrangements—whether sanctions or incentives—that would lead to the achievement of those goals. It is therefore obvious that the goals will not be met.
It follows from the above that if the Shaked Committee's legislation is accepted, it will lead to a massive and immediate decrease in the number of Haredim serving in the IDF. Only a negligible minority of young men will choose to serve when it is common knowledge that at age 22 they will receive a full exemption from service. The impressive trend of growth in ultra-Orthodox military service—with new programs for thousands of recruits being established—will come to an abrupt end. George Orwell, the creator of "Newspeak," could not have put it better: "Equal sharing of the burden" is to be achieved by a sweeping exemption of tens of thousands of men from carrying that burden, and this will be combined with an "adjustment period" that will establish a norm of non-adjustment to the very concept of sharing responsibility.
The general public has not yet noticed this absurdity. They are blinded by the enticing vision of future criminal sanctions against Haredi draft dodgers that is being dangled before their eyes. Of course, by the time that future arrives, new elections will be held in Israel, and a new coalition will be formed. That new government will probably include ultra-Orthodox parties, who will promptly change the arrangement for the Haredi draft or render it completely meaningless. Accordingly, the only certain result of the Shaked Committee's proposed law is that all of the Haredi men who are currently of draft age will be able to avoid serving the State of Israel.
When the Israeli public actually processes the meaning of the proposed arrangement, it is easy to imagine the rage that will be directed against the lawmakers who were given a mandate to reduce inequality and choose to increase it drastically instead. The Biblical prophet Balaam was hired by the King of Moab to curse the nation of Israel and ended up blessing them; the Knesset members tasked with formulating the arrangement for ultra-Orthodox conscription were meant to bless the people of Israel, but it appears that the result of their work is a curse. If their legislation indeed passes, it is likely that the High Court will invalidate it, and this time, for good reason.
The proposal to exempt Haredim of draft age from service during the three years following the law's passage is intended to entice ultra-Orthodox men to leave their yeshivot and join the workforce immediately. But the reasoning behind this is flawed. The lifestyle of the "society of learners," in which ultra-Orthodox men devote themselves exclusively to a life of Torah study, is based on a deep commitment and will not change at the blink of eye. Change can only happen if there is a slow and steady process of maturation. Breaking down the doors of ultra-Orthodox study halls during the 36 months following the passage of the law will not empty out the yeshivot, since the ultra-Orthodox leaders will mobilize their forces to protect the walls of their communities and keep students in. The Haredi leadership will see the adjustment period as the ultimate test of the integrity of the Haredi enterprise as a whole, and as a result, the pressure against going out to work will also increase dramatically.
Moreover, even if the hopes of the proponents of the bill are realized, and tens of thousands of Haredim close their volumes of the Talmud immediately and leave their houses of study in droves, there is a good chance that these men will become unemployed. The Israeli economy cannot instantly offer tens of thousands of jobs to applicants who are intelligent but lack any relevant education. If a mass Haredi exit from the houses of study were to fail, it could create intense despair over the possibility of ultra-Orthodox integration into Israeli society and trigger a mass return to the Haredi ghetto that would be devastating. The process of integrating the ultra-Orthodox into the workforce, like the process of integrating them into the military, also requires a process of evolution not revolution.
The High Court forced the Knesset to enact the Haredi draft law. Will the Knesset pass legislation that the Court will be forced to dismiss?
Prof. Yedidia Z. Stern is Vice President of Research at the Israel Democracy Institute and a Professor of Law at Bar-Ilan University. He was a member of the Plesner Committee for Equality in National Service and has appeared before the Shaked Committee on Haredi Enlistment. A summary of the proposal for a framework for ultra-Orthodox conscription that he drafted with Attorney Haim Zicherman can be found here.
This article was published in The Times of Israel as "How to Not Draft the Ultra-Orthodox" on February 18, 2014.
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