Israel’s Supreme Court on Thursday unanimously struck down legislation that temporarily froze arrest, investigation and enforcement proceedings against ultra-Orthodox men subject to military service, ruling that the law was improperly enacted and, according to eight of the nine justices, was also unconstitutional on substantive grounds.
The nine-justice panel found that the legislation underwent far-reaching changes between its approval in the first reading and its passage in the second and third readings. The changes were so substantial, the court ruled, that the final version effectively constituted a new law that had never been approved in a first reading.
The rulin
g was written by Supreme Court Deputy President Noam Solberg.
Solberg: Law Undermined Enforcing Military Service
Solberg sharply criticized both the legislation and the manner in which it was enacted, saying that the flaws in the legislative process and the constitutional problems had been repeatedly brought to the attention of lawmakers by the government’s legal advisers.
“The officials responsible for enacting the amendment did not genuinely and sincerely believe that it was constitutional, even at the time of its enactment,” Solberg wrote.
He also stressed the practical significance of the legislation, saying it deprived the Israel Defense Forces of one of its principal tools for enforcing military conscription.
According to Solberg, the arrest of draft evaders is considered by professional military authorities to be a potentially effective mechanism for creating a positive incentive to enlist.
Nature of Law Does Not Cure Fundamental Defects
The law, approved by the Knesset approximately two months ago, stipulated that no arrest, investigation or enforcement proceedings would be initiated against Torah students designated for military service until November 30.
The legislation was passed despite objections from the government’s legal advisers and IDF Chief of Staff Lt. Gen. Eyal Zamir.
Five petitions challenging the law were subsequently filed with the Supreme Court.
Solberg rejected arguments that the court should refrain from striking down the legislation because it was temporary.
“If the basic conditions required for the existence of a law are not met, how can its temporary nature justify its validity?” he wrote.
Justices Find Violation of Constitutional Right to Equality
Beyond the procedural grounds for invalidation, eight of the nine justices concluded that the amendment was unconstitutional because it seriously infringed upon the constitutional right to equality.
Justice David Mintz was the sole member of the panel to dissent on the substantive constitutional question.
Solberg further ruled that the law failed the requirement of a legitimate legislative purpose. He criticized the blanket exemption from enforcement granted to the relevant population, noting that the legislation did not distinguish between individuals who genuinely devote themselves to full-time Torah study and those who do not.
“A purpose that concerns exempting a particular population group from the enforcement of criminal law is a purpose that, except perhaps in the most exceptional circumstances, is not legitimate,” Solberg wrote.
He added that such a policy “grossly violates one of the state’s deepest obligations toward its citizens — to exercise the coercive power entrusted to it fairly and equally.”
Nine-Justice Panel Delivers Broad Ruling
The panel consisted of Deputy President Noam Solberg and Justices Daphne Barak-Erez, Yael Wilner, Gila Kanfi-Steinitz, Ruth Ronnen, David Mintz, Ofer Grosskopf, Alex Stein and Yehiel Kasher.
The ruling represents another major intervention by Israel’s Supreme Court in the long-running dispute over military service for the ultra-Orthodox community and the state’s obligation to enforce conscription equally.
“A Victory for Equality Before the Law”
The Movement for Quality Government in Israel, one of the petitioners, welcomed the ruling as an important victory for equality before the law and the rule of law.
“The Knesset attempted to pass, through a flawed legislative process, a law that deepens inequality and weakens enforcement of the military service obligation — and the Supreme Court struck it down,” the organization said. “One law must apply to everyone.”
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