Israeli High Court’s Decision On the Draft Exemption for Yeshivah Students

The High Court on Tuesday ruled that the exemption given by the IDF to full-time yeshivah students who defer their army service on the basis of “Torato umnato — Torah study as a career” violates Israeli Basic Law, considered by the court to be the equivalent of a constitutional provision. The current law, flawed as it is, will remain in effect for another year, providing the Knesset and the IDF time to pass new legislation on the matter if they still want to maintain an exemption for yeshivah students.

Tuesday’s decision invalidates a change to the original Tal Law, which had been declared unconstitutional by the court in 2012. The Tal Law was allowed to expire, but was renewed in 2015 with several different provisions, most notably a ceiling on the number of students that could defer their service and a set number of yeshivah students that would enlist in the IDF each year. In addition, training and employment programs would be provided to yeshivah students who at the end of their deferment period could serve in the IDF and/or receive job training.

MKs hoped that that would satisfy the court’s demands that any law passed would be “equitable,” but on Tuesday the court struck down the changes as well. In its decision on four petitions against the law, the court said that the current method of deferment “damages the principle of equitable service.” Eight of the nine justices said that that was sufficient to make the law unconstitutional, and even “irrational.”

The majority opinion, written by Chief Justice Miriam Naor, says that the deferment law “seriously damages the constitutional provisions of Basic Laws on human rights” by essentially discriminating between different groups. Among the “many” problems with the law as it stands, wrote Naor, is that under the arrangement, yeshivah students are essentially “free to do what they want during the initial six-year exemption period, and this is without any sanction” or incentive to serve in the army or enter a job training course, privileges not granted to other inductees.

After that period, students are supposed to make a decision on service or work, and are essentially under the IDF’s jurisdiction for the next three years, but under the law, the Defense Minister is responsible for enforcement, and can grant extensions of the exemption, another benefit not available to the average soldier. In addition, the numbers of those enlisting in the army at the end of the exemption period have not been significantly higher than they were before the changes to the law were passed — indeed, the number of yeshivah students who are joining the army are far below the minimum number that the law requires, more evidence of the its failure, Naor wrote.

The law’s greatest failing, however, is the fact that it is to expire in 2023 — and there is nothing on the horizon to replace it, Naor wrote. The result is that laws on exemption of yeshivah students are “like patchwork upon patchwork, signifying a deep failure in the Knesset’s ability to deal with the main issue, which is limiting the inequality in IDF service that currently prevails.” While the current plan clearly has its temporary political advantages, it does not have the necessary heft to create the long-term change that is needed.

Writing in the decision, incoming Chief Justice Esther Hayut, who concurred with Naor’s opinion, said that “as the court is responsible for defending the rights of people and for ensuring that the rule of law is observed, it must use the legal tools at its disposal to carry out its mission of, among other things, criticizing laws that require such criticism, without taking into consideration outside influences that would require it to soften its positions.”