No Greater National Service

(Miriam Alster/Flash90)

Former minister Rabbi Ariel Atias of the Shas party explains the yeshivah-draft crisis that threatens the Torah world in Israel and the ‘game changing’ legislation that could solve the problem of ‘equality’ once and for all.

By Joel Rebibo

At the heart of the political crisis that very nearly toppled the Netanyahu government two weeks ago was a proposed law enabling yeshivah students to continue receiving military deferrals — a top priority for the Torah world in Israel.

What does the proposed law say? Why is it so urgent that it be passed now? How does it differ from earlier laws that were disqualified by the High Court? Does it ensure the continued growth of the Torah world?

For answers, Hamodia turned to Rabbi Ariel Atias, a former Shas Knesset member and minister who was assigned by Harav Ovadia Yosef, zt”l, to push through a legal framework that enables the Torah world to continue to flourish (see box).

Together with United Torah Judaism MKs Rabbi Yaakov Litzman, Rabbi Moshe Gafni, Rabbi Meir Parush and others, he has been working tirelessly to overcome the legal and political hurdles that threaten the ability of yeshivah students to defer army service.

For decades, the defense minister signed an annual deferral for yeshivah students that he would renew every year. What happened to that?

When the numbers of such deferrals climbed above 100,000, certain Knesset members and nonparliamentary groups petitioned the High Court, which canceled the arrangement on two main grounds.

One, the defense minister can’t exempt such a large number; his administrative powers are meant to be used for individuals in very specific circumstances — e.g., promising young athletes seeking an opportunity to train and compete — but not for an entire group. Two, it violates the principle of equality, which, according to the interpretation of [former Supreme Court President] Aharon Barak, is enshrined in a Basic Law, Israel’s equivalent of a constitutional law.

Subsequently, the Tal Law, which gave legislative backing to the exemptions, was canceled by Barak’s successor, Dorit Beinish, because of the equality issue. The way it works is that all laws have to be in line with Basic Laws, which are considered primary, otherwise the court takes the liberty of overriding them.

How do you get around that problem? If you defer service for yeshivah students, and not everyone else, isn’t that always going to run into the problem of inequality?

The court looks at the chareidi world as one group, not as individuals, and basically says as follows: “For decades, the State has accepted the practice of deferring service for this group. It can’t be changed all at once. If part of the group will serve — either in the military or in national service — we’ll allow the rest to continue learning. This may not be equal, but it reduces the degree of inequality.”

In recent years, there have been a number of Knesset committees set up to draft a new law in keeping with the court’s guidelines.

In 2013, when Yair Lapid was finance minister, he tried to put a cap on the size of the Torah world. He wanted a law that set a maximum number of yeshivah and kollel students, and all the rest would be drafted. We succeeded in turning it around, that there is a minimum number of those who have to serve, and everyone else can learn.

But Lapid came back with another dangerous idea. He said that if the minimum number of chareidim doing national or military service isn’t met by 2017, then the defense minister’s ability to defer their service automatically expires. The implication is that if the quota isn’t met, then everyone is drafted — there would no longer be a category of Toraso umanuso. Lapid’s amendment, known as article 19, was passed into law by the previous government, when we were in the opposition.

What were the implications of such a law?

Theoretically, that everyone could be drafted — if the quota wasn’t met, and it wasn’t — and those who refused would be subject to two years in prison. In effect, the law had the potential to turn all yeshivah students into criminals. As such, it would have been impossible to seek government allocations for them. The entire budget of yeshivos and kollelim — in excess of NIS 1.1 billion a year — would have been in jeopardy.

Baruch Hashem, that government fell after only two years, in ways that truly weren’t natural, and in 2015 there were new elections. The new coalition included the chareidi parties, and the first thing it did was pass a new amendment to the draft law, article 21, that revoked Lapid’s amendment.

Okay, so at this point the threat to yeshivah students should be over. Why did the chareidi parties need to force the issue two weeks ago, nearly bringing down the government?

Because the court canceled this law as well, for a number of reasons. The main problem was that it doesn’t say what happens if the minimum number isn’t reached. The law must state consequences, some kind of sanctions or punishment. Otherwise, it’s voluntary.

Another problem is that we wrote in the law that it was temporary, to be in effect only until 2023, thinking that this would soften the element of inequality. But the court rejected this, saying that such “temporary” arrangements have been in place for 30 years.

It gave the government until September 2018 to pass a new law which addresses its concerns. This explains the urgency.

What is the quota, according to the law, and has it been difficult to reach?

It starts at 3,300, and rises as the Torah world increases in number. We, as the chareidi political leadership, have made it clear that we take no responsibility for meeting the quota; our concern is with the Torah learners.

As far as the difficulty of reaching the number, the army reports that it was 90 percent met in 2016. As the chareidi world grows, there is a natural process of people feeling that they need to go out to work, and turning to their Rabbanim for guidance. Some do service in Zaka or Ichud Hatzolah, others in Chabad — there is an agreement that those serving as shluchim in some locations can count their work as national service — and others do military service. Bear in mind that the definition of chareidi, according to the law, is anyone who learned in a Torani school for two years between the ages of 14 and 18, even if afterward they went in a different direction.

So we have until September to come up with a new law that spells out consequences for not meeting the quota, which is something we don’t want to do. Are we on track to meet this deadline with some kind of compromise?

The answer requires a bit of a digression.

In response to the court’s most recent cancellation of the law, the chareidi political leadership decided it was time to take the offensive. We felt it was untenable that the Torah world should be subject to criminal or economic sanctions — in effect collective punishment — because a quota wasn’t met. We needed to do more than just tweak the law a little bit to meet this or that objection. We needed a game-changer.

So we all met — Rabbi Aryeh Deri, the head of Shas; Rabbi Litzman; Rabbi Gafni; Rabbi Uri Maklev; Rabbi Meir Porush — and consulted with top lawyers, including former prosecutors, on how to approach the problem.

The idea was raised that we follow the Canadian model, which says that if the court cancels a law because of a problem of equality, and then the legislature passes the law again, despite the court’s objection, then the law will be in effect for four to five years.

In this way, you aren’t completely ignoring the court, and you are gaining four or five years, and then we’ll see what happens. This isn’t a law that we invented; it’s on the books in a western democracy like Canada.

The only problem is that this model requires that the original Basic Law be rewritten to include a clause allowing the legislature to override it. And this is something that Finance Minister Moshe Kachlon — who has assumed the role of protector of the High Court — opposes vehemently.

Since we didn’t want to prompt a coalition crisis — this government has been very good for the chareidi public — we sought a different solution: passage of a law that enshrines Torah study as a Basic Law.

In effect, with this law, we stop being on the defensive. The court cancels the draft law because it is in violation of a Basic Law regarding equality? We present our own Basic Law in support of the law.

What does this Basic Law on Torah study say?

It states that Torah study is a supreme value for the Jewish people. The State of Israel has since its inception recognized the value of Torah learners — and the proof is that it has allowed tens of thousands to sit and learn and even allocated budgets for them to do so. Therefore, those who dedicate themselves to full-time Torah learning should be regarded as doing substantial national service for the Jewish people.

Such a law would be the game-changer we were looking for. Our strategy was to make some minor corrections to the law that the High Court canceled, and add a reference in it to this new Basic Law on Torah study. We would then come to the High Court with a package deal: The amended draft law and the Basic Law.

The leaders of United Torah Judaism, Rabbi Litzman and Rabbi Gafni, met in the office of Interior Minister and Shas leader Rabbi Aryeh Deri and they agreed that I should meet with Tourism Minister Yariv Levin, who is the liaison between the government and the Knesset and a very trusted confidant of the prime minister.

I sat with him at length and explained to him the law, and how we arrived at the current situation, and why it is urgent that we act now. He heard me out and said he had one problem: at this stage, when the government is approaching the end of its term, it’s impossible to pass a Basic Law. If it were the beginning of the term, there’d be something to talk about.

He said that it would be interpreted by the public as the Basic Law on draft evasion, right before elections.

I countered that the law wasn’t creating a new reality — full-time yeshivah students are already receiving deferrals. Instead, it was simply taking a picture of what already exists and giving it legal backing.

When the issue reached Netanyahu, he also said that he doesn’t have a coalition to pass a Basic Law at this stage, at the end of the term. He said the Likud doesn’t oppose such a law, but his coalition partners did.

This led to a big meeting on Purim night between the chareidi political leadership and the prime minister, in which an attempt was made to approve some kind of amended draft law, even without the Basic Law, something that could satisfy the court before its September deadline.

We wanted some solution, even it was stopgap, in the hope that after the next elections we would be able to draft a Basic Law at the beginning of the term.

It was urgent that something had to be done now. If the government was pushing to pass the 2019 budget in March — even though it wasn’t required to do so by law until the end of the year — that was because there was concern that the government was on its last legs. So if it was crucial that the budget be passed now, it was certainly crucial that the draft law be passed.

So you were forced to drop the Basic Law and amend the current law. Does it address the issues that the court raised to cancel the previous law — no enforcement in the event the quota is not met?

It speaks of enforcement in very general terms. It says that the government has the right to act, in positive and negative ways, if the quota isn’t meant.

And what does that mean?

Nothing. It means the government has the discretion to act, but it’s always had the discretion to act.

Look, it’s a weak law because we took away the supporting wall of the Basic Law. But we told ourselves that time is flying; let’s pass something in preliminary reading and then in the summer see what can be done. I’m not optimistic.

So why did the chareidi parties make do with passage of such a weak law?

Because we looked at the alternatives, and they were worse.

If we had brought down the government over the issue of the draft, that would become the issue in the next elections. The incitement against us would have been ruthless and Lapid would have surged in the polls.

Secondly, we couldn’t allow elections in June because that would have meant Netanyahu rising in power at the expense of the small parties. The polls show that he wouldn’t have taken votes from the left, but from our supporters. So Lapid would rise and Netanyahu would rise, and they would be in a position to form a coalition without the chareidi parties, as was done in 2013.

Then, obviously, there’d be no chance of passing a Basic Law in the next government.

That’s why we had to give in, to prevent elections now.

The bottom line is that we must be strong and must have the support of the public so that the chareidi Knesset representation grows and we’ll be in the next government, with the power to force passage of a Basic Law that ensures the right of yeshivah students to continue learning.

That’s our goal: That no law be passed that in any way limits the number of Torah learners. Anyone who wants to learn must be able to do so. On that principle we won’t compromise, no matter what the consequences.

Volunteering for the Most Important Battle

Rabbi Ariel Atias is no longer a paid public servant. He left politics in 2014 after an extraordinarily successful career — eight years in the Knesset on the Shas list, during which he held two ministerial portfolios, Communications and Housing.

But there’s one bit of unfinished business that has kept him in public service, albeit as a volunteer, and that is the urgent need to preserve the arrangement that allows full-time learners to delay their military service.

From the time he entered the Knesset, as a young man of 36, he received a number of important assignments from Hagaon Harav Ovadia Yosef, zt”l, but none as important to the Gaon as the yeshivah draft issue.

“He wanted me to update him on a daily basis regarding progress on the issue,” Rabbi Atias recalls. “When there was a need to act, he would say to me, ‘Tell me who I need to speak to. The prime minister? The defense minister? The IDF chief of staff?’ He saw this as very central to our ability to maintain the Torah world and allow it to grow.

“Even toward the end, when he was fighting for his life, his concern was the draft bill. I would come to his hospital bed and kiss his hand and ask, ‘How is the Rav?’ and he would respond, ‘What did you do today about the law to enable everyone to learn Torah?’

“He insisted that he be bought a phone so that he could speak to [then-] Defense Minister Moshe Yaalon. He was crying, such that you could barely understand his words. ‘I’m pleading with you,’ he said. ‘We don’t want a clash. We want to make it possible for Torah learning without limits. I’ll daven for you.’ He took it to heart, and that penetrated me.

“The Rav took this so seriously. I said, what a zechus if I could help save, in some small way, the ability of the Torah world in Eretz Yisrael to continue to grow and flourish.”