THE HISTORY OF DEFERRAL
The heart of the Supreme Court’s verdict is its decision that the Tal Law violated the Right to Equality, thereby making it unlawful and invalid. This line of reasoning only became possible after Israel’s Judicial Revolution of 1992, when the Head of the Supreme Court at the time, Aharon Barak, created Israel’s version of a Bill of Rights.
Barak noted, “In 1992 the Foundation Laws of Freedom of Occupation and of Human Dignity and Liberty were legislated. With their legislation came a fundamental change in the status of human rights in Israel, they became legal rights. They have a hyper-legal standing. A regular law of the Knesset cannot change them. A regular law cannot violate protected human rights unless there is fulfillment of the demands anchored into the foundation laws. Non-fulfillment of the legal requirements turns a regular law into an illegal law. It becomes a law with a legal flaw. The court must announce its annulment.”
This is exactly what happened at the annulment of the Tal Law last week. It collided head on with Barak’s Bill of Rights and lost.
To put the verdict in perspective, there is a history of army deferment that began before the birth of the state. The first deferment was in March 1948, when the head of the Hagana (the IDF did not yet exist) announced that “a decision has been reached that bnei yeshivos, according to authorized lists, are exempt from army service. This decision is valid for the duration of 1948, and at the end of the year it will examined anew.”
After the founding of the state, David Ben Gurion, serving as Prime Minister and Defense Minister, agreed to continue the deferment. The Holocaust had just ended, the yeshivos in Europe were in ashes, and even Ben Gurion understood that the yeshiva world would be in mortal danger if its students were forced to enlist. The arrangement began with the deferment of 400 talmidim a year, a limitation that was gradually enlarged and was then discarded altogether.
As the yeshiva world grew, discontented secular Jews began petitioning the legality of the deferment in court. Early petitions in 1970 and 1981 were rejected. Deferment was something for the government to handle, and not subject to judicial procedure. There was a turnaround in 1986 when the court decided that the matter was subject to judicial procedure after all, but the court found that the government was handling it legally. At that time, only 1,674 talmidim were deferred (5.4% of the national turnover of 18 year olds for that year) and only 17,017 talmidim were enjoying deferment in the whole yeshiva world. The court agreed that a certain critical mass of yeshiva students was necessary to provide a decent quality of learning in the Torah world.
THE TAL LAW
By 1997, a new petition presented data showing a vast growth in the total number of deferrals. They had now reached 28,547, and the number of students deferred in 1996 was 7.4% of the national turnover for that year. The court ruled that “due to the constant increase of talmidei yeshiva whose occupation is Torah and who receive military deferral and eventual exemption from army service, and due to the rift in Israeli society regarding the deferral…, on the basis of the legal problems… and the need to provide an inclusive legal solution, the Knesset must become involved in finding a solution to this severe problem.”
The court gave the government a year to formulate a law of deferral, stressing that “the said deferrals or exemptions could apply to all bnei yeshivot with no limitation on their numbers, since there is no intent to prevent them continuing their studies, all in accordance with the law.”
This led to the Tal Committee and the formulation of the Tal Law of 2002, a temporary deferment law that could be renewed after five years. Innovations of the new law included a “year of decision,” during which a talmid could work for a year and afterwards decide if he wanted to return to Torah study or go to the army. In some instances, talmidim were provided the opportunity to perform non-military national service instead of serving in the army.
In 2006, the Movement for Quality Government in Israel petitioned to the Supreme Court that the Tal Law in its present form contravened Israeli law. They claimed that army deferral for only one group of people violated the right of equality. At this point, the total number of deferred yeshivaleit had risen to 38,449 in 2003, jumped to 41,450 in 2005, and reached 45,639 by 2006, while there was little increase in the number of yeshiva recruits to the army.
In response to the 2006 petition, the Supreme Court ruled that the law as practiced indeed violated the Law of Human Dignity due to its equality. Nonetheless, the court decided to allow the law to run a few more years to give the law more time to prove itself.
“We asked to wait and see whether the law would succeed in creating the desired social change,” the verdict said. “We established that ‘if the change did not arise, there was serious concern that the law would become illegal and there would be no option but to examine all the arrangements anew from both social and political angles.”
Recently, the Movement for Quality Government in Israel, the Secular Zionist Party, the Forum for Equality in the Burden of Military Service, and others petitioned the court once again, arguing that the law was illegal and should not be renewed. Their main claim was that there has been no real change in its implementation since Barak’s 2006 ruling, and it should either be annulled or revised. Although the government had been given time to take action in 2006, the number of recruited bnei Torah was a “drop in the ocean” compared to those deferred, and the number of deferrals was rising constantly. The Tal Law was having little affect.
In reply, the government argued that more time was needed to see an affect. During the past few years, recruitment of bnei Torah to the army and national civil service had risen almost six-fold, and in the last four months of 2010, about 120 people were recruiting for civil service every month. All this showed potential for much more. Plans were afoot for 4,800 bnei Torah to recruit in the year 2015, about 60% of their age bracket for that year.
But the court was not happy with recruitment data. There were only 1,357 yeshiva recruits in the army in 2009. In 2010, 898 boys were recruited from a total of 7,700 eighteen-year-olds in the Torah world. In January 2011, the total number of deferred talmdim had grown to 61,877, and this total was increasing by about 4,000 deferrals a year.
Despite a certain amount of progress, the Tal Law’s slow track record showed it was inherently flawed. Furthermore, the law had no real agenda and could be neglected at will, in addition to the fact that the expense of recruiting older avreichim when they have families creates an inherent reluctance to recruiting them. Furthermore, because the Tal Law avoided coercion, absence of any coercion ensured there was no guarantee that people would enlist.
In conclusion, the law had “genetic” flaws that could not be rectified. Based on the low recruitment figures, the court decided that the Tal Law was not eliminating inequality efficiently enough. It thereby contradicted the Right of Equality as included in the Right to Human Dignity and Liberty, and it was therefore invalid.Despite this, Justice Beinisch urged the court to allow the law to run through its second five year period that ends on the 1st of August this year.
Dissenters amongst the judges argued that the government should be given more time to realize the law’s objectives, while Justice Asher Dan Grunis rejected the verdict altogether, arguing that the court had no business reviewing a government passed law where a majority had granted a benefit to a minority.
As mentioned earlier, Prime Minister Netanyahu agreed that Tal cannot continue in its present form. Defense Minister Ehud Barak welcomed the ruling, and he called on the government to not delay in passing a new law that will “bring equality to Israeli society.”
““I have said several times over the last few weeks that after 10 years, the law did not meet expectations and did not result in the required change in widening the circle of people participating in civic duties,” he said.
Interior Minister Eli Yishai of Shas argued that the Tal Law will have to continue for another year despite the court ruling, and he was confident that “there won’t be a yeshiva student who will need to leave the world of Torah because of the abolishment of this law.”
On the other hand, Foreign Minister Avigdor Lieberman (Yisrael Beitenu) said on Monday that the law will not be extended even for one hour after August 1st, noting, “It must be made clear that anyone who does not serve in the military or National Service will not be eligible for anything from the State. That is an integral part of our bill.”
It has been argued that the IDF is really not interested in yeshiva recruits at all. The pressure on yeshivaleit is merely to create a situation where they will be forced to contravene the law and end up deprived of state benefits. Indeed, in October, Brigadir-General Amir Rogovski of the IDF’s Human Resources Directorate told the Knesset Tal Law working group that although there were 700 applicants for the Shahar army track for chareidim, only 500 places existed due to the Treasury refusing to provide sufficient funding. In addition, strictly-religious units require special conditions, including separation from women and time for tefillos and Torah study, and married soldiers need extra funds for family support, making it harder for the army to recruit them.
On the other hand, the IDF is facing a decrease in the number of its annual recruits, especially for key combat and technical units, and it is known that the army finds many suitable recruits for the latter among yeshiva men. This year, the army expects 8,000 less army recruits less than it had in 2005. Furthermore, according to current data, yeshivaleit will constitute a quarter of the draft pool within a decade, and that’s only the beginning. In the year 2000, nineteen percent of first graders in Israel were from the Torah society, and this number is expected to jump to 30 percent by 2014. It is difficult to claim that the army is nonchalant about such a large chunk of potential soldiery.
In line with this, a senior member of the General Staff said recently, “We have an interest at this time in generating a discourse on equality in service. To that end, we recently took an active step. I refer to a demand to fulfill the original purpose of the Tal Law, not only the law itself. This involves not only Haredim but also the huge number of women who are exempted from service on religious grounds – an exemption to which not all of them are entitled.”
REACTION OF THE TORAH WORLD
Last Thursday, the Israeli Yated Ne’eman printed a powerful attack of Rav Shmuel Auerbach against the court’s ruling:
“I hereby express my opinion regarding the terrible decree to violate the heart of Jewry, the plan to recruit bnei hayeshivos,” he wrote. “Chalilah, such a thing shall not be in Yisroel. We have received from our rabbonim that such a decree is equivalent to the uprooting of religion for which we are commanded to give our lives without compromise in order to sanctify the name of heaven. May Hashem turn round the hearts of all involved so as not to violate the existence of Torah and Judaism… Written and signed in the name of the chochmei Torah.”
Rav Ovadiah Yosef condemned the ruling in his weekly Shabbos droshah.
“No other nation is faithful to Hashem as we are with our constant Torah study,” he said. “Never was there such a phenomenon, thousands and myriads occupied with Torah, children, yeshiva ketana, gedola, kollel… This is our pride, Hashem rejoices over us. Bachurim leave all the vanities of this world and study Torah; in their merit Yisrael will be redeemed. We do not need to attack anyone. Hashem will fight for you, and you keep silent (Shemos 14:14). We trust in Hashem.”
In the meanwhile, frum politicians seemed confident that nothing will come of the Supreme Court’s verdict. MK Moshe Gafni of UTJ (United Torah Judaism) felt sure that “those who study Torah under the framework of the Torah being their profession will continue to study Torah. In their merit the world continues to exist as Yirmiyohu (33:25) pointed out.”
MK Yisroel Eichler of UTJsaid he hoped the ruling may be overturned, claiming it was based on false legalities and non-democratic procedure.
“The State of Israel has no constitution, and it is a fiction to talk about constitutional or not constitutional,” he said. “It’s an agreed-upon lie, and I reject the right of the High Court to determine what is constitutional and what is not. [The justices] are not elected by the public, but political appointees.”
In reaction to the crisis, Torah parties decided to create a united front. Deputy Health Minister Yaakov Litzman of UTJ wrote to Eichler expressing the importance of unity to fight the threat.
“As you know, we are presently at the beginning of an important battle for principles that entail the survival of Chareidi Judaism,” he wrote. “Leading them are the decisions of the Supreme Court to annul the Tal Law, and of the Tel Aviv city council to allow public transport on Shabbos. The danger that threatens obligates all parties in the Knesset, Shas and the UTJ to unite for concerted action… I am sure that such a decision will certainly effect our determined position and our stand against all our opposition in the government and Knesset, through our united goals on behalf of the Haredi public.”
On Sunday evening, an emergency meeting was held in the Bnei Brak home of Rav Aryeh Leib Shteinman, attended by Meir Porush of UTJ, Eli Yishai of Shas, Rav Yosef Efrati, (a confidant of Rav Yosef Sholom Elyashiv), and others.
“There is nothing to add,” Rav Steinman summed up. “The main thing is that the Torah is our life and without this we have nothing. Rav Saadiah Gaon says, ‘Our nation is only a nation through its Torah.’ What does this mean? Is it enough to have a sefer Torah in a cupboard? This means people learning Torah. When should they learn? When they’re seventy! Thus, this is our life, and without it, there is no life…
“If they disturb anyone from learning Torah, especially during the years when a person has strength to learn, this counts as annulment of the whole life of Klal Yisroel. May Hashem help that as we passed through so many generations with all sorts of gezeros, now also, Hashem will help us pass through this difficult situation.”
Afterwards, MK Yaakov Litzman said that Agudas Yisroel, Degel HaTorah, and Shas will make a united front against the new threat. Although battle plans still need to be formulated, one thing is clear — Torah study will never be compromised.