The Foundation for Constitutional Democracy


The Barak Court

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Jerusalem Post, Dec 18, 1998, p. 16

In three successive weeks, the courts have handed down precedent-setting rulings that contain the seeds for fundamental change in the way the country looks and feels. The first was the November decision by the High Court of Justice to force the religious councils in Jerusalem and Kiryat Tivon to seat representatives of the Reform and Conservative movements, a small victory by these movements in their struggle to gain recognition and legitimacy in the eyes of the state. The second decision came two weeks ago, when the Jerusalem Labor Court ruled that kibbutz shopping centers could remain open to the public on Shabbat.

This ruling drastically changed a situation in which only selected places of “cultural activity” such as theaters and cinemas were permitted to operate on Shabbat. An appeal on this is inevitable. The third and most significant decision was last week’s High Court of Justice ruling rendering “illegal” the current situation where yeshiva students receive wholesale draft deferments. The court gave the Knesset a year to draw up legislation determining whether and how many yeshiva students can continue to receive deferments.

Relating to these rulings, the Agudat Yisrael daily Hamodia wrote earlier this month, “It is difficult to rid oneself of the feeling that there are people in Israel’s legal system, from the Supreme Court down to the labor courts, who have placed themselves in the service of the state’s anti-religious sectors and are leading the people in Zion to a split. These people, one after the other, are adopting every anti-religious petition that reaches their desks.” The paper’s angry reaction was expected. In fact, it was mild compared to the reaction in another haredi daily, Degel Hatorah’s Yated Ne’eman.

Jerusalem Post, December 15, 1998, Page 8


Last week’s landmark High Court of Justice ruling, which declared the current system of army deferments for yeshiva students illegal, has the potential to do good. Outside the haredi community, there is virtual consensus that this system should be changed. If the ruling spurs the Knesset to draft a reasonable compromise, everyone will benefit.

It may therefore seem paradoxical to say the ruling was nevertheless wrong. Yet from a legal perspective, it was untenable—and for a body whose job is to uphold the law, to degrade it into no more than the justices’ whim of the moment is ultimately far more damaging than any good the decision might produce. For if the nation’s chief interpreters of the law feel no need to respect it, how can ordinary people be expected to do so? To say that last week’s decision was not based on law may sound far-fetched.

One of the court’s most stunning achievements in recent years has been its success in persuading the public that it is merely interpreting existing law, rather than creating it. A glance at the history of this particular issue, however, shows how spurious that claim is. The court has discussed yeshiva deferments many times.

As far back as 1970, a petitioner complained that the defense minister was abusing his discretion by granting wholesale deferments to yeshiva students. The court at that time said this was a political question and therefore not justiciable (appropriate for judicial decision). In 1981, a similar petition was filed.

Once again the court found the issue non-justiciable: It lacked legal criteria by which the justices could decide, the court wrote, and it was a public issue that should be settled by non-judicial bodies. In 1986, the court ruled on the issue again. This time, a panel led by current Supreme Court President Aharon Barak decided the issue was justiciable.

No law had been passed in the interim to provide new legal criteria—but there were new justices, with a different legal philosophy, which held virtually no question inappropriate for the court to decide. Yet even this court dismissed the petition on its merits, saying the deferments were a legal and reasonable use of the defense minister’s powers. And what has changed in the intervening 12 years? Again, no new law has been passed.

The justices themselves said the important difference was numerical. In 1986, there were 17,017 yeshiva deferments - 5.4 percent of that year’s eligible draftees. By 1998, there were 28,772 deferments, or 8% of eligible draftees.

That quantitative change, Barak wrote, created a qualitative change whereby it was no longer reasonable to let the defense minister decide—an explicit decision by the Knesset was needed. It is hard to imagine a flimsier argument than one that says 5.4% and 8% are qualitatively different. The ruling becomes even more incredible, however, when one considers the fact that the Knesset, far from being silent, has discussed this issue several times.

Only this July, the house rejected three bills to limit yeshiva deferments. It is true that the Knesset never explicitly authorized such deferments, but it expressed its opinion amply by rejecting all efforts to change the status quo. The real change that occurred between 1986 and 1998 had nothing to do with either the number of yeshiva deferments or the law.

The difference was simply that in 1986 the court could not have gotten away with such a ruling - but in 1998 it could. In 1986, the court was still operating in the climate of judicial restraint created during its first four decades of existence. The idea that it could—much less should—make major policy decisions was foreign to the Israeli public.

Not only were political issues considered non-justiciable, but the now ubiquitous “public petitioner” was unknown. Until the mid-1980s, only someone directly harmed by a government decision could petition the court against that decision. Since then, the law has not changed, but the court has created a new norm: Anyone can petition the court on anything at all, and no issue is beyond its purview.

Over the past 12 years, the court has declared MKs unfit to be ministers or deputy ministers, revoked an Israel Prize, reversed attorney-generals’ decisions not to indict, and struck down the closure of a street on Shabbat—all with no backing in explicit written law, but merely on the grounds that these actions were “unreasonable.” Twelve years ago, the court found wholesale draft deferments for yeshiva students reasonable. Last week, it found them unreasonable—though no new law had been passed. But if the law is no more than what 11 men and women consider “reasonable” at a given moment, why should it command our obedience? And if law is supposed to be made by our elected representatives, why should an unelected justice’s ideas of reasonability have any more power than those, for instance, of Rabbi Ovadia Yosef? Decisions like the one made last week lay the court open to these kinds of questions.

And in the long run, such questions are far more dangerous to Israeli democracy than yeshiva draft deferments.

Dec. 10, 1998, p. 1


There were several reasons why yesterday’s High Court ruling was truly a landmark decision. First, obviously, it forces the Knesset to address the issue of drafting yeshiva students and sets a deadline, even though it is relatively far in the future. The decision in effect contains the default option, should the Knesset fail to pass a law within the one-year deadline.

The court held that the Defense Ministry does not have the power to grant deferments to yeshiva students, and if the Knesset fails to enact a deferment or an exemption by the deadline, the yeshiva students would have to be drafted. Secondly, the reasoning for the decision makes it important from a constitutional standpoint, above and beyond the short-term political significance. The court held that it is the Knesset, not the government or a specific minister, that should make the important choices of social policy, such as the draft issue.