Tal Law expires, leaving legal limbo
The Tal Law officially expired at 12 o’clock midnight Tuesday night and with its expiration 54,000 yeshiva students who have legally deferred national service through their religious studies became obligated to fulfill their military obligations to the state.
The law, enacted in 2002, provided a legal framework for full-time yeshiva students, mainly from the haredi community, to indefinitely defer military service.
Since no new legislation has been passed by the Knesset to replace the Tal Law which was struck down by the High Court of Justice in February as unconstitutional, the 1949 Military Service Law (amended in 1986) mandating compulsory military service for all citizens reaching the age of 18 is now operative.
As a consequence, Defense Minister Ehud Barak now has the legal responsibility to draft anyone fitting IDF criteria into the army.
This legal state of affairs will continue until the Knesset passes new legislation to address the issue. The Knesset is currently on its summer recess and will only reconvene on October 15.
However, the logistical challenges of preparing the army for the mass enlistment of haredi men, as well as the cumbersome nature any of legal proceedings, may provide the government sufficient time to formulate new legislation before it would be legally required to physically draft thousands of ultra-Orthodox men.
In light of the new legal status of those who were until now deferring military service through the Tal Law framework, Barak’s office issued a statement on Tuesday saying that the minister has instructed the IDF to draw up within a month a “practical proposal” for the implementation of the 1949 law for haredi youth.
This temporary order will be employed by the defense ministry until the Knesset approves new legislation to replace the Tal Law.
According to Barak’s statement, the IDF proposal “will reflect and take into consideration the ruling of the High Court of Justice, the requirements and values of the IDF, the principle of sharing the burden of national service more equally, and the suitability of individuals for service, as is commonly accepted.”
Although the Defence Minister is authorized to call up anyone of military age who is fit for service, he also has the authority to grant exemptions. Despite this, the High Court of Justice ruled in 1998 that blanket exemptions on a sectarian basis are illegal since they infringe the principle of equality.
Barak will therefore be unable to address the legal vacuum and practical obstacles of drafting thousands of haredi men in this way.
Despite this legal obligation, and as acknowledged by draft reform campaigners, the practical obstacles involved in drafting thousands of haredi men into the army will preclude their immediate enlistment in the coming weeks and months.
In his comments, the defence minister said that in order to achieve the desired goals of draft equality, the number and capacity of army tracks for haredi men must be significantly increased, and should include technological positions, service in combat units, the Home Front Command and tracks for service in the police and prison services.
He added that the law would be enforced and people who dodge the draft would be sanctioned.
Chief of Staff Lt.-Gen. Benny Gantz also weighed in on the expiration of the Tal Law and said that the military was preparing to draft haredi youth.
“We will make plans as needed,” he said during a tour of the Tel Hashomer Military Induction Center on Tuesday.
Ahead of the expiration of the Tal Law, the “Camp Sucker” campaigners for IDF draft reform sent a letter to Barak on Tuesday through the offices of Arad-Ayalon Nachmani Advocates law firm stating that “it is incumbent upon the defense minister to fully implement the principle of equality with regards to the military draft and the burden of [national] service.”
The letter noted that the defence minister’s responsibility for equality in the draft “is a personal responsibility and not ministerial,” is not dependent on decisions of the government and that the military draft is “entirely within the purview of the minister.”
According to Attorney Dror Arad-Ayalon if the campaign movement does not feel that serious steps are taken in the coming weeks, they will file a petition with the High Court of Justice against the defense minister personally to compel him to begin the process of drafting haredi men of military age.
It seems that Barak’s statements on Tuesday were designed, in part, to preempt any immediate legal action.
And the Military Advocate-General’s Office said that while the petitions would likely be filed, no haredi youth are slated to be drafted on August 1, and regardless it would take time to carry out the entire enlistment process, which usually begins at least a year prior to a soldier’s scheduled induction.
In their letter, the draft reform campaigners wrote: “It is unnecessary to remind you of the fundamental duty of the defence minister to act through the force of law reasonably and fairly, equitably and professionally... specifically with regards to the drafting of those not serving in the army, as directed by the legislature, and in accordance with the rulings of the High Court of Justice.”
Legal proceedings will not be immediately implemented however since a certain amount of time needs to be granted to the minister to set in motion the process of drafting those who have until now been exempted from military service, Arad-Ayalon said.
In response to Barak’s statement on Tuesday, Arad-Ayalon said that although the sentiment was correct, at the moment it “ merely constitutes words” and needs to be followed through with action.
According to Attorney Gilad Barnea, who has filed a petition to the High Court on behalf of the Hiddush religious-freedom lobbying group, should no serious efforts be made to implement the 1949 Military Service Law, the defense minister could technically be held in contempt of court and sanctioned appropriately.
He said however that such a situation was unlikely to transpire.
Hiddush’s petition to the High Court demands that the monthly funds transferred to yeshivot on behalf of its students by the government under the Tal Law framework must cease immediately on August 1.
According to Hiddush, NIS 30 million is transferred every month to haredi yeshivot, totalling more than NIS 400 million per year.