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.
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