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The Supreme Court has rejected the government’s present policy of (effectively) allowing mass exemptions from army service to Haredi, or ultra-Orthodox, kids as unconstitutional and discriminatory.
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This is a segment from The “Serving God and Country” Edition.
As a non-Hebrew speaking outsider, information on the Court’s decision is quite limited, being only this podcast and a Haaretz report for me. The latter seemed to read that the Court struck down the law as infirm on its own terms; that is, the failure of essentially voluntary enlistment to slowly bring up the Ultra-Orthodox numbers made the law infirm in its own (Knesset) goal of equal proportions. I thought this meant that the Court retained that goal (decreed by the Knesset) while striking down its implementation, saying that the Knesset must try again, rather a helpmeet to the Knesset rather than a fundamental bar on the Knesset. If so, since the Knesset created the equal proportion goal, it is unclear to me weather or not that body may just rescind that goal; that is, is the High Court simply imposing consistency on Knesset will or is the Court superimposing an equality condition the Knesset cannot amend? The issue tilts between Knesset and judicial supremacy, what I think the fundamental point of constitutional conflict in Israel, albeit usually masked. (Some MKs, however, declare the issue directly and want to legislate against Court intervention, bringing the issue full front: can the Knesset, in supremacy, override any Court decision?) I recall Haaretz saying that the sole dissenting Justice on the expanded panel asserted that on the majority’s own reasoning the government has not yet been shown to fail its long term goal of equal representation in the IDF. This Justice would seem to be saying that the issue is one of efficacy of Knesset intent, not judicial supremacy mandating a social structure of equality. I do not see how the latter view is possible unless the Court has a standing beyond Knesset control. (It may be wroth noting that in the US Congress could try to defund the judiciary in part or whole, and that Article 3 of the Constitution allows Congress to provide “Exceptions” to appellate jurisdiction by the Court; whether present Amendments to the Constitution alter this has yet to be decided–so if Congress limits speech and then excepts its law from appellate jurisdiction, is the First Amendment still being upheld as restraint on Congress?)
My very limited reading of Israeli jurisprudence is that the Court generally frames itself as corrective to Knesset declared intent rather than guardian of independent principles. The Haaretz report seems to fit this view, as does both the outgoing Chief Justice’s comment (quoted in your podcast) and the sole dissent. In other words, the Court is trying to instate a constitutional principle by saying the Knesset says it wants the same anyway. Ultimately, that cannot work. Short term, it might, depending on votes in the Knesset, but already one sees significant noise among coalition MKs to essentially subordinate the Court permanently (as in Justice Minister Shaked’s stand on “individual rights” vs “Jewish State”).
On the issue of exempting Haredi for contributing in other ways to Israel, the principle might be expanded to all Israeli citizens, creating a national service option for conscription, thereby also moving to equal participation by Arab citizens. It might be possible to construct a national service where religious study is linked to some form of national service somewhat compatible. In this way a group recognition is melded with individual legal demand with some semblance of equality. (The same arching logic applied to Arab citizens.) Undoubtedly fraught with minefields, this approach would recognize the foundational importance of group life for many Israelis.
But the core, breaking, issue is Knesset vs judicial supremacy on constitutional matters. The only evidence I see of the Court asserting the latter recently is in striking down a ban on a NGO human rights commercial, the Court saying the commercial, lauding human rights, could not be seen as political in content–which says that human rights contour the political rather than the reverse, giving them constitutional status. This decision is inconsistent with the “Jewish before individual” bill in the works and does suggest independent constitutionality by the Court. But that was only a three judge panel I believe, and the case was over an administrative act, not Knesset law.