December 18, 2018

The Charedi draft: Here we go again

Here we go again, like a broken record, and the sound is dissonant, disappointing, and disgraceful. Israel's Security Service Law, which drafts our sons and daughters into the Israeli Defense Forces (IDF), compelling them to risk their lives for their country, has been amended again by the Knesset because of changes in the make-up of the coalition government. Made in response to demands by the ultra-Orthodox parties, this amendment is the latest twist in the complex and absurd saga of the ultra-Orthodox draft in Israel.

Drafting the ultra-Orthodox for service in the IDF is both appropriate and doable—without a religious and cultural conflict—if the political system is smart and enables the members of this community to make this historic change at the right pace and under appropriate conditions. Although the new amendment ostensibly achieves this, since it exempts the ultra-Orthodox from military service for an eternity of nine years, the amendment is bad news for several reasons:    

First, Israel's Security Service Law has tremendous symbolic importance. The incessant zig-zagging on this law and its disfigurement through hurried and ill-thought out changes, devised in response to the religious and political desires of an oft fleeting Israeli government, is damaging national security.     

Second, it is very likely that judicial review by the Supreme Court will determine that the amendment is unconstitutional. The biggest problem with the amendment is that it entrusts Haredi conscription to the Defense Minister, who is to use his discretion to define target goals for ultra-Orthodox conscription, as well as the steps that the state will take if the goals are not met. There are no limitations on his discretion and it is wide open to his personal preferences. Thus, in doing this, the Knesset has waived its authority to decide on one of the most important and essential issues on the national agenda and entrusted it to the executive branch—a practice that was deemed unacceptable by the Rubenstein Supreme Court ruling of 1998.    

Third, the Knesset's abdication of responsibility—after years of deliberation on this matter, which was at the heart of the last Knesset election—is a clear example of the problems of the system of government in Israel. The vast majority of Knesset members would oppose this amendment were they allowed to make a straightforward, values-based decision. This was also true of the previous amendment of this law, when the Yesh Atid faction forced the majority of the Knesset to back its position because the coalition hinged on its support. These two episodes indicate the Israeli political system does not enable the will of the majority to determine policy. The Knesset's behavior regarding this law is an expression of its bankruptcy and dysfunction regarding central issues on the national agenda.   

Fourth, the amendment is unconstitutional. Attorney Miri Frenkel-Shor, legal advisor to the Knesset's Foreign Affairs and Defense Committee, issued a well-reasoned and convincing legal opinion warning of this before the Knesset vote. Knesset members who voted in favor of the amendment thus played into the hands of the Supreme Court, which will ultimately have to rule on this national issue and reject the opinion of the majority of the Knesset.  

Lastly, once the Supreme Court strikes down the amendment, many people will rail against the Court's judicial activism. This objection, however, will be misplaced, since the current amendment is so absurd that the legislators are essentially forcing the Court to intervene. One might even venture that the right-wing's support for this amendment is not only an easy way to preserve the coalition but is also a roundabout way of enabling an additional onslaught against the Supreme Court after the legislation has been shot down.

And what about the Haredi draft? The desired result could have been achieved quietly and efficiently had the Knesset adopted a rational arrangement that would encourage military service through positive and negative economic incentives. The extreme solution adopted by the previous law, which included criminal sanctions that were bound to fail, and the extreme solution adopted by the current law, which grants a de facto exemption from military service for many years, guarantee that this issue will continue to be a bone of contention that leads to hatred between brothers. It will also prevent the realization of a vital national goal: widespread conscription of Israel's ultra-Orthodox men for meaningful military service.


Yedidia Stern is Vice President of Research at the Israel Democracy Institute and a Professor of Law at Bar-Ilan University.