A government decision on Tuesday, to grant itself private legal representation in an ongoing Supreme Court case over the ultra-Orthodox (haredi) exemption from IDF service, contradicted the Attorney-General’s binding legal opinion and was therefore unlawful, Deputy Attorney-General Dr. Gil Limon charged in a letter to government secretary Yossi Fuchs on Wednesday.
The unlawful decision harkened back to the government’s controversial judicial reforms, as it served to weaken the status of the attorney-general’s decisions, Limon wrote.
The government decision in question was that all branches of government would be allowed private legal representation in the case, due to “irreconcilable” differences of opinion between it and the attorney-general. This was a rejection of a decision by the AG on April 21, that the government as a whole can hire private representation, but that specific branches such as the Education Ministry and Defense Ministry, both of whom are sides in the case, would be represented by the State Attorney’s Office.
While seemingly technical, the consequences of this dispute over representation are dramatic: If the defense ministry uses private representation, it will argue that it has the right to refrain from drafting haredim. If the state attorney represents it, the argument will be that haredim must be drafted immediately.
Similarly, if the education ministry receives private representation, it will argue that it has the right to continue funding yeshivot for military-age students, or come up with another solution that would leave the yeshivot financially unharmed. If the state attorney represents it, the argument will be that this funding must cease.
Limon’s letter to Fuchs was the most recent in a series of hostile letters between the two, over who owns the authority to set the state’s official position in ongoing legal proceedings.
According to Israeli law, the attorney-general is the official interpreter of the law for the government. At the core of the dispute between Fuchs and Limon, however, is the question of whether or not the government must adhere to the attorney-general’s position on whether its actions are legal or not, a question that was central in the judicial reforms of 2023.
Pro-reformers argued that the attorney-general had too much power and could strike down legitimate government policies. Anti-reformers argued that without binding professional legal opinions, the government would be able to interpret the law and enable itself to act as it saw fit.
Israel’s Supreme Court ruled in 1998 that the government did not have the authority to exempt an entire group from service in the IDF, as this amounted to discrimination. A number of laws have been proposed since then to regulate the issue.
The most recent law, which granted haredi men the ability to delay their service annually until receiving a final exemption at age 26, expired on July 1, 2023. The government decided to give itself until April 1, 2024, to come up with a new law. With this decision having expired and no other government decision or law in place, there is no longer a legal basis for the exemption.
The government, however, argued on March 28 that it was not required to immediately cease funding to yeshivot, nor act immediately to draft haredi men, since it – and not the court – had the discretion to decide when and how many haredim to draft. Therefore, the state argued, inasmuch as military-age haredi men had not been summoned for service and were thus not officially draft-dodgers, there was no reason to cease funding in the middle of the school year.
This opinion, which was written by Fuchs, came in the form of an appendix to the official opinion by the AG, that pertinent to the Supreme Court’s ruling in 1998, the government did not have the authority to exempt an entire group from service, and therefore without other legal provisions it was required to draft haredim and cut funding to yeshivot for students who did not serve.
The court on March 28 accepted the AG’s opinion. It handed down temporary orders to end the exemption beginning April 1 and cease state funding to yeshivot for students whose abstention from military service was no longer valid. The court ruled that on June 2 it will hear arguments on whether to make these orders permanent.
Following this ruling, Fuchs requested last month that the government receive private legal representation, since its position was irreconcilable with that of the AG. This led to the AG’s decision to accept the request for the government but not the ministries involved, and then to Tuesday’s gov’t decision to reject the AG’s opinion. The government also demanded that the state attorney’s office no longer file depositions in the case.
State Attorney provides legal deposition
On Wednesday, the State’s Attorney’s Office provided a legal deposition in the name of the defense ministry, thus de facto rejecting the government’s demand for private representation.
According to the deposition, Israel’s defense ministry will conclude staff work on a plan to draft haredi citizens into the IDF within a “number of weeks,” and the defense minister has chaired meetings aimed at passing a law “with broad agreement” to regulate the matter.
Limon wrote in his letter on Wednesday that the vote to reject the AG’s opinion was put on the agenda just minutes before Tuesday’s government meeting was set to begin. According to Limon, the reason the government was insisting on private representation for all of its branches was to enable it to present its legal interpretation as the only one that is legally valid, and thus enable it to continue to delay the haredi draft and continue de facto to unlawfully exempt haredi men from service.
The issue has broad political and social implications. Haredi men have largely avoided military service since Israel’s foundation in 1948, and its political representatives, who are currently members of the government and coalition, have threatened to leave the government if the issue is not resolved to their satisfaction. While the majority of haredi politicians have insisted that the exemption continue, some have agreed to discuss drafting military-age men who do not study in yeshivot.
The issue also could directly influence Israel’s current war against Hamas. The defense ministry announced in January its plan to increase mandatory and reserve military duties in order to compensate for the war’s casualties and meet heightened security demands. A broad haredi draft could relieve some of this burden.
The plan, according to the state attorney’s deposition, will be implemented “gradually,” and will include provisions to draft haredi men within an “immediate time frame,” as well as provisions that will “affect recruitment in the longer term.” The state asked to present the plan’s details when the staff work ends, ahead of the June 2 hearing.
Although the deposition was approved by the defense minister, Prime Minister Benjamin Netanyahu and leaders of the haredi parties did not comment on it publicly.
Minister-without-portfolio MK Benny Gantz, wrote on social media platform X, formerly Twitter:
“The attorney general’s role is to maintain the law and not maintain Netanyahu’s coalition. She has the duty and full backing to continue fulfilling her role. The attack against her by Knesset members from the Likud will not clean the stain of a draft-dodging law that they wish to bring in the middle of a war.
“Netanyahu bears responsibility. Today, too, it is not too late to put national security and the good of society before political interests,” Gantz wrote.
Opposition leader MK Yair Lapid wrote:
“The government must stop wasting time and draft haredim immediately,” Lapid said in a written statement. “Mandatory service for all, whoever does not serve will not receive a penny from the government. One cannot say ‘together we will win’ without ‘together we will enlist.’”