The High Court of Justice heard arguments on Tuesday on a law whose legal fate appeared all but decided, with both official legal representatives urging the nine-justice panel to strike it down and the government declining to appear in its defense.
The hearing ended after roughly an hour and a half. Deputy Supreme Court President Noam Sohlberg, who headed the panel, said the justices would examine the arguments and issue their ruling soon.
The law freezing draft enforcement measures against ultra-Orthodox (haredi) men eligible for military service passed on July 14. However, it was frozen the following day by Justice Ofer Grosskopf after five petitions were filed against it, including by opposition faction heads Yair Lapid of Yesh Atid and Avigdor Liberman of Yisrael Beytenu.
Grosskopf, in his short decision, focused on two aspects of the law: the court’s longstanding rulings on the enlistment of yeshiva students and the unequal treatment it grants to “only certain sections of the population.”
Alongside temporarily freezing the law, Grosskopf issued a conditional order requiring the state and Knesset to explain why it should not be struck down.
Attorney-General Gali Baharav-Miara on Friday asked the court to annul the law, arguing that it retains the duty to enlist while removing the consequences for refusing to do so.
She called it a “group immunity mechanism” that protects one sector from arrest, investigation, and prosecution, while leaving other draft evaders exposed to the full force of the law.
Knesset position focuses on defects in implementation
The Knesset’s position, filed Sunday by its legal advisers, focused more on defects in how the law was enacted than on the broader constitutional arguments raised by Grosskopf and affirmed by Baharav-Miara.
Representing the Knesset in court on Tuesday, attorney Yitzhak Bart clarified the legal advisers’ position.
Bart explained that Knesset committees debating a bill have broad authority to change it, as long as their amendments do not introduce a “new subject.”
That boundary, he said, exists to balance two competing considerations: avoiding the need to restart the legislative process whenever a bill is amended, while still giving committees sufficient authority to improve and reshape legislation.
The fundamental subject of a bill, however, cannot be replaced.
“There is no escaping the conclusion that the new law introduced a new subject,” Bart said.
The distinction, he explained, was between a bill dealing with the integration of yeshiva students into military service and a law freezing enforcement measures against those who fail to report.
Had the committee continued discussing the original bill and added a clause concerning enforcement measures, Bart said, “that might have been okay.”
Instead, the committee effectively created a new branch unconnected to the root of the original bill.
The scenario in which the Knesset’s own legal advisers conclude that defects in the legislative process require a law to be annulled is “extremely rare,” Bart said.
Representing the Attorney-General’s Office, attorney Aner Hellman said there was merit in strengthening the legal advisers’ role so that lawmakers understand the implications of disregarding their opinions.
This was particularly important regarding the procedural rules governing legislation, he said, “as these are what make laws laws.”
“The red flags were raised all along” the legislative process by the Knesset’s legal advisers, Hellman added.
“There are certain procedural lines that cannot be crossed – particularly ones that outline how a bill becomes law.”
Hagai Kalai, representing Israel Hofsheet, argued that the government had ignored the criminal and enforcement consequences of the draft crisis from the beginning and, through the new law, had sought only to tie the hands of the authorities responsible for enforcing the existing law.
The only argument presented in defense of the legislation came from attorney Natan Rosenblatt, representing the haredi Emet L’Yaakov organization, which sought to join the proceedings as a respondent.
Rosenblatt argued that a haredi man could not enlist because “the Torah forbids him from doing so,” prompting an incredulous response from Justice David Mintz.
“I simply cannot believe what I am hearing,” Mintz said, questioning the assertion that Jewish law prohibited military service.
When Rosenblatt said that “all the great rabbis of Israel” opposed enlistment under the current circumstances, Mintz interrupted him.
“Not all the great rabbis of Israel,” he said. “You are speaking in sectoral terms.”
Government declines to defend itself, claims 'outcome known in advance'
On Monday, the government filed its own two-page position to the court, explaining that it had declined to hire a private attorney to defend the law because the outcome of the case was “known in advance.”
Rather than provide a legal response to the petitions, the government’s position focused largely on accusing the court of violating the separation of powers and the Attorney-General’s Office of obstructing efforts to increase haredi enlistment.
Uri Keidar, CEO of Israel Hofsheet, one of the petitioners, said following the hearing that “the attempt by the government to torpedo equality before the law and grant immunity to haredi draft evaders will not succeed.”
“The time for equality has come,” he said.