The High Court of Justice began hearing Tuesday morning arguments on a law whose legality is almost certainly decided.
The law freezing draft enforcement measures for ultra-Orthodox (haredi) eligible men passed on July 14 but was frozen the following day by Justice Ofer Grosskopf following the filing of five different petitions against the law, including by opposition faction heads Yair Lapid (Yesh Atid) and Avigdor Liberman (Israel Beytenu).
Grosskopf, in his short decision, focused on two aspects surrounding the law: the court’s longstanding rulings on enlistment for yeshiva students; and the unequal weight the law grants to “only certain sections of the population.”
Attorney-General Gali Baharav-Miara on Friday asked the court to strike down the law, arguing that it retains the duty to enlist while removing the consequences for refusal.
She called it a “group immunity mechanism” that protects only 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 on Sunday by its legal advisers, focused more on defects in how the law was enacted rather than the broader and more fundamental constitutional argument hinted at by Grosskopf and affirmed by Baharav-Miara.
Representing the Knesset in court on Tuesday, attorney Yitzhak Bart clarified to the court more what the legal advisory’s position is. He explained that committees debating a bill have broad authority to make changes to it – as long as its actions don’t result in a “new subject.”
This boundary, he said, exists for two reasons: first, to avoid needing to start the process from the beginning; second, to give the committee the authority and breadth of power to make the changes it might need to improve the legislation.
Fundamental subject of bill cannot be changed
However, the fundamental subject of the bill cannot be changed. Bar said, “There is no escaping the conclusion that the new law introduced a new subject.”
The subject difference, he explained, is between integration of yeshiva students and the freezing of enforcement measures.
That difference, he noted, is minor but crucial: If the committee had continued to discuss the bill in its original format, but had added a clause on enforcement measures, “that might have been okay” – but that is not the case here. He described it as creating a new branch that is unconnected to the root of a tree.
The scenario where the Knesset legal advisory reaches the conclusion that legislative defects lead to the conclusion that a law must be canceled is “extremely rare,” said Bart.
On Monday, the government filed its own, two-page position to the court, explaining that it 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 two-page 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.
