High Court Issues Order Nisi Over Alternative Service Route for Haredim

The Supreme Court on Thursday issued an order nisi in a petition seeking to strike down the National-Civil Service Law, which the Knesset recently extended in order to allow young Haredi men to perform civilian service as an alternative to military service. The petitioners and the attorney general argued that the law was an integral part of the law that regulated the status of yeshiva students, and that the National-Civil Service Law should not be allowed to continue separately.

In their decision, Justices David Mintz, Yael Wilner and Alex Stein said the state and the Knesset must explain why the law’s validity should not be conditioned on the existence of another law or legislative arrangement that would replace the chapter regulating the status of yeshiva students; why it should not be determined that the state may not support, fund or allow the National-Civil Service service of anyone who does not have a valid exemption or deferment from military service; and why the subsistence stipends paid to civilian service volunteers should not be matched with those paid to National-Civil Service volunteers.

The petition was filed by the organization Israel Hofsheet, and its central argument was that National-Civil Service should not be allowed for anyone without a valid exemption or deferment from service, and that there is no reason to continue operating or subsidizing the route for those liable for enlistment. About three months ago, the attorney general submitted her preliminary position to the High Court, effectively supporting the petition.

The response argued that after Chapter Gimmel 1 of the Military Service Law expired, the enlistment obligation applies equally and fully to members of the Haredi public, and that the very existence of the National-Civil Service Law, which was intended as a supplementary arrangement to the previous enlistment framework, creates a severe violation of equality. In her preliminary response, the attorney general explained that the National-Civil Service Law was enacted in 2014 as a supplementary arrangement to Chapter Gimmel 1 of the Military Service Law, and that both arrangements were intended to operate as a single legislative package. However, she said that after Chapter Gimmel 1 expired and no alternative arrangement was drafted, a situation was created in which "the supplementary arrangement continues to exist and be extended, even though the central legislative framework to which it was meant to be linked has already been struck down... expired and no longer exists."

It was also argued that under the current legal situation, the law effectively creates an alternative route to military service for a population that is obliged to enlist, at a time when the army needs additional manpower and when National-Civil Service does not reduce the burden of military service. The document also cited the position of the legal adviser to the government, as presented to the coalition. According to the opinion, extending the law raises "the most significant constitutional difficulties," because of the severe harm to the principle of equality inherent, in her view, in a beneficial route open only to members of the Haredi public.

Now that the law has been finally approved by the Knesset, the High Court has decided to issue an order nisi and require the state and the Knesset to explain why there is no basis to limit its scope and implementation.