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Monday, December 20, 2010

Policies and Implementation Challenges in Israel Towards Conscription of Ultra- Orthodox Men.

The Israeli cabinet recently voted on questions related to conscription of ultra-orthodox. This policy implementation paper provides a chronological analysis of the challenges of developing and implementing policies for ultra-orthodox Jews in Israel.

The State of Israel was created in 1948 in the midst of a war. In that context, the leaders of the Jewish State envisioned a mandatory conscription for the newly created Israel Defense Forces. Throughout the years, while Israel was in a continuous state of war, conscription in the Israel Defense Forces (IDF) has remained highly valued by the mainstream of the Israeli society. However, a few groups in Israel have been exempt from mandatory military service. This paper will discuss national and civic service policies towards men in the Jewish ultra-orthodox minority in Israel.

In 1948, Israel’s first Prime Minister, David Ben Gurion, came to an agreement to defer military service to yeshiva (religious seminar) students. Rabbis approached Ben Gurion and pleaded for historic justice based on the fact that an important number of religious scholars perished during the Holocaust . They made the case that Jewish scholarship needed to be rebuilt and mandatory service would interfere with this. Due to this historical precedent and the small size of the group affected, few challenged the decision. In fact that at the time only 400 men were exempted from military service. Those men were not allowed to work until the age of 35 and were to receive a government-subsidized stipend.

The government of Israel, in 1948, introduced the Defense Service law that mandated military service to all men and women reaching the age of eighteen . The legislation authorized the Minister of Defense to exempt and defer service falling in different categories based on different reasons. In that legislation ultra-orthodox men fell in the category of “other reasons. ” For many years, based on that law, draft of ultra-orthodox men was under the discretion of the Ministry of Defense on the basis of attending a religious seminar.

Over the years this policy was little challenged. One government tried to limit the exemption of men deferred and passed quotas but met opposition by the ultra-orthodox faction. In 1977, the Begin government invited the ultra-orthodox party to join its coalition but this party joined on the condition that the quota policy to be revoked . Since 1977, no government has tried to restore quotas on military deferments. In 1980, such deferments reached 10,000.

Israel is a unicameral parliamentary system with party list proportional representation. While Israel does not have a Constitution such system is inscribed in Basic Laws. Such status quo on the number of deferments is explained by the Israeli political system. Since 1977, religious parties have played an increasing role in coalitions and most governments have depended upon the support of religious parties. The failure to challenge this policy despite a growing number of deferments and an increase of protests by secular Jews is certainly explained by coalition making in Israel. From 1977 to 2001 each Israeli government has invited ultra-orthodox to join in coalitions and has not challenged this policy.

The Increasing Role of the Supreme Court: Israel’s Supreme Court has remained up until the nineties very little active in policy making. In Israel, judges are nominated and the judicial branch is independent from the government. However, starting in 1992, the Supreme Court took upon itself a new role. Under the leadership of Aharon Barak (Chief Justice) the Supreme Court did not hesitate to strike down legislations in contradiction with Israel’s Basic Laws. Israel’s Supreme Court adopted a judicially activist approach and slowly moved from interpreting laws to legislate .

Since 1948, few petitioners have challenged the draft policy towards ultra-orthodox through the Supreme Court but the judicial branch refused to intervene and left the matter to the legislative branch. However, in 1998, under the leadership of Aharon Barak the courts ruled that the Ministry of Defense had used excessive authority in the deferments and qualified such policy to be “unreasonable and inequitable. ” The Supreme Court ruled that the Knesset (Israeli parliament) had one year to decide on a more equitable policy or the Minister of Defense will be required to draft ultra-orthodox.

In 1999, Prime Minister Ehud Barak (not to be confused with Aharon Barak) appointed a committee to study the matter to suggest a policy. Seven months later, the committee issued recommendations. It suggested a compromise: ultra-orthodox men would be exempted from military service at the age of eighteen. After four years of religious seminar they would be offered a “year of decision” in which they would legally be allowed to work. Following that year they would have to decide between two options. The first option maintained the status quo and allowed ultra-orthodox men to study at a religious seminar and to be deferred from military service while not being allowed to work until the age of 35. The other option that upset ultra-orthodox factions was the possibility to leave religious seminar and to be allowed to legally work under the condition of serving for one year in the IDF or performing national service full time for a year or part-time for two years while being allowed to work part-time.

While the Ehud Barak government launched a legislative committee in 1999, it did not pass any law in that regard until 2002. Tal’s Law passed with a small margin (51 to 41) . The army however, was quicker to respond to social needs on the ground. A growing number of ultra-orthodox men dropped out of religious seminaries and wanted to join the work force. In the wake of the Supreme Court decision, in 1999, the army created an ultra-orthodox unit. The number of ultra-orthodox in that unit was low.

Implementation: the ultra-orthodox parties had mix reactions to Tal’s Law. The Sharon government (2001-2005) relied on a fragile minority and needed the support of religious political parties as well as secular parties who were angered by Tal’s law. Thus, neither the ultra-orthodox parties nor the government wanted to push for implementation of alternative programs in Tal’s law: a civic service program and the expansion of the ultra-orthodox army program. No funding was allocated for a civic service program.

This context was a win-win situation for the government and the ultra-orthodox parties. Since the law passed, the Supreme Court could not challenge the government and political pressure was now off the government. The ultra-orthodox parties could satisfy themselves with a guarantee of deferment for at least five years.

Ultra-orthodox newspapers and rabbis did not publicize the alternative options and the existence of a “year of decision” and seminar students were not aware of such possibilities. Between 2003 and 2006 only 1500 seminar students took advantage of the “year of decision.” Following the “year of decision”, only 150 enlisted in the army and 300 hundred were exempted from the army . 280 requested to perform civic service . The government did not have the will and the capacity to influence the situation. It still did not allocate funds for a civic service and the army was slow in integrating the ultra-orthodox because the cost of the stipend was higher (because of age and family situation) and the absence of structure to integrate such a population.

The implementation of Tal’s Law was further complicated by an amendment that was put through the Ministry of Finance. Ultra-orthodox men in religious seminars had not been authorized to work and the incentive to legally work was an incentive to leave seminaries. To compensate for lower stipends for religious seminary, the government authorized ultra-orthodox to work at night to satisfy ultra-orthodox parties in the coalition . This measure encouraged ultra-orthodox to stay in religious seminaries and Tal’s law was used as a compromise to compensate for the lower stipend now offered.

Further steps towards the implementation of Tal’s Law: the first step towards implementation came after the Minister of Justice and the Attorney General publicly criticized the government for failing to implement Tal’s law policy . In response, the Minister of Defense appointed a committee to plan national-civic service in Israel in 2005 (Ivri Committee) . This commission recommended setting up an authority for national-civic service.

Further, the Supreme Court played once again a key a role, this time by enforcing the implementation of the policy. While it rejected petitions from secular organizations regarding the nature of the draft of ultra-orthodox, the Supreme Court criticized the government for failing to implement the law and failing to institute programs as an alternative to seminar studies . The Supreme Court encouraged cooperation with the ultra-orthodox sector and acknowledged that implementation took time. More importantly, it warned that it would revoke the law if no better results were achieved.

While the Israeli government extended Tal’s law for another 5 years it started to push for implementing a more active policy. In 2007, by executive order the government authorized the creation of a founding team for the creation of an Administration for National Civic Service under the Prime Minister’s Office. An Administration was created in 2008 under the leadership of Dr. Reuven Gal and funds were allocated for creating a civic service program for ultra-orthodox men. Within a year, 600 ultra-orthodox men joined the program and by 2009 approximately 1000 men were volunteering.

Similarly, the army created new programs that better suited ultra-orthodox men. More religious men joined the ranks and benefited from the program. The army today, is still reluctant to absorb all the candidates because of the financial burden (higher stipend, more difficult to train) former religious seminary candidates create. In that context, it has been reported that the number of exemptions from military service based on medical and physical reasons are higher than in other sectors of the Israel society. Furthermore, it has been reported that many ultra-orthodox men have faked suffering from mental disabilities to obtain exemption. Once exempted, they are not mandated to go back to religious studies and are allowed to work legally. The army turns a blind eye on such cases because of the cost of stipend and the importance of motivation for the program to be successful.

The Administration for National-Civic Service adopted a discreet approach in recruiting yeshiva students. Based on the Supreme Court’s encouragement of cooperation with the ultra-orthodox sector and past experiences in the field, the administration did not publicly campaign for civic service within the ultra-orthodox sector. The administration understood that cooperation was key with ultra-orthodox groups and relied on word of mouth to increase the number of volunteers. The success and the number of volunteers were important for the future of the administration since the policy was constantly challenged in the Supreme Court.

In 2009, the number of deferments of ultra-orthodox men reached 54,000 . This trend is likely to grow over the years because of the demographic characteristics of the ultra-orthodox Jews. This is a different situation compared to the 400 ultra-orthodox Jews deferred in 1948. Among all eligible conscripts in Israel, 14% were deferred because they attended religious seminaries . Today, the Israeli government and the Ministry of Finance are driven by the need to have ultra-orthodox part of the workforce. Allowing ultra-orthodox men to work legally and not to be dependent on subsidized stipends relieves the society from a heavy financial burden. The current system reflects the imperfect coexistence of multiple parties with different interests within a Parliamentary system. Coalition making and the role of ultra-orthodox parties are important to understand why such a policy emerges and why implementation can take time a long time to be successful. We note, that the judicial branch, which has become active in policymaking over the last 18 years, has challenged the status quo prevalent for so many years. The threat of judicial intervention has driven policy and implementation of alternative programs to ultra-orthodox men.

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