- The court accompanied the petitions in this case for almost six years. Over time, the military's approach and actions on the ground brought the parties' positions very close. After all this, we have come this far. The reality in practice is still far from fulfilling the duty of equality established by law; Nor is it fully consistent with the operative framework outlined in the order nisi. However, I found that at this stage, the contribution of the court's involvement in accompanying the issue that is the subject of the petitions is limited, and that they should not be left standing.
Like me, my colleague also believes that the process has not yet come to an end, and that at least in relation to the head that concerns the maneuvering armor - There is a difficulty with the military's conduct in terms of compliance with the provisions of the conditional order. However, according to him, in light of the army's principled commitment to fulfilling the duty of equality and opening up experiments - The petitions have exhausted themselves, in a manner that justifies ordering their dismissal.
In my view, although it is very important that the army is committed to fulfilling its duties and is working to fulfill them - This is not the case. As soon as the army does not comply with the provisions of the law (also in terms of the order nisi, and certainly in the provisions of the law as written) - The court is not entitled to withdraw its hands and refrain from giving a legally valid directive. In view of the passage of time since the issuance of the conditional order, sufficing with commitment and goodwill on the part of the respondents - It may allow for an undesirable erosion of military duties and an outcome that is inconsistent with the legal situation in a number of aspects.
- First, from the substantive perspective - As stated, alongside the duty of equality is the Petitioners' right to equal opportunities in placement and selection for positions in the IDF. It is a well-known rule that where there is a right - there is a remedy (ubi jus ibi remedium); And in the text The opposite - Where there is no remedy, there is also no right (High Court of Justice 5658/23 The Movement for Quality Government in Israel v. The Knesset, paragraph 60 of the judge's opinion Amit [Nevo] (1.1.2024); Yitzhak Zamir Administrative Authority 2883-2884 (Vol. 4, 2017)). In this spirit, the case law held that "The remedy that this court extends to a petitioner whose interest has been harmed is what gives rise to the right [...]" (High Court of Justice 840/79 Contractors and Builders Center v. Government of Israel, IsrSC 34(3) 729, 745 (1980)). In our case: Denial of the right of the petitioners (and other candidates for security service) to relief due to the violation of their rights - may in effect empty these rights of their content. This is especially true because it is also, first and foremost, a violation of basic rights with constitutional status.
- Second, from the procedural perspective - Usually, when a petition comes to the court, - He is required to examine whether there is a cause for interference in the conduct of the authority and to rule accordingly. In exceptional cases, the court will prefer not to end the litigation immediately by way of a decision - However, he will accompany the parties in an ongoing process in which the Authority will update the methods of handling the matter of the petition. This is in order to narrow the scope of the dispute between the parties, and with the aim of settling the subject matter of the petition by agreement - In most cases, in cases where the court believes that it is better to locate and promote substantive solutions and that the issue will be resolved by way of a judicial order (High Court of Justice 8730/03 Clalit Health Services v. Minister of Finance, paragraphs 42-47 [Nevo](June 21, 2012) (hereinafter: Clalit Health Services Matter); Dafna Barak-Erez Administrative Law - Procedural administrative law 461-462 (Vol. 4, 2017); Ariel Bandor "Trends in Public Law in Israel: Between Law and Justice" Law & Government 1477, 379-389 (2012)).
As stated, in the present case, the hearing of the petition has been conducted so far in this manner of a "rolling proceeding" - This is because it was found in the early stages of the petitions that the military recognizes the duty of equality imposed on it and is working to realize it. The typical scenario in "accompanying petitions" is that after a period of time in which the authority advances the issue that is the subject of the petition - the processing of it ends with the consent of the petitioners when they have received their request in full; Or the remedies requested in the petition are redundant. At the same time, to the extent that the parties do not reach a full agreement, and there is still practical significance to the granting of the relief requested in the petition, a petition of this type also returns to the decision lines - and it will eventually end with a final remedy that will be granted in accordance with the line of the law ( Clalit Health Services, at paragraph 47).