We have learned, therefore, that as a rule, a determination that amendments made to a particular bill deviate from Substantially From the subject of the original bill, it is implied that this is a defect that goes to the root of a proceeding.
- Before concluding the discussion of the fundamental issue relating to the claim of a 'new subject', I will note that even if the marks we have given are sufficient to assist in examining the question of whether amendments made to a particular bill deviate from the scope of the subject matter of the bill, there may of course be difficult cases, which are in the 'gray area', and in respect of which considerations and questions can be raised one way or the other. In this context, I will reiterate the obvious, that the scope of discretion given to the committee discussing the law and to the Knesset Committee in examining the said question is very broad (although, as stated, it is not absolute); Therefore, it is clear that in those borderline cases, which are not clear, the tendency will be to give preference to their discretion, and to respect their decision.
- Finally, for the sake of clarifying the law, and with regard to the arguments raised in the petitions, according to which once a defect has occurred in the legislative process that goes to the root of the proceeding, of the kind we are dealing with here, it is not at all a 'law', I will note that indeed, in a situation such as this, "on the rhetorical level, it can be said that the document that was obtained is not a 'law, '" but on the legal-practical level, "the nullity of the law requires a constitutional judicial decision" (the Litzman case, pp. 590 and 593); and in the absence of such a decision, the law should be regarded as valid.
The Claim of a 'New Subject' - From the General to the Individual
- In our case, the bill that passed its first reading is the Defense Service Bill (Amendment No. 26) (Integration of Yeshiva Students), 5782-2022. I will examine the relationship between the bill and the amendment that was passed, in accordance with the considerations outlined above. First, we must examine the degree of compatibility between the purposes of the arrangements at the abstract level. Section 26B of the bill, which is the purpose section, states that "the purpose of this chapter is to reduce inequality in recruitment to regular service, including through the integration of members of the ultra-Orthodox public in national-civilian service, and to promote their integration into the employment market and their contribution to the state economy, all while recognizing the importance of Torah study." We see that the main purposes of the proposal were to promote the integration of members of the ultra-Orthodox public - both in military service (military or national-civilian) and in employment - when the recognition of the importance of Torah study was not set as a central goal, which the law aspires to promote, but, in essence, as a kind of "balancing purpose" that must be avoided excessively. In contrast, the only purpose listed in the amendment that was passed is "recognition of the importance of Torah study." The main purposes were therefore completely neglected, when it was precisely the purpose that was set as a "balancing purpose" that became the main - and in fact, the only - purpose of the arrangement.
- Second, we must examine the concrete purpose, i.e., what is the issue that each of the arrangements is intended to deal with. The bill sought to deal with the challenge of recruiting members of the ultra-Orthodox public, and with the need to promote their integration into the country's economy. On the other hand, the amendment that was passed was intended to deal with the issue of the arrest of yeshiva students who evade reporting for service. Not only is the connection between the two tenuous, but this last issue did not exist at all when the bill passed its first reading, since at that time no yeshiva students were arrested for evading military service (in order not to find a deficiency, I will note that in the reference submitted on behalf of the Cabinet Secretary, other purposes were also mentioned that the law was intended to be fulfilled; I will address this point later on, but at this stage I will remark that they were also not on the agenda when the bill passed its first reading).
- In fact, the above is sufficient to determine that the amendments made to the original bill go far beyond the scope of the subject, but for the avoidance of doubt, I will also note that in contrast to the original bill, in which long-term annual recruitment targets were set (compliance with which is a condition for the long-term application of the arrangement), economic sanctions on yeshivot for non-compliance with them, provisions that allow integration into national-civilian service, steps to promote the integration of yeshiva students into employment, and more - the only measure included in the amendment that was passed is one that actually removes from the table, and does not add to it, tools for enforcing conscription: the tools of arrest, investigation and enforcement. In addition, in terms of the scope of applicability, a proposal intended to provide a permanent solution by regulating a whole range of issues has become a temporary temporary provision regulating conduct in one specific aspect, which, as noted, was not included in the original bill.
- Thus, not only does the law that was passed include amendments that deviate "from the scope of the subject matter of the bill", in contravention of the provision of section 85(a) of the Knesset Regulations, but we are in fact dealing with a completely different law. It is therefore not possible, in any sense, to say that Amendment No. 28 to the Defense Service Law passed its first reading. As things stand, it is clear that this is a flaw that goes to the root of the proceeding, so that the law is doomed to be repealed.
- I will emphasize that this determination does not come 'like thunder on a clear day'. The legal counsel to the Knesset did his job faithfully during the legislative process, and warned the members of Knesset - once, twice, and three times - that the proposed amendment cannot be seen as a continuation of the bill that passed the first reading, in respect of which the law of continuity was applied, and that this is a flaw that goes to the root of the proceeding. The members of Knesset did not heed the good advice they received, and so, unfortunately, we have come this far. I will also clarify, as I have already noted above, that given that the Knesset Committee discussed the claim of the new issue, and rejected it, if it were a borderline case, I would suggest to my colleague that despite the difficulty, we did not order the repeal of the law (at least in this respect). However, the matter at hand is a very far cry from a borderline case; This is a clear case of a law that does not have a substantive connection to the original bill that passed its first reading.
- So far, the decision on the procedural level; Once I have reached the conclusion that I have reached, it was possible to suffice with this for the purpose of deciding the petitions. I will not deny, as a rule, in the vast majority of cases, that I would prefer to stop at this stage, and leave the rest of the issues on the agenda for the future, should they arise. However, I am of the opinion that in our case, this would be a reason for the defect. This, if only for the reason that 'sufficiency' at the level of the proceeding may sound that if we were to have before us a law that is identical to us, but one that has undergone a legislative process in all its commandments and constitutions, it would be a constitutional law, and at least one that raises doubts as to its constitutionality. However, this is not the case, and in the very exceptional circumstances of the amendment in question, as I will detail below, it seems to me that there is room to address the substance of the arrangement as well.
The Constitutionality of Amendment No. 28 to the Defense Service Law
- Before I turn to the examination of the amendment in accordance with the accepted constitutional standards in our districts, I will mention that, as is well known, the issue of the enlistment of yeshiva students has a long and complicated, painful and burdensome history; both on the social level and on the legal level. I do not see the need to repeat here the extensive sequence of events, even for the reason that the amendment in question is not a 'natural continuation' of dealing with the issue, since, as has already been clarified above, in contrast to previous incarnations of the issue, this is not a conscription arrangement in any sense. The issue is indeed tangential, and it is clear that the amendment in question may have different ramifications in terms of the enlistment of members of the ultra-Orthodox public, but this is nothing more. In any event, the matter is well known and has been discussed extensively in case law, and the person wishing to review it will be able to find what he is looking for in previous rulings (for detailed reviews, see: High Court of Justice 6198/23 The Movement for Quality Government v. Minister of Defense, paragraphs 1-9 [Nevo] (June 25,2024) (hereinafter: High Court of Justice 6198/23)); High Court of Justice 1877/14, paragraphs 2-8).
I will therefore turn to a constitutional examination of the amendment. I will begin, as is customary, the question of the violation of the right.