Clearly, this does not begin to exhaust the complexity of the issue, in all its variety, but it seems to me that for the purpose of the constitutional analysis in our case, these general statements - on which there is relatively broad agreement in our case law - see, for example: High Court of Justice 5577/23 Anonymous v. Knesset of Israel, paragraph 12 of the judgment of my colleague, the judge Grosskopf [Nevo] (24.6.2024)). These will therefore serve as a basis for further discussion.
- The arguments for the violation of the right to equality in our case can be analyzed from two directions, which are not contradictory: equality in the enforcement of criminal law and equality in the burden of military service. In both directions, we are not required to pave the way for us from the beginning; we are walking on "well-plowed ground" (High Court of Justice 6198/23, para. 47). I will clarify what I have said.
Violation of the Constitutional Right to Equality - Two Heads
- The demand for equality in the enforcement of the law in general, and in the enforcement of criminal law in particular, is one of the foundations of democratic regimes everywhere, and constitutes an integral part of the principle of the rule of law. At the basis of this demand is the understanding that the sovereign, who entrusts the state authorities with the exclusive authority and power to enforce the law, is the citizens themselves; and that that power is entrusted to the state authorities by the citizens with the expectation - and in fact, a demand - that it be exercised fairly. Indeed, "the rule of law has, in addition to its formal meaning, a substantive meaning [...] This means, first and foremost, equality. It is equality in the application and use of the law. The rule of law does not exist if there is discrimination between equals" (High Court of Justice 428/86 Barzilai v. Government of Israel, IsrSC 40(3) 505,622 (1986) (hereinafter: the Barzilai case); see also: Election Appeal 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225,261-225 (1985); Zamir and Sobel, pp. 165-166; Aharon Barak, "The Rule of Law and the Supremacy of the Constitution, " Mishpat Ve-Mishmal 5,375,384-386 (2000)).
- In the ruling of this court, it has already been noted that "there is no exaggeration about the fact that the principle of equality before the law is one of the cornerstones of our social and legal outlook. At the basis of equality before criminal law is the assumption that every person who commits an offense will be held accountable for it [...], regardless of religion, race, sex, political outlook of one kind or another, and the like, external - and alien - to the criminal proceeding itself, which in essence is intended to bring to justice those who acted in violation of the law" (High Court of Justice 1213/10 Nir v. Speaker of the Knesset, para. 12 [Nevo] (February 23,2012) (hereinafter: The Nir case). The consequences of enforcing the law in a discriminatory manner are unbearable: "Such enforcement is in stark contrast to the principle of equality before the law in the basic sense of this principle. It is destructive to the rule of law; it is outrageous in terms of justice; it endangers the judicial system [...]" (High Court of Justice 6396/96 Zakin v. Mayor of Be'er Sheva, IsrSC 35(3) 289,305 (1999); see also, and compare: High Court of Justice 935/89 Ganor v. Attorney General, 44(2) 485,512 (1990)). "You shall not recognize the face of judgment" (Deuteronomy 1:17).
- As a derivative of this general position, a principled, forward-looking rule was established in this context: "The rule that we must recall is the point of departure that obligates the authorities to maintain equality before the law in general, and in criminal law in particular. For the purposes of the enforcement of criminal law, the ideological or political difference of one group over other groups should not be regarded as a relevant consideration for the distinction [...]. As a rule, then, such a consideration should be regarded as foreign to the application of criminal law, and in accordance with the determination that its use amounts to discrimination against the other recipients of the criminal law" (Nir, p. 305; emphasis added - v. ; See also, and compare: The Zakin case, p. 305). This rule has its logic on its side. A situation in which citizen A knows that with regard to citizen B, who is subject to the same law, but belongs to a different population group, the law will not be enforced, while he will also be enforced, is a "classic" situation in which "discrimination sends an offensive message." The message that arises is that that citizen A is, at least in a certain sense, a different status, inferior to citizen B. This is a violation of equality that amounts to a violation of the right to human dignity.
- 00 In general, and so in our case. Amendment 28 to the Defense Service Law does not exclude yeshiva students from the duty to serve, but rather states that even though this duty, prima facie, applies to them, it will not be enforced against them - and only towards them. This is therefore a clear discrimination in law enforcement, based on sectoral-religious affiliation; one that violates the state's duty to treat all its citizens as equals, in the most basic sense of the term. In accordance with the aforesaid rule, it is clear that this is a real violation of the constitutional right to equality.
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- So far, with regard to equality in the enforcement of criminal law. I will move on to the issue of the violation of the right to equality, in terms of the burden of military service. As is well known, this court has discussed the issue of the conscription of yeshiva students many times. The case law in this context has determined, and has re-established, that a conscription arrangement that does not promote, in practice and effectively, the realization of the goal of progress towards a state of equality in the burden of conscription violates the constitutional right to equality. This is how it was held in this context:
"According to the intermediate model, the deference of the law of deferment of service to equality creates a violation of human dignity. The law violates those rights and values that are at the foundation of human dignity as an expression of recognition of the autonomy of individual will, freedom of choice, and freedom of action of man as a free being. It violates that bond of rights and values, the preservation of which is required in order to maintain the human dignity of each member of the majority group, who is obligated to serve in the military. While most members of society are obligated to complete and prolonged military service, at the risk of the most precious of all, yeshiva students whose Torah is their art is given the opportunity to be released from this service. This state of affairs harms the most basic and elementary equality between members of society. It harms the status of the person who is obligated to serve in the military as an equal among equals, on the basis of his social affiliation, religious belief and way of life. It seriously violates equality in basic civil rights and duties. It causes discrimination and deprivation. [...] This must be remembered: a person's service in military service is both a right and an obligation. The obligation to serve violates a series of basic freedoms of the individual who serves. The same applies to compulsory service in any army. The same is certainly true of service in the Israel Defense Forces. This service often entails endangering the most fundamental right of every individual - the right to life and bodily integrity. 'Our interest is in pikuach nefesh - no less' [...]. Discrimination with regard to the most precious of all - life itself - is the most severe of discriminations. Man is willing to give his life to the security of his homeland. He does not expect any benefit from it. He expects only that others will do the same" (High Court of Justice 6427/02, pp. 689-690; see also ibid., at pp. 782-783).