Proportionality
- The first stage in the analysis of proportionality is a rational connection. Admittedly, given the identity between the concrete purpose of the amendment - the suspension of enforcement proceedings vis-à-vis those whose Torah is their art - and the means it adopts, its compliance with the test of rational connection, according to this purpose - is almost self-evident. However, as is evident from what I have said above, an analysis according to the abstract purpose raises a more complex picture, since it is possible to raise real doubts as to whether the freeze on enforcement proceedings fulfills or advances the purpose of recognizing the importance of Torah study (see paragraph 75 above). Either way, I can leave these doubts in the "need for study, " for even if the correction passes the test of rational connection, regarding the next stage, this is not the case. The amendment in question does not meet the test of the means whose harm is less, not even approximately, since the scope of its application - and in any case, the intensity of its harm - is much broader than is required for the realization of the purpose (on this test, see, for example: High Court of Justice 8420/21 Al-Naqwa v. Israel Defense Forces, paragraphs 51 and 53 of the judgment of my colleague, Justice G. Kanfi-Steinitz [Nevo] (February 11,2024)).
- Thus, for example, the Tikkun does not distinguish in any effective way between one who indeed "has Torah as his art, " and who dedicates himself to real study in the yeshiva, and one who is not. It is sufficient to submit affidavits of compliance with the conditions, as detailed above, in order to shelter in the shadow of his roof and enjoy his protections. In other words, not only does the Torah protect and protect from the obligation to enlist (with all its implications), but even a declaration - whether true or not - about Torah study meets the requirements. Moreover, the submission of the affidavits applies the provisions of the amendment to the obligor to enlist immediately, when the fulfillment of the conditions is supposed to be examined at some stage - which is not defined in time - by the examination committee, which is not at all clear what tools it has for the purpose of conducting this examination (other than the authorization to "require information from any government entity relating to the examination of the requests, in accordance with any law", according to section 26H(c), which is understood to be irrelevant, and at least insufficient, to examine the condition of being present at the meeting).
- It is possible that this is sufficient, but for the sake of completeness of the picture, I will note that for the purpose of 'supervision and auditing', the amendment relies on a control mechanism that in practice does not exist, and it is not at all clear whether it will be possible to establish it within the relevant period of time, let alone to create effective supervision through it. Moreover, even if the supervision mechanism were to be established in a flash, the amendment does not prescribe any effective sanction that could deter its abuse. The only 'sanction' that is applied in a case where the audit has raised that a particular yeshiva is missing at least 20% of its students, is the removal of that yeshiva from the list of yeshivot. However, this sanction is activated only after a warning has been given and the conduct continues, so that at least 2 inspections are required in the same yeshiva (when the chance that this will happen in the relevant period of time is not high, to say the least); and in any case, the students of that yeshiva will be able to register in another yeshiva, so that the protections of the amendment will continue to apply to them. And what is the law of the individuals, those 20% who are absent, whose names imply that they made false statements? Merely the amendment did not interpret it, and in practice it stipulated that nothing would be done with them.
- From what has been said, it emerges that the amendment does not include relevant and effective steps required in order to reduce the scope of its application - and accordingly, the extent of its harm - to the minimum required for the realization of the purpose defined by it; far from it. It opens with a solemn declaration about the "value of Torah study", but its actual application will extend far beyond the group of learners, those whose Torah is truly their art. Alternative measures, which would mitigate the violation of equality, without prejudice to the realization of the purpose defined by the legislature - whether with regard to criminal enforcement, or with regard to bearing the burden of conscription - were also not included in the amendment.
- Before concluding the brief discussion on the proportionality of the amendment, I will note that from all that has been said so far with regard to the analysis of the tests of the limitation clause, we have learned that even if the timing of the amendment is sufficient to slightly reduce the intensity and scope of the violation of the right to equality, as well as the rule of law, I am of the opinion that this is not sufficient in order to 'vaccinate' it. This is because we are dealing with a clear case in which there is "a high level of persuasion that the Temporary Provision Law violates a substantial and profound constitutional violation of human rights, an infringement that cannot be legitimized, whether permanently or for a period limited in time" (High Court of Justice 1548/07 Israel Bar Association v. Minister of Public Security, para. 20 [Nevo] (July 14,2008)) - circumstances that justify intervention, even within the narrowest scope of intervention that is customary, as stated, with regard to temporary legislation.
On improper means
- From here, to a slightly more principled point. In general, I am of the opinion that the means used by the amendment - the exclusion of a certain population group from the enforcement of a criminal law that applies to it - is a measure that, except in the most exceptional cases, is not a legitimate means of promoting purposes by the state authorities (for nothing, there is no known precedent for this in case law, except for the one discussed in the Nir case, on the most exceptional circumstances that existed there; see below). As for its very severe harms, I have discussed above, regarding the proper purpose, and I do not see the need to repeat the matter (see paragraph 81; the duplication stems, as stated, from the fact that the concrete purpose of the amendment and the means it adopts are the same).
- This point raises a doctrinal question, with regard to principled determinations such as this, which relate to means whose inherent infringement of constitutional rights is particularly severe. In appropriate cases, determinations such as this are of real importance (for example, from recent times for a determination of this kind, regarding a course of action that "undermines the very idea of a protected constitutional right", see: Rabas 16279-03-26 Shmueli v. State of Israel, paragraphs 21-22 of the judgment of my colleague, Justice Kanfi-Steinitz [Nevo] (July 20,2026)). They make it possible to clarify the 'boundaries of the field' and to improve the direction of action of the relevant actors, so that, on the one hand, the authority can know from the outset what is 'off the field', due to its prohibited infringement of constitutional rights; on the other hand, it can act freely and legitimately to promote the public interest, knowing that its steps are within the 'boundaries of the field' (see and compare, in a close context: Dorfman, p. 160); and on the other hand, the citizen knows that he is protected from certain modes of action, particularly offensive, by the government authorities.
- The question that arises regarding determinations of the type in question relates to the extent of their suitability for the analysis of the tests of the limitation clause. This question derives, inter alia, from the fact that, on the one hand, according to the prevailing constitutional doctrine, the location of dealing with the means adopted by the arrangement under examination, within the framework of the limitation clause, is in the tests of proportionality; and on the other hand, the examination of proportionality is mainly a concrete examination, which is directed at the specific circumstances of the case, so that one may wonder as to the extent of its suitability to such determinations. This question is discussed in case law, even if not necessarily sufficiently exhaustively, when it is possible to locate two main approaches in this matter.
- One approach sought to place such determinations within the framework of the rational connection test, while attempting to infuse this test with normative content: "The requirement for the existence of a rational connection is directed, inter alia, to the fact that no measure should be taken that is arbitrary, unfair or illogical" (High Court of Justice 2887/04 Abu Madigam v. Israel Lands Administration, IsrSC 62(2) 57,109 (2007); see also: High Court of Justice 4769/95 Menachem v. Minister of Transport, IsrSC 57(1) 235,279 (2002); High Court of Justice 9593/04 Head of the Yanun Village Council v. Commander of IDF Forces in Judea and Samaria, IsrSC 61(1) 844,870 (2006)). This approach has advantages, but its weakness lies in that it transforms, in effect, the rational connection test, which, according to conventional doctrine, deals with the question - mainly factual - of whether the means are indeed expected to achieve the purpose, into a different test, which also includes the test of the "proper means" (Zamir, for example, uses this expression explicitly; see: Yitzhak Zamir Administrative Authority 3890 (2020); for a discussion of the difficulty I have presented here, see, for example: High Court of Justice 6971/11 Eitanit Construction Products Ltd. State of Israel, para. 29 [Nevo] (April 2,2013); High Court of Justice 466/07 Gal-On v. Attorney General, 65(2) 44,122-121 (2012) (hereinafter: the Gal-On case); Aharon Barak, Proportionality in Law 378-379 (2010) (hereinafter: Barak)).
- The second approach seeks to place the discussion of improper means within the framework of the proper purpose test: "At the stage of examining the purpose, the measure has weight because it may indicate the adequacy of the purpose of the law" (Gal-On, p. 78; see also: Barak Medina and Ilan Saban, "Human Rights and Risk-Taking: On Democracy, 'Ethnic Labeling, ' and the Tests of the Limitation Clause (Following the Citizenship and Entry into Israel Law Judgment), " Mishpatim 39,89,93-47 (2009)). This approach is also logical, but it has been criticized considerably, mainly because it is likely to raise difficulty analytically, since instead of examining the purpose itself in the framework of the proper purpose test, and examining the means within the framework of the proportionality tests, it mixes the two, and examines the purpose out of criticism of the means (see, for example: High Court of Justice 8091/14 HaMoked: Center for the Defence of the Individual v. Minister of Defense, Paragraph 4 of the opinion of Justice Hayut [Nevo] (December 31,2014); Gal-On, pp. 227-228; Barak, 297-299; Aharon Barak, "Deontological Constraint, the Culture of Justification, and the Legislator Who Shoots the Cannon: An Answer to Critics, " Mishpat Ve-Business 15,417,447-448 (2012)).
- The question of the 'geometric location' of the discussion of means that are generally illegitimate, in view of their inherent and severe infringement of constitutional rights, therefore gives rise to a real doctrinal dispute. In favor of the two approaches that have already been proposed in case law, certain advantages can be enumerated, but they also have considerable difficulties. It is even possible to think of other ways of assimilating the discussion by means such as this, such as applying a presumption that their use is disproportionate, unless it is proven, under a heavy burden, that the test of the means that is less harmful and the test of proportionality in the narrow sense. In any event, the issue is important, and deserves further clarification and clarification. At this stage, I do not see fit to decide the matter; another vision for the future. In any case, my statements regarding the legitimacy of the use of the specific means of excluding a certain population group from the enforcement of a criminal law against it stand.
- My last determination, as to the exclusion of a certain population group from criminal law enforcement in respect of it, requires a review of the relationship between our case and the Nir case, where the constitutionality of the Termination of Proceedings and Deletion of Records in Connection with the Disengagement Plan Law, 5770-2010 was discussed. The same law, as its name implies, ordered the cessation of proceedings and the expungement of criminal records of those convicted of offenses on the basis of opposition to the Disengagement Plan. In the judgment, it was held that the law does indeed violate the constitutional right to equality: "The result caused by the law in question is harsh and unequal, because it singles out one group in Israeli society and excludes it from the criminal law" (ibid., para. 16); However, nevertheless, in view of the very exceptional circumstances of the matter, it was determined that the infringement meets the conditions of the limitation clause.
- It is possible to draw many relevant distinctions between the cases. However, I will not elaborate on the accumulation of exceptional and unique circumstances that led the court to rule there, that the law meets the tests of the limitation clause (but see, also, ibid., the minority opinion of Justice Jubran). The main point for our purposes is that the Law for Termination of Proceedings and Deletion of Records acted only with a retrospective view, with respect to events that occurred more than 4 years prior to its enactment. In contrast, the amendment in question applies to the past, the present and the future (see sections 26G(1)-(2), 26T(d)). It states that the ongoing breach of the duty to conscript, which is set forth in the Defense Service Law, will not be enforced, only against those who belong to a certain population group. We are therefore not dealing with a social confrontation with a specific event that occurred in the past, and has passed away, but rather an 'exemption' from enforcement, which establishes - albeit for a limited period - a normative situation in which members of that group are entitled, perhaps even incentivized, explicitly and deliberately, to continue violating the law, knowing that no enforcement proceedings will be carried out against them - and only against them. It goes without saying that the violation of the principle of equality before the law and the rule of law in the latter case - is much more serious than in the former. We have said this, for the avoidance of doubt, without taking lightly the harm caused by the first case.
Final Notes
- Before concluding, 2 comments. First, as noted above, on July 28,2026, after the oral hearing, an interim order was granted, which freezes the entry into force of the amendment. I would like to mention in this context important elements. As a rule, case law held that the authority to issue an interim order freezing the entry into force of a law exists: "On June 30,1997 - the day before the provisions discussed in the Investment Portfolios Law came into force - an expanded panel of the court held a hearing on the interim order. Our starting point in this discussion was that the issuance of an interim order to delay the operation of the order enshrined in the law is within the authority of the court and is subject to its discretion. This is how the courts in England, the United States, Canada and other legal systems" At the same time, this power must be exercised with increased restraint: "This discretion must be exercised with great caution. A balance must be struck between the irreparable damage to the individual if the stay order is not granted, and the damage to other individuals, and to the public as a whole, if the stay order is granted. The court must be sensitive both to the delay in the application of a law before the law has been decided (if an interim order is granted), and to the alleged violation of human rights until the verdict is made (if such an order is not granted). The court would do well to make every effort to reach an understanding between the parties with regard to the interim arrangements" ( Investment Managers Association, para. 11).
- The case law added, emphasizing:
"The significance of granting an interim injunction, as requested in the petitions before us, was to suspend the validity of many provisions in primary legislation, and all this within the framework of a temporary relief. It has already been noted that 'until the court invalidates a law, it must sit seven clean seats' [...]. This is all the more true when the court comes to prevent the execution of a law by interim order without the parties' arguments being fully clarified and decided" (Gaza Coast case, pp. 749-750; emphasis added - v. S.).