High Court of Justice 41953-07-26 Free Israel v. Knesset - part 25

It is our duty, as those entrusted with the preservation of the basic rights of the citizens of Israel, to declare that this lost and invalid act of legislation has not become a binding law in the State of Israel, nor does it come from the public domain of its laws - not in terms of the way it is done; not even in terms of its content.  This is what we have done in the past; this is what we are doing today; we will do so in the future, as long as we are necessary.

Judge Yael Willner:

1. I agree with the main points of the opinion of my colleague, the Vice President, v. Solberg, and the clear result he reached.
2. I am also of the opinion that Amendment No. 28 to the Defense Service Law [Consolidated Version], 5746-1986 (hereinafter: The Correction) violates the principle of equality before criminal law, and in view of the aforesaid, it is liable to be annulled. Indeed, the principle of equality before the law is an institutional foundation of our legal system, as well as a universal condition for the existence of a society for which justice is a guiding light.  This moral imperative resonates well in our sources: "You shall not do wrong in judgment, you shall not show the face of the low, and you shall not show off the face of the great in righteousness, you shall judge your fellow" (Leviticus 19:15); At the foundation of the judgment of the nations:Law […] must be the same for all, whether it protects or punishes" (Declaration of the Rights of Man and of the Citizen, art.  6 (Aug.  26,1789)); and serves as a basis for accepted theories of political philosophy (see, for example: John Locke, Two Treatises of Government, Second Treatise §142, at 363 (Peter Laslett ed., Cambridge Univ.  Press, student ed.  1988) (1690) ).
3. As to the issue of proportionality, I will note that from my point of view, limiting the applicability of the amendment - by means of an effective distinction between one who indeed dedicates himself to Torah study in a yeshiva, and one who does not do so but declares it - would not have led to the conclusion that the amendment passes the "test of the least harmful measure".
4. As is well known, the test of proportionality set forth in the limitation clause in section 8 Law-יסוד: Human Dignity and Liberty, consists of three sub-tests: the "rational connection test", in which the compatibility between the means chosen in the law and the purpose for which it was adopted; the "measure with less harm" test, in which the question of whether there is an alternative to the chosen means that will achieve the purpose in question while less infringement of the relevant right is examined; and the "proportionality test in the narrow sense", in which the relationship between the benefit that is expected to derive from the law in view of its purpose is examined and the intensity of the infringement of rights caused as a result of it (see, among many: High Court of Justice 7146/12 Adam v. Knesset, paragraph 20 of the judge's judgment A.  Fogelman [Nevo] (16.9.2013)).

5. In our case, I am of the opinion, as stated, that even if the amendment had effectively distinguished between those who do study in the yeshiva and those who do not, so that the scope of its application would have been reduced, this would not have blunted the violation of the constitutional right to equality caused by the amendment; and in any event, this would not have led to the conclusion that the amendment meets the second subtest of proportionality, "the means whose harm is less".
6. As my colleague, the Vice-President, points out, the violation of the constitutional right to equality is caused in our case due to "Clear discrimination in law enforcement, based on sectoral-religious affiliation; one that violates the state's obligation Treat all its citizens as equalsin the most basic sense of the term" (para. 67 of his opinion).  In my opinion, The intensity or severity of such discrimination does not vary depending on the scope of the group whose members the law is not enforced, or depending on the degree of their erudition; The intensity and severity of this discrimination derives from the very violation of the principle of equality before criminal law, which in itself expresses an offensive message, according to which "the liberty of those is of greater value than that of others" (paragraph 83 of my colleague's opinion).  Therefore, I do not believe that limiting the scope of application of the amendment in the manner stated above, would have dulled its violation of the right to equality.
7. Admittedly, it could be argued that the lack of an effective distinction between those who really study in yeshivot and those who do not, is relevant to the first test of proportionality; in the sense that there is no rational connection between the suspension of detention proceedings of those who do not really study in yeshivot, and the purpose of the importance of Torah study. In any case, according to such an argument, such an effective distinction could have led to the amendment meeting the test of "rational connection".

However, I could not accept this argument either, since it is based on a presumption - a landslide, as I will clarify below - according to which the adoption of arrest proceedings against yeshiva students who evaded enlistment violates the purpose of "recognition of the importance of Torah study".

8. In my opinion, even with regard to those who do indeed study in yeshivot, there is no rational connection between the means used by the amendment, the suspension of arrest proceedings of yeshiva students who evaded enlistment, and its declared purpose, the recognition of the importance of Torah study. This is because taking enforcement proceedings against a person who has violated the criminal law - whether he is a yeshiva student or not - certainly does not detract from the importance of Torah study or its campaign.
9. Therefore, in my opinion, the amendment does not meet the first subtest of proportionality, and it must be revoked for this reason as well.