JNS
“There have been a lot of clashes recently between the attorney general and the government.”
The decision by Israel’s attorney general on Sunday essentially barring the state from funding children’s day care for families in which the father studies full-time in a yeshivah while refusing military service caused a storm in the government coalition.
It is the third in a string of recent legal actions against the ultra-Orthodox, or haredi, community, which the coalition and its supporters see as an attempt to bring down the government by driving a wedge between the haredi parties and other coalition members.
If such is the case, it does not seem to be working. Reports from a Cabinet meeting immediately following the decision described a coalition uniting in anger amid calls to restart the judicial reform push, a failed legislative effort that sparked mass civil disobedience.
Justice Minister Yariv Levin “raised the issue” of judicial reform at the meeting. “No objections were heard,” Army Radio reporter Shahar Glick posted to X on Sunday.
“The Ministry of Justice issued nine announcements last week. Six of them are against the work of the government,” Glick also tweeted.
“That's the real story,” Aharon Garber, deputy head of the legal department at the Kohelet Policy Forum, told JNS. “There have been a lot of clashes recently between the attorney general and the government.”
The attorney general’s official title in Hebrew, if translated directly, is, “legal adviser to the government,” said Garber. “The big issue is: What is the authority of the legal adviser in Israel? According to the legal adviser, he's not only an adviser. He has veto power over government decisions.”
Israel’s attorneys general have grown bolder over the years, he said. “Step by step, they’ve said, ‘If we declare something illegal, you're not allowed to do it,’” Garber said, noting that there is no law giving the attorney general such authority.
The government disagrees with this assumption of power but has thus far been unsuccessful in pushing back. When the government protests, the decision heads to the Supreme Court, sitting as the High Court of Justice, which acts as final arbiter and typically sides with the attorney general. In some cases, the attorney general represents the government in court even when presenting an opposing legal opinion.
As a Kohelet policy paper notes, unlike in the United States, Canada, Britain and Germany, Israel’s attorney general “sees himself authorized to impose his opinion on the government and present it before the court on behalf of the government, even if this opinion is opposed to the actual opinion of the government.”
Last year’s judicial reform initiative was the first comprehensive effort to rein in the judicial system’s overreach. It went down to defeat.
“Maybe the government didn’t go about it in the best way, but it was an effort to solve a real problem. Today, more and more people understand the need for reform,” said Garber.
Judge Haran Fainstein, a retired Israeli judge who teaches at Bar-Ilan University’s Department of Criminology, told JNS that the government is “absolutely right in opposing the Supreme Court and the attorney general. They don’t have jurisdiction.”
He also said the timing is dreadful. The court should put the haredi issue on ice, and the government should definitely not pick up judicial reform, which would only lead to “bonfires” in the streets.
“Inter arma enim silent leges—'In times of war, the laws are silent,’” said Fainstein. “We are at war. We are fighting for our lives. Now is not the time. We can wait until the war is over.”
Gilad Malach, director of the Israel Democracy Institute's Ultra-Orthodox in Israel Program, agreed that the timing is bad. “It's not good to have this debate right now; this tension between the haredim and the state and haredim and hilonim [secular Jews],” he told JNS.
Unlike Garber and Fainstein, however, Malach argued that the attorney general has decided correctly on the issue, accepting her reasoning that given the recent Supreme Court ruling that the state must draft ultra-Orthodox students, there is no longer a legal justification for subsidizing their army deferment.
"With the expiration of the legal source of authority for the blanket rejection of service, the legal basis was also dropped for the government funding intended to encourage the studies of the ultra-Orthodox eligible for IDF service,” the AG’s letter stated.
“All the haredi male youngsters between 18 and 27, they are now obliged to serve in the army. [The day care decision] is a result of the current status of yeshivah students,” said Malach.
Haredim can’t be forced to serve, Malach said, noting, “The whole community will resist rather than serve.” But he sees financial disincentives such as stripping them of day care subsidies as the next best option. “We can't force them, but we are not obliged to pay them for refusing to serve,” he said.
Garber, himself an IDF officer who has spent many months on reserve service, agreed that “Israel has a very big problem, and I don't understand haredi people, why they don't go to the army. But having said that, I don't think it's a legal issue.”
Haredi enlistment issue is a political question, he continued. “In the United States, you have the political question doctrine, in which the Supreme Court won’t take a case if it presents a political question. Israel used to have a political question doctrine, but it was broken by [Justice] Aharon Barak,” he said, referring to the architect of Israel’s judicial revolution in the 1990s.
Barak said that everything is justiciable and there shouldn’t be a distinction between political and legal questions. That has led to the court deciding policy in place of elected officials and authorized bodies. “The legal and political have become mixed together. Israel needs to rediscover the distinction,” he said.
