AG: Government violating court order on Haredi draft, in ‘real danger’ to democracy

Attorney General Gali Baharav-Miara on Monday accused the government of violating a High Court of Justice order by failing to create a policy to enforce draft notices sent to tens of thousands of Haredi men who haven’t enlisted.

In a damning position paper filed with the court, Baharav-Miara warned that the government’s refusal to abide by the order represented “a real danger to Israel’s democracy.” The refusal, she claimed, meant the government was ignoring the principle of judicial review, thereby fatally undermining one of the branches of government.

The attorney general accused the government of doing nothing at all to implement the court ruling, and noted it had not expressed any intention of complying.

“When the executive branch does not see itself subject to judicial orders, the judiciary is deprived of its ability to fulfill its constitutional role as a body that oversees the legality of government actions, creating a dangerous opening for the rule of unchecked power,” warned Baharv-Miara.

The attorney general was responding to a request for a contempt of court ruling against the government by the Movement for Quality Government in Israel. The nonprofit filed the motion last week over the government’s failure to draw up effective enforcement policies for ultra-Orthodox draft dodging in accordance with the court order.

Baharav-Miara noted that a court has never ruled the government, or a government agency, to be in contempt of court, and that such a determination would be legally complicated. She did, however, state that the court could order Prime Minister Benjamin Netanyahu to immediately comply with its order.

On November 19, the High Court ordered the government to draw up within 45 days effective enforcement measures, including criminal proceedings and financial sanctions, against male ultra-Orthodox students who have refused to comply with IDF conscription orders since the law for blanket military service exemptions expired in June 2023.

The government has been trying to draft and pass a law to reinstate blanket military service exemptions for ultra-Orthodox yeshiva students, which would then obviate the High Court ruling, although it is facing significant political problems in legislating the bill.

The government argued in court that it should be given more time to pass that bill, but the court insisted that efforts to pass legislation do not absolve the government from complying with the law as it stands.

After the government failed to draw up enforcement policies by the end of the 45-day period, the Movement for Quality Government in Israel filed a request to the High Court on January 5 for a finding of contempt of court against the government.

Cabinet Secretary Yossi Fuchs said that the government was seeking a 45-day extension for implementing the ruling but that the State Attorney’s Office and the Attorney General’s Office had failed to transmit that request to the court.

The State Attorney’s Office insisted in Monday’s filing, however, that the request had not been properly transmitted, and that the government had not taken even the most basic steps to begin implementing the High Court decision.

In the attorney general’s response to the contempt of court request, she pointed out that she had sent a letter to Netanyahu on November 25 informing him that he was legally required to immediately act to draw up enlistment enforcement measures in the wake of the court’s ruling.

She then wrote to him again on December 25, repeating that action was immediately required to comply with the ruling. “These requests remain unanswered as of the time of this writing,” the attorney general’s filing stated.

She also noted that in the one ministerial committee meeting held on the issue, the relevant ministers were not present, including the prime minister, defense minister, and finance minister.

The attorney general also pointed out that the prime minister had not issued “one operative order” in response to the court order, and did not assign the task of implementing it to any government official.

“The conduct of the prime minister and the government, and in particular their failure to take even the first action to advance the implementation of the judicial order, constitutes an injury to the rule of law and violates the principle of separation of powers from which the mutual respect between the three branches of government stems, and amounts to defiance of the obligation to comply with the judicial order,” declared Baharav-Miara.

“This conduct constitutes a real danger to the democratic regime in the State of Israel, including the principle of the rule of law and the principle of separation of powers,” she continued.

“Violating judicial orders, without, apparently, any real intention to comply with them, without an orderly application to the court for an extension to implement the judicial order… means that the ability of judicial bodies to exercise effective judicial review of government actions is emptied of its meaning.”

Fuchs told the High Court he fiercely objected to the attorney general’s comments in her filing, and alleged that the government had sought to request an extension for implementing the court’s order but that the State Attorney’s Office failed to file the request on time.

In a note to the court appended to the case file on Monday, Fuchs accused Baharav-Miara of ignoring the government’s extension request in her filing and of “pressing for a clash of the branches of government and a constitutional crisis.”

He also alleged that she was “attempting to prevent the government from obtaining an extension for implementing the court ruling,” and that he was filing his notice to the court along with supporting emails and documents since the attorney general had not filed the government’s request for an extension.

Fuchs also objected to what he said was the Attorney General Office’s attempt to “present the government’s actions as a defiant violation of a judicial order.”

He concluded by repeating that the government was seeking a 45-day extension for implementing the court order to draw up effective policies for enforcing conscription for ultra-Orthodox men.