Case Number
HCJ 6055/95
Date Decided
10-14-1999
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate. They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.
Held: The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions “for other reasons,” the growing number of students covered by the exemption has pushed the matter beyond his authority. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.
Keywords
Administrative Law -- Discretion, Army -- Assignments and exemptions from service, Constitutional Law -- Separation of Powers
Recommended Citation
Zamir, Itzchak; Barak, Aharon; Levin, Dov; Or, Theodor; Mazza, Eliahu; Cheshin, Mishael; Strasberg-Cohen, Tova; Dorner, Dalia; Turkel, Jacob; Beinisch, Dorit; and Kedmi, Yaakov, "Tzemach v. Minister of Defense" (1999). Translated Opinions. 390.
https://larc.cardozo.yu.edu/iscp-opinions/390
