Israel’s High Court convened on Tuesday morning before an expanded panel of judges to hear petitions against the Arrest Freeze Law, which was enacted to prevent the arrest of bnei yeshivos who have been designated as draft evaders for approximately six months.

The law was intended to allow time to regulate the status of Lomdei Torah until a new government is formed and decides the issue of the draft law.

In an unusual decision, the government will not be represented at the hearing. Shas Chairman Aryeh Deri espoused the position that the government should not argue against striking down the law, based on the understanding that the High Court justices will invalidate it regardless. In a rare move, the Court issued an interim order against the law last week before it was even published in the official gazette. In another unprecedented step, the Knesset Legal Adviser submitted a legal opinion that the legislation of the law was flawed. Attorney General Gali Baharav-Miara also submitted a response requesting that the High Court strike down the law.

Earlier this month, High Court “President” Yitzchak Amit appointed an expanded panel of nine justices to preside over the hearing. In a surprising move, Amit did not include himself or Justice Khaled Kabub on the panel. As a result, Deputy President Noam Sohlberg will be the most senior justice on the panel and will preside over the sensitive hearing.

Channel 12 journalist Amit Segal noted that it is difficult to recall a case in which the President of the High Court did not sit on an expanded panel of this kind, leaving Sohlberg to face the public fire. He also noted the absence of Justice Khaled Kabub, even though he is more senior than Justice Ruth Ronen, who was included on the panel.

The published decision gave no explanation as to why Amit and Kabub were not included among the nine justices. The document lists only the members of the panel and the hearing date, without detailing the considerations behind their selection.

However, according to B’Chadrei Chareidim reporter Meir Green, Amit’s selection of the panel was a tactical move designed to direct the full force of the public backlash specifically toward the court’s “conservative” members. In addition, Amit specifically excluded Kabub, a Muslim Arab justice, from sitting on the panel to avoid the optics of a member of a community that does not serve in the IDF taking part in a ruling that Chareidim should be arrested for draft-dodging.

Green wrote: “High Court President Justice Yitzchak Amit’s decision not to include himself in the expanded panel that will hear the law preventing the arrest of bnei yeshivos classified as draft deserters is not merely a procedural matter—it is a carefully calculated tactical move.”

“At first glance, one might have expected the sitting president himself to lead a hearing on a matter with such dramatic public and legal implications. In practice, however, Amit appears to have preferred to avoid the hearing and the public fire that accompanies it. It is a strategic assessment on the president’s part, as he fully understands that, in this case, the law is so extreme (in the eyes of the justices) that he can rely with complete confidence on his colleagues on the bench—including the most conservative justices on the panel—to do the job for him and strike down the law.

“With the legal outcome Amit desires almost guaranteed and already consolidated behind the scenes, he preferred to step aside. His absence allows him to avoid the public front line and leaves the other members of the panel—led by the justices identified as the court’s most conservative—to stand at the center of the storm. At the end of the day, they will be the ones forced to absorb the barrage of criticism and political attacks expected from the coalition and the Chareidi public after the law’s all-but-certain invalidation.”To understand just how unusual this move is, one must look at the full picture of today’s High Court. Because of the prolonged judicial appointments crisis, only 11 justices are currently serving on the court, despite there being 15 authorized seats. The expanded panel consists of no fewer than nine justices. That means the only two sitting High Court justices who were not included are President Amit himself and Justice Khaled Kabub.

“This is an exceptionally unusual situation. An expanded panel hearing an issue of the highest public and political sensitivity without the participation of the sitting President of the High Court is an extraordinary event, perhaps even unprecedented in Israel’s judicial landscape.

“At the same time, the absence of the second justice left off the panel, Khaled Kabub, reveals another layer of careful strategic planning. It can be assumed that Amit carefully weighed the public ramifications and sought to prevent the creation of an easy target for political attacks and distractions. The president understood very well how it would appear to the public—and how supporters of the law would use it—if an Arab justice were to rule on whether criminal proceedings should be brought against Chareidim who do not enlist, while the Arab public itself does not serve in the military.

“Further evidence of the urgency with which the system is operating, and that the outcome has already been determined, is the extraordinary procedural conduct of the case thus far. This is an extreme case in which the court chose to issue a provisional order—immediately shifting the burden of persuasion to the legislature to explain why the law should not be struck down—as part of its very first decision on the petition. This dramatic step was taken before any hearing had been held and before the customary preliminary responses had even been requested or received. It is a clear signal that, from the court’s perspective, the cards had already been dealt before the first shot was fired.”

(YWN Israel Desk—Jerusalem)