IN-DEPTH FEATURES
Making a Mockery of Law — The Insulting Record of Israel's High Court of Justice

In this interview with Yated Ne'eman, veteran rabbinical pleader Rabbi Tzvi Weinman, who has vast legal experience in protecting our fundamental values and veteran chareidi lawyer Rabbi Refael Shtub, also an active player in many such campaigns, discuss chareidi Jewry's relationship with the supposedly impartial High Court of Justice (Bagatz) and the many fierce wars of words that have raged as the result of its rulings.

Part One

Looking Back on an Era

The massive rally held in Yerushalayim to protest the extent of the power wielded by the High Court was of unprecedented size. It will forever remain seared into the memories of the hundreds of thousands of participants and the country's population in general. There were even irreligious citizens who did not conceal their personal identification with the powerful protest that was voiced against the "judicial dictatorship" of the "regime of the High Court."

Over five years later, it can be said unequivocally that the rally had an effect. The Court at last began to show some degree of understanding of the limitations of power. Its president, the standard bearer and high priest of judicial objectivity, will shortly be ending his ten-year period of office, but the effects of his tenure will certainly continue to be felt in the future. To help us try to evaluate the High Court's long years of power, we consulted two men with vast experience of attempting to curb its excesses.

Rabbi Tzvi Weinman is a rabbinical pleader who has been deeply involved in many of the battles over our nation's spiritual treasures. He led one of the best-known struggles in our community's history, over Chief Rabbi Goren's permitting mamzerim to marry, and has served as the emissary of gedolei Yisroel in other similar situations.

His colleague Rabbi Refael Shtub has also played an active role in many of our community's public campaigns. He has led many difficult and bitter battles — over adoption, numerous times over the desecration of graves, over postmortem examinations, over the interference of government departments in the chareidi educational system and over an array of cases dealing with hekdeshos. He assists communal activists, as well as several organizations in their various struggles, and served as legal advisor to Degel Hatorah at its inception.

The Value of Religious Legislation

YN: In your opinion, involved as you are with legal matters on a daily basis, whether in courts of law or in botei din, has the whole concept of religious legislation been beneficial? All these laws must clear the sizable hurdle of the review of the High Court of Justice and receive its seal of legal approval, in which process they are subjected to the judges' own, biased interpretations. Under such conditions, is there any point at all in passing this kind of law, fighting for it tooth and nail, only to have the Bagatz ultimately disembowel it?

Weinman: Let me tell you something that happened to me. When they wanted to amend the Autopsy Law, I sat on a committee together with Judges Kister and Shereshevsky. After we finished preparing the law, it was decided to take the draft in to the Gerrer Rebbe zt'l. I went to him with the full text, which filled six or seven sides — I remember it as though it happened yesterday. It took him maybe a minute-and-a-half [to read]. He finished reading and made his comments. It would be superfluous to enumerate the practical benefits of the law. There have been laws that were well worth the effort put into them and have succeeded beyond expectations. However, there have also been pointless laws.

YN: For example?

Weinman: For example, the Abortion Law. With respect to the amended paragraph, the amendment didn't help. In the end they found grounds for allowing fetuses to be aborted, in a different paragraph, on psychological grounds. The amendment was of no practical benefit whatsoever.

YN: What about the Inheritance Law? Was it drawn up with the cooperation of Agudah activists?

Weinman: Agudas Yisroel is accused of having legislated an inheritance law based on secular law. It simply isn't true. There were complaints to Agudas Yisroel at the time for having agreed that daughters should inherit, but it was incorrect. Agudas Yisroel didn't agree to daughters inheriting. What happens today in botei din - - and Attorney Shtub will correct me if I'm wrong — is that the offspring of the deceased come and are asked whether they want the estate to be divided according to Torah law. If so, they bind themselves with a kinyan and then there's no problem; the ruling follows Torah law, so long as they are interested in its being in accordance with the beis din's authority. If not, they can turn to a court. There is no law that forces a person to divide an inheritance in beis din or in a court. Everyone can do as he wishes.

Theory and Practice

YN: What happened with the Proportional Finance Law (that divides joint property equally between divorcing spouses)? Here authority is in the hands of beis din — can't they rule according to halochoh?

Shtub: The general question — as Rabbi Weinman has already noted — is whether there is any point in religious legislation or, [to put it another way] in grafting halachic and religious principles onto secular law. That's one question. Then there is the question of what happens in practice once the laws are passed. And then, a third point to consider is what happens to all these things in the rabbinical courts.

With regard to the question of whether religious legislation is advisable — here, the policy that Am Yisroel follows and has always followed is to achieve the maximum possible to prevent harm to the observant population. This is also what the [chareidi] Knesset members do — they save what they can from the lions' jaws and see that there should be as few disruptions and disturbances as possible to our community . . .

Weinman: There was one particular law that really bothered us and caused many people grave concern, to a terrible extent — the whole issue of autopsies. It was essential that the law be amended. People were terribly frightened and worried. I remember the time when people wouldn't go to hospital because of the dreadful fear. It was vital that the law be amended, even if only to prevent people from dying at home without receiving medical treatment, and to give them peace of mind.

At the time [when the Likud came to power following the 1977 elections] there was an opportunity to amend several laws and they [Agudas Yisroel] succeeded in doing so. There was great success in the enactment of this law, because all the irreligious public understood that it was offensive. They weren't like today's irreligious. Then they understood; there was more sensitivity.

Shtub: I'm not sure that today's irreligious are different from earlier ones. The same hatred of religion is evident throughout the State's history, or more accurately, throughout the history of the Zionist movement. Wherever they were able to undermine anything, they caused harm; and where they couldn't, they carried out a purely tactical retreat. At times, there have been political alignments of one sort or another that allowed some success in changing or enacting laws, but there has never been any consideration for the religious public simply because they are religious. This hatred is constant, running right through our public life.

The Limits of Function

YN: So if there is a point to religious legislation, why not pursue it more vigorously?

Shtub: As far as legislation goes, obviously, whatever can be achieved ought to be achieved. Laws are sometimes in preparation, for example in one or another department of the Ministry of Justice, where things vary according to the people dealing with them. The predominant tendency is to repel anything connected with religion. There is a secondary trend, of a handful of religious employees there, who are prepared to allow a few cosmetic laws, through that have the appearance of being bound to tradition and to Jewish jurisprudence. But their animosity is evident even in laws where it makes no difference at all [were a halachic stance to be adopted. Even] the on-grafting of laws that are reconcilable with halochoh doesn't change the essence of secular law. They don't transform it. This indicates the hostile atmosphere that prevails there.

YN: Can you give any specific examples?

Shtub: When a country has to enact laws, there are fundamental differences between different countries as to how it is done. For example, there was a controversy over the Guarantor's Law (for loans). When the winning party of a lawsuit wanted to claim his due, a question arose. Could he claim concurrently from the guarantors as well as from the losing party? The crux of the question was, does an ordinary guarantor also have the standing of [what's known in halochoh as] an areiv kablan [from whom payment can be demanded even before the debtor has been approached]? Despite the fact that any legal approach similar to or related to the Jewish one might have been adopted, the law's planners enacted a law that is contrary to the spirit of halochoh — just so that it should not appear that they were enacting religious legislation in Israel.

YN: What about the others laws that we mentioned?

Shtub: There's no doubt that the laws you mentioned earlier, like the law of Daughters' Inheritance, is opposed to halochoh. What do the botei din do in such a case? They have very little leeway, since the legislator has not given them the authority to impose a settlement dividing the inheritance against the parties' wishes. When there is no consensus [among the heirs whether or not to follow halochoh] they have no choice but to direct them to a court. This is how the law manacles the State rabbinical courts as well. It is like other laws that apply equally to all authorities and in all legal settings. In this case too, there is no difference between a court that operates according to secular law, according to the State's laws and the rabbinical courts, or any other legal institution. They are all subject to the same laws.

YN: Why isn't inheritance like the area of marriage and divorce, where it depends whether the parties apply initially to court or to beis din?

Shtub: That's already another question. In those areas where beis din has received authority, or where beis din's authority parallels that of the courts, there is a sort of "race" underway. It is the institution where the file is opened that acquires the authority to deal with the case . . .

Again — every ruling that the rabbinical courts issue is subject to the Bagatz's scrutiny. Only in those areas where they have the authority to rule according to religious law will the Bagatz refrain from overthrowing their decisions (on certain questions). At any rate, beis din cannot issue rulings on matters over which it does not have sole authority. Its authority and rulings carry virtually no weight. This doesn't apply to the narrow field — usually family law — in which it has received authority, at least in some of the relevant laws.

Early Agreements

YN: What is the source of the State of Israel's laws? Are they from the British Mandate, the Ottoman Empire or independent?

Shtub: In practice there was continuity. [Before 1948] Mandatory Law was binding over here. When the State was established and the judicial system set up, an order was issued known as the Order of the Arrangements for the Rule of Law. This established continuity with the law that had been in force since before 1948, within the framework of the Mandatory regime. This law was imposed upon all the courts that were established in the State's first years. Since then, there has been a gradual attempt to create original legislation, which [however] is also virtually completely drawn from the laws of gentile countries.

Weinman: We ought not to forget the basis for the famous agreement concerning religious legislation. In Tammuz 5707 (1947), an agreement was signed between Agudas Yisroel and the leadership of the Jewish Agency. Ben Gurion signed on one side and Greenbaum and Fishman also signed. They promised that the official day of rest would be Shabbos, [that there would be] kashrus, Jewish marriage and divorce and chinuch. This was later continued.

There was an agreement that is known as "the status quo" concerning all the main religious issues, but these have been infringed upon as the years have gone by. Take the area of marriage and divorce for example. To begin with it was under the exclusive control of the rabbinical courts while today it's also controlled by the judicial system — the Courts for Family Affairs.

YN:So that here, too, that agreement has been violated in practice?

Weinman: The agreement states that all the members of the Executive of the Zionist Organization appreciate the seriousness of the problem and the great difficulties that it presents and [that] there is therefore a need to prevent the Jewish People from splitting into two groups. There was no explicit undertaking whatsoever that this area would be completely within the sphere of influence of the botei din. They were more concerned with the ideological aspect of things than the practical.

Shtub: One should be aware that law is no different from any other realm of [national] life where the religious were given their own little patch of land to tend, to give the appearance that they were also playing a part in society and in government. That was Ben Gurion's shrewdness — a religious sector existed in the country, they would be given a little money and a little authority. Everywhere, he gave them the feeling that they were also playing a part in running things.

Don't Interfere!

YN: Was that their attitude to the National Religious public only, or to the chareidim as well?

Shtub: That was their attitude to everyone. Take the National Religious as an example. When, in recent years, they began making their way up the ranks in the army and thought that they were about to be made captains and generals, they either [neutralized them and] turned them into their lackeys [by placing them in positions where they were led to betray their ideals] or they tried their very best to kick them out.

Of course, this phenomenon is not confined to the army. If you think of the various areas of public life as marketplaces, they would give one little stall to the religious. That's how it is with the local authorities. They would appropriate budgets of hundreds of millions — budgets that belong to us — and announce to the religious, "Set up a religious council. [You can pay for] a few mikveh attendants and a few kashrus supervisors. You'll get a nice car for yourself, a deputy etc. etc." These things are actually very important but that wasn't what motivated them in setting them up. That's why, when you want to say something, they won't have it.

YN: And are things the same in the legal world?

Shtub: Absolutely. There too, they established the rabbinical courts to give us the impression that we also have judges and a legal system. In fact though, we have nothing, because they are continually whittling away the [beis din's] authority either [directly] or [indirectly] with the development in recent years of the Courts for Family Affairs. If you check today, you'll find the rabbinical courts almost empty, because most of their authority has been transferred to the Courts for Family Affairs.

Weinman: Dr. Zerach Warhaftig served for many years as the Minister of Religions. He was the first one to become involved in religious legislation and related matters. He deliberated over whether all of the State's laws characterized it as a Jewish State and he too, concluded that there are two-and-a-half [such] laws in all. [One is] the Law of Return, which since then has become virtually obsolete and devoid of any meaning and [the other is] the Law of Marriage and Divorce. Note that the law prohibiting work on Shabbos is a purely social measure, without any religious significance.

Shtub: That is an important point. The laws of marriage were supposedly placed under the control of the rabbinical courts, giving them, on the face of it, quite a broad scope of activity. However, the last fifteen years have seen the Russian aliyah, which today everyone admits is virtually completely composed of gentiles — approximately ninety-five percent, not the forty to sixty percent that Rabbi Peretz once spoke about. This is an entire nation — a gentile state that has been established here in Eretz Yisroel. There were some dayanim who thought that if they tried to block what was happening and didn't bring in all these gentiles as recognized [Jews] and didn't allow all the fictitious "conversions" that so- called rabbonim were approving, the botei din would lose their authority because the State would find an alternative solution. So they allowed in an entire nation of gentiles in the guise of Jews and it's all been done with their tacit consent, supposedly in order to preserve their authority and their territory as the botei din that deal with marriage in the State.

YN: What choice did they have?

Shtub: Had they taken a firm stand, as gedolei Yisroel instructed them to do at the time, not recognizing all those "conversions," a different, independent, state system would have had to come into existence to deal with the family affairs of the million and a half gentiles from those countries. This is one of the greatest disgraces of this system as it operates today. It has agreed to turn a blind eye to the new nation that has joined us here in Eretz Yisroel and has failed to block their "conversions" by issuing rulings overturning them. Instead, they marry them in the rabbinate and have them divorce within the framework of the botei din, when everyone knows that they're a separate, gentile nation that has been absorbed here. And it's all for the sake of hanging on to the supposed authority of the rabbinical courts.

This really touches upon a question that involves the early stages of the State's establishment and that of its legal system, which originally set up the rabbinical courts as window dressing, allowing [the religious] a small [autonomous] area, while the entire system is supported, selected and controlled by an utterly secular system.

Weinman: Gedolei Yisroel have ruled that the time for starting independent genealogical records has not yet arrived, though they have asked that the issue be investigated. I was talking with a distinguished rov and he told me, "There won't be any problem with funding. I take responsibility for the funding."

Who Goes Where?

YN: I'm not talking about money but generally, seeing that today the system is becoming more and more subject to the Bagatz and to [secular] law?

Shtub: What do you want from the world of dayanus? What about the governmental kashrus system?

The Bagatz forced the Tel Aviv rabbinate to capitulate over hechsher in the Marbek slaughterhouse issue, and of other rabbinates too. It also compelled them to grant kashrus licenses to places with obscenity. The rabbonim were forced to surrender and admit defeat. So is the system of government dayanus the only one that's open to the corruption of the Bagatz?

YN: But in dayanus aren't there far-reaching ramifications that don't apply to other fields?

Weinman: Why not phrase the question this way? Why shouldn't we all be subject to a system of independent botei din? That is the crux of the matter. The answer is, that even Rabbis Shtub and Weinman and many others too, will turn to a private beis din when they are involved in a dispute, as will most of the chareidi community. The government dayanus system exists only for the masses of unlearned Jews.

YN: Then how can it be that chareidi Jews dare to apply nowadays to Courts of Family Affairs?

Weinman: That's irrelevant . . . You could also ask how people can buy meat today with kashrus certification that they once would never have relied on. They don't do it because they see the system of botei din as being so terrible, but simply because they think that they will be awarded more in the secular system and they don't withstand the temptation. A woman who knows that she'll be awarded a greater amount of maintenance in a Court of Family Affairs than she would in a beis din will go to the court, because that is what people will be advising her to do. She'll turn her back on Torah law, chas vesholom, for financial gain. What matters to such people is their fleeting gain. You can apply the same logic everywhere. There have always been people who have crossed the red lines.

End of Part I

Bagatz's Sharp Teeth: The Thin End of the Wedge In the course of the High Court's history, several milestones mark stages in the damage inflicted by the judges on Judaism and its holy standards. The following retrospective glance shows that even before Barak's appointment as president of the High Court there were others who started the trend that he continues. Without a doubt, though, Barak has exceeded them all, throwing the court's doors open to every harmful influence. We'll begin with a decision given forty-five years ago on an appeal by several residents of Kefar Shmaryahu against the head and the members of the local council. The council had refused to allow the use of a hall to some Reform residents for the Succos festival. The appeal was submitted a few days before Succos and the ruling was issued during Chol Hamoed. The three judges (Yoel Zusman, Alfred Vitkin and Chaim Cohn) unanimously agreed that the council had to allow the reformers use of the hall they wanted. This ruling constituted a serious precedent and in its wake there was a complete breakdown of all barriers relating to the fundamental principle that Reform constitutes a "legitimate religious" group in Israel, with obvious consequences. The judges thus gave the green light to "freedom of worship, religion and conscience." There is no doubt that this type of judicial activity laid the foundation for the enactment of the two [existing] Basic Laws: the Law of Freedom of Occupation and the Law of Man's Dignity and Freedom. Even though no Basic Law of Freedom of Religion has yet been enacted, after the passage of the first two such laws, Barak could allow himself much greater freedom. He was almost able to release himself completely from the minimal restraints that the judges still imposed on themselves before him. Who Is A Jew? Several years later, the country was in an uproar over the Bagatz's ruling on the Shalit affair, which was decided by a special and unusual panel of nine judges. In fact, the court had ruled on a similar appeal — known as Rufeisen — some years before. Then, the court was asked to determine whether an apostate Jew who had settled in Israel and joined the Carmelite Monastery in Haifa where he became a monk and was known as Brother Daniel, could receive an immigrant's certificate and be entered as a Jew in the Population Register. The judges decided that the term "Jew" should be interpreted in the light of national-historical experience, according to which, a Jew who had converted to another faith could not be called a Jew. Judge Chaim Cohn advanced a minority opinion whereby Rufeisen should be recognized as a Jew because the determining factor was whether or not an individual declared himself to be a Jew. Debate over the Shalit affair was a direct continuation of the Rufeisen debate, although there were several obvious differences. Shalit was a Jew and a captain in the army. While studying in Scotland, he married a gentile woman and, when they had two children, he wanted them to be registered as not belonging to any religion but as members of the Jewish nation. The registrar at the Ministry of the Interior refused this request and Shalit swiftly appealed to the High Court. Now, although an apostate, Rufeisen himself had been born a Jew and some maintained that "once a Jew always a Jew." Here however, nobody contested that Shalit's children were gentiles. Their father's army rank and the fact that they were being raised as ordinary "Israelis" were the significant differences. The court held lengthy discussions on the case and two years after the application had first been tendered, the decision was given, by a majority of five to four, that Shalit's children should be registered as "lacking religion [but] members of the Jewish nation." While the rulings of the judges who formed the majority were mainly technical, dealing with the registrar's obligation to enter the information given to him and his lack of authority to contest it, the minority rulings addressed the essence of the case. Two of the four maintained that the halachic yardstick is the determining factor in who is a Jew, while the other two argued that since there was no consensus in Israeli society over the issue, it was not the court's place to make a decision. What had happened in fact was that Judge Cohn's minority opinion in the Rufeisen case had been adopted by the majority in the Shalit case. According to this view, while most of the information recorded by the registrar at the Ministry of the Interior consists of essentially objective facts, religion and nationality are areas in which the registrar must accept what he is told without examining the conscience of the informer. These two cases were undoubtedly the most controversial ones involving religion and the State. As time passed, the court heard many other appeals affecting these issues. Its most recent rulings led to the establishment of the Ne'eman Committee and of the Joint Committee with Reform and Conservative groups that gave them a foothold in conducting conversions and other areas. For the High Court to Decide or Not? Another issue that has been at the center of much controversy over the years is the postponement of army service that is granted to bnei yeshiva. Since its first submission to the High Court, fifty-three years ago, the issue has come before the court again many times. The court rejected the first three appeals, on the grounds that those pressing the issue "lacked legal standing." The first time that the judges accorded it such standing, bringing them into the thick of the debate, was when lawyer Yehuda Ressler tendered an appeal against the Ministry of Defense in 5748. Aharon Barak was a member of that panel and set the tone of the proceedings; with him sat judges Meir Shamgar and Miriam Ben Porat. Here the early signs of Barak's judicial activism were evident. This was the turning point following which the Bagatz's approach dramatically shifted towards adopting the well-known argument that "everything is justiciable." Hitherto, the court's approach had been restrained with regard to issues with which the judges preferred not to become involved. That restraint disappeared after Ressler's appeal. Barak explained the new position, which posited that there were two fundamental concepts underlying the legal system. These were, Normative Judgment (meaning, are there legal grounds for rendering a decision in a dispute) and Institutional Judgment (is the High Court the correct forum for deciding a particular issue; perhaps it should be resolved elsewhere i.e. by the legislative authority, or by the law enforcing authority). To put it more succinctly, the legal system had become politicized. A few years later, when Avraham Poraz appealed against the Tel Aviv Municipality, Barak, as leader of his panel, ruled that the city could not prevent women from participating in the group selecting a new Chief Rabbi for the city. This came after the council of the Chief Rabbinate had decided that it would not cooperate with a rov who had been chosen by a body of voters that included women. Barak and his colleagues invalidated that decision, invoking the "Principle of Equality." That ruling brought more after it, concerning women joining the religious councils etc. Other issues, for example, the closure of Rechov Bar Ilan to traffic on Shabbos and the marketing of non-kosher meat, were the subject of fierce controversy and were resolved by the High Court following its own ideology. It is amply evident that the institution that really runs the country is the High Court and its panel of judges. They have opened the court to all who seek a hearing and have transformed their judicial institution into one for religious, political and sociological decision making.

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