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 Two

Behind the Scenes

YN: Let's return to the Bagatz.

Obviously the status quo has undergone a prolonged process of being whittled away, to the detriment of the chareidi community. On the other hand though, in the agreement about the Dovrat Commission's educational reforms, Bagatz refused to allow the reforms to be imposed on the chareidi educational system. This is a very fundamental question. We are always attacking Bagatz but the question is, aren't there also some cases where it has the effect of shielding the chareidi community from governmental tyranny?

Shtub: Bagatz's decision about the Dovrat Report is nothing to get excited about. There are two aspects to the whole way that the Bagatz functions. It is an extremely cunning instrument that has an additional in-built function of which the public is unaware. A closed forum exists where representatives of the Bagatz, the Security Services and the Government — usually the Prime Minister's representative — meet. That is where the real decisions that affect every area of the country's life are made. Don't imagine that the President of the Court suddenly arrives at decisions with the other judges, or that decisions affecting all kinds of military and scientific matters suddenly get made. These things are decided and known in advance.

A large proportion of the appeals to the Bagatz are therefore mere public relations. You might think that you are putting forward a legal argument, that the other party argues differently and that the State's representative takes a third view — that there is some kind of interplay of legal issues and that the final ruling results from a process in which certain principles of decision making are employed [but it doesn't work that way]. Things follow the usual and, on the whole, prearranged course that the State's institutions have determined. From their point of view, the Bagatz is the final and the supreme body that allows matters to proceed in the channels that the State has decided they should follow.

It's true that in theory, there needs to be a forum where a downtrodden and degraded minority who are trampled on by the majority, can go to try and save their skin but that only applies when the minority is enduring physical suffering or economic hardship. With regard to the Jewish religion, Bagatz is just another means of crushing.

Weinman: Show me one other country where an institution like Bagatz exists. There's no such thing in America, nor anywhere else.

Shtub: Here in particular, where the most vehement controversies center on religion, would you approach an institution knowing full well how you are viewed there? It's therefore naive to imagine that Bagatz either can or wants to help chareidi Jewry here in Eretz Yisroel. There is no recourse. In fact, the results of virtually all the appeals to the Bagatz, with some exceptions, are known in advance. It's a fatal error to turn to the Bagatz. The State- supporting knitted kippah wearers appealed to Bagatz [over the Government's treatment of the Gaza pullout issue] and the results are known — they ground them to a pulp.

Weinman: In my opinion, most appeals to the Bagatz are made purely to influence public opinion and to reach the public. It doesn't cost anything so why not appeal? The more the merrier . . .

Impartiality Towards Whom?

YN: How can one charge Bagatz with working hand-in- hand with the apparatus of government when we see many of its decisions under Barak's `judicial activism' view everything as being subject to [their] judgment? They have both annulled [Knesset] laws and opposed the Government. It has not been over anything concerning the religious public, but on occasion they have opposed the government. This proves that the institution is independent. There have also been cases where they've opposed the positions of the Security Services and the Defense establishment. The outstanding example is the incident involving the Lebanese exiles [where the Court almost cancelled a prisoner exchange deal].

Shtub: To begin with, you can see for yourself that in the Bagatz itself, within its own system, there is no consensus about arrogating such superfluous and sweeping powers to themselves.

Weinman: Colossal fights go on there about this.

Shtub: [Judge] Menachem Alon opposed it and issued opinions in which he took issue with this tendency. [Judge] Shamgar was against it. [Judge] Cheshin, Barak's deputy and a man of comparable abilities, comes out quite forcefully against this orientation of the High Court. They understand that they have become drunk over there with the power and strength that they've assumed. That's one point. Another point is that they've garnered a lot of power because of the Basic Laws. These have empowered them against the existing set of laws, so that the Basic Laws override the regular lawmaking system.

YN: We mentioned autopsies earlier. The chareidi community fought valiantly, as anyone who remembers what happened in those years knows. Yet Bagatz didn't help and the law needed to be changed.

Shtub: Correct, Bagatz didn't stop autopsies. As Rav Weinman said earlier, some people didn't go to hospital. People sacrificed their lives for it. But when they saw how people were taking part in a genuine struggle, one that went hand-in-hand with genuine principles, where faith was playing the leading role, they did it no harm. Today we see the settlers and the evacuators embracing each other and crying. They pull them out and they sing Hatikvah and jump straight away onto the buses. It was weakness, that showed the government that they would be able to evacuate the West Bank quite casually. In the protests over the desecration of graves, nobody ever saw a demonstrator and a policeman embracing. They stood their ground like lions. They didn't flinch and would not allow them to touch the burial site. That is the pure-hearted and determined way — the way our fathers and grandfathers fought for something. Bagatz is the very last place that will help.

Weinman: What will help is the genuine opposition of a very serious sector with very serious principles that will never allow anything approaching interference with the fundamentals of religion — that will put an end to it. The beginning and the end of it all is that when there is a genuine and consistent position that derives its validity from the type of genuine and basic faith that has guided all earlier generations, nobody will manage to budge it.

The Conflict Facing the Rabbinical Courts

YN: With your consent I would like to return to the question of whether or not the rabbinical courts operate exclusively according to halochoh.

Shtub: The answer to that question is that clearly, the aim and the wish of the dayanim in the botei din today is to rule according to Torah law. On the other hand, nobody would argue that there does not exist a problem — one that is avoided but that is there nonetheless — of their being subject to the secular legal system. When a dayan prepares a ruling and the other party tells him, "If you rule this or that way I will appeal to Bagatz," the dayan may write his ruling under the threat of Bagatz. I'm not saying choliloh that he rules according to secular law but he is ruling under its influence.

For example, if I come to a dayan today and tell him, "The parent who has custody of the child is interfering with his religious observance — feeding him non-kosher food. Please transfer custody to the other parent." Even if the dayan complies willingly, he does so in fear of Bagatz and of the criticism of the irreligious. And suppose that I persuade the dayan that the child will be lost spiritually and that he must be given to the other parent so that he'll receive a chareidi education. Then the other side comes along and says, "If you transfer him without getting a social worker's report, without a welfare officer's report, without a psychologist's agreement, I'll appeal to Bagatz," what will the dayan do? It depends on his acuity and on his yiras Shomayim.

Weinman: An extremely difficult problem exists with the children of chozrim biteshuvah. I once represented a young man who had become religious. He had a heart condition. On erev Pesach I asked the previous Chief Rabbi to give the child to his father just for the seder night, and for the rest of the festival he would be with his mother, since it was clear that he would be fed chometz. This happened on erev Pesach. What would you have done? Crying profusely, I went to his house and I had a big argument with him. His response was that if the child wouldn't be with his mother for the seder that might also bring on a heart problem. I didn't blame him. I failed. I lost. You can't cite how a dayan rules in this area as an example at all. This is one of the most difficult problems in the system. What shall we do with these children? The problem of children in such circumstances is so involved . . . and it exists in the private botei din too . . . there are many different factors to weigh . . .

Shtub: I will also relate to this example. I didn't say that you're wrong about there being many different factors involved in a decision to transfer a child from one parent to another. There are a great many issues to weigh and one has to be extremely careful in arriving at a decision. All I pointed out was the possibility that the dayan making the decision knows that the Shulchan Oruch isn't going to overturn his ruling but that Bagatz might. He sits there deliberating and turning the matter over ten times and in the end one of the elements in whatever ruling he arrives at is the fear that Bagatz might cancel it. The private botei din aren't part of that system and it isn't a factor in their decision. They will only consider the child and how halochoh views the situation.

Weinman: So what happens then? You can't try and grab too much. Take the child — tomorrow the Bagatz will come and take him away from you. It's not because the dayan is at fault.

A No Win Situation

Shtub: Say that someone comes along to beis din — despite the dayan supposedly being bound solely by Torah law — and says, "I have a witness outside," and the dayan knows that this witness is a Shabbos desecrater [and thus halachically invalid]. There are dayanim who are afraid of Bagatz and who will accept such testimony. [And in any case] The dayan won't write in his ruling that he didn't accept the testimony because the witness has the status of a rosho. He won't write such a thing in the ruling.

Weinman: Fifty thousand files are issued without providing the reasoning behind the decision, so there'll be one more . . .

Shtub: The question is, how does halochoh rate the functioning of such a dayan? When a person worries that judges sitting in the High Court who are Shabbos desecraters will annul his decision, it leads him to formulate a different kind of ruling, or to arrive at a different conclusion. There's no reason to avoid the issue — that's the situation.

Weinman: If the dayan is clever enough he can word it differently and avoid the [controversial] issue altogether.

Shtub: It's hard to function within a system that is looking over its shoulder at an institution on top of it. It doesn't matter who it depends on. Take the example of the distribution of assets, in a case where one side [of a divorcing couple] wants the division to be made according to halochoh while the other side wants it to follow the Law of Monetary Proportion, which divides up everything fifty- fifty. From the moment the dayan enters the beis din's premises and starts dealing with issues like the distribution of a couple's assets, he knows how the law of the land tells him to divide the property. He can pretend that he's handling the couple's case according to Shulchan Oruch but he knows that he mustn't do so because this is one of the specific laws by which beis din in Israel is also bound and he is compelled to rule contrary to Toras Moshe. The Hebrew term for his tactic in such a situation is a combination [ kombina, i.e. an improvisation, a makeshift, `creative' solution]. He pressures them to reach a compromise. He tells them to come back again in a fortnight. But he doesn't say, "Rabbosai, I'm handcuffed. The law says that I must divide the property contrary to Toras Moshe."

In one case, a stubborn lady would not be deterred and the president of the Head Rabbinical Court understood that there was no way out. He found a dayan who divided it according to the secular law and not according to Shulchan Oruch. This dayan employed a combination whereby there had supposedly been some understanding between them according to which it was understood that the division would not be made according to halochoh. And that was what happened in the end. That is the threat that hangs over the dayanim; these are the conditions under which they must do their work.

YN: Is this the same as a beis din accepting the conclusions of social workers without voicing any dissent whatsoever, even when it contravenes halochoh?

Shtub: Why would a dayan accept a social worker's opinion? Because if he doesn't and he doesn't do a convincing enough job of explaining why not when he formulates his ruling, the Court will overturn it.

Weinman: That's the reason why I didn't allow my sons to learn dayanus.

YN: I would like to ask a personal question. If a client approached you, seeking a division of property according to secular law, what would you tell him?

Weinman: I would never accept a case that called upon me to act contrary to halochoh — certainly not!

Shtub: I personally wouldn't have such a problem because I'm not involved in family law in the botei din. But obviously, in the case that you just described it would be forbidden to present a claim where the client wants an outcome that diverges from halochoh.

Weinman: I once waged a campaign against Chief Rabbi Goren. At the time, Goren was doing everything in his power to prevent the appointments of talmidei chachomim as dayanim. He exploited his authority by collaborating with the then Minister of Religion to prevent the convening of the committee that selected dayanim. He took this path once he realized that the members of the committee did not support him and would not appoint dayanim who would follow his lead and adopt his policy of giving shaky heteirim that halochoh opposes, but only distinguished, scholarly dayanim.

Goren dragged things out for a whole year until I entered the picture. All our activities were directed by HaRav Eliashiv. By this time, the botei din were short of more than ten dayanim to fill out their numbers. At the time, Goren, together with the Minister of Religion was also planning a change in the law whereby a representative of the dayanim would sit on the selection committee. In this way he hoped to succeed in having the dayanim he wanted appointed. I tendered an appeal to the Bagatz that thwarted his plans and he was forced to convene the committee with its existing members and his candidates were not appointed.

Response Further to some of the points raised in the course of this interview, we approached several senior dayanim who enjoy the confidence of gedolei Yisroel and asked for their reaction. After taking due care to avoid generalization, the dayanim clarified that within the system there certainly are distinguished and conscientious dayanim who fearlessly uphold every nuance of halochoh but sadly, there are also trends of the sort described in the article. "Over the years," they told us, "your paper has taken a valiant stand in warning of the unwholesome trends that affect conversions and other areas. However, the picture is not uniform, particularly when one bears in mind that in many cases the ideological orientation of the parties concerned is clear. "This is the reason why gedolei Yisroel are steadfast in their efforts to do all they can to ensure that all the dayanim who are appointed should be upright and worthy of their position."

The Survey That Reveals Bagatz's Bias in Issues of State and Religion The Judicial Revolution — Judges' and Lawyers' Opinions of Barak — Is Israel's Supreme High Court Truly Objective? Chareidi Jewry has clearly not managed to settle its profound dispute with High Court's President Barak's philosophy that `Everything is justiciable.' Years ago, a number of questionable proposals were made to `ease' the situation. One such idea, for example, was the broadening of the framework of the Beit Din Meyuchad — a special makeup consisting of two High Court Judges and one dayan from the Great Rabbinical Court, where controversial issues involving State and religion could be discussed. One such topic would be the granting of recognition to Reform conversions, both those carried out abroad and principally those performed in Eretz Yisroel — an issue with which Bagatz is constantly involved. No lengthy explanations are required, however, to see that the result of such a step could hardly be favorable to the chareidi community. Chazal tell us that experience is the best teacher, and a backward glance at the discussions and resolutions of previous Botei Din Meyuchodim reveal a sorry tale. The basis for the institution of the Beit Din Meyuchad is an old Mandatory law from 1922. Although it met only rarely, every one of its decisions was detrimental to chareidi Jewry and in particular to the rabbinical courts, for the decisions of the Beit Din Meyuchad are also ultimately subject to the High Court. A Devastating Influence At the core of today's problem is the drastic whittling down of the status quo. The list of infringements is long and shocking and, undoubtedly, the main culprits are High Court President Aharon Barak and his judicial colleagues. Today, we are witness to the utter collapse of all measures to restrict Shabbos desecration in the public domain, to the legitimizing of Reform and Conservative groups, approval for all manner of abominations and interference in the work and with the standing of the rabbinical courts. Today, the High Court is the de facto controller of the religious life in the State. Time after time, the court has interfered in matters of halochoh. Though its members lack any concept of Torah and halochoh, they have repeatedly dictated to the dayanim how to rule. In everyone's opinion, it's time to dissociate ourselves completely from the Court and its rulings. It should be made clear, once and for al, to Barak and his colleagues that their meddling in the affairs of the dayanim and with anything relating to Torah and halochoh will meet with firm resistance. However, even such bold declarations will have little effect so long as all the institutions of government are totally subject to the decisions of the High Court. The Court's many rulings in recent years have made the situation in the country today far worse than it was seventy- five years ago. The numbers of Jews who are entering marriages without recourse to the Orthodox establishment is growing and is already in the thousands. The Ministry of the Interior records all "conversions" carried out abroad as a matter of course. Reform and Conservative communities and houses of worship are popping up here and there. Women are being elected to positions that were never previously dreamed of (for example, as members of religious councils). The legal foundations have been laid for the establishment of secular burial grounds, and for a charge, kibbutz cemeteries are open to all. Restaurants lacking rabbinical supervision operate all over the country. Shops selling non- kosher meats can be found within walking distance of virtually every city dweller's home. Hundreds of cinemas, discotheques, cafes and restaurants are open on Friday night and Shabbos in all the cities, even Yerushalayim. Shopping malls are full on Shabbosos and Yomim Tovim. It's no longer a problem to find an open gas station on Shabbos. The country's international airport operates on Shabbos and Yom Tov, the radio stations broadcast seven days a week . . . all this has been achieved by a slow insidious process. A Private Crusade The Manof organization has conducted a far-reaching piece of research into the Bagatz's policies in recent years and its rulings on religion. These have marked a trend that is known in legal slang as `the judicial revolution,' which was given a tremendous push forward with Aharon Barak's election as the eighth president of the High Court. With the implementation of this `revolution,' the opinion began being expressed in legal circles and in public debate that Israel's High Court had become the representative of an ideology that opposes the values of Jewish tradition and religion. Some even argue that it has become the mouthpiece of a few specific political cliques, while ignoring others, particularly religious groups and the traditional public. Manof's investigation points to a number of noticeable examples that bear this out: Prior to Barak's appointment, the accepted practice in the High Court, which was followed in the Vilozhny and Behm cases, was that monetary issues arising from deliberations on personal status were ruled on by the rabbinical court according to Jewish law [like the primary issue], with the exception of cases that were referred to a specific law. Barak overthrew this practice in a revolutionary ruling, determining that, "It can be concluded that Judge Alon's general position, according to which `judgment follows the judge' even in civil law, is an offhand comment." In other words, no more settlements are to be made according to Jewish law. The dayanim must turn to the civil courts [even in cases that come under their jurisdiction]. The vice-president of the High Court Judge Menachem Alon wrote in reaction to this, "That's it! A new revolution has taken place! And like any revolution, the ammunition is non- conventional. Previous statements and rulings of the High Court, which form the actual ruling and its foundation, are turned into `offhand comments.' And as if that were not enough, it is determined that these sayings were wrong to begin with and should be disregarded. A guardian of the law should keep away from them!" Today, the accusations against Bagatz are being voiced openly. The High Court, it is said, intentionally advances personal opinions and values in its rulings and consistently gives one-sided opinions on moral, social and political issues in opposition to values and institutions that do not belong to the groups that form its own social milieu. This accusation is amply borne out by remarks made by Aharon Barak, himself. He has said that the content of laws requiring interpretation should be determined "according to the outlook of Israel's enlightened public" and that "when issuing a judicial ruling, the judge should refer to the general and universal values that are acceptable to the enlightened public." Judge Vitkun supplied us with the definition of "enlightened public" — "This refers to the educated and progressive portion of the public." The Survey and Its Results Manof's survey of the Bagatz's rulings in recent years examined its positions regarding religion and tradition, as well as the differences between the rulings handed down by religious judges and those given by judges who are neither religious or traditional. Rulings given in the nine years between 1993-2001 were surveyed. 1993 is the accepted starting point for the period of the wielding of decisive influence by the High Court's current membership. The survey's validity and reliability was increased by surveying full years, as far as possible. The survey's underlying assumption was that a large divergence between the rulings of religious judges and those of non-religious judges would indicate a link between personal opinions and rulings. A team of lawyers and researchers reviewed hundreds of rulings, 185 of which turned out to be relevant. The following trends, both general and specific, within the Bagatz's operation in relation to our subject were examined: all the High Court's rulings were reviewed and their orientation determined; the High Court's position with regard to the religious status quo; the degree in which religious judges are made a part of processes affecting State and religion; the composition of the High Court's makeup in relation to the country's ethnic makeup, groupings and opinions. The results show that in the years examined, 64 percent of the High Court's rulings opposed the accepted religious and traditional viewpoints. There was a sharp rise in the proportion of rulings negative to religion, from 53 percent between 1993-5 to 80 percent between 1995-2001. Rulings favorable to religion fell from 33 percent between 1993-5 to just 9 percent between 1999-2001. In those three years, 80 percent of the court's rulings were opposed to a religious- traditional position that is acceptable to a majority of Israel's general [Jewish] population. Another definite trend is the Court's tendency to respond positively to appeals seeking changes in the status quo to the detriment of the religious side, while utterly refusing to grant appeals that seek such changes to the detriment of the non-religious side (80 percent against and 20 percent for). In cases where parties belonging to the chareidi public sought protection in the High Court against being harmed by local authorities, the Court did not protect them. In the survey of rulings issued by religious and non-religious judges, the results show that 66 percent of the rulings of secular judges are negative towards religious values and just 32 percent are positive. On the other hand, 52 percent of the rulings of religious judges are positive towards religious and traditional values while 31 percent are not. These figures demonstrate an ideological anti-religious bias on the part of secular judges. It was also found that while there are diverging opinions among the judges in ten percent of the general cases, on average, on religious issues secular judges dissent only in 3 percent of the cases while religious judges dissent in 29 percent of the cases. The study also shows that the Supreme Court has a very different composition from that of Israel's population. Approximately eighty percent of High Court judges profess a secular-liberalistic outlook, while this is the case with only forty percent of the population. In other words, this sector is represented in twice its proper proportion in the court. In addition, seventy-five percent of the judges are of Ashkenazi origin, which is again a very different proportion than in the general population. The study shows that Barak's contention that "The religious public's criticism of the High Court is rooted in ignorance" is meaningless. The study shows that the Court has been intensifying its negative rulings towards religious and traditional values, supporting the annulment of the religious status quo and that it has a uniform and quite different composition to the country's general population. Voices of Dissent One of the major figures who pushed for expressing harsh criticism of Barak's judicial activism is the former chairman of the Israel Bar, Dror Choter-Yishai. In the famous interview that he gave Yated Ne'eman, which sparked a fierce countrywide controversy, he signaled to other prominent figures to publicly express severe criticism of what is happening today in the High Court. Since then, the dissent has crossed all the lines and is even being heard from within the Court itself. From the remarks of previous senior High Court judges, among them Judges Moshe Landau and Meir Shamgar, his deputy Judge Menachem Alon, Judge Yaakov Maltz and others, who have not hesitated to express sharp opposition to Barak's policies, it transpires that the latter is virtually alone with his views and rulings, at the top of Israel's legal system. Moshe Landau said, "In my view, not everything is justiciable . . . What kind of democracy is it that gives the task of scrutinizing decisions that have been arrived at by a democratic process to an oligarchical body such as the Court?" Menachem Alon said, "The Knesset continues to stand at the top of the pyramid of the three bodies of authority and the theory purporting that a revolution has taken place is not acceptable to me and has no basis in reality." Yaakov Maltz made the following remark: "Bagatz has crossed the red lines and is damaging the Knesset's sovereignty." Many more such comments could be cited, but one excerpt from one of the country's greatest jurists, Professor Binyamin Aktzin, writing in Problems of Law, will have to suffice: "Anyone who has been following the rulings of Israel's courts in recent years, and in particular the rulings of the High Court, cannot but see that the fiction of complete objectivity is increasingly at odds with reality. The sharp- eyed observer will notice the correlation between the judges' [personal] world outlooks and their rulings, to a greater and greater extent." Professor Ruth Gavison has not been idle in directing harsh criticism at Barak and for this, she has been marked by Barak, who is preventing her appointment as a High Court judge. This is the background to the bitter and extraordinary struggle that has recently been going on between Barak and Tzipi Livni, the Minister of Justice, [who has said,] "I don't think that there is another court in the world that has arrogated such powers to itself . . . The High Court judges represent a small sliver of Israeli society, secular, Ashkenazi and male and it is unclear why Israeli society needs to abide by their dictates."

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