Shas’s call to end oversight on rabbinic courts likely to lead to misconduct: expert

Buried in the flurry of coalition demands issued by the factions expected to join the next government have been two, made by the ultra-Orthodox Shas party last week, which would expand the power of rabbinic judges and remove the already limited external oversight for the religious court system.

These demands have raised concerns among legal experts and activists, particularly women, as the rabbinic courts’ interpretation of Jewish law is often out of line with modern concepts of justice, particularly on issues of gender, fairness, and propriety. These concerns are not baseless, as a recent study of complaints filed against rabbinic judges, or dayanim, found that far more of the complaints were determined to be justified and were more likely to be for serious offenses than those filed against all other, non-rabbinic judges in Israel.

Ariel Finkelstein, a researcher at the Israel Democracy Institute who performed the study, said removing external oversight would almost surely pave the way for gross violations of litigants’ rights and poor management, as occurred in the past before the current ombudsmanship system was established.

“If it were to happen, the complaints wouldn’t be dealt with seriously. And there are serious problems,” he said.

Currently, rabbinic courts are primarily relegated to overseeing marriage and divorce proceedings for all Jewish Israelis, as well as certain issues dealing with conversions, and occasionally with wills and inheritances.

This fresh coalition demand, spearheaded by Shas and supported by UTJ, would grant rabbinic judges authority to adjudicate property disputes and other civil matters as well, provided both sides agree to it, something that was legally permitted from before the founding of the state until 2008.

The demand would also change the oversight for rabbinic judges, replacing an external ombudsman with a rabbinic judge.

Today, rabbinic courts are overseen by an ombudsman working out of the Justice Ministry — currently Uri Shoham, a former Supreme Court judge — who receives complaints against all judges in Israel, including rabbinic judges and Muslim Qadis, under a 2002 law. The ombudsman investigates the complaints to determine if they are justified and can then make recommendations to the relevant authorities about how to proceed.

Though the rabbinic courts, which are presided over by one of the country’s two chief rabbis, have never been particularly thrilled by having their work overseen by an external ombudsman, Sephardi Chief Rabbi Yitzhak Yosef has taken particular issue with current ombudsman, Shoham.

Former Supreme Court judge Uri Shoham during a ceremony marking the end of his position at the Supreme Court in Jerusalem on August 2, 2018. (Marc Israel Sellem/POOL)

In a number of speeches, Yosef has spoken out against Shoham and called on Shas politicians to work to oust him.

“Do something about it, impeach him, put in his place a rabbinic judge who will oversee the rabbinic judges. Why put a secular judge, a Shabbat desecrater, to oversee rabbinic judges? Where’s the reasoning? Where’s the logic in that? Speed it up. You can do it. Do it fast, get rid of him, impeach him,” Yosef said at a public lecture earlier this month.

A Justice Ministry ombudsman has overseen rabbinic judges for nearly 20 years. During that time, they have uncovered numerous cases of blatantly, sometimes unconscionably, inappropriate behavior by rabbinic judges, including high-ranking ones. In some cases, these have resulted in rabbinic judges being dismissed from their positions, in civil suits being filed against them, and even in some criminal proceedings. Many dealt with such obviously improper conduct like intervening in cases involving close relatives, and meeting with litigants or their family members for private, undocumented consultations during the proceedings.

There are real, hair-raising things in those reports

This included a chief rabbinic judge meddling in a 2005 case in which he was personally involved, getting his subordinates to issue liens on his rivals’ bank accounts; a 2012 case where a chief rabbinic judge overseeing a divorce case tried to pressure the woman’s sister into revoking a sexual assault complaint she’d made to police against her brother-in-law; and another in 2008 in which a group of rabbinic judges was found to have colluded and lied in order to trick a mentally disabled couple into getting divorced.

Israel Democracy Institute researcher Ariel Finkelstein. (Courtesy/IDI)

“There are real, hair-raising things in those reports,” said Finkelstein, who reviewed 11 years’ worth of complaints against rabbinic judges.

But Finkelstein found that where the ombudsman’s work was most demonstrably effective was in a more quotidian area: tardiness.

For decades, litigants in rabbinic courts complained about extended delays in their proceedings, from judges arriving late or not showing up at all to their hearings.

After the external ombudsman began investigating these delays in the early 2000s, in some cases uncovering illegal behavior, the phenomenon diminished significantly, according to Finkelstein’s research. Indeed, other courts have a higher rate of complaints about delays, compared to rabbinic courts.

“It showed that you can fight these things if you want to fight these things,” he said.

Finkelstein said that had not been the case in the first five decades of the court’s existence when it had no external oversight.

“When it’s a closed system, when they’re ‘from within the family,’ there’s no chance they’re going to address the issues,” he said, adding that this was perhaps a legitimate point to make about former Supreme Court justices acting as ombudsman for the Supreme Court as well.

Finkelstein said this was because the rabbinic court system is a small and tight-knit community. Someone from within that world is more likely to turn a blind eye to misconduct or to rationalize it, whereas a more impartial supervisor would not.

He warned that returning to a system without external oversight would “strengthen the bad norms in the rabbinic courts” and in time would result in fewer people filing complaints out of despair. It could also result in regression in terms of delays.

“If the ombudsman is a rabbinic judge who the judges know won’t do anything, maybe the delays will come back too,” he said.

Forced ‘voluntary’ arbitration

While Finkelstein says he is “deeply concerned” about the prospect of removing external oversight from the rabbinic courts, he is more ambivalent about expanding their powers.

Since before the state was founded, under the British mandate, rabbinic courts adjudicated civil disputes. This continued until 2008 when the High Court of Justice ruled that rabbinic courts did not have the authority to adjudicate civil matters, as there was no law on the books explicitly allowing them to do so.

On its own, this change is not unlike existing laws that permit two sides of a dispute to enter binding mediation with a private arbitrator or even a private religious court.

There wouldn’t necessarily be something wrong with doing it if you did it right, but one of the ways to not do it right is to replace the ombudsman with a rabbinic judge,

The concerns around again allowing rabbinic courts to adjudicate civil disputes primarily stem from fears that although both sides would technically have to agree to it, women going through divorces would be forced to agree to such arbitration.

As the Rabbinate’s interpretation of Jewish law demands that a husband freely agree to divorce his wife, men generally have the upper hand in divorce proceedings in rabbinic courts, which they do not necessarily have in civil courts. Rabbinic courts, by definition, are also entirely male-run, as the Chief Rabbinate maintains that only men can serve as rabbinic judges.

As a result, men can threaten to refuse to give their wives a get, or ritual divorce document, unless the women agree to take the case to a private rabbinic court or binding arbitration to resolve issues like alimony and property distribution.

There are numerous cases of women being forced to agree to what would otherwise be unthinkable concessions in divorce proceedings in order to secure a get from their sometimes abusive husbands, because if they refused to concede, they would be at risk of the religious courts treating them as the recalcitrant party. If rabbinic courts were again permitted to rule on civil disputes, it would further legitimize this at-times extortionate practice.

Finkelstein said he was, of course, aware of these concerns, but that ultimately this would not dramatically affect the situation. “Even today, they can force a woman to take a case to a private rabbinic court,” he said.

At the same time, Finkelstein said the combination of the two proposals — removing external oversight and expanding rabbinic courts’ powers — was far more troubling than just doing the latter.

“There wouldn’t necessarily be something wrong with doing it if you did it right, but one of the ways to not do it right is to replace the ombudsman with a rabbinic judge,” he said.

Finkelstein explained that for rabbinic judges, the issue of again permitting them to rule on civil disputes is truly a significant and personal matter. Dayanim today are overwhelmingly focused on issues of divorce, and while that is no small thing, they have been trained to be and have historically acted as arbitrators in civil disputes.

“Why are they doing it? A dayan is someone who rules on civil matters, it’s what they do. It’s a point of pride,” he said. “People think, what does it matter? For them, it matters a lot.”