Choosing Religious Court Judges in Israel: A Case Study

, October 1, 2006

Jewish Political Studies Review 18:3-4 (Fall 2006)  

Israeli rabbinical courts have exclusive jurisdiction over marriage and divorce among Jewish residents.  In December 2002, the author was elected to the Commission to Appoint Religious Court Judges and was reelected to a second three-year term in December 2005. The commission has traditionally operated as an “old boys’ club” and job-placement center for cronies of haredi (ultra-Orthodox) political and religious leaders, with judges being appointed on the basis of their family ties or religious-party alliances. With the support of a coalition of twenty-five women’s organizations, the author and the non-haredi members of the commission succeeded in putting a halt to the haredi rabbis’ control over the appointment process. Women’s organizations and other critics have demanded that candidates be appointed on the basis of merit. Party politics and religious politics have also influenced the commission’s work over the past three years, causing a deadlock and an inability to appoint judges to fill the ten open positions on regional rabbinical courts.

Background

Historically, Jewish religious courts (batei din) had jurisdiction over personal status issues throughout the period of Turkish rule in Palestine from the early sixteenth century until after World War I (1517-1917). During this four-hundred-year period, religious court judges (dayanim) applied Jewish law to issues such as marriage, divorce, guardianship of children, and inheritance. After World War I, the League of Nations authorized the British government to establish a Mandatory Government in Palestine. Although it set up civil courts to deal with most legal matters, the Mandatory Government recognized that religious law of each religious community would be binding on its members in the area of personal status.[1]

Upon the establishment of the state of Israel in 1948, the situation did not change. The rabbinical courts continued to have jurisdiction over personal status law.[2] In 1953, the Knesset enacted the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, which gave exclusive jurisdiction over marriage and divorce between Jews to the rabbinical courts and concurrent jurisdiction with civil courts over matters involving division of marital property, custody of children, and maintenance.

In 1955, the Knesset set out the method by which dayanim were to be selected,[3] providing that they were to be appointed by the president of Israel based on the recommendation of the Commission to Appoint Religious Court Judges. The legislation further stipulated that the commission would be composed of ten members: the two chief rabbis (Sephardic and Ashkenazi), two dayanim from the Rabbinical Court of Appeals, the religious affairs minister and another minister, two members of Knesset, and two practicing lawyers representing the Israel Bar Association.

Traditionally, members of the commission have been religiously observant men from the Orthodox community. Candidates for appointment as dayanim must be ordained Orthodox rabbis who have been examined and certified by the Council of the Chief Rabbinate. Secular and religious critics claim that the commission has operated as an “old boys’ club” and that dayanim are usually appointed on the basis of their allegiance or family ties to Ashkenazi or Sephardi religious leaders.

 

Women and the Commission

Women’s organizations in Israel have been particularly critical of the fact that women play no part in the selection of dayanim, despite the fact that at least half of those appearing in the rabbinical courts are women. It is widely accepted that women are discriminated against in divorce proceedings heard by the all-male rabbinical courts and that the dayanim are insensitive to women’s issues such as spousal abuse. Studies reviewing rabbinical-court decisions clearly show a bias toward men in the interpretation of both Jewish law and civil law by serving dayanim.

In 1997, the first woman was appointed to the commission as a representative of the Bar Association.[4] In 2000, the Bar Association selected another woman lawyer, Hedva Levin, to serve on the commission along with an Orthodox male lawyer. However, Levin disappointed women’s rights activists when she voted for the appointment of Dayan Hagai Izirer to the Rabbinical Court of Appeals despite the strong opposition of a coalition of twenty-five women’s organizations devoted to eliminating the problem of agunot (women “chained” to unwanted or nonexistent marriages because of their husbands’ refusal to give a religious divorce or get).[5]

Women opposed Izirer’s appointment on the grounds that his decisions in the regional rabbinical court had been particularly hard-line and that he was openly biased toward men. There was evidence that he had prevented the freeing of agunot from unwanted and nonexistent marriages. Coalition members lobbied against the appointment, writing letters to members of the commission and holding public demonstrations at the Religious Affairs Ministry and at the offices of the Chief Rabbinate. The then chief Sephardi rabbi Eliyahu Bakshi Doron publicly opposed Izirer’s appointment because of his decisions in agunot cases. A petition to block the appointment was filed in the Supreme Court sitting as a High Court of Justice. All these efforts failed, and Rabbi Izirer was appointed to the Rabbinical Court of Appeals on 19 November 2002.

Changing their strategy, the coalition of women’s organizations lobbied the Bar Association in November and December 2002 to elect women lawyers who were knowledgeable in family law, experienced in dealing with divorce cases in the rabbinical courts, and were women’s rights activists. The coalition also attempted to influence the Knesset to appoint women MKs to the commission. Although it failed to convince the Knesset to appoint female representatives, the Bar Association did elect this author to be one of its representatives to the commission on 12 December 2002.

 

Media

Upon being elected for a three-year term as the only woman on the ten-member commission, there was a flurry of media interest.[6] Media attention focused on the fact that a woman supported by women’s organizations would be serving on the commission, and that she had publicly stated her preference for candidates who had university education in addition to their religious studies and had performed public service, either in a military or community framework. In a particularly revealing article, the haredi (ultra-Orthodox) weekly Yom HaShishi[7] warned that haredi politicians would now have a harder time pushing through “deals” and controlling the commission’s decisions.

Three factors-party politics, religious politics, and women’s organizations-affected the commission’s work from 1 January 2003 to 1 January 2006.

 

Party Politics

Given the statutory makeup of the commission, which includes two government ministers as well as two members of Knesset, it is clear that party politics plays a significant role in the selection of dayanim. Historically, the two MKs have been Orthodox men from religious political parties and the current commission continues that tradition. In 2003, the newly elected Knesset chose MK Nissan Slomiansky of the National Religious Party[8] and MK Eli Yishai of the Sephardi Torah Guardians Party (Shas)[9] as the two representatives on the commission. Slomiansky had publicly stated his preference for candidates who have served in the Israel Defense Forces and who have higher education, whereas Yishai openly admitted that he would vote for those candidates recommended by his party’s spiritual leader Rabbi Ovadia Yosef, the former Sephardi chief rabbi of Israel.

Until the January 2003 national elections, the chair of the commission had been the religious affairs minister. The 2003 elections changed the balance of power, with the moderate secular party Shinui holding the third largest number of Knesset seats. A coalition government was formed that included Shinui and agreed to its demand that the Religious Affairs Ministry be disbanded.[10] National Religious Party MK Yitzhak Levi was appointed deputy minister in charge of religious affairs in the Prime Minister’s Office[11] with the mandate to oversee the dismantling of the Religious Affairs Ministry and the distribution of its various departments to other ministries.

In early 2003 the leader of the Shinui Party, MK Yosef (Tommy) Lapid, was appointed justice minister and in that capacity became the chairperson of the commission since the position of religious affairs minister had been eliminated. Lapid thus joined a very small group of secular politicians who had chaired the commission,[12] although the first to do so as justice minister. By the time Lapid called the first meeting of the commission under his chairmanship in March 2004, Yitzhak Levi had resigned as deputy minister and Prime Minister Ariel Sharon appointed Absorption Minister Tsipi Livni of the secular Likud party as the second minister on the commission.

In early 2005, Lapid’s Shinui Party left the coalition and he resigned as justice minister. Livni was appointed justice minister in his stead and thus became the first woman to chair the commission. Sharon subsequently appointed Minister without Portfolio Haim Ramon of the secular Labor Party as the second minister on the commission.

While paying lip service to the search for the best qualified candidates, it is clear that the two ministers and the two MKs have been subject to party pressures on political issues that are not related to the choosing of dayanim but certainly affect how they vote in the commission. Rumors of deals offered by religious political parties include, “Vote for my candidate and I’ll support the government on the disengagement from Gaza” or “I’ll vote in favor of the budget.”

 

Religious Politics

It is well known that at least five members of the commission owe allegiance as well as their jobs to religious leaders who do not sit on the commission. Sephardi Chief Rabbi Shlomo Amar, MK Eli Yishai, and Dayan Shlomo ben Shimon of the Rabbinical Court of Appeals are followers of Ovadia Yosef and openly admit that they support his candidates. Chief Ashkenazi Rabbi Yonah Metzger and Dayan Hagai Izirer were the handpicked choices of the “Gedol Hador,”[13] the venerated haredi leader Rabbi Yosef Shalom Elyashiv. Despite the fact that there was public controversy and strong opposition to the election of Metzger on the basis that he was not qualified, Elyashiv’s power and authority prevailed and Metzger was elected chief Ashkenazi rabbi in 2003. Metzger and Izirer receive their voting instructions from Elyashiv.

Since the establishment of the rabbinical courts in the 1950s, both the Ashkenazi and Sephardi religious leaders have used them as a job-placement service for insiders, paying off supporters and political allies in the haredi community by promising to appoint their sons, brothers, and sons-in-law as dayanim. This form of patronage is expected and has become a norm in the haredi community. In the past, nonharedi members of the commission have cooperated by approving these appointments.

Since a dayan’s salary is comparable to that of a civil court judge, the position is much sought-after by haredi rabbis who have limited job opportunities because of their lack of secular education. The qualifications of the individual candidate are not a consideration in this patronage system, and both Yosef and Elyashiv strongly oppose the appointment of candidates who have a university education.

 

Women’s Organizations

Although women’s organizations have been at the forefront of those criticizing the rabbinical courts and the behavior of the dayanim for decades, it is only over the past few years that they have begun to examine the process of selecting dayanim. Having succeeded in convincing the Bar Association to elect a women’s rights activist to the commission, the coalition ICAR (International Coalition for Agunah Rights) became an important source of research, support, and media contact. During the past three years, ICAR has concentrated on reviewing the qualifications of the 150 candidates and recommending the appointment of those who meet the qualifications as provided in the government regulations.[14]

These regulations require that a dayan possess “the ability to speak and write clearly, to work efficiently in a timely, orderly manner, and to be decisive.”[15] The dayan should also have a “judicial disposition” that is expressed in tolerance, patience, openness, the ability to operate under pressure, and communication skills.  In addition, the dayan should be independent, motivated, and educated in general studies or law with a knowledge of languages.[16] Preference is to be given to candidates who “live among the people and are involved in Israeli society such as military or public service.”[17]

The regulations incorporate seven personal characteristics described by Maimonides, the preeminent twelfth-century Jewish scholar: “… Wisdom, humility, fear of God, disdain of wealth, love of truth and the love of his fellow humans, and a good name [reputation].”

Maimonides further stated that we should choose those

who are wise men and understanding, … who are experts in the Torah and versed in many other branches of learning; who possess some knowledge of the general sciences such as medicine, mathematics, [the calculation of] cycles and constellations; and are somewhat acquainted with astrology, the arts of diviners, the superstitious practices of idolaters, and similar matters, so that they be competent to deal with cases requiring such knowledge.[18]

During the process of interviewing the 150 candidates, in addition to exploring each candidate’s background to determine if he met the qualifications described in the regulations, this author asked questions specifically relating to women’s issues and concerns.[19] Before the vote on those to be appointed, the discussion of a particular candidate’s qualifications included his evaluation by the women’s organizations. The women’s coalition assisted the five nonharedi members to create a voting bloc that succeeded in preventing the appointment of the handpicked favorites of the two religious leaders.[20] Over the past three years the commission met several times, but votes were cast only at one meeting and that vote ended in a deadlock with no candidate receiving the majority required for appointment.[21]

Before and during each meeting, ICAR held demonstrations urging members to vote for the best qualified candidates. The women’s activities attracted media attention, and the commission’s work was followed closely with regular reporting on the inability to reach agreement on appointments. The timely publicizing of rumored secret deals resulted in the failure of these deals. One of these involved Minister Ramon, who was reported to have agreed to support the haredi lists in exchange for their support of his candidate.[22]

As a result of pressure from women’s organizations and the concomitant publicity, Ramon informed the haredi members that he would not be voting with them during the commission meeting on 30 May 2005 and the meeting ended without a vote.  Subsequent meetings on 14 June and 23 August were similarly preceded by demonstrations of women’s organizations and concluded without a vote.

 

Conclusion

For the first time in its over fifty years of operation, the Commission to Appoint Religious Court Judges has failed to operate as a tool of Israel’s Orthodox establishment. A unique combination of factors has led to a stalemate in the last three years that has prevented the haredi faction from controlling the appointments. Women’s organizations and the media have had a major impact. The fact that two women are serving on the formerly all-male commission has succeeded in bringing women’s voices to the negotiations.[23] The increased public interest in the commission’s functioning combined with the new demands for transparency and proper procedures has successfully ended the well-established “secret deals” that prevailed in the past. In the process, however, the best qualified candidates have not been appointed and twelve positions remain unfilled.

As a result of the recent national election, there have been personnel changes in the four political representatives (two MKs and two ministers). Haim Ramon of the Kadima Party has been appointed justice minister. Shas MK Yitzhak Cohen has been appointed religious affairs minister in the Prime Minister’s Office. In July 2006 the Knesset appointed Shas MK Yitzhak Vaknin and National Union MK Nissan Slomiansky to the Commission. This gives the ultra-Orthodox a majority. The two Bar Association representatives completed their terms in December 2005 and in the elections held on 6 December 2005, the author was reelected to a second three-year term.[24] The other bar representative was replaced by a young lawyer who seems supportive of those who seek to appoint the most qualified candidates.

Furthermore, Chief Ashkenazi Rabbi Yona Metzger has had a stormy tenure and may be forced to resign, possibly even by public opinion. If so, he will probably be replaced a new Ashkenazi chief rabbi. With these changes on the horizon, it is difficult to predict whether the commission will continue to operate independently or will return to being controlled by the haredi religious leaders.

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Notes

 

 

[1] See Articles 46 and 47 of the Palestine Order in Council, 1922.

[2] Section 11 of the Law and Administration Ordinance, 1948.

[3] Dayanim Law-1955.

[4] Shoshana Glass, a family law practitioner from Tel Aviv, was elected in December 1996 to a three-year term.

[5] ICAR (International Coalition for Agunah Rights) was founded in 1993 to find solutions to the problem of Jewish women who are unable to remarry because their husbands refuse to consent to a religious divorce.

[6] See “Woman to Be on Panel to Pick Religious Court Judges,” Haaretz, 13 December 2002; “Agunot Get Their Voice on Dayanim Appointment Board,” Haaretz, 20 December 2002; “Agunah Rights Fighter Gets Major Position,” Jewish Chronicle, 23 January 2003.

[7] “From Naamat,” Yom Hashishi, 20 December 2002. [in Hebrew]

[8] The National Religious Party, in existence since Israel’s establishment, is considered the political party of the modern Orthodox community as reflected by the head covering of its male members (knitted kippot). Unlike the haredi party members, NRP men serve in the Israel Defense Forces. Male and female members can have university educations. The NRP has been the party supporting the settlements in the West Bank and strongly opposed the disengagement from Gaza.

[9] The Shas Party was formed in the 1980s and is a Sephardi haredi party with Rabbi Ovadia Yosef as its spiritual leader. Eli Yishai is its political leader, Shas holds the largest number of seats in the seventeenth Knesset of any religious political party (twelve).

[10] The Coalition Agreement that was approved by the Knesset in early 2003 included an obligation by Prime Minister Sharon and his Likud Party to dismantle the Religious Affairs Ministry within a short time. No religious affairs minister was appointed in the new government and the various departments of the ministry were distributed to other ministries. The rabbinical courts, which had been administered by the Religious Affairs Ministry before the election, were transferred to the Justice Ministry.

[11] The Coalition Agreement between the National Religious Party and Likud in 2003 included a provision that Deputy Minister Yitzhak Levi would serve in this position until the Religious Affairs Ministry was dismantled or for twelve months from the date of the agreement, whichever came first. There were some disagreements between the two political parties as to the exact length of time that Levi would serve as deputy minister, with Levi claiming the prime minister had promised him he would serve for the entire term of the government.

[12] Hayim Tzadok, Uzi Baram, Yossi Beilin, and  Shimon Shetreet of the Labor Party were given the opportunity to serve as religious affairs minister for brief periods.

[13] Leader of the Generation. Rabbi Elyashiv, in his mid-nineties, is considered the most knowledgeable and revered scholar in the Ashkenazi haredi community and continues to use his power to decide who will be the chief rabbi. In the past he has succeeded in handpicking the candidates to be appointed to the rabbinical courts, including Dayan Hagai Izirer who was appointed to the Rabbinical Court of Appeals in 2002 despite strong opposition from women’s organizations and leading rabbis.

[14] See Regulations for the Appointment of Dayanim, paragraphs 16 and 17, 1997 [in Hebrew]. See also Maimonides, Law of the Sanhedrin, Chapter 1.

[15] Regulations for the Appointment of Dayanim (Procedure of Commission to (Appoint Dayanim), 1997, paragraph 16. [in Hebrew]

[16] The long list of traits to be possessed by dayanim is detailed in paragraph 16 of the above regulations, subsections A 1-11. [in Hebrew]

[17] Regulations, Paragraph 16, section B. [in Hebrew]

[18] Maimonides, Laws of Sanhedrin, Chapter 1, paragraph 1. It is interesting to note that Maimonides stressed the need for general education in addition to expertise in Torah. The ideal dayan would be required to have knowledge of other religious practices including idolatry so that he could deal with all cases coming before the rabbinical court.

[19] The questions included: “How would you rule in a case of a battered woman whose husband refused to give her a religious divorce [get]? What would you do in a situation where a husband agreed to give his wife a get on condition that she waives all of her rights to property and child support?” Most of the candidates were surprised by the questions and unable to give a considered answer. Clearly these questions had not been asked of candidates in the past, as was verified by a number of leading rabbis who informed this author that the questions were the subject of much discussion in yeshiva circles.

[20] The five include the two ministers, Livni and Ramon, MK Slomiansky, Ben Zion Langental of the Bar Association, and this author.

[21] Meeting of commission on 22 November 2004. See Haaretz, 23 November 2004 [in Hebrew]; Maariv, 23 November 2004 [in Hebrew].

[22] “With the Support of Ramon: 6 Haredi Hard-Line Dayanim to Be Appointed to the Religious Courts,” Haaretz, 30 May 2005. [in Hebrew]

[23] Tsipi Livni, as the first female justice minister, was also the first woman to chair the Commission to Appoint Religious Court Judges. Since her appointment to the commission in 2004, the representation of women was raised from 10 to 20 percent, a change that has strongly affected the commission’s work and deliberations.

[24] This also marked the first time a woman served a second term on the commission. The coalition of women’s organizations wrote letters supporting this candidacy and lobbied the members of the Central Committee of the Bar Association.

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SHARON SHENHAV, an international women’s rights lawyer, has been recognized as an expert on marriage and divorce in Jewish law. In 1997 she established and became director of the International Jewish Women’s Rights Project, a joint project of the International Council of Jewish Women and the Jerusalem Center for Public Affairs that is concerned with fairness for women in the religious divorce process. She has served as a consultant to lawyers, judges, rabbis, and legislators worldwide, and was a member of the Israeli delegation to the United Nations Commission on Status of Women.