JUDAICA - Wisdom In Torah

der was issued to enforce the compliance of the party against
whom the decision was given. The ostracizing and excommunication
components of the order meant that the order
“served as an important sanction for the Jewish court, which
while enjoying judicial autonomy all over the Jewish dispersion,
nonetheless lacked the requisite coercive powers that
are at the disposal of a sovereign state” (per Justice M. Elon,
Sobol, ibid., p. 803).
Despite the fact that the issue of an excommunication order
by a rabbinical court had always been an accepted measure
under Jewish law for ensuring compliance with a rabbinical
decision, the Israeli High Court was unwilling to recognize
this practice. When the Israeli rabbinical court issued a writ
of refusal, and a person regarded himself as aggrieved by the
order, he applied to the High Court of Justice and the latter
ruled by majority opinion that the rabbinical court was not
empowered to issue such orders. The High Court ruled that
the rabbinical court lacked the power to issue writs of refusal,
because matters of that nature exceeded the powers of the rabbinical
court, as a body established by the State and operating
under its laws (the view of Justices Y. Zamir and Justice
D. Dorner in the aforementioned Katz case).
On the other hand, in his minority opinion Justice Z.
Tal demurred, noting that the ketav seruv had been issued by
rabbinical courts throughout Jewish history and there was
no reason for not maintaining the institution in the State of
Israel. Concededly, recourse to the ketav seruv should be cautious
and measured, but the litigants had been directed to the
rabbinical court to adjudicate their case, and the High Court
of Justice was therefore unable to prevent the rabbinical court
from making the declaration and issuing the excommunication
order.
HIGH COURT SUPERVISION OVER THE RABBINICAL COURTS.
The Rabbinical Courts are part of the Israeli Judiciary. Section
1 (b)(1) of the Basic Law: Judiciary provides stipulates: “Judicial
power is vested also in the following: …a religious court
(bet din). Section 15 (d)(4) of the same Basic Law empowers
the Supreme Court, sitting as the High Court of Justice, “to
order religious courts to hear a particular matter within their
jurisdiction or to refrain from hearing or from continuing to
hear a particular matter not within their jurisdiction, provided
that the court shall not entertain an application under
this paragraph if the applicant did not raise the question of
jurisdiction at the earliest opportunity.”
In fact, the Supreme Court exercised its supervisory
powers over the rabbinical courts system when the latter exceeded
the limits of their jurisdiction (ultra vires). To cite a
few examples: Rabbinical adjudication where one of the parties
is not Jewish, or not an Israeli resident (see: Sabag, ibid.),
or adjudication by an incomplete panel (HC 7/83 Biares v. Haifa
Regional Rabbinical Court, 38 (1) PD 673, per Justice M. Bejsky;
Katz, p. 626). Moreover, if the rabbinical court operates
in defiance of the rules of natural justice, and does not give
each party the opportunity of submitting evidence and plead-
bet din and judges
ing, or acts with bias, its ruling under such circumstances will
be annulled by the High Court of Justice (see, e.g., HC 10/59
Levi v. Tel Aviv-Jaffa Regional Rabbinical Court, 13 PD 1182,
per Justices M. Silberg and Y. Zussman; HC 323/81 Vilozni v.
High Rabbinical Court of Appeal, 36 (2) PD 733, 739, per Justice
M. Elon).
In addition to the High Court of Justice, every judicial
forum has jurisdiction to decide whether or not it has jurisdiction
over a particular matter. Thus, both the rabbinical
courts and the family courts rule on the question of their jurisdiction
when the question is raised before them. In a previous
decision Supreme Court held that “where one judicial
body has adjudicated and ruled in good faith on a particular
matter, no other judicial body has the power to entertain another
claim on the same matter – regardless of the formal jurisdiction”
(CA 359/75 Yahalomi v. Yahalomi, 31(2) PD 25, 27,
per Justice Chaim Cohn). The philosophical underpinning of
this rule is “the principle of mutual respect that the civil courts
and the religious courts must accord each other. This mutual
respect is not a question of good manners and proper behavior
alone; it is vital for the existence of a properly functioning
legal system, especially in the sensitive legal area of matters
of personal status, in which two judicial systems have parallel
jurisdiction within the same legal system” (ST 1/81 Nagar
v. Nagar, 38(1) PD 365, 397–398, per Justice M. Elon). When
one judicial forum rules on a jurisdictional question, it is not
proper for another forum to consider the matter further, and
it must abide by the decision of the first forum. Recently, the
Supreme Court ruled in a majority opinion that only when
there is a special reason (e.g., when there was no preliminary
hearing regarding the question of jurisdiction or where the
ruling of the first forum on the jurisdiction is illegal or deviates
from the rules of natural justice), the other judicial forum
has no jurisdiction to rule again on the question of jurisdiction
(see HC 8497/00 Feig-Felman v. Felman, 57(2) PD 118, per
Justice D. Beinisch, and concurring opinion of Justice T. Strassberg
Cohen). The dissenting opinion was that even in these
exceptional cases there was no place for conflicting rulings of
the rabbinical and the family courts and that the proper procedure
was to petition to the High Court of Justice it order for
it to render a decision in the matter (see opinion of Justice D.
Dorner, ibid., pp. 142–143).
When the question is whether a particular matter falls
within the jurisdiction of the rabbinical court or of the civil
court, Article 55 of the King’s Order in Council, 1922 sets forth
a mechanism for resolving the matter, i.e., the establishment
of a special tribunal composed of two Supreme Court justices
and one judge from the highest level of the Rabbinical Court
of Appeals (see entry Special Tribunal (Bet Din Meyuḥad).
RABBINICAL COURTS – COMPOSITION. The rabbinical
courts comprise two levels: A regional court is located in each
of the major cities in Israel. The regional court sits in panels of
three judges, known as dayyanim (Section 8(e) of the Dayyanim
Law). In matters that do not involve a dispute, and with
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