Case Number
HCJ 8213/14
Date Decided
8-15-2017
Decision Type
Original
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
he present petition concerns the procedure for the appointment of the Director of the Rabbinical Courts, focusing upon the possibility of appointing a woman to the position, whether by interpretation of sec. 13 of the Dayanim Law as allowing women to present candidacy for the position, or by amending the section, or by declaring the said provision void.
The High Court of Justice (per Deputy President (Emeritus) E. Rubinstein, Justices M. Mazuz and U. Shoham concurring) granted the petition for the following reasons:
The High Court first explained that it viewed the position of Director of the Rabbinical Courts as essentially an administrative-managerial position. The Attorney General was also of the opinion that what was concerned was a “clearly administrative” position, and not a religious position. Therefore, in view of the fundamental principles of Israeli law, first among them the principle of equality, as well as the provisions of sec. 6C the Women’s Equal Rights Law and sec. 15A(a) of the State Service Law, the High Court was of the opinion that no law prevented the appointment of a woman as Director of the Rabbinical Courts, if she is found suitable to the position (in accordance with conditions that will be set out below). This conclusion is consistent with the provisions of various statutes, among them the Basic Laws concerning human rights, the Women’s Equal Rights Law, and the Employment (Equal Opportunities) Law, as well as the need for proper representation of women in the public sector in general, and in the administration of the Rabbinical Courts in particular.
The High Court added that in considering candidates for the position of Director of the Rabbinical Courts, the Minister for Religious Services acts as a public trustee, and he is he is subject to the entire scope of rules of administrative discretion. He must reach his decision reasonably, after weighing all of the relevant material considerations on the question of the candidate's personal and professional suitability to the position, while striking a proper balance among them. The fact that a candidate is a woman, in and of itself, is a foreign, irrelevant consideration in the matter of her suitability to the position, and the Minister may not take it into consideration as a disqualifying criterion of candidates for the appointment.
The High Court agreed with the Attorney General that sec. 13 of the Law should be construed as permitting the appointment of a woman to the position, and the High Court did not, therefore, address the question of amending the provision.
Section 13 of the Dayanim Law establishes that the Director of the Rabbinical Courts can be either a rabbinical court dayan (judge) or a person qualified to be elected to serve as a Municipal Rabbi, and whose appointment has been approved by the Dayanim Appointment Committee. The qualifications for election to the position of Municipal Rabbi are set out in regs. 4 and 5 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007 (hereinafter: the Regulations or the Religious Services Regulations).
As a matter of purposive interpretation of sec. 13 of the Dayanim Law, whose purpose is to find the preferred candidate, the High Court of Justice decided upon an additional qualification track (in addition to the qualification tracks for a Municipal Rabbi under regs. 4 and 5 of the Religious Services Regulations) for the purpose of qualification under sec. 13 of the Dayanim Law, which would apply equally to men and women. Under the new qualification track, a person would be deemed qualified to serve as a Municipal Rabbi for the purpose of sec. 13 of the Dayanim Law – and in the matter at hand, for the purpose of the appointment of a Director of the Rabbinical Courts – if he or she meets all of the following conditions: 1. He is a resident of Israel; 2. He has a license as a rabbinical pleader, or is a lawyer with a master’s degree in Jewish law or Talmud; preference to be given to a lawyer who is also a rabbinical pleader; 3. He has at least 7 years of experience appearing before the Rabbinical Courts; 4. In terms of his character and lifestyle, he is worthy to serve in the position of Director of the Rabbinical Courts.
This qualification track was established in the spirit of the draft regulations that the Minister for Religious Services prepared at the suggestion of the High Court of Justice, with certain modifications that the Court believed were required due to the nature and substance of the position of Director of the Rabbinical Courts, and due to the need to be certain that a woman's candidacy to the position would be considered by those concerned with an open heart and mind.
Thus, in regard to the educational requirements, the High Court of Justice was of the opinion that it would be inappropriate to prevent a licensed rabbinical pleader who is not a lawyer from submitting candidacy for the position. However, a rabbinical pleader who is also a lawyer would have an advantage. Alongside this, the Court agreed that a lawyer who wishes to submit candidacy for the position must possess "something more", in the form of relevant religious education. To this end, it was explicitly stated that a master’s degree in Jewish law or Talmud would be deemed a sufficient qualification, however it should be clear that this is not a closed list and the Respondents may consider candidates with other degrees that in their view meet the required familiarity with religious law. It was further held that a candidate should have at least 7 years of experience appearing before the Rabbinical Courts, rather than just five years as proposed in the draft regulations.
Additionally, the Court found no reason to set a threshold condition regarding passing examinations – both theoretical and practical – in order to qualify to serve as Director of the Rabbinical Courts. Such examinations do not exist in corresponding positions in the public service. The Director of the Rabbinical Courts does not make decisions on the basis of religious law and is not required to have extraordinary knowledge of Halakha that needs to be put to a test. It is presumed that candidates who meet the education condition, and who have significant professional experience of more than a few years in appearing before the Rabbinical Courts, will bring the necessary expertise to the position of Director of the Rabbinical Courts, even without examinations on Halakha, which by their nature place women at a disadvantage.
The Court also found it appropriate to instruct that the procedure of appointing a Director of the Rabbinical Courts be accompanied by the Attorney General, who will be able to confirm a person’s administrative qualification, if necessary.
In closing, it was noted that without derogating from the ruling as it stands, it would be appropriate for the sake of good order and transparency that the Minister of Religious Services consider grounding the ruling in regulations. JUSTICES
Keywords
Jewish Law -- Women, Jewish Law -- Rabbinical Courts
