Reality is No Obstacle

letter-447577_1280

The recent Emmanuel litigation revealed a major flaw in Israel’s judicial system. In most suits against governmental authorities, the Supreme Court, sitting as the High Court of Justice (BaGaTZ), is a court of original jurisdiction. Yet the petitions to BaGaTZ often turn on complex factual issues, which the Supreme Court is unequipped to weigh or evaluate. The Supreme Court is not a trial court, and has no means at its disposal to examine witnesses or properly evaluate evidence.

In the Emmanuel case, for instance, the result hinged in large part on the intention of the defendants in setting up a special chassidic track within the Bais Yaakov. But the Supreme Court lacked the tools to evaluate that issue. Petitioners alleged that obstacles had been placed in front of Sephardi applicants to the chassidic track. That claim was contradicted by the report of Advocate Mordechai Bass, who was appointed by the Education Ministry to examine the school. Yet in the Court’s opinion the petitioners’ allegation was accepted as if it were a matter of fact.

The Supreme Court’s vast original jurisdiction not only gives it inordinate power to set the national agenda, compared to other supreme courts around the world, it also leaves many of its decisions curiously detached from reality.

You may also like...

7 Responses

  1. Shunamit says:

    Please. If the school and its populace are dependent on government money, they are and ought to be held to a minmum of wht the law defines as the civil rights of others. If you take the King’s shilling, you must do his bidding in things both great and small.

    Groups who demand social and legal autonomy ought, at the very least, begin basing their lifestyles on fiscal autonomy.

  2. mycroft says:

    ““Does anyone over there really care what the constitution says anyway?” he asked. “Just let the judge be a judge and do whatever he wants!””

    Which is exactly how the US Supreme Court acts-to take two obvious cases the Dred Scott Decision and the Gore v Bush election decision-the Suporeme Court ruled the way the majority’s political will said it should. Anyone who will say that either was based on an objective view of the law is fooling themselves.

    The US Supreme Court acts as a court of original jurisdiction in cases between the states-most obvious impact is boundary disputes and water disputes-to give an Eastern US example the amount of water that NYC can take from the Delaware River Basin is based on the US Supreme Court-they’ve set up a master to ensure that x amount of water flows near Trenton-required to keep Delaware River pure from salt watersuits against the government-Israel uses its Supreme Court-big deal-a country the size of NJ that every day has as many cases on its docket as the USSC writes decisions in a year for all of the US is a different kind of court. Have supreme courts grabbed power worldwide-yes but the US is the most obvious example where in its first decade John Jay resigned to go to NY politics when the SC had the power that its founders expected before Masrshalls power grab.

  3. Michael says:

    koillel nick, so I’m sure you are very against the schools that force all the kids to pronounce in Ben-Yehudah’s mivta… or is it only the Ashkenazic mesorah you don’t like? They talk modern Hebrew in the street, and the teachers didn’t want the elementary-school girls to get confused. Every school has its kids all talk one way or another rather than a mish-mash.

    Dr. Bill, the average Israeli is far more familiar with the secular courts than how chareidi rabbis make a decision. What they say about the rabbis is talking from ignorance … what they say about the BaGaTz is based on full information of how it routinely overrules the Knesset and makes up new laws to suit it.

  4. dr. bill says:

    Chaim Fisher, If you asked the average israeli to tell you how chareidi rabbis decide law, “Forget law and precedent. Do whatever you want.” would be kind compared to what you might hear.

    Like many religious jews (and those who take any religion seriously) who would insist on respect for religious authority regardless of one’s feelings about its proper execution, a state must demand respect for its legal institutions regardless of how one might judge their performance.

    The issue of judicial excess pales in comparison to the issue of respect for the state and its institutions. The case in question was as much about resepct for the institutions of the state as about a particular issue or set of facts.

  5. Chaim Fisher says:

    The phrase “Israeli legal system” is an oxymoron. As an example of how wrongly they think over here, an Israeli recently asked me incredulously why the US courts don’t just arbitrarily deny the Moslems the right to build their center down the street from ground zero. For no reason. “Does anyone over there really care what the constitution says anyway?” he asked. “Just let the judge be a judge and do whatever he wants!”

    That’s really how Israelis think the courts work. Forget law and precedent. Do whatever you want.

    Rosenblum is dead right here. Regardless of whether the numbers were this way or that way, the court went way beyond it’s powers. And especially in forcing the parents to send their children to a school they did not want. Absurd and amateurish law.

  6. dr. bill says:

    I find it ironic that this charge is also leveled against poskim who get involved both in decisions better left to local authorities or in cases where they rely on others without examining the facts personally.

  7. koillel nick says:

    Just because Bass made a report, a court need not accept it as fact. I read the court decision, and it is more than lucid. I’d encourage all to read it thoroughly. Forcing Sephardic girls to use an Ashkenazic mivta does nothing to promote the idea that the school isn’t racist. Neither does having 25% Sephardic school body if another 25 % were turned down due to ethnicity.
    The Frum press is not a trial court, and has no means at its disposal to examine witnesses or properly evaluate evidence. This inherent defense of anyone or anything that a Frum person or organization has done, has become a sickness and will destroy our society. We must learn to accept mussar from outsiders.