The rabbis confer

December 27, 2018 by J-Wire Newsdesk
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The Rabbinical Council of NSW has expressed its fears that the guilty verdict upheld in an appeal last week finding the Sydney Beth Din in contempt of court may impact on religious freedom in Australia.

Rabbis Moshe Gutnick, Michael Chriqi,  Yehoram Ulman and Eli Schlanger were found guilty of contempt court following a threat of religious sanctions against an observant member of the Sydney community who refused to answers a summons to the rabbinical court for a hearing involving a commercial dispute.

Rabbi Chaim Ingram released this statement from the RCNSW:

“Recently a judgement of the NSW Court of Appeal was handed down by a majority that the Sydney Beth Din was found in contempt of court.

The Rabbinical Council of NSW is of the view that the judgement constitutes a serious violation of religious freedom, a principle that Australia holds dear.

In this case, the Sydney Beth Din was simply following Jewish law and practice (Halacha) in precisely the same manner as Jewish religious courts (Batei Din) throughout the Western world.

We fear that this decision of the NSW Court of Appeal may lead to further erosion of religious freedoms in Australia.”

Rabbi James Kennard criticised the Rabbinical Council of Australia and New Zealand telling The Australian Jewish News: “I cannot remain silent when the rabbinate of Australia is prevented from fulfilling its primary task – to provide religious leadership to our community – by the refusal of its representatives to act with the highest standards of integrity, which should be the natural hallmark of any who bear the title ‘rabbi’.”

But a member of the Rabbinical Council of Australia and New Zealand Rabbi Dr Ben Elton told J-Wire: “The members of the executive of the Council of which Rabbi Kennard is not a member are working together to discussing the affair of the contempt of court. We will announce our findings when we are ready.”

 

 

Comments

11 Responses to “The rabbis confer”
  1. yankel koncepolski says:

    In this case I would have to disagree with Mottel Gutnick’s logic, that asserts that when a Beis Din issues a sanction against an orthodox Jew who refuses to submit to Din Torah, it falls into the category of “forcing a religious observance upon an unwilling participant”

    The plaintiff is, according to my understanding, a practising religious Jew, and as such committed himself to fulfil all the Mitzvot. So he is certainly a willing particpant in the laws of the Torah. One of the 248 mitzvot is the mitzva of submitting oneself to a Din Torah when a dispute arises with a fellow Jew (Exodus 21:1 and Rashi on that verse)

    If someone feels that the members of a Beis Din are behaving in a biased manner (Judge Sakkar stated words to the effect that Rabbi Ulman had met with the other side in a Tel Aviv Hotel discussing the dispute without the plaintiff being present).

    So in this case where the Plaintiff felt that the Bet Din was acting in an improper manner, he has the opportunity to request an alternative Bet Din procedure called Zablo. This option is specified in the Code of Jewish Law for exactly this type of case, where one feels he will not get a fair hearing. In this option, each disputant nominates a Borer ( Jewish judge ie Dayan ) and the 2 chosen Judges jointly agree upon the 3rd judge (presiding judge).

    According to the Code of Jeiwsh Law ( Choshen Mishpat 13:1), a disputant cannot refuse to accept this alternative. This is a unique and very protective Jewish law option, which does not exist in the Secular courts. How lucky we are to have such laws !

    It is a great pity that this option was not taken by the person, who took the Sydney Bet Din to court.

    He could and should have also summonsed the Sydney Beth Din to Zablo for apprehended bias.

    • Havi Rubinstein says:

      Yankel, you present Judaism as if it’s a professional institution e.g. If one is a “practicing doctor” they are bound by the relevant drug laws and medical codes of conduct etc. And if a doctor contravenes one of those laws or behaves inappropriately, they may be reprimanded or stripped of their title “practicing doctor”. By this token, your argument is valid and the sanctions imposed by the Beth Din were merely an expected action that any self-respecting institution would do in that situation.
      HOWEVER: the key difference is that Judaism (or any religion) does not operate like professional institutions in any other way, especially in terms of credentialing, governance and accountability. Yet it conveniently claims the right to function like professional institutions when it comes to enforcing their systems of law and conduct.

      Furthermore, there is no agreed/formal definition of what is a ‘practicing religious Jew’. If one uses the criteria as you have – that they ‘fulfill all the Mizvot’ – this is highly subjective and extensive; it is not something that can really be mandated in a consistent manner. Therefore, one cannot be selectively apprehended based on what one group of people deem inappropriate, and certainly not in a manner that causes personal defamation.

      • Yankel Koncepolski says:

        Dear Havi

        I suggest you read my Op-Ed at the following link

        http://www.jwire.com.au/moriah-ethos-and-the-resilience-of-traditional-judaism/#more-92593

        There is no person or institution called Judaism

        There is G-d and his Torah

        Torah includes Tanach , Talmud , Tosefta , Midrash ,
        Zohar , Books of the Geonim , Tur, Rosh, Rif,
        Rashi , Tosefot , Maimonides , Nachmanides Rashba ,
        Ritva , Shulchan Aruch

        Judaism is a loose terminology that can mean anything

        I did convey any thoughts or rules of my own

        What I conveyed was the actual words directly
        from the Code Of Jewish Law in the section
        called Choshen Mishpat subsection Laws of Daysnim
        Dayanim

        Your problem is not with me , but with G-d , because
        all the laws were conveyed by G-d to Moshe
        at Sinai , as explained in the link above

  2. Mottel Gutnick says:

    The comment by Zalman [no-surname (in disregard of J-Wire’s posting rules)] seems to be a response to my earlier comment, so, against my better judgment, I will respond to it – not merely because he is wrong, but because there are some like-minded others who will not subject that argument to the analysis that follows and will therefore not understand why it is a valid argument in some contexts but not in this one.

    Zalman’s point is the implied-social-contract argument, i.e. people who benefit from being part of a group, a community or a civilisation must accept the group rules. But Zalman fails to see that there are two implied social contracts here. There is the one between the members of Mr Barukh’s community and there is the one between all Australians, which binds the rabbis of the SBD, you, me, Mr Barukh and his religious community. And its rules are the rule of Australian law. The latter contract takes precedence over the former, firstly, because it preceded it (that is to say, it applied to all Australians long before the Beth Din was formed and long before its rabbis and Mr Barukh and his community were born), and secondly, because the laws of the state are sovereign and override all internal rules of sub-groups within the state, which must be subject to the laws of the state.

    Thus, when Zalman argues: obey the rules of the group or leave it, the same argument must be applied to the Sydney Beth Din. If it wishes to live in and be part of and operate within Australian society, it must accept the laws of Australia or alternatively, it must either leave or disband. Furthermore, I would argue that this obligation rests with even more force on the Beth Din, in particular, because the Beth Din does not operate within a purely halachic bubble, completely independent of civil law. It regularly conducts its dinei Torah as commercial arbitrations within the meaning of and under the umbrella of the NSW Arbitration Act or the (Cwth) International Arbitration Act. This is not a halachic imperative, but it is a long-standing policy of the SBD because it makes a beth din arbitration award enforceable through the civil courts, and it is thus the most convenient way for the BD to ensure that its rulings will be followed. So if the Beth Din wishes to avail itself in this way of the benefits of Australian law, it, especially, must be bound by those same laws as part of the implied social contract that Zalman reminds us of.

    The SBD rabbis have long accepted that, in principle, they may not act in contempt of court by interfering with the administration of (civil) justice, which would be contrary to the halachic rule of dina de-malkhuta dina (the law of the land is the law.) Rabbis Moshe Gutnick and Yoram Ulman both gave evidence that if a din-Torah litigant resorted to a civil court without the BD’s permission, contrary to halacha, the BD does not apply religious sanctions to that litigant. (Appeal judgment at [129-130].) When asked why this was so, Moshe Gutnick replied, “Because we believe in the rule of Australian law and we would never do anything outside law.” It is a long-standing policy of the SBD not to apply religious sanctions in such an event, because its rabbis are well aware, from previous cases within the common-law world, which were cited in the primary and appeal judgments, that this constitutes a contempt of court. The rabbis’ error here lay in not realising, or not accepting, that the scope of such contempt also includes what they did in this case, as the primary judge ruled and as the appeal judgment upheld.

    Religious Jews should also consider this: Australia’s laws also carry the imprimatur of Torah, which teaches that all the nations on Earth are subject to the Noahide code consisting of seven mitzvot, one of which is to establish a system of justice. Australia has done this “b’hiddur mitzvah” (par excellence) and its justice system should not be undermined by undeserved and misguided criticism from religious Jewish Australians for diligently and correctly doing its job. To do so not only borders on a further contempt of court but also undermines Australia’s righteous fulfillment of this mitzvah.

    Rabbi Jeremy Lawrence, an erstwhile rabbi of Sydney’s Great Synagogue, wrote in an essay entitled “Jewish law in a modern Australian context,” published in 2011 as chapter 10 of the compendium “Law and Religion in Public Life: The contemporary debate” (ed: Nadirsyah Hosen and Richard Mohr) as follows: “The principle of dina de-malchuta dina precludes the Sydney Beth Din from making even a declaratory ruling in Halacha contrary to the South Australian Supreme Court.”

    As for Zalman’s contention that no one was imposing any religious observance on anyone in this case, this is clearly not so, as can be seen from the BD’s emails to Mr Barukh. (They are quoted in the primary judgment at [49-54], [60] and [66], and analysed in the appeal judgment at [154-186].) This was admitted by the BD rabbis (primary judgment at [251]). There were only two points of contention in relation to this: The first was whether the duress they applied to Mr Barukh met the definition of “improper” pressure in the legal principles of criminal contempt established in common law. That was the BD’s second appeal issue, which was rejected by the Court of Appeal. The second point of contention was the rabbis’ hair-splitting argument that the court should differentiate between the two purposes of that pressure – one being to procure Mr Barukh’s attendance upon the BD in answer to the BD’s summons and the other being the BD’s stated intention to require Mr Barukh to submit to a (civilly) binding arbitration agreement. That would necessarily have entailed Mr Barukh abandoning his recourse to the secular courts as noted by the primary judge, Sackar J, at [252]. The BD argued that the pressure it applied to Mr Barukh was solely for the first purpose. Sackar J called this distinction sophistry at [252] and, at [254], a distinction without a difference – an opinion undisturbed by the Court of Appeal. It is clear from that argument that at least in relation to the first purpose, the BD does not deny having attempted to impose a religious observance upon Mr Barukh.

    For those (like Zalman?) who do not have the time to read the actual judgments, the ECAJ’s summary of the case will provide, at least in overview, a proper understanding of it. See: http://www.ecaj.org.au/2018/media-release-rabbis-found-to-have-committed-criminal-contempt/

  3. Rabbi Pinchos Woolstone says:

    A number of years ago I attended an informal meeting in New York which brought together judges, lawyers, law professors, and rabbis, (some of the rabbis were themselves lawyers one was a law professor), mental health professionals and orthodox lay leaders; the purpose of the gathering was to discuss the interface between the State and Federal legal systems and Halacha.
    Maybe if such gatherings both formal and informal were to take place in Australia they could assist in ameliorating against the conflict, angst and distrust which has been engendered by recent events.

  4. Avigael Cassel says:

    Excellent points by Mottei and Havi ! I would add further that Beth Din requirements are directly opposed to all Australian legal rights, including coercion statutes under criminal law along with a massive breach in basic human rights. It can be successfully argued also that their version of halacha is in breach of Torah law also. It well past time this is permanently shut down.

  5. Mottel Gutnick says:

    Chaim Ingram says that religious freedom is a principle that Australia holds dear. Very true, Rabbi. It is in our national constitution. But Australians hold dear the whole of what the constitution protects in the name of religious freedom, not just the part that Rabbi Ingram likes, while rejecting the part that he doesn’t like. This is what it says:

    The Commonwealth shall not make any law for [1] establishing any religion, or for [2] imposing any religious observance, or for [3] prohibiting the free exercise of any religion, and [4] no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

    (Numbering added by me, to emphasise the breakdown of this freedom into its four limbs.)

    Rabbi Ingram clearly likes freedom [3], but just as clearly he very much wants the Beth Din to be able to do the very thing that freedom [2] prevents the Commonwealth from doing – imposing a religious observance upon someone.

    Rabbi Ingram also says that the judgment of the NSW Court of Appeal is a serious violation of religious freedom. In truth, this judgment does not prevent the Beth Din from serving the religious needs of willing participants; it only prevents it from forcing a religious observance upon an unwilling participant. And it does not even preclude that from occurring in all circumstances; it only precludes it from occurring in circumstances where that would violate a different right, which common law confers on Jews in common with all Australians – the right to free and unhindered access to the civil courts. In any case where the unwilling participant does not intend to use that right, the Beth Din is free to compel compliance with its orders by threatening (as it did in this case) sanctions that have the potential to damage a person’s livelihood, reputation, social status and the practice of his religion.

    And I now ask, should we tolerate a beth din being allowed to do something that even the Australian Parliament (a body of elected representatives that we can vote out of office at the next election) is forbidden to do by limb [2] of the religious freedom section of our Constitution, which Australians hold just as dear as the rest of it? Before answering that question, replace the words “beth din” with “sharia court” and then decide.

    • Zalman says:

      You’ve got it all twisted mate. No one is imposing any religious observance on anyone. It’s exactly the opposite. Either he is in or he not. No one is forcing him to stay in the community. But if he wants to remain a member of the community, he must adhere to the religious communities rules – aka Halacha. If he decides that he does not want to follow the rules, his contempt will be noted and made aware to all community leaders and members so that they know that he has willingly decided to leave. End of story. He has free choice. The community should not have to change their standards because one guy doesn’t want to observe them. He can find another community and was more than welcome to file suit in civil court – no one was stopping in. And furthermore, the leaders of the community should not be disgraced for following the religious laws that they are put in charge of protecting for their community. This is very much an attack on religious freedoms. To think otherwise is mere ignorance and anti-religious freedoms.

      • Havi Rubinstein says:

        “And furthermore, the leaders of the community should not be disgraced for following the religious laws that they are put in charge of protecting for their community.”

        The apparent logic of this argument would no doubt resonate comfortably for many. Whilst I acknowledge this is coming from a good place, I think it is actually very dangerous thinking. Open any page of history and you may find the same logic can be used to defend just about anything.

        The key is to operate with good governance, which is a safeguard (in part) for the universally accepted notion that humans are fallible. Yes, even those in positions of religious leadership. Governance ensures that the ‘custodians’ of the system (laws) are doing their job in a way that is ethical and serves the interests of community members, NOT merely to preserve the interest of the system itself.

        Secular law courts uphold virtuous governance standards, and, as per the ECAJ statement, the Beth Din is now called upon to take a leaf out of their books – if there is sufficient humility and openness to do so.

  6. Havi Rubinstein says:

    To present the NSW court ruling as religious subversion could be considered a deflective response. ‘Religious freedom’ is not a license for intimidation and coersion to enforce a traditional legal system. Here, ‘religious freedom’ is being (mis)used as an immunity card to evade proper governance, criticism, and accountability. Australian citizens expect these standards in every other aspect of life, and no individual or institution should be exempt from this, and certainly not under the guise of ‘religious tolerance’. Furthermore, the inference that there are wider implications for the Jewish community to freely practice their religion is misleading. Non-orthodox Jews (the majority in Australia and around the world) are unaffected by the Beth Din’s “curtailed” powers, and should not be drawn in by this fear-mongering statement.

    • Gary Inberg says:

      Isn’t the lack of accountability and transparency to the community it serves the crux of the matter!
      Surely the Beth Din is a NFP accountable to some communal group? Maybe JWire should do some due diligence and report to the community on its findings?

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