Enforceabiliy of Beis Din's Judgements
Yechiel (Gene C.) Colman
POLICY IMPLICATIONS FOR BEIS DIN
The title of todays proceedings is "Justice & Jewish Law". As yidden, it is our responsibility to pursue solutions within the halacha. If there are deficits in Beis Din in Toronto, then the solutions to those problems must be Torah based solutions. At the same time, we cannot and must not ignore the fact that we live in a society that is governed by secular law and that dissatisfied litigants in Beis Din will not hesitate to go to the secular court if they believe that "those Rabbis" have done them wrong. We must adopt procedures that will keep Beis Din cases out of secular court but if such cases do go the Ontario Court, then we must make very certain that Beis Din will be vindicated.
It is well recognized that in non zablah situations, that dayanim must be entirely independent and free from the slightest hint of bias. Likewise, affording to the parties fair and equal treatment, should in practice be, a hallmark of Jewish justice. In Sefer VaYikra, parshas kedoshim, pasuk tes vav, Hashem commands us:
Rashi comments here that a judge who rules falsely is guilty of a perversion of justice and what he has done is an abomination. Some elements of fairness and natural justice, are discussed from the halachic perspective by Rabbi Emanuel Quint in volume I of his multi volume treatise (in English) entitled, "A Restatement of Rabbinic Civil Law". There is extensive discussion with respect to the proper manner in which Jewish lawyers must conduct themselves and how Beis Din should operate, all within halacha, in the Journal of Halacha and Contemporary Society, including an article by Rabbi Broyde [1990, vol XX, p. 5: "On the Practice of Law According to Halacha"]. It is quite clear to me that Hashem yisborach laid down the guidelines for us to create a judicial system that embodied all the essential elements of what we lawyers like to call "natural justice" and "procedural fairness".
In 1995, I presented to the Vaad Haroboinim of Toronto, a detailed research paper with respect to ensuring the enforceability of Beis Dins judgments. The views expressed today, however, are entirely my own, and nothing that I say here should imply that the Toronto Va'ad Harobonim necessarily endorses what I say.
Jewish lawyers must be persuaded that their clients' interests are being promoted and protected by accessing a properly constituted and procedurally just Beis Din which is conducted on a professional, non partisan basis. In order to achieve this goal and in order to help assure the community that there is justice in Jewish law, I recommend that the following reforms be instituted:
ACCESSABILITY: There must be ease of access to the system at all stages: intake, adjudication, enforcement.
Toronto's Beis Din consists of volunteer Rabbis who serve on an ad hoc basis where their other duties permit them the time. In England, there are rabbinical courts with full time dayanim and full time professional administrators. We should follow the British example.
A formalized and professional system to handle intake and scheduling of cases would be most advisable. The perception in the past amongst some in this community was that it was difficult to bring a case before Beis Din. It was difficult to get the case started for a number of reasons including the fact that there was no full time registrar. Beis Din requires a full time administrator who is trained both in Torah law and secular law. The administrator must be able to maintain good working relations with all elements of the community and especially with the practising bar and the local rabbonim. The administrator must be able to access community resources for the parties, where appropriate. The administrator must devote his entire time and attention to the workings of the Beis Din. The administrator should be able to write clearly and advise Beis Din upon how judgments should be worded so that judicial challenge may be avoided. (Of course, the administrator must never advocate for one side or the other; his role would be to place the decision already reached by the dayanim into acceptable legal terminology that would be easily interpreted and implemented by the secular court, should that be necessary.)
The Beis Din and its full time administrator should assume comprehensive responsibility not only for dispute resolution but also for the administration of the ever increasing "gitten" that unfortunately must be granted. Perhaps, a Beis Din with greater persuasive authority and a wider feeder system of lawyers, would be able, in some small way, to influence those who are reluctant to grant or receive their get. There is no legitimate reason why any member of the Jewish community should not be able to receive the full assistance and support of all elements of Jewish society so that the agunah problem can be eradicated. Of course, this matter is beyond the scope of this presentation. I note it here as I believe that as part of the suggested reform in our own system, we may have a window of opportunity to improve the agunah situation.
It is essential that a procedure be instituted to start the dispute resolution process expeditiously. If the defendant responds to the summons, then arrangements must be made to proceed with the case quickly and efficiently. If the defendant does not respond, then arrangements must be made without delay to give the plaintiff permission to proceed in civil court. The administrator's facilitative role would be crucial in this area.
Currently, the defendant, upon being summonsed, may elect zablah. The procedure of zablah where each party has the right to choose one dayan and the two appointed choose the chair, should not be used. The abuses to which zablah is prone are many and time constraints simply prevents a discussion of that issue right now.
The dayanim in Toronto should be permanent, full time employees of the Va'ad Harobonim or preferably, a new institution should be established that is independent of all outside sources.
EDUCATION: The lawyer must be educated in the laws of lifnei iver and shown how accessing secular justice may involve anti halacha actions. This will be helpful for the lawyer who is shomer mitzvos. For the more secular lawyers, it will have to be demonstrated to them how ADR (Alternative Dispute Resolution) in Beis Din will secure a just, expeditious and less expensive resolution for their clients.
Without a wide scale education system for lawyers, Beis Din will continue to be ignored by the majority of the practising Jewish bar. Alternative dispute resolution systems are now "in". Court is not the only means used to bring disputes to an end. Private arbitration is now quite popular. Indeed, Beis Din, from the perspective of the secular law system, is nothing more than private arbitration - and is subject to all the laws governing private arbitration. Mediation is also widely used now - especially in labour relations and family law. Settlement conferences have become a part of the general litigation system while a parallel system of settlement conferences has developed within the administration of the Ontario Legal Aid Plan. The Ontario Court, General Division had established an ADR Centre in Toronto where many cases were referred for non binding mediation resulting in significant numbers of early settlement. Compulsory mediation is now poised to be implemented in Ontario. Politically speaking, there could not be a better time to formally establish another alternative for litigants. The rabbonim may indeed find that the degree of acceptance by the bar and by government will be much higher than might be expected. However, an education programme is needed.
Education will breed a certain degree of comfort on the part of lawyers and the community with the Jewish legal system. While the Gemara contains some disparaging words about lawyers and while some rabbonim have indicated that lawyers may not be welcome in Beis Din, the fact remains that if lawyers are excluded from the system then Beis Din will not likely have a chance to become more firmly established.
The practice of the panel of dayanim conducting much of the questioning of witnesses should not necessarily negate the role of the lawyer. After initial questioning, the lawyer can be asked if there is any area which he feels is important and has not been canvassed. Perhaps, the lawyer can be permitted to pose questions and to cross examine witnesses, subject to the direction and supervision of the dayanim. As long as the procedural ground rules are laid out in writing in advance, then challenges to decisions in the civil courts can be avoided.
The lawyer is also useful because the lawyer is trained at gathering evidence and presenting it in an organized fashion. The lawyer has the expertise to organize and present documents to the Beis Din. The lawyer has the contacts to bring expert witnesses (accountants, actuaries, medical experts, etc.) to the Beis Din. The lawyer can help save time and expedite the process. The lawyer can be the facilitator with the dayanim in the fact finding process. On the other hand, the lawyer has to be aware of his limitations when functioning within a system where he may have only a rudimentary knowledge of the law.
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