ISRAEL AT WAR - DAY 149

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MK Rothman upbraids chief justice over ‘demand’ to freeze judicial overhaul efforts

Committee chair says Hayut saying she’d engage in compromise talks only if legislative process is halted is ‘serious violation of separation of powers,’ invites her to committee

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Composite image shows Supreme Court chief Esther Hayut, left, and MK Simcha Rothman, right. (Yonatan Sindel/Flash90)
Composite image shows Supreme Court chief Esther Hayut, left, and MK Simcha Rothman, right. (Yonatan Sindel/Flash90)

MK Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee, sharply criticized Supreme Court Justice Esther Hayut on Wednesday over her reported demand that efforts to legislate the government’s judicial overhaul be halted and that a mediation process over the proposed reforms be started instead.

“Committee debate is the lifeblood of Israeli democracy and anyone who seeks to stop it as a condition for dialogue doesn’t really want dialogue,” Rothman declared during the committee hearing.

Meanwhile, Justice Minister Yariv Levin, architect of the controversial plans, said he expected Supreme Court justices would resign from their roles if the reforms were to materialize, providing an opening for the committee responsible for the selection of judges to “diversify” the court.

Levin also said he would be open to discussions regarding the “nuances” of the plan, but would not compromise on the fundamental principles of the proposed judicial reforms.

President Isaac Herzog recently requested that Hayut engage in a roundtable forum of jurists from both sides of the ideological divide in order to come to a compromise over bitterly opposed government plans to enact sweeping changes to the legal and judicial systems.

According to a report by Channel 13 on Tuesday, Hayut demanded that Rothman’s committee stop holding hearings on the legislation he has proposed — which would radically alter judicial oversight and independence — as a condition for her participating in such an endeavor.

In a highly unusual step for a serving Supreme Court justice, Hayut spoke out fiercely against the government’s radical reform proposals last month, describing them as a “fatal blow” to democracy.

In response to the Tuesday report, Rothman hit back, saying: “If I were to say that I would halt the reforms as long as the High Court stops its hearings, doesn’t strike down laws or appointments, does not hear [petitions] on policy matters, and a freeze in the situation until we speak, there would be people who would rightly say that I’m interfering with judicial independence and harming the separation of powers.

“The president of the Supreme Court’s attempt to interfere in legislative proceedings in the Knesset is a serious violation of the separation of powers, and the entire Knesset, coalition and opposition, should say that this is unacceptable.”

Supreme Court Chief justice Esther Hayut speaks at a conference of the Israeli Association of Public Law on January 12, 2023. (Screencapture/nevo.co.il)

He argued that High Court had refused every proposal for reform of the legal and judicial system suggested in the past by ministers and lawmakers.

Speaking on the “My Israel” podcast on Tuesday, Justice Minister Levin said he was “certainly willing to hear other peoples’ opinions, I think there is value in a broad agreement. But we have to put aside the bickering, the intimidation, and the irrelevant discourse. One can argue about this or that majority on overriding a law, but the basic principles cannot and will not be compromised because they are necessary and required.”

Addressing the possibility that if the package of reforms is passed as Basic Laws, giving them quasi-constitutional status, the Supreme Court may use its “doomsday weapon” and declare the reforms unconstitutional, Levin insisted that “as soon as the reforms are passed, the barrier of fear will be broken and many more voices will arise in the judicial system that will say in a clear voice that this is an illegal step that has never happened in the history of nations.”

Levin also accused Supreme Court justices of “taking over the state” and brushed off fears that the reforms would spell “the end of democracy.”

Rothman, of the Religious Zionism party, extended an invitation to Hayut to address the committee herself, saying he would “give her all the time in the world” and that “we will listen attentively to what she has to say.”

Later in the hearing, Rothman was questioned by Yesh Atid MK Karine Elharrar over one of the key aspects of his legislation whereby the government would have an automatic majority on the committee that selects judges.

Elharar challenged Rothman’s assertion that giving politicians full control of the Judicial Selection Committee was a reliable method for selecting judges, which Rothman argues is legitimate since such a system is used by other Western democracies.

Committee legal adviser Attorney Gur Bligh sought to contextualize the issue by noting that those other countries have institutional checks on executive power in countries, but was blocked by Rothman.

“If you want to add context to what I say then you have to wait your turn,” asserted Rothman, who in previous hearings had vocal arguments with Bligh.

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