Hayut rejects Rothman’s motion for her recusal from reasonableness hearing
Chief justice says her past criticism of law limiting use of reasonableness test was made in accordance with her role as top judge, denies MK’s charge of bias
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Supreme Court Chief Justice Esther Hayut on Monday refused a request by chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman seeking to have her recuse herself from the panel hearing petitions against the government’s “reasonableness” law on the basis that she is biased on the issue.
Rothman, of the far-right Religious Zionism party, based his request earlier Monday on a speech given by Hayut in January in which she strongly criticized all aspects of the judicial overhaul agenda presented by Justice Minister Yariv Levin earlier that month, including the plan to limit the High Court’s use of the reasonableness standard.
As head of the Constitution Committee, which prepared the legislation for passage in the Knesset plenum, Rothman is named in the petitions against the law as one of the respondents.
Hayut said Monday that her speech was made in accordance to her role as head of the court, and “reflected my deep concern of harm to the independence of the judiciary by the plan presented by the justice minister.”
“In my speech, I referred to, among other things, the issue of the cancelation of the test of reasonableness that was included in the minister’s plans, and the challenges involved with them,” she added.
The reasonableness law, an amendment to Basic Law: The Judiciary, is the only part of the government’s broad judicial overhaul program to have been passed so far. It prohibits the High Court from using the reasonableness standard to annul governmental and ministerial decisions and actions on the basis that they are unreasonable.
During Hayut’s speech at a conference of the Israeli Association of Public Law on January 12, she said the reasonableness standard was “an important legal tool that the [judicial overhaul] program seeks to take from the hands of the judges.”
She went on to say that she rejected claims that decisions by the government and cabinet ministers are professional and values-based, and that a judge’s opinion should therefore have no higher weight than that of the official making the decision.
“This is a dubious argument. If there is no room for a values-based decision by the judge regarding the reasonableness of a governmental decision, the next step – according to the same logic – is perhaps that the judge does not have any professional advantage to determine what ‘reasonable doubt’ is for the purpose of acquitting a criminal defendant,” she asserted.
“From here, it is a short road to the eradication of extensive sections of the various branches of Israeli law, all of which are based on values-based standards that the judge must examine and decide upon.”
The speech itself was highly unusual since serving Supreme Court justices almost never express their opinion on proposed legislation.
Rothman in his motion argued that this speech demonstrated that Hayut has already “determined explicitly that the amendment to Basic Law: The Judiciary is part of the ‘unbridled attack against the legal system’ and part of the program to “destroy the justice system.”
Added the MK, “These words show that the president of the Supreme Court has already formed her opinion on the issue and that there is a real suspicion of bias and harm to the appearance of justice in a way that prevents the honorable president from participating in hearings on petitions dealing with the question of the legality of the amendment.”
He pointed to the 1984 Courts Law, which stipulates that a judge should not hear a case if there is “a real concern of bias in managing the trial.”
The hearing on petitions against the reasonableness law is scheduled for September 12.
