Judge Rules Supreme Court Justices Violated Minister Karai's Right to be Heard

Retired Judge Asher Kolla, the Commissioner for Complaints Against Judges, ruled on Thursday that Supreme Court President Yitzhak Amit and Justices Alex Stein and Gila Kenfy-Steinitz violated the right to be heard of Communications Minister Dr. Shlomo Karai, and thus natural justice, during a High Court of Justice hearing. The ruling came in response to a complaint filed by Karai concerning the judges' conduct during a hearing on expanding broadcast areas for regional radio stations.

The core of Karai's complaint was a May 15 High Court decision that froze the implementation of the minister's decisions to expand broadcasts, even though Karai was not yet a respondent in the case and his position had not been heard. The original petition was filed against decisions by the Second Authority for Television and Radio Council and the Frequency Committee to expand broadcast areas for several regional radio stations. The High Court issued an interim order on May 5 halting the expansion, and six days later, Karai made a separate decision to expand licenses under Section 13a of the Communications Law. The court panel subsequently issued an order freezing the minister's decisions as well.

Kolla determined that Karai's authority under Section 13a was not part of the dispute before the court until May 11. He stated that if the original order indeed included the possibility of expanding broadcasts under this authority, the decision was made "without any right to be heard," not for the minister nor for the state. The commissioner emphasized the importance of the right to be heard as a "cornerstone of fair process" and noted that its violation could justify overturning a decision. He clarified that his criticism was not of the judicial decision's substance but of the procedural conduct and whether an order could be issued against someone not party to the proceedings without hearing them.

The judges, in their response to the complaint, rejected Karai's claims. They argued that the minister's position was presented to the court through the state, and he was later granted separate representation and joined as a respondent. They also asserted that the High Court has broad discretion in granting interim relief and can do so before hearing all affected parties. However, Kolla did not accept that the minister's relevant position had been presented, stating that no position regarding Karai's authority under Section 13a was presented to the court until May 11. He further noted that the original petition did not challenge the minister's decision, mention the relevant section, or seek relief concerning its authority.

Kolla also dismissed the judges' claim that Karai presented an inaccurate factual account in his complaint. He found that, contrary to the judges' understanding, Karai argued his request to join the proceedings was denied by the Attorney General's office, not the court. The commissioner added that although the court stated Karai's request to join would be considered, it was never actually discussed, making it difficult to accept the argument that the minister should have appeared at a hearing he was not summoned to. Kolla concluded that the proper procedure would have been for the panel to order an amendment to the petition and for Karai to be joined as a respondent before issuing the order. He ruled that the order was effectively expanded without the minister being joined or his position heard, thus "the appearance of justice was harmed." Nevertheless, Kolla determined that the flaw was later rectified, as Karai received separate representation, was joined as a respondent, and his substantive position was heard by the court, meaning no actual harm was caused to the minister. He concluded, "I determined that there was a violation of the minister's right to be heard and consequently a violation of the rules of natural justice. However, ultimately no harm was caused to the minister, as his substantive position was heard, albeit with a delay."

Minister Karai responded, "Every additional word is unnecessary. Might does not always prevail!" He called the commissioner's finding that President Amit violated natural justice rules a serious determination.