Shaked vs. Justices:
'Supreme Court blurring nation's sovereignty'

'Nation has no relevance in new constitutional structure being shaped by Supreme Court.'

Mordechai Sones,

Shaked: Vigilant
Shaked: Vigilant
Flash 90

Justice Minister Ayelet Shaked today criticized the possibility that the Supreme Court would disqualify Basic Laws.

Shaked's concern about the possibility of disqualifying these laws was reinforced by the fact that the Supreme Court justices did not rule out petitions filed against the Basic Law.

"If the court accepts the thesis that it's possible to disqualify the Basic Laws, we can finally answer Justice Cheshin's question from the Mizrahi Bank judgement: 'And the nation; where is it?' - we'll respond immediately - nowhere," she said. "The nation has no relevance in the new constitutional structure that's being shaped by the Supreme Court."

Shaked described how in the 1990s, Likud Justice Minister Dan Meridor had sought to disengage the Knesset's authority and pass decision-making capacity to the Supreme Court. "What Barak contemplated theoretically in a minority opinion, Meridor sought to determine in the framework of a Basic Law."

Shaked explains, "Diminishing the nation's image in Supreme Court rulings is the culmination of a long process, a process that's been going on for the last few decades in the State of Israel and changing government beyond recognition. From the familiar system of representative democracy, where the people is the sovereign who shapes its arrangement through its representatives, Israel moves on to another method. This method blurs the sovereignty of the people, and its borders have yet to be drawn."

Shaked explains
Flash 90

Shaked attacked the fact that "the judges began, step by step, to disconnect themselves from the existing law and began to see themselves as the designers of the desired law. From the custodian of the law's interpretation, the court has become the chief policy officer. If the court decides that even the Basic Laws aren't immune to judicial review, the people will be deprived of the possibility to influence creating constitutional arrangements through its representatives, this time as a constituent assembly, thus ending the role of the people in what was until now our democratic system. From now on the norms will be determined not by the people. With the disappearance of the nation, its national values also disappear.

"The significance of establishing basic principles that the public never endorsed, in an unconstitutional forum that can invalidate basic laws created by the people's representatives is a transition from representative democracy to rule by philosophers. From rule of the people to rule by the Council of Judicial Wise-men. Writing laws in Israel, which until now has been based on the democratic argument that implementing the values of the legislator as set out in the Basic Laws - is liable to complete its separation from the people, this time in final and absolute manner. In effect, the Supreme Court is in complete control of the scope of determining norms as a whole, while removing this authority from the elected officials.

"Denying the people's authority to determine the nature of its state in the name of abstract principles of 'the enlightened public' undermines the basis of the democratic process. It's the end of sacrificing national foundations on the altar of universal values, by sacrificing democratic values themselves. Judicial review of Basic Law is an earthquake. Not only legally, but also politically. This is a regime earthquake."

Shaked concluded her words by paraphrasing Abraham Lincoln's Gettysburg Address: "As one who believes in democracy with all her heart, I will not concede the place of the nation. I won't concede its representative's place. I will not give up democracy, and the Knesset of the people, by the people, and for the people shall not perish from the earth."

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