Shaked: Supreme Court ignoring reality

Justice Minister accuses High Court of ignoring the Knesset and the will of the people, vows to restore separation of powers.

Tzvi Lev ,

Justice Minister Ayelet Shaked
Justice Minister Ayelet Shaked
Flash 90

Justice Minister Ayelet Shaked (Jewish Home) delivered a blistering speech against the High Court of Justice, which she contended had taken unauthorized powers for itself and warned that its behavior was "causing Israeli democracy to run away from the people".

Speaking at a conference in Zichron Yaakov sponsored by the Association for Public Law, Shaked said that she and Jewish Home Chairman Naftali Bennett were determined to pass legislation reining in judicial overreach by the High Court of Justice.

Shaked blasted the court's decision to strike down the Infiltrators Law earlier this year, asking why the court "failed to see the residents of South Tel Aviv" who have had their communities overrun by Eritrean illegal immigrants.

"Democracy is fading away because the system prefers pure legal reasoning over concrete realities which are always more complex than legal reasoning," Shaked said.

An example of this approach, Shaked alleged, was last week's ruling obligating Israel to return the bodies of terrorists killed in Novembers Gaza tunnel bombing. "Last week, together with all the Jewish people, we listened in astonishment as the court instructed the government to relinquish the bodies of the terrorists without any legislation to that effect," she said.

"How does the Supreme Court strike down laws without any legal authorization to do so?" Shaked asked. "Does a law enabling the court to nullify legislation appear in any of their law books?"

"Respect for the legislative branch is the keystone of our democratic system, and the reference to the decision of the majority as a procedural matter only signals contempt for the public and contempt for the only democratic institution that the public elects directly".

Shaked's remarks were followed by Supreme Court Chief Justice Esther Hayut, who decried the way "in which some of the elected officials, ministers and members of the Knesset, express their contempt for the judiciary," which she said "are far from respectful and very embarrassing".

The Jewish Home party recently introduced a new basic law that would restore the balance between the judiciary and the legislative branch, following a string of high-profile decisions by the Supreme Court nullifying Knesset laws and government policies.

Under the plan presented by Bennett and Shaked, the government would amend Israel’s Basic Laws – legislation passed by the Knesset which enjoy a special status above normal laws.

While the Basic Laws were never ratified as a formal constitution, the Israeli Supreme Court has treated the Basic Laws collectively as a de facto constitution, knocking down laws it ruled were incompatible with the basic laws, and asserted a right to judicial review over all other legislation without resorting to the basic laws.

As part of Bennett and Shaked's "constitutional revolution", the Knesset will recognize that the Supreme Court may invalidate a law. However, in contrast to the situation in which the Supreme Court nullifies laws easily, the legal memorandum sets forth strict conditions for disqualifying a law, and allows the Knesset, under certain conditions, to re-enact a law that has been annulled by the court. The purpose of these sections is to maintain a constant dialogue between the three branches of government - the legislative, executive, and judicial branches.

Thus, a law will be allowed to be disqualified only in the Supreme Court, and only in an exceptional case in which the legislative process deviates from provisions established in the Basic Laws. This can be decided on by a court made up of 9 or more judges, and by a majority of two-thirds of the panel. The Basic Law on Legislation states that it will not be possible to interfere with legislature passed into law by the Knesset citing procedural flaws, as long as the law passed three readings and received the required majority.