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Justice Minister Ayelet Shaked

“The Knesset is attempting to legislate away our lives and the High Court is invading territory to which it is not entitled,” declares Justice Minister Ayelet Shaked (Habayit Hayehudi), in a lengthy but exciting essay in the inaugural issue of Hashiloach, an Israeli Journal on thought and policy. The essay, titled “Tracks toward Governing” (the Hebrew title is a play on words between Mesilot-tracks and Meshilut-governance), suggests that the behavior of some of Israel’s branches of government is threatening individual freedoms as well as the ability of elected officials to govern. Shaked is urging a return, as soon as possible, to the proper governing on the proper tracks, from within Israel’s definition as a Jewish and democratic state.

“Good governance is not a blind force, certainly not a strong but silent engine,” writes Shaked, stressing that “the ability to carry out goals in the way they have been defined is a prerequisite condition for good governance, but is far from being sufficient in itself: good governance is measured above anything else by the ability of government ministers to establish their own goals.”

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“A politician who knows how to bring the train to its destination, but is unable to set the destination, as senior as he may be — is not governing but merely subcontracting; he may have been appointed Minister, and he may get to cut ribbons in the end, but he is nothing more than a contractor,” Shaked argues. “To move down a track laid down by others does not require leaders; any driver could do it just fine. The essence of governance is always setting down directions and posting goals. This requires of elected officials to lay down new tracks only after they had decided for themselves where they would like to take the train.”

Shaked asserts that every time the Knesset votes in favor of any given law, it is also voting against the freedom of individuals to take care of their issues on their own. She calls it a vote of no confidence in the autonomy of communities and individuals. Indeed, as Chair of the Ministerial Legislative Committee, Shaked laments that she has processed more than 1,500 legislative proposals, from amendments to existing laws to fully realized, new bills. Suggesting the Knesset is by far the most prolific parliament in the entire Western world, Shaked describes this abundance of new laws as a hospital that’s being built underneath a broken bridge to care for the people who fall off.

Referring to economist Milton Friedman’s impressions following his visit to Israel in the 1960s, when he predicted that the historic spirit of Jewish freedom would eventually overcome the newly bred spirit of Socialist bureaucracy in Israel, Shaked admits she’s not so sure Friedman was right. “Without our firm push on the brake pedal of this locomotive, week in and week out, those legislative proposals would have created for us an alternative reality, in which government controls the citizens through the regulation of more and more economic sectors, with the individual being left with precious little freedom to manage his own affairs.”

Shaked provides several examples whereby proposed legislation would have, for instance, created a world in which a landlord would be forbidden to raise the rent for several years. Of course, rents would soar on the eve of this new law going into effect, followed by a loss of interest on the part of investors in creating new rental stock, leading to a drop in available apartments and, of course, another rise in rents. It would also be a world in which employers must comply with pensions set by the legislator, until, of course, they go bankrupt. And a world in which police would be bound by a two-strike law that compels them to arrest any individual against whom someone has filed two complaints. Running down some of these “bizarre” proposals, as she calls them, Shaked eventually describes a proposal to compel the state to solve terrorism by distributing bulletproof vests to every citizen against knife attacks, as well as a proposal to eliminate the reference in the law to “Beit Av,” which is the Biblical term for Household, because it has a reference to a father rather than to a mother.

Shaked reports that she requested, for the 2017-18 budget, that the ministerial committee would no longer consider bills that add new criminal offenses to the law books, without a thorough investigation of similar legislation in other countries, of the ramifications of the new criminal law on the books in Israel’s society, and, most important — of existing, non-criminal alternatives.

Alongside the need to restrain the legislator, Shaked sees a dire need to restrain Israel’s expansionist Judiciary. She notes an ongoing war between the Supreme Court and the executive branch, which necessitates the passing of a new constitutional-level legislation (Foundation Laws in Israel’s system) to regulate once and for all this combative relationship. She cites several cases in which government was blocked by the high court in areas that are clearly the executive’s domain, such as the law regulating the treatment of illegal infiltrators from Africa, and the government contract with natural gas companies to exploit Israel’s rich deposits.

Shaked laments the fact that the Supreme Court so often usurps the right to kill an entire legislation, as if it had appointed itself the 121st Knesset Member (or more than that, since it so frequently joins with the opposition parties to defeat a majority coalition). She has no problem with individuals seeking remedy in the lower courts to damages they claim to have suffered from, say, the new gas contract. That’s a legitimate use of the court system. But how can the unelected high court delete an entire legislation passed by elected officials? Who, after all is said and done, is the sovereign, the people or their appointed judges?

As a result, the art of politics in Israel is practiced as follows, according to Shaked: first the different parties vie for the voter’s trust; then, in the Knesset, the coalition negotiates with and fights against the opposition over a proposed bill; finally, after the bill was passed, the opposition parties appeal it before the Supreme Court, which reverses it. That, in a nutshell, was the story of the natural gas bill earlier this year.

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