Justice Minister Ayelet Shaked (Habayit Hayehudi) on Monday positioned herself frontally, bravely and perhaps dangerously as the unstoppable force seeking to crash into the immovable target of Israel’s judicial elite. Speaking at a conference of the Israeli bar association, Shaked challenged the authority of the high court to legislate. The following is a partial transcript of her speech, which has been met with fierce attacks by judges and prosecutors, all the way up to the Supreme Court chief justice.
“Even the deepest dispute may be an important device in advancing the public discourse and challenging the general consensus. I believe that creating an accepted framework of new rules passes through the sharpening of the points whose deliberation, not concealment, would bring about an agreement between the parties. … Out of a great respect for the legal system, I ask to delve into the harsh dispute that took place last week between the Supreme Court and the government. … I find that I have permission, and as Justice Minister also the duty, to criticize a ruling whose principle direction is mistaken in my view.
“Loyal to the method of former Supreme Court Chief Justice Aharon Barak, who defined an un-justiciable domain as a ‘judicial black hole,” the Supreme Court justices decided not to reject but to hear a petition on the natural gas deal; a petition whose real topics were economic viability and appropriate distribution of public resources, not exactly questions that are at the hard-core of the judiciary.
“The meaning of the ruling, which de facto annulled the governmental outline, may turn out to cost hundreds of billions of shekels, and its indirect meaning for Israel’s economy no one knows. I hope that we will not become in the eyes of the world ‘a land that eateth up its investors’; a land that politically, despite the difficulties we all know, maintains solid international ties, but at the same time exactly — its economy is isolated, because of fear of judicial instability.
“Once again the High Court has turned itself into an arena where political and distilled macro-economic questions are deliberated; questions which were supposed to be decided not in the great hall of the Supreme Court but in many small halls; the halls of schools and kindergartens, once every four years, when the citizens go in there to drop their votes in the polling boxes and elect their representatives at the Knesset.
“Those political domains, whose decisions are reached in the Knesset and the government, where there is no justification for the High Court’s intervention — Barak named ‘black holes.’ I, on the other hand, call them ‘governance domains.’ Here precisely comes into play government’s ability to govern and parliament’s to legislate, in the name of the peopel that elected their representatives. The classical role of the court is to defend those who were injured against the law, not to decide public issues. … In the past the court required appellants to show that they were individually harmed as a prerequisite. But the theory of ‘black holes’ has led to the big bang of the ‘constitutional revolution” and today there’s nothing the high court may not entertain.
“And so we’ve reached an absurd situation in which the petitioners against the gas outline are associations and Knesset members who have the full right to advance their political positions, but instead of doing it through the political system — they choose to do it through the judicial arena, while using and overburdening it. …
“Out of which purse are we going to pay the reparations set by the court in favor of Palestinians damaged during the intifada? Who will take care of the public purse that was emptied by canceling the private holding facilities? And who will sew again the public purse that was holed up because of the suspension of the gas deal?”
