Photo Credit: Ayelet Shaked's Facebook page
Justice Minister Ayelet Shaked with members of Israel's Supreme Court

Justice Minister Ayelet Shaked (Habayit Hayehudi) on Thursday delivered a harsh speech at a conference of the Association for Public Law in Zichron Yaakov, which was attended by the new Supreme Court President Esther Hayut and Attorney General Avichai Mandelblit. Shaked addressed the criticism voiced in the past two days against the Basic Law on Legislation which she had distributed together with Habayit Hayehudi chairman Naftali Bennett.

The proposed new basic law sets up a protocol for the dialogue between the Knesset and the High Court of Justice over new legislation, which allows the Knesset to reverse by a special majority the court’s annulment of a law, at which point the court’s ability to revoke the new law is curbed. The bill also requires a bigger than usual court panel to deliberate the annulling of a new law.


Shaked defended her new bill, but also attacked the high court’s behavior over the past twenty-five years, accusing it of appropriating the power to govern from the country’s true sovereign—the people.

“Israeli democracy is running away from the people,” she said. “This stems from a deep and primal fear of the people and the distance of some of the old elites from life’s realities.”

“A crack was created at the very heart of our legal system which crystallized after the constitutional revolution of the 1990s,” Minister Shaked began Thursday night. “It is a deep crack, which was never planned and will never be justified; a crack separating two ideas which had forever coexisted: the process by which the people rule through their elected representatives, and the democratic idea.”

According to this new approach to democracy, galvanized by the rogue judicial revolution of former Supreme Court President Justice Aharon Barak in the 1990s, Shaked said, “the people may make decisions through their representatives in the Knesset and the government on certain legal issues, but not on the most important governmental issues:

“Not in the areas of taxation;

“Not in the areas of immigration;

“Certainly not in relation to the way the government is being run, nor about how to conduct referendums;

“And—goes without saying—not in cobbling the state budget,” Shaked concluded, then added: “And with regard to the division of natural resources and the establishment of security policy, we have already become accustomed to the division of functions between the government and the court. In all these matters, the elected officials are no longer the decision makers and the final arbiters.”

“We are asked to believe that true democracy is practiced through abandoning its ‘procedural shell,’ as former court president Barak put it, a shell that includes the majority principle and the mechanism for determining written laws – for the sake of ‘the democratic essence,’ the ‘essence’ that often ignores the will of the people unless it bows to ‘absolute’ principles, principles that have never been agreed upon in our unique system,” Shaked explained, adding wryly, “And if some laws should be disqualified in order to emphasize what is a ‘democratic shell’ and what is a ‘democratic essence’ – that will be done.”

“The Israeli democracy is running away from the people, and this flight has been going on for too many years,” Shaked stated. “This escape stems from a deep and primeval fear of the people. But not only fear of the people is behind the flight of Israeli democracy from its sovereign; this escape also stems from the distance of some of the old elites from the realities of life.

“This escape occurs when our method clearly sees Jerusalem, the city on a hill, but ignores south Tel Aviv down below. The flight of democracy from the people takes place in the space created between dissatisfaction with reality and love of theory. It lives a goodly distance from the street and feeds on a lack of familiarity with the street’s needs, weaknesses, frustrations, advantages, beauty and desires.

“It is based on the preference of the pure legal norm over the concrete reality; a reality that’s forever more difficult, more complicated and complex than any legal maneuver. A reality that forces us – the elected officials, that the people sent to the Knesset and to the government – ‘to do politics,’ by which I mean the best sense of the word: finding legal compromises that are achievable in the reality of our lives.

“It’s a reality that does not always benefit from strong and wondrous constitutional arrangements, which with all their occasional daring have nothing with the real world – instead they are determined by an impressive jotting of the judicial quill – but life is much stronger than all that,” Shaked said.

Shaked mentioned that it was Justice Barak who, in 2012, stressed the need for a basic law (Israel’s basic laws are its legal equivalent of a constitution) to arrange the way laws are enacted and the procedure for their judicial review – in fact, Barak regretted that the Knesset had not passed the basic law about passing laws ahead of all its other basic laws.

“The need, even the obligation, to enact the Basic Law on Legislation is clear and tangible to anyone who has a hand in the world of laws, precisely for the reasons of which Barak spoke,” Shaked said, “The need to regulate the legislative process and to establish a mechanism for judicial review.”

And so, she continued, “Basic Law: Legislation returns our system to its traditional democratic roots. It allows for the first time the existence of a genuine constitutional dialogue between the legislative branch and the judiciary. The dialogue it proposes is similar to that which has existed for twenty years under the Basic Law: Freedom of Occupation, and it is similar, of course, to the models in Canada and New Zealand. Indeed, it is much more moderate than the British model which favors the parliament’s power over the judiciary.”

“I, too, lived on this earth before the mid-1990s (when the basic laws were being enacted),” Shaked said. “I know Israel very well today, but I still remember Israel before the Basic Laws. Sometimes the laws were more successful and sometimes less. The difference between the two periods can be summarized as follows: We were not the land of the sons of darkness, nor were we redeemed by the sons of light.”