“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.”
“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.
haked cites Alexander Hamilton’s essay on the power of the judiciary, where he claimed that the High Court was by far the weakest of the three branches. It did not, he said, have the “sword” of the executive, who is commander-in-chief of the nation’s armed forces, nor the “purse” of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, “neither force nor will but merely judgment.”
Shaked essentially blames the High Court for usurping power without the responsibility that must accompany it, and this way also usurping the sword of the prime minister and the purse of the legislature, without being entitled to either. “Which purse pays the reparations the court set for Palestinians hurt during the intifada?” she asks. “And who will repair the public purse that was poked full of holes from the revoking of the gas deal?”
Finally, Shaked offers her own version of the often misunderstood concept of Israel as a Jewish and Democratic state. Rather than view Israel as the scene of a centuries old battle between secular and religious Jews, she proposes a return to the Biblical values that, in fact, served as the spiritual wellspring and inspiration for the forefathers of modern liberalism and of the American Constitution. Where did Thomas Jefferson get the idea that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness?” Shaked asks, and goes on to rediscover the concepts of separation of the branches of government, majority rule, the human right to self governance, the right to criticize a criminal king.
Astonishingly, Shaked relates how she discovered a wonderfully instructive text that deals clearly and accurately with the idea of a Jewish and Democratic state, and was written — get ready for this — by Chief Justice Aharon Barak, the man credited more than anyone else with the High Court’s usurping of powers to which it was not entitled.
Barak wrote, quite brilliantly:
“A Jewish State is the state of the Jewish people. It is the natural right of the Jewish nation to be like all other nations, living on its own in its sovereign state — a state to which every Jew has the right to immigrate where the Ingathering of the exiles is a fundamental value.
“A Jewish State is a state whose history is intertwined with the history of the Jewish nation, whose language is Hebrew and whose main holidays reflect its national revival.
“A Jewish State is a state whose main concern is Jewish settlement in its fields, cities and villages.
“A Jewish State is a state that cultivates Jewish culture, Jewish education and love for the Jewish people.
“A Jewish State is the realization of the aspiration of generations for the redemption of Israel.
“A Jewish State is a state whose values are drawn from the religious tradition, whose most fundamental text is the Bible, and the foundation of its morality are the prophets of Israel.
“A Jewish State is a state where Jewish Law plays a vital role and marriages and divorces of Jews are decided according to Torah Law.
“A Jewish State is a state whose fundamental values are comprised of the values of the Torah of Israel, the values of Jewish Tradition, and the values of Jewish Halakha.”
Indeed, argues Shaked, the effort to deepen Israel’s democratic values must take us through a deepening of our Jewish values, just as prescribed by the most influential Chief Justice in Israel’s Supreme Court’s history.
Concluding with a citation from President Abraham Lincoln’s Gettysburg Address (1863), Shaked stresses that “government of the people, by the people, for the people, shall not perish from the earth.”
Source: The Jewish Press