Israel's Top Court Has No Authority to Overrule Basic Laws, Justice Minister Says

Ayelet Shaked claims Israel has never passed a racist law, says any Knesset that can pass racist laws is one that would not obey a High Court’s decisions

Justice Minister Ayelet Shaked and Knesset Speaker Yuli Edelstein in the Knesset plenum, Jerusalem, Israel, September 17, 2018
Olivier Fitoussi

Justice Minister Ayelet Shaked said on Monday that the High Court of Justice lacks the jurisdiction to rule on petitions against the nation-state law and may not intervene in the legislation of Basic Laws.

“It has never been determined that Basic Laws are subject to judicial review,” said Shaked, who was speaking at a special session of the Knesset convened at the request of left-wing party Meretz in the wake of her recent remarks concerning the court.

“Those who determined that laws are subject to judicial review drew on authority granted by the Basic Law on Human Dignity and Liberty which says that if a law contradicts the values set by the lawmakers, then the court has the right to overrule such laws.

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“But the court does not have the authority to overrule Basic Laws. In countries that have a constitution, the court doesn’t intervene in the formulation of that constitution. Formulation of a constitution is in principle a political process,” Shaked said.

Shaked also commented on the possibility of the Knesset passing controversial laws that contradict the principles of Israeli democracy. “The day that the Israeli Knesset passes a law that says that Haredim or Arabs or women have no right to vote, the court would not be able to save us from that corrosion. A Knesset that can pass racist laws is one that would not obey a High Court’s decisions,” said Shaked, noting that in her view “the Israeli Knesset has never passed a racist law. I don’t think that day will come. But the day it does happen, that cursed Knesset would not heed the High Court of Justice,” Shaked said.

The justice minister mocked opposition claims of that she had launched an “onslaught” against the High Court. In response she read out a list of sharp criticism of the court sounded by left-wing figures in recent weeks, including MK Mossi Raz (Meretz), Neven Abu Rahmoun (Joint List) and an editorial published in Haaretz about the Bedouin village of Khan al Ahmar that the state plans to demolish.

“You don’t want a strong, independent court but one that grovels,” charged Shaked. “The moment the court does not agree with you, you burn down the barn. You were used to looking in the mirror and asking ‘mirror, mirror on the wall, who is the most righteous of them of all?’ The moment you got a answer you didn’t like, you began to curse.”

Meretz leader MK Tamar Zandberg accused Shaked and Public Security Minister Gilad Erdan of trying to damage Israeli democracy, by getting rid of the police chief who was overseeing investigations of the prime minister, and by attempting to take over the committee that makes high-ranking civil service appointments.

Zandberg noted that despite the fact that her party had on a number of occasions disagreed with High Court decisions, some of which “gave a green light to the occupation and enabled the settlement enterprise” to thrive, she said that Meretz fully supports the court which acts to safeguard the rule of law.