"The problem here is that as long as we have a political entity operating in the guise of a judicial court, we have to fix this problem of imbalance between the various branches of government."
This is how attorney Yisca Bina of the Movement for Governance and Democracy sums up the crisis currently facing the country. In conversation with Israel National News, she repeatedly stresses the need to "return the power to the people," and demolishes the idea that the Israeli judicial system in its present form can be relied upon to protect the people's interests.
"The reforms proposed by the government come to do one thing: restore the power to the nation," she says. "If those opposed want to protest that the reforms will give power to corrupt politicians, then there's a simple answer to that: Who elected those politicians? If we don't like them, we can boot them out. We can't boot out the Supreme Court justices, or the attorney-general," she notes.
"And that is part of the problem; these people are continually intervening to determine the basic rights of individuals. There's no recourse if the attorney-general or the Supreme Court decide that a haredi woman does not have the right to study toward a university degree in a gender-segregated program, or to hold a women-only event, in conformance with her beliefs and religious faith," attorney Bina points out, using examples of areas in which the Israeli courts have exercised judicial activism on numerous occasions.
Indeed, the country's sizeable haredi minority has very little confidence in the Supreme Court, as successive surveys have indicated. Other minorities, however, are often equally disturbed by Supreme Court rulings, attorney Bina notes. "What about the Religious-Zionist minority, a minority that serves in the army and pays taxes, yet has rulings such as those related to Amona and Netiv Ha'avot imposed upon them?"
She strenuously refutes the notion that the judicial system can be relied upon as a bulwark against tyranny and as a protector of minority rights.
"The example of Germany during the Nazi period is often given," attorney Bina says, "and this is actually an excellent example of the impact of the Courts, but not in the way most people think. Germany, before and during the Nazi period, had an extremely powerful judicial system, but once the government began to pass laws against the Jews, the courts followed suit, supporting the regime and enforcing its ideology. It's important to stress that if an entire country is corrupted and infected with racist ideology, the corruption spreads and the courts do not act as a bulwark against this, and this is precisely what happened in Germany."
Attorney Bina adds that this cannot be simply explained as the result of intimidation on the part of the dictatorship. "A recent German survey illustrates this well, pointing out that even after the Holocaust [and the fall of the Nazi regime], German lawyers and jurists were still defending and whitewashing the Nazi ideology."
Many of those opposed to the government's program protest that the reforms are being rushed, and that something as important as this should be done slowly and cautiously. Attorney Bina rejects these calls for "moderation," emphasizing that the demand for judicial reform is not new. "This is something that should have happened 30 years ago, when then-Supreme Court President Aharon Barak initiated [what he himself termed] a judicial revolution. Where's the rush here? People like [Justice Minister] Yariv Levin, [former Likud MK] Moshe Feiglin, and of course [Constitution Commitee head] MK Simcha Rothman have been talking about the need for reform for years.
"More critically," she adds, "we have to pass these reforms now, because the Supreme Court is the entity actually splitting the nation with its constant intervention [in the political arena]."
What is the regular man on the street to think, however, when he sees prominent jurists, economists, army officers and so forth, all warning of the dire consequences of the reforms?
"I was absolutely taken aback by this," attorney Bina admits. "I was stunned that people with expertise, professionals, people I thought would deal with the issue in depth, are not doing so. They're not providing factual explanations. There is enormous ignorance of the content of the reforms. And this was true in the past as well, when these classes of people told everyone that Oslo was wonderful as it would lead to peace; that the Disengagement was a great idea. Perhaps we can now free ourselves of these sacred cows called professionals, generals, and experts."
A day after President Herzog presented his vision of compromise, rejected by many as one-sided and not what they had been led to expect by the president and his advisers, attorney Bina says that compromise is possible, with certain caveats.
"There are two areas where we have to be absolutely clear. One is that the people should be choosing their own justices. There is no justification for allowing judges to choose their successors. The other area is that of Basic Laws. The current situation, where justices can essentially give anything the status of a basic law [i.e. quasi-constitutional status] must be changed. The country is going to need to address this question of constitutional laws in depth," she concludes.