Association for Civil Rights in Israel on democracy’s heart attack (Long)

From the Association for Civil Rights in Israel, reprinted by permission.

Ed’s note: This is long, but close enough to our mission to warrant reprinting in full. Here you have the definite guide to anti-democracy bills in the Israeli Knesset, some that will be familiar to readers of this blog, some that even close followers of Israeli democracy will be unaware of. Did you know that the Israeli Parliament (Knesset) might consider banning face veils? Or that there was a bill to restrict the Israeli cinema? Or that Israel’s embattled political opposition faced further restrictions in one bill that passed its first reading?  None of these bills have passed as of yet. But they offer a window into what the next outrage might be and clearly illustrate the steep downward trendlines of Israeli democracy. No doubt not all of these bills will become law, but each will do their part to send a message to Israel’s political and national minorities and oppressed groups about where things are headed. And exactly none of them will be mentioned next time an official Israeli film festival comes to town, or the next time an Israeli or American leader goes on about our shared democratic heritage.

Harming Democracy in the Heart of Democracy

by Attorney Debbie Gild-Hayo
October 2010

For links to the texts of all Knesset bills and document cited, please view the complete PDF version of this document.

Background

Over the past two years, we have been increasingly troubled by expanding tendencies to harm Israel’s democracy. These trends are extensively surveyed in the State of the Democracy Report – published by The Association for Civil Rights in Israel (ACRI) in intermittent chapters. The two chapters that have been published so far deal with education system, and with the status of the Arab minority in Israel. The three future chapters will address the Knesset and the judicial system, free media, and freedom of protest and political activity.

A source of great concern is the fact that one of the key rings in which the Israeli democracy is threatened is the parliament itself – the very heart of democracy. Ahead of the upcoming opening of the Knesset’s Winter Session, we have drafted this brief review. It surveys the main aspects of anti-democratic trends in the Knesset, focusing on anti-democratic legislation, which includes bills that harm basic democratic rights – mainly the freedom of expression and political protest, and equality before the law; verbal and even physical abuse of members of the Knesset minority factions at this time;[1] attempts to delegitimize and infringe on the legitimate and much-needed operations of human-rights and social-change organizations;[2] and attempts to restrict the freedom of Israel’s academy. The above are most troubling signs, attesting to the deterioration of Israel’s democratic regime.

The attacks against Israel’s democracy are mainly characterized by attempts to silence social or political minorities’ views or public criticism; attempts to delegitimize political rivals, human-rights organizations, and minorities; attempts to restrict parties with positions or activities that do not coincide with the political majority’s desired direction; and by presenting minorities in the Israeli society as enemies of the State, generalizing in an attempt to infringe on their civil and political rights.

As a result, the basic principles of the Israeli democratic system are harmed; there is ongoing infringement on issues such as the freedom of expression, and human dignity and equality; on the possibility of upholding the pluralism of views and thoughts; on the freedom to congregate and protest; and on the legitimacy of certain views and stands. We are witnessing a reality of increasing tyranny against social, political, and national minorities, which harms their very rights.

It should be noted that these events have been taking place against the backdrop of a social and political reality which is always very loaded and often very harsh. Over the past 2 years, for example, we witnessed the continuation of the occupation and all that it entails: fire on Israel’s southern area, the military operation in Gaza, the flotilla affair, terror attacks, and more. We believe, however, that raising the banner of “A Self-Defending Democracy” is a cynical attempt to infringe on a democratic right of some minority (ethnic, social, or political) and is neither legitimate nor just. We believe that the State of Israel and its democracy must be defended, albeit proportionally and appropriately, and that basic rights may be denied or restricted only in the most extreme cases – as the Israeli law currently stipulates. It is inappropriate to legitimize the denial of minority rights as a matter of routine.

These anti-democratic moves employ various means, most troubling of which is the use of allegedly legitimate parliamentary tools, mainly through legislation. In recent years, we witnessed harsh and unprecedented remarks by senior politicians against political and human rights organizations, as well as various minorities, coupled by a variety of restrictive moves against them. At the same time, attempts were made to promote legislative initiatives and bills that clearly impair on the Israeli democracy and the rights, positions, and civil status of parties that did not belong to the political majority at the time.

It should be remembered that remarks and/or moves by senior members of the Israeli political establishment, particularly members of the Knesset, which has been a symbol of Israel’s democracy and its main upholder, have far-reaching implications on the Israeli public stands and attitudes toward democracy, human rights, and political, social, and ethnic minority groups. Surveys that the media carried over the past two years indicate that the Israeli public, mainly Israeli youths, support undemocratic and racist views.

Ahead of the Knesset’s October 2010 Winter Session

The 18th Knesset’s Winter Session 2010-11 will commence on October 10th. Anticipating it, we wish to warn against the troubling trend of infringement against democracy in Israel as expressed through the persistent promotion of anti-democratic bills, decisionmaking process, and conduct by Members of Knesset (MK). The Knesset plenum and committees have recently served as platforms for offensive and anti-democratic discourse.

In July 2010, at the close of the last Knesset Summer Session, The Association for Civil Rights in Israel (ACRI) sent a letter to the prime minister and the Knesset speaker in which we warned about the troubling trend of infringement on democracy, pointing at the important role the Knesset plays in defending democracy, and calling on them to take steps to end that trend.[3]

In the letter, we presented a list of bills promoted in the Knesset to demonstrate this troubling trend. At this time, ahead of the opening of the Winter Session, we wish to offer an update on these bills, some of which were not promoted while others were.

First, we wish to address bills that were listed in the aforementioned letter, and new bills that were submitted since and were not promoted because the Ministerial Legislation Committee rejected them, probably due to lack of agreement among its members (additionally, we list a bill that was passed and thus, naturally, will not be discussed in the upcoming Knesset session).

1. Bill on MK’s Pledge of Allegiance (David Rotem)
According to this bill, all MKs are required to pledge allegiance to the State of Israel as Jewish a democratic state, to its laws, symbols, and national anthem. The bill intends to delegitimize and even practically prevent minority groups from partaking in the Israeli democratic process.
Status: Not promoted due to lack of coalition agreement.

2. Bill Denying the High Court’s Right to Rule on Nationalization (Rotem and another 44 MKs)
This bill, which intends to bypass the High Court of Justice (HCJ), was devised in the wake of HCJ discussions of the Nationalization Act, though the court has not yet ruled against it, but probably may do so in the future.
Status: Not promoted due to lack of coalition agreement.

3. Bill for the Establishment of a Constitution Court (David Rotem)
This bill wishes to restrict the Supreme Court. In a democracy, the separation of powers means that the court must defend the rule of the law and prevent harm to human rights in general and to constitutional rights in particular through legislation, among other things. The proposed bill, which aims at denying the HCJ powers through a series of acts, severely harms the principle of the separation of powers, the protection of human rights, and the democratic system.
Status: Not promoted

4. A series of government-initiated bills that intend to restrict the Knesset’s opposition factions
Seven MKs may split from a Knesset faction to establish a new faction – not one-third of the original faction members; increasing the quorum needed for budget-related bills to 55 MKs; if after a vote of no-confidence is endorsed by a Knesset majority, the new candidate for prime minister should fail to form a coalition-based government, the ousted government should regain its seat; a cabinet member who quits the Knesset shall be replaced by another on his faction list.
Status: passed the first reading; it seems there is no intention to promote further it at this time.

5. Bill or Pardoning Disengagement Offenders (Rivlin et al)
Though legislation that eases punitive measures against persons who exercised their right to political protest is welcome in principle, this particular bill is problematic because it makes a distinction between political and ideological activists of various groups. Instead of promoting a general principles of “going easy” on protesters, this bill was promoted by the current political majority in favor of their electorate alone .[4]
Status: the Knesset passed the bill; the HCJ is currently reading a petition against its inequality.

6. The Cinema bill
According to this bill, the entire crew of a film that seeks public funding will have to pledge allegiance to the State of Israel as Jewish a democratic state, its laws, symbols, etc. This bill infringes on the freedom of expression, protest, and artistic and creative expression – referring only to a specific political, national, and social group.
Status: not promoted.

7. Bill on Denying an MK’s Parliamentary Status (Dani Danon)
According to this bill, the parliamentary status of an MK may be revoked by a majority of 80 MKs if he expressed his opposition Israel’s existence as a Jewish and democratic state, incited to racism, or supported an armed struggle against the State of Israel.
Status: Not approved by the government.
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It may be expected, however, that some of the bills that the Knesset started promoting in the previous session will be actively promoted further in the upcoming session. Following is a list of bills that we believe carry high probability of promotion and even ratification, with such or other wording, and turn into state laws in the coming Winter Session.

1. The Nakba Bill (Alex Miller)
According to this bill, persons marking Nakba Day as a day of mourning for the establishment of the State of Israel will be sentenced to prison. The government endorsed the bill but, in the wake of public protests, its wording was changed to state that persons marking Nakba Day shall be denied public funds. Even this “minimized” version still legally impairs on the freedom of expression, as the political majority bans a certain political view.
Status: The bill passed the first reading and will be discussed by the Knesset Constitution, Law, and Justice Committee ahead of its second and third reading.

2. Anti-Incitement Bill (Zvulun Orlev)
An amendment of the existing act, according to which persons publishing a call that denies the existence of the State of Israel as a Jewish and democratic state shall be arrested. This is an extension of the penal code, which intends to incriminate a political view that another political group does not accept.
Status: Passed the preliminary reading and may be discussed by the Knesset Constitution, Law, and Justice Committee ahead of its first reading.

3. Nationalization, Pledge of Allegiance (David Rotem)
According to this bill, all Israeli citizens will have to pledge allegiance to the State of Israel as Jewish a democratic state, and do a term of military or national service.
Status: The government did not endorse this bill; a ministerial committee rejected it in May 2010, but another attempt was made in July to get the cabinet to endorse it and failed. Additional attempts to promote this bill may be expected.

4. Bill on Admission Committees of Communal Settlements (David Rotem, Israel Hason, Shay Hermesh)
According to this bill, admission committees may turn down candidates for membership with a communal settlement if they “fail to meet the fundamental views of the settlement,” its social fabric, and so on. The bill primarily intends to deny ethnic minorities’ access to Jewish settlements, offering the possibility to reject anyone who does not concur with the settlement committee’s positions, religion, political views, and so on. It should be noted that ACRI filed petition against this bill, which is pending with the HCJ. [5]
Status: The bill passed the first reading and will be discussed by the Knesset Constitution, Law, and Justice Committee ahead of its second and third reading.

5. Bill on Funds from Foreign Political Entities (Elkin et al)
According to the (original version) of this bill, any person or group financed by a foreign nation must register with the party registrar and immediately report each contribution, mark every document in this spirit, and state at the opening of any remark they make that they are funded by a foreign state. The bill names strict penalties too. In practice, the bill intends to delegitimize and impair on the activities of organizations that receive funds from, among other sources, foreign states. Though the Israeli law already makes reporting such donations imperative, this bill wishes to expand the existing law and force certain civil organizations to mark their activities as subversive and illegitimate. Furthermore, the bill practically refers to the activities of specific civil groups, focusing on human rights organizations, implicitly incriminating them when compared with other bodies or individuals funded by foreign non-state entities.[6] It should be noted that we sent a letter to the foreign minister recently warning against the state’s illegitimate intervention in fundraising by Israel’s civil organizations.[7]
Status: An amended version of the bill was endorsed by the Knesset Constitution, Law, and Justice Committee; and will soon be presented for a first reading and then discussed by the committee ahead of its second and third reading.

6. Bill on Infiltration (Government)
The bill stipulates, among other things, that infiltrators based on their country of origin, and persons who assist them (!) may be sentenced to 5 to 7 years in prison. This bill follows the trend of delegitimizing human rights and aid organizations and individuals who help refugees and labor immigrants.
Status: The government pulled back the bill, but key points from it will be introduced through a new bill which, to the best of our knowledge, is currently drafted by the Justice Ministry.[8]

7. Bill Against Boycott (Elkin et al)
According to this bill, persons who initiate, promote, or publish material that might serve as grounds for imposing a boycott against Israel are committing a crime and a civil wrong, and may be ordered to compensate parties economically affected by that boycott, including fixed reparations to the tune of 30,000 shekels, freeing the plaintiffs from the need to prove damages. If the felon is a foreign citizen, he may be banned from entering or doing business with Israel; and if it is a foreign state, Israel may not repay the debts it owes that state, and use the money to compensate offended parties; that state may additionally be banned from conducting business affairs in Israel. And if that is not enough, the above shall apply one year retroactively.

This too is a bill that discriminates against certain political groups in Israel, and is introduced by the political majority in an attempt to neutralize the political opposition it is facing. Primarily, the bill intends to reject legitimate boycotts of products of settlements, and thus severely impairs on a legitimate, legal, and nonviolent protest tool that is internationally accepted (including by Israel), while impairing on the Israeli citizens’ freedom of expression, protest, and congregation.[9]

Status: The bill passed a preliminary reading and the Knesset Constitution, Law, and Justice Committee will discuss it ahead of its first reading. It should be noted that a ministerial committee rejected the chapters pertaining to foreign citizens and states, probably out of consideration for Israel’s foreign relations, and spiked the retroactive clause.

8. Bill on Revoking the Citizenship of Persons Convicted of Terrorism or Espionage (David Rotem)
This bill infringes on the basic rights of Israel’s citizens because when a citizenship (which in itself is a basic right) is denied, a series of basic rights that follow from it are denied too. Furthermore, the Israeli Penal Code already specifies ways of dealing with persons convicted of terrorism or espionage.[10]
Status: The bill was discussed by the Knesset Interior Committee, which will continue discussing it ahead of its first reading.
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On top of these, two additional bills submitted over the past 2 months may be promoted in the coming session:

1. An Associations Bill (ban on filing suits abroad against Israeli politicians or army officers), according to which an association that deals with suits against senior Israeli officials abroad may not be established, or will be shut down.

2. Bill banning wearing veils in public, according to which, it would be illegal to cover one’s face in any public location, under penalty of imprisonment.
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We further wish to stress that there is a tough and intolerant approach toward minority members and stands in the Knesset, as expressed in plenum and committees’ discussions. This trend was particularly visible after the flotilla affair, and included verbal and even physical abuse against MK Zuabi, as well as other Arab MKs, during and after the plenum discussion, when the Knesset discussed the revocation of her parliamentary rights. It should be noted that a petition was filed with the HCJ against that revocation, under the pretext that it was an undemocratic act.

The prevailing atmosphere is not expected to change soon, certainly not during the current loaded period of talks with the Palestinians, terror attacks, rocket firing from Gaza, and the debate over freezing or not freezing construction works in the territories.

Answering our letter, dated July 2010, the Knesset speaker wrote that he too is uncomfortable with some of the bills mentioned in our letter, saying that he feel that “the State of Israel as the state of the Jewish nation, and as a Jewish and democratic state, is strong enough and needs no ‘fortifications’ such as those proposed by the bills you mentioned in your letter. I believe that, often unintentionally, they actually weaken and not bolster it.”[11]

Additional Issues on the Knesset Agenda Ahead of the October 2010 Session

While dealing with anti-democratic laws, we constantly work against legislation that impairs on human rights in all aspects of life.

At this time, we deem it particularly important to address two topical and central issues that carry human-rights implications that the Knesset will discuss in the upcoming session:

The Planning and Housing Reform – A new planning and construction law is about to be introduced that has far-reaching implications that might impact on all aspects of the Israeli residents’ lives. We believe that the currently proposed reform might impair on the public’s participation in related forums and on the protection of public interests. Cooperating with other organizations, we work to amend and correct the suggested reform so as to introduce tools that would ensure appropriate representation, the implementation of the public’s participation, and that various social interests are considered.

The State Budget and the Arrangements Act – Israel’s biannual budget for 2011-12 will be discussed and sealed in the coming months. We feel that the suggested budget contains numerous resolutions and amendments that impair on human rights in a wide range of issues. On behalf of ACRI and in collaboration with additional organizations, we drafted several position papers on issues such as – impairing on the courts’ accessibility; impairing on the rights of the unemployed and seekers of state allowances; harming the laborers’ rights; infringing on the residential rights of inhabitants of public housing, and so on.

Below are a few additional issues (samples only) that we handle and which are expected to be raised in the upcoming Knesset session:

1. A long line of bills dealing with immigration and civil status is expected to be discussed as part of the Arrangements Act, government deliberations ahead of the forming act, the new anti-infiltration bill, and more.

2. An amendment we initiated, banning discrimination in public services that will not allow further selection at club entrances, will be discussed by the Knesset Economic Committee in preparation for a second and third reading.

3. An amendment of the National Health Act, adding a standing mechanism for updating the medications basket that will ratify continuity, which we initiated together with the Knesset Labor Committee, will be discussed soon, having passed the first reading in the previous Knesset.

4. A bill we initiated offering a program to replace the Wisconsin Program, which the Knesset Labor Committee will discuss.

Summary

Anti-democratic tendencies in the Knesset are gaining momentum and, regrettably, the Winter Session is expected to follow on the last session’s trends. We feel, however, that it is important to point out that not all the anti-democratic bills were promoted, and that some of those that were promoted have undergone significant changes that minimized the damage they might cause. The last Knesset session stood out in laying the foundations for anti-democratic legislation, but the vast majority of the legislation processes concerning the aforementioned bills is not yet over. In this respect, the coming session will be a trying time. If the said bills should ripen and turn into state laws, their potential damage to democracy would be realized; but should the Knesset sober up and restrain itself, protecting our democracy against the tyranny of the majority, the Israeli parliament will pass the important test of the democracy’s durability.

Even if the anti-democratic bills – some, or even all, of them – do not eventually become laws – even then, Israeli democracy will have already sustained a serious blow. For the issue has yet another, public and educational, lasting aspect. The winds blowing from the Knesset, through these legislative efforts, are already affecting the public, helping to create a public perception of Israeli Arabs as always suspect, of human rights activists and organizations as enemies of the State, and of basic democratic norms as subject to the majority’s whims. Thus, the activities of many MKs, often supported by leading cabinet members, effectively provide the public with ongoing classes in anti-democracy.

In conclusion, we would like to cite remarks that the Knesset speaker made on 2 August 2010, addressing Foreign Ministry cadets, as published in Haaretz: “Certain MKs address the people’s sentiments, and in doing so create an international image of Israel as an Apartheid state…. [Such MKs] create a wrongful discourse between Jews and Arabs in the Knesset that reflects on the existing conflict in the Israeli society.”[12]

We hope that in the upcoming session, the MKs will sober up and change the parliament’s direction, and that the trends of tyranny of the majority will be replaced by new approaches that will restore essential democratic values and reintroduce the need to protect them into the heart of our democracy. Either way – whether the Knesset mends its ways or not – ACRI will keep guarding democratic values, monitoring the Knesset’s legislative processes, and doing everything it can to help promoting the values of equality, social justice, and human rights.