Legally challenged

New Knesset legislation is attempting to change the democratic character of the state.

By EETTA PRINCE-GIBSON
Knesset vote 311 (photo credit: Marc Israel Sellem)
Knesset vote 311
(photo credit: Marc Israel Sellem)
Their arms around each other, the dozen or so members of the Knesset smiled self-consciously for the camera. at the urging of a freelance photojournalist, they stood posed in a deceptive picture of unity on the first day of the winter session of the Knesset, October 31.
The irony was obvious. From the beginning it was clear that this would be one of the most contentious sessions in memory, as parties fought with each other and among themselves, and as the Knesset itself fought with the public that it was elected to represent and the democratic principles it was intended to uphold.
The Knesset had recessed in the early summer after a session filled with dozens of legislative initiatives aimed at reining in what their proponents claimed were the irresponsible actions of non-governmental organizations, the press, and the Supreme Court. Most initiatives were proposed by MKs from the right-wing Yisrael Beiteinu party, headed by Foreign Minister Avigdor Lieberman; others were proposed by MKs from other right-wing parties, and a few had been brought up by members of the ostensibly centrist Kadima party headed by former foreign minister Tzipi Livni.
Then, over the summer, Israeli sentiment surged in a wave of protests demanding social and economic change. In perhaps the largest demonstration in the country’s history, citizens from almost all sectors and strata demanded that their leaders adopt a more social agenda, decrease social gaps, curb avaricious capitalism and provide a decent standard of living for all, including affordable housing, equal educational opportunities and accessible medical and welfare services. MKs flocked to support the protesters, adopting the slogans calling for social justice as their own and promising to change the political agenda.
Thus, it seemed only natural that the Knesset would change gears and set course in a new direction. Yet, within days of reconvening, the Knesset summarily rejected a series of socially-oriented legislative proposals. The tent camps had been originally established over the call for affordable housing for all, yet the Knesset rejected bills proposing affordable housing, the construction of public housing, aid for those defaulting on home mortgage payments, and the regulation of the rental market.
Housing Minister Ariel Atias, a member of Shas, the Mizrahi Haredi party that ostensibly represents the poorer sectors of the Jewish population, voted against the initiatives along with almost the entire coalition. even more significantly, the Knesset rejected a proposal, brought by MK Amir Peretz (Labor), Zahava Galon (Meretz) and Nitzan Horowitz (Meretz) to enact a Basic Law: Social Rights, which represents an attempt to anchor the right to a dignified existence as a basic right.
Only Knesset Speaker Reuven Rivlin, a Likud stalwart, bucked the party line and voted for the bill.
Not only did the Knesset ignore the demands for social justice coming from within, it also seemed to ignore the threats posed by Iran and its escalating nuclearization. Instead, within days, the right-wing majority in the Knesset proved that it was not above using aggressive tactics to push through a wave of legislation that, according even to some members of the Likud, could drown Israeli democracy.
The Supreme Court has been the first and foremost target of the Right (see “The Supreme Court under Fire,” page 46). By its inherent nature as the protector of the rule of law, the court has always been a thorn in the side of governments and MKs, especially those from the anti-liberal right wing. The tension between the legislative branch and the judicial and executive branches became even more heated during the period 1995–2006, when Aharon Barak, a strong proponent of judicial activism, served as president.
The Supreme Court has repeatedly ruled against the state in support of the rights of individuals, upholding, for example, the right of Arab citizens to purchase homes in Jewish communities on land belonging to the Jewish National Fund and developed by the Jewish Agency for Israel. The court also ruled that the state must evacuate and demolish settlements in the West Bank that had been established on land privately owned by Palestinians, most notably the illegal settlements of Migron and Givat Assaf.
In the near future, however, fully one-third of the court justices will retire, providing the Right with an unusual opportunity to stack the court in its favor.
In an effort to do just that, and with the obvious hope that a differently-oriented court might reverse itself on some of the rulings considered offensive to the Right, MKs from the Likud and Yisrael Beiteinu, with some support from MKs from Kadima, have launched a three-pronged legislative offensive against the court.
The first prong involves an attempt to alter the number of Bar Association representatives serving on the committee that appoints the judges. Given the current constellation of personalities, the proposal is clearly an effort to increase the power held by Justice Minister Yaakov Neeman.
The second prong, which seems merely a technical issue, calls for a change in the maximum age limit for serving as president of the court. A bill, sponsored by MK Yaakov Katz (National Union), which has passed its first reading, would enable Judge Asher Grunis, who is one month too old to be appointed president, to take up the mantle. Grunis, like Neeman, is known to be a strong opponent of judicial activism.
The third and most significant prong includes a proposal to make the appointment of Supreme Court justices conditional on a hearing before the Knesset Constitutional Committee. Such a procedure does exist in some countries in the West, most notably in the US. However, in a parliamentary democracy such as Israel, separation between the judicial and executive branches of government is not sufficiently safeguarded, so the independence of the judicial branch becomes even more crucial.
These proposals, taken together, appear to intentionally undermine the independence of the judicial branch.
To its supporters, the court represents the last defense of democratic morality and individual and human rights. And they are horrified by the thought that the Supreme Court justices would have to be approved by the Knesset Constitutional Committee headed by hard-line right-wing MK David Rotem of Yisrael Beiteinu.
MK Katz, the initiator of the “Grunis bill,” made his intentions against the present composition of the Supreme Court very clear. In a newsletter entitled, “Our Land of Israel,” widely disseminated in synagogues and other venues associated with the National Zionist movement, Katz writes that the goal of this and similar bills is “to take the Supreme Court out of the hands of a small, pathetic group of the Tel Aviv elite.” He also calls the supporters of the current Supreme Court, “a secular Neturei Karta [an anti-Zionist Haredi group], that broadcasts its lack of love for the State of Israel, is loyal to the laws of the goyim [non-Jews] and tries to control the state through the power of the judicial dictatorship.”
Contending that the court is lenient with Arabs and strict with Jews, Katz writes that the proposed laws are “intended to return the control over the Supreme Court to the …natural, basic laws of the people of Israel, so that the Knesset will return to represent the Israeli public, who elected as its representatives people who have committed themselves to protect the Land of Israel, the Torah of Israel and the people of Israel…” A second crop of propos ed laws intends to change the delicate balance between the Jewish component of Israel, which refers to the particularity of Jewish nationhood, and the democratic component, which includes universal norms of equality.
The most prominent of these proposed laws is the “Basic Law: Israel and the National State of the Jewish People,” submitted by former head of the Israel Security Agency (Shin Bet) and former internal security minister, Avi Dichter, a Kadima MK.
Among its many provisions, the law makes Israel’s definition as a democratic state subordinate to its role as the Jewish state, necessitates a declaration of loyalty to Israel as a “Jewish, Zionist and democratic state, to its symbols and its values” as a precondition for granting citizenship and that Arabic would no longer be an official language of the state.
Although the most prominent, because of its comprehensiveness and because it has been proposed by a member of the ostensibly liberal Kadima party, this series of bills is only one of many. Most of this legislation was proposed by Yisrael Beiteinu, but also by coalition whip Zeev Elkin, Deputy Knesset Speaker Danny Danon and Yariv Levin, all from the Likud, as well as by Kadima MKs.
Other proposals, in various stages of preparation or reading, include a law that would revoke the citizenship of anyone who acts against the “Jewish people or the State of Israel as the state of the Jewish people; a law enabling libel suits to be brought against people who slander the State of Israel; and a law that would mandate that indirect student subsidies (presumably including research grants) only be provided to universities for students who completed their army or national service (or were found unfit to do so.) And this is just a partial list.
Mike Prashker, founding director of Merchavim, an NGO dedicated to pluralism and equality in Israeli society, tells The Report that these attempts to increase the Jewish character of the state must be seen within the context of an increase in the incidence of “price tag” attacks and other violence against Arabs and left-wing Jews as well as a growing racism and xenophobia.
“This is the time that the government should be reinforcing the principles of democracy, not weakening them,” he says.And former defense minister Moshe Arens, known for his right-wing stance, wrote in his regular column in the daily “Haaretz,” “It is difficult to fathom what got into the heads of some legislators… Why demonstrate such lack of respect for our Arab citizens at a time when the most important challenge facing Israel is to integrate its Arab citizens into Israeli society and to make them feel at home in Israel?”
As detailed in this issue of The Report (see “Fractious Funding,” page 10), NGO human rights organizations have been a third main target of the legislative attack.
According to their detractors, these organizations, funded largely by foreign bodies, are acting against the best interests of the State of Israel. One bill, proposed by MK Ofir Akunis (Likud) would limit donations from foreign state entities to Israeli “political associations” (the term they use for these NGOs) to no more than 20,000 shekels (about $5,500) per year. A second bill, proposed by MK Fania Kirshenbaum (Yisrael Beiteinu) would subject most of these organizations to a 45 percent income tax rate.
The bills were approved on November 13 by the government’s Ministerial Committee on Legislation. However, two of the dissenting ministers, Benny Begin and Dan Meridor, lodged an appeal after the vote. The ensuing bureaucratic procedure has enabled Prime Minister Benjamin Netanyahu to put off the matter indefinitely and thus prevent the bills from being brought to the Knesset for their initial readings.
It is not surprising that Netanyahu has delayed the bills, since they disturbed not only the more stalwart members of his own party, but also drew overt condemnations from foreign governments and from American Jewish organizations, including not only the New Israel Fund and J Street, but also organizations usually considered to be centrist or even right of center, such as the Anti-Defamation League and the American Jewish Congress.
In presenting the bills, Elkin emphasizes that his motivation is democratic, because, he says, intervention by foreign states is “patently undemocratic and contravenes the will of the people.”
In an extended telephone interview, Kirshenbaum tells The Report that the 45 percent tax rate would be applied only to organizations that have not been approved by the government to receive public funds.
By definition, however, most human rights NGOs, which exist to serve as watchdogs over the executive and legislative branches of government, cannot receive government funding. In that case, she says, “they should have to pay,” and if the exorbitant tax rate puts them out of existence, “so much the better.”
She insists that her bill does not distinguish between right and left, but throughout the interview, she cites only left of center and left-wing organizations and human rights groups opposed to the occupation of the West Bank, including the Geneva Initiative, B’Tselem, and the Association for Civil Rights in Israel.
In response to Netanyahu’s decision to delay the proposals indefinitely, Kirshenbaum asserts that if the government does not want to protect its citizens from foreign intervention, then Yisrael Beiteinu will take it upon itself “to protect Israeli democracy. If the government doesn’t approve the bill within two weeks, we will bring it to the Knesset as a private bill” – a procedure that does not require government approval.
However, on November 28, the government rejected a proposal by Yariv Levin and Danny Danon to limit the right of human rights organizations to petition the High Court of Justice regarding human rights abuses in Israel and the West Bank.
The Knesset’s attempts to limit freedom of the press are also causing alarm.
An amendment to the libel law would make it possible to sue a newspaper or a journalist for libel, not only for compensation for tangible damage caused by the publication, but for 300,000 shekels (over $82,000) without having to prove damages. The law, critics say, would terrorize the media into compliance, out of fear of the threat of libel suits since journalists, and especially their employers, will be less willing to risk exposing public corruption, crimes and failures by political leaders and so forth. The bill passed its first hurdle in the Knesset November 21, passing the first reading 42-31 despite vocal resistance from both opposition and coalition members.
This new law adds to already existing limitations on the country’s once vibrant media.
The commercial TV Channel 10 station may soon stop broadcasting because of debts of over 50 million shekels (roughly $13.8 million), which the government is unwilling to refinance. Much of the media is dominated by financial and political interests. The mass circulation free newspaper “Israel Today,” owned by American Jewish tycoon Sheldon Adelson, maintains an overt pro-Netanyahu stance.
Eva Berger, dean of the School of Media Studies at the College of Management in Rishon Letzion tells The Report that she believes that the right wing in the Knesset, supported by the government and the prime minister, clearly intends to put constraints on the press. She places the recent efforts against the media in the context of the Boycott Law passed earlier this year, which states that anyone who calls for an academic, cultural or economic boycott of the State of Israel, or any of its institutions or areas, can be sued for damages, even without proof of harm. This provides legal support for the government’s policies in the territories.
Berger recently resigned as a member of the Government Press Office’s Advisory Council in protest of what she refers to as the attempt to create a compliant, docile press.
“An active media is crucial to democracy, but the government does not want the press interfering in and criticizing its actions. This government does not really support, or even understand, democracy,” Berger says.
Even a self-identified right-wing columnist Amnon Lord, a senior editor at the “Makor Rishon” daily, writes in his regular column, “I think that the media, in its current state, adds to the problems of Israeli democracy rather than solves them. But this law will damage freedom of thought and freedom of expression and will add another burden to the impediments already dragging journalists down…” Addressing the Knesset plenum, former IDF chief of staff and Chairman of the Knesset Foreign Affairs and Security Committee Shaul Mofaz (Kadima) warned that “the horrible world of George Orwell is becoming a reality. Netanyahu’s thought-police, with big brother Lieberman and [Defense Minister Ehud] Barak are eating away at the rule of law.”
But MK Einat Wilf, from the Atzmaʼut party (the party led by Barak, which broke away from Labor in May and has remained in the government), tells The Report that while she finds some of the legislation “distasteful,” she believes that the “noise about the demise of democracy is exaggerated.
True, the majority is sometimes trying to abuse its power, but it isn’t very successful.”
Wilf continues, “There is a cluster of legislation by some MKs that, if it were up to me, I would not initiate or promote. But I think we have to look at the legislation on a case by case basis and not try to group it all together. Grouping it together makes the situation look much worse than it is.”
Yet it is this “grouping together” that is the most disturbing feature, because collectively the proposals reflect a comprehensive worldview that gives greater importance to ethnicity than to individual identity, preferring tribal collectivism over Western liberalism.
It is a worldview that borders closely on Fascism, Israel Prize recipient, Hebrew University history professor and one of the world’s leading experts on Fascism, Zeev Sternhell tells The Report. “At this time, some leaders, like Netanyahu, are only holding back because they are worried about the international response and Israel’s increasing isolation. But they are not worried about themselves, about the open, cynical manner in which they are destroying democracy. They do not seem to realize that the rule of the majority loses its legitimacy the moment it harms human rights… Democracy can bring about its own demise, as we know from the history of the 20th century.”
In simplistically and cynically defining democracy as majority rule, Sternhell says, the legislators are highlighting the fact that Israeli democracy, still fairly new and fragile, has no tradition of “it is just not done” and little understanding that even legislative activity conducted within the framework of the law has to be in accordance with the spirit of democracy and enlightened liberalism.
Furthermore, he notes, competing sides in a democracy usually restrain themselves from a “what goes around, comes around” perspective. “In a true democracy, the majority limits itself because it knows that tomorrow it might be the minority. And so, if only based on this balance, both sides maintain a respect for common boundaries that cannot be crossed.”
The current political constellation has also loosed these restraints. The Likud, challenged from the center by Kadima, is clearly competing with Lieberman and Yisrael Beiteinu for the right-wing constituency.
In this regard, coalition whip Elkin (Likud) has been playing, and can be expected to continue to play, a key role.
Upon his arrival in Israel, Elkin, who had been an activist in Jewish and Zionist politics in his native Ukraine and lives in the West Bank settlement of Alon Shvut, was courted by then-prime minister Ariel Sharon. Looking for a settler to offset the criticism of his disengagement policy, Sharon brought Elkin into Kadima, the centrist party he created after abandoning the Likud. But Elkin quickly left Kadima and found a home on the right-wing edges of the Likud, where he has joined some of the young mavericks who believe that they must pull the party rightward in order to bolster their patriotic credentials and assure their political futures.
Throughout, Netanyahu continues to vacillate, declaring his opposition to some of the more radical bills, such as an initial version of the laws mandating hearings for judges, and support for others like the defamation bill, but unwilling to take any overt stand that would bring him into conflict with the more extreme members of his own party.
Nor is the largest opposition party, Kadima, able to take a clear stand. Party head Livni regularly denounces the legislative proposals and what she refers to as the undermining of Israeli democracy, yet she is too politically weak to rein in some of her own party members, such as Dichter, and Meir Sheetrit, co-sponsor of the libel bill.
Likud stalwarts such as Rivlin, Meridor and Begin are appalled. They grew up guided by the liberal principles of revisionist leader Zeev Jabotinsky and his deep belief in the rights of the individual. Meridor has repeatedly referred to the legislation as very dangerous, hence his and Begin’s appeal against the government’s decision regarding funding for NGOs.
Foreign Minister Lieberman, leader of the seemingly unstoppable right-wing assault, highlighted the differences between his party and the Likud by calling Meridor a feinschmecker, a derogatory Yiddish term referring to an effete elitist.
And, referring clearly to Begin, Meridor and Rivlin, Danon, speaking at a party meeting, declared, “There are leftist collaborators in the Likud, who are preventing the ‘National Camp’ from enacting its legislative proposals… We are the true representatives of the Likud party.”