The government’s decision to declare the Northern Branch of the Islamic Movement illegal last week made waves all over the political sphere, with unforeseeable domestic and global long-term consequences.
But one particular area where the consequences will likely be fought out will be an expected petition to the High Court of Justice to try to invalidate the declaration as unconstitutional.
Will the declaration, which was only put forth after careful vetting by the attorney- general, holdup before a High Court challenge? As with most controversial legal-policy issues, views vary widely about the declaration’s legality and in turn whether the High Court will approve it.
Dr. Adam Shinar, an assistant professor of constitutional law at the Radzyner Law School in the Interdisciplinary Center Herzliya called into question the declaration’s future.
“There are numerous problems with outlawing the northern faction of the Islamic Movement,” Shinar said.
First, he said, “The legal authority itself can be described as draconian. It relies on the Emergency Regulations enacted by the British in 1945. In other words, they were enacted by a non-democratic regime, and now we are using this piece of legislation to the same ends,” despite other measures, like the regular criminal law, being available.
Shinar also objected to the declaration as, “It doesn’t just target particular people in the northern faction, but everyone who is associated with the faction, even if their role has nothing to do with incitement [which is what the government is claiming the faction has done].” Defying the declaration could lead to heavy prison time.
Given that the northern faction has many arms, including social welfare work, Shinar said, “It is extremely problematic that people involved in religious and charity work will be criminalized.”
He added that other problems include potential violations of freedom of speech, association, and religion.
However, he admitted that there are exceptions to these freedoms if a specific threat is dangerous enough to merit an exception. In this case, it is impossible to decide the level of threat without knowing the state’s classified data.
Shinar commented that the faction’s leader, Raed Salah, has been convicted of incitement and has served jail time on multiple occasions. “So, outlawing the entire movement, potentially criminalizing the actions of hundreds of people who are not involved in criminal activity, seems like a blunt instrument to deal with a particular threat.”
Rather, Shinar favored handling the issue with the criminal process and its constitutional protections.
Striking a similar note, Adalah – the Legal Center for Arab Minority Rights in Israel, said, “There is an immense gap between making allegations against the Islamic Movement and using a drastic administrative mechanism to outlaw it.”
Adalah continued, “There are various laws in the Israeli legal system that the state should have gone through...
to determine whether to act against the group. Instead of using these legal frameworks – which would entail conducting investigations and collecting evidence to support the state’s accusations – the state employed the Emergency Regulations that allow it to avoid any proper investigations.”
Framing the declaration as a “cover for a political decision aiming to suppress a legitimate political movement for the Palestinian community in Israel,” Adalah said those political goals were the only explanation for bypassing Israeli laws in favor of colonial British Mandate laws.
Many have also cited the Shin Bet’s (Israel Security Agency) belief that forcing the movement underground would make the country less secure because it would be harder to track as proof that the declaration was not based on security concerns.
Former foreign ministry legal adviser Alan Baker strongly disagreed, arguing for the declaration’s legality before the High Court.
He said that though it was true that Israeli law “provides adequate basis for criminal prosecution of those individuals inciting to violence and carrying out violence,” the movement’s actions are “far more serious and far-reaching than the individuals involved.”
Baker argued, “The orientation, motivation, ideology, funding and activities of the Northern Branch are, first and foremost, as an organization, to incite mass violence and undermine the basic integrity and public safety and order within Israeli society.”
Echoing the theme of using criminal law tools to address the issue, one anonymous expert pointed out that the High Court can only approve the declaration if it finds the “dominant purpose and actions” of the movement illegal.
Honing in on the “dominant purpose” issue, Baker said, “Once the basic purpose, funding and orientation of the organization as a whole are aimed at harming Israel and its public, then the entire organization, its funding, its assets and properties have to be criminalized in order to enable the state to block funding and to act to prevent further mass incitement.”
In contrast, the anonymous expert, while admitting to lacking the state’s classified information, called the declaration likely “populistic and damaging” in that it would only rally support for the movement, making it more mainstream among Israeli-Arabs who would not normally support it.
Still, at the end of the day, the anonymous expert did not expect the High Court to get overly involved, due to general political pressure and the state’s classified information.
Certainly, the classified information could be decisive.
The Justice Ministry last week told The Jerusalem Post that part of its shift in tactics – from indictments to a broad declaration of illegality – was that previous efforts to shut down eight individual entities were unsuccessful because their activities were simply transferred to other entities.
Who is right and what will the High Court decide? The answer may take months or even a year, but the petition will probably be on the way before we know it.