(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Interior Minister Arye Deri caused quite a stir last week by introducing a bill to revoke the British Mandate-era Press Ordinance, which was immediately hailed as an historic move to enhance freedom of the press.
If it becomes law, the measure would cancel the requirement to obtain a government-issued license if someone wanted to publish a new newspaper. The measure would not apply to broadcast or online journalism.
“Canceling the licensing process will allow more newspapers to be opened, will add to the democratic and pluralistic process and will eradicate the antiquated and anachronistic process, which has become obsolete,” said Deri, who is also chairman of the ultra-Orthodox Shas party.
While Deri’s support for the freedom of the press is certainly laudable, it would only be natural to question whether he might have some ulterior motive, given his previous prison sentence for abusing the same ministerial position. Indeed, last summer, before he was sworn in for a second controversial term as interior minister, he complained that the Shas party newspaper, Yom Leyom, no longer represented his views, and his office announced that Shas would start a “new, high-quality newspaper.”
The timing of Deri’s bill was also not totally altruistic, as the Association for Civil Rights in Israel noted, since he made it shortly before the deadline to respond to ACRI’s petition to the High Court of Justice to cancel the Press Ordinance. ACRI’s petition also sought the revocation of the government’s authority to close a newspaper, which it said “is an even greater threat to freedom of the press than the license requirement.”
So if Deri’s bill passes, his Shas party will be able to establish another newspaper without government interference, as will anyone else. On the face of it, this would be a winwin for Israeli democracy – but only a very minor one and much less than the “historic” move so heralded by the freedom-loving public.
The question that begs to be asked is whether this timid revocation of a British Mandatory law will be the first swallow heralding a spring of other freedoms, or just fade into the legal morass Israel has been mired in since independence.
As legal scholar Roei Amit writes in his essay “The Paradox of the Law,” in Paradoxes and Inconsistencies in the Law (Oren Perez and Gunther Teubner, editors, 2005): “The existing Defense Emergency Regulations issued in 1945 by the British Mandatory government are still valid (through their adoption by the State of Israel) and authorize, among other things, administrative detentions, deportations, and house demolitions. The proclamation of an “exceptional” and “provisional” legal state of emergency has been renewed regularly [by the Knesset] since 1948, and hence has become a sort of regular, basic norm.”
Its rules are set in the Basic Law: The Government, Articles 49-50, amendments of 1992 and 2001.
The regulations form an essential component of the legal system in Judea and Samaria, permitting the establishment of military tribunals to try Palestinian civilians, the prohibition of the publication of books and newspapers, house demolitions, administrative detention for indefinite periods without trial, extensive military powers of search and seizure, the sealing off of territories and the imposition of curfews.
Where did such regulations come from and why are they still in effect in 2016? They were the basis of the military government imposed on Israeli Arabs from 1950 to 1966.
After the Six Day War, Israel announced that existing domestic law in the territories would be continued under the Mandatory Defense (Emergency) Regulations. The justification was that, since they had not been revoked during the Jordanian or Egyptian administration of those areas, they thus remained in force since 1945. The Supreme Court upheld this position.
On May 21, 1948, a state of emergency was proclaimed and emergency regulations were formulated for the state of war that immediately engulfed Israel. The regulations were at first valid for three months, after which they were extended by the State Provisional Council and then by the Knesset. But 68 years later, the emergency is still in force.
As the late deputy-president of the Supreme Court justice Mishael Cheshin wrote: “It does not stand to reason that a sovereign state, having its own set of laws and its own legal system, should continue to be subjected to the rule of a foreign legal system.”