Building A Jewish Democracy

Israel Liberty Monitor

vol. 6 #1 Iyar-May 2011

Is Israel’s Democracy in Danger?

Since Netanyahu and Israel’s right came to power in February 2009, a steady stream of controversial legislative proposals and resolutions have been laid before the Knesset that are intended—at least so their authors claim—to strengthen Israel’s Jewish character.  Opponents of these proposals on the Left claim they compromise freedom of speech and democracy.  How much substance is there to these claims?  Is Israel’s democracy in danger?

The answer is, not really—not yet. 

Some of the legislative proposals laid on the Knesset’s docket would infringe basic liberties.  An example is the proposal to require citizens to take a loyalty oath as a condition of voting in elections.  Democracies may not coerce anyone to express an opinion, and taking away the right to vote is definitely coercion.  This proposal however is supported almost exclusively by Avigdor Lieberman’s “Yisrael Beitenu” party, and is opposed quietly (but firmly) by the Likud.  It has no chance of becoming law. 

Other proposals are important correctives to serious abuses and deserve to become law, such as the Israeli equivalent of the United States’ FARA (Foreign Agent Registration Act), which requires organizations that engage in public activity to report contributions from foreign governments.  That proposal became law at the end of March (see accompanying article).

A similar step was the decision to approve the establishment of a Parliamentary commission of inquiry to investigate the behavior of so-called civil rights organizations that act to delegitimize Israel, e.g. by giving tendentious testimony to the UN’s Goldstone Commission. 

Still other proposals occupy a grey area:  They don’t quite infringe upon fundamental rights, but are bound to make devotees of liberty uncomfortable. 

An example is the law, also adopted at the end of March, permitting small communities of up to 400 families in the Negev and Galil to exclude persons who would change the community’s ethnic and religious profile.  The law is meant to legislate a longstanding Zionist policy that has been challenged recently in the courts:  establishing Jewish communities in peripheral areas of the country, to ensure that no part of it becomes exclusively inhabited by non-Jews.  In application, the law is “color-blind:” It applies equally to Bedouin villages as well as Jewish bedroom communities, and Israeli courts have had occasion to enforce the Bedouin’s right to preserve their communities intact.  But it does permit small communities—admittedly of all ethnic compositions—to discriminate against people they don’t want living next door to them.

The Background:  Asserting Zionism

The source of all these proposals is the sense of many Israelis that groups within Israel, supported by foreign countries without, are abusing Israeli democracy by trying to dismantle the Jewish national state and prevent it from defending itself.  The problem is real.  Certain so-called “civil rights groups” deliberately spread slander meant to delegitimize Israel.  For nearly a decade the official position of the political leadership of Israel’s Arab community has been that Zionism is illegitimate.  Many Israeli Arabs sympathize with Hamas and Hizbullah, and now and again Israeli authorities uncover terrorist cells among Israeli Arabs.

Many legislative proposals represent attempts to reassert classic Zionist policies or curb the activities of groups that seek to damage the Jewish state.  A common reaction by groups that do engage in delegitimizing Israel is to term all such attempts “fascism” and “McCarthyism.”  Often this is simply cheap demagoguery, an attempt to defend the indefensible by applying offensive language to political opponents.

Sometimes, however, the accusation fits.  Really dangerous proposals are those that would curb free speech, or voting rights, or both, such as the loyalty oath law discussed above (an echo of this law was a short-lived proposal by MK Zvulun Orlev of the “Jewish Home” party to criminalize expressing the opinion that Israel is not a democracy!  Rarely has a legislative proposal so clearly been a self-fulfilling prophecy).  The “Nakba Law” (see accompanying article) is a case of an illegitimate legislative proposal that was emended to a grey-area proposal, and passed into law.  This law started as a Yisrael Beitenu proposal to criminalize the expression of regret over Israel’s founding.  It originally provided that people who did so would go to jail.  It was emended to prohibit official bodies from doing so or public funding of private organizations that do so, leaving the essential freedom of individual expression untouched.

The case of legislation requiring so-called civil rights organizations to report funding by foreign governments is very different.  The policy of many so-called “civil rights” organizations in Israel is based not so much on concern for civil rights as upon the political position that Israel’s presence in Judaea and Samaria is wrong.  Highlighting Israeli treatment of the rights of Palestinians is a way of discrediting that presence.  These groups never investigate or condemn Israel’s violations of the rights of its own citizens in these areas.  In recent years the objective of ending Israel’s presence in Judaea and Samaria has come to dominate these groups’ ostensible civil rights agenda.  Thus many of them collaborated with the now-discredited UN-sponsored Goldstone Commission investigating Israeli (but not Hamas) civil rights violations in Operation Cast Lead, with the object of delegitimizing Israel and the IDF and making it impossible for Israel to defend itself against Hamas’ terror.

This kind of activity goes well beyond the defense of civil rights and well beyond speech.  It involves spreading falsehoods intended to damage Israel’s foreign and defense policy and to facilitate the activity of terror organizations.  It is therefore entirely appropriate for such activity to come under public scrutiny.  Israel’s new FARA law requires groups receiving funding from foreign governments to declare such funds.  Thus, when such organizations undertake policies that materially undermine Israel’s security, it is entirely appropriate for the public to know whose policy they pursue.  Similarly, it is entirely appropriate for the Knesset to investigate this activity and set the facts before the public.

The Lieberman Phenomenon

Genuinely dangerous proposals have one factor in common:  They are usually proposed by Avigdor Lieberman and his “Yisrael Beitenu” party.  Lieberman uses legislative proposals to draw support from Israelis whose grasp of the essentials of democracy is weak.  He tries to present himself as a strong leader who will defend the country and brook no nonsense from antizionists.  His party seems to have little grasp of the essentials of democracy, however good its grasp of the manipulation of public opinion.  Fortunately, its approach to democracy is not shared by any other major Israeli party.  Lieberman’s party is a problem.  It is not yet a symptom of a widespread crisis in Israelis’ commitment to democracy.

For advocates of a Jewish democracy, the challenge is to walk a fine line that reflects a genuine and deep appreciation of the nature of democracy.  Delegitimizing the Jewish state, even when done ostensibly in the name of human rights and democracy, is illegitimate.  Curbing free speech and voting rights oversteps the limits of free government and cannot be condoned.  The situation calls for active, vigorous and vocal defense of the principles of a free and democratic society and criticism of legislative proposals that endanger them.  It does not justify impeaching Israel’s character as a democracy.

Attorney General Refuses to Get Serious About Transparency in the State Prosecution

Jerusalem, March 30—Israel’s Attorney General, Yehuda Weinstein, disclosed the membership of a committee to recommend how to create a body to exercise oversight of Israel’s State Prosecution with the object of preventing abuses of ordinary citizens’ civil rights.  If Weinstein has his way, the oversight body will be a toothless rubber-stamp of the State Prosecution’s decisions, analogous to the ineffective bodies that today are supposed to oversee how Israel’s police and judges respect citizens’ rights.

Israel’s State Prosecution, which answers to the Attorney General, has a long history of abusing the rights of citizens who are unfortunate to fall into its hands.  This is particularly true of political protesters.  During the protests against disengagement in 2005, for example, the Deputy Attorney General for Special Affairs, Shai Nitzan, authorized the police to use illegal detention to deter protesters.  Many ordinary citizens have reason to complain about the State Prosecution’s unfairness:  discriminatory behavior in filing indictments, short shrift for due-process rights, and monumental foot-dragging when it comes to prosecuting indictments against criminals whose victims look to the justice system for redress.

Protests against abuse and ineffectiveness in the State Prosecution became so overwhelming that last year Attorney general Weinstein admitted that there was no option but to set up a body to exercise oversight of prosecutors’ conduct.

Apparently Weinstein did not really intend to be taken seriously.  On March 30th he announced the composition of the committee.  It consists of eight senior prosecutors, including Weinstein’s deputy Michael Blass, who has frequently been accused of left-wing political bias, and Raz Nizri, Weinstein’s personal assistant, who acts as a public apologist for senior prosecutors suspected of involving political bias in their professional decisions. 

This committee of insiders is unlikely to recommend the creation of an oversight body with teeth.  They are likely to keep the entire “oversight body” in-house, staffed with prosecutors, who after serving a stint on that body will return to the State Prosecution and be dependent on it for their status and future promotion.

There is ample precedent for this in Israel.  The Justice Ministry’s “Department to Investigate Policemen” is staffed by former policemen who serve for a term and then go back to the police.  Many have long records of citizens’ complaints lodged against them.  The department was found to be ineffective in a 2004 report by the State Comptroller.  Similarly, when legislation was proposed in 2006 to set up an ombudsman for the judiciary, the judges of the Supreme Court exerted pressure on the Knesset to rewrite the law so that the “ombudsman” be a retired judge, appointed by the Chief Justice.

As a result, there is no effective external oversight of Israel’s law enforcement agencies, who are empowered by law to violate citizens’ fundamental liberties.  Nor does it seem likely that Israel’s prosecutors will be subject to effective oversight anytime soon.

Real oversight depends on setting up a body, completely independent of the legal and law-enforcement system, perhaps under the authority of the State Comptroller, with the authority to investigate judges, prosecutors and policemen and initiate disciplinary action and criminal indictments against violators of civil rights and due process.

Weinstein’s announcement provoked protests from the Knesset and calls to place private-sector attorneys and academics on the committee.

“Nakba Law,” Israeli FARA Pass Knesset

The Knesset passed the “Nakba Law” on its third reading on March X, Y days before breaking up for the Passover recess.

The law, originally tabled by Avigdor Lieberman’s Yisrael Beitenu party, makes it illegal for official bodies such as city councils or private organizations that receive government funding to commemorate the “Nakba,” or “catastrophe,” as many Arabs term the founding of the State of Israel.

In its original form the “Nakba Law” (ironically, every mention of the law tends to perpetuate the discourse that the law is supposed to suppress) provided for criminal penalties against private persons who commemorate the “Nakba” in public observances.  As such the proposed law constituted a clear violation of the freedom of speech.  When modified to its present form, which prohibits government funding of commemorative events but leaves individual speech free, the law won the support of a wide spectrum of Israeli lawmakers on the right.  Significantly, many Knesset members in the center and left refused to vote against it, whether from principle or because they feared voters’ reactions.  The law probably represents a broad consensus among Israeli Jews that the State of Israel is not required to fund activities that delegitimize it.

The law drew “no” votes from prominent Likud liberals.  The Likud originally insisted on changing the law from its original format.

Another legislative proposal passed this session was an Israeli equivalent of the United States Foreign Agents Registration Act.  The law requires Israeli-registered non-governmental organizations to report funding by foreign government to the Registrar of Nonprofit Organizations and publicize the fact on their websites and information releases.

At the same time the Knesset passed a law allowing small communities in the Negev and Galil to preserve their social composition and exclude persons not deemed compatible with that composition.

The law codifies a longstanding Israeli practice:  Allowing political movements and cultural groups to set up small communities of like-minded people, excluding those who don’t fit.  The practice dates to the pre-state period and the early years of the state, when the Jewish Yishuv and later the State ofIsrael founded new communities of Jews to populate the state’s peripheral regions and political movements competed for the prestige, lands and budgets on offer.  The policy has been used to set up and preserve the character of religious, secular, wealthy or just plain Jewish communities. 

vol. 6 #1 Iyar-May 2011

Is Israel’s Democracy in Danger?

Since Netanyahu and Israel’s right came to power in February 2009, a steady stream of controversial legislative proposals and resolutions have been laid before the Knesset that are intended—at least so their authors claim—to strengthen Israel’s Jewish character.  Opponents of these proposals on the Left claim they compromise freedom of speech and democracy.  How much substance is there to these claims?  Is Israel’s democracy in danger?

The answer is, not really—not yet. 

Some of the legislative proposals laid on the Knesset’s docket would infringe basic liberties.  An example is the proposal to require citizens to take a loyalty oath as a condition of voting in elections.  Democracies may not coerce anyone to express an opinion, and taking away the right to vote is definitely coercion.  This proposal however is supported almost exclusively by Avigdor Lieberman’s “Yisrael Beitenu” party, and is opposed quietly (but firmly) by the Likud.  It has no chance of becoming law. 

Other proposals are important correctives to serious abuses and deserve to become law, such as the Israeli equivalent of the United States’ FARA (Foreign Agent Registration Act), which requires organizations that engage in public activity to report contributions from foreign governments.  That proposal became law at the end of March (see accompanying article).

A similar step was the decision to approve the establishment of a Parliamentary commission of inquiry to investigate the behavior of so-called civil rights organizations that act to delegitimize Israel, e.g. by giving tendentious testimony to the UN’s Goldstone Commission. 

Still other proposals occupy a grey area:  They don’t quite infringe upon fundamental rights, but are bound to make devotees of liberty uncomfortable. 

An example is the law, also adopted at the end of March, permitting small communities of up to 400 families in the Negev and Galil to exclude persons who would change the community’s ethnic and religious profile.  The law is meant to legislate a longstanding Zionist policy that has been challenged recently in the courts:  establishing Jewish communities in peripheral areas of the country, to ensure that no part of it becomes exclusively inhabited by non-Jews.  In application, the law is “color-blind:” It applies equally to Bedouin villages as well as Jewish bedroom communities, and Israeli courts have had occasion to enforce the Bedouin’s right to preserve their communities intact.  But it does permit small communities—admittedly of all ethnic compositions—to discriminate against people they don’t want living next door to them.

The Background:  Asserting Zionism

The source of all these proposals is the sense of many Israelis that groups within Israel, supported by foreign countries without, are abusing Israeli democracy by trying to dismantle the Jewish national state and prevent it from defending itself.  The problem is real.  Certain so-called “civil rights groups” deliberately spread slander meant to delegitimize Israel.  For nearly a decade the official position of the political leadership of Israel’s Arab community has been that Zionism is illegitimate.  Many Israeli Arabs sympathize with Hamas and Hizbullah, and now and again Israeli authorities uncover terrorist cells among Israeli Arabs.

Many legislative proposals represent attempts to reassert classic Zionist policies or curb the activities of groups that seek to damage the Jewish state.  A common reaction by groups that do engage in delegitimizing Israel is to term all such attempts “fascism” and “McCarthyism.”  Often this is simply cheap demagoguery, an attempt to defend the indefensible by applying offensive language to political opponents.

Sometimes, however, the accusation fits.  Really dangerous proposals are those that would curb free speech, or voting rights, or both, such as the loyalty oath law discussed above (an echo of this law was a short-lived proposal by MK Zvulun Orlev of the “Jewish Home” party to criminalize expressing the opinion that Israel is not a democracy!  Rarely has a legislative proposal so clearly been a self-fulfilling prophecy).  The “Nakba Law” (see accompanying article) is a case of an illegitimate legislative proposal that was emended to a grey-area proposal, and passed into law.  This law started as a Yisrael Beitenu proposal to criminalize the expression of regret over Israel’s founding.  It originally provided that people who did so would go to jail.  It was emended to prohibit official bodies from doing so or public funding of private organizations that do so, leaving the essential freedom of individual expression untouched.

The case of legislation requiring so-called civil rights organizations to report funding by foreign governments is very different.  The policy of many so-called “civil rights” organizations in Israel is based not so much on concern for civil rights as upon the political position that Israel’s presence in Judaea and Samaria is wrong.  Highlighting Israeli treatment of the rights of Palestinians is a way of discrediting that presence.  These groups never investigate or condemn Israel’s violations of the rights of its own citizens in these areas.  In recent years the objective of ending Israel’s presence in Judaea and Samaria has come to dominate these groups’ ostensible civil rights agenda.  Thus many of them collaborated with the now-discredited UN-sponsored Goldstone Commission investigating Israeli (but not Hamas) civil rights violations in Operation Cast Lead, with the object of delegitimizing Israel and the IDF and making it impossible for Israel to defend itself against Hamas’ terror.

This kind of activity goes well beyond the defense of civil rights and well beyond speech.  It involves spreading falsehoods intended to damage Israel’s foreign and defense policy and to facilitate the activity of terror organizations.  It is therefore entirely appropriate for such activity to come under public scrutiny.  Israel’s new FARA law requires groups receiving funding from foreign governments to declare such funds.  Thus, when such organizations undertake policies that materially undermine Israel’s security, it is entirely appropriate for the public to know whose policy they pursue.  Similarly, it is entirely appropriate for the Knesset to investigate this activity and set the facts before the public.

The Lieberman Phenomenon

Genuinely dangerous proposals have one factor in common:  They are usually proposed by Avigdor Lieberman and his “Yisrael Beitenu” party.  Lieberman uses legislative proposals to draw support from Israelis whose grasp of the essentials of democracy is weak.  He tries to present himself as a strong leader who will defend the country and brook no nonsense from antizionists.  His party seems to have little grasp of the essentials of democracy, however good its grasp of the manipulation of public opinion.  Fortunately, its approach to democracy is not shared by any other major Israeli party.  Lieberman’s party is a problem.  It is not yet a symptom of a widespread crisis in Israelis’ commitment to democracy.

For advocates of a Jewish democracy, the challenge is to walk a fine line that reflects a genuine and deep appreciation of the nature of democracy.  Delegitimizing the Jewish state, even when done ostensibly in the name of human rights and democracy, is illegitimate.  Curbing free speech and voting rights oversteps the limits of free government and cannot be condoned.  The situation calls for active, vigorous and vocal defense of the principles of a free and democratic society and criticism of legislative proposals that endanger them.  It does not justify impeaching Israel’s character as a democracy.

Attorney General Refuses to Get Serious About Transparency in the State Prosecution

Jerusalem, March 30—Israel’s Attorney General, Yehuda Weinstein, disclosed the membership of a committee to recommend how to create a body to exercise oversight of Israel’s State Prosecution with the object of preventing abuses of ordinary citizens’ civil rights.  If Weinstein has his way, the oversight body will be a toothless rubber-stamp of the State Prosecution’s decisions, analogous to the ineffective bodies that today are supposed to oversee how Israel’s police and judges respect citizens’ rights.

Israel’s State Prosecution, which answers to the Attorney General, has a long history of abusing the rights of citizens who are unfortunate to fall into its hands.  This is particularly true of political protesters.  During the protests against disengagement in 2005, for example, the Deputy Attorney General for Special Affairs, Shai Nitzan, authorized the police to use illegal detention to deter protesters.  Many ordinary citizens have reason to complain about the State Prosecution’s unfairness:  discriminatory behavior in filing indictments, short shrift for due-process rights, and monumental foot-dragging when it comes to prosecuting indictments against criminals whose victims look to the justice system for redress.

Protests against abuse and ineffectiveness in the State Prosecution became so overwhelming that last year Attorney general Weinstein admitted that there was no option but to set up a body to exercise oversight of prosecutors’ conduct.

Apparently Weinstein did not really intend to be taken seriously.  On March 30th he announced the composition of the committee.  It consists of eight senior prosecutors, including Weinstein’s deputy Michael Blass, who has frequently been accused of left-wing political bias, and Raz Nizri, Weinstein’s personal assistant, who acts as a public apologist for senior prosecutors suspected of involving political bias in their professional decisions. 

This committee of insiders is unlikely to recommend the creation of an oversight body with teeth.  They are likely to keep the entire “oversight body” in-house, staffed with prosecutors, who after serving a stint on that body will return to the State Prosecution and be dependent on it for their status and future promotion.

There is ample precedent for this in Israel.  The Justice Ministry’s “Department to Investigate Policemen” is staffed by former policemen who serve for a term and then go back to the police.  Many have long records of citizens’ complaints lodged against them.  The department was found to be ineffective in a 2004 report by the State Comptroller.  Similarly, when legislation was proposed in 2006 to set up an ombudsman for the judiciary, the judges of the Supreme Court exerted pressure on the Knesset to rewrite the law so that the “ombudsman” be a retired judge, appointed by the Chief Justice.

As a result, there is no effective external oversight of Israel’s law enforcement agencies, who are empowered by law to violate citizens’ fundamental liberties.  Nor does it seem likely that Israel’s prosecutors will be subject to effective oversight anytime soon.

Real oversight depends on setting up a body, completely independent of the legal and law-enforcement system, perhaps under the authority of the State Comptroller, with the authority to investigate judges, prosecutors and policemen and initiate disciplinary action and criminal indictments against violators of civil rights and due process.

Weinstein’s announcement provoked protests from the Knesset and calls to place private-sector attorneys and academics on the committee.

“Nakba Law,” Israeli FARA Pass Knesset

The Knesset passed the “Nakba Law” on its third reading on March X, Y days before breaking up for the Passover recess.

The law, originally tabled by Avigdor Lieberman’s Yisrael Beitenu party, makes it illegal for official bodies such as city councils or private organizations that receive government funding to commemorate the “Nakba,” or “catastrophe,” as many Arabs term the founding of the State of Israel.

In its original form the “Nakba Law” (ironically, every mention of the law tends to perpetuate the discourse that the law is supposed to suppress) provided for criminal penalties against private persons who commemorate the “Nakba” in public observances.  As such the proposed law constituted a clear violation of the freedom of speech.  When modified to its present form, which prohibits government funding of commemorative events but leaves individual speech free, the law won the support of a wide spectrum of Israeli lawmakers on the right.  Significantly, many Knesset members in the center and left refused to vote against it, whether from principle or because they feared voters’ reactions.  The law probably represents a broad consensus among Israeli Jews that the State of Israel is not required to fund activities that delegitimize it.

The law drew “no” votes from prominent Likud liberals.  The Likud originally insisted on changing the law from its original format.

Another legislative proposal passed this session was an Israeli equivalent of the United States Foreign Agents Registration Act.  The law requires Israeli-registered non-governmental organizations to report funding by foreign government to the Registrar of Nonprofit Organizations and publicize the fact on their websites and information releases.

At the same time the Knesset passed a law allowing small communities in the Negev and Galil to preserve their social composition and exclude persons not deemed compatible with that composition.

The law codifies a longstanding Israeli practice:  Allowing political movements and cultural groups to set up small communities of like-minded people, excluding those who don’t fit.  The practice dates to the pre-state period and the early years of the state, when the Jewish Yishuv and later the State ofIsrael founded new communities of Jews to populate the state’s peripheral regions and political movements competed for the prestige, lands and budgets on offer.  The policy has been used to set up and preserve the character of religious, secular, wealthy or just plain Jewish communities. 

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