Anti-Democratic Legislation in the 18th Knesset (2009–2013)

Introduction

During the term of the 18th Knesset (2009–2013), we witnessed a phenomenon that is unusual in Israeli politics. During this term, the Knesset debated an endless series of bills whose common thread was a very strong tendency—in both intent and result—to infringe on democratic values. Few of these bills were ever passed, in one version or another, and enacted into law. During those years, the researchers at the Israel Democracy Institute were actively engaged in identifying, studying, and attempting to counter this phenomenon. In the present volume, we review the general phenomenon of what we call “anti-democratic legislation.” We offer examples of such legislation along with the position papers, incorporating our criticisms of the bills, which were submitted to decision-makers at the time, and examine the reasons for the outbreak of such a wave of legislation at the time.

1. Democracy and “Anti-Democratic Legislation”

The term “anti-democratic legislation” is controversial in and of itself. For how can a law, enacted in accordance with democratic rules of procedure and passed with the required majority on every reading by a legislature that was chosen in democratic elections and by a democratic majority, be anti-democratic? People often raise the counter-argument that opposition to such a law is anti-democratic. The contention, sounded increasingly in our society, is that democracy is majority rule and nothing more. Those who oppose such legislation are accused of being “anti-democratic” because they seek to thwart the will of the majority. According to this line of argument, the Government was formed on the basis of the Knesset elections, and once in office can do anything it wishes. If we accept this assumption, it is indeed the case that none of the bills introduced or laws enacted is anti-democratic.

But this thin and narrow definition of democracy no longer passes muster in a modern democracy. How can there be democracy without human and civil rights? Without freedom of expression? Can there be a democracy without a separation of powers and a system of checks and balances? Can a system that holds democratic elections but in which the majority tramples the rights of the minority really be called “democratic”?

All agree that a regime cannot be called democratic if it does not satisfy the basic requirements of formal democracy. Essential conditions for democracy are, accordingly: regular, free, and fair elections; compliance with the principle of majority rule; and the existence of certain procedures for passing legislation and resolving conflicts. Even this formal dimension of democracy cannot exist without a number of fundamental freedoms—those same freedoms that are needed for elections to be meaningful and for citizens to provide rational feedback to the government between elections.

Even the thin and formalistic definition of democracy grants prime importance to some of the classic civil and human rights: the right to vote and be elected, freedom of religion and opinion, freedom of speech and nonviolent political assembly, the right of public criticism and protest, and freedom of information. In the absence of a reasonable ability to exercise all these rights and freedoms, real democracy cannot exist, even in the narrow sense: the freedom to persuade accompanied by agreement to abide by the majority decision. [1] 

Without a basis of information about matters of a prerequisite for forming political opinions—and without free competition between the various viewpoints and positions, the majority cannot enjoy public legitimacy and cannot compel the minority to respect decisions with which it does not agree. In the absence of fair play, even the formal dimension of democracy collapses.

We must remember that the formal dimension of democracy can lead to results that are absurd (from the perspective of a modern democracy); for example, laws that forbid members of a particular minority group to board a bus or eat in a restaurant. Let us assume that, after a free and fair election, such a law passes all the requisite parliamentary stages, in conditions that ensure freedom of expression, and receives the support of the majority. Would we still view this country as democratic? When a fundamentalist religious party takes power through the popular democratic process and uses legislation enacted in accordance with all the rules to repress women or members of other religions, is this democracy? To avoid these absurd situations, we must turn to substantive democracy.

In a “substantive democracy,” the individual takes precedence over the state. The principle that every individual has rights equal to those enjoyed by every other member of the society is a fundamental element of society. In the words of Menachem Begin, “We do not accept the semi-official view expressed during the Third Knesset’s term, wherein the state grants rights and is entitled to rescind them. We believe that there are human rights that precede the human form of life called a state.” [2] 

Because all citizens have an equal right to life, human dignity, and liberty, they are entitled to participate in public and political life and vote for the people who will balance, in their name and on their behalf, among conflicting rights and between rights and the public interest. The formal aspect of democracy is derived from this fundamental view of the individual’s place and status, but it does not exhaust the essence of democracy. To quote Ruth Gavison:

According to the substantive view of democracy, every infringement of equality infringes on the values that justify democracy in the first place, the same values that form the basis for our willingness to accept the majority’s decision. Substantive democracy may, therefore, seek to limit the formal democracy within it in order not to infringe on those civil rights (primarily those of minorities) whose protection would not be ensured by the standard principle of majority rule. In a substantive democracy, the safeguarding of human rights is a fundamental value that can even outweigh “majority rule." [3] 

Even the legislature chosen in free elections is not all-powerful, and the authority with which it has been invested by the sovereign and the people is neither unlimited nor arbitrary. The legislature’s power is limited by basic principles that prevent arbitrariness, such as the principle that a law must be normative and general rather than personal, or the principle that laws are prospective and not retroactive. These rules are meant to safeguard citizens from abusive application of the law. They are also intended to ensure that democracy remains a system of government in which citizens can place their confidence and trust. A law that is nothing more than an expression of power and that has no connection with justice is not worthy of the name. A system of government that permits such legislation will not gain the support of the citizens who must submit to it—and rightly so.

The underlying view of this book is, therefore, that of substantive democracy, and reflects the system that exists in Israel. The Proclamation of Independence; the Supreme Court rulings in the State’s early years that fashioned a judicial bill of rights; the new Basic Laws, enacted in 1992, that enshrined human rights; and more than twenty years of court rulings that refer to them—all these demonstrate that Israel is a substantive democracy. The claim that a law ipso facto possesses democratic validity simply because it was properly enacted is unfounded. The view that the meaning of Israeli democracy is the unfettered ability of the parliamentary majority to do as it pleases is revolutionary. It would demolish the basis of the system of government that has evolved in Israel since its founding, with a great deal of effort, and that is one of the country’s greatest and most important achievements—its substantive democracy. Although, in the absence of a constitution, it remains imperfect, it is without a doubt substantive in nature.

The systematic effort to crush the substantive foundations of Israeli democracy and leave only its shell intact is extremely dangerous. All those concerned with the welfare of Israeli citizens and of the state itself must oppose it with all their might.

2. Several Categories of Anti-Democratic Legislation

Anti-democratic legislation can be divided into four main categories, as a function of the democratic value infringed—although some legislative initiatives overlap two categories and could be listed under both of them.

• Laws that infringe equality, especially that of the Arab citizens of Israel. This category includes a series of “loyalty tests” that would require a declaration of loyalty to the State of Israel as a Jewish and democratic state at various junctures in the life of an Israeli citizen: naturalization, swearing-in as a civil servant or Knesset member, receiving various licenses, obtaining government funding for film productions, and so on. The demand that non-Jewish citizens swear loyalty to Israel as a “Jewish state” wounds them grievously and represents an attempt to condemn them as disloyal. Another item in this category is the Acceptance Committees Law, whose entire purpose is to exclude Arab citizens from moving into small communities whose residents are Jews, although its negative ramifications are broader. Other proposals in this category include the proposed Basic Law: Israel as the Nation State of the Jewish People and the Mosque Bill (which would place restrictions on the Muslim call to prayer). What all these have in common is that they infringe on the right to equality and dignity of the Arab citizens of Israel (and sometimes, as with the Acceptance Committees Law, of other disadvantaged groups as well). In most cases, these bills target Arabs deliberately and intentionally (even if camouflaged by another formal purpose) and not as a byproduct of some other and worthy end.
• Legislation that infringes on the freedom of expression, assembly, and protest. What is common to the laws and bills in this group is their deliberate limitation of freedom of speech, especially the most cardinal and protected kind—the right of political expression. These legislative initiatives would stifle criticism of the regime and delegitimize unpopular anti-government positions, as part of a larger attempt to banish them from the public discourse. The classic example here is the Anti-Boycott Law, which stipulates that calling for a boycott against Israel is a civil wrong. Under that law, a “boycott of the State of Israel” is also an economic, cultural, or academic boycott of persons because of their ties to “an area under Israeli control”—in other words, a boycott of an institution in Judea and Samaria or of goods manufactured there. In addition to the civil wrong it defines (with no need to prove damages), the law also prescribes harsh administrative penalties that can be invoked against public institutions that violate its provisions. This law callously infringes on the freedom of political speech, especially as regards the most central and controversial question of all—the future of the occupied territories. This cluster also includes the “Nakba Law,” which imposes financial penalties on State-funded entities that hold events that mark the day of Israel’s establishment as a time of mourning. This law, too, aims to silence, marginalize, and delegitimize the Palestinian narrative by means of the collective economic punishment of public entities and authorities.
  
  This category also includes the bills that would limit the activities of human-rights organizations and call their very existence into question. These bills would employ mechanisms such as drying up organizations’ funding (by prohibiting grants from a foreign governmental entity), prohibiting the establishment of nonprofit organizations that question Israel’s Jewish nature, or denying them access to the courts. Here, too, the common goal of these proposals is to curtail these organizations’ activity and delegitimize their opinions in order to prevent criticism of the regime.
• Personal laws and bills and those that are time- or context-dependent or a matter of political expediency. This type of legislation exploits the legislature’s authority in pursuit of particular political ends. Two bills—one of which passed—were intended to derail the Knesset candidacy of Yair Lapid. The first enacted a cooling-off period before senior journalists could enter the Knesset; this forced Lapid to step down from his position as anchor of Ulpan Shishi (Friday Studio) on Channel 2 and establish a political movement. The second tried to punish Lapid for founding a political “movement” but not yet declaring it a political “party.” Its sponsors wanted to extend the reporting and financing guidelines that apply to political parties to pre-party entities for a period of two years before the next elections. These initiatives reflect a politics-as-cartel view, in which those already on board the political bus can use the power of the law to prevent or harass those who now want to enter political life.
• Laws related to the courts in general and especially to the Supreme Court. These bills would trim back the authority of the Supreme Court in various ways, with the focus on reducing the Court’s power to review Knesset legislation. Their sponsors pursue their aims by various means: explicitly eliminating the right of judicial review; placing certain issues—including those related to defense and identity and those with budgetary significance—outside its bounds; or granting the legislature the power to override a ruling that strikes down a law and reinstate the legislation. Some bills would meddle with the process for appointing judges and effectively politicize it. One bill went even further in its anti-democratic nature: it would have retroactively annulled the selection of the two Israel Bar Association representatives to the Judicial Appointments Committee some three months after their appointment, only because they were a thorn in the side of the coalition. These proposals—besides wounding the judicial branch and thereby threatening the separation of powers, which is so critical to democracy—were actually aimed at the very values the Supreme Court is meant to safeguard: human and minority rights. The Supreme Court is the minority’s ultimate shelter against the tyranny of the majority, and the legislature is well aware of this fact. So this effort complements the legislative maneuvers that fall into the other categories, because the courts are the only institution that can protect minorities and the citizens whose rights would be infringed upon by the proposed legislation. This process has a dual purpose: First, it would strip the courts of their power of judicial review of Knesset legislation. Second, even if the bills do not pass, the very attempt sends a warning to the courts to steer clear of such matters, or suffer the consequences.

3. Comparison with Past Legislation

We might ask how this wave of legislation differs from bills that were proposed—and sometimes passed—in the past and that also infringed on human rights. The Supreme Court even struck down some of these laws as unconstitutional; for example, the law that authorized the establishment of privately run prisons. [4]

This wave of legislation is different from problematic legislation of the past in several ways:

1. There is no precedent for a wave of anti-democratic legislation on this scale. The number of such bills submitted is unprecedented, and some have even been enacted into law. This is a hideous onslaught of proposals in a variety of areas that, taken together, constitute a large-scale attack on the foundations of democracy.
2. If, in the past, such bills were no more than a declaration meant to net the sponsor some newspaper headlines, the public now accords increasing legitimacy to such proposals. As a result, these bills have an impact, even though they do not always pass in the Knesset and become law. There is no doubt that legislative maneuvers such as those that target human-rights organizations have delegitimized these organizations, even if the bills themselves were voted down. Bills meant to undermine the authority of the Supreme Court and politicize the judiciary generate harsh and sometimes unrestrained politically based attacks on the Supreme Court and diminish public trust in the Court. Sometimes these bills encourage grassroots efforts, such as the Rabbis’ Letter which called on Jews not to sell or rent apartments to Arabs. All these efforts feed off one other and create an environment that promotes discrimination, hostility, and racism against a minority, while doing it serious harm.
3. In the past, there have been similar bills and laws infringing on human rights (such as freedom from religion) or due process (for example, legislation granting excessive powers to law-enforcement agencies when dealing with terrorism). Nonetheless, what makes the current legislation “anti-democratic” is not just the infringement of human rights but also the absence of worthy aims. Nearly all the anti-democratic initiatives have a clear central goal (if not always the only one) that is unacceptable and improper. The infringement of rights is not merely a side effect of achieving a legitimate aim (as is the case, for example, with anti-terrorism laws); the infringement of rights—equality, freedom of expression, and the democratic process—is the goal. It is usually veiled by some other “patriotic” purpose, but quickly becomes apparent, whether implicitly or explicitly. Not every offensive law is anti-democratic. The anti-democratic nature of a law stems clearly and blatantly from its unworthy aims, whether these are its primary purpose or secondary to others.

In this book, we review the various bills and include the opinions that the authors and other researchers at the Israel Democracy Institute presented to Government and Knesset committees, as well as articles published in the media. We then examine the reasons behind this wave of legislation and ask why it appeared when it did. Finally, we note the serious ramifications of this wave of anti-democratic legislation for Israel’s image as a democratic state, both at home and abroad. We also indicate the entities that can moderate these types of legislative proposals and protect Israeli democracy from those who seek to destroy it from within.

Notes

1. Ruth Gavison, “Human Rights and Democracy,” in: Ruth Gavison and Hagai Shneidor (eds.), Human and Civil Rights in Israel, Jerusalem: Association for Civil Rights in Israel, 1991, vol. 1, p. 32 (Hebrew).
2. Menachem Begin, “Fundamental Problems in Our Existence as a Nation” (speech at the inauguration of the Ninth Government, Jerusalem, December 16, 1959); excerpts reprinted in English translation in: Mordechai Kremnitzer and Amir Fuchs (eds.), Menachem Begin on Democracy and Constitutional Values, Jerusalem: The Israel Democracy Institute, 2011, p. 3.
3. Gavison (op. cit.), p. 33.
4. High Court of Justice 2605/05, College of Law and Business, et al. v. Minister of Finance (unpublished decision, 2009) (Delivered November 11, 2009), Online at http://elyon1.court.gov.il/files_eng/05/050/026/n39/05026050.n39.pdf

Full Policy Paper (Hkebrew)

Dr. Amir Fuchs is an IDI researcher who heads the Defending Democratic Values project. His expertise is in Constitutional and criminal law.

Dr. Dana Blander is an IDI researcher who specializes in the political system in Israel.

Prof. Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute and Professor Emeritus of the Faculty of Law at the Hebrew University in Jerusalem. He is an expert in criminal law and public law.