Offenses Against the State
Policy Paper No. 70
- Written By: Ghanayim Khalid, Prof. Mordechai Kremnitzer
- Publication Date:
- Cover Type: Softcover
- Number Of Pages: 108 Pages
- Center: Democratic Values and Institutions
- Price: 45 NIS
A proposal for developing a single, comprehensive law that would comply with the norms in developed democracies and protect Israel’s democratic system through the use of criminal statutes.
Democracy is a social value that merits and even requires legal defense. Harm to the democratic system or a change in the form of government would cause both direct and indirect injury to citizens and would infringe their basic rights. The overarching goal of statutory and legal defense of the regime is defense of the individual, so that all residents and citizens can exercise their fundamental rights within a properly functioning system. Therefore, any damage to the regime detracts from the country’s ability to act on behalf of the individuals who live in its territory.
Currently, legal defense of democracy is based primarily on statutes rooted in centuries of common law. The sedition section in Israel's penal code and Israel's State of Emergency regulations were designed to protect the regime. At the same time, however, they also infringe basic rights that are standard in modern democratic regimes; for example, they include certain limitations on freedom of expression. The existing laws suffer from a lack of clarity; they depend on interpretation by the Attorney General and sometimes are not fully harmonious with each other.
In their research, the authors, legal scholars Dr. Khaled Genaim and Prof. Mordechai Kremnitzer, assert that the crimes against the regime defined in the sedition section of the Penal Law 5737–1977 and in the Defense Regulation (State of Emergency) 1945 should be repealed and replaced with a single law that is clear and comprehensive and complies with the norms in developed democracies.
Based on an examination of Israeli law and using comparative research, the authors highlight the sections that should be included in the law in order to provide sufficient protection for the democratic system without infringing basic human rights. In their recommendations, they focus on coups, including preparations for a coup and attempted coups. They also focus on the establishment, direction of, and membership in an organization that includes among its goals the use of force or the threat of force to annul or change the form of government, to eliminate or undermine a government institution, and to cause illegal harm to the sound constitutional operation of the regime’s institutions.
Democracy is a social value that deserves and demands legal protection. It is indisputable that in every nation, it is not just the individuals who are entitled to protection, but their political framework as well. The democratic form of government is the political framework of the state that is predicated on civilian rule; therefore, its dissolution is a direct and immediate violation of the fundamental rights of its citizens, which creates a basis for the continuous and brutal infringement of the rights of those living under an undemocratic regime. The protection of a democratic form of government derives from the protection granted to its citizens; it is designed to enable the state to perform its duty to protect their fundamental rights and interests. Thus, the protection of the state and its institutions is a means to achieve the supreme goal of protecting the individual. The individual can only maintain and exercise his fundamental rights within a properly working physical and political framework; therefore, a subversion of the political framework harms the state’s ability to act on behalf of its citizens.
The offense of sedition is an obsolete remnant of the British Mandate, which has its source in the common law of hundreds of years ago. Its aim is to protect the state, but at the same time, it may threaten the common fundamental values of a modern democracy. One example of this is the prohibition against a publication that may incite hatred, contempt or disloyalty toward government officials, or that may arouse discontent, resentment, ill will or enmity among the public. This prohibition also applies when the content of the publication is true. Likewise, the 1945 Defense (Emergency) Regulations declare as unlawful an association that promotes the incitement of hatred or contempt, or incites hostility toward the government of Israel or toward one of its ministers in his or her official capacity. Furthermore, the definition of sedition under Section 136 of the Penal Law is very broad and vague and, consequently, may lead to an unjustified violation of the freedom of expression. This ambiguity results in arbitrary and discriminatory enforcement in normal times and excessive enforcement in times of crisis. Indeed, Section 138 includes stipulations to criminal responsibility, and according to Section 135, an indictment cannot be filed without the consent of the Attorney General. However, these stipulations do not remedy the antidemocratic elements in the definition of the prohibition. Moreover, there is no guarantee that the Attorney General will always take the best course of action, and citizens are entitled to the rule of law, and not to the rule of the Attorney General or the rule of judicial interpretation. Furthermore, there is a lack of harmony between these two statutes – certain phenomena are prohibited under both the Penal Law and the Defense (Emergency) Regulations – and the relation between them is not clear.
Therefore, the sedition offenses in the 1977 Penal Law and the 1945 Defense (Emergency) Regulations should be abolished. In their stead, the following phenomena should be defined as criminal offenses: revolutionary activity, including attempts and preparations for a revolution; as well as the establishment of an organization and participation as a leader or member in an organization whose aim is the use or the threat of the use of force to abolish or change the system of government, to destroy or to harm a government institution, or to unlawfully harm the proper constitutional functioning of the institutions of a government. In this book, on the basis of a thorough examination of Israeli and comparative law, we wish to offer a detailed proposal to amend the section in the Penal Law that deals with offenses against the state.
One of the most serious and most dangerous phenomena confronting the democratic system of government – and, indirectly, society as well – are activities that harm or endanger the organizational and functional structure of the democratic state with the aim of destroying it or its institutions. The most obvious of these is a revolution, that is, the exchange of a democratic state for another regime or, at least, the incitement to overthrow the government or to cripple its ability to function. This includes activities that prevent the state’s institutions from performing their constitutional duties; for example, actions designed to neutralize the Knesset or the government by preventing it from assembling and reaching decisions, such as through the imprisonment of Knesset members or ministers.
The dangers and the criminal nature of a revolution derive from two cumulative factors: the severity of the objective – to harm the democratic state – and the element of association for this purpose.
The offense of revolution also includes attempts and preparations for a revolution. If a revolution is successful, then this means that the existing political regime has been eliminated and the offenders (the revolutionaries) have risen to power. The revolutionaries (yesterday’s offenders) do not stand trial; the revolution is the basis of their power and it is presented as an essential and justified act – a civilian revolution designed to protect the state and its citizens. Criminal proceedings will only be possible, if and when, the previous regime returns to power. Therefore, both as a deterrent and as law enforcement policy, it is justified to also include the prohibition of revolution attempts in the definition of the offense.
Furthermore, democracy is an essential social value and, therefore, a hypothetical danger to the existence of the state should suffice, and the criminality of the activities should not depend on a tangible or direct danger to the state’s existence, provided that the acts that endanger the state are illegal in their own right (at least from the perspective of the goal). It is, therefore, also justified to prohibit acts of preparation to harm the state as an anomaly in criminal law. In order to clearly differentiate the offense of conspiracy from punishment for thoughts alone, the formulation of a plan to commit revolutionary and subversive acts against the state should be required. The plan does not have to contain details regarding all its means and objectives. However, in order for it to be considered an attempt to harm the state, it must include its strategies and the designated time and place for their implementation. Therefore, the revolution attempt is punishable because it is a typical case of a criminal act, and acts of preparation are punishable in light of the importance of protecting this value and the need to take preventive measures. Nevertheless, it is proposed – due to the severe criminal nature of attempted revolution, as opposed to acts of preparation – to set the punishment for acts of preparation at half of the maximum sentence prescribed by law for revolution and attempted revolution.
Conspiracy to undermine the democratic political system by harming its structure and its governmental institutions – through the use or threat of the use of force – is an abuse of the democratic system. Therefore, it is justified to prohibit the establishment of an organization and participation as a leader or member in an organization whose goal is the use or threat of the use of force to abolish or change the system of government, to eliminate or to harm a government institution, and to unlawfully impede the proper constitutional functioning of state institutions. Political parties, their branches and offshoots, as well as any other organizations that have the aforesaid goals, which have been rendered unconstitutional for this reason, all fall within the bounds of unlawful association. An illegal political party is one that has been declared as such by a conclusive decision. In this context, it is proposed that a decision by the Central Elections Committee regarding the illegality of a political party require the approval of the Supreme Court. If an organization is not a political party, the district courts should be granted the authority to declare it illegal upon the request of the Attorney General, while granting it the right of appeal to the Supreme Court. The district court may issue its ruling only after the organization in question has submitted its response; a declaration may not be made ex parte. As stated above, the forbidden activities that are affiliated with unlawful association include leadership and active membership in the organization, the maintenance or reinforcement of its organizational structure, and other acts of assistance.
Active membership is intensive participation in activities to advance the purposes of the organization. Passive membership, which reflects the willingness to join the organization, should not fall within the bounds of this offense since the danger posed by such participation is negligible. Furthermore, a person may have joined an illegal organization (or failed to leave one) because of momentary weakness, a desire to please or impress others, or a fear of their reaction. The failure to leave the organization may also be the result of forgetfulness or the lack of importance ascribed to membership in it.
The law regarding the finality of legal proceedings should be applied to the process of organizing, and litigation should not be allowed to continue indefinitely. However, regarding the activities of active organizers, this principle should not apply to the question of unlawful association itself, and anyone charged with this offense should be allowed to submit a legal claim of lawful association.
The use and threat of the use of force against a state institution (e.g., the Knesset, the government or one of its members) with the objective of influencing its functioning or his or her performance, is a special and more serious – although more limited – form of the usual phenomenon of extortion. Regular extortion violates an individual’s freedom of decision and action, and the damage is confined to the victim of extortion. In contrast, the extortion of state officials while acting in an official capacity could harm the entire public or, at least, a large sector of the public. Nevertheless, a state official, who is naturally in a position of power, is expected to withstand threats that are not very serious. Therefore, the prohibition of the threat to use force against a state institution or its officials should be more limited than that of the normal offense of extortion and should only include threats that are liable to influence the performance of the government official. Some examples of threats of this nature are the threat to use force, which includes the threat of physical harm to the government official or to his or her close relations; a serious threat to harm society or part of it (e.g., spreading an epidemic, polluting the drinking water, or burning down a factory that is crucial to the state); a threat to cause severe and intensive harm to public life, which would be difficult to cope with and, thus, has a potential to influence decision makers and prevent them from acting with a clear conscience and sound judgment (e.g., blocking major roads and paralyzing traffic in order to force the Knesset or the government to act in a particular manner).
Nonviolent strikes do not fall within the bounds of grave actions that state officials are unable to withstand. The state has lawful means to bring an end to strikes that seriously harm public life. Moreover, in certain cases, by dealing with illegal strikes as offenses against the state, it is liable to create the impression that it is fighting workers, i.e., a hostile governmental view of workers – an outlook that is incompatible with a democratic regime.
The acceptance of bribes by Knesset members in their official capacity in a democratic institution is severe antisocial behavior. This phenomenon is more serious and more restricted than the normal phenomenon of bribery. In a democracy, the legislature is the most important branch of government since it determines the general norms, as well as the powers and procedures of the other branches. Moreover, there is a fundamental difference between the branches of government – the legislature, on the one hand, and the executive and judiciary, on the other hand. The latter two branches are clearly supposed to act solely for the benefit of the public at large. In contrast, the legislative branch also acts in the political realm based on political and partisan considerations, including the representation of particular sectors of the public. In the political world, striking “give and take” deals is legitimate in a democratic regime. Due to the special nature of the activities of Knesset members, the prohibition should be limited to direct material benefit to a specific Knesset member, or any other person, but not to benefit to the public at large or to a particular sector of the public. The normal rules that apply to the acceptance of a bribe apply to this prohibition, e.g., the bribe could have been given in advance or after the fact (based on a promise made in advance). The prohibition applies to the activities of a Knesset member within the framework of the legislature, including the factions, and does not apply to votes within a political party that is not represented in the Knesset. The prohibition does not violate the substantive immunity of a Knesset member since it is designed to ensure the fulfillment of the Knesset member’s constitutional, fiduciary duty.
Should a special status be ascribed to the physical injury of government officials while performing their official duties? There are both pros and cons. We tend to believe that there is justification for imposing a harsher punishment on someone who harms a government official with the aim of influencing a government decision, of preventing its implementation, or of imposing a different decision. A possible proposal in this context is to treat the physical injury to government officials as aggravated assault.
Nonviolent opposition to the democratic system of a government and a rejection of its legitimacy should not be prohibited through criminal law. Democracy is a form of government that is committed to a process of free and open public discussion as a requirement for shaping and adopting world outlooks and value judgments. Just as the power of the truth is in the free and open challenge to the lie, so too is the power of democracy in the competition with other political views. Without balanced political discussion, the concept of democracy is liable to turn into a dry dogma that lacks reason, persuasive force and the certainty of its verity. Without free debate, it would not be possible to instill in a society an intelligent, profound and strong commitment to the democratic form of government and the willingness to fight to preserve it and strengthen it. Gagging opponents is a reflection of weakness. Silencing antidemocratic views is liable to make such views more attractive and may even give the antidemocratic position more weight by conveying the message that democracy lacks sufficient persuasive power to overcome it in free and open debate. Minority or marginal groups sometimes adopt views rejecting democracy as an expression of their profound frustration and disappointment in the performance of the existing democracy. Even if the position is inappropriate, it is important to allow it to be heard in order to give voice to their feelings – otherwise, they may resort to violent measures. In addition, this makes it possible to deal with public disaffection and, thus, with the underlying causes of the antidemocratic positions. The appropriate means for dealing with “unacceptable” ideas, such as the rejection of the democratic system of government, is through the public education system.
Expressions of disloyalty or discontent toward the state, its institutions and its organizations should not be considered criminal offenses. The danger posed to the political structure and its proper functioning by publications of expressions of disloyalty is remote and indirect and, at most, should be considered a bad leaning that does not require punishment. Freedom of expression in both the personal and public realm also includes the freedom to express views that are worthless and hopeless in order to enable a venting of emotions that are considered to be negative by the subject, or at least, in order to allow them to be exposed and dealt with before they lead to the adoption of violent measures. Most importantly, such a prohibition is liable to result in an unjustified violation of freedom of expression because of the difficulty of distinguishing between true and false facts, as well as between reasonable and unreasonable opinions (especially in the political realm).