On Sunday, May 24th, 2009 Israel's Ministerial Committee for Legislation and Law Enforcement approved a bill which forbids public mourning of Israel's Independence Day. In this article, Prof. Mordechai Kremnitzer and Roy Konfino argue that the proposed 'Nakba Law,' which forbids public mourning of Israel's Independence Day, is anti-democratic, unconstitutional, and detrimental to freedom of expression and of peaceful demonstration in Israel.
On Sunday, May 24th, Israel's Ministerial Committee for Legislation and Law Enforcement approved a bill submitted independently by MK Alex Miller together with other Yisrael Beiteinu Knesset Members, which forbids public mourning of Israel's Independence Day, or of the establishment of the State of Israel in general. The so-called "Nakba Law" aims to prevent public commemoration of the catastrophe—or "nakba" in Arabic—that befell the Arab population of Palestine during the Arab-Israeli war of 1948 that gave birth to the State of Israel.
The bill declares that anyone who transgresses the proposed law by expressing public mourning or bereavement on Israel's Independence Day may be subject to three years imprisonment. Ministers Yitzchack Hertzog, Shalom Simchon, and Avishai Braverman of the Labor Party have submitted an appeal of this bill, and a deliberation is expected at one of the upcoming government plenums. In the event the appeal is denied, however, the bill is likely to be approved by the government coalition and could soon reach the Knesset, where it stands to pass the three necessary readings required for enactment.
In our view, the proposed 'Nakba Law' is anti-democratic, unconstitutional, and extremely detrimental to freedom of expression and of peaceful demonstration in Israel—both of which are essential aspects of democracy. Furthermore, if the law is passed, it is not likely to increase the "loyalty" of Palestinian citizens of Israel, but rather could lead to an increase in separatism and extremism among this population.
In light of the damage to Israel's democratic fabric, and the potential negative implications for the Arab/Jewish relationship, it would be advisable for the government to accept the appeal and reject the bill.
The bill's explanatory remarks state that "it recommends legally forbidding activities that include marking Independence Day or the establishment of the State of Israel as a day of mourning, and severely penalizing those who abuse the democratic and enlightened character of the State of Israel—in order to topple it from within." There is no dispute that the State has the right to defend itself from those who wish to overthrow it from within. Indeed, actions such as incitement to treason and violence are considered criminal offenses in Israel. Nevertheless, there is no acceptable linkage between the proposed bill and the defense of the State. The act of marking Independence Day, or the establishment of the State of Israel in general, as a day of mourning or bereavement, does not pose a challenge to the State's existence.
The establishment of Israel, which was met by an armed Palestinian and Arab attack against the Jewish Yishuv and the fledgling State, ended up dealing a major blow to the Arab-Palestinian population living in the Land of Israel at that time (between 700,000-750,000 Palestinians were displaced or fled from what was to become the State of Israel and became refugees; 370-530 villages were abandoned or evacuated). There is no doubt that many people not involved in the armed conflict against the State's establishment were also harmed during its formation. One would hope that even those who submitted the bill do not wish to rewrite history in such a way that it would blot out the suffering of the Palestinians. It is only natural that some of those harmed, including their descendants, mark Independence Day as a day of mourning and bereavement. No one can demand that the Palestinian public not feel any sorrow for the harm done and loss suffered. Even if the law is passed and enforced, these feelings will not change; on the contrary!
One possible rationale for preventing public expressions of Palestinian sorrow might be to prevent hurting the feelings of Israel's Jewish majority, which might be offended by this type of declaration. Freedom of expression would be worthless if such a consideration were enough to forbid an expression of public sentiment. The list of hurt feelings could go on forever: it is safe to assume that the feelings of some Palestinians are hurt when Jews celebrate Independence Day; and what about the feelings of democratic Israelis pained by such an anti-democratic bill? Moreover, expressions of emotions in the political context—especially those of a minority—are precisely the type of expression that must be firmly and forcefully protected by a robust democracy.
Moreover, the expressions of sorrow concerning the establishment of the State are not equivalent to negating its right to exist. Pain can coincide with acceptance of the State's existence. Someone could resign himself to the irrevocable reality of Israel even while continuing to harbor feelings that irreparable harm was caused by its establishment and acting on the desire to make that fact known. But even if these expressions of sorrow pose an ideological challenge to the State of Israel as a Jewish state, they must be incorporated into legitimate democratic discourse. The day that it is impossible to openly question Israel's status as a Jewish state will be the day that Israel quits the family of democracies, thereby losing one of its most important moral and strategic assets.
A state is not democratic if it does not defend the right to freedom of expression and peaceful demonstration. A democracy must allow for open discussion of political, ideological and moral questions—particularly those subject to bitter controversy—that lie at the heart of a free society. If quelling these rights is indeed the objective of the bill, then it is plainly invalid, as it undermines the foundations of Israel as a democracy. The bill is also a foolish measure because it takes into account only one sector's expressions of objection to the Jewish character of Israel. Furthermore, if the State's Jewishness is seen as a maxim that cannot be questioned, it is destined to become a dry and crumbling dogma that lacks the support of the hearts and minds of the people. In this sense, the bill also stands to cause harm to the Jewish cause it purportedly supports. It would be disgraceful if Jews were perceived as impervious and insensitive to the suffering and feelings of others. If faced with a similar attack upon our freedoms and deeply held convictions, we would surely cry out in protest.
Another important function of the freedom of expression and of peaceful demonstration is the protection of minorities from coercion by the majority. In the State of Israel, which has a large and established Palestinian minority, it is especially important to allow these citizens to express their culture and unique historical heritage. Prohibiting citizens from marking the Nakba will not only deny their basic right to dignity, rooted in Basic Law: Human Dignity and Liberty; it may well also arouse a feeling of loathing toward the State and, consequently, intensify trends toward separatism and estrangement. This outcome would certainly benefit and strengthen the extremists among them.
To summarize, the question of the significance of the Nakba is one of the most important public debates taking place in Israel today. The Knesset must not prohibit this discussion or the marking of Nakba Day, which is a part of our diverse cultural fabric. Such a prohibition would severely compromise freedom of expression and of peaceful demonstration and, thus, the right to human dignity of the Arab citizens of Israel. Furthermore, the prohibition could lead to heightened alienation and extremism.