The Nakba Bill: A Test of the Democratic Nature of the Jewish and Democratic State

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On March 14, 2011, the Knesset’s Constitution, Law and Justice Committee approved a controversial bill known as “the Nakba Bill,” which would impose financial sanctions on institutions that commemorate Israel’s Independence Day as a day of mourning. Submitted by MK Alex Miller of the Yisrael Beiteinu party, the bill was passed into law by the Knesset plenum on March 22, 2011.  In the following op-ed, which was published in Hebrew by the Ynet website just before the Knesset Committee's deliberations, IDI’s Prof. Mordechai Kremnitzer and Adv. Amir Fuchs argue that while the observance of Israel’s Independence Day as a day of mourning by citizens of the State of Israel is “a galling, unpleasant, and defiant act,” the test of a true democracy is whether it is able to allow such expressions of freedom of speech.

For Jews in Israel, Independence Day is a joyous holiday that celebrates a formative event: the founding of the Jewish and—at least in the meantime— democratic state. While Jews in Israel celebrate, however, we must recognize that there is a minority living among us for whom this day may be different. For some of its members, the day of the establishment of the State of Israel is also the day of the "Nakba"—an Arabic word meaning "catastrophe" that refers to the flight or expulsion of Arabs from their homes during the period of Israel's 1948 War of Independence. These members of Israel's Arab population relate to this day as a day of pain and sorrow for the tragedy of the Palestinian people, who were, by all accounts, the losing party in Israel's War of Independence.

Sixty three years after the historic founding of the State of Israel, the Knesset is seeking to intervene in the way that some Israeli Arabs commemorate Israeli Independence Day, by means of a bill known as "the Nakba Bill." This bill, which is coming up for approval by the Knesset's Constitution, Law and Justice committee tomorrow, seeks to enable the Minister of Finance, among others, to impose economic sanctions on public bodies that observe Israeli Independence Day as a day of mourning. These sanctions could cost institutions and agencies that observe the Nakba up to 50% of the funding that they receive from the Israeli government.

The current bill replaces the original "Nakba Bill" proposed in 2009, which sought to make the observance of the Nakba a criminal offense. The current draft aims to achieve similar goals as the original, but in a much more sophisticated manner.

The current bill is a "softened" version that imposes economic sanctions on bodies that commemorate the Nakba, rather than deeming such commemoration a criminal offense. This ostensibly addresses the criticism that the Nakba Law infringes freedom of speech, since the current bill does not make it illegal to conduct events commemorating the Nakba. It is clear, however, that a budgetary sanction that would withhold up to 50% of state funding is likely to have an extremely negative impact on the functioning of an organization or institution that commemorates the Nakba. As such, for all intents and purposes, the measure imposed by the new bill would serve as a punishment that severely curtails freedom of speech.

The observance of Israeli Independence Day as a day of mourning by citizens of the State of Israel is undoubtedly a galling, unpleasant, and defiant act. But the ability to allow such expressions is the test of a true democracy. Moreover, authorizing the executive branch to punish members of the public for actions that are permitted by law is unacceptable in a properly run state that recognizes the principle of separation of powers.

Furthermore, the proposed bill ostensibly seeks to provide Israel with tools that will enable it to protect its basic principles. But does anyone really think that the feelings of Israeli Arabs toward the state will become more positive as a result of such a law? And where the does the state get the authority to intervene in the sorrow, grief or joy of a person who lives in it? The idea of using legislative sanctions to suppress the narrative of a national-ethnic group befits a totalitarian state, not a democracy. In fact, it may be ventured that this type of legislative action may actually achieve the opposite of its desired effect; it is likely that it will strengthen the very narrative that it seeks to suppress and may intensify the Arab public's negative feelings towards the State of Israel.

Proponents of the law are well aware of this. Accordingly, it is likely that the legislation has a different purpose: to upset the Arab population in Israel by means of legislation that is provocative and alienating. By rendering the narrative of the Arabs as illegitimate, the bill seeks to strengthen the "branding" of Israel's Arabs as "Other"—as enemies whom we must not accept and must fight against.

In addition, the imposition of broad budgetary sanctions on public bodies such as local councils, educational institutions, and community centers is an act of collective punishment that is meted out indiscriminately on an entire public. Why should a child be deprived of participating in the activities of his community center because it ran an event commemorating the "Nakba"? What crime did that child commit? Similarly, how is it possible that the budget of a school—a framework that provides basic public services—will be slashed, forcing the educational institution to provide inferior services, just because it hosted such an event?

The more that this bill and other bills like it (the Admissions Committee bill, the Boycott bill, the Loyalty Oath bill, etc.) are passed into law, the more we will have to confront the following question: Will the State of Israel, whose founding we celebrate on Israeli Independence Day, continue to be a "Jewish and democratic state"? 

This article was originally published in Hebrew on the Ynet website on March 13, 2011.

Prof. Mordechai Kremnitzer is Vice President of Research of the Israel Democracy Institute. Attorney Amir Fuchs is a researcher at the Israel Democracy Institute.