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Israel’s eroding democracy: A shadow is cast
By Tobias Buck
Financial Times, December 8, 2011
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The Jewish state appears to be shackling some of the freedoms that are central to its standing abroad
In May, Benjamin Netanyahu joined the select group of foreign leaders who have been asked to address the US Congress not once but twice. Israel’s prime minister repaid the favour with a passionate, crowd-pleasing speech that paid tribute to the values and beliefs uniting the two countries. One boast stood out in particular: “You don’t need to export democracy to Israel,” he said, in a pointed reference to the broader Middle East. “We’ve already got it.”
Mr Netanyahu used a similar line at the UN General Assembly four months later, when he denounced the world body’s alleged anti-Israel bias. For all the criticism his country received, Israel was “the one true democracy in the Middle East”.
That is a claim that has long been central to Israel’s image abroad and underpins its ties with America and Europe. It also forms part of the picture Israelis themselves have of their nation – as a bastion of liberal values and outpost of the west, set amid a wilderness of Arab autocracies.
The claim went undisputed for many decades. Since the start of the year, however, it has begun to sound increasingly hollow. In the wake of the Arab spring, Tunisians have elected a new government and Egyptians are voting for a new parliament. Imperfect as the infant Arab democracies are, the trend towards government chosen by the people is clearly spreading across the region.
Yet there is another reason why more and more Israelis hesitate to boast about their nation’s democratic credentials. In recent weeks, the country has been consumed by an anguished debate over a series of new laws and proposals that many fear are designed to stifle dissent, weaken minority rights, restrict freedom of speech and emasculate the judiciary. They include a law that in effect allows Israeli communities to exclude Arab families; another that imposes penalties on Israelis advocating a boycott of products made in West Bank Jewish settlements; and proposals that would subject the supreme court to greater political oversight.
These initiatives have come amid a coarsening of domestic political debate that at the extreme end has manifested itself in death threats against prominent human rights activists. Among targets was Hagit Ofran of Peace Now, a campaigning group, who last month found graffiti outside her house declaring that “Yitzhak Rabin is waiting for you” – a reference to the 1995 assassination of the prime minister.
But even inside the Knesset, or parliament, the tone has grown shriller. In a heated but not untypical recent exchange, a left-wing deputy was shouted down by David Rotem from the nationalist Yisrael Beiteinu party: “Get out!” he demanded. “You are not even an animal!” Mr Rotem is no marginal figure: as chairman of the Knesset’s constitution, law and justice committee, he plays a crucial role in the legislative process.
Recent developments have spread alarm among Israeli human rights activists, unsettled the country’s highest court and triggered fury and dismay among some of its best-known politicians. Tzipi Livni, the former foreign minister and current leader of the opposition, told the Knesset last month that historically dictatorial Arab states were “trying to become a democracy, while we – with these bills – are heading towards dictatorship”.
In truth, the chances of Israel turning into a dictatorship are about as high as those of Saudi Arabia turning into a liberal democracy. The unease and fear expressed in Ms Livni’s intervention, however, are both real and widely shared.
On the left, the mood is one of despair. Haaretz, the liberal daily, recently published a special “black flag” edition detailing what it said was a steady erosion of democratic values. On the right, leading Likud figures such as Benny Begin and Dan Meridor are also aghast. Mr Begin, an icon of the political right, recently accused his colleagues of “political gluttony”, suggesting they had “forgotten the basic rules of democracy”.
The debate matters profoundly – first and foremost to Israelis themselves. Yet the controversy has also started to reverberate internationally. Diplomats from the US and Europe have repeatedly voiced their dismay at some recent proposals, in particular a plan to curb foreign funding for non-governmental organisations.
The US Jewish community, too, has started to take note. Abraham Foxman, the leader of the Anti-Defamation League and one of America’s most robust pro-Israel advocates, wrote in the Huffington Post last month: “When ... laws are passed that stifle free expression, seek to undermine the independence of the judiciary and, in the name of defending a Jewish state, seek to undermine the rights of Arabs and other minorities, then the very democratic character of the state is being eroded.”
Mr Foxman went on to argue that the spate of laws “will hurt Israel externally”, pointing out that “Israeli democracy and the perception of Israel as defending democratic values are crucial to Israel’s good name”.
His argument, echoed by many analysts within Israel, is that the country’s democratic credentials are a vital strategic asset. One of the pillars of western support has always been that Americans and Europeans see in Israel a version of their own country, similar in values and beliefs. If Israel is truly, as some critics contend, hacking away at its democratic foundations, it runs the risk of damaging its all-important ties with the western world as well.
. . .
So far, three contentious pieces of legislation have passed the Knesset. The first is the so-called Nakba Law, banning any state-funded entity – including schools and theatres – from commemorating the Nakba, or catastrophe. The term is central to the Palestinian understanding of recent history: it refers to the 1948 Arab-Israeli war, when hundreds of thousands of their ancestors were expelled or fled from advancing Israeli troops.
Critics say the ban is a blatant violation of freedom of speech – as is the so-called Boycott Law, passed earlier this year. It introduces a long list of penalties for any Israeli who advocates an academic, cultural or economic boycott of Israel, including the Jewish settlements that, contrary to international law, exist in the occupied Palestinian territories.
A third contentious law again takes aim at Israel’s Arab minority, which accounts for more than 20 per cent of the population. It allows small rural communities to have so-called admission committees to scrutinise potential residents and reject them if they are deemed not to fit in. The law comes in response to a 16-year campaign by an Arab family, the Qadans, who were denied permission to buy a property in Katzir, a Jewish community in Galilee. The community was finally ordered to let them in, thanks to a ruling by the high court. The new law circumvents the judges.
In addition to the three existing laws has come a barrage of proposals. They enjoy significant support in the Knesset but have yet to be passed. One widely debated bill seeks to clamp down on foreign government donations to Israeli human rights groups and NGOs that criticise the government and army; another calls for a massive increase in damages that newspapers would have to pay in libel cases. It has been denounced by the press as an attempt to silence critical reporting.
The legislative onslaught is the work of an influential group of right-wing parliamentarians, whose ranks were swelled by the last election in 2009. They include members of Benjamin Netanyahu’s Likud party such as Danny Danon and Ofer Akunis as well as lawmakers from the Yisrael Beiteinu party, which is headed by Avigdor Lieberman, the foreign minister. One of the most notable bills proposed so far, however, was drafted by a member of Ms Livni’s centrist Kadima party: it would not only drop Arabic as an official language but also place Israel’s status as a Jewish state ahead of its commitment to democracy. It gained the declared support of at least one in three members of the Knesset but remains on ice.
The power of this informal parliamentary alliance is built in part on Mr Netanyahu’s constant need to shore up right-wing support within his party and unwieldy coalition. But it is also emblematic of broader political trends: as voters move to the right, right-wing parties themselves are moving further away from the centre.
. . .
In isolation, some of the recent moves may appear more eccentric than dangerous. Yet Mordechai Kremnitzer, a professor of law and vice-president of the Israel Democracy Institute, a think-tank, is among those in no doubt that Israeli democracy is coming under threat.
“Of course we will not lose all features of a democratic regime, but we are in the process of losing some features,” he says. “We are in the process of reducing freedom of speech and the freedom of association, and we are infringing on the right to equality, especially vis-à-vis the Israeli Arabs. We are also weakening all the elements in society that have the function of criticising the governments, including the courts.”
Hagai El-Ad, the director of the Association for Civil Rights in Israel, describes the barrage of new legislation as “unprecedented”. But he also worries about an erosion of a broader democratic culture that expresses itself not least in the deepening hostility towards organisations such as Acri. “This is not just about anti-democratic bills, this is about anti-democratic society. It is about the idea that human rights are somehow synonymous with treason, and about creating an atmosphere of suspicion,” says Mr El-Ad.
He argues that the controversy has exposed a warped sense of what constitutes a democracy in the first place. “A democracy is not only about having free and fair elections every four years, and in between you have a tyranny of the majority,” says Mr El-Ad. Certain rights and values, he insists, should simply not be up for grabs – no matter how much support any one party or movement has.
Likud’s Mr Danon, however, insists that there is nothing undemocratic about right-wing lawmakers pushing for right-wing legislation. Unlike most of his critics, Mr Danon says, he at least has a mandate: “I consider myself a fighter for democracy and I consider my party, the Likud, a party that promotes democracy. By the very fact that I am promoting the values of the people who voted for me, I am promoting democracy.”
Asked about the opposition of Likud elders such as Mr Begin, Mr Danon is unapologetic: “I respect these people but I think they are wrong. Maybe today we see a new generation of young members of the Knesset who want to change the reality in Israel ... We were elected to change reality.” He insists that a majority within the party supports his course.
Amid the rising concern, activists such as Mr El-Ad also see reasons for hope. He believes more Israelis are waking up to the danger posed by the wave of legislation. Rising political pressure from abroad is also playing a role in stopping or at least delaying some of the most contentious bills.
Ultimately, however, Mr El-Ad says the future is in the hands of voters: “Eventually, if the vast majority of Israelis does not want democracy, they will get what they want.”
Netanyahu stands up for a supreme court under fire
Perhaps the most important target in the struggle for Israeli democracy is the country’s powerful supreme court, the main constitutional check on government and, for many years, the bête noire of Israel’s extreme right.
One recent bill called for nominee judges to be subjected to a political hearing in the Knesset. Another sought to limit the ability of groups to launch petitions at the court. A third tried to limit the court’s ability to strike down laws as unconstitutional. A fourth called for the court president to be elected by the Knesset.
These and other proposals have so far made little progress – thanks to a series of direct interventions from Benjamin Netanyahu, the prime minister. Below the surface, however, the position of the court has weakened.
One main battleground is the committee that selects all judges in Israel. Recent appointments and political manoeuvres have tipped the balance on the committee firmly towards the right. At least four out of 13 supreme court judges have to be replaced by next May – which means that even a small shift in power on the selection committee can have a big, long-term impact.
The court and its outgoing president, Dorit Beinisch, have also faced increasingly harsh public attacks from the political right. In a rare public intervention, Ms Beinisch hit back last week, warning of a “delegitimisation campaign” by lawmakers and even ministers. They “propagate false and misleading information that has reached the point of incitement against the courts, its judges and its judicial undertakings”, she said.
According to analysts, the real threat to the judiciary comes as much from the hostile political atmosphere as it does from any future change in the law.
“It is not good for the supreme court to know that it depends on the prime minister to save it” from laws curbing its powers, says Mordechai Kremnitzer, a law professor. Hagai El-Ad, head of the Association for Civil Rights in Israel, warns that the court could grow warier of striking down laws that discriminate, for example, against Israel’s Arab minority.
“If the court does not intervene, the law passes. If the court does intervene, it provides the basis for a situation in which the court itself will be further marginalised,” says Mr El-Ad. “It will be damned if it does and damned if it doesn’t.”
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