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Patently lawless
By Ze'ev Segal
Tags: Nakba Day, israel news

Many Knesset members have expressed their support for private members' bills proposed by MKs from Yisrael Beiteinu and Habayit Hayehudi that cast a shadow over the State of Israel as a democratic state that respects the rights of minorities. The bill that seeks to impose a maximum three-year prison sentence on those who dare mark Independence Day as Nakba Day, the day of the Palestinian catastrophe, and which was approved by the ministerial committee on legislation, is an unfortunate case in point.

Another bill, which received Knesset consent during its preliminary reading, would impose a year in jail on anyone who issues a statement that "denies the existence of Israel as a Jewish and democratic state" if there is a reasonable possibility that the statement would lead to an act of disloyalty to the state. It is in effect a rehash of Mandate-era legislation that harms the free market of ideas and opinions.

Some consolation can be found in the fact that yesterday the ministerial committee on legislation rejected yet another bill, proposed by MK David Rotem, which would have required people seeking Israeli citizenship to commit to be loyal to the State of Israel as a Jewish, Zionist and democratic state. The bill could still be passed as a private member's bill.
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All of this absurd legislation brings to mind Madame de Recamier, who composed laws in her salon in the style of "Tuesdays in April will always be spring-like and happy," to fight the Napoleonic Code, which barred married women from having a bank account.

Legislation barring the commemoration of Nakba Day with demonstrations would hold us up to the ridicule of the political and constitutional establishment around the world.

In addition to the emotional reactions to the proposed legislation, we can examine the constitutional legal criteria that have developed since the passage 17 years ago of the Basic Law on Human Dignity and Freedom.

At the time, the basic law, in the spirit of the Declaration of Independence, enshrined the values of the State of Israel as a Jewish and democratic state. In his collection of writings entitled Religion and Law, which has now been published, the late Supreme Court Justice Haim Cohen wrote that the word "and" between the words "Jewish" and "democratic" transforms the two into "one supreme value." And a Jewish state that is not democratic, "is not within the character of the State of Israel, whose democratic values are engraved in its heart, and whose existence in law and in practice are indispensable for a state that seeks to find a place of honor among the enlightened countries of the world."

The Knesset must legislate in keeping with the fundamental principles of the state as Jewish and democratic. According to the provisions of the basic law, the Knesset is limited in its legislative powers. Its laws must be passed only for a proper purpose and they must not unduly harm basic rights to an extent greater than necessary. These rights include "human dignity," which according to the High Court of Justice, also includes freedom of expression, which in turn includes the right to demonstrate.

The requirement of proportionality of law means that a law will be able to achieve the purpose which the legislature set for it, that the means which the legislature chose will not disproportionately harm basic rights, and that the harm from a societal standpoint will not be greater than its benefit to the public.

Based on all of these criteria, the proposed bills are not sustainable. Even if the purpose of the bills, strengthening loyalty to the state, is proper, the purpose will not be achieved by the proposed legislation. The legislation will not be enforceable, which will only cause contempt for the values of loyalty expected of the citizens of the country. Its benefit will be substantially negligible relative to the disputes and tensions it would spawn.

The sanctions that the legislators propose for violators of the law are extreme and disproportionate. Moreover, enforcement of the law would give a free platform for violators of the law to increase the impact of their statements against the country in an open court hearing.

Instead of draconian legislation, what is needed is to work to bring peace between us and our neighbors and between us and ourselves: to improve education in Jewish and Arab schools; to give expression to what unifies us and what makes us different; to provide budgets for the Arab population; to increase its representation in the public sector and to encourage its integration in the National Service program, at least inside its communities.

We also need not impose special taxes on those who have not done National Service, as six Yisrael Beiteinu Knesset members have proposed.
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  1.   legislation 14:09  |  j10 01/06/09
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