AG to Netanyahu: Bills Targeting Israeli Rights Groups' Funds Are Unconstitutional

'If these bills become law, I won't be able to defend them against the petitions that will be submitted to the High Court,' Attorney General Yehuda Weinstein warns government.

Proposed legislation to restrict foreign governments' donations to nongovernmental organizations is unconstitutional, Attorney General Yehuda Weinstein warned this week, and if it passes the Knesset, he will not be prepared to defend it in the High Court of Justice.

weinstein - Daniel Bar-On - August 17 2011
Daniel Bar-On

"The attorney general's policy is to refrain as much as possible from declaring laws unconstitutional, out of respect for the legislative work of the cabinet and Knesset," Weinstein wrote in a letter to Prime Minister Benjamin Netanyahu this weekend explaining his unusual decision. "But in light of the blatancy of the case before us, deviating from this policy is justified. What this means is that if these bills become law, I won't be able to defend them against the petitions that will be submitted to the High Court. That is what I intend to tell the Knesset, and afterward the Supreme Court."

The two bills in question were submitted by MKs Ofir Akunis (Likud ) and Faina Kirshenbaum (Yisrael Beiteinu ). Both are disproportionate and unconstitutional, Weinstein said.

"They deal a harsh blow to a long list of constitutional rights, including freedom of expression, freedom of association and the right to equality," he wrote. "Instead of enabling open discussion in an efficient 'marketplace of ideas,' they try to suppress speech. They put Israel on a par with the handful of countries that have taken similar steps, and I doubt the State of Israel should be jealous of these regimes and act like them."

In international forums, he noted, Israeli representatives boast of the country's active civil society and human rights organizations, as these are essential elements of a democratic state. "It's true that these organizations' activities don't always accord with the Israeli government's positions. But they are an important voice that shouldn't be silenced."

While the bills' declared aim is to prevent foreign states from intervening in Israeli public life, in fact, money from abroad is welcomed in many areas of Israeli life, he wrote. "Therefore, it seems the true aim is different. From the bills' explanatory notes and the discussions in the Ministerial Committee for Legislation, it seems the bills are meant to prevent support for organizations that slander the State of Israel. These are mainly human rights organizations. But even if this is the goal, I doubt it's an appropriate goal, because silencing legal activity cannot be a legitimate goal."

Instead of the bills, he proposed other means of dealing with the problem, such as improving the transparency of donations and making diplomatic efforts to dissuade foreign governments from funding such groups. "Beyond that," he wrote, "the right way to deal with different opinions is by raising counterarguments in the framework of open discussion in the 'marketplace of ideas' that characterizes a democratic society."

The bills in question were both approved by the Ministerial Committee for Legislation, but four ministers then appealed this decision to the full cabinet. Soon afterward, Netanyahu decided to freeze the bills, so the cabinet has yet to consider them. That means the Knesset also can't vote on them.

Last week, therefore, Akunis and Kirshenbaum decided to shelve those bills and submit a new, joint proposal. The new bill would ban foreign governments from donating any money to NGOs that support indicting Israeli soldiers and officials in international courts or encourage soldiers to refuse to serve. Other NGOs could accept donations from foreign governments, but the money would be taxed at a rate of 45 percent, unless either they are also funded by the Israeli government, or the finance minister and the Knesset Finance Committee exempt them.