Analysis

With New Rules, Israeli Police Confirm They Can't Handle Legitimate Protest

Police joins wave of reactionary initiatives popping up just ahead of election with regulations to limit the right to protest, putting government convenience ahead of respect for citizens' rights

Protesters gather outside Attorney General Avichai Mendelblit's house in Petah Tikva, August 17, 2019.
Ofer Vaknin

The government ruling Israel at this time does not enjoy the confidence of the current Knesset (the one that committed suicide by voting to dissolve itself). It rules only because the country cannot exist without some sort of government. This means that it should only do what is absolutely necessary to maintain the current situation.

And yet, reactionary initiatives are popping up on all sides, in the spirit of the erosion of basic fundamental and liberal values from which we have been suffering in recent years.

The interior minister, whose moral authority is lacking, allows himself to Judaize the state by expelling a few hundred non-Jews – Filipino children born in Israel, educated in our schools and Israelis for all intents and purposes, along with their mothers who faithfully served our elderly and sick. A hasty and strange process of replacing the director general took place in the Justice Ministry and the Civil Service Commission, lacking any germane justification (except catch as catch can). The attorney general hastily considered whether to allow gender separation over and above that which the government had already approved.

The police have joined this wave, both in its new procedure on public protests and in its conduct toward protest against the attorney general in Petah Tikva.

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Freedom to demonstrate is an important, complex and sensitive issue, it goes to the core of freedom of expression and is one of the liberties that make Israel a democracy. Moreover, the right to protest, even if it involves disturbing the peace, is a more restrained substitute for illegal conduct stemming from protest. People should be allowed to let off steam, precisely to avoid violence. When people are given the right to protest, it often involves clashes with other rights and with various public interests. And so it is very easy to thwart the freedom to protest by placing it behind every all other rights or interests.

It is difficult to understand how the police could conceive of instituting new procedures on public protests without holding any consultations with civic organizations, to take other points of view into account. This smacks of sophistry. The High Court of Justice reduces the types of protests that require permits, and the police come along and nullify the difference between protests that require permits and those that do not. How? By setting conditions (such as location, time, amplification methods, etc.) for holding a protest.

Such conditions indeed might be necessary and justified, as the court has also ruled, but the attitude of the police to setting them is very broad. For example, no type of protest is included in the category of events for which no conditions are supposed to be set. The events in this category include bringing a Torah scroll into a synagogue and youth movement events.

The procedure does mention that restrictions are to be “in keeping with court rulings so far,” but no attempt has been made to internalize the judicial reasoning in setting conditions.

Police confront protesters in Petah Tikva, central Israel, August 14, 2019.
Meged Gozani

The High Court ruled that the right to protest can be limited only when the possibility of serious disturbance of the peace or an impairment of a basic right is nearly certain, and that such a restriction must be applied only to the extent required to prevent such a disturbance or impairment. But under the new procedure, near certainty is stretched to include unlikely situations. The procedure does not distinguish between concern over violence by protesters and the concern over violence by those who oppose the protesters, although the court has made this distinction.

The conduct of the police with regard to the new procedure can be seen in the recent protests in Petah Tikva. The police have already been criticized about Petah Tikva by the courts, first and foremost the High Court, over conduct toward the protesters against the attorney general. Instead of protecting the right to protest as is incumbent upon them, the police have done the opposite, setting such harsh restrictions (even by a small number of protesters) in terms of time and place, that made it impossible to hold the demonstrations.

There is a familiar tendency on the part of government agencies, including the police, to prefer government convenience to respect for citizens' rights. When a protest is directed against the government or its representatives, there is a worrisome tendency to show loyalty toward the government at the expense of the right to protest.

The police should especially be prevented from using the ugly trick of attributing imaginary offenses to those who want to implement their right to protest, such as in the case of lone protester Oren Simon who went on a hunger strike in Petah Tikva. Such corrupt and harmful use of the power of detention and arrest and misuse of the criminal code undermines the rule of law. If what happened in Petah Tikva is an indication of the new procedure, as it appears to be, it reveals the abject failure of the authorities to protect the right to protest and obey the law as interpreted by the courts.