The proposed amendment to the flag desecration bill, which passed its preliminary reading on Wednesday, is among the most surreal pieces of legislation to be considered in the Knesset – and the competition there is pretty stiff.
In addition to tripling the punishment for “dishonoring the state flag” from one year to three years in prison, with a similar punishment for burning the flag, the bill also seeks to impose additional sanctions on anyone convicted of flag-burning. Those convicted would also be deprived of the right to medical services through the national health insurance system, as well as unemployment benefits and student scholarships.
When reading the bill, it’s hard to believe that MK Nava Boker (Likud) and her seven cosponsors would even commit such a bizarre bill to paper. Apparently it is necessary to remind ourselves of some basic principles: a person’s right to health care or social security, such as unemployment benefits, are fundamental human rights that are unconditional. Violating the laws of the land can result in punishment involving either a fine or imprisonment, but cannot result in the deprivation of fundamental rights such as health and social welfare services.
The vote on that part of the law was actually deferred, and it’s not clear if it will ever take place. But the fact that the idea even came up reflects the chasm in which we find ourselves – that in the name of “patriotism,” anything goes.
But even the section of the bill that passed its preliminary reading (by a vote of 41 to 30), which sets such harsh punishment for dishonoring the state flag or burning it, is improper. When it comes to dignity, it is accorded first and foremost to human beings, and one aspect of the dignity accorded people, whoever they may be, is the right to freedom of expression – whether for political aims or artistic ones.
In practice, the fact that the flag law currently on the books imposes a jail sentence of up to one year for dishonoring the flag harms our freedom of expression. The police investigations into artist Natali Cohen Vaxberg, after she filmed herself defecating on the Israeli flag, are evidence of this. The police viewed the case as an important one, but the investigation was an unnecessary one made possible by an unnecessary law.
Haaretz reporter Yaniv Kubovich reported on how selective enforcement of the law has been. The police did nothing, for instance, when Israeli flags were stained in red at demonstrations against the release of Palestinian prisoners in exchange for Gilad Shalit. On the other hand, activists from anarchist organizations were questioned when engaging in similar acts to protest the West Bank security barrier, with an indictment even being filed against one of them.
This selectivity highlights not only the problematic enforcement policies, but, even more fundamentally, the impropriety of a law that by its very nature allows people to be put on trial for an act of political protest or artistic expression.
In 1989, the U.S. Supreme Court ruled that the laws existing then in 48 states that banned desecrating the U.S. flag were a violation of the constitutional right to freedom of expression. The court acquitted a man who had burned an American flag as part of a political protest in 1984. Political expression could not be limited just because society finds it offensive, the court ruled, even when it involves the national flag.
This ruling reminds us that the sanctification of symbols cannot come at the expense of political and artistic freedom of expression.
In France, too, the Constitutional Council ruled in 2003 that a law banning flag desecration could not apply to artistic acts or political protest. In 2011, the French Council of State ruled that another piece of regulation that banned flag desecration could not apply to political, artistic or philosophical expression.
In this respect, there may be a silver lining in Israel. If the flag amendment becomes law, then, as with any law passed after 1992, it is subject to judicial review based on the Basic Law on Human Dignity and Freedom. It would not enjoy the immunity accorded by the basic law to legislation passed prior to that date, such as the original 1949 flag law. So, if the matter does go to court, it can be invalidated in the same spirit as the rulings in the United States and France.
This would be based on the fact that the amendment to the flag law and the enhanced punishment it provides – certainly with regard to the provisions that deprive individuals of certain benefits, if these provisions are also passed into law – infringe on freedom of expression (which the High Court of Justice recognized as being part of the right to human dignity) in a nonproportional manner and that it should be stricken – or at least should not apply in situations involving political or artistic expression.
But it would be better, of course, for the Knesset itself to refrain from sweeping legislation of the kind that already exists, and that it is now seeking to worsen.
In 1996, when Jerusalem Deputy Mayor Haim Miller called the Israeli flag “a stick with a blue and white rag on it,” the attorney general at the time decided not to open an investigation. This was due to the fact that freedom of expression also included the right to express views that were abhorrent to members of the public. The High Court of Justice then rejected a petition in which the court’s intervention over the attorney general’s decision was sought.
Miller actually apologized for his remarks, but in the face of the current constitutional attack by Boker and her colleagues, it should be noted that, ultimately, the flag is just a symbol. One can feel a variety of emotions regarding symbols, but sanctification of a symbol through legislation at the expense of freedom of expression turns it into a tool directed at political protest and artistic creativity – as the various cases that have arisen on the issue show.