The High Court of Justice urged the Culture Ministry on Monday to reconsider its policy of financial rewards and punishment for Israeli arts organizations, based on whether or not they hold performances in the Negev, the Galilee and West Bank settlements.
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The court was hearing a petition against the policy submitted by the Association for Civil Rights in Israel.
ACRI argued that both the negative and positive incentives were equally harmful to freedom of expression, but justices Esther Hayut, Hanan Melcer and David Mintz disagreed. They asked the ministry to consider canceling the negative incentives but leaving the positive ones in place, and to give the court its answer by August 15.
Nevertheless, the justices also wondered why ACRI was filing the petition at all when a party far more directly affected by the policy —the Cultural Institutions Forum — withdrew its own petition to the High Court.
The policy, introduced by Culture Minister Miri Regev in April 2016, gives cultural institutions a 10 percent budget increase for performing in the three specified areas but penalizes them with a 33 percent funding cut if they refuse to perform in these areas. Aside from arguing that this policy violates freedom of expression, ACRI also argued that it creates inequality by penalizing all institutions equally, even if they fail to perform in these areas through no fault of their own — for instance, because they weren’t invited, or because there are no suitable venues for their performances.
Ran Rozenberg, the lawyer representing the ministry, told the court that about half of the 61 theater, music and dance organizations that applied for ministry funding in 2017 were eligible for the bonus. “Today, there’s not a single cultural organization that can show the funding criteria negatively affect it,” he added.
“You say the issue of the cuts hasn’t arisen, so perhaps you should cancel it?” Melcer responded.”If there’s no such thing, why leave something that’s no good on the law books?”
Rozenberg responded that there’s nothing wrong in principle with imposing the fines. “No funded organization has a right to receive a particular level of funding,” he said, adding that the policy is meant to ensure that state-supported cultural institutions also serve outlying areas of the country.
“Making culture and art accessible to all Israeli citizens is a legitimate criterion, but the question is what means are used to implement it,” Hayut countered. Quoting government figures showing that the smallest number of performances were in settlements, she stressed that the data still doesn’t answer the question of “why is this so?”
“Perhaps in the Negev and Galilee, there isn’t as much demand for cultural consumption of this sort, so to encourage it, you need to give bonuses,” Melcer added. “But to say ‘this is the situation’ and then impose fines is very harsh. Giving is different from taking away.
“There’s an objective situation of the chicken and the egg,” he continued. “You want to change it, and that’s legitimate. The question is how. You don’t punish someone for an objective situation. When you’re dealing with the right to cultural and to support for culture, you’re walking on a very narrow and very shaky bridge. Granting such support isn’t a privilege, but an obligation.”
ACRI attorney Dan Yakir argued that the criteria were clearly politically motivated. Hayut then asked whether mixing political considerations with funding criteria was legitimate, and Rozenberg responded, “We’re not there.”
“The question that troubled the minister and led the ministry to these funding criteria was whether it’s possible to change the miserable situation of access to culture for residents of Judea and Samaria,” he added, using the Hebrew term for the West Bank. “In our view, it’s not a political consideration to make culture accessible to 400,000 Israelis.”
The Israel Culture and Arts Forum said that ACRI had asked it to join the petition, but it decided not to. “We support the petition, but this time, we decided they should do it without us,” a spokesperson said. “We’re already waging several wars against the ministry, so we must use our judgment about what we do and what we don’t do. If we’re asked by the court, we’ll be happy to express our opinion.”