Legal Guardian

With Israel facing criticism after passing a series of highly controversial laws that have been labeled undemocratic, Knesset Legal Adviser Eyal Yinon finds himself on the frontline against extremism, armed only with his persuasive powers.

The discussion in the Knesset Interior and Environment Committee at the beginning of January was fraught with tension. Under a bill drawn up by the Interior Ministry, foreign workers who were married to Israelis but had not finalized their legal status in the country would be deported for a period of up to 10 years, and only afterward would they be able to try to arrange their status anew. The attorney general, Yehuda Weinstein, had approved the bill and the government had promised its support.

But the Knesset's legal adviser, attorney Eyal Yinon, showed up for the meeting ready for battle and scuttled the proposed legislation. He accused the government of crassly ignoring High Court of Justice rulings and attempting to place a "constitutional obstacle" before the Knesset. The bill, which was drawn up by one of Yinon's judicial patrons - former attorney general Menachem Mazuz - was originally intended to prevent Palestinians from living in Israel by means of fictitious marriages to Israelis. However, according to Yinon, "The proposed wording refers not only to Palestinians but also to volunteers in kibbutzim, tourists and foreign workers," whereas the court had ruled that people have a right to a family life with whomever they choose as their partner. Yinon's tough talk did the trick: The bill was struck from the agenda and will probably not reappear during the tenure of the present Knesset.

Eyal Yinon
Yanai Yehiel

Four months later, Yinon has not softened his criticism. "I was very surprised that the government allowed itself to send a bill like that to the Knesset," he admits. "It's no simple matter to oppose the government, but I think there was some sort of eclipse there."

Yinon has been the Knesset's legal adviser for a little more than a year - and it has been a particularly turbulent year. The overriding tendency in the present Knesset is right-wing ideological legislation, which draws sharp criticism for exceeding the bounds of democracy. Amid these storms, Yinon has found himself playing the role of the responsible adult. He is supposed to advise the legislators how to act according to the law; if a petition is submitted to the High Court against a bill, he has to explain to the justices that the proposed legislation is within the law.

MKs are frustrated because Yinon is forcing them to soften their bills, but those who are affected by such legislation view him as an accomplice to a crime, as whitewashing evil. Last March, the Association for Civil Rights in Israel (ACRI ) published a report stating that the present Knesset has passed a record amount of anti-democratic, discriminatory and racist legislation which violates human rights (see box ). However, in a first interview since assuming his post just over a year ago, Yinon stands firmly behind these laws.

"I reject vehemently allegations that the present Knesset is harassing minorities and politically persecuting the Israeli left," he says. He adds that, in his view, there are some on the left who are creating a deliberately distorted picture of the laws. "It is possible that labeling this legislation racist serves certain people who want to unite the opposition camp and are trying to create media buzz and a very large public protest," Yinon says. "It's right and good for there to be a lively public debate, but to claim that this is racist legislation is short-sighted.

"I truly believe that not one of the laws can be categorized as racist," he continues, "certainly not in the classic legal definitions of racist legislation." Yinon is referring to the fact that the wording of the laws does not explicitly differentiate between Jews and Arabs. "If the laws were racist," he adds, "I would not hesitate for a minute to invoke my authority and recommend to the Knesset presidium not to place them on the House agenda. I have no doubt that the attorney general would not allow the government to support such laws."

Yinon describes the developments in the Knesset as a shift in the conception of Israeli democracy, a change in content without exceeding the boundaries. "Perhaps in contrast to its predecessors, the 18th Knesset is definitely making a statement," he says. "It is changing the point of balance in Israeli democracy between important basic values such as freedom of expression, freedom of protest, freedom of political association, freedom of political action; and values such as nationalism, national security resilience or national honor. Apparently, the majority of the 18th Knesset thinks that these values, too, deserve to be taken into consideration."

Critics argue that these laws are undermining Israel's international image.

"The criticism maintains that the laws are assisting the campaign of delegitimization from which Israel is suffering throughout the world. But from where I sit, I say that the campaign being waged against the laws on the grounds that they are racist is contributing just as much to the delegitimization. I get requests from embassies and international organizations to explain about the racist legislation being enacted by the Knesset.

"One can argue about the wisdom of these laws at a time when Israel is fighting for its international status," he continues, "or about their wisdom in regard to Israel's Arab citizens, who perceive them as a threat, but it is impossible to say that they are racist in terms of the accepted legal definitions of racism. It would be far from simple to prove to the High Court of Justice that these are racist laws. When the court examines laws, it does not address tendencies, spirit or motives that underlie the legislation - only the legislation itself. And you see that these laws are not racist and that it's doubtful that they contain any significant constitutional flaws."

Don't you think that the climate these laws are creating will make part of the public lose faith in the Knesset?

"If I am to act effectively in regard to the issues I am dealing with, I have to distinguish between grumbling in parlors and judicial opinions. The climate you refer to, if it exists, lies in the sphere of public debate and should be the concern of the public's elected representatives. It is not the affair of the legal adviser to the Knesset. It can be assumed that I have fully formed views on the subject, but I draw a complete separation between my being a citizen and this post. That is one of the challenges that face legal advisers; I do not deal with climate, tendencies, spirit."

The middle way

The Admissions Committee Law is one of the most heavily disputed pieces of recent legislation. For the first time, the Knesset has made it legally possible for settlements to carry out a selection process of people who wish to live in them. According to the sponsors of the law, Kadima MKs Shai Hermesh and Israel Hasson (a parallel bill sponsored by MK David Rotem from Yisrael Beiteinu was annexed to their bill ), its purpose is "to allow communal settlements to preserve their social-cultural fabric."

In the light of broad criticism of the bill, Knesset Speaker Reuven Rivlin decided to intervene. His handling of the legislation is an example of the close - some would say too close - cooperation between the speaker and his legal adviser. The Yisrael Beiteinu party, which on several occasions found Yinon an obstacle to its legislative ambitions, did not hesitate to claim that the legal adviser was writing political opinions as a sop to left-wing MKs and thereby aiding the ambitions of his patron, Rivlin, to become Israel's next president.

The harmony between Yinon and Rivlin is plain to see. Yinon is without doubt an adviser who is there to help his boss. This is even more apparent when seen against the background of the poor working relations Rivlin had with the former legal adviser, Nurit Elstein. Yinon replaced her in April 2010, after previously serving for three years as Knesset secretary. As soon as he became legal adviser, the disagreements between the speaker's bureau and the adviser's office ceased. Yinon emphasizes that his relations with Rivlin are purely professional and that he is not a friend nor part of the bevy of aides that buzz around the speaker. "My relations with him, as with his predecessor, are professional and businesslike," he says.

Indeed, in the Knesset Yinon is seen as businesslike and affable. The move to appoint him legal adviser was met with such wide agreement among MKs that the chairman of the Knesset Constitution, Law and Justice Committee, MK Rotem, was moved to caution him: "It doesn't please me to hear all the praise being heaped on you. Take into account that this is the last time people will say good things about you, because if they do it will mean that you are not doing your job properly. The role of the legal adviser is to please no one."

The legal adviser to the Knesset does not have the power to reject laws or revise their wording. His main task, like that of the legal advisers to Knesset committees, consists of persuasion. Yinon is very good at finding the middle way that creates a balance between the worlds. "My DNA shows that I come from a typical National Religious home of the old school, with the values and education that entailed," he says. "My professional background is in the judicial system, with [retired] Justice Mishael Cheshin, for whom I clerked; former attorney general Menachem Mazuz; and even attorney Talia Sasson, with whom I worked in the State Prosecutor's Office. I think I have internalized the norms and values of both worlds and I interact well with both of them. I think this facilitates my work, especially in my present position."

The Admissions Committee Law is an example of Yinon's capability as a mediator - and also his ability to adapt himself to Rivlin's wishes. Following the criticism leveled at the bill, Rivlin stated he would not allow it to be put to the vote until it was revised to prevent discrimination against Arabs, new immigrants, single-parent families or same-sex couples. Yinon mediated between Rivlin and the bill's sponsors in an effort to come up with new wording which limited the law's application to communities of up to 400 households (the original bill stipulated 500 ) in the Negev or in Galilee (not in the whole country, as per the original bill ), in an effort to reduce the infringement on equality of rights.

Still, the legality of even the watered-down version is in dispute. A petition against the law was submitted to the High Court of Justice by ACRI and the Abraham Fund Initiatives. Intellectuals and Israel Prize laureates identified with the left were critical of the law, claiming it enabled minority groups to be rejected under the clause that stipulates "suitability for the community's social-cultural fabric." Yinon vehemently rejects these allegations.

"This is a classic example," he says, "of pulling the wool over the public's eyes. It is impossible to praise and acclaim the Israeli invention of 'communal settlements,' be they kibbutzim, moshavim or other settlements which by definition engage in filtering and selective acceptance, and on the other hand, when an attempt is made to enshrine the mechanisms without which a communal settlement could not be established, to raise a hue and cry.

"We live in a reality in which there are communal settlements in Israel, many of which are considered a magnificent Israeli creation worthy of encouragement. We need to find the balanced mechanisms to ensure their existence but at the same time not to abuse the mechanism in order to discriminate against people without good cause. The law was not sponsored by MKs from factions which are branded anti-Arab, but by a member of the land-settlement movement, Shai Hermesh, who is from Kibbutz Kfar Aza, and by his colleague, MK Israel Hasson, who is also not considered one of those who is constantly acting against Israel's Arabs.

"Not one of the bill's critics stated ahead of the vote that we should shut down the kibbutz movement for being racist in its essence and accepting people selectively," Yinon adds. "I have not heard of many Arabs who live in kibbutzim, not even those of Hashomer Hatzair" (the left-leaning kibbutz movement ).

Bill co-sponsor MK David Rotem said the law could prevent the acceptance of Arabs into Jewish communities. If the law allows selection like this, maybe its wording is flawed?

"What Rotem says in the media is a matter for public response; I am talking about the law and its clauses. With very meaningful backing by the speaker, we ensured that the law's internal mechanisms do not make it racist. Nor is it likely that the court will overturn it. I have no doubt that if the law is used in that way [to exclude Arabs], the courts will invalidate those decisions based on the clauses of the law itself. There are clauses that stipulate explicitly that a candidate for a community cannot be rejected on grounds of race, religion, gender, incapacity, personal status, age, parenthood, sexual inclination, country of origin, and political outlook and affiliation. There was a fight over every word in that clause. But what are the critics up in arms about? About a clause that stipulates that a candidate can be rejected because of his unsuitability to the social-cultural fabric; here it will be necessary to strike a balance between the clause of unsuitability and the clause that prevents discrimination."

Despite the provisos, a secular group that wants to live in a Haredi community, or single-parent mothers who want to move to a conservative community will be rejected.

"The law does not change the existing state of affairs. The discourse about the law is filled with hypocrisy and self-righteousness. It's not that a person can now be accepted to any community he is interested in - Haredi, secular, Arab, etc. Some of the High Court decisions that overturn decisions by the government or by the Israel Land Administration are justified, because they stem from an absence of legislation. The law actually makes the existing situation more difficult, because it contains all the mechanisms, balances and appeal options. Accordingly, the law will be tested in its implementation. The court can draw on the law's mechanisms to overturn decisions if it thinks the law is not being implemented properly and the grounds cited for rejecting people are invalid."

Does the law define what is meant by "social-cultural fabric," by which candidates can be declared unsuited?

"No. You cannot define everything in laws."

Filling a vacuum

Despite Yinon's deep involvement in the enactment of the Admissions Committee Law, it was a different public storm that thrust his name into the headlines: The establishment of parliamentary inquiry committees to examine the behavior of a few left-wing and human rights organizations. One of the committees, headed by MK Fania Kirshenbaum (Yisrael Beiteinu ), was to deal with the way certain Israeli organizations were causing the delegitimization of the Israel Defense Forces abroad, with the focus on the organizations' financing; and a second committee, under MK Danny Danon (Likud ), was to examine land purchases in Israel by foreign entities. In February, when the formation of the committees was being discussed in Knesset committees, Yinon surprisingly issued an unusual legal opinion which suggested he had serious reservations about the inquiry committees.

"For the first time, the proposed committees will be occupied with clearly ideological matters and dealing with bodies identified with only one side of the political map, which is currently in the opposition," Yinon told the Knesset House Committee. He went on to note that the proposed committees "want to deal with what is being interpreted as the narrowing and limiting of basic rights in a democratic regime, including the basic right to freedom of expression, freedom of protest and freedom of political association - rights that are the very heart of a democratic regime." Yinon explained that establishing the inquiry bodies was legal, but called on the committee to proceed cautiously and give consideration to whether the harm liable to be caused by the inquiry committees would not outweigh any benefit. The Knesset went ahead and approved the committees' establishment and appointed their members. However, the committees have not begun operating and the subject has in the meantime been dropped from the agenda, after members of the coalition decided not to support the move.

Some MKs cite Yinon's legal opinion as a key reason for changing their mind. However, Yisrael Beiteinu attacked him fiercely. In an official statement, the party said Yinon's opinion was political and was motivated by his desire to back the position taken by Rivlin as part of a campaign to become president after Shimon Peres. "I regretted the official statement, which was aimed at me personally and drew a connection between my functioning and the hidden, or unhidden, ambitions of the Knesset speaker," Yinon says. "The statement was unwarranted. It crossed a line.

"It is necessary to respect the officials and their viewpoint, even if it is not understood," he continues. "There is no need to become personal. But I possess enough personal and institutional resilience to withstand it in both directions: It will not prevent me from expressing my opinion in the future, and on the other hand I bear no grudge against Yisrael Beiteinu or any of its MKs."

"I was very surprised by the intensity of the positive and negative reactions to the stand I took," Yinon reflects. "Apparently I filled a vacuum in the internal discourse of the Knesset, and perhaps also outside it. When I wrote my opinion on the morning of the hearing, I never imagined it would resonate as it did. I considered it a basic stance which it was my duty to articulate. I did not coordinate it with the speaker. There are times when I feel that the legal adviser to the Knesset has to speak out with the full weight of his authority. I think I presented a purely legal position, perfectly balanced."

It is important for Yinon to emphasize that what Yisrael Beiteinu MKs see as a political statement is, in his view, a legitimate legal opinion. "There is confusion here between a concept of democracy in its narrow sense, as majority-minority rules of the game, and a broad concept of essential democracy, which deals with freedom of expression, freedom of criticism, freedom of protest and freedom of property. It is often easy to accept what a legal adviser says on procedural matters. But legal advisers are also the guardians of the essential conditions of democracy. The confusion stems from the fact that the essential matters intersect with issues that are not only legal in character. It's an ideological thing, sometimes philosophical. Freedom of expression is not a judicial invention. Anyone who reads what I said on the subject will see that it is balanced, not militant. I stated that MKs have the power to establish these committees, but that it would be very good if they proceeded cautiously because of the precedent they would be setting."

Checks and balances

This was not the last of the heated Knesset disputes Yinon had to face. Last October, the Knesset plenum decided to deprive MK Hanin Zuabi (Balad ) of three parliamentary privileges, after her participation in the Free Gaza flotilla. At the suggestion of MK Michael Ben Ari (National Union ), which was adopted by the House Committee, it was decided to take away her diplomatic passport, deprive her of the right to receive funding for legal aid, and bar her from entering countries which Israeli citizens are barred from entering. Thirty-four MKs voted in favor of the motion, 16 against.

The vote was preceded by fiery discussions in both the plenum and House Committee. Committee chairman MK Yariv Levin (Likud ), for example, told Zuabi, "You have no place in the Israeli Knesset, you have no right to hold an Israeli ID card. You are shaming Israel's citizens, the Knesset, the Arab population and your family." Zuabi retorted: "It is not surprising that a state which denies a million Arab citizens their basic rights is depriving an MK who represents her constituency faithfully of her rights."

Zuabi and various organizations petitioned the High Court of Justice against the denial of her rights. In response to the petition, Yinon again displayed his ability to strike a balance between different pressures. He stated that the decision did not materially affect Zuabi's work and did not even prevent her from taking part in similar flotillas in the future. Yinon investigated and found out that a diplomatic passport only "shortens the lines" at airports and has no meaning apart from the prestige of holding the document. As for the right to visit places abroad which Israelis are prohibited to enter, that is not relevant, because there is no longer a need to obtain permission from the army and the Defense Ministry in order to go abroad. And, finally, the right to legal aid is, in any case, dependent on the approval of a public committee, which can block such aid if it turns out that an MK violated a law flagrantly.

"I said that the rights she was being deprived of were not serious," Yinon explains. "If she had been deprived of meaningful rights, it could have been claimed, with justice, that the Knesset was limiting the ability of an MK to perform his/her duties. There is no big drama here at the practical level, only at the symbolic level, though I do not make light of that in the least. I would not like people to think that depriving an MK of rights is something minor."

Yinon takes pride in the fact that, although originally the idea was to strip six MKs of their privileges after meeting Muammar Gadhafi in Libya, in the end only Zuabi lost some rights. "We worked to ensure that the decision of the House Committee and the Knesset plenum would be far more balanced between granting the broadest possible freedom of political action to MKs, and the use the MKs make of that right."

Still, even though it is the political issues that draw the greatest public attention, Yinon takes most pride in activity that generated fewer headlines: The Knesset's "victory" over the treasury and the government, resulting in the meaningful abridgment of the Arrangements Law, which is actually a series of riders attached to the Budget Law. "Our work in connection with the Arrangements Law constitutes a milestone in the relations between the Knesset and the government," Yinon claims. "We prevented a very serious infringement of citizens' rights and of proper legislative procedures."

The Arrangements Law - which had its genesis in Shimon Peres' government's economic emergency plan in the mid-1980s - has become, in effect, an anti-democratic mechanism. Using the Arrangements Law, the government imposes its will on the Knesset, skirting serious legislative procedures which require public debate and social consideration.

"The government tends to sleep during the year, saying, 'The Knesset is tough, there will be opposition, so why should I sweat to pass laws?'" Yinon notes. However, attaching legislation to the Budget Law vanquishes the recalcitrant MKs: If the budget is not passed, the Knesset is dissolved. MKs don't want new elections, so they approve the legislative package of the Arrangements Law without going into it too deeply, and the government thus enacts significant reforms without having to work to persuade MKs, and also without recourse to public debate.

This year, yet again, the government presented Reuven Rivlin with a thick volume containing dozens of clauses and sub-clauses, which was to accompany the two-year budget. "The treasury really played it big this year," Yinon says, "because it thought this might be the last opportunity to push through all the reforms wanted by the present government."

Despite his friendly professional relations with treasury personnel, Yinon is not sparing in his criticism. "I think the treasury wields undue dominance in the government, because of the dedication and seriousness of its personnel. It is neither my job nor my business to intervene when that dominance is reflected in the management of the government's affairs overall. But when it touches on legislative procedures and the content of government-sponsored legislation, it is my task to redress the imbalance that exists in the government between the treasury and the other ministries. I refer in particular to the social-welfare ministries, which are very weak in intra-governmental power relations."

At a certain point, Rivlin and Yinon realized their talks with the treasury to reduce the scope of the law were getting nowhere. "We decided, between us, not to place the Arrangements Law on the Knesset agenda. That was an exceptional move and almost unheard of in regard to government-sponsored laws." Concurrently, the two refused to allow the finance minister, Yuval Steinitz, to yank bills being discussed by Knesset committees in order to insert them into the Arrangements Law.

"We decided to signal to the treasury and the government that the Arrangements Law was tantamount to crossing a red line and was unacceptable," Yinon says. The pressure worked: Dozens of clauses were removed from the original wording. Some were reframed as bills placed separately on the Knesset agenda. "The government shredded the booklets that had already been printed and was forced to print new ones," Yinon reveals.

Yinon agrees there is often a disparity between the image that MKs and the media create about events in the Knesset, and their true influence on reality. He also agrees that MKs frequently exploit the regulations and harness their activity in the Knesset to the wagon of their political goals. Nevertheless, he declines to term what goes on in the Knesset a "circus." His role, he says, "is to take very seriously both the MKs and their activity. I do not belittle any action by an MK, even if the media perceives it as having been done with the aim of making the headlines. I do not see anything in the Knesset as a circus. I cannot say that MKs do things just for the headlines; I take it all seriously."

Who is Eyal Yinon?
Age: 44
Divorced, father of two, lives in Jerusalem with his partner
Legal adviser to the Knesset since April 2010
Attorney since 1995, clerked for the deputy president of the Supreme Court, Justice Mishael Cheshin
Past posts: Attorney in the High Court petitions department of the State Prosecutor’s Office; senior deputy to the legal adviser to the Prime Minister’s Office; senior adviser to the then-attorney general, Menachem Mazuz; appointed Knesset secretary in 2007
From a religious family, turned secular during army service
His father, Micha Yinon, was formerly chairman of the Israel Broadcasting Authority and head of the state’s Culture Administration

Advice squad

Unlike the attorney general, who as the legal adviser to the government can disqualify legislation before it is sent to the Knesset for a vote, the legal adviser to the Knesset does not possess the power to invalidate legislation, even if it is unconstitutional. His task is solely to provide legal advice to parliament. “True, I do not have veto power,” Yinon says. “If a committee decides, against my objections, to accept a bill, and the Knesset plenum approves it, it is definitely possible that illegal legislation will enter Israel’s law book.”
Yinon agrees that, despite the sharp criticism over the High Court’s interventions, it’s good to have an institution with the power to overturn laws. “I think that power is properly placed,” he says. “It has to be wielded very sparingly, with maximum restraint. Our role, that of the professional forces, is to inject a balance into problematic legislation which will make it difficult for the High Court to overturn it.” In Yinon’s view, the High Court of Justice is a “strategic asset” for Israel.

A law unto themselves

The last session of the Knesset saw an array of legislative initiatives which are liable to reduce Israel’s democratic nature. Laws that were enacted include:

The obligation to disclose financial support by a foreign state entity - the so-called “New Israel Fund Law.” Passed in softened form, according to which every person or body that receives support from a foreign country has to report this every three months ‏(an already-existing obligation‏) and to disclose countries that fund advertising campaigns.

The “Nakba Law” ‏(Amendment 39 to the Budget Principles Law‏). Passed in a softened version, under which public funding will be denied to institutions that mark Nakba Day ‏(referring to what the Palestinians term their “catastrophe,” namely Israel’s creation‏), debase “the honor of the flag or the state emblem” or express a view that rejects the state’s existence as “Jewish and democratic.”

The Admissions Committee Law ‏(amendment to the Cooperative Societies Ordinance‏), allowing communal settlements in the Negev and Galilee regions of up to 400 households to reject candidates for residence who are unsuited to the community’s “social fabric.” The law explicitly prohibits rejection on grounds of religion or ethnic origin.

Law to revoke citizenship for persons convicted of terrorism or espionage. Passed in a softened version, according to which the revocation of citizenship will be carried out under the supervision of the attorney general and with the proviso that those subjected to the process must not be left without a status.

Works in progress

The following bills have passed the first Knesset reading ‏(of three‏):

Prohibition to impose a boycott. Anyone who calls for a boycott is committing an offense of damages and can be sued for compensation by those affected.

Amendment of the Citizenship and Entry Law. A tribunal will be set up in the Justice Ministry to deal with immigration and status matters. The bill’s critics say the tribunal will violate the principles of separation of powers, the public character of hearings and other basic rights.

Coming soon

The following bills are on the Knesset agenda:

Amendment to the Libel Law. This will make it possible to file a libel suit, a civil suit or even to indict criminally anyone who speaks ill of Israel or its institutions.

Pledge of allegiance. The oath taken by members of local councils will include the state’s categorization as “Jewish and democratic.”

Amendment of the Income Tax Ordinance. An organization receiving funds from a foreign state entity will lose the right to be tax-exempted, and the donation will be taxed at a rate of 45 percent.

Amendment of Companies Ordinance. A company that refuses to buy or supply services to parts of Israel will be subject to dissolution, as it is deemed to be harming the state’s citizens.