Opinion

Lara Alqasem and Israel’s Anti-constitutional Revolution

The moment that a 'fear' is sufficient for imposing restrictions, we are distancing ourselves from democracy in the direction of tyranny

U.S. student Lara Alqasem during a hearing at the Tel Aviv district Court on October 11, 2018.
Tomer Appelbaum

The ruling of Judge Erez Yakuel in the Tel Aviv District Court, in which he rejected the petition of American student Lara Alqasem against the prevention of her entry into Israel, is part of an anti-constitutional revolution.

The ruling was based on the amendment to the Entry Into Israel Law, which mandates that “No visa and residency permit of any type will be given to a person if he, [or] the organization for which he works, has knowingly issued a public call to impose a boycott on the State of Israel, or has committed to participate in such a boycott.”

The court rejected the petition, noting that Alqasem was a member of a student organization at the University of Florida that called for a boycott, and even served as its president. Judge Yakuel did not see fit to take into account that these were activities that took place in the past. He said that the purpose of the law is to prevent entry to anyone who is “likely” to exploit his stay in order to promote calls for a boycott, and ruled that this fear is still quite strong even now.

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In light of that fear, the decision was approved, despite Alqasem’s claim that she has discontinued her activity in the boycott organization, and despite her promise to refrain from any such activity during her stay in Israel.

In handing down this ruling, Judge Yakuel in effect rejected a long history of judicial decisions, which began already with the famous Kol Ha’am ruling in 1953 (when the court overturned a decision by the interior minister to stop the publication of the Communist party organ). The decision in that case was that a “fear” is not sufficient, but that in order to curtail rights there must be a near certainty that genuine harm would be caused to the public order, and that in the absence of such certainty the court must reject executive branch decisions that undermine rights.

The moment that a “fear” is sufficient for imposing restrictions, we are distancing ourselves from democracy in the direction of tyranny. When in 1953 the interior minister demanded that the newspaper be closed due to a law that permitted such a step in the event of the publication of something “liable” to harm the public welfare, Justice Shimon Agranat ruled in the High Court of Justice that this was insufficient. Now it was enough for the District Court that there is a “fear.”

Yakuel’s ruling also shows that if in the past it was thought that the wave of anti-democratic legislation in recent years would be of a declarative nature only, and not change Israeli reality – in fact these laws have teeth and actual consequences. Even broader consequences than what could have been expected.

For example, the ruling of Judge Moshe Drori in the Jerusalem District Court. He ruled that in the context of deciding on compensation for victims of terror attacks, the clause that the government “shall strive to ensure the safety of members of the Jewish People and of its citizens” in the Basic Law on Israel as the Nation-State of the Jewish People justifies punitive compensation in the event of an attack on Jews. Because, he said, the law is not solely declarative. This ruling contradicts the one that in the past obligated equal treatment for the country’s citizens – even if such equality was of course not actually implemented.

These judicial rulings are thus part of the anti-constitutional revolution taking place here in recent years, and of which the nation-state law, along with the proposed override clause that would let the Knesset reenact laws overturned by the Supreme Court, are part. To understand this revolution, it isn’t enough to observe what is taking place in the High Court. The judges in these cases have internalized the “spirit of the commander” that was reflected in the words of Justice Minister Ayelet Shaked, who said that ”Zionism will not continue bowing its head before a universalistic system of individual rights.” On the way they have rejected the basic concepts of constitutional law.