Degrading democracy

Human rights organizations rarely win popularity contests. Even in the most robust democracies they are considered to be a thorn in the side of incumbents: they consistently force decision-makers and the public to look in the mirror and to examine themselves – blemishes and all. They are, however, scrupulously protected and their freedom of action is carefully safeguarded. No replacement has yet been invented that can so assiduously maintain fundamental rights and prevent abuses of power.

Israel boasts a broad array of civil and human rights groups which, over the years, have advanced individual well-being and promoted minority rights. They are directly responsible for significant improvements in the quality of life of the citizens of this country. Nevertheless, they have increasingly come under attack by those who disdain dissent and have an ingrained aversion to diversity. Now, once again, a bill designed to de-fund these associations has been presented to the Knesset.

Ayelet Shaked, the whip of the Jewish Home Party, along with fellow party member Robert Ilatov, last week proposed legislation to limit foreign state funding to NGOs “if the goals of the non-profit organization, or conduct of any member, employee or member of the board of the non-profit organization expressly or implicitly supports…” either questioning Israel as a Jewish and democratic state, calling for boycotts or for the prosecution of soldiers in international courts, or backing racism and terrorism (the latter are already forbidden by law). Members of Knesset Shaked and Ilatov know full well that the Attorney-General, Yehuda Weinstein declared two similar pieces of legislation, proposed respectively by Ophir Akunis and Faina Kirshenbaum in the last knesset, to be effectively unconstitutional. The resurrection of their initiative at this juncture is meant, first and foremost, to revive the campaign against progressive civil society, to cast aspersions on this group of organizations, to debunk them publically, to urge donors to withhold financial support and, ultimately, to destroy them. If this isn’t anti-democratic, then the term has lost its meaning. And for precisely this reason, this legislative effort deserves to be summarily dismissed before it gathers any further momentum.

In December, 2011, Yehuda Weinstein (in what for him is still considered an exceptional move) wrote a formal opinion to Prime Minister Netanyahu explaining why he would be hard-pressed to defend attempts to limit foreign governmental funding to non-profits through legislation. His brief is as pertinent today as it was eighteen months ago.

The first reason these bills should be struck down, according to the Attorney-General, is that they “severely undermine constitutional rights – including freedom of expression, freedom of association and the right to equality.” Concerned that such legislation would put Israel in the same line with a handful of countries that have acted against civil society organizations (such as Russia, Egypt, Somalia and Venezuela), he explains that Israel can’t continue to extol the work of its civil society and human rights organizations and then proceed to limit their funding. “It’s true that these organizations’ activities don’t always accord with the Israeli government’s positions,” Weinstein wrote. “But they are an important voice that shouldn’t be silenced.”

The Attorney-General goes on to highlight the inequities inherent in the proposed legislation. He couldn’t explain then, and it is difficult to explain in the resurrected Shaked-Ilatov version, why foreign governmental contributions should be cancelled while private donations – far larger in number – shouldn’t be similarly limited. In his mind, such a step would seriously violate the principle of equality and give undue advantage to certain groups at the expense of others.

The second reason why such legislation should be abandoned relates to the fact that the purpose it serves does not merit overriding basic constitutional rights. Although the revived bill ostensibly “…seeks to limit the involvement of foreign state entities in Israel’s democracy which comes about through foreign support of non-profit organizations,” this initiative, like its predecessors, in Weinstein’s opinion, is aimed against human rights organizations, which operate according to the law: “silencing their legal activity cannot be a legitimate goal.”

In the third instance, this legislation has been deemed utterly disproportionate. Prohibiting foreign governmental donations to certain organizations is inappropriate. If these groups transgress the law, ample legal tools already exist to deal with their possible infractions. To go beyond this is nothing short of political harassment. What is needed is greater transparency on the sources of funding of civil society organizations of all sorts: something which is already provided for in the law of non-profit organizations and was further reinforced by amendment in February, 2011. But Weinstein went even further in his brief: “The right way to deal with different opinions is by raising counterarguments in the framework of open discourse in the ‘marketplace of ideas’ that characterizes democratic society”.

Put together, barely eighteen months ago the Attorney-General determined that he would oppose legislation to limit foreign state funding to non-profits and, should such a law be adopted, he would not be able to defend it in court. Everything he said applies to the Shaked-Ilatov bill with an additional twist: the current initiative seeks to track the positions “expressly or implicitly” of the staff, volunteers and board members of non-profits. Such a task requires policing of a sort unheard of in open societies. In reality it is also totally impracticable and consequently even less defensible than the Akunis and Kirshenbaum proposals on which it is based.

It is, indeed, a sad commentary on these confused times that Members of the Knesset, purportedly in the name of democracy, propose a law which the Attorney-General of the country has already declared unequivocally to contradict the minimal constitutional requirements in any self-respecting democracy. If the aim of the promoters of this bill and their parliamentary allies is to strengthen their political position at the expense of their opponents, they may yet succeed. But if such initiatives are meant to fortify Israel – either in the eyes of the democratic world or internally in the eyes of its heterogeneous citizenry – then such a move is nothing short of self-defeating. This is the stuff that “baseless hatred” – the reason for the destruction of the temple centuries ago – is made of; it is as detrimental today as it was then.