Hassan Jabareen
Haaretz (Opinion)
November 29, 2011 - 12:00am
http://www.haaretz.com/print-edition/opinion/the-right-context-1.397580


The government frequently tries to justify its anti-democratic bills by comparing them to laws in democratic states. For example, it contends that the newly proposed bills regarding the nomination procedures for Supreme Court justices reflect the process used in the United States. When the coalition passes anti-Arab legislation like the "Nakba law," which lets the finance minister cut the budgets of publicly funded institutions that commemorate the Nakba, it argues that we have to defend Israel's values as a "Jewish and democratic" state, by citing the German legal principle of "militant democracy." The government also has made similar comparisons to justify bills that would severely limit foreign funding to local human rights organizations.

It is important for governments to compare themselves with other nations. Given the current state of affairs, it is perhaps even a good sign that the Netanyahu coalition still believes it needs international legitimacy to justify these bills. However, when a comparison does not consider the other nations' social, political and historical circumstances, it can be inaccurate and misleading. It is true that some of the worst crimes against humanity have been committed by "Western" democracies: the Holocaust, slavery, apartheid and segregation. But today, regimes such as those in Germany, South Africa and the U.S., whatever their defects, are based on fundamental civil rights and respect for separation of powers.

The U.S. Supreme Court has a long and distinguished history of constitutional review; it has intervened in numerous laws passed by Congress and in executive political decisions. A decade ago, in Bush v. Gore, it even decided who would be president, based on a majority vote of just one justice. No political leader called for limiting the court's power in response to this decision, which was fully implemented.

While U.S. citizens elected an African-American president, in Israel the Knesset tries to disqualify the Arab minority's political parties from every election because those parties advocate full equality and inclusion, "a state for all of its citizens." When Germans use the term "militant democracy," they are referring to defending the rights of ethnic minorities from racist politicians. And while the EU wants to promote human rights abroad, the Netanyahu government seems far less committed to these values than it does to limiting the EU's ability to promulgate them in Israel, by its repeated attempts to restrict NGO funding.

The disingenuity of the government's international comparisons is evident when one compares politicians' rhetoric for audiences within Israel with the diplomatic discourse they employ abroad. At home, this government harshly criticizes the Supreme Court; abroad, the Foreign Ministry boasts proudly that Israel has the world's strongest high court. While officials criticize former Supreme Court President Aharon Barak's rulings regarding Palestinian cases, the Foreign Ministry hands out a booklet at conferences abroad listing these same cases as evidence that Israel is committed to the rule of law and democratic values. While right-wing lawmakers incite daily against Arab Knesset members, Israeli officials support their argument that Israel is not an apartheid state by raising the fact of Arab Knesset representation.

An American friend reported happily to me how he had heard an Israeli right-wing diplomat praising the NGO I lead, Adalah: The Legal Center for Arab Minority Rights in Israel, as an example of Israel's commitment to its Arab citizens' rights. What my friend did not know is that at home, the foreign minister attacks Adalah and other human rights groups daily.

In the past, we human-rights litigators tended to cite progressive rulings by Western countries' national courts when we argued before Israel's Supreme Court. Lately, we have been finding that the most effective comparisons are to Western nations during their darker days. Even during segregation and apartheid, these countries' national courts sometimes succeeded in defending human rights. For example, to challenge the new anti-boycott law, which prohibits publicly promoting boycotts of Israeli institutions and settlements, a good comparison would be to the U.S. during segregation, when the Supreme Court defended the freedom of expression of black institutions such as the NAACP when they boycotted racist white companies and state services. In making the case against the Israeli citizenship law, which banned family unification in Israel between Palestinian-Israeli citizens and their Palestinian spouses from the West Bank and Gaza, the best comparison is a landmark decision by a South African court that struck down the apartheid-era policy, which banned family unification between blacks in urban cities. During the Supreme Court hearing on the Nakba law last month, the state argued that no country would allow some of its citizens to mark its Independence Day as a day of mourning. We responded that not only do many natives in settler countries such as the U.S., Canada, Australia and New Zealand still perceive the national Independence Day as a tragedy, but those states have in many cases apologized and recognized their historical injustice, and even fund some of the native populations' commemorative days.

Regarding the NGO funding laws, apartheid South Africa behaved entirely differently than Israel's government is seeking to do now: There, the regime did not prohibit the U.S. and European countries from funding human rights organizations; rather, the human rights organizations threatened the donor states that they would stop taking funds from them if these states did not boycott the apartheid regime.

Maybe it is better, therefore, when comparing this government's legislation, to do so in the right context.




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