Point / Counterpoint: Is Israel's democracy slipping?

Counterpoint to:

Israel's democracy is slipping  
"We Israelis like to think of ourselves as 'the only democracy in the Middle East'. But recently, indications have accumulated that Israel is becoming more rather than less like its neighbors."

Nir Eisikovits
The Christian Science Monitor (Boston)
September 24, 2008

Nir Eisikovits, writing in the Christian Science Monitor - a daily newspaper that celebrates its centenary this year and whose influence extends way beyond its 50,000 circulation - draws our attention to recent Israel legislation. 

The first (which still awaits final ratification) exempts the state from compensating Palestinians harmed during Israel Defense Force (IDF) operations in the territories.

The second, aimed at curtailing the travel of Arab members of the Kenesset (MK), states that any Israeli who has visited an "enemy country" shall be considered a supporter of armed struggle against the Jewish state (unless proven otherwise), and will be prevented from running for parliament in the seven years following the visit."

Due to this legislation Eisikovits believes that we need to be concerned about democracy in Israel. In fact he goes even further in suggesting that Israel's democracy is becoming more like the regimes of its neighboring countries.

Could this be true? Let us examine Eisikovits' perception in a broader context.

Think of the countries you admire, - the democratic ones. Which of them do you regard as faultless? None, of course. That is because democracy is a goal to be aspired; it is like the horizon, no matter how close we get it is always beyond us.

Countries are measured by the degree of democracy they achieve, and by the circumstances under which they achieve it. Thus we might respect Spain or Northern Ireland more than Switzerland or Finland, because the Spanish and the Northern Irish provide their liberties while having to deal with ETA (the Basque separatists) and the IRA. In other words, our respect for a society is often inspired by the extent to which it provides liberties under difficult circumstances. 

That is what is remarkable about Israel's democracy. Not that it is superior to the democracies of Finland or Switzerland, but that it provides broad civil liberties under extremely difficult circumstances. 

After the 1941 Japanese attack on Pearl Harbor, more than two hundred thousand ethnic Japanese were interned by the Americans in "war relocation camps", even though most were US citizens. The Canadians acted similarly. And more recently, the British government approved legislation to detain terror suspects for 28 days without charge (former prime minister Blair's request for 90 days was rejected).

And one of the most criticized pieces of recent legislation in the free world is the United States' Patriot Act, passed by wide margins in the Congress in October 2001 immediately following the September terror attacks. The stated goal was "To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." The act was conceived, drafted, revised, and signed into law 45 days after 9/11 and it alters at least 15 federal statutes.

The Patriot Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial and other records; eases restrictions on foreign intelligence gathering within the United States; expands the Secretary of the Treasury's authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhances the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorrism-related acts.

Notwithstanding the attacks and threats on the United States, Canada, and Britain, these countries have never been exposed to the threat of survival that Israel has been subjected to for more than half a century.  Yet despite their controversial actions and legislation, we regard the United States, Canada, and Britain as bulwarks of democracy in an increasingly repressive world. 

Eisikovits appropriately recalls what former Israeli Chief Justice Aharon Barak has called "defensive democracy", and recognizes that there are circumstances where it is appropriate to practice it. Thus Eisikovits accepts that in extreme cases, constitutional protections can justifiably be curtailed, provided the circumstances are, indeed, extraordinary, the curtailment is minimal, and the fact of curtailing is considered a "big deal".

He then goes on to say that the Knesset's two new laws pass none of these tests.

Whether they do or not is certainly debatable, and Eisikovits provides no grounds for his disconcerting conclusion (other than his own subjective opinion).

Let us examine the two items of Israel legislation, using Eisikovits' criteria (extraordinariness, minimal curtailment, and "bigness" of deal).

Should Israel be exempt from compensating Palestinians in all cases of hostilities between the two sides? A state of war exists between Israel and the Palestinians that periodically flares up and subsides; this is what the current peace negotiations are trying to end. Despite the fact that this situation has existed for decades, war is by no means the natural state of affairs between the two peoples (history books are full of wars that have gone on for decades). 

War is an extraordinary situation, and is certainly a "big deal" for both sides.

As for minimal curtailment, the Geneva conventions require all armies to minimize damage and harm during combat to that which is necessary for legitimate military purposes. Thus, minimal curtailment is inherently required in all military actions by the IDF, making this law perfectly legitimate even according to Eisikovits' criteria.

Regarding the parliamentary consequences for Israelis who visit enemy territory without authorization, conformance to Eisikovits' minimization of curtailment is questionable. This is primarily because part of the burden of proof has been shifted to the accused - certainly not one of the finer examples of civil liberty. 

So what do these two laws say about Israel's democracy? Actually not much. Even strong democracies sometimes enact bad laws, and there have been attempts to do so in Israel in the past.

But in a recent democracy audit of 150 countries, Israel ranked in the top quadrant at 31 (Jordan ranked at 82, Lebanon 88, Egypt 93, and Syria 138). And previous audits provided no indication that Israel's democracy ranking is slipping. While it is certainly true that Israel should do better, for a country entangled in a seemingly never-ending battle for survival it is not doing too badly.