Israel's slipping democracy

We Israelis like to think of ourselves as "the only democracy in the Middle East." The label has a variety of uses: We invoke it to explain our special relationship with the United States, to set ourselves apart from our authoritarian Arab neighbors, to account for our remarkable economic success, and to justify occasional requests for EU membership.

There are, of course, well-known problems with this democratic self-understanding. Our basic constitutional documents speak of a "Jewish democratic state" while about 20 percent of our citizens are non-Jews. We have no separation of synagogue and state. We have, for over 40 years, maintained illegal settlements and a harsh military occupation in most of the Palestinian territories captured in 1967.

And yet, Israel is certainly the most democratic nation in the Middle East. Iran reportedly executes homosexuals, Syria regularly detains human rights activists and dissenters, Egypt jails men essentially for being diagnosed with HIV/AIDS, Lebanon fails to exercise control over its territory, and Turkey considers banning its largest political party.

We, on the other hand, have a vibrant free press, an independent judiciary, an active parliament, and, as attested by the recent legal troubles of Israeli Prime Minister Ehud Olmert who announced his resignation this week, independent-minded prosecutors.

But being the most democratic nation in a region marked by despotism is not the same as being democratic. And recently, indications have accumulated that Israel is becoming more rather than less like its neighbors.

Earlier this summer, Israel's parliament, the Knesset, passed two troubling pieces of 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.

That law's drafter, Zevulun Orlev, the head of the parliamentary faction of the National Religious Party, explained that the statute will prevent the election of "trojan horses" into the legislature. Arab MKs would now be forced "to decide between the Syrian parliament and the Israeli parliament." On the same day these votes took place, the Knesset's Constitution, Law, and Justice Committee extended the validity of a provision exempting police from videotaping interrogations touching on security matters. The extended immunity is good for four years.

One does not need to be a constitutional scholar to worry about a democracy that eliminates access to its courts, curtails the right to be elected, and chooses to protect its police rather than detainees. Since all these measures were widely popular with Israelis, it is worthwhile reiterating an obvious point: Democracy is not only about the rule of the majority. Rather, its essence lies in empowering the majority without allowing it to tyrannize the minority. Such a balancing act is possible only if a robust set of political rights is in place. A state that jettisons these in favor of national security will probably stay safe, but it will rarely stay democratic.

To be sure, there are circumstances where it is appropriate to practice what former Israeli Chief Justice Aharon Barak has called "defensive democracy."

In extreme cases, constitutional protections can justifiably be curtailed. We have all heard of "ticking bomb" scenarios, and most agree that democracies have no special obligation to commit suicide. But, for such defensive action to be acceptable, the circumstances must, indeed, be extraordinary, the curtailments minimal, and the fact of curtailing considered a big deal.

The Knesset's new laws pass none of these tests. The sponsors of the new legislation remind us that we are engaged in an epic battle against the rising tide of political Islam.

Perhaps so. But if this characterization is true, the key to victory lies in becoming the best rather than worst example of ourselves.

The US diplomat George Kennan saw this clearly in the early days of the cold war. Winning, he insisted, required that America "measure up to its own best tradition and prove itself worthy of preservation..."

Though no one listened at the time, Kennan's lesson is well worth learning. Unless Israel does everything it can to preserve its political decency, it will not win because it will not be right. Failing to measure up to its best democratic traditions, failing to prove worthy of preservation, it might just not persevere.

• Nir Eisikovits, an Israeli lawyer and philosopher, is the director of Suffolk University's Graduate Program in Ethics and Public Policy. His forthcoming book is titled, "Sympathizing With the Enemy: Reconciliation, Negotiation, and Transitional Justice."