"Democracy must not silence even outrageous opinions"

Prof. Moshe Cohen-Elia Photo: Eyal Yizhar

Prof. Moshe Cohen-Eliya tells "Globes" about his concerns for freedom of expression and democracy in Israel.

Earlier this month the Arab rapper Tamer Nafar went on stage at the Haifa Festival and performed his famous protest song against the State of Israel. Prior to his appearance, there had been a major storm whipped up by Likud activists through Facebook posts threatening to disrupt the performance. Minister of Culture Miri Regev had demanded that Haifa Mayor Yona Yahav cancel the rapper's show, charging that Nafar "conceptually opposed the state of Israel."

Yahav refused the demand and the performance went ahead under heavy security and in the shadow of vociferous protests, curses and abuse from the right wing activists in the audience. The presence of MK Hanin Zoabi expressing her support for Nafar, enflamed the atmosphere and the MK was forced to surround herself with heavy security to protect her from the threatening audience. The performance took place and was completed but this is not the end of the story in terms of its impact - and due to similar storms surrounding Arab artists recently - freedom of expression, and human rights in Israel.

President of the College of Law and Business in Ramat Gan Prof. Moshe Cohen-Eliya had harsh words to say on this matter. He said, "There is today abuse of power by the State in providing licenses and allocating funds to theaters and cultural events in order to silence people. This is a dangerous thing. What happened the other week with the Arab rapper is exactly this type of incident in which the State is wrongly involved. Minister Miri Regev can get up and leave in the middle of a performance in order to express her protest but to persecute the same singer and create an atmosphere of censorship? That's not right. That has a chilling effect. People will be scared to express themselves artistically and say what they feel. This has a destructive effect on society, and on a democracy, which should be alive and kicking."

Prof. Moshe Cohen-Eliya, a human rights activist and leading expert on constitutional law in Israel, has been deeply involved in the legal arena for human rights and freedom of expression for more than 20 years. Prof. Cohen-Eliya grew up in Haifa in one of the city's poorest neighborhoods, which is blighted by drugs, and has a mixed Arab-Jewish population. Out of this melting pot, he developed a huge and uncompromising awareness for freedom of expression and human rights as well as minority rights - which subsequently became his career focus.

Prof. Cohen-Eliya today fears that Israel is moving backwards on these issues. "I view with concern and anxiety what is happening now. The Haifa Municipality took the right step by not cancelling the performance but there are broad repercussions to any event like this."

He explained, "The fact that the state allocates funds for cultural events and artists does not give it the freedom to promote only those ideas with which they feel comfortable."

"As soon as the State becomes not just of the majority but everyone, then Arabs and other minorities must also be given the opportunity to express the ideas that they identify with. They often say that 'it's the State's money and it can allocate it however it wants in order to promote culture,' but the money also belongs to the citizens and Arabs are also citizens of the country."

According to Prof. Cohen-Eliya, there is a dangerous trend developing that seriously threatens freedom of expression in Israel. "If it was just one instance, then it would somehow be possible to accept the minister's position, but we already see a pattern of persistent behavior by the State that has a cumulative effect on freedom of expression. There is more and more detrimental use of money by the state."

Should Minister Miri Regev take a step back?

"I can connect to a large part of her agenda, which is to include as many people as possible in the dialogue and break the mold of closed elites and create leadership. But the moment you say, 'Look, I'm not a censor but I have money and I was elected with a certain agenda, and I want to promote it through financial largesse and you won't get money, if you don't do what I think,' then I connect less with that."

"I'm concerned about overuse of this tool. That's how it was for example in the case of the Arab actor that played in "Arab Labor" TV series Norman Issa and who didn't want to appear in the occupied territories and Regev told him, 'whoever doesn't act in the territories doesn't get a cent.' Technically, that's not censorship, but it cuts off his source of income and what he has spent his life building - he and his wife who built a theater to serve as a bridge between Jews and Arabs - and everything can be wiped out."

We must not silence people, even Zoabi

Prof. Cohen-Eliya might be portrayed as an angry prophet - he is critical of the State's attitude to same-sex couples and civil marriages, administrative detention, and a long list of types of human rights violations - but not everything is black in his eyes. In an interview with "Globes" that maps out the State of Israel's constitutional ID ("Relative to the difficult challenges that the State of Israel must cope with, we have good and proportionate answers). He welcomes the dialogue between the government and the Supreme Court ("It's very good that judges are under attack and there is criticism of judges. Nobody is sacred.") He warns how our intolerance towards remarks from all population sectors may harm us (When you ban an extremist political party, this party might resort to violence and terror"), and he explains why academics must become more involved in legal practice ("no academic course provides a substitute for the excitement of appearing in the Supreme Court").

Israel 2016 Are human rights being dragged down?

"You must separate various fields. In the field of religion and the state, we are in a shocking situation. The world is talking about homosexual marriage but in Israel heterosexual couples cannot get married in a civil wedding. People must travel abroad in order to get married. There is here a substantial need to alter the situation. It influences issues like bastardy, delays in granting divorce. This matter of coercing me to get married in an orthodox Jewish ceremony in Israel seems to me something that is simply inconceivable. It's a significant problem in Israel.

"The second problem is of course the security tensions and how you balance between freedom and security. In this context, there are human rights problems the entire time both in terms of administrative detentions, demolition of homes, and security checks. Israel's legal system has developed balancing mechanisms on this matter, which are not perfect, because there are still areas that need to undergo change, but many countries worldwide are learning from us."

"In 2002, after the 9/11 terror attacks in 2001, when I was doing post-doctorate studies at Harvard, a conference was held under the headline "Should torture be permissible?" and all the time they were quoting the ruling by Israel's Supreme Court on the matter of torture. Liberals there relied on the Israeli Supreme Court, and said, "Even in Israel, which copes with so much terror, they decided to prohibit torture." So in relation to the difficult challenges that confront us, which are genuinely not simple, we have good answers to a large number of the problems, which are also proportionate."

And despite all that we have to cope all the time with claims against us by the world, such as calls for a boycott on Israel and imposition of sanctions by the BDS movement that operates today.

"I'm very opposed to the BDS movement, which thinks that by external pressure on Israel it is possible to achieve better results in terms of human rights. The significance of democracy is that the debate must be conducted within Israel, and it is wrong to silence opinions, even outrageous opinions, like those of MK Hanin Zoabi, which draw fire."

Prof. Cohen-Eliya has closely experienced the fire that MK Zoabi draws. In March 2015, at an election conference at the College of Law and Business that he heads, she was attacked by a young person in the audience who attended the conference and who threw a cup of water over her, provoking a disturbance.

Zoabi has become a kind of symbol for freedom of expression among her supporters, and on the other hand she manages to annoy people in the government that think she should be suspended from the Knesset.

"I don't support her ideology, but it links up to the question of whether we want defensive democracy here. In the 1980s, in order to stem the Kahanists, we decided to adopt the German model of defensive democracy. The Kahanists were genuine dangerous because they has a large potential to convince many people. They can speak to the entire Jewish population."

"But on the other hand, the maximum that Hanin Zoabi can achieve is to persuade some of the Arabs living here to support her. She cannot reach the majority. So the question arises what do you do with such voices that come to stir up provocation, and the answer is simply not to be dragged into the provocation. Then she says, so what? We need to stretch our limits of tolerance much more than we think."

"As long as I cannot point to any tangible damage caused by this or that provocative comment, we must continue forward. People in the country have developed such sensitive minds that it's exaggerated. People that I very much appreciate and respect in the Knesset lose their self-control when Zoabi speaks. Guys, calm down. You don't understand that you are being dragged into the provocations that she is asking for. It's exactly what she wants. So Zoabi can say what she has to say and we can carry on and nothing will happen. You are only strengthening her opinions. Nobody would talk about it if there were no reactions to her. Perceptions about tolerance here are very slim and that bothers me somewhat."

We are known as an impatient nation. We're don't have any tolerance either?

"Lacking patience that's clear. That's our DNA. But we also have a problem regarding tolerance. The court was correct in almost erasing the idea of 'defensive democracy.' There is no such thing as defensive democracy in Israel in the case law of the Israeli Supreme Court. It exists in the law and there are one and a half instances of Kahanists being banned, and that's it. The court is faithful to the line that the political system has to contain alternative voices and not leave them outside. When you leave somebody out, then you leave that extremist element with violence and terror as the only way. When it is inside, it must play according to the rules of the game, to some extent. So it's preferable to be inside rather than outside."

A new type of academic institution - daring and activist

Prof. Cohen-Eliya is president of the College of Law and Business in Ramat Gan, which is not a "standard" academic college. He comes from a Mizrahi family, is only 49 and is the youngest president of an academic institution in Israel and he challenges the consensus and perceptions that have characterized Israeli academia over the years. Among other things he is working to pull academia out of the theoretical world into the practical world; leading a new type of academia: activist academia, which can be found in the courts, out in the real world, where he is trying to change reality.

As the new academic year is set to open, he stresses that students be prepared to etch on the doorways of faculties of law that there is no substitute for practical and value-based readiness. "No academic course can serve as an alternative to the excitement of appearing in the Supreme Court, preparing for professional debates, and the feeling of satisfaction of being able to make a fundamental change in Israeli society," he said and he himself strives so that students can instill into themselves the practical experience that they so much need.

Prof. Cohen-Eliya has been responsible, among other things, together with the lawyers of the "Clinic for Social Change" at the College of Law and Business and the students learning in the clinic, for three of the main petitions submitted to the High Court of Justice over the past decade. The most recent petition was a request to cancel the "stability clause" in the natural gas outline agreement, which was accepted, and led to a new agreement.

Prof. Cohen-Eliya is proud to say that, "This is a new kind of academia. Academia that is much more involved, daring and activist. Beyond the classic professional knowhow and tools, it also provides students with the tools to identify social injustice and to work resolutely while using the powerful tools permitted to them by the industry in order to change the face of society. It may be more comfortable to make do with passing a course on professional ethics, but it is more appropriate to provide students with the ability to genuinely change things in society's reality."

That said, he immediately explains, "We are an academic institution, not a political-ideological institution, and I certainly don't want in any way to come along and say, 'This agreement is good for the economy or bad for the economy.' I think the court should also not do that. We, together with Adv. Efy Michaely, only petitioned against the unrestricted, binding instructions of the State's ability to be released from the agreement, and that argument was accepted.

"The decision by the High Court of Justice led to a major attack on it at the Israel Bar Association conference in Eilat. Minister of Justice Ayelet Shaked stood there and attacked the High Court of Justice in front of the court judges that sat before her in the hall, in front of Chief Justice Miriam Naor, and she said, 'how can you do this.' That attack was simply groundless. The charge was that following the High Court ruling the gas companies would get out of Israel, the entire agreement would collapse, and the gas would remain underground. And what happened? Following the ruling, the State achieved a better agreement in the binding nature of its decision making, it was softened, they spoke in terms of operative 'efforts,' as distinct from 'commitments.' The new outline agreement is better for the State and its citizens, even if it is not ideal."

Our relationship to refugees testifies to a deep problem

The opening shot in the revolutionary petition by Prof. Cohen-Eliya's College of Law and Business was fired some years ago in 2009, when the College submitted a petition against the privatization of the prisons that was accepted and led to the disqualification of the privatization.

Prof. Cohen-Eliya said, "The former President of the Supreme Court, Judge Dorit Beinisch, who wrote the main ruling on the matter of the prisons, spoke a little about what happened behind the scenes on this ruling at a conference in which she participated. She said, 'We came out of the discussions and we said there are not strong legal arguments here but we all agreed that it simply should not be done.' It simply seemed to them that it wasn't right. It's a type of intuition. And that's part of our challenge in the academic system, to motivate a dialogue that causes most of the public to think about what is the right thing to do. The ruling against the privatization of the prisons was one of the most activist rulings in the history of the State because the legal case was relatively weak but everyone felt that it was not an appropriate thing."

Dialogue between the High Court and politicians

Subsequently, in 2015, the College led the petition to cancel the "Infiltrators Law" (which set that illegal immigrants would be imprisoned in Holot until they were deported), which was accepted and led eventually to the cancellation of the law and the protection of the rights of asylum seekers. The relationship to refugees, or as they are called in Israel "infiltrators," infuriates Prof. Cohen-Eliya. "I always think of us, the Jewish people that suffered so much when nobody wanted to take us in during the Nazi period. I think about the ship that was able to escape from Nazi Germany in 1938 but after sailing to Cuba, the US, and Canada and nobody wanted to take it in, returned to Europe. We have been too quick to forget this."

"The way in which Israel relates to the refugees is not proper. The fact that we are not even prepared to check why they came here, and call them 'infiltrators' testifies to how profound the problem is. It is true that no small number of them are people that want to improve their quality of life, and are not entitled to the status of refugees, but we have to at least carry out an examination process. The only instance where an individual from Sudan received recognition of refugee status was a young man studying here, Mutassem Ali, the leader of the asylum seekers. That's the only case in Israel. History was made here. It does not make sense that one person from all the Sudanese refugees is recognized as such."

Prof. Cohen-Eliya views the results of the petition against the "Infiltrators Law" as a victory after the imprisonment of the refugees in the Holot detention center was cancelled. However, the ruling in his eyes has broader implications that influence the entire constitutional debate in the country. "What is interesting in this case is the dialogue that was created between the Knesset and the court. The Supreme Court comes along and strikes down a law, the issue returns to the Knesset, the Knesset passes a new law, and again the Supreme Court rules that it is disproportionate, and again strikes it down, and once again it returns to the Knesset.

"This is the only instance in Israel which created such a ping-pong effect between the Knesset and the court and there is something healthy in this. All the time there are those who claim that there is tyranny here by the judges and that they are in fact managing the country but that is not the reality. In reality, the judges need to create a dialogue with the State, that is to say, 'you can't do it that way amend it.' The judges give a kind of guidance to the administration, through the doctrine of proportionality and this ultimately to a better result. The Supreme Court is today holding a healthy dialogue with the legislature."

A constitution that will set rules in a divided society

What kind of High Court do we have today? Activist as it was under Aharon Barak?

"We are in a process in which we are moving from as homogenous court in which there was an amazing, huge charismatic figure called Aharon Barak, who was its intellectual leader, to a court that is meant to me much more bipolar, and that's okay. The court still isn't there but it's on the way. I'm in favor of disagreement in the Supreme Court. It's important that there will be disagreement among the judges, and the results won't be so predictable."

The results in the Supreme Court are predictable?

"In the past they were more predictable, because the agenda of the judges was closer together. Today they are less predictable because the Supreme Court is less homogeneous."

Have the attacks by politicians on the court every time that it hands down a decision on a basic petition been a factor in the change that the Supreme Court has undergone?

"I don't think so. The judges have changes and their opinions are more diverse."

And what's your opinion of these attacks on the Supreme Court?

"What's wrong with it? It's very good that judges are also being attacked and that there is criticism of judges. Nobody is sacred. Of course it must be done in a dignified and relevant way but it's absolutely legitimate and it doesn't get me excited. Over the years, there have been very many bills to restrict the powers of the Supreme Court and to cancel the "limitation clause" that empowers the Supreme Court to cancel laws but none of the bills was ever passed."

"So what is happening here? There is a dialogue through signals. The political system signals to the court 'know that if you go too far we will take steps.' The court is sensitive to these signals and strives not to cross a certain line and that's fine. This dialogue is fine. We must rely more on a system of balances. It works. Not in the optimal way but the court has made this small law, the basic law of human dignity, into a constitution, and put all the rights into it. In terms of this, we are in a relatively good place despite not having a constitution."

Do we need a constitution?

"We unequivocally need a constitution. The aim of the constitution is to set the rules of the game and they are required, particularly in a divided society. Israel is a divided society and without clearly setting the rules of the game, we will have a problem. There is a problem of democratic culture. When we talk about democratic stability, it is not only derived from what the laws say but also what people think.

"When I look, for example, at the fact that one in three students registering for first grade is ultra-Orthodox, which has no civil education, I ask myself what will be in another 18 years, when these people go to vote? Where have they nurtured the culture that will be a condition for democratic stability? I'm very bothered about these processes. A constitution would solve many problems here."

The Cinderella story of Moshe Cohen-Eliya: "Stories about transformation, release from oppression and freedom really excited me."

Several years ago inspectors from the Central Bureau of Statistics knocked on the door of Prof. Cohen Eliya's parents in Haifa's Lower Hadar. When they got to the first floor of the building they got caught up in a police raid on the drugs laboratory of the downstairs neighbors and rushed to get out and off to the next apartment. When they got to his parents they politely asked, 'What do your children do?' They answered that one is a law professor and a second a computer engineer, and the third an electrician. The inspector was amazed, 'In the entire street we've not heard of one academic graduate.'"

In a nutshell that is the Cinderella story of Prof. Cohen-Eliya a child from a Mizrahi neighborhood who grew up in poverty, penniless, but with a lot of ambition became a leading professor in his field and president of an academic institute.

He grew up in Haifa's Lower Hadar not far from Halisa, one of the city's poorest neighborhoods. His mother was a housewife that raised him and his two siblings and his father was an uneducated construction worker. "At home we were hard pressed for money," he recounts. But he did not feel impoverished in his childhood because everything around him was the same. Only when he went to junior high school in the middle class Carmel neighborhood did the reality of his life hit him hard.

"It was a painful crisis. I went up to seventh grade at the Carmel school and all my friends had large, beautiful houses and money. It was very hard. You were suddenly exposed to all kinds of stigmas and prejudices about somebody raised in Hadar and I had to position myself with a strong group. I had to decide where I was was I with most of the Mizrahi Hadar guys or the Carmel set. I connected to the Carmel people because I was a good student."

The fact that he was a good student distinguished him from the kids in the neighborhood. All the Hadar students dropped out in high school. He was the only one remaining. His brother also bucked the statistics and finished high school. His older brother went to the Technion and is today a senior engineer with HP. His younger brother completed his studies and chose a blue collar job and works as an electrician.

As a child, Prof. Cohen-Eliya never thought of studying law. He dreamed of being a professor of history. "I read about John Stuart Mill and people that fought for freedom and that really spoke to me. I was very moved to read about all sorts of revolutions and people released from oppression. The history of the people of Israel always depressed me because it was one phase of oppression after another with almost no positive points. But when I came across the story of a group that was persecuted for years and gained freedom, then that really moved me."

In the army, he served in the 8200 intelligence unit and when he was discharged he had to decide what to learn and he was in a dilemma: to make money or chase the dream he had wanted his entire life He chose money and went to study law. He funded his studies from scholarships for outstanding students and work in all sorts of social projects but by his first year he felt he was deceiving himself.

"In the first year at the Faculty of Law in Jerusalem, I really suffered. I was always sitting and looking at my watch so that the lesson would end. It seemed like a mere analytical game without substance or significance."

"Only in the second year, when I took a course on administrative and constitutional law, did I connect with the material and I understood that emotionally I connected more with public law, in which you can genuinely make change. So this entire period of my student life I was a coordinator in the Perach schoolchildren mentoring program, I worked in a prison, and I lived with a released prisoner in an apartment. In everything related to social activities, I really blossomed, and I tried to connect what really interested me with the world of law."

And then he undertook his clerkship in the High Court department of the State Attorney and then as a lawyer he worked for the Association for Civil Rights in Israel (ACRI). "I was really happy. I felt I was doing things that were really significant. Money alone cannot satisfy you. You need something significant in life," he said.

At ACRI, he acted in human rights cases, and promoted legislation in the field. Among other things, he formulated the "Prohibition of Discrimination in Goods and Services Law" ("that's what I'm most proud of") and represented in the High Court, together with Adv. Dan Yakir, the soldier Sagi Tsemach, who was imprisoned for 96 hours without being brought before a judge. He had only been a lawyer for three months, and became part of a constitutional revolution, when the High Court banned for the first time a law that is disproportionate, and ruled that it is not permissible to hold soldiers in detention for protracted periods without bringing them before a judge.

Subsequently, he chose to leave practice and move ahead on the academic track. He did a doctorate at the Hebrew University and post-doctrate studies at Harvard, while at the same time continuing to work in the field of practical law that led to the principal Supreme Court petitions through the "Clinic for Social Change" at the College of Law and Business, which he heads.

Prof. Moshe Cohen-Eliya

About: 49 married to the writer Iris Eliya-Cohen, winner of the Prime Minister's Prize for creativity and father of 4 children. Born and raised in Haifa and today lives in Kiryat Tivon.

Education: Ph.D. Law, Hebrew University of Jerusalem and post-doctoral studies at Harvard Law School in the field of human rights. In June 2015, he was appointed a Full Professor by the Council for Higher Education.

Profession: President of the College of Law and Business in Ramat Gan. In his previous position he served as Dean of the College's Faculty of Law.

Activities for Human Rights: Has worked over the years in the field of human rights. In the past he served as a lawyer for ACRI where he formulated the "Prohibition of Discrimination in Goods and Services Law" and represented to the High Court (together with Adv. Dan Yakir) petitioners Sagi Tzemach, that led to the reduction of days in prison for soldiers before they are brought before a judge.

Something More: He founded the journal "Law and Ethics of Human Rights" which is regularly ranked among the three leading international legal journals outside of the US (out of 657 journals). In 2013, he founded the junior researchers workshop for law faculties in Israel.

Published by Globes [online], Israel business news - www.globes-online.com - on October 30, 2016

© Copyright of Globes Publisher Itonut (1983) Ltd. 2016

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Prof. Moshe Cohen-Elia Photo: Eyal Yizhar
Prof. Moshe Cohen-Elia Photo: Eyal Yizhar
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