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December 6, 2016 / 6 Kislev, 5777

Posts Tagged ‘legislation’

Combating BDS by Legislation: Different Approaches, Same Goal

Sunday, June 26th, 2016

New York Governor Andrew Cuomo recently issued an executive order directing state entities to divest all public funds from companies supporting the Boycott Divestment Sanctions campaign (“BDS”) against Israel, and to refrain in the future from doing business with such entities.

In so doing, New York joined several other states that have taken some form of counter-boycott measure against BDS, in addition to more that are currently considering legislation to that effect. While these measures have each targeted the anti-Israel BDS movement, there exist some notable differences in their language and form.

Before examining these legal differences, I should state the obvious: governors and legislatures are morally and politically right to counter-boycott BDS. The so-called BDS movement is part of a broader campaign to delegitimize, demonize and discriminate against the nation state of the Jewish people, and to undermine any reasonable prospect of a negotiated peace between Israelis and Palestinians.
The claim of BDS advocates that their bigoted boycott is really about promoting international respect for human rights is demonstrably false. If BDS were concerned with human rights, it would target first the worst human rights offenders and those regimes that permit no dissent or access to justice.

But the so-called BDS movement does not target Iran, China, Belarus, Saudi Arabia, Cuba or other such offenders (indeed many BDS advocates seek to increase ties with Iran, Cuba, and China despite their horrid record on human rights). Instead BDS targets only one nation: the democratic nation state of Israel, which, despite being subjected to terrorist attacks virtually on a daily basis, has a free press and an independent judiciary. No country faced with comparable threats has had a better record on human rights, of compliance with the rule of law, and of efforts to reduce civilian casualties in armed conflicts.

Israel has also offered to end the occupation – as it did in Gaza – on numerous occasions in exchange for peace based on a two-state solution, but those offers have not been accepted by the Palestinian leadership, or by hardliners like Omar Barghouti, one of the leaders of BDS, who declared “I am completely and categorically against bi-nationalism because it assumes there are two nations with equal moral claims to the land.”
Israel like every country including our own is far from perfect – and I and other supporters of Israel have been critical of its flaws – but it has internal mechanisms for addressing its imperfections. There is no legitimate reason for singling it out for the kind of external discrimination represented by BDS.

One of BDS’s core components – the Academic and Cultural Boycott (“PACBI”) – encourages participants to disassociate from Israeli cultural, artistic and scientific institutions, and to blacklist individuals deemed too supportive of Israel. I recently learned that I too feature on this blacklist when Omar Barghouti refused to debate me in front of the Oxford Union. The PACBI guidelines endorse boycotting individuals who cross the BDS “picket lines” by cooperating with Israeli academic institutions or blacklisted individuals. They also encourage the boycott of all cultural and academic institutions or artists that promote “Brand Israel,” including for example the singer Matisyahu.

Even more egregiously, PACBI calls for the boycott of institutions that promote “normalization projects” which do not sufficiently emphasize the injustice of the occupation, even if those projects aim for Israeli-Palestinian dialogue and reconciliation. The BDS movement also implicitly opposes a twostate solution by explicitly endorsing the so-called Palestinian right of return, which would in effect unwind nearly 40 years of negotiations, and destroy Israel as the nation state of the Jewish people.

In short, governors and state legislatures are right to combat BDS as a matter of public policy – BDS is immoral, discriminatory, and undermines US interests abroad. Thus far, however, states have adopted different models in this effort. Most have adopted laws that make specific reference to Israel. Florida, for example, now requires the State Board of Administration to “identify all companies that are boycotting Israel,” to divest all public funds from those entities, and further prohibits “a state agency or local governmental entity from contracting services” from those companies. Other states have embraced more general provisions. California, for example, is considering legislation that forbids the state from doing business with companies that discriminate on the basis of nationality or national origin. Similarly, Alabama has passed a bill divesting from companies that boycott US allies, or nations enjoy “normal trade” with the United States.

There are merits to both approaches. On the one hand, the obvious target of these laws is the anti-Israel BDS movement. After all, there is no significant boycott movement against another US ally. Including reference to Israel in the text of the bill helps cement the purpose of the legislation, and prevents state resources from being wasted identifying and combating small-scale boycott movements. On the other hand, legislation with non-specific language may have some benefits as well, namely that it more directly reflects the legal principle at the heart of anti-BDS measures – that it is generally wrong to discriminate on the basis of nationality or national origin. Such language also mirrors federal anti-boycott laws, which penalize companies and individuals that participate in boycotts based on race, religion, sex, national origin or nationality.

Regardless, recent claims by the pro-BDS punditry that any anti-BDS regulations are McCarthyite is both misleading, and insulting to the victims of real McCarthyism who were punished for their ideas, speeches and associations, not for their actions in refusing to do business based on national origin. Yes, anti-BDS regulations often results in lists of companies that discriminate against Israel, just as there are lists today of store and building owners who refuse to do business with, for example, African-Americans, LGBTQ, or Muslims. Proof is required that a business engaged in a discriminatory boycott by singling out Israeli entities, or individuals based on their national origin, or political convictions, and there is a process for challenging inclusion on any list. The only McCarthyist blacklist is that which has been complied by BDS enforcers – a list I am proud to be on – of supporters of Israel and of those who seek to “normalize” relations between Israelis and Palestinians.

To be clear: anti-BDS regulations should go no further than the counterboycott of companies that actually engage in discriminatory actions. No one, not even the most rabid BDS-activist, should face legal recriminations for expressing an opinion that is supportive of BDS, or for encouraging others to support BDS. Political speech – even bigoted, misguided political speech – is clearly protected by the constitution. The wording of Governor Cuomo’s executive order in this regard raises some red flags: if regulators target institutions for “promot[ing] others to engage in any [BDS] activity” by means of speech rather than economic pressure, the courts should strike down that provision, while upholding the remainder of the order. Similarly, the bill currently under consideration in the Kansas legislature that would defund academic institutions for funding student associations supportive of BDS impacts speech and association rights of pro-Palestinian students and faculty members. It should be revised to avoid any constitutional challenges.

That said, most anti-BDS measures are clearly directed at discriminatory business activities, and not at speech or advocacy.

So applied, such counter-boycott regulations will promote political, artistic and cultural freedoms by imposing economic sanctions on those BDS bigots who are seeking to suppress such freedoms by discriminating against Israeli, and pro-Israeli advocates, artists, cultural figures and businesses.

 

{Portions of this op-ed were first published in The Daily Beast under the title “New York is Right to Counterboycott Anti-Israel Boycotters.”}

Alan M. Dershowitz

New Legislation Would Free Up $1.5 Billion in Credit for Israeli Housing Starts

Thursday, June 9th, 2016

Construction companies are no longer allowed to charge their customers fees for their own legal services, according to a key item in a new amendment to the Sales Law being promoted by the Ministry of Housing and Construction, Calcalist reported Thursday. Another significant change in the law would remove the requirement that contractors post a bank guarantee for the VAT portion of the cost of the apartment, and instead the state would set up a special fund to cover the buyers’ outlay. This would save contractors millions of dollars, releasing more than $1.5 billion in bank credit to the real estate market. The construction firm would still have to insure the rest of the buyer’s investment, in case said firm goes out of business.

The Housing Ministry, which began the move to amend the law nine months ago, is hoping the changes would pass by the end of the Knesset summer session in August. The move was spurred by the common understanding that the construction section of the current Sales Law is outdated, and has led real estate companies to develop their own ways of bypassing it, at the expense of their customers. The amendments were forged by an inter-office team that included Deputy Attorney General Erez Kamenetz, the Consumer Protection Authority, the Finance Ministry, and the Tax Authority.

“It is our responsibility to help the Israeli public get accessible housing, while legally protecting the buyers and maintaining fairness in all processes,” Minister of Housing Yoav Galant told Calcalist. One of the problems in the way housing business is done in Israel has to do with the buyer paying the contractor’s attorney for processing the new apartment at the Land Registry Office (the local word for the office is Tabu — no relation to taboos, the word is simply the Arabic mispronunciation of the Turkish word Tapu, or title-deed). A recent legislation limited the fees paid to said attorney to about $1,300, but even so, the clients may believe that by paying his fees the attorney is now working for them, which he certainly isn’t — he remains in the service of the contractor.

The Housing Ministry believes that registering the apartment and providing a legal deed is part of the overall product the contractor is expected to provide, and so they now want to go one step further and eliminate altogether the requirement for buyers to pay for this service.

There are other amendments which are not as crucial economically, but certainly add transparency to the process of buying an apartment in Israel. Companies would have to inform buyers of every change they intend to make in the original construction plan, for instance, if they want to add apartments. They also must inform buyers of changes in nearby lots, so that, if, for instance, their magical view of the Mediterranean would now be blocked by a 48-story tower, buyers would have the opportunity to get out of the deal and look elsewhere.

Contractors may no longer be permitted to sell apartments on land that is yet to be re-zoned for construction. If a plan for a new housing construction exists but the permit for building has yet to be issued, firms may sell units to buyers, but only with the proviso that the project is not yet legally authorized, providing the date for the expected authorization, and that buyers can get their money back in its entirety should the permit not be issued.

Also, any significant change in a purchased apartment’s layout, including in common areas such as storage spaces and lobbies, would be considered legally as failure to fulfill the contractor’s commitment and buyers may recoup their investment.

JNi.Media

Canada’s Harper Govt to Introduce Anti-Terror Legislation by Weekend

Monday, January 26th, 2015

Canadian Prime Minister Steven Harper’s Conservative government is set to introduce new anti-terrorism legislation by the end of this week, following the recent steps taken by some nations in Europe.

The new laws would enhance the powers of police and security agencies while restricting movement of suspected extremists. It would be illegal to promote terrorism under the new laws as well, Harper told participants at an event in Ottawa on Sunday.

“These measures are designed to help authorities stop planned attacks, get threats off our streets, criminalize the promotion of terrorism and prevent terrorists from traveling and recruiting others,” he told supporters. “It will contain a range of measures to ensure that our police and security agencies have the tools they need to meet evolving threats and keep Canadians safe.”

Harper added that although there would be changes in Canada’s ‘no-fly’ policy, making it tougher for suspected terrorists to board planes, civil liberties would not be curbed.

“To be clear, in doing so, we shall be safeguarding our constitutional rights of speech, of association, of religion and all the rest,” he said.

Last autumn there was a series of terror attacks on Canadian soldiers in Ottawa and Quebec that shocked and horrified the public, which until then had not considered that terror could arrive in their land too. Two soldiers were killed within one week.

Hana Levi Julian

Sen. Rand Paul Promotes Bill to Cut Off Aid to PA

Wednesday, April 30th, 2014

U.S. Senator Rand Paul (R-KY) introduced a bill on Tuesday that would end financial aid to the Palestinian Authority unless the entity recognizes the State of Israel and officially abandons terrorism.

The legislation would cut off all aid, including loan guarantees and debt relief to the PA or any affiliated government entity, according to media reports.

The exceptions to the measure require the president to certify that the PA has:

1. Formally recognized the right of Israel to exist as a Jewish state, 2. Publicly recognized the State of Israel, 3. Purged all individuals with terrorist ties from security services, 4. Terminated funding of anti-American and anti-Israel incitement, 5. Publicly pledged to not engage in war with Israel, and 6. Honored previous diplomatic agreements.

In addition, the law would ban aid to the PA without a presidential waiver if a unity government is established that includes the Hamas terrorist organization, because Hamas refuses to recognize Israel’s right to exist, and has vowed to destroy the Jewish State in any case.

According to a report published by The Washington Post, a spokesperson for Senator Paul explained that “the Palestinian Anti-Terrorist Act of 2006 contains a national security waiver that allows the President to waive elements of the law. Senator Paul’s legislation does not contain a national security waiver.”

What that means, said the spokesperson, is that the bill “takes the subjectivity out of the law by mandating that the PA renounces terrorism and terminates anti-American and anti-Israel incitement.”

Whether or not the PA security service is working secretly together with Israeli security is another matter.

That problem presents a quandary in that pulling the funding – or at least, the option of funding – from the hands of those who would negotiate with PA officials could be more dangerous than it appears. Keeping up the fight against terrorism even if it is a subtle and undercover effort on the PA side is worth financing. The question is – are the PA security forces actually doing that job?

Hana Levi Julian

Israeli Law May Apply to Citizens in Judea and Samaria

Sunday, September 1st, 2013

Following an angry government debate, the Netanyahu government decided to accept the recommendations of Minister Uri Ariel (Bayit Yehudi). Ariel recommended that all laws directly affecting and relating to citizens be automatically applied to citizens living in Judea and Samaria without special additional legislation or rulings. The Ministry of Justice has been told to begin working on this significant change to have it apply within the next few months, according to a report by the Tazpit News Agency.

Until now, anytime a law that was passed that affected private citizens, a second law or ruling needed to be passed to apply to citizens living in Judea and Samaria. The doppelganger law needed to be passed either in the Knesset, or by the IDF military commander in Judea and Samaria.

MK Orit Struck (Bayit Yehudi) recently initiated a doppelganger bill so that a new labor law for women, would also apply to women in Judea and Samaria.

Surprisingly, her bill raised the hackles of certain members of the Knesset, and in particular Minister Yair Lapid and his Yesh Atid party, who attempted to block the legislation from passing.

As a result, the discussion was elevated to the level of the government, where in the end Minister Uri Ariel’s position was accepted.

Ariel argued that Israeli citizens in Judea and Samaria fulfill their obligations as every other citizen of Israel does, and it makes no sense that they need to fight separately that every law will also apply to them.

Previously, Ariel taunted Lapid with a variation of Lapid’s campaign slogan, “If there are no rights, there are no obligations”, openly stating that if Israeli citizens in Judea and Samaria don’t benefit from the rights of Israeli law, then why should they have the obligation to pay income and VAT tax.

Jewish Press News Briefs

Civil Liberties and the Governance Act

Thursday, August 15th, 2013

I recently received an anxious phone call from an Israeli coalition MK. Due to a mix-up in the Knesset scheduling he left early for an overseas vacation.

“They want me to come back to Israel because of you,” the affable MK said to me. I inquired as to what I had done wrong.

“You are going to vote against the Governance Act,” he replied. “It is a Basic Law and the coalition needs 61 votes to pass it. If you plan to vote against the law, as you did the last time it was voted upon in the Knesset, they will force me to come back to Israel to vote.”

It was a very awkward moment, as the MK is my friend.

“Look,” I said to him, “my problem with this law is not the raising of the votes threshold [required to win a Knesset seat]. I actually support that measure. I also have no problem with limiting the number of ministers in the government. On the contrary, I would be pleased if they would lower the number of ministers to fewer than 10. My problem is with the part of the law that requires 61 signatures in order to submit a no-confidence measure in the Knesset. This will actually neutralize the no-confidence option because if you have 61 signatures, you already have a new coalition; thus no need for no confidence.

“In this situation,” I continued, “I am terribly sorry to say that you will have to come back to Israel. There is no way that I am going to vote in favor of legislation that eliminates the Opposition just to be nice to a friend. But let me check once more. Perhaps the 61-clause was taken out of the legislation. In that case, with or without your vacation troubles, I will support the law.”

I called MK David Rotem (Yisrael Beiteinu), head of the Knesset’s Constitution Committee.

“Please explain to me exactly what the new version of the law says,” I asked him. “Does it still require 61 signatures for a no-confidence vote?”

“No,” Rotem replied. “The new version allows for the submission of a no-confidence measure just like it is now, except that instead of allowing for it once a week, it will be once a month. In addition, the prime minister will have to be present during the deliberations.” (I agreed to that immediately). “If you have 61 signatures,” Rotem added, “you will be able to submit the no-confidence measure in the same week. [There will be] no need to wait a month.”

I was very pleased. First, I am happy that my MK friend will not have to cut short his vacation. But more than that, I am happy because I know that I have a part in the transformation that this law underwent: from a bad law to a just and even important law. The farce of bountiful no-confidence votes, which keeps the entire government running back and forth to the plenum in the middle of their week’s work in order to reject every hiccup from Ahmad Tibi (Ta’al), was in dire need of balance. On the other hand, those in the government who thought that they could take advantage of this problem in order to undermine civil liberties also had to change.

“Enjoy your vacation and don’t forget to bring me a souvenir,” I happily told the anxious MK.

Moshe Feiglin

Printed from: http://www.jewishpress.com/indepth/columns/moshe-feiglin/civil-liberties-and-the-governance-act/2013/08/15/

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