I wrote a book back in 1992 entitled Meir Kahane - The Litmus Test of Israeli Democracy. At that time, I claimed that the way in which Rabbi Meir Kahane was treated would eventually boomerang and that the manner in which he was treated was a measurement of the state of the Israeli democracy. And Israeli democracy got very bad marks. Meir Kahane said things that were not popular at the time, back in the nineteen-eighties. He advocated transfer of Arabs because of the danger that they represented to our security.

Transfer was considered a dirty word in Israel, the "T-word". However, transfer of Greeks and Turks back in the nineteen-twenties won a Nobel Prize for a fellow named Nansen, and transfer was employed by the Czechoslovakians against their ethnic German population after Second World War, and transfer was used to separate millions of Hindus and Moslems when India won independence from Great Britain. Transfer is not inherently wrong. As a matter of fact, in certain circumstances, it may be the only moral thing to do to prevent bloodshed. And transfer has become popular here in Israel today. The leaders of both major parties, Likud and Labor, are advocating uprooting of Jewish settlements and transfer of their populations.

Meir Kahane was ostracized by the media because they did not like what he said. He was ostracized by members of the Knesset, who walked out when he got up to speak. But something much worse was done to him and to Israeli democracy. After the election, it is customary for the president of the state to invite representatives of every list elected to the Knesset to come to the presidential home for consultation. The custom was never broken - until president Herzog chose not to invite Kahane.

Kahane was legally elected by 26,000 voters. In other words, 26,000 voters had participated in a democratic procedure - a free election. They had played the game according to the rules. But the president of Israel was essentially saying - I don't care if you took part in a democratic procedure and played according to the rules. I don't like what you stand for, so I will not consult with your duly elected representative. Herzog did not snub Kahane. Herzog snubbed 26,000 people who had participated in a democratic procedure. Herzog essentially said that democracy is a wonderful thing, as long as you agree with me. When you stop agreeing with me, you are no longer supporting democracy.

When Herzog did this, he was supported by the media, because they also did not like what Kahane said. In other words, the press was open and impartial, as long as it agreed with positions taken by the individuals it covered. As soon as the media disagreed, it no longer felt an obligation to give coverage.

Since democratic government depends upon the free flow of information, ideas and opinions, the whole purpose of freedom of the press and broadcasting is to inform and educate the public, so that people will be able to make intelligent and knowledgeable decisions. In a dictatorship, strange as it may seem, lack of freedom of the press is not as bad a thing as in a democracy, since the public in a dictatorship does not make any decisions anyway. But in a democracy, where, in principle, legitimacy of government comes from the people, then the people must be informed. When the media, public and private, abandon the role of public servant in order to serve or provoke public passions, they place themselves in a very precarious position. And that is what happened in the case of Meir Kahane more than a decade ago.

The treatment of Kahane was the litmus test of Israel's democracy and it failed horribly. I will cite one example to make the point. In the Maariv newspaper on August 18, 1985, there was an editorial based on an incident that had occurred the previous evening. The mayor of the city of Givatayim, joined by some members of Knesset and several hundred members of youth movements, who had been bussed into Givatayim for the occasion, whistled and shouted so that a planned Kahane rally could not be held. Maariv not only praised the action of the mayor of Givatayim, but even recommended these actions as an example of what should be done elsewhere. According to Maariv, "One doesn't have to wait for the assistance of the law before acting." But nothing has been learned in the decade since Kahane.

Which brings us to what happened in recent weeks.

During the merry days of Oslo, when the government and the media were lying to us and hiding the truth about what was happening, Moshe Feiglin formed an organization called Zo Artzeinu, which means "This is our Land". And Moshe Feiglin very courageously led a series of protests in what could be defined as classical civil disobedience. He did exactly what Marti Luther King did and what Mahatma Gandhi did; he led non-violent civil protest. The protest culminated in something that was absolutely mind-boggling. Feiglin's organization, which was composed of a few people, a small office, a fax machine, telephone and a few other small items, called for a non-violent civil protest against the Oslo procedure, the protest to be done in the form of blocking intersections. The protest was successful beyond anyone's anticipations and hopes. More than eighty intersections around the country were blocked by thousands of people. The government went into shock.

When Martin Luther King blocked traffic in Birmingham, Alabama, he was arrested and went to jail. He was charged with violating city ordinances having to do with traffic. After all, blocking traffic is controlled by city traffic ordinances. But in Israel, Moshe Feiglin was arrested for sedition, for trying to overthrow the government. It is interesting how the government here relates to civil protest. If you engage in civil protest, according to our government and courts, you are trying to overthrow the government. Without going into a long theoretical discussion, civil obedience, as I understand it, is an attempt to change government policies, not to overthrow the government itself. Feiglin was tried and could have gotten a very heavy prison sentence. Instead, he received a punishment of six months of community service, which he served. He paid his debt to society, as we say. Feiglin demonstrated almost unbelievable civic responsibility and courage - something most of us are not willing or able to do.

Several years ago, Feiglin was approached by old-timers in the Likud party and asked to become active. These people saw that the Likud was wandering far away from its founding nationalistic philosophy, and they were looking for someone who could form a bloc of truly nationalistic Likudniks. I don't want to go into all the details of the organization that Feiglin had formed called Jewish Leadership, but suffice it to say that Feiglin believes that real change can only come with political strength. Blocking the streets and civil disobedience can send a message, and in some societies may be transformed into political strength, but Israel is not one of those nations. The ability to make change in Israel means that you have to have political strength. And political strength is not found in the little parties, which are really nothing more than lobbies.

So Feiglin became active in the Likud, signed up a lot of new members who agreed with his philosophy, and managed to elect and form a solid block of about 150 members of the Likud Central Committee. The Central Committee has about 3,000 members so a block of 150 is something that cannot be ignored. The planks in the platform of the Jewish Leadership faction were close to the items in the Likud platform, so there was no real problem of integrating within the Likud. When the elections were held several weeks ago to choose the Likud list of candidates for the Knesset, Feiglin found himself in the 40th place on the list. This is, in one sense, not a big success and there is no doubt that being that low on the list has to do with a certain innocence on the part of Feiglin and his supporters. They were not ready to make questionable deals and compromise their principles. And more power to them for not compromising principles. On the other hand, fortieth place is pretty respectable, when one realizes that decent, intelligent, experienced persons like Yoram Ettinger, Yosi Achimeir and several others found themselves further down the list because their candidacy was based on ideology and not deals.

Then, someone, I think it was someone on the Meretz party list, Naomi Chazan, complained to the judge in charge of monitoring elections that Feiglin was ineligible to run for the Knesset, because he had been convicted of a crime. And here there is a subtle point. A person who is convicted of a crime cannot be a candidate for the Knesset for seven years - but that is on the condition that the crime involved what is called in Hebrew kalon, which means dishonor, shame or disgrace. Another term for it is moral turpitude. Now, this is a completely subjective interpretation of the nature of a crime. I can imagine, for example, that someone convicted of being a pedophile or someone convicted of violent sex crimes is guilty of a crime involving dishonor, shame, disgrace or moral turpitude. Nice people don't do those things. Maybe shoplifting doesn't involve moral turpitude as compared to armed robbery. I don't know the subtleties of these things. But what did Feiglin do? He did exactly what Martin Luther King did - he blocked traffic in a classic act of civil disobedience.

The media reported that the chairman of the Central Elections Committee, Supreme Court Justice Mishael Cheshin, ruled that Feiglin's crimes involved moral turpitude and that he was therefore barred from running for the Knesset for seven years, in accordance with Paragraph 6 of the Basic Law: the Knesset. In response to the decision, Feiglin declared that he is proud of his deeds, which he called "acts of honor" aimed at fighting against the "bloody" Oslo process. Feiglin said he was not surprised by the judge's decision, but charged that Cheshin disqualified him for political reasons.

"There is definitely no shame in my activities to stop the bloodbath of Oslo," he said, "The judicial hierarchy of Israel permitted and encouraged the Oslo death procession. Despite its illegality, they gave Oslo judicial support, so it is clear that they would also try to prevent me from reaching a point of influence." Feiglin said his Jewish Leadership Movement would continue to integrate into the Likud and add ideological force to the movement. He vowed that he and his movement would run for the Knesset again.

Justice Cheshin wrote that he barred Feiglin for both technical and substantive reasons. According to the law, Feiglin should have included in his application to run for the Knesset a request to the CEC chairman to rule that his crimes did not involve moral turpitude. He failed to do so until eight days later, in response to requests by attorney Ya'acov Shtotland and MK Naomi Chazan (Meretz) to disqualify him. But Judge Cheshin did not mince words in describing his view of the political protests launched by Feiglin. In his decision, Cheshin moved from the technical realm of legality to political commentary, stating: "Mr. Feiglin refused to accept the decision of a democratically elected government and decided that he and his friends would do everything in their power, even against the law, to thwart legally made decisions... Deeds such as those perpetrated by Mr. Feiglin undermine society and are destined to turn a state of law and order into one controlled by warring militias. These actions are painted with the strong color of moral and social turpitude."

In other words, the learned judge did several things of great importance and which say volumes about the judicial system in Israel. First, the judge essentially said that civil disobedience is an act involving moral turpitude. In contrast to the now-understood philosophy behind civil disobedience - which is not to overthrow the system, but to correct the system so that it will be true to its real character - the judge was essentially saying that Martin Luther King was guilty of moral turpitude. Contrary to the understanding of civil disobedience that turned Martin Luther King into a national and world hero - and I won't say that it won him the Nobel prize, since that has become a worthless honor - our Israeli judge said that if I disagree with the purposes and goals of the civil disobedience, then it involves moral turpitude. Worse, the judge said that he is the only one capable of evaluating the morality of an act. Even worse, the judge essentially said to Moshe Feiglin that while it is true that you are no longer performing acts of civil disobedience, it is true that you are acting within the system, all that is meaningless. I have decided that I don't like what you stand for, so you and those who voted for you have no right to work within the system, even if you want to.

In other words, this judge said what President Herzog said to Meir Kahane: I don't like what you say, so you and those who agree with you don't deserve to operate within the system. If that is not a recipe for what the judge calls "deeds that undermine society and are destined to turn a state of law and order into one controlled by warring militias... painted with the strong color of moral and social turpitude," then I don't know what is. The judge is telling those who played according to the democratic rules that the democratic rules don't apply to them if he, the judge, decides that he does not like what they stand for.

There are certain fundamental characteristics of a real democracy. One is the sanctity of procedure, the rules of conduct, the methods, the practices, which survive the individual arguments and conflicts. Procedure means the rules of the game, which are applied equally to everybody. Professor Gershon Weiler of Tel Aviv University was a good friend of mine, he was a real atheist and I always enjoyed conversations with him. He passed away a few years ago. He had written a book in which he said that a democrat is someone who prefers to lose a confrontation, so long as the rules of democratic procedure - the rules of the game that ensure that today's loser can be tomorrow's winner - are maintained. But the learned judge who disallowed Feiglin essentially said that the rules of the game don't apply to people that he does not agree with. And what will happen is that those who are denied the right to play according to the rules will be tempted to express themselves in some other way.

So, not only was the judge's decision arbitrary, but it is also anti-democratic, because it violates the rule of applying procedures equally to all. Aaron Lerner, my colleague on Arutz Sheva noted that "while Feiglin and others associated with the handful of temporary road-blocking incidents in protest of Oslo were prosecuted for their action, to this day MK Amir Peretz (Am Echad) has never been charged for causing what may reach billions of dollars of damage due to illegal strikes and protest activities carried out over the years by the Histradrut Labor Union under his direction. While Feiglin closed a few crossroads down for a few minutes, Peretz's group has illegally closed down major highways for hours at a time - in one action even physically blocking the runways at Ben-Gurion Airport. Besides illegally blocking roads, over the years, Peretz's organization has violated orders to return to work and taken other illegal activity that has cost the Israeli public and economy dearly." And Amir Peretz was allowed to run for the Knesset, and indeed was elected and sits in the Knesset.

I say advisedly that Moshe Feiglin was ultimately disqualified by judges and not by the law. It was judges who applied something very common in Israel - dictatorship of the judiciary.

In summary, we have a democracy in Israel whose rules are established and applied by a judiciary system on the arbitrary basis of the personal preferences of the judges. And we have a democracy where the head of a party is running on a platform in complete disagreement with the platform of the party that he represents.

All of which reminds me of an old Chinese curse. In ancient China, you cursed someone by telling him that you hope that he lives in interesting times. And democracy in Israel is about as interesting as things can get.


Jay Shapiro hosts a weekly radio program, The Jay Shapiro Hour, on Arutz Sheva's Israel National Radio, from which this article was adapted. He can be contacted at [email protected].