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Interview with lawyer Hassan Tabajeh, speaking to Abdul Elah, Editor, Al-Madena newspaper

December 26, 2015 at 10:32 am

The decision to ban the Islamic Movement in Israel by the far-right government raised a series of legal questions regarding the new status of private, institutional or organisational work for matters to become clear. In order to try to find some answers to these questions, an interview was conducted with lawyer Hassan Tabajeh.

Many people are asking what the ban on the Islamic Movement means in legal terms and what it includes. What is the difference between outlawing the Islamic Movement and closing down its institutions?

The ban on the Islamic Movement is a decision issued by the Israeli Defence Minister, Moshe Ya’alon. In his statement, he referred to the Islamic Movement, led by Sheikh Raed Salah, as an “outlawed organisation”. Since the announcement of the ban, the movement has been prohibited from carrying out any activities. The ban includes all of the committees, organisations and institutions that were affiliated with the Islamic Movement.

The decision mentioned two specific committees by name: the Shura Council and the executive administration. It also included specific names and designated them as leaders or senior figures in the movement.

In order to determine the dimensions of the ban, we must first determine the meaning of the Islamic Movement. The truth is that the Islamic Movement has a clear constitution that outlines which committees form the movement and the method by which these committees are chosen or elected. Based on this, any ongoing work by the movement through the committees mentioned in its constitution is considered, as of the date of the ban, to be illegal.

As for the institutions, they are completely independent of the Islamic Movement, and they are subject to the decisions of their members and administration. The institutions that were shut down or whose activity was frozen after the ban on the movement have been shut down based on the claim that they are affiliated with it, but this is completely untrue. Some of these institutions decided to stop their activity, while others decided to take legal action to protest against their closure. The result of these actions will be known in the future.

The issue of closing down the institutions shows the problem that arises from banning a large organisation such as the Islamic Movement. In the past, we have grown accustomed to orders being issued that ban the activity of specific institutions. Such bans affect the named institutions and do not prevent any group from establishing an institution that carries out the same activity as the banned organisation. However, declaring a large and unregistered organisation, such as the Islamic Movement, to be “banned” allows the state security agencies to work freely against private efforts in an arbitrary and unspecified manner. This means that regarding any new institution as associated with the Islamic Movement would be enough to issue orders to close it down and to prosecute its members, as there are no specifications of what is classified under the large definition of the “Islamic Movement”.

What is the difference between being “banned” and “outlawed”?

There is no difference between the two terms, but the correct legal term is banning, as it is the term stipulated in the emergency laws. This term represents the announcement of the defence minister, as it bans the activity of the movement because it is the will of the “ruler” and in accordance with the government’s authority, and not because the movement’s activities are illegal per se. The movement is not outlawed in the sense of the term.

Why doesn’t the movement change the names of the institutions and continue to work through the new institutions?

If the movement establishes new institutions, then they are banned, and those who establish them are subject to legal accountability. This is because the ban prevents the movement from carrying out any activities or initiatives and from making decisions within the movement’s committees and organisations.

Does this mean that from now on, every activity or establishment of any institution or organisation is prohibited?

Of course not. The ban decision is associated with any activity within the Islamic Movement. This organisation and its institutions are no longer active as of the date of the ban. However, it is certain that the ban did not apply to individual activity, collective activity or private, societal and religious activity as long as such activities are a result of independent initiatives that are not organised under the umbrella of the Islamic Movement.

I must add and stress that the decision does not prevent any activity or work unless it comes from an organisation named the Islamic Movement. There is no issue with establishing religious and popular institutions and activities locally or regionally, but there must not be any guidance or organisation by what is known as the Islamic Movement.

The main foundation of any organisation is that it is an independent body that is not subject to any committee, organisation or external decision, regardless of what it is. We cannot consider any organisation or institution as part of the Islamic Movement unless there is evidence of this, and not just any evidence; strong and irrefutable evidence. Of course, the problem lies in the use of emergency laws to enable the ruling body to close down institutions and organisations without the need to give an explanation or evidence of wrongdoing, and this contradicts with the basic freedoms adopted in democratic systems. The Israeli government claims that it is the only democracy in the Middle East.

Does this mean we cannot deal with the individuals who were associated with the Islamic Movement?

The answer to this is that an individual’s affiliations do not matter. What matters is the umbrella that this individual works under. If an individual was a leader in the Islamic Movement and had authority within the movement, and today wants to initiate an activity or join an organisation, there would be no problem with this. The legal problem arises when this individual wants to exercise his role within the Islamic Movement, which is now considered a banned organisation.

We hear legal opinions stating that individuals who were members of the Islamic Movement before the ban cannot be prosecuted; can one say that they were members of the movement in the past and that they left it after it was banned?

Yes, there is no problem with being affiliated with the Islamic Movement before it was banned. The legal violation would be if one continues to be associated with the movement after its ban. As for the answer one should give if asked about past affiliations, I advise people not to answer such questions, whether they are asked by the public, an intelligence officer or the police. The reason for this advice is that your past affiliation is not illegal, but such questions, especially during an interrogation or questioning, aim to try to link your former affiliation and role in the movement to your current or future activities. In order to prevent such attempts, it would be safer to refuse to answer these questions because they are not linked to any legal charges. I would like to stress that it is illegal to work within the Islamic Movement or being part of any of its activities after it has been banned.

We see people on Facebook declaring that they are still members of the Islamic Movement, while some media outlets still introduce the banned movement’s officials in their positions and capacities within the group. What is the legality of this?

I believe that the Islamic Movement has not been active in the Occupied Palestinian Territories since its ban, but this matter still requires time to confirm. As such, declaring affiliation with a banned organisation may result in criminal prosecution and indictments, despite the fact that the organisation does not exist any more. My advice is to refrain from making such statements, although one can show solidarity and protest against the ban on the Islamic Movement through the events organised by the Monitoring Committee, the Federation of Defence of Freedom Committees, and other parties, as there is no harm in this.

As for some media outlets’ and politicians’ use of the organisational positions to introduce some officials, I believe that it is a form of identification and introduction rather than a form of declaring a role or position. As long as an individual does not introduce or identify themselves in these roles and do not assume these positions, then I believe there is no legal violation in this, neither for those identifying the officials nor for those being identified. I think that such identification may change with time; this is a natural issue in the world of politics and media.

Why do we hear Sheikh Raed Salah declaring and stating that he is still the head of the Islamic Movement?

I believe that this statement is a political statement and, knowing Sheikh Raed, I would say that by making this statement, he is sending a message against the oppressive authoritarianism of the Israeli government. By making this statement, he is announcing his pride in the principles, values and constants of the movement, even if his stand costs him in terms of being prosecuted.

What are the limits of sympathising with the Islamic Movement? Can I praise the work and activities carried out by the movement before the ban? Can I click “like” on its activity? Can I say I am against the ban on the Islamic Movement? Can I take part in the events against the ban on the movement?

The Israeli defence minister announced that the ban is on the continuity of Islamic Movement activities. There is nothing in the ban that suggests the illegality of its past work. I do not see any legal issues, therefore, with talking positively about the movement, its activities and its achievements. The case would be different if we were referring to a terrorist organisation, as the law stipulates that one must not glorify or praise an organisation labelled as a terrorist organisation. As for the Islamic Movement, as I have said, its activities were banned but it was not declared to be a terrorist organisation.

I would like to point out here that the emergency law considers it illegal to possess a symbol of a banned organisation or any of its publications. It is also considered illegal to work within a banned organisation or to provide it with services. Of course, this applies to the organisation as of the day it was banned.

Can I keep books and publications from the Islamic Movement or from any of the institutions that were shut down? Can I greet Sheikh Raed Salah or take a picture with him?

This issue was discussed by a team of lawyers and we have reached the opinion that the publications issued before the ban and which are considered personal possessions of an individual, assuming that it is only one copy, are legally permissible. However, it is not permissible to possess any publication issued after the ban, and also, to be safe, one should not distribute or give any publication to anyone else, regardless of whether it is new or old.

As for the prominent figures of the Islamic Movement, including its leaders, there is no legal problem with contacting them in any form on the condition that one does not deal with them in their organisational capacity within the banned movement.

Hence, there is no ban on the individuals; the ban is on the organisation. As long as the individuals do not act within the banned organisation, then they are treated like any other individuals.

Can one pray in the mosques considered to be affiliated or associated with the movement? Can one attend religious classes? Can one send children to learn and memorise the Qur’an? Are student activities permitted? Is it permissible to organise cultural, religious or political activities?

All of the above are permitted.

Why doesn’t the movement resort to judicial action? Can it appeal against the ban?

The issue of resorting to the judiciary or taking legal measures to protest against the ban on the Islamic Movement is still being discussed. In this regard, we must note that the institutions that were affected by being considered affiliated with the Islamic Movement have hired lawyers to act on their behalf and follow up on the legal measures.

As for the Islamic Movement, although it has not made a final decision yet in this regard, its officials all believe that there is no use in taking legal action to protest against the ban or to resort to the judiciary for the following reasons:

  • The emergency law stipulates that those wanting to protest against a banning order must submit their complaint to the defence minister; the same minister who issued the ban to begin with. This minister makes his decision without having to give an explanation or reason. We all lived and heard about the political situation following the ban on the Islamic Movement, and we know that the decision was made through a “vote” by the ministerial committee, and that the defence minister simply rubber stamped the decision. Hence, it was a political, not a legal, decision, and so the chances of the defence minister changing his ruling are slim, as it wasn’t his decision in the first place.
  • As for the courts, submitting an appeal in the Supreme Court is permissible by law, and the legal measures stipulate that the defence ministry has the right to request to submit secret evidence that is not shown or presented to those appealing. It is only presented to the court. Such evidence is unknown and it cannot be challenged or even responded to, as those appealing do not know what it is. As such, since the banning decision was political, the ministry is expected to present evidence to “scare” and intimidate the court in order to prevent it from interfering in the decision, on “security grounds”. The security of Israel is the sacred cow that cannot be objected to in this country.
  • The bitter reality shows that the Supreme Court has never interfered in any of the hundreds of decisions made by the defence minister regarding the banning of organisations and institutions ever since the establishment of the state. We can say, therefore, that the court has failed to give the sense of credibility, impartiality and independence with regards to such cases.

What can you say to end of this interview and what advice could you give us?

I will end by saying that the values of the Islamic Movement, its constants, calls for doing good and efforts to serve our people cannot violate any law or ban, and anyone who believes that they are able to serve the people must do what they can and give as much as they can. This is our opportunity to prove that we have “good” within each of us, as well as in our values and culture, and that we do not need organisation, management or guidance from anyone to do so. If at one point in time the Islamic Movement was the driving force behind many of our activities, this means that we have members of our society who can take initiatives and seek to restore all of these activities and projects, as such activities are not illegal nor do they violate any laws. We must not give in to intimidation, pressure or terrorism and I urge everyone to participate in organised and legal activity and work.