When 'Allahu Akbar' Becomes a Crime: The Israeli Case
18(1) Journal of Islamic and Near Eastern Law 21 (2020)
27 Pages Posted: 3 Aug 2021
Date Written: 2020
This Article examines the constitutionality of an Israeli bill that criminalizes the use of PA systems in prayer houses, punishable by a fine of 5000–10,000 NIS (the Muezzin Law). The Bill was presented to the Israeli Parliament (the Knesset) as a religiously-neutral environmental law. This Article asserts that a careful reading of the Bill’s language reveals that it is specifically tailored to apply precisely to Muslim prayer houses, thus criminalizing the Muslim call for prayer (the adhan), especially the call occurring between dawn and sunrise (the Fajer adhan). As such, we perceive the Muezzin law as violating the right to equality and the right to dignity of the Muslim minority in Israel, as well as infringing upon its religious feelings. Additionally, we contend that the Muezzin Law is not truly driven by environmental concern, but rather that it represents a conflict with religious dimension (a CRD) — namely, the perception that the adhan, as a Muslim symbol, poses a threat to the identity of Jews in Israel. Examining the constitutionality of the Muezzin Law introduces a crucial question relating to the interplay between constitutional law and criminal law. Our assertion is that in any constitutional democracy, in order for the legislature to validly classify conduct as a crime, such criminalization must befit the values of constitutional democracy, serve a proper purpose, and be proportionate. The requirement for proportionality consists of three subtests: (a) the rational connection test; (b) the necessity test; and (c) the balancing benefits test. It is our contention that the Muezzin Law comprises an unconstitutional criminalization of the Fajer adhan. It stands in contrast with the basic values of constitutional democracy, primarily that of tolerance towards a religious minority, particularly, the Muslim community. Additionally, we assert that the Muezzin Law’s purpose is improper as it aims at infringing upon the religious feelings of the Muslim minority in Israel, holding that the value of protecting religious feelings is a constitutional value. Finally, we view such criminalization as provided in the Muezzin Law as being unproportionate. In this latter regard, we hold the view that our CRD analysis provides a more delicate, proper, and proportionate solution to the question at stake.
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