In a detailed response to the High Court of Justice on Tuesday, the state said
that despite the Boycott Law’s “significant” constitutional difficulties, it
does not violate the Basic Laws.
Deputy Attorney-General Uri Keydar also
said that while the law did limit freedom of expression, that limitation was
constitutional because it was restricted to specific calls for
boycotts.
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The state set out its position on the Boycott Law in response
to three petitions asking the court to revoke the legislation.
Passed in
July, the controversial law empowers Israelis who are the targets of public
boycotts – due to being in or connected with Israel, Israeli institutions or
“areas under Israeli control” – to seek compensation for damages in court. The
law also permits the finance minister to withhold benefits from bodies calling
for boycotts and prohibit their participation in state tenders.
The law
defines a boycott as a call to refrain from cultural, economic or academic
connections with an Israeli citizen, institution or company.
Two of the
petitions, filed by MK Ahmed Tibi (United Arab List – Ta’al) and left-wing NGO
Gush Shalom, asked the court to annul the law completely, whereas the third
petition, from a group of citizens led by attorney Adi Barkai, called for only
part of the law to be revoked.
The petitioners all argue that the law is
unconstitutional because it violates the Basic Law: Human Dignity and Liberty by
harming freedom of expression, specifically regarding the state’s position and
actions in the West Bank.
Gush Shalom’s petition says the law will
“silence any criticism of government policy in general and government policy in
the occupied territories in particular, and to prevent the open, productive
political dialogue that constitutes the basis for the existence of
democracy.”
In the state’s response to the petitions, the deputy
attorneygeneral noted that in practice, all the petitions focused on claims that
the Boycott Law would limit freedom of political expression regarding the
government’s policy on Judea and Samaria.
“In actuality, the petitioners
are not calling for the law to be annulled, but only a part of that law,” Keydar
argued, referring to the sentence in the Boycott Law that mentions boycotts in
“the State of Israel or areas under its control.”
“Perhaps the
appropriate remedy for the court would be... [simply] to remove the phrase ‘or
areas under its control,’” the state’s response suggested.
Significantly
the state noted in its response that the debate over policies regarding the West
Bank were “part of the public domain and part of the political and democratic
discourse.”
However, Keydar said the proper purpose of the law, which was
to “protect those exposed to boycotts on the grounds of their connection to
Israel, Israeli institutions or regions under Israeli control,” wouldn’t affect
that debate.
The state also argued that the Boycott Law did not violate
constitutional rights by preventing direct political expression, as the
petitioners claim.
According to Keydar, it only prevents public calls for
and in some cases participation in boycotts, specifically those carried out
because of a direct connection with the State of Israel or areas under its
control, and which also result in concrete harm.
While Keydar conceded
that the law did harm freedom of expression, he said that harm was not in itself
unconstitutional and was relatively narrow: The law set a boundary on freedom of
expression by imposing sanctions on those calling for a public
boycott.
“The law does not prevent anyone from publishing a public call
for the government to alter its policies in regard to Judea and Samaria as part
of any opposition to government policy in that region,” he noted in the
response.
The state added that no grounds had yet been established for
the law’s annulment.
Keydar referred to the High Court’s recent rejection
of four petitions against another controversial piece of legislation, the Nakba
Law, on the grounds that the court could not make any ruling on the petition’s
claims because the law was too new.
“The constitutional issues raised in
the petitions have not yet been tested,” he said.
The deputy
attorney-general noted that the limits of the finance minister’s powers to
withhold funding from those calling for boycotts were not yet clear because they
had not yet been tested.
Likewise, no court has yet ruled on a civil suit
in which a citizen has claimed damages from a boycott or a call for one. Keydar
also noted that a court would require a citizen to provide concrete evidence of
damages, as well as prove a causal connection with any boycott, before awarding
compensation.
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