The High Court of Justice on Monday froze the Anti-Boycott Law, issuing an
interim order to the state to explain why the law should not be struck
down.
The order gave the state until March 14, 2013 to respond and also
stated that the final hearing on the issue will be before a nine-justice panel
of the court presided over by Supreme Court President Asher D.
Grunis.
The Anti-Boycott Law was passed in July 2011 and imposes
sanctions on any individual or entity that calls for an economic boycott of
Israel’s settlements in the West Bank or of Israel itself.
The law was
passed after several prominent Israeli artists decided not to appear or perform
in settlements in the West Bank in what they characterized as a protest “against
the ‘occupation.’” The Anti-Boycott Law allows entities to win compensation in
civil courts from individuals or organizations who have called for a boycott,
with controversial provisions regarding the level of proof needed for actual
damages.
The petitioners, including Gush Shalom, Adalah – the Legal
Center for Arab Minority Rights in Israel, the Association for Civil Rights in
Israel and many others, said the law does not require proving that actual
damages have occurred.
The law also empowers the finance minister to
impose financial penalties, including the removal of tax exceptions, on NGOs
that call for a boycott.
Gabi Lasky, one of Gush Shalom’s attorneys, said
the law was “a classic example of the tyranny of the majority” imposing its
will, and that she hoped the court would declare “unambiguously that even a
majority in the Knesset is obligated to preserve the principle of fairness” that
underlies democracy.
Adalah attorney Sawsan Zaher said she was pleased
that the court had “recognized the many constitutional problems with the law,
which seriously harms the freedom of speech and to protest.”
The state’s
main defense, which appears to have been insufficient, was that the law had not
yet been applied and that the court should not intervene until there was a
concrete case.
But Zaher also said the law had already caused harm,
having a “chilling” effect on free speech from persons and organizations afraid
to take any action that might lead to a lawsuit.
Zaher added that the law
was “born in sin and in contradiction with the positions of the legal advisers”
of the state who opposed the law publicly.
At the time the law was
passed, Knesset legal adviser Eyal Yinon warned the Knesset plenum that the
legislation was “borderline illegal” since it could violate freedom of political
expression.
Even Attorney-General Yehuda Weinstein reportedly called it
“borderline” defensible and admitted in defending the law that it had serious
problems.
Weinstein’s main argument for not striking it down yet was that
the law has never been used, as opposed to making any positive legal arguments
in its favor.
At last week’s hearing on the law, Yinon partially reversed
his position, formally defending the law on behalf of the Knesset.
Yet,
his defense was at most lukewarm. The court questioned him sharply as to how he
could defend the law when he himself had “almost killed” it.
Yinon
responded that he still disagreed with the law and thought it should have been
drafted differently, but that ultimately he had to defer to the Knesset, which
was not bound by his opinion as legal adviser.
According to Yinon, once
the Knesset had voted, his job was to represent the Knesset.
He noted
that he even had considered not appearing at the hearing and asking the Knesset
to hire outside counsel, but eventually decided not to do so.
The law had
also provoked significant international criticism, including from traditional
Israeli allies.
If the court strikes down the law, it would not be
endorsing boycotts as much as it would be saying that penalizing boycotters is a
violation of Israel’s Basic Laws.