Court freezes Anti-Boycott Law after petitions

High Court of Justice issues interim order to state asking for explanation of law that petitioners have called undemocratic.

By YONAH JEREMY BOB
Palestinians call for a boycott 370 (photo credit: REUTERS)
Palestinians call for a boycott 370
(photo credit: REUTERS)
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.