The High Court of Justice on Wednesday reluctantly waded into a
highly
controversial debate over the “Anti-Boycott Law,” which has already brought
withering criticism internationally and from much of Israel’s own legal
establishment.
The law provides settlers and their supporters an
unprecedented right to sue, or to fine through the Finance Ministry, persons or
entities which boycotted the settlements and their products.
The law
itself was born in controversy, considered by many to be a political stunt and
response to performers, artists and authors on the Left who were publicly
boycotting West Bank settlements, most notably performances in
Ariel.
Boycotts are fairly unpopular with much of the Israeli public, but
the idea of making them sanctionable under law was problematic from the
start.
Initially, Prime Minister Binyamin Netanyahu appeared to try to
prevent or delay a vote on the law. Even when he let the vote go forward, he
absented himself.
Prior to the vote, Knesset legal adviser Eyal Yinon
took the almost unheard of step of publicly declaring the law illegal. Yinon is
not considered a political legal adviser, and was comfortable defending the
state vigorously on Tuesday on the also controversial Acceptance Committees Law,
one of the largest housing discrimination cases to reach the court in recent
years. Yet he vocally opposed the Anti-Boycott Law.
At the time,
Attorney-General Yehuda Weinstein also straddled the fence, calling the law
borderline legal.
Although Yinon showed up in court to defend the law on
the Knesset’s behalf and made some arguments, his longest explanation of why he
was defending the law was that it was his job to defend laws once the Knesset
voted, even if he thought the law was problematic.
Pressed by the court
about the fact that he had “almost killed” the law with his opposition, Yinon,
rather than defending the law further, merely stated that he had even considered
asking the Knesset to hire independent counsel to appear Wednesday, but in the
end did not.
Now that’s a defense.
The State Attorney’s Office
showed up in court to defend the law, but did not offer any positive arguments
about it, sticking to a classic fall-back argument that since it has not been
used yet, it is premature to nullify the law.
This has been a big winning
argument for the state in some major recent cases.
On one major ruling,
the state beat a petition to strike the Nakba Law, which empowered the state to
withhold public funds from institutions which mark the founding of the State of
Israel as a day of mourning, using that reasoning.
But here it will be a
harder sell.
As the petitioners noted, Israel’s courts have taken most of
the doctrine of rejecting cases as “premature” from the US courts. But the
petitioners said that the US courts say freedom of expression is an exception to
the principle of rejecting cases as premature.
The reason, they say, is
that laws which have the effect of chilling free speech already restrict that
fundamental right simply by their existing, even if the law is never
used.
That could be a formidable argument in this case, where several
organizations that had been involved in settlement boycotts rushed to change or
take down their websites as soon as the law was passed. It could be all the more
formidable because the debate over the settlements is viewed on both sides as
being at the core of Israel’s national political discourse.
Still, the
premature argument was probably the safest legal argument for the state to make
in light of its past public opposition to the law and the argument’s run of
successes.
But perhaps the best possible winning argument, although more
moral than legal, was made by the Legal Forum for Israel, which appealed to the
court’s sense of tolerance and the idea that boycotts are an inherently
intolerant form of speech.
But at the end of the day, it will be very
surprising if the court upholds a law that was opposed or doubted by both the
Knesset legal adviser and the attorney-general.
In addition, the justices
will not need to worry about angering Netanyahu if they strike down the law,
since he did not even vote for it, but they will face international criticism if
it is upheld.
If anything, the court’s indecision so far is likely more
about not wanting to rush to be seen by the Israeli public as supporting
boycotts, than it is a signal that the law will stand.