Experts: Boycott law won’t withstand Supreme Court test

Just hours after the controversial new law was passed, a petition calling for it to be overturned was presented to the High Court.

By
July 14, 2011 03:53
3 minute read.
High Court of Justice [file]

high court panel citizenship law 311. (photo credit: Ariel Jerozolimski)

 
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Legal experts told The Jerusalem Post Wednesday that they were optimistic the High Court of Justice would rule to repeal the controversial Boycott Law, which passed in Knesset Tuesday by a 47- 38 majority.

Just hours after the controversial new law was passed, a petition calling for it to be overturned was presented to the High Court. Judges ordered the state to respond within 60 days.

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Professor Eli Saltzberger, a Supreme Court expert from Haifa University, said that while it is hard to predict the outcome, there is a good chance the High Court will declare the law unconstitutional and repeal it.

"In fact, that is what should happen, because the law harms freedom of expression,” Saltzberger said.

The Boycott Law gives Israeli citizens, institutions and companies targeted by boycotts or even calls for boycotts on grounds of their location – which in practice means Jewish settlements in Judea, Samaria and the Golan Heights – the right to seek compensation in court for damages.

Under the law, an entertainment center in Ariel, for example, could sue Israeli actors who decided to boycott performances there or who called for others to participate in such a boycott.

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Attorney General Yehuda Weinstein, who admitted the law has serious constitutional problems, has already recommended that Knesset make amendments to reduce the its infringement on basic democratic rights.

Yet despite this, Weinstein announced Tuesday evening his decision to defend the law in the High Court.

Saltzberger noted that there are precedents for Weinstein to have refused to defend the law.

"There have been cases in the past where the attorney general has refused to defend laws in the High Court and on those occasions the government has had to appoint a private attorney,” said Saltzberger.

Saltzberger said he did not expect Weinstein’s defense of the law to be particularly strong.

"He has already said the law is problematic,” he added.

Despite sharing Saltzberger’s cautious optimism over the chances of High Court judges repealing the Boycott Law, Professor Suzie Navot, an constitutional law expert from the Haim Striks School of Law, emphasized that the High Court does not take the act of abrogating laws lightly.

"It’s important to note that abrogation by the Supreme Court is not a trivial matter, and the court exercises this power with caution, restraint and moderation,” Navot said.

According to Navot, in the past 15 years the Supreme Court has overturned fewer than ten laws.

Among those that the court has repealed recently include a law to privatize the country’s prisons, which was declared unconstitutional by a panel of nine judges in 2009.

Last year, the Supreme Court struck down a law that would have allowed longer detentions and trials in absentia of those charged with security offenses against the state.

In both cases the court ruled that the laws violated basic rights.

However, the Boycott Law is the first law that the High Court has been asked to overturn that is concerned specifically with issues of freedom of expression.

Navot said that judges will be faced with the question of to what extent the Boycott Law will harm freedom of expression even if it does prevent boycotts that damage settlements.

"Freedom of expression is recognized in Israel as one of the fundamental human freedoms, and has a very broad protection.

The [Boycott] law restricts the right to protest, and also violates the principle of equality,” Navon said.

"Even if the law has a fitting purpose, such as those who proposed the law say, and it does prevent damage caused by boycotts imposed on settlements, the question still remains whether harm to freedom of expression in these circumstances is justified, and whether it is proportionate.

This is what the High Court will need to answer.” In a related move that sent further shockwaves through the legal community.

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