Deputy chief justice Hanan Melcer retires

Rejects Israeli-Arab free speech objection to police cyber unit actions

President Reuven Rivlin (C) and Central Elections Committee Chair Hanan Melcer (R) view ballots from the elections, April 10th, 2019 (photo credit: Mark Neiman/GPO)
President Reuven Rivlin (C) and Central Elections Committee Chair Hanan Melcer (R) view ballots from the elections, April 10th, 2019
(photo credit: Mark Neiman/GPO)
Supreme Court Deputy President Hanan Melcer retired on Monday after 14 years on the country’s top court.
During his career he also served as head of the Central Elections Committee and issued several key decisions regarding election disputes and bringing campaigning into the modern digital age.
Melcer has been generally identified with the court’s moderate-activist wing, sometimes serving as a swing vote.
Besides major rulings on free speech, he also issued major rulings relating to laws passed by the Knesset regarding the Boycott, Divestment and Sanctions movement, the Haifa Ammonia environmental controversy and the controversial Yonatan Heilo case.
Because of the country’s political deadlock freezing both the Judicial Selection Committee as well as leaving the government with no justice minister, Melcer will not be replaced under any time frame that could be considered normal.
In fact, Justice Menachem Mazuz is also due to step down later this month, and if he does as planned, the Supreme Court could be missing two justices for an extended period.
That period would get even longer if the country goes to a fifth round of elections.
In theory, a justice minister could appoint a temporary justice until the Judicial Selection Committee is reconstituted. But currently, there is not even a justice minister.
In his final decision issued on Monday as part of his retirement ceremony, Melcer ruled along with Supreme Court President Esther Hayut and Justice Alex Stein that activities by the police cyber unit, demanding that social-media giants take down certain posts, were constitutional.
Adalah, an Arab-Israeli human-rights NGO, had petitioned that the police cyber unit was oppressing Israeli-Arab free speech and criticism of the government.
Melcer advised the Knesset to pass a more comprehensive law on the issue to balance all competing constitutional priorities.
At the same time, he said the police cyber unit was not totally forcing the social-media giants to remove posts.
Rather, the police were applying pressure, but they were still technically letting the social-media giants make the final decision on the issue, Melcer said.
Adalah had said such an analysis would be like sticking one’s head in the sand, given the clear implied threat from the police and the state about more punishing actions they could take against social-media giants who did not “voluntarily” cooperate.
Melcer said the voluntariness meant he could at most suggest that the Knesset pass a law to remove general criticism on the issue.
Moreover, aspects of police cyber actions were critical to defending citizens’ rights and state security, Melcer said, adding that many posts being taken down related to “bots,” which are not human and do not have free-speech rights.