Boycott Law constitutional despite 'difficulties'

Legislation won’t prevent public opposition to policies in the West Bank, state tells High Court.

Peace Now boycott law_311 (photo credit: Ben Hartman)
Peace Now boycott law_311
(photo credit: Ben Hartman)
In a detailed response to the High Court of Justice on Tuesday, the state said that despite the Boycott Law’s “significant” constitutional difficulties, it does not violate the Basic Laws.
Deputy Attorney-General Uri Keydar also said that while the law did limit freedom of expression, that limitation was constitutional because it was restricted to specific calls for boycotts.
RELATED:Opinion: Does the new anti-boycott law harm free speech?
The state set out its position on the Boycott Law in response to three petitions asking the court to revoke the legislation.
Passed in July, the controversial law empowers Israelis who are the targets of public boycotts – due to being in or connected with Israel, Israeli institutions or “areas under Israeli control” – to seek compensation for damages in court. The law also permits the finance minister to withhold benefits from bodies calling for boycotts and prohibit their participation in state tenders.
The law defines a boycott as a call to refrain from cultural, economic or academic connections with an Israeli citizen, institution or company.
Two of the petitions, filed by MK Ahmed Tibi (United Arab List – Ta’al) and left-wing NGO Gush Shalom, asked the court to annul the law completely, whereas the third petition, from a group of citizens led by attorney Adi Barkai, called for only part of the law to be revoked.
The petitioners all argue that the law is unconstitutional because it violates the Basic Law: Human Dignity and Liberty by harming freedom of expression, specifically regarding the state’s position and actions in the West Bank.
Gush Shalom’s petition says the law will “silence any criticism of government policy in general and government policy in the occupied territories in particular, and to prevent the open, productive political dialogue that constitutes the basis for the existence of democracy.”
In the state’s response to the petitions, the deputy attorneygeneral noted that in practice, all the petitions focused on claims that the Boycott Law would limit freedom of political expression regarding the government’s policy on Judea and Samaria.
“In actuality, the petitioners are not calling for the law to be annulled, but only a part of that law,” Keydar argued, referring to the sentence in the Boycott Law that mentions boycotts in “the State of Israel or areas under its control.”
“Perhaps the appropriate remedy for the court would be... [simply] to remove the phrase ‘or areas under its control,’” the state’s response suggested.
Significantly the state noted in its response that the debate over policies regarding the West Bank were “part of the public domain and part of the political and democratic discourse.”
However, Keydar said the proper purpose of the law, which was to “protect those exposed to boycotts on the grounds of their connection to Israel, Israeli institutions or regions under Israeli control,” wouldn’t affect that debate.
The state also argued that the Boycott Law did not violate constitutional rights by preventing direct political expression, as the petitioners claim.
According to Keydar, it only prevents public calls for and in some cases participation in boycotts, specifically those carried out because of a direct connection with the State of Israel or areas under its control, and which also result in concrete harm.
While Keydar conceded that the law did harm freedom of expression, he said that harm was not in itself unconstitutional and was relatively narrow: The law set a boundary on freedom of expression by imposing sanctions on those calling for a public boycott.
“The law does not prevent anyone from publishing a public call for the government to alter its policies in regard to Judea and Samaria as part of any opposition to government policy in that region,” he noted in the response.
The state added that no grounds had yet been established for the law’s annulment.
Keydar referred to the High Court’s recent rejection of four petitions against another controversial piece of legislation, the Nakba Law, on the grounds that the court could not make any ruling on the petition’s claims because the law was too new.
“The constitutional issues raised in the petitions have not yet been tested,” he said.
The deputy attorney-general noted that the limits of the finance minister’s powers to withhold funding from those calling for boycotts were not yet clear because they had not yet been tested.
Likewise, no court has yet ruled on a civil suit in which a citizen has claimed damages from a boycott or a call for one. Keydar also noted that a court would require a citizen to provide concrete evidence of damages, as well as prove a causal connection with any boycott, before awarding compensation.