High Court delays decision on Anti-Boycott Law

Court asks the Knesset legal advisor: How can you defend law you yourself "almost killed?"

By YONAH JEREMY BOB
Boycott Israel 521 (photo credit: REUTERS)
Boycott Israel 521
(photo credit: REUTERS)
The High Court of Justice on Wednesday heard petitions filed to strike down the “Anti-Boycott Law” as a violation of the fundamental right to freedom of expression.
Although there was a break in the proceedings after the lawyers had finished arguing, leading to speculation that there might be an on-the-spot decision, the court temporarily deferred the decision.
Deferred decisions at an initial hearing generally mean that the court wants to carefully craft its opinion or there is a lack of consensus among the justices and they want more time to study the issue.
The Anti-Boycott Law was passed in July 2011 and imposes sanctions on any individual or entity that calls for an economic boycott of Israeli settlements in the West Bank or of Israel itself.
The law was passed after the decision of several prominent Israeli artists not to appear or perform in settlements in the West Bank as an act of protest “against the occupation.”
It 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 damages to be awarded.
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, claimed that the law essentially does not require proving actual damages have occurred at all.
The law also empowers the finance minister to impose financial penalties, including the removal of tax exceptions, on NGOs that call for a boycott.
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 was that the law has never been used – as opposed to making any positive legal arguments in its favor.
At Wednesday’s hearing, Yinon partially reversed himself, formally defending the law on behalf of the Knesset.
Yet his defense was at most lukewarm.
The court questioned him sharply how he could defend the law when he himself had “almost killed” the law.
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 even by his opinion as legal adviser.
According to Yinon, once the Knesset had voted, his job was to represent it.
He even noted that they had considered not appearing at the hearing and asking the Knesset to hire outside counsel, but eventually decided against that.
Moving beyond the idea of the law and making an argument that the law’s sanctions were proportionate, Yinon noted that boycotters were merely being faced with financial sanctions like the financial costs they were trying to place on settlers.
He also said that though there might be a chilling effect by the law’s existence, the very existence of boycotts could be said to automatically damage the livelihood of the settlers.
The Legal Forum for Israel joined the case as an interested party and commented that the court has limited freedom of expression where such expression would lead to intolerance, arguing that a boycott was an inherently intolerant act.
Responding to the state’s argument that it was premature to judge the law when no lawsuits had been filed or fines issued, the petitioners said the law has had a widespread chilling effect on freedom of expression, as many groups are afraid of the possibility of being sued.
The problem with the law, said one of the petitioners’ attorneys, Gabi Lasky, was not the number of lawsuits or the size of the fines that might occur in the future, but the idea that they could occur at all against an activity that just exercises freedom of expression.
The petitioners added that the law is completely different from the sanctions on the call for illegal and criminal actions, such as incitement to violence and disobedience.
According to the petitioners, the boycott law “imposes sanctions on the call for a boycott itself, although both the call for a boycott and actual boycott actions are unequivocally legal.” The petitioners highlighted articles 3-4 of the law, which they said “grant politicians great powers for harassing public institutions, including civil society organizations, on account of their political expressions.”
Essentially, the petitioners said the law strikes at the heart of the ability to exercise political expression on a political issue at the core of the country’s peace and security debate.
Also, the petitioners noted that the law was not protecting a minority, the settlers, from the tyranny of the majority.
Rather, the law was empowering the settlers at the expense of another political minority, those members of the Left advocating boycotts of the settlements.
To try to portray the law as unreasonable, one of the petitioners’ attorneys asked rhetorically if a lawsuit could be filed against someone for opposing the recognition of Ariel University Center as a university, at a time when the Defense Ministry still has not approved the change.
The court questioned the petitioners about why this law was different than the “Nakba Law.”
The Nakba Law empowered the state to withhold public funds from institutions that mark the founding of the State of Israel as a day of mourning and, so far, was upheld by the court on the grounds that the state has never used the law.
The petitioners said that sanctioning the commemoration of the Nakba limited only particular conduct on a particular day and only to institutions, whereas the Anti-Boycott Law chilled and restricted an entire area of political speech and conduct on a core issue of debate in the public sphere year-round.
They also added that this law was different because it required “offenders” to be brought before the courts for hearings and litigation, whereas the Nakba Law only involved the state making an administrative decision without being compelled to come to court.
The law’s main supporters are NGOs associated with the settlements and politicians on the Right, although Prime Minister Binyamin Netanyahu absented himself from the vote on the law.
The case is being heard by Supreme Court President Asher D. Grunis as well as Justices Esther Hayut and Salim Joubran.