HCJ 9134/12

 

 

 

Petitioners:                1. Prof. Moshe Gavish

                                    2. Prof. Mordechai Segev

                                    3. Prof. Asa Kasher 

 

                                                            v.

 

Respondents:                        1. The Knesset

                                    2. Minister of Finance

                                    3. Attorney General

                                    4. Technion – Israel Institute of Technology

 

Applicant to Join as Additional Petitioner or Amicus Curiae: Prof. Ruth Ben-Israel

           

Applicant to Join as Amicus Curiae:  Association of Law in the Service of the Elderly

 

Attorneys for the Petitionrs and the Applicant to join as Additional Petitioner or Amicus Curiae:  Shoshana Gavish, Adv.

Attorney for Respondent 1: Gur Bligh, Adv.

Attorney for Respondent 2-3: Hani Ofek, Adv.

Attorney for Respondent 4: Gilat Vizel-Saban, Adv; Yael Hadani, Adv; Adam Fish, Adv.

Attorney for the Applicant to join as Amicus Curiae:  Carmit Shai, Adv.

 

 

 

The Supreme Court sitting as High Court of Justice

 

Opposition to order nisi.

Position of the Attorney General of February 9, 2105

Response of the Petitioners of March 22, 1025

 

25 Heshvan 5775 (November 18, 2014)

 

Before: President M. Naor, Deputy President E. Rubinstein, Justice E. Hayut, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice D. Barak-Erez

 

President M. Naor:

 

            Section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law or the Law), provides that "the age at which an employee can be required to retire because of age is 67 for a man and for a woman". The issue before the Court in this petition is whether that statutory provision is constitutional.

 

Background

 

            The Normative Stuation prior to enactment of the Retirement Age Law

 

1.         The accepted view in Israel, as in many other countries, is that a person should be permitted to retire from work and rest from daily toil in old age. That approach is expressed in the creation of retirement arrangements (HCJ 104/87 Nevo v. National Labour Court, IsrSC 44 (4) 749, 754 (1990) [English: http://versa.cardozo.yu.edu/opinions/nevo-v-national-labour-court] (hereinafter:  the Nevo case)). "Retirement age" is generally defined in the framework of those arrangements. The term "retirement age" can have several possible meanings. One meaning is pension-qualifying age, namely the age at which a person is entitled to retire voluntarily and receive the full pension that he has accumulated during his life (hereinafter: qualifying age). Another meaning is a mandatory retirement age. That is, the age at which an employee can be required to retire because of his age (hereinafter: mandatory retirement age),  which is the focus of this petition.

 

2.         The Retirement Age Law was enacted in 2004. Before its enactment, there was no statute in Israeli law that regulated the issue of retirement generally, or that of mandatory retirement age or qualifying age. At that time, mandatory retirement age was gounded in collective agreements, the by-laws of pension funds, or in the statutory provisions that governed certain groups of workers in the economy, like state employees, judges and career soldiers (sec. 18 of the Civil Service (Retirement) Law [Consolidated Version], 5730-1970 as in the version then in force (hereinafter: the Civil Service (Retirement) Law); the Civil  Service (Retirement) (Continued Employment of an Employee over the Age of 65) Regulations (hereinafter: the Civil Service (Retirement) Regulations); section 13(a)(1) of the Courts Law [Consolidated Version], 5744-1984; section 13 of the Israel Defence Forces (Permanent Service) (Retiremant) Law [Consolidated Version], 5745-1985). The employment of workers not governed by a collective agreement or a specific law came to an end at the customaary retirement age, if that was expressly or impliedly agreed between them and their employer. Similarly, such workers could resign upon reaching the customary retirement age and receive severance pay (sec. 11(e) of the Severance Pay Law, 5723-1963.(For details of the arrangements prevailing prior to the enactment of the Retirement Age Law, see: Dan Shnit, “Mandatory Retirement – A Reassessment,” 32 HaPraklit 507, 514-518 (1980) (hereinafter: Shnit).

 

3.         In order to complete the picture, it should be noted that the majority of collective agreements and legal provisions at that time prescribed that the retirement age was 65 for a man and 60 for a woman. Nevertheless, over the years itcame to be understood that requiring women to retire at an earlier age than men was discriminatory (see: Nevo, p. 770; HCJ 6845/00 Niv v. National Labour Court, IsrSC 56 (6) 663 (2002) (hereinafter: the Niv case)). That led to the enactment of the Male and Female Workers (Equal Retirement Age) Law, 5747-1987 [English: http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/6028/97936/F2079498565/ISR6028.pdf] which provided that if a collective agreement prescribed a retirement age that was lower for a woman than for a man, the woman would be entitled to retire at any age between her retirement age and that prescribed for a man (sec. 2 of the statute, later repealed by the Retirement Age Law). Since then, 65 became the normal retirement age for both men and women. (See: HCJ 6051/95 Recant v. National Labour Court, IsrSC 51 (3) 289 (1997) (hereinafter: the Recant case).

 

Recommendations of the Netanyahu Commission

 

4.         In 1997, the Minister of Labour & Welfare and the Minister of Finance appointed a public commission headed by Justice (Emeritus) Shoshana Netanyahu to examine the issue of retirement age (hereinafter: the Netanyahu Commission). The Commission was tasked with examining the issue of retirement age, including its social and economic aspects, as well aso the question of standardizing the retirement age for men and women. The Commission availed itself of the services of an external consultancy firm, as well as information from western countries, comprising statistical data, professional articles, judgments and opinions. Representatives of various professional groups in Israel and a variety of experts appeared before the Commission. The Commission also used demographic forecasts and simulations that were prepared by experts in regard to the implications of a change in the retirement age for the social security system. In addition, the public at large was invited to express its opinions on the issues on the agenda.

 

5.         The Commission submitted its recommendations in July 2000 (Report of the Public Commission for the Examination of the Retirement Age) (hereinafter: the Netanyahu Commission Report). The Commission's recommendations related to various aspects of the retirement age issue. We shall focus on the Netanyahu Commission's opinion on the matter of mandatory retirement age -- the age at which it is possible, as stated, to require an employee to retire because of age. The Commission studied the possibilities of changing the mandatory retirement age, including the possibility of abolishing it altogether. Due to various factors, including the opposition of certain organizations, the Commission decided not to go so far as other countries had in completely abolishing a mandatory retirement age, and instead, adopted a course of "gradual progression, while studying the implications of the proposed change to retirement age" (ibid., p. 6). Consequently, having regard to the data on the ageing of the population and the need to increase the participation of older people in the workforce, the Commission recommended a gradual increase in the customary retirement age (from 65 to 67). In addition, the Commission believed that the mandatory retirement age should be grounded in primary legislation and should apply to all workers. Commission member Prof. Frances Raday took the minority view that a more significant increase in the mandatory retirement age would be appropriate. However, she was also of the opinion that it should not be abolished altogether. This,  because such a step might lead to personal competence criteria for persons wishing to continue working after the normal retirement age, and such criteria might demean and infringe the dignity of those workers. In addition, Prof. Raday believed that abolishing the mandatory retirement age would make it difficult to plan manpower in the workplace.

 

6.         In March 2003, the Government adopted the recommendations of the Netanyahu Commission, making the necessary adjustments to accomodate the passage of time and the changes in the economy since the recommendations were made. Pursuant to the Government's decision, the Retirement Age Bill, 5764-2003 (S.H. 64), was submitted, proposing a comprehensive arrangement for retirement age in Israel, and the required legislative amendments. The Explanatory Notes to the Bill explained the need for legislation in this area:

 

            The ongoing increase in life expectancy, together with the increase in the ratio between the number of elderly in Israeli society and the general population, are not phenomena that are unique to the State of Israel and they exist in most countries of the developed world. These phenomena have led many developed countries, like the USA, to make changes to their prevailing retirement age arrangements in order to adapt the labor market and social security systems (both state and non-state systems) to those changes.

 

            … In July 2000, the Public Commission [the Netanyahu Commission – MN] submitted its recommendations on the said issues, among them te following:… the  mandatory retirement age, namely the age at which an employee may be required to retire because of age, should be raised from 65 to 67. The said rise should be implemented gradually, at the rate of one year every three years, so that it will extend over six years… The Commission believed that it would be appropriate to ground its recommendations in primary legislation, in view of the comprehensive and innovative character of recommended arrangement,and in order to ensure equality among all the residents of the State of Israel".

 

7.         On January 7, 2004, the Bill passed on second and third readings in the Knesset, and on January 18, 2004, the Retirement Age Law, 5764-2004 was published.

 

The Law that is the Subject of the Petition

 

8.         The Retirement Age Law regulates various aspects of retirement age. The stated purpose of the Law is to prescribe standard rules with regard to retirement age, including raising it gradually. Thus the purpose clause of the Law states:

 

Purpose	1.	The purpose of this Law is to establish standard rules with regard to retirement age, including raising it gradually, while applying the said rules both in regard to entitlement to the benefits granted to whomever has attained the said age, and in regard to entitlement to the benefits granted to whomever has not yet attained the said age, until he does attain that age.

 

9.         To achieve that purpose, the Law lays down several provisions concerning the mandatory retirement age and regarding the qualifying age. Section 3 of the Retirement Age Law provides that the age at which a person is entitled to retire voluntarily (the qualifying age) is 67 for a man and, subject to certain provisions, 62 for a woman. Section 5 of the Law provides that upon certain conditions, a person can retire voluntarily at an earlier age. Section 4 of the Law, around which this petition herein revolves, embodies the mandatory retirement age. It provides:

 

Mandatory retirement age

4.

The age at which an employee can be required to retire because of age is 67 for a man and for a woman (in this Law – mandatory retirement age).

 

This provision of the Law does not lay down a mandatory obligation to retire from work at the age of 67, but provides that an employer can reauire that an employee retire because of age. Alongside this, section 10 of the Retirement Age Law provides that an employee and employer can agree that the retirement age will be different from the mandatory retirement age. Among other things, it can be agreed that the retirement age will be higher than the mandatory retirement age:

 

Priority	10. (a)	The provisions of this Law [the Retirement Age Law - MN] shall apply notwithstanding as provided in any agreement.
	(b)	Notwithstanding the provisions of subsection (a), it may be provided by agreement –
		(1)	that the age at which an employee can be required to retire from work because of age shall be higher than mandatory retirement age;
		(2)	that the age at which an employee is entitled to receive benefits because of his retirement from work on account of his age even before he has attained retirement age shall be less than early retirement age, provided that the employer shall bear the cost deriving therefrom in full; the Minister may authorize an entity other than the employer to bear all or part of the cost provided in this paragraph instead of the employer; notice of such authority as aforesaid shall be published in the Official Gazette.
	(c)	The provisions of this Law shall apply unless otherwise provided in another Law (emphasis added – MN).

 

Developments in Case Law after Enactment of the Retirement Age Law: the  Weinberger Decision

 

10.       After the Retirement Age Law was enacted, an appeal was filed in the National Labour Court that asserted that the obligation to retire at the age of 67 was unconstitutional (LabA (National) 209/10 Weinberger - Bar Ilan University (December 6, 2012) (hereinafter: the Weinberger case)). In the alternative, it argued that the Retirement Age Law, according to its interpretation, provides that if an employee asks the employer to continue working after the age of 67, the employer is obliged to give relevant consideration to that request on an individual basis. The National Labour Court (per Judge S. Davidow Motola, President N. Arad, Judge O. Verbner and Public Representatives S. Habshush and Y. Belizovsky concurring) allowed the appeal in part. The court stated that the mandatory retirement arrangement infringed constitutional rights, and such being the case, an examination should be made as to whether the infringement complies with the conditions of the Limitation Clause. The court further held that, prima facie, mandatory retirement is intended for a proper purpose, but there are questions as regards its compliance with the requirement of proportionality. In that context, the court addressed whether it might be proper to adopt a different retirement arrangement that would, mitigate the serious infringement of elderly workers' rights to the extent possible. Nevertheless, the court held that it did not intend to rule on the constitutional issue:

 

            Let us first say that although this court has recognised in its case law, and still recognises, the problems involved in fixing a uniform compulsory retirement age by virtue of a statutory provision, we have decided to leave the ruling on the constitutional issues to the Supreme Court…

 

            Without derogating from the this court’s competence to try constitutional issues, including in the course of indirectly challenging a statute, regard should be had to the fact that jurisdiction to try a direct challenge to the Law – in a way that will apply to everyone, not merely to the direct parties to the dispute – is vested in the Supreme Court, and it is the appropriate and proper instance forexercising constitutional review of a law of such broad scope that has such overall social and economic importance" (paras. 43 and 63).

 

Prenthetically, I would remark that the court will not always deem it appropriate to award relief in the event of an indirect challenge, in circumstances where the party has refrained from presenting the alleged flaw for judicial review by a direct challenge (see and compare: CFH 1099/13 State of Israel v. Abu Pariah, paras. 8-12 (April 12, 2015); LAA 7363/09 Mishan Centre Ltd v. Tel Aviv – Jaffa Municipality, para. 8 (March 2, 2010) and the references there; on the Labour Court's competence to entertain an indirect challenge, see: section 39 of the Labour Court Law, 5729-1969, which refers, inter alia, to section 76 of the Courts Law [Consolidated Version], 5744-1984 regarding incidental jurisdiction). The Labour Court had power not to deal with the constitutional issue. The question whether the Labour Court exercised its discretion properly in those proceedings is not before us, and in any case does not need to be decided.

 

            As for the matter of the Retirement Age Law's interpretation, the Labour Court stated that section 10 of the Law makes it possible to agree to a retirement age that is higher than the mandatory retirement age. Consequently, an employee is entitled to put it to the employer that he wishes to continue working even after accepted retirement age. Alongside that, the Labour Court held that the employer, for his part, must exercise due, individual discretion in answer to the request. The Labour Court enumerated a series of factors that the employer must take into account, like the personal circumstances of the employee, his entitlement to pension and verall concerns of the workplace. The Labour Court emphasised that those factors are not a closed list, and that in any event the employer does not have to continue employing the worker after the hearing. The Labour Court stated, obiter dictum, that according to its interpretation, the mandatory retirement arrangement might permit the employer to require an employee to retire because of his age only in circumstances in which ending the employment involves "leaving on pension", namely "only in circumstances in which there is an overall pension arrangement that regulates the pension age, in the scope and by virtue, of which the employee is entitled 'to leave on pension'" (ibid., para. 71). Nevertheless, it was held that in the circumstances of the case before the Labour Court, it was unnecessary to definitively decide the issue since the appellant there was in any case ending her employment in the framework of a comprehensive pension arrangement, and as part of a collective agreement that gave her tenure. As to the crux of the matter, the Labour Court found that in the case before it, the employer had not summoned the appellant to a hearing or examined the appellant's request to continue working after retirement age. The Labour Court therefore allowed the appeal in part, in the sense that the employer was ordered to pay the appellant compensation of NIS 50,000.

 

            Further to the judgment in Weinberger, in which it was held as aforesaid that this Court should consider the constitutionality of the mandatory retirement arrangement, the petition before us was filed.

 

The Petitioners

 

11.       The first and second Petitioners are members of the academic staff of the Technion – Israel Institute of Technology (hereinafter:  the Technion). The first Petitioner, Prof. Gavish, is a full professor in the Faculty of Medicine of the Technion. The second Petitioner, Prof. Segev, is a full professor in the Faculty of Physics of the Technion and also holds the title of Distinguished Professor. According to para. 16(b)(1) of the collective agreement between the Technion and several other employers and the employee organizations (hereinafter: the Pensions Constitution"), senior academic staff members must retire at the age of 68 (one year over the mandatory retirement age prescribed in the Law). Nevertheless, according to the procedures of the Technion, a full professor, whose academic achievements so justify will, on attaining mandatory retirement age, be appointed as an emeritus professor of the Technion. An emeritus professor may continue teaching, mentoring and research work, albeit on a limited scale in comparison with the work of a tenured professor of equivalent rank. According to the Pensions Constitution, Prof. Gavish reached retirement age in October 2014 and could be appointed an emeritus professor. Prof. Segev is expected to reach retirement age in 2027 but because of his senior title – Distinguished Professor –the procedures of the Technion will permit him to extend his service as a tenured senior staff member with an appointment, subject to the necessary approvals.

 

            The third Petitioner, Prof. Kasher, took early retirement and is now Emeritus Professor of the Chair in Professional Ethics and Philosophy of Practice, and Emeritus Professor of philosophy at Tel Aviv University.

 

            As will be explained below, the Petitioners assert that section 4 of the Retirement Age Law which, as aforesaid, grounds the possibility of compelling an employee to retire because of his age, is void.

 

Applications to Join the Petition

 

12.       After the petition had been filed, Prof. (Emeritus) Ruth Ben-Israel filed an application to join the petition as a Petitioner or, in the alternative, as amicus curiae. Prof. Ben-Israel served for many years as a full professor at Tel Aviv University. Over the years she published extensive, important research in labour and social security law, such as on collective agreements, the right to strike and equal opportunities at work. Because of her activity in those years, Prof. Ben-Israel has achieved academic recognition, a variety of degrees, and even the Israel Prize. Prof. Ben-Israel applied to join the proceedings in order to support the petition and, according to her, to put her knowledge and expertise on the issues before the Court. Prof. Ben-Israel stated that she has been researching the phenomenon of discrimination against the elderly in the labour market for years, and she regards herself as being at the forefront of the fight against age discrimination. Prof. Ben-Israel also filed an affidavit in which she detailed the difficult personal experience that she had undergone when she had to retire from the senior academic staff of Tel Aviv University.

 

13.       Another application to join was filed by the Association of Law in the Service of the Elderly. The purpose of the Association is to promote the rights of the elderly in Israel, and in order to achieve that purpose, it operates at the public and legal level. The Association's main battle is against discrimination against the elderly because of their age (a phenomenon which is called ageism). The Association also applied to support the Petitioners' pleas.

 

The Proceedings Before Us

 

14.       There were two oral hearings on the petition. At the end of the first hearing, an order nisi was issued, directing the Respondents to show cause why section 4 of the Retirement Age Law should not be declared void. It was further decided that opposition to the order nisi would be heard before an extended bench, and that the applications to join would be referred to it (President A. Grunis, and Justices E. Arbel and D. Barak-Erez, judgment and decision of February 12, 2014). Other relief that was sought in the petition was struck out by consent of the Petitioners, while reserving their right to raise them in regard to the stricken issues.

 

15.       On November 18, 2014,  a hearing was held before an extended bench of seven Justices. At the end of the hearing, we asked the Attorney General to submit his opinion on the rule established by the National Labour Court in the Weinberger case, and we ordered that the other parties could reply to his opinion. Finally, it was decided that a judgment would be handed down after the notices and replies had been received (Deputy President M. Naor and Justices E. Rubinstein, E. Hayut, Y. Danziger, N. Hendel, U. Vogelman and D. Barak-Erez, decision of November 18, 2014).

 

The Parties' Main Arguments

 

            The Petitioners' Arguments

 

16.       According to the Petitioners, work is a means for their self-fulfilment, health and longevity. Their only wish is to continue working regularly, without the Technion taking into account the retirement age fixed in the Law or in the Pensions Constitution. The Petitioners believe that an employee's age cannot serve as a criterion for his abilities or skills, and that giving weight to that datum is discriminatory and demeaning, contrary to the Employment (Equal Opportunities) Law, 5748-1988 (hereinafter: the Equal Opportunities Law), and also inconsistent with the relevant case law of the Supreme Court. The Petitioners therefore argued that the mandatory retirement arrangement seriously infringes their constitutional right to equality and to freedom of occupation to an extent that is greatr than required. They assert that the biological retirement model can be replaced by a functional retirement model, based on individual competence criteria. According to them, functional retirement presents a lesse infringement of the rights of elderly employees because it is bases the end of the empoyment relationship on a relevant foundation – the worker's performance. The Petitioners emphasized that in Israel there are already individual competence tests, such as those conducted for state employees, and there is therefore no particular difficulty in making use of them in the framework of an overall retirement arrangement. The Petitioners also argued that the harm caused to them exceeds the benefit that derives from the Law. Finally, the Petitioners explained that, in their view, the interpretation of the National Labour Court in the Weinberger case, according to which an employer is obliged to give individual consideration to the request of an employee to continue working after the accepted retirement age, does not make the mandatory retirement arrangement constitutional.

 

            In view of the above, the Petitioners asked that we strike down section 4 of the Retirement Age Law, and consequently order that para. 16 of the Technion's Pensions Constitution is  void, and other relief. Thereafter, on the recommendation of this Court, the Petitioners focused the petition exclusively on the constitutionality of sec. 4 of the Retirement Age Law. 

 

The Respondents' Answers

 

17.       The first Respondent is the Israel Knesset. The second and third Respondents are the Minister of Finance and the Attorney General (hereinafter referred to together as: the State), while the fourth Respondent is the Technion.

 

18.       According to the State, a mandatory retirement arrangement passes the constitutionality test. The State first asserted that the issue of retirement age is a multifaceted economic and social issue, and that judicial intervention in might have far-reaching implications for the Israeli economy. The State went on to argue that it is doubtful whether mandatory retirement infringes constitutional rights because in certain respects, it benefits workers. First, it helps increase job security until retirement age. Second, it permits the entry of new workers into the labor market. Finally, it saves workers having to undergo constant review of their competence in individual competence examinations. The State also asserted that in various countries, a variety of retirement arrangements, including mandatory retirement arrangements, has been introduced. The State emphasized that the various different retirement models have advantages and disadvantages, and that in such circumstances the legislature's decision to choose the mandatory retirement model is not illegitimate. In addition, the State asserted that since the enactment of the Retirement Age Law, the participation of the elderly in the labor market has increased; that the rate of elderly workers in Israel is among the highest in the world; and that the average, actual retirement age is also higher in comparison with other countries. Consequently, the State argued that the Retirement Age Law has not proven detrimental to the situation of elderly workers.

 

19.       As regards the interpretation of the Law laid down in the Weinberger case, in its reply of February 9, 2015 the State did not dispute that an employer is obliged to consider an employee's request to continue working after reaching retirement age, but emphasised that that did not mean that the employer must extend the employee's employment. In addition, according to the State, it is unnecessary to rule on the scope and nature of the factors that the employer must consider in that regard. In order to demonstrate this, the State noted that it doubted whether the employer should, for example, be required to consider the extent of an employee's entitlement to pension. According to the State, obliging the employer to consider that factor might deter employers from employing candidates who are not likely to accrue sufficient pension rights by the time of reaching the mandatory pension age.

 

20.       The Knesset asked to join the State's arguments, and emphasised three matters: first, according to the Knesset, it is not at all clear that the arrangement infringes the rights of elderly persons. According to the Knesset, an arrangement of compulsory retirement because of age might be to the benefit of elderly workers and safeguard their dignity. Secondly, it argued that support for the arrangement existing in Israel can be found in comparative law, especially in Europe. Finally, the Knesset asserted that ruling on the question of retirement age is complex and has far-reaching implications for the labour market, and that being the case, the decision should be made by the legislature.

 

21.       In its response, the Technion, adopted the position of the State as regards the constitutionality of the mandatory retirement arrangement. According to the Technion, the Retirement Age Law adopted the conclusions of the Netanyahu Commission, which had considered the matter and all the factors relevant to the issue of retirement age. Consequently, according to the Technion, there is no justification for judicial intervention in the Law. The Technion further contended that the advantages of a mandatory retirement arrangement are of particular importance in the context of collective agreements, like the Pensions Constitution, which constitute a "package deal", comprising long-term employment alongside a constant increase in wages, on the one hand, and a predetermined time for the labor relationship to end, on the other hand. The Technion asserted that arrangements of this type are especially important in institutions of higher education, in which academic freedom should be maintained. It argued that abolishing the mandatory retirement age would negatively affect collective agreements that are for the benefit of workers, and also harm the Technion's administrative and budget flexibility. Finally, the Technion argued that the interpretation of the mandatory retirement arrangement made in the Weinberger case expresses a balanced solution, suitable to the labor relationship, and makes it unnecessary to abolish the mandatory retirement age.

 

The Response of the Petitioners and Prof. Ben-Israel

 

22.       In their response of September 15, 2014 the Petitioners and Prof. Ben-Israel presented arguments counter to those of the Respondents. It was first argued that the consideration that a mandatory retirement age promotes job security might be relevant only to employees who enjoy tenure and not workers who are employed under personal contracts. In this connection it was asserted that nowadays the majority of workers in the economy are not governed by employment arrangements that incorporate job security, and the mandatory retirement arrangement is of no advantage to them. In addition, it was argued that the Respondents' position with regard to the need to give the employer tools to plan the workforce at the workplace is not persuasive because it was not raised in other relevant contexts. Thus, for example, section 5 of the Retirement Age Law enables, as aforesaid, an employee to retire voluntarily before reaching the qualifying age. However, although the possibility of early retirement also impairs certainty, it was never argued that it makes it difficult for the employer to manage the workplace. The Petitioners further argue that individual competence tests do not demean the employee since, according to them, the requirement of continuing conformity of a worker to the needs of his job is a relevant requirement. Finally, the Petitioners again warned that the solution outlined by the National Labour Court in the Weinberger case "perpetuates and aggravates discrimination against the elderly because it gives it a color of constitutionality" (ibid., para. 26).

 

Discussion and Ruling

 

23.       The question for us to decide is the constitutionality of section 4 of the Retirement Age Law. It is acknowledged that the Court undertakes judicial review of the Knesset's primary legislation with cautious restraint. "In its legislation, the Knesset gives expression to the will of the people's elected representatives" (HCJ 7717/13 Colian v. Minister of Finance, para. 8 (October 2, 2014)). Therefore, "the Knesset's legislation enjoys the presumption of constitutionality, which imposes a substantial burden on whoever argues against it" (HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 62 (September 2, 2010) (hereinafter:  the Lahav case)). A review of the constitutionality of a statute is of narrow scope, which necessitates a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the constitutional protection of human rights and the fundamental values of the Israeli regime, on the other hand (HCJ 2605/05 Academic Centre for Law and Business, the Human Rights Division v. Minister of Finance, IsrSC 63 (2) 545, 593 (2009) [English: http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-...  (hereinafter: the Prison Privatization case)).

 

24.       Special care is necessary when legislation is involved that delineates wide-ranging social and economic policy (HCJ 1715/97 Israeli Bureau of Investment Managers v. Minister of Finance, IsrSC 51 (4) 367, 386, 388-389 (1997); Lahav, paras. 62-64; Prison Privatization, p. 593; HCJ 4885/03 Israel Association of Poultry Farmers Cooperative Agricultural Society Ltd v.  Government of Israel, IsrSC 59 (2) 14, 60 (2005) [Engish: http://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-... HCJ 4948/03 Elhanati v. Minister of Finance, IsrSC 62 (4) 406, 467-468 (2008) (hereinafter:  the Elhanati case). As Justice D. Beinischsummarised in HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57 (1) 235, 263 (2002) (hereinafter: the Menahem case):

 

            … It has been emphasised many times in this Court's case law that in applying the constitutional criteria prescribed in the Limitation Clause to the legislation of the Knesset, the Court will act with judicial restraint, caution and moderation. This is particularly so when the legislation under constitutional review is in the area of the economic market, which involves broad social and financial aspects. In these spheres there can often be several possible objectives and courses of action. Deciding among them is often based on an evaluation that involves uncertainty, and that involves forecasts and professional considerations that are not always within the expertise of the Court. An incorrect evaluation of the situation may lead to instability or even upheaval in the State economy. Consequently, the authorities responsible for economic policy – the executive branch and the legislative branch – should be given broad discretionary space, since they determine the overall policy, and bear the public and national responsibility for the State economy. Furthermore, the choice between the various different objectives and courses of action in the economy may derive from social-economic perspectives that, despite being different and even contradictory, may all coexist within the framework of the Basic Laws.

 

This statement should also guide us in reviewing the constitutionality of the Retirement Age Law. The issue of retirement is a complex one, that combines both economic and social aspects (LabA (National) 56/196-3 Dead Sea Works Workers Council v. Sharabi, IsrLC 30 283, 313 (1997)). Retirement age itself is a complex, multifaceted subject. It is not without reason that there are several different models in the world in this sphere (for a comprehensive survey of the different models, see Pnina Alon-Shenkar, “Ending Mandatory Retirement: Reassessment,” 35 Windsor Rev. Legal & Soc. Issues 22 (2014) (hereinafter: the Shenkar case); I shall address this again below). Of the possible solutions, the Israeli legislature has decided to adopt a collective model in the Law, which prefers the criterion of age to a specific review of the individual (see, for example: HCJ 7957/07 Sadeh v. Minister of Internal Security, para. 11 of the opinion of Justice E. Hayut (September 2, 2010) (hereinafter referred to as "Sadeh"); HCJ 4487/06 Kelner v. National Labour Court, para. 2 of the opinion of Justice E. Rubinstein (November 25, 2007) (hereinafter: referred to as HCJ Kelner)). This decision results from the conclusions of the Netanyahu Commission, which examined all the aspects of the issue under review. In such circumstances, although the Court will not refrain from exercising constitutional review, it will do so with extreme care (the Prison Privatization case, pp. 593-594; for criticism of certain aspects of this approach, see: Barak Medina,

“‘Economic Constitution,’ Privatization and Public Finance: A Framework of

Judicial Review of Economic Policy,” in Zamir Book on Law, Society and Politics 5, 583, 648-652 (Yoav Dotan and Ariel Bendor (eds), 2005) (Hebrew)).

 

25.       As customary, the review of an argument against the constitutionality of a statute is carried out in stages. First, it is necessary to determine whether the statute infringes a human right grounded in a Basic Law. If the answer is negative, constitutional review comes to an end. If the answer is affirmative, it becomes necessary to examine whether the infringement is lawful, in accordance with the conditions of the Limitation Clause. This expresses the approach prevailing in our legal system, according to which constitutional human rights are relative. Consequently, they can be limited if there is justification for so doing. If the infringement is lawful, the constitutional review ends. If the infringement is unlawful, to the Court must determine the consequence of that unconstitutionality (see and compare: HCJ 7052/03 Adala - The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, 281-282 (2006) [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... (hereinafter: the Adala case); HCJ 2334/02 Stenger v Speaker of the Knesset, para. 5 of the opinion of President A. Barak (November 26, 2003); HCJ 2254/13 Samuel v  Minister of Finance, para. 8 of the opinion of Justice N. Hendel (May 15, 2014)).

 

            We will now proceed to a review of the constitutionality of the mandatory retirement arrangement.

 

Does Compulsory Retirement by Reason of Age infringe the Right of Equality Deriving from the Constitutional Right to Human Dignity?

 

26.       The Petitioners' main argument is that the Retirement Age Law unlawfully infringes the right of equality that derives from the constitutional right to human dignity. Israeli case law has long recognized the right to equality as a fundamental right of prime importance (see: HCJ 1213/10 Nir v. Speaker of the Knesset, paras. 11-12 of the opinion of President D. Beinisch (February 23, 2012) and the numerous authorities there (hereinafter: the Nir case); Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. II 685-688 (2014) (Hebrew); Itzhak Zamir and Moshe Sobel, “Equality before the Law,” 5 Mishpat Umimshal 165, 165-170 (5760) (Hebrew)). "Equality is a foundation of social existence. It is one of the pillars of the democratic regime" (HCJFH 4191/97 Recant v. National Labour Court, IsrSC 54 (5) 330, 362 (2000) (hereinafter:  HCJFH Recant). The right to equality has also been recognized as a constitutional right under the intermediate model that also includes discrimination that does not involve humiliation, provided that it is closely associated with human dignity (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 (2006) (hereinafter:the Yeshiva Students case)). The other side of the equality coin is the prohibition of discrimination. There are clear reasons for the prohibition of discrimination: discrimination leads to the creation of a sense of oppression, frustration and social ostracism (Nevo, p. 760). It "… completely erodes human relations…" (HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50 (3) 485, 503 (1996)).

 

27.       Equality – and the prohibition of discrimination that it entails – are also necessary in labor law ( the Recant case, pp. 340-341; HCJ 1268/09 Zozal v. Israel Prison Service Commissioner, para. 13 of the opinion of Justice E. Hayut (August 27, 2012) [English: http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi... (hereinafter: as the Zozal case); Ruth Ben-Israel, “Occupational Equality, Where from and Where To?" 6 Labour Law Yearbook 85 (1996) (Hebrew)). "This area is 'asking for trouble' as regards prohibited discrimination" (the Elhanati case, p. 450). Consequently, in labor law there is extensive legislation aimed at promoting employment equality (see, for example: Female and Male Workers Equal Pay Law, 5756-1996; the Employment of Women Law, 5714-1954). A central law that reflects the importance of equality in the context of labor law is the Equal Opportunities Law. That statute prohibits an employer from discriminating among employees or among those seeking employment on the basis of their sex, sexual orientation, personal status, pregnancy, fertility treatment, IVF treatment, being parents, their age, race, religion, ethnic group, country of origin, views, political party, or their service in reserve duty, their call for service in reserve duty or their anticipated service in reserve duty (section 2(a) of the Equal Opportunities Law). An exception thereto can be found in section 2(c) of the statute which provides: "Differential treatment necessitated by the character or nature of the assignment or post shall not be regarded as discrimination under this section”.

 

28.       Discrimination by reason of a person's age was already prohibited in certain contexts in Israel at the end of the 1950s (see, for example: sec. 42(a) of the Employment Service Law, 5719-1959; HCJFH Recant, p. 367-369), but only in recent years do we find growing has public and legal awareness (HCJ 10076/02 Rosenbaum v. Israel Prison Service Commissioner, IsrSC 61 (3) 857, 872 (2006) [English: http://versa.cardozo.yu.edu/opinions/rosenbaum-v-israel-prison-service-c... (hereinafter: the Rosenbaum case) and the references  cited there). The primary occurence of discrimination on account of age is discrimination against "the elderly" or "the old", referred to as “ageism” (Israel (Issie) Doron, “Ageing and Anti-Ageing in Israel’s Supreme Court Rulings,” 14 HaMishpat 65 (5771) (Hebrew); Israel Doron and Einat Klein, “The Inappropriate Arena? Discrimination because of Age in the Eyes of the District Labor Court,” 12 Labour, Society and Law 435 (2010) (Hebrew); Israel (Issie) Doron, Old Age in the Temple of Justice: The Old and Ageism in the Case Law of the Supreme Court, (2013) (Hebrew) (hereinafter: Doron)). Discrimination because of age "… usually reflects the entrenchment of stereotypes with regard to the limitations of the body and the mind of the older person. Usually this has no rational or objective basis” " (the Rosenbaum case, p. 871). Such discrimination is not unique to Israel. It exists in the majority of the Western world. Some explain its growing prevalence by the trend of population ageing, which has led to an increase in the number of elderly who constitute part of the general workforce (Pnina Alon-Shenkar, “The World Belongs to the Youth: On Discrimination against Senior Workers and Mandatory Retirement,”, in Liber Amicorum Dalia Dorner Book 81, 82-84, Shlomit Almog, Dorit Beinisch & Yaad Rotem (eds), (5769) (Hebrew) and the comparative research cited there (hereinafter:  Shenkar – The World Belongs to the Youth); see also Batia    Ben-Hador, Aliza Even,      Efrat            Appelbeum,   Hadas Dreiher,          Daphna          Sharon, Yinon Cohen, Guy Mundlak, “Assessing            Employment Discrimination          in         Hiring by Correspondence  Studies,”  11 Labour, Society and Law 381, 395 (2005); Equality at Work: the Continuing Challenge, Global Report under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 100th Session 2011 (Report I(B)), p. 49). It is against that background that the prohibition of age discrimination was added to the Equal Opportunities Law in 1995.

 

29.       Discrimination against a person because of age in the field of employment may be expressed at different stages of the labor relationship between the employee and the employer. This was addressed by the National Labour Court in the Weinberger case:

 

            Discrimination against an elderly person in employment is expressed at all the stages of the relationship between him and the employer or potential employer, from the hiring stage… through determination of the terms of employment and limited promotion options… to the stage of employment termination ”as a catalyst for the employee's dismissal or retirement” (para. 27 of the opinion of Judge S. Davidow-Motola).

 

Age discrimination can also occur upon retirement. To date, the Court has assumed that a compulsory retirement age can be fixed, but that it must be done equally. Consequently, it has been held that the determination of a retirement age that is younger than customary for a certain type of worker without substantive justification is unlawful (see, for example: HCJFH Recant, pp. 364-370; Rosenbaum; Sadeh; Zozal; Nevo; Niv; LabA (National) 1313/04 Asa v. El Al Israel Airlines Ltd, para. 22 of the opinion of Judge S. Zur (March 23, 2006) (hereinafter: the Asa case); LabA (National) 14705-09-10 Muzafi v. Bank Leumi Ltd, paras. 28-31 of the opinion of Judge V. Wirth Livne (May 16, 2012) (hereinafter:  the Muzafi case); LabA (National) 203/09 The Agudath Israel Kindergarten Network v. Boussi, para. 41 of the opinion of Judge R. Rosenfeld (October 2, 2011); LabA (National) 1414/01 Dead Sea Works Ltd. v. Nissim, IsrLC 40 193 (2004) (hereinafter: the Dead Sea Works case); cf. HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Internal Security, IsrSC 58 (2) 358 (2004) [English: http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-minister... (hereinafter: the Association for Civil Rights case)). However, the question of whether requiring a person to retire from work at a predetermined, uniform age is discriminatory per se has not yet been decided in our law. In any event, hard and fast rules have not been laid down as to whether compulsory retirement because of age amounts to the infringement of a constitutional right.

 

30.       The question whether compulsory retirement because of age infringes equality has been described in the case law of this Court as a complex one, on which comparative law is not  unanimous (Rosenbaum, p 875; also see and compare: Sadeh, para. 11 of the opinion of Justice E. Hayut). In the Recant case, various opinions were advanced on the subject, but no binding precedent was set. Justice I. Zamir was of te opinion that age discrimination can find expression in the workplace, inter alia, in the very requirement to retire at some particular age (ibid., pp. 341-342). On the other hand, in the same case, Justice M. Cheshin stated that Israeli law does not prohibit fixing of a compulsory retirement age for workers, and that fixing such an age is not "at the present time" regarded as age discrimination (ibid., p. 336). President D. Beinisch, for her part, stated that "… according to the norms currently accepted in Israel, the fixing of a compulsory retirement age, which is within the accepted norm both in legislation and in collective labor agreements, is not unlawful discrimination but a permitted, relevant distinction because of age…" (ibid., p. 374). Justice D. Beinisch went on to say that "new winds are blowing in our society, as in other societies, and future development cannot be ruled out that will undermine the point of departure in regard to the proper compulsory retirement age and perhaps even in regard to compulsory retirement because of age in general" (ibid.).

 

31.       Opinions are also divided in the legal literature. There are those who assert that retirement based on the employee's chronological age infringes his dignity (see, for example: Ruth Ben-Israel,  “Retirement Age in light of the Principle of Equality: Biological or Functional Retirement,” 43 Hapraklit 251 (1997) (Hebrew) (hereinafter: Ben-Israel); Shnit, p. 509). Others believe that there are concrete circumstances in which a substantive distinction is involved (for example, Sharon Rabin-Margalioth, “Age Discrimination in Israel: A Power Game in the Labor Market,”, 32 Mishpatim 131 (5762) (hereinafter:Rabin-Margaliot) (Hebrew); Sharon Rabin-Margalioth, “The Elusive Case of Employment Discrimination: How Do We Prove Its Existence?”  44 Hapraklit 529 (1999) (Hebrew)).

 

32.       The question whether requiring an employee to retire from work at a uniform age infringes the right to equality is indeed a venerable one. In order to analyze the matter, I am willing to accept that compulsory retirement because of age – as it appears in the Retirement Age Law – does infringe the right to equality that derives from the constitutional right to human dignity, as I shall explain. . The Law under review, according to its wording and purpose, is sweeping, and comprehensive. It distinguishes as regards retirement between young employees and elderly ones without any direct link to their competence or work capacity (see: Zozal, para. 24 of the opinion of Justice S. Joubran). It applies to all employees in the economy, without distinguishing among different types of occupation, types of employee or terms of employment. In such circumstances, individuals might understandably be harmed (HCJ Kelner, para. 2 of the opinion of Justice E. Rubinstein; Shnit, pp. 508-509; Rabin-Margalioth, pp. 144-147; cf. the position of Justices M. Cheshin and D. Beinisch in  the Recant case, supra). Furthermore, it is acknowledged that “The principle of equality does not operate in a social vacuum. The question whether a certain case involves discrimination between equals, or whether it merely involves different treatment of different people, is decided on the basis of the accepted social outlooks” " (HCJ 721/94 El Al Israel Airlines Ltd v. Danilowitz, IsrSC 48 (5) 749, 779 (1994) [English: http://versa.cardozo.yu.edu/opinions/el-al-israel-airlines-v-danielowitz, para. 4, per Dorner J]). While in the past the prevailing view was that there is a close connection between age and performance, it is now clear that reality is more complex and the effect of age on body and mind differs from one person to another (see: The Netanyahu Commission Report, p. 6). In this regard the saying goes that "the only generalization that can be made about the elderly is that one cannot generalize" (Doron p. 28). Consequently, making decisions on the basis of attribution to the elderly group is, as aforesaid, likely to cause injustice to the individual. By way of comparison, that was also the opinion of the Supreme Court of Canada (McKinney v. University of Guelph [1990] 13 C.H.R.R. D/171 (S.C.C) (hereinafter: the Mckinney case; see also Dickason v. University of Alberta, [1992] 2 S.C.R 1103 (hereinafter:  the Dickason case); Harrison v. University of British Columbia [1990], 3 S.C.R. 451; Stoffman v. Vancouver General Hospital [1990] 3 S.C.R. 483).

 

33.       I therefore believe that an infringement of equality is involved. It is acknowledged that not every infringement of equality amounts to an infringement of human dignity. However, in the case before us, we are not concerned with a trivial infringement. Discriminating against an elderly person is harsh and outrageous, and it even "involves an element of humiliation and infringement of his dignity as a person" (HCJFH Recant, p. 366; see also Ruth Ben-Israel and Gideon Ben-Israel, “Senior Citizens: Social Dignity, Status and Representative Organization,” 9 Labor, Society and Law 229 (5762) (Hebrew))). Added to this are the implications associated with making a person retire against his will. As Justice G. Bach stated in Nevo:

 

             Retirement from work has many negative personal, mental and social consequences. Frequently, a person who retires from his employment because of his advancing age feels that he is no longer a participant in the productive sector of society. He feels that he has been deprived of the satisfaction of working and receiving compensation for his labour. This feeling is also strengthened by society's attitude, which in many cases treats him as an "old man" who no longer serves any useful purpose. The situation is more acute in our day, where average life expectancy has increased and people remain healthy even at an advanced age. For this reason, the number of years have increased in which an older person, of sound body and mind, is forced, despite his capabilities, to leave his activities in the labour market and gaze, frequently in frustration, on the progression the accordingly of life's activities in which he can no longer take part  (ibid., p. 755 [http://versa.cardozo.yu.edu/opinions/nevo-v-national-labour-court at para. 5B(1)]).

 

And as Justice E. Hayut stated in Zozal:

 

            An older-person’s retirement is very significant, and carries weighty consequences for that person’s life, in financial and social terms, and no less with respect to the person’s self-image, given the insult inflicted on a person who is capable and wishes to continue working " (ibid., para. 15 [http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...).

 

Also apt in this regard is the statement of Justice I. Zamir in  the Recant case:

 

            Discrimination against a person because of his belonging to a group, for example discrimination because of race, religion or sex, infringes the person's dignity. It is demeaning.… Such is also the case in respect of discrimination concerning retirement age. A person who was active and effective, involved and useful is suddenly, in his own eyes and the eyes of those around him, made irrelevant. The harm generally caused to someone who has to retire from work at an age that is fixed as a general one for mandatory retirement is aggravated when a person belongs to a group of workers that has to retire at an earlier age (ibid., p. 342).

 

Although the statement was made in regard to compulsory early retirement, it is in my opinion also relevant here. Indeed, work is not merely a source for dignified minimal existence, but also a source for self-fulfillment and social fulfilment. Naturally, the greater the place that work occupies in an individual's life, the greater the harm caused as a result of compulsory retirement because of age. Having regard to the nature and extent of the harm, I am willing, as aforesaid, to accept that such harm amounts to an infringement of human dignity. This approach is consistent with opinions that have recently been expressed in the National Labour Court, according to which compulsory retirement because of age infringes constitutional rights (Weinberger, para. 57 of the opinion of Judge S. Davidow Motola; LabA (National) 107/05 Kelner v. Civil Service Commissioner, para. 7 of the opinion of President S. Adler (February 27, 2006) (hereinafter:  the Kelner case), and compare HCJ Kelner, para. 7 of the opinion of Justice E. Rubinstein; see further: the Asa case, para. 22 of the opinion of Judge S. Zur; the Muzafi case, paras. 16-17 of the opinion of Judge V. Wirth Livne).

 

34.       Even the Respondents do not wholeheartedly dispute that compulsory retirement because of age might harm the elderly who can and want to continue working. Nevertheless, according to them, that harm is negligible when considered against the advantages of a predetermined, uniform chronological retirement age. The Respondents assert that a mandatory retirement age protects the elderly against demeaning competence tests and helps promote job security. Therefore, they assert, weighing the interests of elderly workers as a group leads to the conclusion that a mandatory retirement arrangement protects, rather than harms, employees. These are serious arguments. However, I believe that they do not nullify the harm to the individual. In similar circumstances – in which various aspects of the same right clashed with each other – I stated:

 

            We are therefore concerned with a clash between two constitutional rights that are designed as fundamental. How can this clash be resolved? The solution is not one right “winning” over the other. Indeed, at the constitutional level, the clash cannot be completely resolved, as though “letting a hundred flowers blossom” … The solution will be found at the practical – sub-constitutional – level… A. Barak considered this clash between the subordinate rights of human dignity:

 

                        “The conflict between the subordinate rights does not lead to changing the bundle of rights that expresses the whole of human dignity. Indeed, the solution to the conflict will be found at the sub-constitutional level. At that level it will be determined if a sub-constitutional norm […] that has limited one subordinate right of human dignity in order to protect another subordinate right of human dignity is constitutional. The criterion for the determination of that constitutionality is the rules of proportionality”…

 

            That statement is also apt with regard to the sub-subordinate rights that clash in the instant case. One right does not retreat in the face of the other but a balance is determined between them at the sub-constitutional level. If it is found that the solution chosen by the legislature infringes the constitutional right of the student to obtain an education, then that infringement will only be constitutional if it is proportionate. Therefore, as my colleague Justice E. Arbel has stated, it is necessary to examine whether the statute complies with the criteria of the Limitation Clause… (HCJ 3752/10 Rubinstein v. Knesset, paras. 4-5 of my opinion (September 17, 2014); and compare the opinion of President A. Grunis there).

 

So too in the case before us. The protection of the individual against harm caused by requiring him to retire against his will does not retreat in the face of the necessary protection of the elderly as a group, but a balance must be struck between them in light of the criteria of the Limitation Clause (also see and compare: HCJ 42/94 Manco Food Import & Marketing v. Ministry of Trade and Industry (September 3, 1994) (hereinafter: the Manco case). The Respondents further asserted that the Petitioners have not proven that compulsory retirement because of age is makes there situation worse in comparison with that of young workers. In support of that argument, the Respondents adduced data showing that the participation of the elderly in the workforce is growing and that the actual retirement age in Israel is among the highest in the member states of the Organisation for Economic Cooperation and Development (hereinafter: the OECD). In my opinion, those data indicate less harm to the individual, but it appears that they are not sufficient to neutralize the harm. An employee's very obligation to retire against his will is likely to harm his dignity and his sense of competence, even if the age at which he is obliged to retire is relatively high (cf. HCJ 8665/14 Desta v. Knesset, paras. 58-60 of my opinion (August 11, 2015) (hereinafter: the Desta case)).

 

            In view of the foregoing, the point of departure for our further discussion is that a constitutional right, namely the right to equality that derives from the constitutional right to human dignity, is infringed. However, I would first say that the conclusion that I have reached is that the infringement meets the requirements of the Limitation Cclause and it would therefore be inappropriate to invalidate the provision of the Law that is under review.

 

The Criteria of the Limitation Clause

 

35.       Our assumption that the obligation of a person to retire because of his age infringes the right of equality that derives from the constitutional right to human dignity is not the end of the line in respect to the validity of the Retirement Age Law because it is still necessary to examine whether the infringement is lawful (Elhanati, p. 467; Nir, para. 17 of the opinion of President D. Beinish). The constitutionality of the infringement is examined in accordance with the conditions of the Limitation Clause, according to which constitutional rights are not to be infringed, unless by a law that befits the values of the State of Israel as a Jewish and democratic state, which is intended for a proper purpose and in a way that does not exceed what is necessary. The Limitation Clause is the criterion for balancing competing values (HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62 (4) 715, 764 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general). It reflects the approach prevailing in our law according to which constitutional rights are not absolute. "The Limitation Clause emphasises the concept that the individual lives within society and that the existence of society and its needs and traditions might justify the infringement of human rights" (the Yeshiva Students case, p. 692). This was also addressed by President D. Beinisch in the Prison Privatization case:

 

            The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (p. 620 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 8]; emphasis added – MN).

 

The conditions of the Limitation Clause are, inter alia, examined having in light of the nature of the right infringed, the purpose of the enactment and the intensity of the infringement caused in the particular case (Nir, para. 18 of the opinion of President D. Beinish; Menahem, pp. 258-259).

 

36.       In the instant case, the infringement is in the Law. In their arguments before us, the parties did not address the question of the Law's befitting the values of the State of Israel as aJewish and democratic state at any length. Therefore, the purpose of the Law will first be discussed and finally – and this is the essence of the matter before us– the question of the Law's proportionality will be discussed.

 

Proper Purpose

 

37.       A purpose is proper if it is intended to achieve important public interests (see: Desta, para. 24 of my opinion, and the authorities cited there), or if it is intended to promote human rights, "including by prescribing a fair and reasonable balance between rights of individuals with conflicting interests in such a way as leads to a reasonable compromise in granting the optimum rights to each individual" (Menahem, p. 264).

 

38.       The general purpose of the Retirement Age Law is to prescribe uniform rules with regard to retirement age, including raising it gradually (section 1 of the Law). The determination of uniform rules for retirement is intended to promote several interrelated sub-purposes. Those purposes are not expressly mentioned in the purpose section of the Law, but they do find expression in the Explanatory Notes to the Retirement Age Bill, and in the recommendations of the Netanyahu Commission that formed the basis for the Law's enactment (see: The Netanyahu Commission Report, pp. 6-8 for the majority opinion, and pp. 31-32 for the minority opinion of Prof. Raday). The determination of a mandatory retirement age seeks to protect the dignity of workers and improve their job security in the economy until retirement age. At the same time, it is intended to enable the employer to manage the workforce at the workplace, especially in unionized workplaces, where the employees enjoy tenure. Mandatory retirement age is also intended to promote fairness among the generations – the integration and promotion of new employees in specific workplaces where the number of jobs is limited. Alongside this, raising the mandatory retirement age in the Law enables anyone so desirous to work longer, and it thereby also seeks to provide an answer to the continuing increase in life expectancy and the rise in the ratio between the number of elderly in Israeli society and the population in general. Since these demographic changes might cause difficulties in financing the increase created in the various different pensions and place a more onerous burden on social security systems, it has become necessary to extend the time for pension savings by means of a standard rise in the qualifying age and the mandatory retirement age (the Netanyahu Commission Report, pp. 9-10).

 

39.       In my opinion, these are proper purposes. The need to protect interests of workers and promote social security is one of the foundations of the whole of labour law. In addition, a purpose that seeks to safeguard the dignity and livelihood of elderly workers recognizes them as a separate group entitled to protection in the employment market, and expresses a proper awareness of the vulnerability of the elderly in labor relations. On the other hand, in my opinion, it is not improper to have regard for the interests of new workers in the labor market. Giving weight to those interests, prima facie strives towards finding compromises between different generational groups, on the assumption that, in time, everyone is likely to reach an advanced stage of  life (see: Kelner, para. 7 of the opinion of President S. Adler; Asa, para. 22 of the opinion of Judge S. Zur, para. 3 of the opinion of President S. Adler; Weinberger, para. 59 of the opinion of Judge S. Davidow Motola; cf. HCJ 1181/03 Bar Ilan University v. National Labour Court, IsrSC 64 (3)  204, 237 (2011) [English: http://versa.cardozo.yu.edu/opinions/bar-ilan-university-v-national-labor-court] (hereinafter: the Bar Ilan" case; for criticism of this purpose, see, for example: Shenkar, “The World Belongs to the Youth”, pp. 101-105; Shnit, pp. 509-513; Ben-Israel, pp. 259-261). The purpose of managing the workplace and planning manpower is not an improper purpose either.

 

            The purposes mentioned have also been recognized as proper purposes in comparative law. Thus, the European Court of Justice has held that legitimate purposes of an arrangement for mandatory retirement on account of age might include the protection of long-standing employees against the infringement of their dignity; the promotion of new employees and the creation of jobs; and enabling the employer to plan and manage the workforce at the workplace (see, for example: Palacios de la Villa v. Cortefiel Servicios SA (C-411/05) [2007]  (hereinafter:  Palacios de la Villa); Georgiev v. Tehnicheski Universitet - Sofia, Filial Plovdiv (C-250/09) [2010] (hereinafter: Georgiev); Torsten Hörnfeldt v. Posten (C-141/11) [2012] (hereinafter: Torsten Hörnfeldt); Fuchs (C-159/10) and Köhler (C-160/10) v. Hessen [2011] (hereinafter: Fuchs); Petersen v. Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe (C-341/08) [2010]. That was also the opinion of the Supreme Court in England (Seldon v. Clarkson Wright & Jakes [2012] UKSC 590 (hereinafter: Seldon), and of the Supreme Court in Canada (Dickason; Mckinney). It should be noted that further to a legislative change, the current legal position in Canada is not as it was when the said judgments were handed down. I shall refer to this below.

 

40.       The various purposes of the Retirement Age Law demonstrate the Law's aspiration to effect a balance between the rights and interests of the different "players" in the labour market: the needs of the employer, the rights of the different groups of employees, and the needs of the economy as a whole (see: Weinberger, para. 59 of the opinion of Judge S. Davidow Motola). This also finds expression in the overall provisions of the Retirement Age Law. Thus, for example, the Law enables an employer to require an employee to retire on reaching the age of 67, but this is nevertheless on the assumption that the employee will be entitled to a pension as a substitute for income from work. In addition, the Law does not compel an employee to retire from work on reaching a certain age, and permits him and the employer to agree that the employee will retire at a later stage, and it even obliges the employer to give consideration to continuing the worker's employment after retirement age, if the employee so requests (Weinberger, paras. 64-72 of the opinion of Judge S. Davidow Motola). As a rule, striving for a fair balance between competing interests of individuals is a proper purpose (cf. the Yeshiva Students case, pp. 696-700; Manco). This is also apt in the case before us.

 

            The Petitioners, for their part, asserted that even if the determination of a uniforn rule for retirement is a proper purpose, it can be achieved in other ways, and in any event, it does not justify the serious blow caused to elderly persons by obliging them to retire from work because of their age. I shall now proceed to review these arguments.

 

The Proportionality Criteria

 

41.       The infringement of the right must be proportionate. "While the Limitation Clause stands at the heart of constitutional review, the criterion of proportionality stands at the heart of the Limitation Clause" (Lahav, para. 111 of the opinion of Justice A. Procaccia). In the scope of the proportionality criteria, an examination is made of the relationship between the purpose of the Law and the means chosen by the legislature in order to achieve it (see, for example: HCJ 6133/14 Gorvitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gorvitz case); an application for a Further Hearing was dismissed, HCJFH 2649/15 Gorvitz v. Knesset (August 2, 2015)).  The proportionality criteria express the concept that it is not sufficient for the purpose of the statute to be a proper one. It is also necessary that the means chosen to achieve that purpose to be fit and proper (the Yeshiva Students case, p. 705). The proportionality of the statute is examined by means of three subordinate criteria. The first subordinate criterion is that of the rational connection, which considers whether the statute has the power to realise the purpose for which it was enacted. The second subordinate criterion – the means of least infringement – examines whether among the means that achieve the purpose of the law, the legislature has chosen the means that infringes human rights the least. Finally, the third subordinate criterion, namely the test of proportionality "stricto sensu", requires that there should be a proper relationship between the purpose of the statute and the associated infringement of the constitutional rights.

 

            The Rational Connection Criterion

 

42.       According to the rational connection test, as aforesaid, the means chosen by the legislature must lead to the achievement of the purpose underlying the statute. This criterion does not require that the statutory means to lead to the achievement of the purpose with absolute certainty. Nevertheless, a slim, theoretical prospect does not suffice (Adala, p. 323; Aharon Barak, Proportionality in Law: Infringement of the Constitutional Right and their Limitations, 373-374 (2010) (hereinafter: Barak, Proportionality)). Does the arrangement in the Retirement Age Law have the power to achieve its purposes? In my opinion, the answer to this question is in the affirmative. A mandatory retirement arrangement is based on rational considerations, for which support can be found in case law and in the economic and legal literature. Firstly, there is a reasonable connection between the determination of an equal, uniform rule for retirement from work and the promotion of certainty in the employment market. The fixing of a retirement age enables the worker to know when he will reach the time to rest from his daily toil. Alongside this, it enables employers to plan the workforce at the workplace (see also: Zozal, para. 24 of the opinion of Judge S. Joubran; Nevo, p. 754). The Petitioners, for their part, asserted that the Law enables flexibility in regard to retirement, and the connection between mandatory retirement and promoting certainty in the economy is therefore slim. The Retirement Age Law does, indeed, provide that in certain circumstances it is possible to retire at an age that is different from the qualifying age or the mandatory retirement age (see: section 5 of the Law, which permits voluntary early retirement on certain conditions; section 3 of the Law, which permits women to retire at a younger age than men; section 10 of the Law, which permits an employee and employer to agree that the retirement age will be higher than the mandatory retirement age). Nevertheless, it cannot be inferred from the foregoing that there is no connection between mandatory retirement and the promotion of certainty, nor can it be inferred that there is no need for certainty in the scope of retirement arrangements. I would mention the the factors of certainty and manpower planning did find expression in the recommendations of Prof. Raday in the Netanyahu Commission Report,. Apart from that, the Retirement Age Law seeks to balance different interests, which naturally cannot lead to the absolute achievement of every single purpose of the Law. Consequently, even if the purpose of certainty is not completely achieved, this does not necessarily attest that there is no rational connection between it and the Law.

 

43.       In my opinion, there is also a rational connection between mandatory retirement and promoting the interests of employees in certain respects. The accepted view is that the existence of a mandatory retirement age limits the need for the employee to undergo repeated tests of his abilities and performance that might cause him pressure and uncertainty, and even lead to arguments over his competence (see and compare: Sadeh, para. 13 of the opinion of Justice E. Hayut; HCJ Recant, pp. 373-374; Weinberger, para. 60 of the opinion of Judge S. Davidow Motola). That being the case, it is not unreasonable to assume that a mandatory retirement arrangement can in promote the employee's interest in this regard. Moreover, when there is a predetermined, uniform retirement age, the ordinary practice is to wait until that age and not require the employee's early retirement, even if there is a certain decline in his competence. Consequently, mandatory retirement might reduce the number of workers who are discharged from the workplace before the normal retirement age (see: Shnit, p. 511 and the authorities cited there). In addition, there are those who argue that a mandatory retirement age is an essential, or at least an important element in the employment model termed "deferred compensation". This model is common in unionized workplaces that grant employees tenure by virtue of collective agreements, but it can also exist in an informal format without any explicit contractual arrangement (Rabin-Margalioth, p. 155). In a deferred compensation system, the employee's wage is characterized by a constant increase in its real value over the period of employment, and at a certain stage it even exceeds the employee's marginal output. Such an employment model is based on the assumption that parties to a labor relationship make investments in their relationship that decline to nothing in the case of employment termination (ibid., p. 154). Both parties – the employee and the employer – therefore wish to maintain a long-term labor relationship. A deferred-compensation employment model helps to promote that objective. As described in the article by Rabin-Margalioth:

 

            The beginning of the relationship constitutes the employee's training period, in which he is remunerated in excess of his marginal output. During the second time period (mid-career), the wage continues to rise, but the rate at which the employee's output increases is greater and the wage paid therefore falls below the worker's marginal output. This increase in output is made possible thanks to the skills that the employee has developed in the course of his work. In the third stage of the relationship (the later period), although the employee's wage continues to rise, his marginal output no longer increases and sometimes even declines (ibid., p. 154).

 

At the same time, the deferred compensation model is also based on the existence of a fixed time that is known in advance for the termination of employment, namely a time when the employee can be required to retire because of his age. Without such a time, a particular employer will find it difficult to assure his employee increased wages linked to increased seniority (ibid., p. 155). This approach – which connects mandatory retirement age with the deferred compensation model – has support in the economic literature and empirical research (Edward P. Lazear, “Why is There Mandatory Retirement?” 87 (6) Journal of Political Economy 1261 (1979); Mandatory Retirement: Why Governments Should Quit Banning It (AIMS Labour Series Commentary #3, 16.12.2008) and the authorities cited  there; Samuel Issacharoff and Erica Worth Harris, “Is Age Discrimination Really Age Discrimination?: The ADEA's Unnatural Solution,” 72 NYU L. Rev. 780, 787-790 (1997) (hereinafter: referred to as Issacharoff & Harris); Beverley Earle and Marianne DelPo Kulow, “The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair,” 24 S. Cal. Interdis. L.J. 369 (2015) (hereinafter: Earle & Kulow); Julie C. Suk, “Evolutions in Antidiscrimination Law in Europe and North America: From Antidiscrimination to Equlity: Stereotypes and the Life Cycle in the United States and Europe,” 60 Am. J. Comp. L. 75, 93 (2012) (hereinafter:  Suk); Rabin-Margalioth, pp. 150-161; Shenkar, The World Belongs to the Youth, pp. 139-141; and also see the opinion of Judge Y. Plitman in Dead Sea Works, mentioning the advantages of fixing a mandatory retirement age in collective agreements (although he was left in the minority there with respect to the result, it appears that the other members of the bench did not specifically dispute his said approach)). It cannot therefore be said that this approach, which regards mandatory retirement age as a means to promote job security, is irrational.

 

44.       As regards the purpose of promoting new employees and increasing jobs, there are no unequivocal findings that employment of the elderly leads to unemployment of the young. Consequently, it appears that if the mandatory retirement arrangement was intended for that purpose, it would have been difficult to find correspondence between it and the means taken (see also “Equality at Work: Tackling the Challenges, Global Report Under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work,” International Labour Conference, 96th Session 2007, Report I (B)), p. 42; Shenkar, The World Belongs to the Youth, pp. 101-104). Notwithstanding the foregoing, the need for a balance between senior employees and new ones might be necessary in certain workplaces typified by a limited number of tenured positions and a "narrow" promotion pyramid (The Netanyahu Commission Report, p. 9 of the majority opinion; LabA (National)  300205/98 Avni v. New Histadrut General Federation of Labor, para. 11 of the opinion of Judge S. Adler (June 2, 1999)). This factor is particularly salient when institutions of higher education are involved, where on the one hand, the integration of new academic staff members is important as a means for the interchange of ideas and innovation, but on the other hand, there is a limited number of positions. The Supreme Court of Canada discussed this in Mckinney:

 

            Mandatory retirement is thus intimately tied to the tenure system. It is true that many universities and colleges in the United States do not have a mandatory retirement but have maintained a tenure system. That does not affect the rationality of the policies, however, because mandatory retirement clearly supports the tenure system. Besides, such an approach, as the Court of Appeal observed, would demand an alternative means of dismissal, likely requiring competency hearings and dismissal for cause. Such an approach would be difficult and costly and constitute a demeaning affront to individual dignity.

 

            Mandatory retirement not only supports the tenure system which undergirds the specific and necessary ambience of university life. It ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence. Universities need to be on the cutting edge of new discoveries and ideas, and this requires a continuing infusion of new people. In a closed system with limited resources, this can only be achieved by departures of other people. Mandatory retirement achieves this in an orderly way that permits long-term planning both by the universities and the individual.

 

The United States Federal Court of Appeal made a statement along similar lines in Lamb v. Scripps College, 627 F.2d 1015, 1023 (1980):

 

            In light of the unique problems encountered by universities in their efforts to prevent intellectual stagnation and to assure diversity and competence in their faculties … and the likelihood that a mandatory retirement policy will remedy at least some of these problems, … California's determination that different treatment is warranted for a certain class of tenured private college professors than for other tenured private college professors and other employees is rationally based … In rejecting Lamb's equal protection challenge on that basis, we make no endorsement of mandatory retirement as a matter of social policy. We are aware of both the debilitating effect that compulsory retirement can have on an individual, and the potential loss to society in terms of human resources that may result therefrom. The promulgation of a mandatory retirement policy, however, reflects a legislature's resolution of competing interests and this is “precisely the type of clash of competing social goals that is best resolved by the legislative process. The federal courts should not second guess the wisdom or propriety of such legislative resolutions as long as they are rationally based” …

 

The Petitioners, for their part, pleaded that the effect of mandatory retirement on actual retirement age is negligible. According to them, research shows that even in countries where mandatory retirement because of age has been abolished, the retirement age has risen only slightly. Therefore, according to them, abolishing mandatory retirement because of age will, in any event, not affect new workers who wish to progress in the workplace. On the other hand, there is other research according to which the abolition of mandatory retirement has led to an increase in the age of those retiring in certain workplaces (see, for example, Earle & Kulow; Issacharoff & Harris; Orley Ashenfelter and David Card, Did the Elimination of Mandatory Retirement Affect Faculty Retirement Flows? (NBER Working Paper No. 8378) (2001), http://www.nber.org/papers/w8378; but see Till von Wachter, The End of Mandatory Retirement in the US: Effects on Retirement and Implicit Contracts, Center for Labor Economics, University of California, Berkeley (Working Paper No. 49 (2002)), http://cle.berkeley.edu/wp/wp49.pdf)). Nor is it possible to ignore the context of this petition, which we should recall, is brought by senior lecturers in institutions of higher education. According to the data presented to us by the Technion, the number of tenured posts in the institution is limited, and the acceptance of new academic staff depends,  to a certain extent, upon the retirement of senior staff members. Indeed, the weight of the intergenerational argument is not the same in all workplaces, and it is influenced by macro-economic changes. This argument should, therefore, perhaps not be given great weight. However, ultimately, it cannot be said that the connection between mandatory retirement and the promotion and integration of new employees in certain workplaces is merely theoretical.

 

45.       The Petitioners further argued that the purposes of the Law detailed above can be achieved in other ways but, as is known, the rational connection criterion does not require that the means chosen be the only one that can achieve the purpose. It suffices for there to be a reasonable possibility that mandatory retirement age promotes the Law's purposes in order to find that there is a rational connection between the Law's purposes and the means adopted by it. The choice between different possible means for achieving the purpose will now be examined in the scope of the second and third subsidiary tests (see:  the Yeshiva Students case, pp. 706-707; Barak, Proportionality, pp. 376-377).

 

The Means of Lesser Infringement Test

 

46.       The lesser-infringement test consists of two elements. The first element considers whether there is an alternative that can achieve the proper object of the Law to the same extent as the means adopted by the Law. The second element examines whether the alternative infringes constitutional rights to a lesser extent than the infringement of the Law under the Court's review (Barak, Proportionality, p. 399). In Retirement Age Law, the legislature preferred to adopt an overall, uniform criterion, rather than abolish the mandatory retirement age and arrange for individual competence tests. In principle, a sweeping arrangement might raise concern of disproportionality in the sense of the second subordinate criterion. In this respect, the statement of this Court in the Association for Civil Rights case is apt:

 

            Indeed, the employer will find it difficult to satisfy the “smallest possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve (p. 367 [http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-minister..., para. 9, per Barak P]).

 

I also considered this, albeit in a different context, in HCJFH 203/14 Salah v. Prison Service (April 14, 2015):

 

            In general, “any sweeping arrangement is ‘suspect’ of not being the lesser infringing means because of the possibility of individually examining the individuals included in the relevant group” (the Younes case, para. 74 of the opinion of Justice Y. Danziger; see also: El Abeid, pp. 706-707; Saif, pp. 76-77 [http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]; the Airports Authority case, para. 5 of the decision of President (Emeritus) D. Beinish). On the other hand, sometimes an individual examination will be ineffective or cannot be made at all (see and compare: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... HCJ 466/07 MK Zahava Galon – Meretz-Yahad v. Attorney General (January 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]; Younes, para. 74 of the opinion of Justice Y. Danziger and the authorities there, and the opinion of Justice I. Amit).

 

There can, indeed, be situations in which an individual examination will not achieve the purpose of the Law to the same extent (Adalah; HCJ 466/07 Galon v. Attorney General (January 11, 2012)). In view of the overall material presented to us, I believe that in the instant case the Respondents have shown substantial reasons in support of the claim that if mandatory retirement is replaced by an individual examination, that might lead to preventing the achievement of the Law's objectives. Thus, a regime of functional retirement does not meet the need of certainty to the same extent, nor answer the need to plan the workforce in the workplace. Such a model might also upset the balance between senior and new employees at particular workplaces. In addition, a move to functional retirement might impair job security in the workplace. First, because, as noted, arrangements that assure the employee tenure in the workplace (such as the "deferred compensation" model) depend to a large extent on the existence of a mandatory retirement age. Second, in the absence of a mandatory retirement age, employers might more frequently compel workers to retire before the customary retirement age. Moreover, choosing the functional retirement model might expose employees to constant examination of their competence in such a way as might create unease, stress and anxiety. As noted, these considerationsfind support in the legal and economic literature (including the current literature), and they also find expression in foreign legislation and case law. I shall refer to comparative law at greater length in the course of the third subsidiary test, but as regards the criterion of the means of lesser infringement, I believe that the legislature had adequate foundation to determine that the functional retirement model will not achieve the purposes of the Law to the same extent. In any event, it is doubtful whether that model infringes workers' rights and dignity less.

 

            The Petitioners dispute the disadvantages of the functional retirement model. According to them, functional retirement does not contradict the deferred compensation model, which can be safeguarded in other ways, like giving incentives to employees who choose to retire early. In any event, according to them, the deferred compensation model is only relevant to unionized workplaces and not to the economy as a whole. In addition, as they see it, functional retirement does not infringe dignity because it is based on substantive reasons for a person's employment termination. Consequently, they believe that the biological retirement model, as enacted in the Retirement Age Law, does not meet the second proportionality test. The Petitioners, like the Respondents, supported their arguments with various authorities and research in the spheres of economics and law. However, having regard for the factual and legal foundations detailed above, that does not suffice to find that a functional retirement regime should be preferred to biological retirement, and to intervene in the choice made by the legislature. It should be borne in mind that the vast majority of the factors for and against mandatory retirement – like the factors in support of other retirement models – are based on appraisals, various expert opinions, and forecasts. Exact science is not involved. Consequently, it is difficult to find a particular retirement model that will provide the optimum benefit of all the "players" in the labor market. It is not without reason that the public, legal and academic debates on this subject have continued in recent years, including in countries where mandatory retirement because of age has been abolished (see for example, Shenkar, pp. 37-39 and the numerous authorities there; Doron, pp. 31-56; Shnit; Ben-Israel; Rabin-Margalioth; Seldon; Earle & Kulo; Suk; Jonathan R. Kesselman, “Challenging the Economic Assumptions of Mandatory Retirement,” in Time's up!: Mandatory Retirement in Canada 161 (Terry Gillin, David Macgregor, Thomas Klassen (eds.) (2005); Lucy Vickers and Simonetta Manfredi, “Age Equality and Retirement: Squaring the Circle,” 42 Ind. Law J. 61 (2013); Orly Gerbi, “Compulsory Retirement in Israel: Is the end in Sight?” 24 No. 2 Emp. & Indus. Rel. L. 25 (2014); Malcolm Sargeant, “Distinguishing Between Justifiable Treatment and Prohibited Discrimination in Respect of Age,” 4 J.B.L. 398 (2013); Neta Nadiv and Ariel Mirelman, “Respect for the Old: An Examination of the Issue of Employment after Retirement Age,” 10 Kiriat Hamishpat 276 (2014) (hereinafter: Nadav & Mirelman) (Hebrew)). For that reason, as well, I do not believe that it is appropriate to intervene in the legislature's preferring the biological retirement model to the functional retirement model.

 

            Having said that, and although the Petitioners did not refer to it at length, it cannot be ignored that there is a broad spectrum of retirement models between a model of compulsory retirement because of age and a model of functional retirement, (see and compare: Rosenbaum, para. 18 of the opinion of President A. Barak; Weinberger, paras. 61-62 of the opinion of Judge  S. Davidow Motola). Thus, for example, a compulsory retirement age only in the framework of collective agreements, which provide job security and an adequate pension, might have been permitted (ibid.; Rabin-Margalioth). Another solution might have been permitted mandatory retirement only if the employer could justify it. Another alternative is gradual retirement, similar to the model existing at the Technion. I will not deny it: these solutions are fair and reasonable, and it might be proper to give them serious consideration. However, as earlier noted, the Petitioners did not base their arguments on these alternatives and consequently, we were not presented with support for the an argument that the alternatives are of equal value to the biological retirement model. We cannot find that they are means that can achieve the purpose of the Law to an equal extent. Moreover, when comparing the existing retirement model with other alternatives, it should be borne in mind that the existing model, according to our interpretation, requires the employer to give consideration to an employee's request to continue working even after the retirement age fixed in the Law (Weinberger; I shall refer to this at greater length below). Consequently, to some extent, even the existing arrangement exrpressed consideration for the individual particulars of the employee tn a manner that reduces the infringement of his rights.

 

            My conclusion is, therefore, that the mandatory retirement arrangement meets the second proportionality test.

 

Proportionality Stircto Sensu

 

47.       In the scope of the third subsidiary test – that of proportionality “in the narrow sense” – an examination is made of whether there is a right and proper relationship between the benefit that will arise from achieving the Law's purposes and the associated infringement of the constitutional rights. This subsidiary test is a values test, based on a balance between rights and interests (see, for example: Desta, para. 24 of my opinion). In the instant case, the parties have presented two competing philosophies. While the Respondents side with the existing retirement model, the Petitioners ask that we strike it down because it seriously infringes the rights of the elderly. Both parties have put a wide range of arguments to us, each from its own point of view. Ultimately, having weighed the infringement caused by the Law, on the one hand, and its benefit, on the other hand, I have reached the overall conclusion that there are no grounds for the Court to intervene in the legislature's choice to prefer a model of compulsory retirement because of age.

 

48.       As earlier stated, a model of compulsory retirement because of age harms individuals who can, and want to, continue working. Furthermore, as noted, research shows that there is no necessary connection between one’s age and one’s performance at work. Although certain abilities might decline with age, there are substantial differences in output within the elderly group (see, for example: Shnit, p. 511; Ben-Israel, p. 268). Against that background, compulsory retirement might cause economic and social harm and lead to serious feelings of deprivation and incompetence. Compulsory retirement because of age might also perpetuate a collective stigma in regard to the abilities and skills of the elderly (Ben-Israel, p. 273). Indeed, "… forced retirement, based on nothing except their age, sends the message that older workers are not qualified. This message hurts the core of a person’s dignity – a person who, only because of his age, is identified as being of little worth. " (Zozal, para. 26 of the opinion of Justice S. Joubran [http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...). It should be borne in mind that the determination of a mandatory retirement age does not merely affect the time of a person's retirement from work, but it might also have an effect on his ability to obtain other jobs after he has passed the retirement age (see, for example, the handicaps that were discussed in HCJ Kelner with regard to the acceptance to work of someone who has passed retirement age; see also: LabC (TA District) 6286/06 Matatia v. Paint Lee Ltd. (December 17, 2009); Nadav & Mirelman, p. 275). It can also be argued that compulsory retirement leads to the relinquishment of highly experienced, quality manpower that can contribute to the workplace and the economy in general. Abolishing mandatory retirement would therefore enable society to profit from the experience and skills of the elderly.

 

49.       On the other hand, there are weighty arguments in support of a model of uniform, compulsory retirement, as briefly mentioned earlier. In my opinion, among the various factors, consideration should be given to the argument that the implementation of uniform retirement reduces the need constantly to examine the employee's competence, and thereby diminishes uncertainty, tension and anxiety. A decision that an elderly worker must retire because of a decline in his performance at work might also cause serious feelings of incapacity and create an unfavourable "personal stigma" in respect of him. A statement along similar lines was made by Justice D. Beinisch in HCJ Recant:

 

            I would further add that I personally believe that there are substantial reasons that can  justify a uniform, compulsory retirement age. Since that is not the question to be decided here, I shall not express my opinion on that question in detail, but merely state that I tend to believe that, in general, a uniform retirement age is a solution that is preferable to compulsory retirement on an individual basis. Among the disadvantages of such functional retirement, which is gaining a growing number of supporters, mention may also be made of the infringement to the dignity of the ageing employee whose ability to work will be under constant scrutiny (ibid., p. 374).

 

This was also the opinion of Prof. Raday, who stated in the Netanyahu Report that abolishing the mandatory retirement age might lead to the development of personal competence tests for the elderly who wish to continue working after the usual retirement age, "tests that might demean and infringe the dignity of those elderly people" (p. 31; see also: Sadeh, para. 13 of the opinion of Justice E. Hayut). I am aware that in certain contexts it has been held that individual competence tests do not infringe the employee's dignity. This has regard for the fact that employees' performance is a relevant consideration (the Association for Civil Rights case, p. 369; HCJFH Recant, p. 355). However, even if the intensity of the affront in such a case does not amount to an infringement of human dignity, it certainly has an effect on the worker's conditions of employment and welfare. The practical difficulties involved in the development of individual competence tests cannot be ignored either. While an individual competence test might be simple and possible when work that requires physical skill is involved, that is not the case when occupations that necessitate a qualitative appraisal of work capacity are involved (see and compare: HCJ Kelner, para. B of the opinion of Justice E. Rubinstein). This is reinforced in the instant case, which involves senior members of the Technion's academic staff who enjoy academic freedom and independence in research, while any interference in their work might be perceived as the exertion of improper pressure on some of them (see and compare: Mckinney; and cf. the dissenting opinion in Dickason, above, in which the conduct of peer review was suggested as a means to evaluate the competence of a university's academic staff). The Petitioners indeed argued that frequent use is now made of individual competence tests, and they cited as an example the civil service rules that permits them. Although that possibility does exist, it is not the default. Naturally, if mandatory retirement were abolished, the use of individual competence tests would be far more prevalent, with all the implications thereof.

 

            I would incidentally note that I do not give great weight in my decision to the argument that the development of individual competence tests would place the employer under a financial burden. Although such a budgetary factor might sometimes be relevant, in the case before us it does not justify the infringement of equality. It is generally acknowledged that "human rights cost money", and as a democratic society we must be willing to bear their cost (see and compare, HCJFH Recant, p. 355; HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49 (4) 94, 142 (1995) [English:  http://elyon1.court.gov.il/files_eng/94/410/045/Z01/94045410.z01.pdf]; see also: Age Concern England (C-388/07) [2009] para. 46; Fuchs, para. 52). My reasons in this regard are entirely concerned with the possible harm to workers that would be caused by widespread application of individual competence tests, and the practical difficulties of implementing them equally and fairly.

 

50.       Another relevant factor is the scope of the elderly's participation in the labor market. There is concern, as aforesaid, that the abolition of the mandatory retirement age will lead to the early dismissal of elderly employees even before reaching the accepted retirement age, and will also affect the arrangements that give job security to workers. Moreover, as mentioned above, the mandatory retirement age might increase certainty and facilitate the planning of manpower in the workplace, as Prof. Raday stated in the Netanyahu Report. Finally, as noted, a model of compulsory retirement because of age takes into account the interests of new workers in the labor market, although this factor is at most relevant to certain workplaces in which the number of posts and the possibilities of promotion are limited. Added to these overall factors is the underlying premise of the Retirement Age Law that a person who retires can continue subsisting independently after retirement by receiving some or other pension (that factor has also been raised in the case law of the European Court of Justice: Palacios de la Villa, para. 73; Rosenbladt v. Oellerking Gebäudereinigungsges GmbH (C-45/09) [2011], para. 44-47 (hereinafter: Rosenbladt); Alysia Blackham, “Tackling Age Discrimination against Older Workers: a Comparative Analysis of Laws in the United Kingdom and Finland,” 4 Cambridge J. Int'l & Comp. L. 108, 112-117 (2015)). This is even though reforms in retirement arrangements, like the transition from pension savings based on the accrual of rights ("defined benefits") to pension savings based on the accrual of money ("defined contributions"), have created different arrangements between one employee and another (as regards the pension arrangements existing in Israel, see: HCJ 2944/10 Koritsky v. National Labour Court (October 13, 2015), and the numerous authorities cited there – applications for a further hearing were dismissed: HCJFH 7730/15, HCJFH 7649/15 State of Israel - Ministry of Finance v. Koritsky (February 23, 2016); and see also Bar-Ilan; Elhatani; HCJ 6460/12 Eliav v. National Labour Court, IsrSC 60 (4) 411 (2006)).

 

51.       It emerges from the aforegoing that the model of compulsory retirement because of age has advantages and disadvantages. As opposed to this, other models, such as the functional retirement model, based on individual competence tests, are not entirely free of difficulties (see also the comprehensive review of the arguments for and against a mandatory retirement age in Sadeh, para. 13 of the opinion of Justice E. Hayut). Given this complex background, I believe that the legislature's preference of the model of compulsory retirement because of age over other models is based on reasonable considerations that give no cause for the Court's intervention. As this Court has acknowledged, in the context of a constitutional review, the legislature enjoys a "margin of proportionality", within which there are several options. The Court will intervene only when the means chosen by the legislature "departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate " (Prison Privatization, p. 623 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 46, per Beinisch P] (emphasis added – MN); Gorvitz, para. 53; AAA 4436/02 Tishim HaKadurim – Members Club Restaurant v. Haifa Municipality, IsrSC 58(3) 782, 812-813 (2004)).

 

            In my opinion, the choice of the compulsory retirement because of age model is not "clearly" disproportionate. This model was chosen after the Netanyahu Commission had deliberated and found that it is inappropriate, for the time being, to abolish mandatory retirement. A similar conclusion was also reached by earlier public commissions that had similarly considered the issue of retirement age (the Nitzan Commission (1967); the Kister Commission (1975); the Vogel Commission (1994); see the reference thereto at p. 26 of the Netanyahu Commission Report). Contrary to the Petitioners’ claim, the Netanyahu Commission considered factors for and against mandatory retirement. This clearly emerges from the recommendations of the Commission in which those factors were detailed (see, respectively: pp. 6-8 and pp. 31-32 of the Netanyahu Commission Report). The legislature's choice of the compulsory retirement because of age model reflects was an informed choice among different possibilities. In view of all the advantages and disadvantages described above, that choice does not depart from the broad margin of proportionality given to the legislature under the circumstances (see also: Weinberger, para. 14 of the opinion of Judge O. Verbner). Under these circumstances, even if some of the usual considerations justifying mandatory retirement, and their relative weight can be questioned, that does not suffice in order to find that the Law is disproportionate.

 

52.       This conclusion is supported by various data from which it emerges that the mandatory retirement age model does not actually cause substantial harm to the group of elderly workers in Israel. First, the situation of Israel is better relative to that of the countries in the OECD: the rates of employment of elderly workers in Israel are higher, the demographic make-up of Israel is younger, and the retirement age is the highest in the OECD (Ronnie Hacohen, “Employment of the Elderly in Israel: Review of the State of People over the Age of 45 in the Israeli Labour Market,” The Israeli Employment Service – Policy Research Division, Deputy Director of Planning (February 2014); see also: The Bank of Israel Report, 2015, p. 45 http://www.boi.org.il/he/NewsAndPublications/RegularPublications/DocLib3...).

 

            Moreover, according to OECD research, the average effective retirement age in Israel between 2009 and 2014 was among the highest of the countries examined in the research, including countries like the United States and Australia, where mandatory retirement because of age has been abolished by legislation (OECD, Ageing and Employment Policies – Statistics On Average Effective Age of Retirement, http://www.oecd.org/els/emp/ageingandemploymentpolicies-statisticsonaver...):

 

 

 

 

 

 

MEN

WOMEN

53.       The mandatory retirement age model also exists in various different countries and is not exceptional in that respect. Although the possibility of requiring a person to retire because of his age is not usually prescribed by general legislation, it very common in the employment market in various  contractual frameworks or in specific legislation (Shenkar, p. 25). In addition, in 2000, the European Union adopted a directive intended to lay down a general framework for employment equality (Council Directive 2000/78/EC of 27 November 2000). Inter alia, the directive prohibits discrimination against a worker because of his age (Articles 1 and 2), while establishing specific exceptions to the prohibition of age discrimination (Articles 6(1) and 6(2)):

 

            Justification of differences of treatment on grounds of age

 

            1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

 

            Such differences of treatment may include, among others:

 

            (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

 

            (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

 

            (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

 

            2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.

 

Based on the principles of the said directive, the European Court of Justice has on several occasions held that a mandatory retirement age can be fixed if it is accompanied by a legitimate aim, and if the means taken to achieve it are reasonable and proportionate. Thus, the European Court has held  in a series of judgments on the subject, that legitimate aims in this connection include, for example, the access of new workers to the labor market; planning manpower in the workplace; avoiding disputes with employees with regard to their competence for work and the "negative" personal labelling of employees who have been forced to retire due to individual incapacity; and the sharing of opinions and ideas between senior and new employees, especially in institutes of higher education (see, for example: the judgments in Palacios de la Villa Georgiev; Torsten Hörnfeldt; Fuchs). As regards the proportionality of mandatory retirement, the European Court of Justice held in one of the cases that it is generally a practice that does not infringe rights more than necessary. In this context the Court stated that the compulsory retirement because of age model is common in Europe, and can serve to balance political, economic, social, demographic and budgetary considerations (Torsten Hörnfeldt, para. 28; Rosenbladt, para. 44).

 

54.       Accordingly, in various European countries there is in no legal bar to the fixing of a mandatory retirement age. In Germany, for example, the majority of State employees are required to retire between the ages of 65 and 67, while it is possible to extend their service beyond that, if consistent with the needs of the employer, and the employee agrees (Beamtenstatusgesetz Länder [Civil Servant Status Act for the Civil Servants of the Federate States], promulgated June 17, 2008 Bundesgesetzblatt [BGBl] BGBl I 2008, 1010). Similarly, a mandatory retirement age can be prescribed in an agreement between the employee and the employer, provided that the retirement age fixed is no less than the customary retirement age, and that there is justification for it, such as management of the manpower in the workplace (Sozialgesetzbuch VI: Gesetzliche Rentenversicherung [SGB VI] [Social Act VI] 19.Februar 2002 Bundesgesetzblatt [BGBl.]). Similar law also applies in France (Code du travail [French Labour Code] Art. L1237-5-1; Loi n° 84-834 du 13 Septembre 1984 relative à la limite d'âge dans la fonction publique et le secteur public [law n. 84-834 concerning the age limit of civil servants] available at legifrance.fr); in Austria (Beamten-Dienstrechtsgesetz 1979 [BDG] [Civil Servant Act 1979] Bundesgesetzblatt [BGBl.] Nr. 333/1979 §13-14); Norway (Act Relating to Working Environment, Working Hours and Employment Protection, § 13-15); Sweden (Developing Anti-Discrimination Law in Europe (European Commision, 2013), p. 36, http://ec.europa.eu/justice/discrimination/files/comparative_analysis_20...); and Switzerland (Personal- und Besoldungsgesetz des Kantons Schwyz [PG] [Employee and Remuneration Act of Canton Schwyz] June 26, 1991).

 

            It should be noted that there have been changes over the last year in some European countries. In Denmark, the mandatory retirement age in the public sector was abolished, but private employers were able to require employees to retire because of age (Ageing and Employment Policies: Denmark 2015, Working Better with Age (OECD Publishing), p. 21-22). As of January 2016, a mandatory retirement age has also been abolished in the private sector. In Ireland, a December 2015 enactment has limited the ability to fix a mandatory retirement age (Employment Equality Act 1998; Equality (Miscellaneous Provisions) Act 2015).

 

            A mandatory retirement age also applies in countries of Asia like Japan and South Korea (A Comparative Review of International Approaches to Mandatory Retirement (Research Report No. 674 (2010), https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil... (hereinafter: Comparative Review of Mandatory Retirement); http://www.agediscrimination.info/international/Pages/southkorea.aspx; see also the comprehensive comparative review in the opinion of Justice N. Hendel in Zozal).

 

55.       On the other hand, there are countries where the fixing of a mandatory retirement age has been prohibited      . In the United States, for example, compulsory retirement because of age was abolished in by law in 1986 (Age Discrimination in Employment Act, 29 USC 621-34 (1967) [ADEA]). At a later stage, it also became prohibited to require a person to retire because of his age in Britain, Canada, Australia and New Zealand (Comparative Review of Mandatory Retirement, pp. 2-3; Shenkar, pp. 24-25). Nevertheless, it should be emphasised that when the constitutionality of mandatory retirement has been considered by the American  and Canadian courts, the courts there refused to intervene (see, for example: McKinney; Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)). The change in retirement policy has been made, as aforesaid, in legislation. Similarly, in those countries, too, there are exceptions to the prohibition against requiring a person to retire because of his age, and some of the exceptions are quite broad. Thus, for example, in Britain, although the uniform mandatory retirement age was abolished in 2011, an employer can still bring the employment of a worker to an end because of his age on the basis of legitimate social factors, such as intergenerational justice (giving employment possibilities to new workers), and the desire to avoid infringing the dignity of an employee against the background of arguments concerning his competence. This is all provided that the employee's obligation to retire because of his age is proportionate (Equality Act 2010 (UK), c 15, §13(1)-(2); Malcolm Sargeant and Susan Bison-Rapp, “Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States,” 44 Loy. U. Chi. L.J. 717 (2013); Seldon). In contrast, in the United States the exception is relatively narrow: it is permissible to compel an employee to retire only if the same is reasonably obliged by the nature of the job (Anthony Sheppard, „Mandatory Retirement: Termination at 65 is Ended, but Exceptions Linger On,” 41 U.B.C. L. Rev. 139, 176-177 (2008); Anja Wiesbrock, “Mandatory Retirement in the EU and the US: The Scope of Protection Against Age Discrimination in Employment,” 29 Int'l Comp. Lab. L. & Ind. Rel. 305 (2013)). Similarly, in Australia and New Zealand an employer can require an employee to retire if he can no longer meet the basic requirements of the job (Rachael Patterson, “The Eradication of Compulsory Retirement and Age Discrimination in the Australian Workplace: A Cause for Celebration and Concern,” 3 Elder Law Review 1 (2004)). In Canada, there are different arrangements in each province (Shenkar, pp. 31-32). In some, the law is similar to that in the United States, while in others, the exception is broader. Thus, for example, one of the provinces permits fixing a mandatory retirement age, provided that it involves a bona fide requirement that is part of a retirement or pension arrangement. According to a judgment of the Canadian Supreme Court on this issue, it is not necessary to show that mandatory retirement is an essential part of the pension arrangement (New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan, [2008] 2 S.C.R).

 

56.       A comparative examination of the retirement issue shows that the retirement model chosen by the legislature is not exceptional. In different countries there are a range of possibilities for the regulation of retirement generally, and pension age in particular. The various factors for and against mandatory retirement age are frequently debated in those countries, and the legal, social and economic controversy is not yet over. Even when significant changes to retirement arrangements have been made in other countries, those changes have, as noted, been made in legislation and not by judicial ruling. It would appear that this is also the course that should be taken in the instant case.

 

57.       In addition, even were we of the opinion that the mandatory retirement age is improper in its present format, it would be possible to conceive of various ways to rectify it. Thus, for example, it might be desirable, or even proper, to consider a further increase in the age of mandatory retirement instead of abolishing it altogether. A model of gradual retirement can also be conceived of, like the model that exists in the Technion, together with abolishing mandatory the retirement age in certain sectors, or limiting the permission to fix a mandatory retirement age to cases in which it constitutes part of an overall pension arrangement. Any solution should take into account a substantial number of factors: the needs of employees, the needs of employers; the effects on the extent of elderly employment, and more. The link between the pension qualifying age and the mandatory retirement age cannot be overlooked either. Increasing mandatory the retirement age – or abolishing it altogether – might, in the long term, lead to an increase in the qualifying age for the receipt of pension benefits (see, for example, the change that has occurred in the United States, where the qualifying age to receive social security benefits is due to rise from 65 in 2000, to 67 in 2022; Shenkar, opposite  fn. 13).

 

            A "polycentric" problem is therefore involved, in which, as a rule, the Court rarely intervenes (see and compare: HCJ 3677/09 Israel Insurance Adjusters Association v. Supervisor of Insurance and the Capital Market (December 7, 2010)). This does not relieve the Court of its duty to analyze the Retirement Age Law in light of the constitutional criteria. Nevertheless, it cannot be ignored that there is a difficulty involved in making a material change to retirement age in one fell swoop. A change of such type necessitates scrupulous preparatory work, the analysis of various factors, hearing opinions from factors in the economy, and anticipating possible broad repercussions. It should be borne in mind that the legislature itself initiated changes to retirement age after its feasibility had been studied in depth by various public commissions.

 

58.       Added to this is the fact that a collective retirement model, which lays down a predetermined, uniform retirement age, has been customary in Israel for many years. Replacing that model with another one, such as a functional retirement model that takes into account the individual particulars of every employee, might substantially affect the employment market. This is especially so if the change were made immediately, further to a judicial decision. In order to illustrate this, I would note that Bank of Israel research has shown that raising the mandatory retirement age and the qualifying age have led to immediate changes in the economy. While raising the retirement age has led to a significant increase in the number of persons employed at older ages, and to an increase in the income of high earners, it has reduced the income of those finding it difficult to integrate in the labor market at an older age (low-income employees and individuals not working), inter alia because they have been unable to plan for it in advance. The recommendation of those conducting the research was, therefore, that if another increase in retirement age is decided upon, it would be appropriate to introduce it gradually (Bank of Israel Report 2014, pp. 129-134, http://www.boi.org.il/he/NewsAndPublications/RegularPublications/Pages/D... see also: Bank of Israel Report 2010, pp. 171-175, http://www.boi.org.il/he/NewsAndPublications/RegularPublications/Doch201...). Having regard to all the aforegoing reasons, it would be inappropriate to find that the legislature exceeded the margin of proportionality granted it.

 

59.       Although not strictly necessary, I would add that the interpretation of section 4 of the Retirement Age Law also affects its constitutionality. As noted, reading sections 4 and 10 of the Retirement Age Law together led the National Labour Court to conclude in the Weinberger case that the Retirement Age Law grants an employee the right to ask his employer to permit him to continue working even after he has reached mandatory retirement age, and that right the employer is required to review the request on its merits and on an individual basis. The Labour Court further held that the same does not mean that the employer must accede to the employee's request, but it must consider it seriously, having regard to all the relevant circumstances. This approach of the Labour Court, in my opinion, gives expression to the need for flexibility in retirement and "softens" the collective model of compulsory retirement, without abolishing it completely. It adds to the balance between the needs of different "players" in the labor market, and is consistent with the retirement mechanism existing in the civil service, which makes it possible to extend the service of an employee beyond the retirement age in certain cases (section 18(a) of the Civil Service (Benefits) Law; the Civil Service (Benefits) Regulations; the provisions of sec. 82.54 of the Civil Service Regulations; Commissioner's Directive No. 8.3 of December 21, 2014; see also: The State Service Commission, Headquarters for Implementation of the Reform, Knowledge Management and Theory Department, Extension of Service Beyond Retirement Age Policy Document (December 2014), http://www.csc.gov.il/Units/Reform/RetirementDoc/index.html#1/z). In any event, the State itself has not objected to the determination that an employer must give individual consideration to a person's continued employment if he has so requested, subject to the same not obliging the employer to grant the request.

 

60.       The Labor Court further held that in considering an employee's request to continue working, the employer must weigh a broad range of factors concerning the employee's personal circumstances, systemic factors of the workplace, and the broader effects on other workers. The Labor Court stated that it was not seeking to lay down a closed list of factors, but that, in general, it would be proper to consider the number of years the employee has worked in the workplace; the extent of his entitlement to pension, and his financial and family situation; the employee's contribution to the workplace; the nature of his job, and his success in performing it. In addition, the Labor Court stated that it would be proper to consider "whether there is objective concern that his competence has declined with age (giving an opportunity for an individual competence test insofar as necessary)"; "whether there is a possibility of transferring him to another job etc."; and also, "whether there is a possibility of continuing to employ the worker in another way, like reducing his position to part time, or making him an independent consultant" (ibid., paras. 66-67). As for myself, I see no reason to detail the considerations because we are not concerned with a request that the employer must accept. In any event, presumably the list of factors will evolve or change from case to case (see also: UA (Tel Aviv District) 9172/09 Cohen v. Bank Leumi Ltd. (August 26, 2014); and see: Tamar Golan, “My Duty to Retire? Your Duty to Consider It,” The Advocate (January 2013) (Hebrew); Avinoam Cohen, "Work Without Welfare: Further to LabA (National) 209/10 Libi Weinberger v. Bar Ilan University," 5 Mivzakei He’arot Pesika – (Hamishpat Online)  7-13 (April 2013) (Hebrew)). Ultimately, it suffices that the mandatory retirement age is not legally obligatory,and that the employer must give consideration to the worker's continued employment after retirement age in order to limit the harm to the employee.

 

            As noted, the Labor Court went on to state that it might be appropriate to interpret section 4 of the Retirement Age Law as making it possible to oblige an employee to retire because of his age only when it is carried out in the scope of an "overall pension arrangement". The Labor Court refrained from defining that concept, but did intimate that arrangements that generally exist in unionized workplaces are involved. The Labour Cort did not rule on the question because, in the case before it, the appellant's retirement was in the framework of a pension arrangement of that type. Again, in the petition herein, I do not believe that we must rule on the issue. This interpretation does not, in my opinion, decide whether the Law is constitutional, and the parties have in any event not made any arguments in that regard. I would note that in this case, as well, the Petitioners' employment is regulated by a collective agreement, which entitles employees to a pension upon retirement.

 

            Consequently, having regard to all the reasons detailed above, I believe that the Law also passes the third test of proportionality.

 

Conclusion

 

61.       I have reached the conclusion that there are no grunds for our intervention in section 4 of the Retirement Age Law. Since the Retirement Age Law was enacted, the retirement age has gradually risen in accordance with the mechanisms prescribed in the Law. Even after full implementation of the Law, the public debate on this issue has not ended. From time to time, the Knesset addresses the issue, and only recently a private member’s bill was resubmitted on the matter of the mandatory retirement age. While the bill proposes prohibiting the fixing of a mandatory retirement age, it does permit the employer to require the employee to retire on reaching retirement age if there is functional unsuitability in his case (Retirement Age (Amendment – Abolition of Mandatory Retirement Age) Bill, 5776-2016). There are other debates on the qualifying age of women (Tali Heruti-Sover, “Galon and Yachimovich Propose: Abolition of Mandatory Retirement and Variable Qualifying Age for Pension,” The Marker (August 27, 2015); see also: The Retirement Age for Women (Legislative Amendments) Bill, 5726-2016). Moreover, as we were informed in the State's notice of February 9, 2015, the issue of retirement age will be referred to the executive branch in accordance with the Government Work Regulations for it to consider whether it is appropriate to review it, including by setting up a commission. And now, it has also recently been reported that the Minister of Finance has appointed a commission to consider increasing the retirement age for women, which will be responsible, inter alia, for considering the possibilities of raising retirement age and encouraging employment of the elderly (http://mof.gov.il/Releases/Pages/presha.aspx). The fact that the issue of retirement age is still on the public agenda reinforces the conclusion that the appropriate place for considering further changes thereto is legislature. Although I have found that the Law does pass constitutional review, it would appear to me that the Respondents did well in deciding to refer this issue back to the Government.

 

62.       Finally, the petition should be dismissed. No order will be made for costs.

 

 

 

Justice Y. Danziger

 

            I concur.

 

 

 

Deputy President E. Rubinstein

 

1.         I concur in the comprehensive opinion of my colleague the President. I would like to add somewhat.

 

2.         In HCJ 4487/06 Kelner v.National Labour Court (2007) I had the opportunity to say (para. 1 of my opinion), as is also appropriate here:

 

            This case raises a question that, apart from being legal, is also a social, moral and humane question that concerns Israel, like other countries, in an age in which, thank God, life expectancy has become longer, as have the abilities of people to work until an advanced tage. On the one hand, there are those who want to enable people to continue working even after the statutory retirement age, on the basis of their functional ability… On the other hand, there are those who regard longer life expectancy as an opportunity for men and women pleasantly to enjoy their free time after retirement as they wish. The Israeli legislature, in enacting the Retirement Age Law, 5764-2004, did not choose the American way, in which there is no obligatory retirement age and the criterion is functional, and it instead chose a method of fixing an age, older than was customary in the past, for mandatory retirement.

 

            Indeed, the subject of retirement age is complex and dynamic. On the one hand, the constant rise in life expectancy and quality of life supports increasing retirement age over the years, and the Petitioners before us are a living example of that. From the economic aspect of the individual as well, increased life expectancy clearly necessitates greater pension contributions, which might be achievable, inter alia, by working for more years and only utilising the pension payments at a later age. See, for example, in this regard, the Bank of Israel Report for 2010 (which was appended to the State's reply of April 4, 2013 – R/4), from which it appears that the ratio between people aged 25 to 64 and those aged 65 or more in Israel was 4.6:1 in 2005; the forecast for 2015 is 4.2:1; and the forecast for 2030 is 3.4:1 (Bank of Israel Report for 2010, p. 175 (2011)). Increased life expectancy is, of course, a blessing in itself. that the statement "sixty  for mature age" in Ethics of the Fathers (5:21) no longer represents typical old age, nor even do older ages,  and we are certainly not dealing with the age at which the Levites stopped serving in the Tabernacle (the age of 50 – Numbers 4:3); see also the determination of 60 years of age in the Torah with regard to the assessment of value (Leviticus 23:3); see also Rabbi Shlomo Yosef  Zevin, L’Ohr Hahalachah, the chapter entitled "Old Age", p. 176 et seq.; see also the comprehensive review by Judge O. Verbner in LabA (National) 209/10 Weinberger v.- Bar Ilan University (2012), para. 13, which is partly based on the review by Rabbi Dr Yaron Unger, Adv. and Prof. Yuval Sinai, “Compulsory Retirement Because of Age in Jewish Law,” The Centre for Practical Jewish Law  (CPJL), 2012 (Hebrew); and see the many authorities cited there. Their review, based on Jewish sources, speaks in praise of the elderly and the duty to exalt their dignity. It further speaks in praise of work, and as regards the Levites, for whom a mandatory retirement age (appropriate to life expectancy then) was fixed as aforesaid, the Jewish law authorities have qualified the rule so that it is not absolute (Maimonides, Laws concerning Temple Vessels 3:8). See also Gordon Ashton, Caroline Bielanska, Elderly People and the Law (2nd ed., 2014), pp. 120-121, as regards equal treatment of pensioners and p. 123 with regard to part-time employment during retirement.

 

3.         In my opinion, insofar as the ratio of the elderly as aforesaid continues to decline, and from the data it appears that the trend is growing, an increase in the retirement age will be a necessity. This derives from the fact that elderly people who are still full of vigour will want to continue working in view of life expectancy and also, and perhaps no less, because of the State's limited ability – which is more and more worrying – to provide real social security to an increasing number of people who are not included in the labor market. This is also consistent with section 1 of the Retirement Age Law, 5764-2004 (hereinafter: the Law), which states that "the purpose of this Law is to establish standard rules with regard to retirement age, including raising it gradually …" (emphasis added – ER).

 

            In Kelner, I added (para. 10):

 

            Indeed, the world of today sanctifies youth, unlike the ancient world that perceived old age as  as a source of experience and wisdom. The media feeds the public success stories of young people, who do of course bring with them charm, freshness and energy; but the the elderly have not reached the end of the road, not only because of longer life expectancy but also because of the ability and need to utilize the knowlege and experience that they have acquired. In the world beyond the “regular” work frameworks there are those who continue to contribute to a great age – in politics, science, the humanities, and more. Take a close look at the Jewish ethos in which old age is perceived as corresponding to wisdom – “with the ancient is wisdom; and in length of days understanding”' (Job 12:12). In the Biblical world, the old were the leaders and in fact, also the judges: “your elders and judges shall go out” (Deuteronomy 21:2). Of the verse “stand up in the presence of the elderly, and show respect for the aged” (Leviticus 19:32), the Sages said (Babylonian Talmud, Kidushin 32:2) “not old but wise, as it is said (Numbers 11:16) 'Gather before me seventy men who are recognized as elders and leaders of Israel' (ultimately the Sanhedrin or Great Court – ER). Rabbi Yossi the Galilean says, not an old man but one who has acquired wisdom, as it is said (according to wisdom,  the wise wise person in the Book of Proverbs, for example – ER) “the Lord possessed me in the beginning of his way' (Proverbs 8:22)”. See also the entry “wise” in the Talmudic Encyclopaedia, vol. 15, 51 (Hebrew). In the Mishna, old age is 60 ("sixty for mature age" (Ethics of the Fathers 8:21), and at the time this was based on the general life expectancy. Nevertheless, there has been increasing awareness of “do not cast me off in the time of old age; forsake me not when my strength is spent” (Psalms 71:9).

 

4.         In view of all this, I believe that it would be best for the relevant authorities to review the concrete retirement age every decade, at most, and whether the changing circumstances are such as to require increasing it. This is connected not only with longer life expectancy, but also social security. I shall refer to this again below. In this respect, leadership must at all times look to the future, beyond the period of its own office. Let me cite an example: in the second half of the 1980s, when I was Cabinet Secretary in the National Unity Government, after in-depth discussions with pension experts and actuaries in the Directors General Forum of the Government Ministries, it was suggested to the relevant ministers that they consider the matter of the pension funds, on the assumption that a crisis concerning lack of coverage would erupt in or about the year 2000. The response was personal. Action thereafter wnet on for very many years in various commissions and government decisions.

 

5.         On the other hand, I believe that the factor of intergenerational fairness, namely the effect of postponing retirement together with the integration of a young labor force in the economy, has been given very significant weight in determining retirement age. Indeed, as the State has noted, this factor might carry less weight at the macro level. That is to say that there are no data indicating that in a satisfactory economy that is growing, raising retirement age will necessarily impair the ability of young people to integrate in the labor market (Report of the Public Commission on Retirement Age, p. 7 (5760-2000)). However it does have effects at the micro level, and the academic institutions from which the Petitioners come are an example. Clearly, given a limited budget, as the age of the lecturers and researchers in the Israeli academic institutions increases, the ability of young lecturers and researchers to integrate in those places, especially as tenured lecturers and researchers,  the much longed-for tenured posts in those institutions, will constantly diminish. Hence, although there can be no question that the Law does infringe a certain element of the Petitioners' right of equality, it is done for a proper purpose, which is to increase the ability of the younger generation to integrate in the employment market. See the statement by President Adler in an earlier case:

 

            I would add that in my opinion, fixing a chronological retirement age does indeed infringe constitutional rights like freedom of occupation and human dignity but it is done for a proper purpose. And what is that proper purpose? Providing a fair opportunity to new participants in the labor market. As such there is a proper balance between the constitutional rights of senior employees and the rights of younger workers from an overall societal point of view (LabA (National) 107/05 Kelner v. Commissioner of the Civil Service, para. 7 (2006); see also the opinion of President Adler in LabA (National) 1313/04 Asa - El v. Al Israel Airlines Ltd, (2006)).

 

6.         And finally – with genuine sympathy for the Petitioners and the worthy self-fulfilment for which they strive – it should be borne in mind that the Petitioners are not merely seeking an increase in the mandatory retirement age, but they are asking that we adjudicate that the very determination of a mandatory retirement age is unconstitutional and, in fact, to require the State to prescribe an alternative model to that existing in the Law, for example a model of functional retirement. We must make our ruling having regard to: the fact that the course that the Israeli legislature has chosen in this connection is no different from that of many legal systems around the world; the considerable disadvantages involved in the prevailing systems, inter alia, in the United States and Britain; the proper purpose underlying the Law, as I mentioned above; and the fact that it is difficult to say that the Law's infringement of the Petitioners' right to equality is so disproportionate as to necessitate the exceptional intervention of this Court, all as stated in the President's opinion. Having regard for all that, the obstacle that the Petitioners had to overcome in order to prove their case was significant, and I do not believe that they were able to do so. However, common sense seeks a balance, and among other things, it is proper and even essential to increase the retirement age from time to time, and also to consider the nature and quality of pension arrangements, the future of which appears to be cause for concern.

 

7.         On reading the opinion of Justice Hendel, I would add that he rightly considered the feelings of someone who has retired from work and feels detached and lacking in dignity. To a certain extent, it can be compared to the feelings of someone who is unemployed, although a retiree knows that he has reached the age at which many good people stop actively working, while as regards the unemployed person who is in mid-life, his lack of work not only affronts his dignity and self-esteem but it also, of course, affects his livelihood with all the implications thereof. There is no need to expound on the importance of work to many people – "When good things increase, those who consume them increase" (Ecclesiastes 5:11), and in the words of the poet H.N. Bialik – "Whom should we thank, whom should we bless?  Labor and work! ". The various plans in the different sectors of the population in respect of old age and leisure, the numerous frameworks for that in the world of culture, Torah and academia, the establishment of a government ministry for the affairs of retirees (now the Ministry of Social Equality), all reflect awareness that longer life expectancy necessitates arrangements for an era in which many people live longer and are also in satisfactory physical and mental condition. Programs must be arranged for them, together with employment for those desirous, either for financial reasons or to occupy their leisure time. Incidentally, in the academic world, after retirement many continue to teach more or less voluntarily and in consideration receive a certain work environment which, perhaps, has no real financial remuneration, but does involve professional and human continuity, and there are voluntary frameworks in other spheres as well.  Therefore, it is very important to uphold human dignity in its simple sense: "The School of Rabbi Ishmael taught: 'And you shall choose life' (Deuteronomy 30:19) – this means a skill," i.e., a profession (Jerusalem Talmud, Peah 1:1); "'so that the Lord your God will bless you' (Deuteronomy 14:29) – you might think that this means even if you sit idle, therefore Scripture states 'in all the work of your hands that you will do' (ibid.) – if a person works, he is blessed, and if not, he is not blessed" (Tanna Devei Eliyahu, 12; Yalkut Shimoni on Psalm 23; cited in H.N. Bialik and Y.H. Ravnitzky, Sefer HaAgadah 1903); "Rav Sheshet said, work is great, because it warms the person who does it" (Babylonian Talmud, Gittin 67b). All of these, ultimately, are human dignity, and see the entry "Human dignity" in the Talmudic Encyclopedia 26 (1907) (Hebrew); see also N. Rakover, Human Dignity is Great (1998) 137. Work therefore leads to life and blessing, and giving expression to it in human life, insofar as it is possible, can only be good. This is true of work, and it is also true of rewarding activity during retirement.

 

 

8.         For the reasons stated above, as aforesaid, I concur in the opinion of my colleague the President. However, I must propose that the matter be reviewed periodically with a view to increasing retirement age in a fair and balanced way. I was therefore pleased to read recently that the Government decided, in June 2015, to charge government agencies with formulating a trial scheme in the scope of the Civil Service for an employment track specifically for senior citizens after retirement age (the review by Mr Kobi Bleich, Senior Deputy Director General for Administration and Projects in the Ministry of Social Equality, State Service Commission Information Booklet, issue 39 (April 2016)). That list mentions that average life expectancy in Israel is currently 80 for men and 84 for women, and see also the survey there by Tzachi Kelner, the Director of the Israeli Retirement Centre. On March 28, 2016 the Minister of Finance also appointed a commission to review retirement age, which was charged with "studying and formulating recommendations in respect of the age at which a woman born in or after 1955 is entitled to retire because of her age… Moreover, the commission was charged with reviewing the implementation of a mechanism for raising retirement age in consequence of longer life expectancy, and also reviewing the application of supportive and supplementary tools for increasing retirement age and encouraging employment of the elderly" (from an approach to the public by the Commission for the Review of Retirement Age, Calcalist, Nissan 9, 5776 (April 17, 2016), emphasis added).

 

 

 

Justice U. Vogelman

 

            I concur in the comprehensive opinion of my colleague President M. Naor and with the comments of my colleague Deputy President E. Rubinstein.

 

            In my view, as well, the provision of the statute that is at the center of the current debate passes constitutional review, based on the analysis detailed in the opinion of President M. Naor. I would emphasize that, in my opinion, the ruling that the employer must give consideration to the worker's continued employment after retirement age – in order to limit the harm to the employee – is an element of considerable weight when examining the balances in the framework of the third subsidiary test of proportionality.

 

            As my colleagues make clear, sealing the legal debate at the present point in time does not put an end to the public debate, or to continued deliberation by the executive branch. In that context, the latter will also consider whether the time is ripe to review the issue.

 

            Subject to these remarks, I concur, as stated, in the opinion of President M. Naor.

 

 

 

Justice D. Barak-Erez

 

1.         I concur with my colleague President M. Naor that the petition should be dismissed. The statutory arrangement that makes it possible to require an employee to retire on attaining the age defined as retirement age provokes dilemmas and questions that will presumably remain on the public agenda. That is only proper. However, it cannot be said that it infringes rights so disproportionately as to justify the intervention of this Court in the scope of a constitutional review of a statute.

 

The Point of Departure: A Reasoned Infringement of Equality

 

2.         Let me first say that, like the President, I also believe that an arrangement that prescribes that a person can be compelled to retire merely because he has reached a particular age does involve an infringement of equality. A distinction based on mere age is one that is founded on a generalization that reflects a social perception in respect of older people who have passed a certain age, as opposed to a distinction based on an evaluation of the relevant individual's abilities. In that respect, I also believe that the Petitioners are right that the determination of a mandatory retirement age is not problem free. However, ultimately, I believe that this infringement of equality is, in the instant case, based on good reasons and passes the tests of constitutional review.

 

3.         In fact, the State presented three central reasons to justify the present arrangement – the fact that the determination of a mandatory retirement age is in the interest of employees generally; the contribution of the arrangement as regards "intergenerational fairness"; and its contribution to the planning and renewal of the workplace as regards the employer's interests. All these are reasons with fairness and logic on their side, that have also been recognized as justifying retirement arrangements in the precedents of courts elsewhere in the world, as the President showed in her opinion. Moreover, they are not based on general assumptions with regard to the incapacity of elderly people, that is to say that they are not tainted by ageism. Nevertheless, I would emphasise that I personally believe that the most important of the said reasons, which for me tips the scales, is the argument concerning the contribution of retirement age to the rights of retirees themselves. Although the reasons of "intergenerational fairness" and the ability to plan the workplace are important, these are interests, the protection of which when they infringe the right of equality, raises questions that I do not believe arise in respect to the argument concerning protecting the rights of workers themselves. This is therefore not a case of infringing rights merely for the promotion of important public interests, but it is a case in which there is a clash of two clear aspects of the protection of the rights of elderly workers, and even of different groups of elderly workers.

 

4.         Several advantages of the fixing of a mandatory retirement age can be indicated from the perspective of the rights of workers themselves. First, as the State rightly argued, the mandatory retirement age creates the effect of a "protective shelter" over the heads of elderly employees, in the sense that it creates a presumption against terminating their employment before they reach retirement age, especially as they approach that age. Second, the existence of a retirement age "on the horizon" substantially weakens the incentive of employers to initiate general competence tests for employees, which might be significantly strengthened in circumstances in which the decision to terminate employment necessitates an indication of functional difficulty or handicap. Indeed, even now there are such tests in certain places, but they are not the rule. It is important to note that such tests, despite perhaps serving legitimate interests of the employer, might cast a shadow of unease over the workplace, and in any event "color" any retirement decision with incompetence. Despite the Petitioners' arguments, currently an employee who retires from work does so without his leaving work representing any negative judgment about his ability to continue working. That is essentially different from retirement based on a determination – difficult and painful for the relevant employee, especially having regard to the fact that it is given public expression – that there is a decline in his function and competence. Third, and no less important, without acknowledging the legitimacy of mandatory retirement age, the willingness to grant tenure to employees, or even to reach partial job security arrangements will be weakened to a great extent. The ability to acquire tenure is of great importance to many employees since it enables them to plan in advance for the long-term, and contributes to their emotional welfare. The abolition of mandatory the retirement age might, therefore, affect job security, which is also an interest that is dear to many workers.

 

The Limits of Judicial Review in Areas that Necessitate Complex Legislative Arrangement

 

5.         The Petitioners argued with great self-assurance that the alternative based on the employee's functional testing is preferable to the determination of a standard retirement age. However, as explained above, there are also substantial reasons that weigh against this. The question of which is the preferable retirement arrangement – that based on a retirement age norm or one based on the employee's functional testing – is one that remains the subject of controversy, and there are arguments both ways. As for myself, I believe that the advantages of the arrangement that sets a mandatory retirement age are preferable for the reasons that have been detailed, as I shall explain below. However, it is important first to say that we do not need to decide which is the desirable arrangement. That question is first and foremost a matter for the legislature, which should deliberate and rule on policy questions that are characterized by being "polycentric", as the State has rightly said (see: HCJ 7721/96 Israel Insurance Adjusters Association v. Supervisor of Insurance, IsrSC 55 (3) 625, 645 (2001). For the source of that expression, see: Lon L. Fuller, “The Forms and Limits of Adjudication,” 92 Harv. L. Rev. 353, 394-404 (1978)). The question that has been put to us is one of the "second order" – whether prevailing legislative policy involves a disproportionate infringement of rights to an extent that necessitates judicial intervention. In my opinion, too, the answer to that question is in the negative.

 

6.         As the President stated, the comparative examples that have been presented to us concerning the erosion of the mandatory retirement age regime in other countries in fact support the decision to dismiss the petition. From those examples, it appears that changes affecting the mandatory retirement age arrangement have mainly been made by legislation. In the major examples cited , the courts found it inappropriate to invalidate mandatory retirement age arrangements, and the changes in that area have been made through the legislative process, on the basis of social debate and persuasion in the public arena (in the United States, the claim of discrimination by virtue of the determination of retirement age was dismissed in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), and the change in the legal situation was made in a 1986 legislative amendment to the Age Discrimination in Employment Act; in Canada, the argument that the determination of retirement age does not meet the constitutional standard for the protection of rights in accordance with the Charter was dismissed in McKinney v University of Guelph [1990] 3 S.C.R. 229, and then a 2012 amendment to the Canadian Human Rights Act abolished the determination of retirement age as deviating from the prohibition of age discrimination; in Britain, the general recognition of mandatory retirement age, called the "default retirement age", was abolished in 2011 in the scope of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (hereinafter: the 2011 Regulations), which revised the general law on equality (the Equality Act 2010) so as also to apply to retirement arrangements.

 

7.         Regulating the issue of retirement age in legislation makes it possible to do so comprehensively, with reference to associated economic and employment aspects as well, including insurance and pension factors. Thus, for example, in Britain in the scope of the 2011 Regulations, alongside the repeal of compulsory retirement because of age, it was established that employers can make different insurance arrangements for employees who have reached state pension age or have passed the age of 65, whichever is the higher. More generally, the relevant legislation in various different countries leaves room for exceptions, a matter that is also suitable for legislative arrangement and necessitates the laying of a broader foundation than has been laid before us.

 

8.         To this it can one may add that – unlike what is implied by the petition – the abolition of mandatory retirement age does not necessarily also mean individual competency examination of every single employee in all workplaces. Even in countries where mandatory retirement age is not customary, examples can be found of the determination by various employers of arrangements that do include an element of mandatory retirement age, and it has also been held that there is no bar to doing so – so long as there is good justification (or in our constitutional language, when the same is done for proper purposes and insofar as the means prescribed are proportionate). Thus, for example in Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16, the British Supreme Court held that the determination of retirement arrangements for the partners of the particular law firm had been done for a proper purpose (in the circumstances, the proportionality of the arrangements that were prescribed was left for later litigation). Indeed, that judgment revolved around events that occurred at a time when the British legislation recognized mandatory retirement age, but the principles that were delineated in it are also regarded as having guiding value in the review of retirement arrangements made in the context of the new statutory position.

 

The Possible Effects of abolishing the Retirement Age on Employees' Rights in View of the Diversity of the Labor Market

 

9.         As stated, the most persuasive reason, in my view, for finding that the arrangement involved in the petition passes the proportionality tests is the protection of workers themselves. In this connection, the Petitioners made two main arguments. First, they asserted that the abolition of the mandatory retirement age is not likely to affect those workers who, in any event, do not benefit from tenure, the proportion of whom in the current labour market is significant. Secondly, they argued that, in any event, even if the arrangement of mandatory retirement age is beneficial for some workers, it is not of benefit to the Petitioners, and the infringement of their rights for the sake of other workers cannot be justified. As for myself, I believe that neither part of this argument is persuasive, as explained below.

 

10.       First, I believe that although the abolition of a statutory retirement age is first of all likely to have an effect of eroding existing tenure arrangements (and is therefore problematic for those who are employed where tenure arrangements are customary), there is basis to believe that it might also affect employees in workplaces where there are no tenure arrangements at all. The reason for this is the concern, which is of course regrettable, that various employers "will seek a reason" (whether or not they formally need to indicate such a reason) to terminate the employment of relatively old employees in circumstances where there is no foreseen date for the end of the contract of employment. In that sense, it appears that a mandatory retirement age helps workers who do not enjoy tenure. In this connection, it should also be noted that the overall interests of those workers have not been presented to us, which also makes it difficult to accept the argument that the harm to workers who do not enjoy tenure is limited.

 

11.       Secondly, one cannot accept the assertion that the arrangement of mandatory retirement age has not been of benefit to the Petitioners. The question whether the arrangement of mandatory retirement age has been of benefit to the Petitioners themselves cannot be asked after the event ("ex post"), at the present point in time when they want to continue working, knowing their health and employment situation, after they have "enjoyed" the advantages of the arrangement. That question should be considered looking to the future ("ex ante") – would the Petitioners and others like them be rewarded by having entered a labor market in which there were tenure arrangements and in which they have not been subjected until retirement age to functional examinations that affect their employment stability (as opposed to evaluations that affect promotion)? The contribution of mandatory retirement age should, therefore, be examined when the parties to the discussion look at the question through "the veil of ignorance", when they do not know whether they have been successful employees, enjoying good health and sheltering under comfortable tenure arrangements. The question is what position could have been taken in view of the possibility that they were employed in less comfortable work, and perhaps their health or performance was impaired to some extent before reaching the age at which they had to retire in accordance with the arrangements in their workplace. One way or the other, I believe that specifically in the context of general labour arrangements, it is right and proper to consider their contribution to workers with a broad view that goes beyond the bounds of the autonomous wishes of the specific employee.

 

12.       In fact, opinions have been expressed in the legal literature that recognize the legitimacy of arrangements that include an element of mandatory retirement age when those involved are employees who receive "consideration" for that element in their terms of employment, in the form of tenure and adequate pension arrangements (see Sharon Rabin-Margalioth, “Age Discrimination in Israel: A Power Game in the Labor Market,”,” 32 Mishpatim 131, 174 (2002) (hereinafter: Rabin-Margalioth). For an approach that supports the same but with more limitations, like making it possible for employees who are so desirous "to leave" the collective arrangement, see for example: Pnina Alon-Shenkar, “The World Belongs to the Youth: On Discrimination against Senior Workers and Mandatory Retirement,” in Liber Amicorum Dalia Dorner Book81, 139-141 (Dorit Beinisch et al. (eds.) 2009) (Hebrew)). The aspect of collectively arranging retirement age was also emphasised in a case of the European Court of Justice (see: Palacios de la Villa v. Cortefiel Servicios SA, C-411/05 [2007] ECR I-8531).

 

13.       Under the circumstances, in my opinion there is also some importance to the fact that the Petitioners only challenged the mandatory retirement age arrangement after they reached retirement age, despite the fact that, prima facie, they could have put it to the test in the past, while they actually enjoyed the tenure arrangements (and it should be reiterated that the Law in its present form – the Retirement Age Law, 5754-2004 – was enacted several years before the Petitioners reached retirement age). In other words, the petition was brought by those who for years enjoyed strong tenure arrangements, and are now seeking to avoid paying the bill (see: Rabin-Margalioth, p. 159).

 

14.       To all the foregoing we should add reference to the characteristics of the Petitioners' workplaces – institutes of higher education. Although this petition is being heard as a general one against the principle of mandatory retirement age, it cannot be ignored that the case of the Petitioners– university professors – also raises other difficulties concerning the importance of protecting the academic freedom of the faculty members of those institutions. The tenure arrangements existing at the universities protect not only the welfare of the academic faculty, but especially their freedom so that they can conduct research and fearlessly express their professional opinions. Abolishing retirement age in a way that might erode the tenure arrangements would yield a less protected academic environment, and might also lead to the infringement of another important public interest. In fact, this point also illustrates that the determination of a mandatory retirement age involves other arrangements, such that its abolition by the Court might have repercussions that have not been made clear to us.

 

15.       Also of importance is the fact that the Petitioners' workplaces are specifically public institutions, as opposed to workplaces that clearly belong to the private sector. In fact, in some of the countries were the mandatory retirement age has been abolished, the identity of the employer (as "public" or "private") is of significance as regards evaluating the justification for determining a mandatory retirement age, which is regarded as more acceptable in the public arena. It should be noted that the private member’s bills that have been submitted on this subject (see for example: The Retirement Age (Amendment – Abolition of Mandatory Retirement Age) Bill, 5773-2003) include the possibility of authorizing the Minister of the Economy to exclude "certain spheres of work".

 

16.       Hence, the Petitioners fall within the scope of the cases that are regarded as less "difficult" as regards the constitutional questions that the determination of a mandatory retirement age raises, even according to those who believe that mandatory retirement age arrangements do raise difficulties.

 

Other Aspects of the Legal and Public Debate Looking to the Future

 

17.       A distinction should, of course, be drawn between the principle of mandatory retirement age and the aspects that concern its implementation. The petition did not address the question of the proper retirement age having regard for longer life expectancy. It might be right to consider increasing retirement age, as my colleague, Deputy President E. Rubinstein mentioned. However, such a decision would concern the implementation of the principle, as opposed to the principle itself, against which the petition is aimed. It is important to emphasize that the Petitioners did not focus on the specific retirement age prescribed in the Law, and that has therefore not been examined by us.

 

18.       Furthermore, as the President has emphasized, recognizing the constitutionality of the retirement age does not relieve the employer of his obligation to consider the possibility of continuing the employment of a worker who seeks not to retire. This takes account of numerous factors, including the ability of the employee, how essential he is to the workplace, and even the extent of the pension rights accumulated by him so that he can live with dignity after retiring from work. The discussion appropriate to these questions is therefore a contextual one in the circumstances of each individual case, as distinct from a general discussion like that which conducted before us.

 

19.       Incidentally, I would raise another point for consideration, which does not tip the scales against the petition, but should be examined as part of the repercussions of any future retirement age reform. Formally, the question before us revolved, as noted, only around the constitutionality of the determination of a mandatory retirement age, as opposed to recognizing the institution of retirement age, namely permitting the worker to retire on attaining a certain age, an option that not a few employees would like. From the point of view of many employees in the economy, the possibility of retiring at a certain age is a blessing; an aspiration for which they long after years of wearying work – physically, emotionally or mentally. In fact, historically, the determination of a retirement age is regarded as a social innovation that only began at the end of the 19th century, but mainly in the 20th century. Before then, it was a benefit to which workers could not aspire. They had to work "until death" unless they had the means to enjoy retirement, which was considered a luxury. The determination of a retirement age therefore went hand-in-hand with the development of welfare and pension schemes that were intended to ensure a source for the subsistence of workers on reaching retirement age. Prima facie, this is a separate issue. The Petitioners say: those who want to retire, should retire and those who want to carry on working, should work. From the purely analytical perspective, that is correct. However, having regard to the broader social context, it is only partially correct. If retirement age could be chosen by the worker, there might be an erosion in the development of pension arrangements available to workers upon their retirement. Such a state of affairs would sharpen the view of retirement as a privilege that might not be appropriate if the employee and the economy "cannot afford" it. Alongside the concern of "being cast aside in old age", there is therefore concern for workers being thrown back into the world without an adequately protected retirement, with all the related implications.

 

Conclusion

 

20.       In concluding, let us go on to mention that discrimination for reasons of age is illegitimate. Moreover, ageism is an ugly social phenomenon that should be opposed. Our judgment in this case is not based on an assumption as to the incompetence of workers who have reached retirement age, and needless to say that the same also goes for the Petitioners themselves. Nevertheless, the arrangement of mandatory retirement age is a complex one that also involves the protection of rights, where that protection is viewed in its broad sense, going beyond the protection of the individual employee's freedom to decide.

 

21.       I therefore believe that the petition should be dismissed, although the matter raised by it should continue to be examined in the public arena.

 

 

 

Justice E. Hayut

 

            I concur in the comprehensive opinion of my colleague President M. Naor and the conclusion reached by her that the model of compulsory retirement because of age established in section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law), and its preference to other models, like that of functional retirement, which the Petitioners support, is not unconstitutional to an extent that justifies the repeal of the section.

 

1.         As my colleague the President stated, each of these models has advantages and disadvantages. They have been set out at length in her opinion, and I have therefore not considered it appropriate to repeat them (see also in this regard, HCJ 7957/07 Sadeh v. \Minister of Internal Security, para. 13 (September 2, 2010)). Indeed, making an employee retire merely because his or her age has been fixed as the retirement age is one of the most injurious phenomena of age discrimination (see: HCJ 1268/09 Zozal v. Israel Prison Service Commissioner, para. 15 (August 27, 2012) [[English: http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...  (hereinafter referred to as "Zozal")). However, as my colleague the President showed, the regime of compulsory retirement because of age passes the tests of the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty and is therefore not constitutionally invalid. Among the grounds justifying the present arrangement, in my opinion the one that ought to be emphasied is that concerning the aspects that are beneficial to workers generally, and in that I am in full agreementwith my colleague Justice D. Barak-Erez. The legislature's provision in section 4 of the Retirement Age Law that 67 is the mandatory retirement age for men and women, implies a statement that, in general, the employer's terminating the labor relationship before the employee has reached that age is illegitimate. The legislature thereby set a clear criterion that helps eradicate phenomena of discriminating against workers because of their age before they reach mandatory retirement age, while transferring the discretion concerning the time of the employee's retirement to the employer on the basis of competence and function tests does not set such a clear criterion and might legitimate employers' requiring employees to retire even before they have reached the age of 67. My colleague the President therefore rightly said that "mandatory retirement might reduce the number of workers who are discharged from the workplace before the normal retirement age" (para. 43 of her opinion). This conclusion is all the more important in view of the fact that the majority of workers in the economy are employed under personal contracts, and not protected by unions and collective agreements (Mundlak G, Saporta I, Haberfeld Y, Cohen Y, “Union Density in Israel 1995-2010: The Hybridization of Industrial Relations,” 52(1) Ind Relat. (Berkeley) 78 (2013)). The labor relationship between an employer and an employee who is not unionized leaves the worker without collective protection in the event of unlawful dismissal. In that situation, the general law of contracts, as well as shield legislation come to the aid of the employee (Guy Mundlak, “The      Rule    on        Dismissals: Default           and      Mandatory     Rules, and      Some  Interim Options,”  23 Iyunei Mishpat 819, 822 (1999)). In that sense, section 4 of the Retirement Age Law can be regarded as one of those  statutory shield provisions that regulate clear criteria with regard to the employer's ability to dismiss an employee (as regards the shield provisions of the Retirement Age Law, see also section 10 of the Law, and as to the duty owed by the employer to give substantive consideration to the employee's request to remain at work after retirement age, see: LabA (National) 209/10 Weinberger v. Bar Ilan University (December 6, 2012)).

 

2.         The petition before us has again placed on the legal agenda the fact that the labor market in Israel, and in fact the whole Western world, is undergoing far-reaching changes in view of the increase in life expectancy, while maintaining levels of competence and function at work at more advanced ages than in the past. These changes have significant economic and social implications, and necessitate rethinking, inter alia, with regard to retirement age, and perhaps also with regard to the appropriate model to be adopted in that respect. In any event, the trend apparent in Israeli law is a clear one of increasing retirement age for both men and women (Zozal, para. 25), and the Israeli legislature may continue to adapt the relevant legislation to that trend.

 

 

 

Justice N. Hendel

 

          I concur with the result reached by my colleague President M. Naor, according to which the petition to strike down section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Law), requiring an employee to retire at the age of 67, because of its unconstitutionality, should be dismissed. Nevertheless, there are nuances that distinguish us. In my opinion, they are of importance especially in regard to the future – and old age has a future – and I have therefore deemed fit to present them.

 

Discrimination on the Basis of Age – Innovation, Uniqueness and Gravity of the Infringement

 

1.         The prohibition of discrimination – or as formulated on the positive side of the coin, the protection of equality – is a developing doctrine. The canopy of equality is expanding. Consequently, distinctions between different groups, based on some or other characteristics, that used to be socially or legally acceptable without question or a second thought, are no longer such at present. One of the examples of this is age as a basis for discrimination in the labor market.

 

            Historical, economic, social and legal changes have led to the status of the "working elder" experiencing many changes over the years. Prof. Ruth BenIsrael, in her article (Ruth Ben-Israel, “Retirement Age in light of the Principle of Equality: Biological or Functional Retirement”, 43 Hapraklit 251, 253-257 (5757)) described the position in the following way: in the distant past, the status of the elder was lofty and exalted and he was regarded as having power, status and influence. It can further be said that in those years the elderly were distinguished from the rest of the population, but "discrimination for the better" was involved. In the opinion of the learned author, in the 18th century there was a sharp decline in the social image of the old, who came to be identified with inaction and dependence upon others. This, of course, also affected his position in the labor market. The trend intensified in the 20th century, during the period that Prof. Ben-Israel calls "the cult of youth". The metamorphosis in the labor market – like the disappearance of certain professions, and new, mainly technological, professions that have replaced them – has necessitated constant change that has mainly affected the elderly who are employed in the waning professions, and displaced them from the market. These days, and especially in very recent years, the pendulum has been swinging, slowly but surely, back to the other side. That is to say that opinions are being aired and research conducted that seek to emphasize the value – to workers and society in general – involved in the employment of older workers, inter alia, in view of the experience and professionalism that they have accumulated.

 

2.         The foregoing description is, of course, a very brief summary of very significant moves and shifts. Nevertheless, it would appear that it suffices to illustrate what I began with: reference to discrimination (or equality) is dynamic and so too – and perhaps especially – in respect of age. This is true in at least two senses: first, the index of social sensitivity. In recent years there has been far greater sensitivity to discrimination on account of age and its legal and constitutional implications in the labor market, as well. As Fredman stated, the idea that differentiation based on age might be unconstitutional is a "new phenomenon", driven by the ageing of the population and the declining birthrate (S. Fredman, Discrimination Law, 101-102 (2002)). The increasing prominence of individual rights in recent decades, and the importance attributed to them in liberal countries have, of course, also contributed to the shift.

 

            Second, the extent of the infringement – age discrimination in the context of the labor market involves extensive, deep violation of emotions, fundamental rights and values that are at the heart of the system. Like my colleague President M. Naor, I too believe that in the circumstances of the petition there is an infringement of equality, which amounts to an infringement of human dignity. Indeed, ", in the case before us, we are not concerned with a trivial infringement ’ (para. 33 of the President's opinion). However, in my opinion, a much broader, more deeply rooted infringement is involved, which ought to be emphasized. The description by Justice I. Zamir in HCJ Recant in respect of discrimination concerning retirement age and its accompanying affront is apt in this regard: "a person who was active and effective, involved and useful is suddenly, in his own eyes and the eyes of those around him, made irrelevant (HCJ 6051/95 Recant v. National Labour Court, IsrSC 51 (3) 289, 342 (1997)). In addition, in my opinion, the infringement of equality – which amounts to an infringement of human dignity in the instant circumstances – is not the only violation. The freedom of the individual to work, create and express himself, which reflects another salient aspect of human dignity, is also infringed here, and substantially. And not only is there an infringement of equality, dignity and the freedom of occupation, but also of liberty and autonomy.

 

            The severity of the infringement essentially derives from a combination of the following: first, the major place that work has in our lives, and its being a means of self-fulfilment for many, beyond its being a source of income. This can also be learned from Jewish law. "Shmaayah would say: Love work" (Ethics of the Fathers 1:10). Of that Rabbi Eliezer said: "Work is so important that even Adam tasted nothing until he worked, as it is said,‘and placed him in the Garden of Eden, to till it and tend it (Genesis 2:15)" (Minor Tractates, Avot de-Rabbi Nathan, Recension B, Chapter 21). Rabbi Soloveitchik also wrote on this: "there is no doubt that the term 'image of God' in the first account refers to man's inner charismatic endowment as a creative being. Man's likeness to God expresses itself in man's striving and ability to become a creator. Adam the first who was fashioned in the image of God was blessed with great drive for creative activity and immeasurable resources for the realization of this goal" (Rabbi Joseph B. Soloveitchik, “The Lonely Man of Faith,” 7 (2) Tradition 5, 11 (1965). Second, the understanding that leaving the labor market is caused merely by reaching a particular age, in circumstances independent of the worker, which he cannot avoid. The creation of distinctions between people because of characteristics at the very heart of the definition of being human, over which he has no control – like race and sex – constitutes a salient sign of illegitimate discrimination, that might involve arbitrariness. In this sense, age might belong to that list of characteristics that are "forced" on a person. Moreover, ageism has other characteristics that might aggravate the infringement, For example, it is not static, but a variable that worsens.

 

Another related point is the difficulty of protecting against the infringement caused by age discrimination. There are several reasons. The first, the boundary between "equal" and "different" is not so clear with age, compared with other characteristics, which leads to vagueness. Expression of this can be seen in the fact that European law recognizes all age groups as groups that are protected against discrimination, while the 1967 statute in the United States extended the protection against discrimination based on age only to those aged 40 or more (see Fredman, 101). The second derives from the universal nature of the characteristic of age. The aspiration is for everyone to experience the whole "cycle of life". In the words of the wisest of men, "one generation goes and another generation comes" (Ecclesiastes 1:4). However, specifically because of that, there is a tendency to minimize the severity of the infringement caused by age discrimination. This is because it appears that there is "equality of infringement". That is to say that age discrimination is unkind to a person at a certain stage of  life, but might be kind to him at other stages. The matter is complex and even creates something of a contest of rights between generations, and even between man and himself at different times of life. However, constitutional review stands at the ready, and the story of man’s life does not prevent him demanding his rights, dignity and liberty at any given time.

 

            One should, of course, take care to avoid discrimination in all its forms, but it appears to me that the unique aspect of age discrimination is such as to affect the way in which the matter is analyzed and looked upon. With all the importance of a broad view of society and the general public, it should not be forgotten that Basic Law: Human Dignity and Liberty places the emphasis on the individual. There are people who welcome and accept the obligation to retire at a given age with open arms. The question when to retire at the upper limit does not have to be decided by them. There is acceptance and even, perhaps, peace in the knowledge that it is not to be determined by them. It is perfectly possible to create in different ways, not merely at work. That is certainly a legitimate approach. But alongside this there are also people for whom there is a close link between their definition of self and their contribution through work. And suddenly, bidden by the calendar, they have to break the link completely. This is despite the fact that some of them are still able and willing to contribute, even at a high standard. Time, which is man's dearest asset, seeks alternative substance but in vain. Such a person can feel worthless, lonely and even degraded. He might also feel that he is outside the main fabric of society, and as we know, it is sometimes very cold outside.

 

            And note well that I concur with my colleague the President's statement that constitutional review of legislative arrangements that delineate far-reaching social and economic policy necessitates extreme caution (para. 24 of her opinion). Indeed, the problem that the petition presents is "a polycentric' one in which as a rule the Court rarely intervenes" (ibid., para. 57). I further agree that the very determination of a mandatory retirement age is supported by proper purposes: the protection of workers' dignity and the improvement of job security in the economy; granting the employer certainty and stability and the ability to manage and plan manpower in the workplace; and intergenerational fairness (paras. 38-40 of the President's opinion). Despite all the aforegoing, and perhaps specifically because of it, I have considered it appropriate to emphasize and concentrate on the gravity of the infringement of the values and rights on the agenda. Based on the President's persuasive reasoning, I have not found intervention appropriate in the present petition, especially because of job security. Nevertheless, as regards both the real and the ideal, this result is far removed from being the final word.

 

The Choice between Different Models, and the Necessary Broad Factual Basis

 

3.         In accordance with the way in which matters have been presented by the Petitioners, my colleague the President's opinion concentrated on the question of which of the two models should be chosen: biological retirement or functional retirement. From that point of view, a contest is evident between two different philosophies, two ends of the spectrum, each of which is fair and reasonable. Each of the conflicting philosophies has advantages and disadvantages, as described at length by my colleague. It should also be noted that the point of view of the employee does not necessarily oblige the adoption of biological retirement rather than functional retirement, or vice versa. Thus, for example, the term "dignity" can serve both conflicting approaches: compulsory retirement does involve some infringement of the employee's dignity, as described above, but such infringement might also occur, albeit practically, when he is subjected to competence tests.

 

In any event, for the reasons detailed at length in her opinion, my colleague believes that the legislature's choice of the first of the two models is legitimate and passes the hurdle of constitutionality. As I see it, insofar as we must choose between the two options against the overall background that has been presented to us, that conclusion is indeed required. Nevertheless, I do not believe that the present situation is a desirable one that exhausts the choice. In my opinion, the time is right to expand the discussion about the range of different possibilities, if only because of the uniqueness and complexity of the matter. Before going into detail, I would make it clear that I am aware that the choice of the biological retirement model in our system is not located right at the end of the spectrum, because there are certain qualifications and subtleties. First, section 10 of the Retirement Age Law, 5764-2004, establishes that, with the employer's agreement, it can be agreed " that the age at which an employee can be required to retire from work because of age shall be higher than mandatory retirement age ". Secondly, in Weinberger (LabA (National) 209/10 Weinberger v. Bar Ilan University (December 6, 2012)), the Labor Court held that if the employee wishes to continue working after the age of 67, the employer is obliged to give relevant, individual consideration to that request. Nevertheless, in view of the complexity of the matter and the gravity of the infringement, I do not believe that those qualifications and subtleties are adequate in the circumstances.

 

4.         To be more precise, as the President stated (para. 46), there is a wide range of retirement arrangements between the model of compulsory retirement because of age and the model of functional retirement. Alongside the examples that were cited (ibid.), and with the object of expanding, I shall refer to three matters: the first, other arrangements; the second, greater focus on different jobs; and the third, the arrangement of a comprehensive, up to date examination of the issue.

 

            As regards other arrangements, it would appear that one solution is to increase retirement age. This point is important, but I would like to augment it. In my opinion, an approach should not be taken whereby one size fits all. As aforesaid, the issue should be examined as a whole, not merely through the lens of dignity, but also through the lens of liberty. If the social security that is expressed in tenure is what necessitates retirement at a fixed age, one can also think of a model whereby the employee chooses between different types of benefit at different stages of his life and career. In that sense, the age at which the employee starts working at a particular workplace might be important. These are, of course, mere examples to indicate that it is necessary to think outside the box.

 

            As regards focusing on different jobs, the case before us in fact illustrates the point. Working as a professor in academia has certain characteristics (regarding which, see the opinion of Justice D. Barak-Erez). Indeed, new ideas can be raised in this work environment. For example, evaluation mechanisms can be formulated in the universities for professors who have tenure (and there has been such experience, for example, in the United States. See: Samuel Issacharoff & Erica Worth Harris, “Is Age Discrimination Really Age Discrimination? The ADEA’s Unnatural Solution,” 72 N.Y.U.L Rev. 780, 790 (1997)). The existing mechanisms can be expanded in the form of enabling professors in academia to work solely in research or solely in teaching, also in a limited format, for example, in accordance with such criteria as would be decided. Here again, because of the complexity of the matter, an approach should not be taken according to which one solution is suitable for everyone. Among other things, it is necessary to examine whether a private or public workplace is involved, whether the employees there enjoy tenure or other job security, the economic implications of the various different alternatives – both to the employee and the employer, and to the market as a whole, etc.

 

            This leads us to the third point – a comprehensive, up-to-date examination of the issue. The choice between biological retirement and functional retirement is "forced" upon us by the petition in the absence of adequate foundation in support of other alternatives (see also para. 46 of the President's opinion). Although the fundamental controversy surrounding these matters in the public arena, with all its complexity and characteristics, does indeed support the conclusion that it is not for us to intervene now, it does appear to me that it is proper, necessary and even vital to lay down a broad, thorough and up to date factual foundation. The effect of mandatory retirement age on emplyees' standing, and on the labor market as a whole, is a highly complex issue that is context and society dependent. The answer requires social-science evidence, adapted to the prevailing economic, social and legal system. Evidence of that type has not been produced to us, but it should be made clear that no criticism of the parties' attorneys is implied thereby. A comprehensive, up-to-date examination requires proper supervision and resources. Individual workers cannot be expected to perform that task. The importance of the contribution is in actually raising the matter, and perhaps indicating what is deficient. In my opinion, a public commission, composed fro various areas, should be established in order to collect the relevant material, including empirical data, and hear testimony, and it should recommend proper policy for the current period.

 

            In order to illustrate the dimensions of the deficiency, it should be borne in mind that the recommendations of the public commission that was appointed to examine the issue of retirement age, together with its social and economic aspects, headed by Justice (Emeritus) Shoshana Netanyahu were submitted in 2000. The Commission itself was appointed back in 1997, some two decades ago. The Netanyahu Commission sat and deliberated the various different factors and the possibilities on the agenda for changing the mandatory retirement age, including the possibility of abolishing it altogether. However the Commission's work – comprehensive and thorough as it was – is far less relevant now, a generation after it convened (see and compare the opinion of my colleague Deputy President E. Rubinstein, according to which there should be an examination every 10 years). The assumptions and data upon which it relied, like the labor market in general, have changed. In my opinion, that fact necessitates an organized and thorough rethink – and as soon as possible. I therefore wholeheartedly join in the opinion of my colleague Justice E. Hayut, in para. 2 of her opinion.

 

To this we might add that the approach of different countries, that served, inter alia, as a source of comparison for the Netanyahu Commission, changed a few years ago, primarily afger the Commission's recommendations were submitted (in 2000). In some of the countries there has been a major change in outlook, in the same direction – namely the abolition by legislation of a compulsory retirement age (subject to certain exceptions, see para. 55 of the President's opinion). This has happened, for example, in England, where mandatory retirement in numerous sectors, including institutes of higher education, was abolished in 2011. In Canada too, mandatory retirement (in the public sector) was abolished in 2012.

 

As I have mentioned, I am conscious of the fact that issues of the type that the petition involves are dependent upon concrete context and society. For that reason, among others, extreme care should be taken when drawing analogies through comparative law. Another reason can be that social sensitivity in regard to social security is greater in Israel than it is, for example, in the United States. Nevertheless, it does appear to me that the tool of comparative law can also assist us in the complex issues facing us, provided that it is used in a careful, measured manner. Just as the experience of a worker in a particular job is of value, so too, is the experience of various different legal systems, even if it is necessary to make certain adaptations to the conditions of the country and its labor market.

 

5.         In conclusion, my opinion is that the legislature's choice of a compulsory retirement model because of age, at the time, reflected an informed choice among different possibilities. Changing times and developments along the way, the severity of the infringement involved in compulsory retirement, which is at the heart of man and his sense of self, the sensitivity of the matter and its complexity that is dependent upon context, society, and concrete, up-to-date data all now necessitate a thorough review by the legislature (and perhaps also by certain workplaces like universities), and an ensuing informed choice. Insofar as such a review is not made within a reasonable time, in my opinion the parties' arguments should be reserved. We, as a society, ought to properly contend with the issue and consider it in the best way, as required. This is especially the case in our day and age when not only is life expectancy changing, but so is the way in which quality of life is perceived. Subject to my foregoing statements, I concur with the result reached by President M. Naor that the petition should be dismissed. Let me conclude by saying "ageing is what we all hope for and all fear. Let there be more hope and less fear".

 

 

 

Decided as stated in the opinion of President M. Naor.

 

Given this 13th day of Nissan 5776 (April 21, 2016).

 

 

The President	The Deputy President		Justice
Justice	Justice	Justice	Justice

 

            

HCJ 5239/11

HCJ 5392/11

HCJ 5549/11

HCJ 2072/12

 

 

Petitioners in HCJ 5239/11:                1. Uri Avneri

                                                            2. Gush Shalom

 

Petitioners in HCJ 5392/11                 1. Adi Barkai, Adv.

                                                            2. Iris Yaron Unger, Adv.

                                                            3. Anat Yariv

                                                            4. Dr. Adia Barkai

                                                            5. Dana Shani

                                                            6. Miriam Bialer

 

Petitioners in HCJ 5549/11                 1. Arab Movement for Renewal – Ta’al

                                                            2. MK Dr. Ahmed Tibi

 

Petitioners in HCJ 20172/12               1. Coalition of Women for Peace

                                                            2. Supreme Monitoring Committee for Arab Affairs

                                                            3. Jerusalem Legal Aid and Human Rights Center

                                                            4. Association for Civil Rights in Israel

                                                            5. Public Council against Torture

                                                            6. Hamoked: Center for the Defence of the Individual

                                                            7. Religious Action Center of Reform Judaism

                                                            8. Yesh Din – Volunteers for Human Rights

9. Adalah – The Legal Center for Arab Minority Rights in     Israel

 

 

                                                                        v.

 

Respondents in HCJ 5239/11                  1. Knesset

                                                                 2. Speaker of the Knesset

 

Respondents in HCJ 5392/11                  1. Knesset

                                                                 2. Speaker of the Knesset

                                                                 3. Minister of Finance

                                                                 4. Attorney General

 

Respondent in HCJ 5549/11                   Knesset

 

Respondents in HCJ/2072/12                  1. Knesset

                                                                 2. Minister of Finance

                                                                 3. Minister of Justice

 

Requester to join:                                      Legal Forum for Israel

 

Attorneys for the Petitioners in HCJ 5239/11: Gabi Laski, Adv; Neri Ramati, Adv.

Attorneys for the Petitioners in HCJ 5392/11: Adi Barkai, Adv.; Iris Yaron-Unger, Adv.

Attorneys for the Petitioners in HCJ 5549/11: Osama Saadi, Adv.; Amer Yassin, Adv.

Attorneys for the Petitioners in HCJ 2072/12: Hassan Jabarin, Adv.; Sawsan Zaher, Adv.; Dan Yakir, Adv.

 

Attorneys for Respondents in HCJ 5239/11,

Respondents 1-2 in HCJ 5392/11,

Respondent in HCJ 5549/11,

and Respondent 1 in HCJ 2072/12:                Eyal Yinon, Adv.; Gur Bligh, Adv.

 

Attorneys for Respondents 3-4 in HCJ 5392/11

and Respondents 2-3 in HCJ 2072/12:           Yochi Genesin            , Adv.; Uri Kedar, Adv.; Avishai Kraus, Adv.

 

Attorneys for the Requester to join:               Avi Har-Zahav, Adv.; Yifat Segal, Adv.; Tomer Meir Yisrael, Adv.

 

 

The Supreme Court sitting as High Court of Justice

 

Before: President Emeritus A. Grunis, President M. Naor, Deputy President. E. Rubinstein, Justice S. Joubran, Justice H. Melcer, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

 

Responses to an Order Nisi

 

Facts: The petitions sought to void the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law). The Law attributes tortious liability and establishes various administrative restrictions against anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. The Petitioners argued that the Law was unconstitutional for infringing various constitutional rights (inter alia, freedom of expression, the right to equality, freedom of occupation), without meeting the conditions of the “Limitation Clauses” of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation.

 

The High Court of Justice, in an expanded bench of nine justices, held:

 

The Court unanimously decided to void sec. 2(c) of the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, and to deny the petitions in regard to secs. 3 and 4 of the Law. Additionally, the majority (per Melcer J., Grunis P., Naor P., Rubinstein D.P., and Amit J. concurring) denied the petitions in regard to secs. 2(a) and 2(b) of the Law, against the dissenting opinion of Danziger J., Joubran J. concurring, and the separate dissents of Hendel J. and Vogelman J.

Justice Melcer: From the language of the Law, we learn that anyone who knowingly publishes a call for the imposition of a boycott against the State of Israel, as defined by the Law, may be deemed to have committed a tort. Moreover, the participation of such a person, or one who has committed to participate in such a boycott, may be restricted, and it is possible that such a person may be prevented from receiving various financial benefits (governmental grants, tax exemptions, state guarantees, etc.). Thus, most of the sanctions imposed by the Law already apply at the speech stage. Therefore, the Boycott Law indeed infringes freedom of expression and is repugnant to the constitutional right to human dignity. However, in the opinion of Justice Melcer, we are not concerned here with an infringement of the core of freedom of expression, even where political speech is concerned, inasmuch as the infringement is relatively limited, and applies only to a call for a boycott against the State of Israel, as defined by the Law, or anyone who commits to participate in such a boycott, which is a legal act that exceeds speech.

However, that constitutional right, like all other constitutional rights in Israel, is not absolute, but rather relative, and may be restricted if the infringement meets the requirements of the “Limitation Clause” in sec. 8 of Basic Law: Human Dignity and Liberty. As is well known, the Limitation Clause comprises four cumulative tests: the infringement of the constitutional right must be made by a law or by virtue of a law; it must befit the values of the State of Israel as a Jewish and democratic state; it must serve a proper purpose; and it may only infringe the right to an extent no greater than is required. The last condition comprises three subtests, which are: the rational connection test, the least harmful means test, and the proportionality “stricto sensu” test. For the purpose of this examination, Justice Melcer also made recourse to comparative law.

There is no dispute that the first condition is met. As for the remaining conditions, Justice Melcer was of the opinion that the provisions of the Law that are intended to prevent harm to the State of Israel by means of an economic, cultural, or academic boycott of a person or any other entity, merely due to its connection to the State of Israel, one of its institutions, or an area under its control, fall under the doctrine of “defensive democracy”, and promote protection of the state and its institutions, as well as equality and personal liberty, and the Law, therefore, is intended for a proper purpose that befits the values of the State of Israel as a Jewish and democratic state. Justice Melcer was also of the opinion that “calls for a boycott against the State of Israel, as defined by the Law, do not serve the classical purpose of freedom of expression”. This view is based upon Justice Melcer’s distinction between speech intended to “persuade” and speech employed as a “means of coercion”. In his opinion, a call for a boycott is a form of coercive expression, and therefore, it is entitled to less protection that that afforded to other types of political speech.

However, in the context of examining the fourth condition – proportionality – and in accordance with a narrow interpretive approach, Justice Melcer concluded that whereas secs. 2(a), 2(b), 3 and 4 of the Law meet the conditions of the proportionality test, sec. 2(c) of the Law does not meet the demands of the least harmful means test.

In this context, Justice Melcer referred to the chilling-effect doctrine, which addresses a deterrent effect that extends beyond the scope of expression intended by the legislature, and proposed limiting this chilling effect by means of narrow construction that would somewhat restrict the bounds of the tort under sec. 2(a) of the Law. Justice Melcer therefore recommended that the realization of the “boycott tort” be contingent upon the existence of damage, and a causal connection between the tortious conduct and the damage. However, a potential causal connection would not suffice. Rather, there must be awareness of the reasonable possibility that the call and the circumstances of its publication would lead to the imposition of a boycott, and the right to bring suit must be reserved only to the direct victim of the tort.

By accepting this interpretive approach, sec. 2(b) of the Law would also be constitutional. Pursuant to that, it was further held, inter alia, that a person seeking damages under sec. 2(b) of the Law would have to prove not only the element of a call for a boycott, but also the following elements: causation as defined in sec. 62(a) of the Civil Wrongs Ordinance, breach, a causal connection between the boycott and the breach, a mental element of awareness, and monetary loss.

On the other hand, as far as sec. 2(c), concerning damages not contingent upon damage (that might be categorized as “punitive damages”) and which are not capped by any ceiling in this regard, Justice Melcer was of the opinion that this section did not meet the second test of the least harmful means test, and must be voided.

Thus, in accordance with this approach, even if a person calling for a boycott be found liable in tort, the damages that would be imposed upon him would not exceed the harm that he actually caused.

In regard to secs. 3 and 4 of the Law, Justice Melcer was of the opinion that the administrative sanctions – preventing participation in tenders and restricting the possibility of obtaining public benefits – constitute merely “second order” infringements of freedom of expression. Accordingly, these are proportionate sanctions in view of the procedures required for the approval of the restrictions, and in view of the state’s right to withhold benefits from anyone who employs them against the state. He does not distinguish, in this regard, between a boycott against the state and a boycott against the Area. According to his approach, the constitutionality of secs. 3 and 4 of the Law should not be addressed until specific petitions are filed in the matter of an actual decision by the Treasury, on the basis of a concrete factual foundation.

In conclusion, Justice Melcer drew additional support for the proposed approach, inter alia: a construction of a law that places it within constitutional boundaries is preferable to striking it down; respect for the legislature by virtue of deference; the margin-of-appreciation theory; the ripeness doctrine as applied to the matter before the Court requires that, other than the striking down of sec. 2(c) of the Law , the claims of potential claimants or potential defendants in regard to the Law be examined in the course of applied review.

President (Emeritus) A. Grunis, President M. Naor, Deputy President E. Rubinstein, and Justice I. Amit concurred in the opinion of Justice Melcer in separate opinions.

Justice Y. Danziger: The Prevention of Harm to the State of Israel by means of Boycott Law substantially violates freedom of expression. We are concerned with an infringement of the freedom of political expression, which is at the “core” of the constitutional right to freedom of expression, and which forms part of the constitutional right to human dignity. Under his approach, that infringement does not meet the requirements of the Limitation Clause under sec. 8 of Basic Law: Human Dignity and Liberty because the Law does not pass the third subtest of proportionality – proportionality “stricto sensu” – particularly in regard to a call for a boycott of the Area, inasmuch as calling for a boycott of the Area is a subject that is clearly within the bounds of legitimate democratic discourse. In his view, the narrow interpretive approach proposed by Justice Melcer is insufficient.

Despite that conclusion, Justice Danziger was of the opinion that it would be possible to avoid the extreme result of voiding the Law for unconstitutionality through an interpretation that would significantly reduce the Law’s infringement and permit the Law to pass the constitutionality tests. This could be accomplished by establishing that sec. 1 of the Law, which is the Law’s “entry way”, be construed as such that only a boycott of an “institution” or “area” that is a boycott of the State of Israel and derives from the institution or area belonging to the state would fall within the scope of the Law’s definition, whereas a boycott of an “institution” or “area” that is not part of a boycott of the State of Israel in its entirety would not fall within the Law’s definition. In other words, the Law should be interpreted as applying only to calls for a boycott of the State of Israel in its entirety, but not to calls to boycott the Area alone.

Justice N. Hendel accepted the solution proposed by Justice Melcer as a legitimate interpretation of the Law. However, in his view, section 2 in its entirety – sec. 2(a) establishing boycott as a tort, sec. 2(b) establishing that a person calling for a boycott, as defined by the Law, acts without sufficient justification in regard to the tortious inducement of breach of contract, and sec. 2(c) in regard to damages without proof of damage – does not meet the third constitutional test of proportionality – proportionality stricto sensu.  Therefore, Justice Hendel was of the opinion that sec. 2 of the Law should be struck down in its entirety for lack of proportionality, but concurred in the approval of secs. 3 and 4 for the time being.

Justice U. Vogelman concurred with the general approach of Justice Danziger, but was of the opinion that the “blue pencil” rule should be adopted in this regard. Accordingly, the words “an area under its control” should be stricken from sec. 1 of the Law. In his view, sec. 2(c), as well,   should be struck down, while retaining secs. 3 and 4. Additionally, in his view, the validity of the Law requires that it be interpreted in such a manner that it would apply only to those cases in which the sole reason for the call for “refraining from economic, cultural or academic ties with another person” is the connection to the State of Israel or one of its institutions.

Justice S. Joubran was of the opinion that sec. 2(c) of the Law should be struck down, and that sec. 1 should be interpreted as proposed by Justice Y. Danziger in regard to areas under the control of the state. In addition, like Justices Y. Danziger and I. Amit, he was of the opinion that a distinction should be drawn between calling for a boycott against a person due to his connection to the State of Israel or one of its institutions, and a call for a boycott against a person due to his connection to an area under the control of the state.

 

Judgment

 

Justice H. Melcer

1.         The Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law) [https://www.nevo.co.il/law/78646], imposes tortious liability and establishes various administrative restrictions upon anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. Does the Law infringe the right to freedom of expression and other constitutional rights? Does that infringement, to the extent that it may exist, meet the tests of the “Limitation Clauses” of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation? These are the questions upon which the petitions before us focus.

            I will begin by presenting the relevant, basic information.

2.         On July 11, 2011, the Knesset enacted the Boycott Law. Inasmuch as the Law is concise, I will first present its full text:

                        Definition:

1.  In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

Boycott – Civil Wrong:

2.         (a) Anyone who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility, commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

(b) In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

Directives restricting participation in tenders:

3.         The Minister of Finance is authorized, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to restricting the participation in a tender of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott, including a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control; in this section, a “tender” is defined as any tender that must be administered in accordance with the Mandatory Tenders Law, 5752-1992.

 Regulations preventing benefits:

4.         (a) The Minister of Finance, in consultation with the Minister of Justice, may decide that someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott:

(1) Will not be deemed a public institution under clause 46 of the Income Tax Ordinance;

(2) Will not be eligible to receive monies from the Sports Betting Council under section 9 of the Regulation of Sports Betting Law, 5727-1967; exercise of the authority under this section requires the consent of the Minister of Culture and Sports;

(3) Will not be deemed a public institution under section 3A of the Foundations of the Budget Law. 5745-1985, regarding the receipt of support under any budget line item; exercise of the authority under this section requires the consent of the Minister appointed by the Government as responsible for said budgetary line, as stated in section 2 of the definition of  “person responsible for a budget line item”;

(4) Will not be eligible for guarantees under the State Guarantees Law, 5718-1958;

(5) Will not be eligible for benefits under the Encouragement of Capital Investment Law, 5719-1959, or under to the Encouragement of Research and Development in Industry Law, 5744-1984; exercise of the authority under this section requires the consent of the Minister of Industry, Commerce and Employment.

(b)        In exercising the authority according to subsection (a), the Minister of Finance will act in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee; however, if no such regulations have been promulgated, it will not detract from the authority under subsection (a).

Implementation:

5.         The Minister of Justice is appointed to implement this law.

Effective Date:

6.         Section 4 shall come into force ninety days from the publication of this law.

(For convenience, the tortious liability imposed under section 2 of the Law shall be referred to hereinafter as “the boycott tort”, and the provisions established under sections 3 and 4 will be referred to hereinafter as “the administrative restrictions”. The three aforesaid sections shall together be referred to hereinafter as “the Law’s sanctions”).

 

3.         The legislative process of the Law was complex, and I will, therefore, briefly present its steps and what accompanied them, immediately below:

A.        On July 5, 2010, the Prevention of Harm to the State of Israel by means of Boycott Bill, 5770-2010, was tabled before the eighteenth Knesset (the text of the Bill was appended to the response of the Knesset as R/1). The Bill was initiated by twenty-five members of Knesset from various parties, both of the coalition and opposition. The Bill was approved in a preliminary reading on July 14, 2010, and was transferred to the Constitution, Law and Justice Committee (hereinafter: the Committee, or the Constitution Committee) for preparation for a first reading.

B.        The Committee conducted its first discussion of the Bill on Feb. 15, 2011 (the protocol of the meeting was appended to the response of the Knesset as R/2). The Bill was presented at the outset of the meeting by one of its initiators, MK Zev Elkin, who explained that the original draft of the Bill was broader, but pursuant to the decision of the Ministerial Committee for Legislation in this regard, the scope of the Bill was limited by the removal of sections of the Bill concerning calls for boycott by a party who is not a citizen or resident of Israel, a boycott imposed by an organ of a foreign state, and retroactive force of the legislation. MK Elkin explained that the Law was intended to provide a response to an absurd situation that had arose, in which, as he explained, states friendly to Israel prohibit the imposition of a boycott upon the state, and impose sanctions upon bodies that seek to join a boycott of Israel, while there is no parallel sanction in Israeli law. Accordingly, in his words: “This law is intended to protect the State of Israel, at least minimally. An Israeli citizen who acts against it must know that he will bear the consequences” [ibid., p. 3 of the protocol of the meeting].

            In the course of that meeting, several members of the Committee expressed their opposition to the Bill. Among other things, they argued that it was an anti-democratic bill that restricted freedom of expression, that boycotting was a legitimate civil means for expressing dissent, and that the Law would ultimately harm the State of Israel. The legal advisor of the Foreign Ministry, Advocate Ehud Keinan, noted that, in his opinion, the Law would not be helpful in the fight against boycotting Israel, and might even harm that effort (ibid., pp. 21-22 of the above protocol). The representative of the Manufacturers Association, Mr. Netanel Heiman, expressed reservations about the Bill, and argued that it should conform to the existing American law on the subject (ibid., pp. 22-23 of the above protocol). Similarly, Prof. Mordechai Kremnitzer, who appeared before the committee, noted that “if this bill were constructed along the lines of existing models in the world, I would not have a word to say on the constitutional level” (ibid., p. 28 of the above protocol). Prof. Kremnitzer, however, added that the Bill – in the form presented – infringes fundamental rights, among them the right to freedom of expression (ibid., pp. 29-30 of the above protocol).

            The representatives of the Ministry of Justice explained at the meeting that even after the removal of certain sections of the Bill, as aforementioned, the prohibitions established under the Bill remain too broad and should be limited (ibid., pp. 17-19 of the above protocol). In response, the legal advisor of the Committee, Advocate Sigal Kogut, explained that changes would be made in the wording of the Bill in order to more precisely define the term “boycott” in the Law, as well as the conduct element it comprises (ibid., p. 32 of the above protocol). At the end of the meeting, the Committee approved the Bill for a first reading by a majority vote.

C.        On Feb. 28, 2011, even before the Bill was tabled before the Knesset for a first reading, the Committee approved a request for a revision of the Bill. Pursuant to that, the Committee was presented a revised draft of the Bill that was the result of discussions between MK Elkin and the Legal Advisors of the Committee and the Knesset (the meeting protocol was appended to the response of the Knesset as R/3). In accordance with the comments of the Knesset Legal Advisor, the definition of the term “a boycott against the State of Israel" in the amended Bill (sec. 1 of the original Bill) was narrowed, and the criminal prohibition of a call for a boycott against the State of Israel was removed (sec. 2 of the original Bill). However, it was agreed that the latter would be reconsidered in the framework of preparing the Bill for a second and third reading (see: the Explanatory Notes to the Bill that were published by the initiating members of Knesset and the Constitution Committee in 5771 H.H. 373, p. 112 of March 2, 2011). Ultimately, at the request of the Committee chair, MK David Rotem, a section was added to the Bill stating that the Minister of Finance, with the consent of the Constitution Committee, may establish provisions restricting the participation of participants in the boycott against the State of Israel in public tenders (ibid., pp. 3-4 of the above protocol).

            At the end of the meeting, the amended Bill was approved for a first reading by a majority vote with eight supporting and four opposing, and it was also approved by the Knesset plenum in a first reading on March 7, 2011 by a majority of 32 in favor and 12 opposed, with no abstentions. The Bill was then returned to the Constitution Committee for preparation for a second and third reading.

D.        On June 27, 2011, the Constitution Committee discussed the Bill in the framework of its preparation for second and third readings (the protocol of the meeting was appended to the response of the Knesset as R/5). Prior to the said meeting, the members of Knesset were presented with an amended version of the Bill, which was prepared in cooperation with representatives of the Ministry of Justice, following the Bill’s approval in the first reading. This draft included a list of additional provisions regarding the denial of financial benefits from the state to anyone calling for a boycott against the State of Israel (as defined in the Bill), or anyone undertaking to participate in such a boycott (the text of the amended Bill was appended to the response of the Knesset as R/6).

            In the course of the meeting, the Deputy Attorney General (Criminal Affairs), Advocate Raz Nizri, explained that the Bill, as presented to the Committee, accords with the course that “the Attorney General agreed to follow” (protocol of the meeting of June 27, 2011, p. 15). However, Advocate Nizri stressed that the Attorney General’s position is that the legal course presented “is very, very marginal” and that it “raises not insignificant problems”, and therefore, in his opinion, any further change in the wording of the Bill “endangers this already unstable structure” (loc. cit.). In this regard, Advocate Nizri noted the importance of retaining the requirement of a mental element of “malice” as a condition for imposing exemplary damages (sec. 2(c) of the Bill), and for retaining the various conditions established in the Bill in regard to denying benefits provided by the state (ibid., pp. 21-26 of the above meeting protocol). The representative of the Ministry of Justice, Advocate Roni Neubauer, also underlined that in light of the exceptionality of “punitive damages” in the civil law, they should be conditioned upon an element of “malice” on the part of the tortfeasor, and should be limited to situations in which the court wishes to express real abhorrence at the tortfeasor’s conduct (ibid., pp. 70-71 of the above meeting protocol).

            The representative of the legal department of the Ministry of Foreign Affairs, Advocate Karin Dosoretz, stressed that the Foreign Ministry shared the desire to fight the boycott phenomenon, but the Ministry was of the opinion that the Bill might lead to the opposite result (ibid., p. 58 of the above meeting protocol).  The Legal Advisor of the Ministry of Finance, Advocate Joel Baris, emphasized that “the Government decided to support the Bill,” and therefore he was speaking “within that framework”, however, in continuing, he took the view that sec. 3 of the Bill was problematic in that it sought to introduce political values into the procedure. He added that that could carry a hidden price that could not be estimated in terms of its budgetary effect. He also expressed his fear of transferring decisions on matters tangential to the political sphere to civil servants (ibid., p. 72-73 of the above meeting protocol). It should be noted that, as will be explained below, this comment by Advocate Baris found expression in the final version of the Law, which established that the exercise of the authority by the Minister of Finance under sec. 4 of the Law would be by in accordance with regulations that would require the approval of the Constitution Committee (however, such regulations have not yet been promulgated).

             The representative of the legal department of the Ministry of Industry, Commerce and Employment, Advocate Deborah Milstein, explained that the restrictions that the Law established in regard to participating in public tenders do not infringe Israel’s international obligations, inasmuch as under the Mandatory Tenders Law, 5752-1992 (hereinafter: the Mandatory Tenders Law), the directives that will be issued under the Law will be subject to the international treaties to which Israel is a party (ibid., p. 72 of the above meeting protocol).

            In the course of the said meeting, many Knesset members expressed their opposition to the Bill, and some of them argued that even the amended version of the Bill was too broad, infringed freedom of expression, and might accelerate the process of Israel’s delegitimization.

            As opposed to this, Prof. Gershon (Gerald) Steinberg of Bar Ilan University, who researches the anti-Israel boycott phenomenon, argued before the Committee that “anyone who thinks that the boycott, BDS (Boycott, Divestment and Sanctions) process, is something narrow, something marginal, something that does not harm the continued existence of the State of Israel, does not understand the phenomenon”. He added that, in his opinion, anyone who opposes the Bill should suggest an alternative solution for the fight against the boycotts initiated against Israel (ibid., p. 63 of the above meeting protocol).

            The Legal Advisor of the Committee, Advocate Sigal Kogut, explained that, in her opinion, there is a distinction between imposing restrictions on someone who calls for a boycott of the State of Israel, which can be justified, and the restrictions imposed upon someone who calls for the boycotting of a person due to his connection “to an area under its control”, which are problematic, in her view, and constitute “the primary constitutional problem in this tort” (ibid., p. 61 of the above meeting protocol).

            At the request of MK Plesner, who was of the opinion that the section regarding the denial of benefits granted by the state to anyone who calls for a boycott constitutes “a deviation from the subject”, under sec. 120(a) of the Knesset Rules of Procedure (now sec. 85 of the Rules), the meeting of the Committee was adjourned, and the matter was referred to the House Committee for its decision. After the House Committee ruled that the matter did not constitute a “new subject”, the Constitution Committee’s meeting was resumed, and in the end, all the reservations in regard to the Bill were removed, and the Bill was approved for second and third readings by a majority vote of eight in favor and five opposed (the protocol of the resumed meeting of the Committee was appended to the Knesset’s response as R/7).

E.         On July 10, 2011, before the Bill was debated in the Knesset plenum, MK Plesner requested that the Legal Advisor of the Knesset state his opinion as to the constitutionality of the Bill. In his response to MK Plesner that same day, the Legal Advisor of the Knesset, Advocate Eyal Yinon, explained the problem that he found in imposing tortious liability upon someone who calls for boycotting a person due to his connection to “an area under the control” of the State of Israel, and wrote, inter alia, as follows:

3. This tort [in the Law], together with the broad definition of the term “boycott against the State of Israel” […] creates a cause of action in tort for the payment of damages for calls for a boycott that are intended to influence the political dispute in regard to the future of Judea and Samaria, a dispute at the heart of the political discourse in the State of Israel for over forty years.

4. Moreover, leaving the section as is in this wording will lead to a situation in which a call for a boycott in regard to one issue, and to one political position, will constitute a tort and grounds for other administrative sanctions, while a call for a boycott for other ideological, social or religious reasons will continue to be legitimate in the framework of public discourse. Thus, for example, a call for a boycott directed at artists who did not serve in the IDF, against universities that do not play the anthem at commencement exercises, against bodies that do not keep kosher, and of late, consumer boycotts against manufacturers and supermarket chains that sell products at prices that are viewed as too high, will not constitute grounds for any sanctions whatsoever, while calls for a boycott in regard to the dispute over the future of the areas of Judea and Samaria will be deemed a wrongful act that justifies the payment of damages.

[…]

5. Under these circumstances, we are of the opinion that the definition of “boycott against the State of Israel” in this broad wording, together with the tort, should be seen as an infringement that goes to the heart of freedom of political expression in the State of Israel that brings these elements of the Bill to the brink of unconstitutionality, and perhaps even over it.

(Emphasis original – H.M.; The letter of Knesset’s Legal Advisor was appended to the response of the Knesset as R/8).

F.         On the following day, July 11, 2011, the Bill was brought before the Knesset plenum for second and third readings. In the course of the plenum debate, MK Elkin clarified the reasoning grounding the extending of the Law to calls for boycotts related to Judea and Samaria (hereinafter: the Area), explaining as follows:

Anyone who examines the legislation on the subject of boycotts and the subject of discrimination in the various countries will discover a very simple thing – that even in France, and even in Germany, and even in other countries, there are types of discrimination and types of boycotts that are forbidden and that are permitted. In general, there is a basic list of characteristics of a person that the law forbids to serve as grounds for discrimination and boycott: religion, race, nationality, sex. […] In my view, a person’s citizenship and place of residence are among the most basic characteristics. One can conduct a political struggle, but boycotting a person merely because he is a citizen of the State of Israel, particularly where this causes him injury, is prohibited. And if not prohibited, then at least a person who does so must be ready to bear the cost of the injury. […] There is no difference between a resident of Ariel and a resident of Tel Aviv. You want to use boycott as a means for a political struggle? Boycott. Boycott me, boycott Likud voters, whatever you like. But to boycott a person because of where he lives? […] The dispute over the borders of the state must be carried out here, and not at the expense of companies, and not at the expense of people who live there at the behest of the State of Israel. Some like it, some do not like it, but [this is] the place for deciding the dispute – not by boycotts [ibid., at pp. 168-169 of the protocol of the plenum debate; emphasis added – H.M.].

            Minister of Finance, MK Yuval Steinitz, also explained that he supported the Bill due to his principled objection to boycotts of distinct groups, in view of the belligerent character of this method, stating as follows:

Boycott of one or another particular community is, in principle, not a proper expression of freedom of expression, freedom of debate, and freedom of speech, because a boycott is belligerent. It is an attempt to use force to harm and defeat a community that thinks differently, and therefore it makes sense for the state to protect itself and its ideological or ethnic communities from such types of boycotts. [Boycott] is a deplorable, belligerent phenomenon that is […] inconsistent with the democratic idea that we debate and decide in accordance with the majority opinion and not in accordance with the power of a group that thinks differently. Not by force, not by boycott, and not by ostracism [ibid., at p. 99 of the protocol of the plenum debate].

            Many members of Knesset expressed their opposition to the Bill, to a great extent for the same reasons expressed earlier in the meetings of the Constitution Committee referenced above.

G.        At the conclusion of the debate, the Bill was approved in a second and third reading by a majority of 47 in favor, 38 opposed, and no abstentions. In the course of the debate, a reservation submitted by the Ministry of Finance was adopted, according to which the exercise of the Minister of Finance’s authority under sec. 4 of the Law would be in accordance with regulations that would require the approval of the Constitution Committee, although it was also decided that if such regulations were not established, it would not detract from the authority granted under the section to the Minister of Finance.

4.         Following the enactment of the Law, the four petitions before us were filed. Three of the petitions ask for the voiding of the entire Law, while one (HCJ 5392/11) argues only for the voiding of section 2-3 of the Law.

            On Dec. 5, 2012, a hearing on the petitions was held before a panel of three justices. Following the hearing, on Dec. 9, 2012, an order nisi was granted, ordering the Respondents to show cause why the Law, or at least sections 2-3 of the Law, should not be voided. In the said decision, it was further decided that the hearing on the responses to the order nisi would be conducted before an expanded panel, which convened on Feb. 16, 2014.

5.         Below, I will present the various parties to the petitions, and following that, I will present the responses of the Respondents. I will already state that, for the sake of clarity, and inasmuch as most of the arguments of the Petitioners and of the Respondents are repeated in the four petitions, with various differences in wording and structure, I will make a unified presentation of the gist of the arguments of the Petitioners and of the Respondents.

 

The Parties to the Petitions

6.         Petitioner 1 in HCJ 5239/11 (hereinafter: the Avneri Petition) is one of the founders of Petitioner 2 in this petition, which is an association that, inter alia, acts to advance a peaceful solution between the State of Israel and the Palestinians. The Petitioners in HCJ 5392?11 (hereinafter: the Barkai Petition) are citizens and residents of the state who see themselves as potential defendants under sec. 2 of the Law, and ask that they be permitted to call for a boycott of the settlements and products produced there (but not against the State of Israel as such). Petitioner 2 in HCJ 5549/11, MK Dr. Ahmed Tibi, is a member of Knesset on behalf of Petitioner 1 of this petition, which is a political party that was elected to the 19^th Knesset (hereinafter: the Ta’al Petition). The Petitioners in HCJ 2072/12 (hereinafter: the Women’s Coalition Petition) are various associations that work, inter alia, for the realization of human rights and for equality among the citizens of the State of Israel.

            Prior to filing the petitions, Petitioner 2 in the Avneri Petition and Petitioner 1 in the Women’s Coalition Petition published lists of products originating in Jewish communities in the Area, in various ways, and called for boycotting them. However, pursuant to the passage of the Law, they ceased to do so, in fear that the Law’s sanctions would be enforced against them.

7.         The Respondents in the above Petitions are: the Knesset and the Speaker of the Knesset (above and hereinafter: the Knesset), the Minister of Finance, the Minister of Justice, and the Attorney General (hereinafter collectively: the Government), and the Legal Forum for Israel (hereinafter: the Legal Forum), which was heard in the proceedings at its request.

8.         The Respondents’ claim, upon which the petitions are grounded, is that the Boycott Law is inconsistent with the constitutional standards and values established in Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. However, before addressing the arguments of the parties in regard to the constitutional tests in detail, I will present two preliminary questions raised by the Respondents, and the Petitioners’ response to them.

A.        The focus of the Petition: According to the Respondents, the Petitioners’ arguments in the various petitions focus upon the claim that the Law restricts freedom of political expression in all that concerns the policy of the State of Israel in regard to the Area, and that the Law precludes calling for imposing a boycott due to the connection of a person or party to the Area. That being the case, the Respondents argue that the petitions are not directed at the constitutionality of the Law in its entirety, but are directed solely at the term “an area under its control” in the definition of “boycott against the State of Israel” in sec. 1 of the Law, and can, therefore, only lead to the deletion of those words.

            As opposed to this, in the course of the hearing, the Respondents were asked if, indeed their petitions focused only upon the term “an area under its control” in sec. 1 of the Law, and some of them responded that their petitions were directed at the Law in its entirety.

B.        Ripeness: The Respondents are of the opinion that the petitions should be denied for lack of ripeness, lack of concreteness, and for generality. According to the Respondents, the Boycott Law has not yet been applied by the courts, and therefore, there is no need to decide the question of its constitutionality at this time. In regard to the tortious liability imposed by the Law, the trial court is granted broad discretion as to the construction of the elements of the tort, as well as in regard to the conditions for awarding damages. That being the case, the need for constitutional review of the Law – before the trial courts have addressed it in a concrete case – has not yet ripened. This is also the case in regard to the administrative restrictions imposed by the Law, regarding which the Minister of Finance is granted broad discretion in drafting the provisions that would lead to the imposition of the said sanctions.  Moreover, at the time of the hearing (and to the best of my knowledge, to this day) the parameters for the Minister’s exercise of the said authority have not been established, and none of the Petitioners laid a clear foundation attesting to its having suffered injury as a result of the administrative restrictions. In light of the above, and despite the “chilling effect” that the Law may cause, the Respondents are of the opinion that the petitions are not yet ripe, and that should suffice for their denial in limine.

            As opposed to this, the Petitioners argue that the question of overturning the Boycott Law is appropriate for consideration. According to the Petitioners in the Avneri Petition, since 1995 they have published lists of products produced in the Area and called for their boycott. Pursuant to the enactment of the Law, they have been forced to desist from that activity. Therefore, the Law has a “chilling effect” upon them, and therefore, as stated, the Petition to void the Law is ripe for decision. The Petitioners in the Women’s Coalition Petition joined that argument. In addition, all of the Petitioners argue that the scope of the Boycott Law is sufficiently clear, and there is no reason, in principle, to defer its review until after it is actually implmented.

 

Arguments in regard to the Constitutional Tests

9.         As noted, the Petitioners argue on the merits that the Boycott Law is unconstitutional. In their view, the Law infringes various constitutional rights (among them: freedom of expression, equality, and freedom of occupation), without meeting the criteria established in that regard in the “Limitations Clauses” of the aforementioned value-based Basic Laws. The Petitioners further note that this argument is also raised in the position expressed by the Legal Advisor of the Knesset (in his letter of July 10, 2011, referenced in para 3(E) above). As opposed to this, the Respondents are of the opinion that the Law meets the constitutional criteria.

            Therefore, I will now present the arguments of the parties in accordance with the various stages of the model for constitutional review.

A. Infringement of a Constitutional Right

10.       First, the Petitioners argue that the Boycott Law infringes the right to freedom of expression. Infringing freedom of expression, including freedom of political expression, has been recognized in the case law as an infringement of human dignity.  According to the Petitioners, boycotting is a legitimate democratic device, like a demonstration or a protest march, which allows citizens to express their opposition to the policy of a private or public body. Thus, for example, various communities impose a variety of boycotts for such reasons as consumer and religious considerations, and reasons of conscience. Therefore, infringing the possibility of calling for a boycott against the State of Israel, as defined by the Law, by means of imposing sanctions upon anyone who does so, infringes freedom of expression.

            According to the Petitioners, the Law also infringes the right to freedom of occupation. Sections 3 and 4 of the Law make it possible to exclude a person who calls for a boycott, or commits to participate in a boycott against the State of Israel, from participating in (public) tenders, as defined in the Mandatory Tenders Law, and also permit denying him various economic benefits. In so doing, the Petitioners argue, the Law infringes freedom of occupation.

            Moreover, according to the Petitioners, over the last few years there have been states and companies that have objected to the Government’s policy in the Area, and that refuse to do business with companies that operate there. As a result, companies that are interested in breaking into foreign markets, or to continue their overseas activities, may be required to declare that they do not manufacture or purchase goods from the Area, and that they do not operate there, and they should be permitted to make such declarations, as otherwise, their business and freedom of occupation will be harmed.

            The Petitioners further argue that the Law also infringes the right to equality. The right to equality has also been recognized by the case law as deriving from the right to human dignity. The Petitioners argue that the Boycott Law does not oppose boycotts as such, but rather focuses only on those that call for a boycott of the State of Israel, its institutions, or activities conducted in “an area under its control”. According to the Petitioners, distinguishing between one boycott and another is unacceptable, and just as boycotts motivated by consumer or religious concerns, matters of conscience, and so forth are tolerated, the Law should similarly view those who call for boycotting the State of Israel, as defined by the Law. They argue that the provisions of the Law also potentially harm only certain sectors of society, due to their political beliefs. They further note in this regard that the fact that the European Union imposes economic sanctions upon activity in the Area, while Israel nevertheless continues its commercial, cultural and academic relations with  EU members, constitutes a form of unequal treatment by the State in regard to citizens and residents of Israel who independently wish to call for a boycott of goods produced in the Area, as opposed to those who are required to do so by foreign governmental agencies, and whose acquiescence, with certain reservations, is not prohibited.

11.       As opposed to the Petitioners, the Respondents are divided in regard to the question of whether the law infringes the right to freedom of expression. The Attorneys for the Knesset expressed the opinion that while the Law indeed infringes the freedom of expression, that infringement is, in their opinion, proportionate (as will be explained below).  As opposed to this, the representatives of the State Attorney’s Office are of the opinion, expressed before us by their attorney, that although the tortious liability that may be imposed by the Law indeed constitutes a certain degree of infringement of freedom of expression, the administrative restrictions to not pose such an infringement. The reason for this is related to the fact that, according to the Government’s approach, neither a citizen nor any other body has a vested right to enjoy various benefits that the state grants, and clearly, the Government has the right not to transfer funding that may be exploited for activities opposing its policy, or for harming third parties merely due to their connection to the state, one of its institutions, or an area under its control. In regard to the authority to restrict participation in tenders, the Government is of the opinion that although the principle of equality in the participation in tenders must be upheld, that principle is premised upon the obligation to ensure equal, fair distribution of the budgetary “pie”. Therefore, these restrictions should be examined in the same manner as the restriction of benefits under sec. 4 of the Law. The Government adds that the state’s choice not to grant funding to a particular body does not necessarily lead to an infringement of its freedom of expression or freedom of occupation, as its freedom to act in the manner it chose is not impaired (but only its possibility of obtaining public funding intended for given purposes that a governmental agncy wishes to promote).

            In this context of the infringement of freedom of expression, the Respondents add that, actually, calling for and employing boycotts limit freedom of expression in light of their rationales. One of the purposes of the right to freedom of expression is the promotion of a “free marketplace of ideas”. In the opinion of the Respondents, calling for and participating in a boycott introduce economic considerations and constraints into that “marketplace of ideas”, and prevent it from functioning as a “free marketplace of ideas”.

            Insofar as the Petitioners’ claims in regard to the right to equality, the Respondents are of the opinion that the fact that the legislature saw fit to regulate a certain issue in legislation, believing that the matter required an appropriate legislative response (while leaving other issues without parallel regulation) does not give rise to a constitutional cause for annulling the Law by reason of an infringement of equality. They argue that the foundation of the right to equality, as recognized in the case law, is an infringement of “the autonomy of the individual will, freedom of choice, physical and intellectual integrity of the human being and the entirety of a person’s humanity”. In their opinion, the fact that there is no legislation that addresses matters that are similar or close to the boycotts that are precluded by the Law does not constitute such an infringement.

 

B. Is the Law befitting the Values of the State of Israel and intended for a Proper Purpose?

12.       According to the Petitioners, the primary purpose of the Law is to prevent a boycott of the Area, to silence the expression of opposition to the Government’s policy, and thereby to intimidate only a particular side of the political map. The Petitioners further argued that the Law advances a punitive purpose that seeks to impose sanctions upon political speech on the basis of its content. In the opinion of the Petitioners, that purpose of the Law is improper in that it limits the democratic tools that a minority possesses for expressing its legitimate opposition to the settlements and the Government’s policy.

            As opposed to this, the Respondents are of the opinion that the purpose of the Law is to protect the state (or Israeli institutions and entities) against the imposition of a boycott that might harm them merely because of their connection to the state, one of its institutions, or an area under its control. This is a proper purpose, in their view, in that it is an expression of the state’s obligation to protect the individuals and institutions connected to it, and to prevent discrimination against Israeli citizens on an illegitimate basis (such as their place of residence). Moreover, an additional purpose of the Law is to prevent harm to the international standing of Israel, or harm to its relations with other states and its foreign relations, which is also, in the Respondents’ view, a proper purpose.

            The Legal Forum asked to add in this regard that the scope of the boycott phenomenon and calls for boycotts of Israel and its conduct, and the negative potential that inheres therein, is very significant, and for that reason, the enactment of the Law was necessary in order to prevent significant harm to the state and its citizens. In this regard, the Legal Forum pointed to many extreme publications by the BDS movement throughout the world that call for boycott, divestment and sanctions against Israel, and for the rejection of the existence of the state. In the meantime, prior to the writing of this judgment, many books and articles have been published that treat of this phenomenon in various sectors that it affects, and its dangers for the State of Israel and its institutions. See: Cary Nelson & Gabriel Noah Brahm, eds., The Case against Academic Boycotts of Israel (2015) (hereinafter: The Case against Academic Boycotts); Ben-Dror Yemini, The Industry of Lies, especially pp. 271-290 (2014) (Hebrew); Amnon Rubinstein & Isaac Pasha, Sdakim Ba’academia (Academic Flaws: Freedom and Responsibility in Israeli Higher Education), especially pp. 117-132 (2014) (Hebrew) (hereinafter: Rubinstein & Pasha, Academic Flaws); Marc A. Greendorfer, The BDS Movement: That Which We Call a Foreign Boycott, By Any Other Name, Is Still Illegal (January 2015) (unpublished manuscript) (hereinafter: Greendorfer).

 

C. The Proportionality Requirement

13.       The Petitioners are of the opinion that the Law does not meet the requirement of proportionality and its three subtests, as shall be detailed below.

(1) The Rational Connection Test

14.       The Petitioners are of the opinion that the Law does not serve or further its declared purpose. According to them, the Boycott Law is entirely ineffective in the fight against the international boycott that motivates the Law’s initiators, and in practice, it may actually amplify the phenomenon of boycotts against Israel, as it will harm Israel’s image as a democratic state. The Petitioners add that they are of the opinion that the Law will also not lessen the number of people calling for a boycott of Israel, inasmuch as their motivations are ideological, and it is, therefore, unreasonable to imagine that the existence of the Law will cause them to refrain from calling for a boycott.

            As opposed to this, the Respondents are of the opinion that there is a rational connection between the Law’s sanctions and the purpose that the Law seeks to serve. They argue that, on the one hand, the boycott tort and the administrative restrictions may remedy the economic harm, to the extent that it derives from a call to boycott, while on the other hand, they present those who call for boycott with a logical choice between that conduct and the full realization of their freedom of speech (knowing that it may cause harm to third parties), and their desire to enjoy various governmental benefits.

 

(2) The Least Harmful Means Test

15.       The Petitioners are of the opinion that there are tools that could ensure the purpose of the Law even without exercising the means set out in the Law, for example, by means of establishing a system for compensating those who are harmed by the boycott from the public purse. The Petitioners further argue that already existing laws can be utilized to achieve the purposes that the Law’s initiators sought to promote. For example, in their opinion, a person harmed by the boycott can already directly sue someone who harms their business on the basis of the Civil Wrongs Ordinance [New Version] (hereinafter: the Civil Wrongs Ordinance). In their opinion, in regard to tenders, as well, specific conditions can be established in individual tenders that would prohibit the participation in boycotts against Israel, and therefore there is no need to employ primary legislation for this purpose.

            As opposed to this, the Respondents argue that the Law meets the Least Harmful Means Test. According to them, the boycott tort does not normally enable a person to recover more than the actual damage caused to him by the person calling for a boycott (except in regard to damages under sec. 2(c) of the Law, which is limited by the requirement of “malice”, as will be explained below). In regard to the administrative restrictions, as well, the sanctions concern only the depriving of benefits (which do not constitute vested rights) from a person who calls for a boycott of the State of Israel, and therefore this would appear to be a reasonable infringement, under the circumstances, in regard to those who choose to act that manner.

 

(3) The Proportionality Test “Stricto Sensu”

16.       In the opinion of the Petitioners, the interest that Israeli citizens and residents not call for boycotting the State of Israel and the boycotting of produce of the Area is not proportionate to the infringement of the fundamental rights of those who believe that the settlement enterprise in the Area is an impediment to peace and to the future of the State of Israel. The Petitioners further specifically emphasize, in regard to sec. 2(c) of the Law, that under the said section it is possible to impose punitive damages upon a person calling for a boycott even without proof of damage, contrary to the accepted principles grounding tort law.

            As opposed to this, the Respondents argue that the Law meets the Proportionality Test stricto sensu, in view of “narrowing aspects” in the Law that limit the harm that it might cause to constitutional rights. In this regard, the Respondents refer to the following aspects:

a)         The Law does not directly prevent political expression in regard to disputed political issues, but rather it concerns only a call for instituting a (economic, cultural, or academic) boycott against the State of Israel, as the term is defined by the Law, which alone is prohibited.

b)         The call for a boycott to which the Law applies must be public and done knowingly in order that liability for it be imposed in principle.

c)         The criminal sanction incorporated into the Law in its original version was deleted.

d)         The general principles of tort law apply, in principle, to an action under the boycott tort, including the “de minimus” proviso, the requirement of proof of damage, and a causal connection between the tort and the damage, as a precondition to obtaining a remedy.

e)         In regard to the boycott tort, imposing of damages without proof of damage is conditional upon a mental element of “malice”. Therefore, according to the Respondents, this section will only rarely be employed. According to the Respondents, the trial courts asked to award damages under this section will address the Law’s malice requirement.

f)         In regard to the administrative restrictions, the Law establishes a complex administrative process that involves several relevant actors who can oversee the manner of the exercise of discretion, and all of them are subject to the principles of administrative law.

 

Additional Arguments that were raised in general

17.       The Petitioners also argue that the Law is logically flawed. The reason for this is that, in practice, the Law establishes that a call for a boycott is, in their view, more serious than the boycott itself, inasmuch as while the Law imposes various sanctions upon a person who calls for a boycott, a person’s actual choice to institute a boycott (e.g., in regard to products produced in the Area) is not, in their opinion, deemed a tort in the eyes of the Law, and does not, in their view, lead to punitive or administrative sanctions.

            The Respondents denied the logical flaw, but added that even if the Petitioners were correct, that would not give rise to a constitutional claim that would lead to the invalidity of the Law. The Government further argued before us that, at times, the call for a boycott may indeed be more serious than the boycott itself, due to the possible influence of the call for a boycott, which can exceed a particular person’s individual decision.

18.       The Legal Forum addressed the distinction that arose in some of the arguments of some of the Petitioners (to which the Government and the Knesset related, as well), by which – as an alternative to striking down the Law in its entirety – consideration should be given only to the erasure of the term “an area under its control” in sec. 1 of the Law. According to the Legal Forum, even if the term “an area under its control” in sec. 1 of the Law – defining a “boycott against the State of Israel” – were to be erased, that rejection might lead to boycotts against an entire community, and that would suffice to damage the purpose of the Law. Moreover, even if that term were erased, it would still be possible to justify any boycott against the State of Israel, or a community in Israel (such as the residents of the settlements, because they have a connection with the State of Israel).

19.       Additional arguments raised by the parties will be addressed in the course of the next chapter, as necessary. However, before proceeding, we should note that in the course of the proceedings, there was a request for an interim order (in the Ta’al Petition), which was denied on July 27, 2011 (in regard to the considerations for granting an interim order against a law in cases of constitutional review, see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 380-382 (1997) (hereinafter: the Investment Managers Association case).

            I shall now examine the case on the merits.

 

Discussion and Decision

20.       I will begin with a necessary observation. The examination that follows will not consider the wisdom of the Law (which was even questioned by some of the Government’s representatives, as noted in para. 3, above), but only its constitutionality. In this regard, we are guided by the words of President A. Barak in the Investment Managers Association case (ibid., p. 386), as follows:

The Court does not come to replace the legislature’s considerations with its own. The Court does not put itself in the shoes of the legislature. It does not ask itself what means it would have chosen if it had been a member of the legislative body. The Court performs judicial review. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective or just. The question is whether it is constitutional [...] Establishing policy is the role of the legislature, and its realization is the role of the government, which are granted a margin of constitutional appreciation [emphasis added – H.M.].

In view of the above criteria, and having reviewed the copious material submitted to us, and heard the arguments of the attorneys of the parties, I have concluded that the Law can, for the most part, overcome the requirements of the “Limitation Clause” – although not easily – with the exception of sec. 2(c), which must be struck down, and so I shall recommend to my colleagues.

            My reasons for the said conclusions will be set out in detail below. The discussion will proceed as follows: I shall first examine whether or not there is an infringement of a constitutional right, and show that the Law does, indeed, infringe the right to freedom of expression, as well as other constitutional rights. Following that, I will examine whether or not the various provisions of the Law meet the tests established by the “Limitation Clause”, while, inter alia, drawing upon comparative law. Finally, I will provide further support for my conclusion by reference to additional theories that have been developed in the field of constitutional law in regard to the invalidation of laws.

            I will now set out my examination from first to last.

 

Infringement of a Constitutional Right

21.       From the language of the Law, presented above in para. 2, we learn that anyone who knowingly publishes a call for the imposition of a boycott against the State of Israel, as defined by the Law, may be deemed to have committed a tort. Moreover, the participation of such a person, or one who has committed to participate in such a boycott in public tenders, may be restricted, and it is possible that such a person may be prevented from receiving various financial benefits (governmental grants, tax exemptions, state guarantees, etc.).

            Thus we find that most of the sanctions imposed by the Law already apply at the speech stage.

            It is, therefore, hard to deny that the Boycott Law indeed infringes freedom of expression (as argued by the Petitioners, and as Respondent admit, in part), which is “closely and materially bound to human dignity” (as stated by my colleague (then) Justice M. Naor in HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attorney General, IsrSC 62 (4) 715, 763 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general, at para. 26]; and see: Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, pp 708-712 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)] (hereinafter: Barak, Human Dignity), and the case-law cited there). However, we are not concerned here with an infringement of the core of freedom of expression, even where political speech is concerned, inasmuch as the infringement is relatively limited, and applies only to a call for a boycott against the State of Israel, as defined by the Law, or anyone who commits to participate in such a boycott, which is a legal act that exceeds speech.

            Here we must pause for a moment to explain that the laws concerning calls for (and participation in) a boycott have undergone various incarnations in legal and political history. In the ancient world – both in Jewish law and in Greece – there was an institution of ostracism under which people who acted contrary to societal rules, or who were feared might undermine the social order, were ostracized (or, at times, exiled) (see Ha’encyclopedia Ha’ivrit, vol. 18, pp. 51-59,  s.v. “Herem (nidui, schemata) bayahadut” (Hebrew); ibid., vol. 2, pp. 29-30, s.v. “Ostracism”; The Case Against Academic Boycotts, pp. 4-5). However, even early in those days, many began to sense that the institution of ostracism was problematic and harmful to democracy, and in this regard, the renowned Greek philosopher Plutarch (ca. 45-120 CE), in his monumental work Parallel Lives, tells the story of Aristides (a renowned Greek statesman at the beginning of the 5^th cent. BCE, of whom Plato declared that “of all the great renowned men in the city of Athens, he was the only one worthy of consideration”). Aristides was called “the Just” in appreciation of his virtues, but Athenian society nevertheless voted to ostracize and exile him. When a common citizen in the crowd was asked why this was done, he replied that he was “tired of hearing him everywhere called the just”. (At the end of the story, Athenian society realizes its error and returns Aristides to the community and his status, see: Ha’encyclopedia Ha’ivrit, vol. 5, pp. 871-872, s.v. “Aristides” (Hebrew); The Case Against Academic Boycotts, pp. 4-5).

            Since then, and for centuries, religious and political thinking have expressed doubts in regard to ostracism (see, for example, in our sources:  Babylonian Talmud, Tractate Mo’ed Katan 17a). Nonetheless, modern history has seen boycotts employed from time to time, as for example, in the American Revolution, when (on Dec. 16, 1773) the Boston Tea Party saw a cargo of imported tea thrown into the sea, followed by a boycott of various British goods by Americans who sought freedom and emancipation from England. However, the institution was only “officially” revived and given its “modern” name in the 19^th century, following a strike of tenant farmers against Captain Charles Boycott in 1873. After his retirement from the army, Captain Boycott began a campaign to evict Irish tenant farmers from their farms due to their refusal to agree to a raise in rent. The response of the farmers and their supporters was expressed in a successful call to cut off all ties to Boycott, the other landowners, and their produce. The institution has since been called “boycott” in English. In time, criticism and doubts arose in regard to the institution of boycotts, and the 20th century saw the draawing of various distinctions between “permissible boycotts” (such as the Montgomery Bus Boycott, and Gandhi’s boycott of British goods), and “impermissible boycotts” that are prohibited by law. And see: Gary Minda, Boycott in America: How Imagination and Ideology shape the Legal Mind (1999), where the author notes (at p. 197):

                        “Group boycotts may appear to some as acts of political terrorism.”

            That statement is made even though, in the United States, boycotts against expressions of racism, or in the framework of labor disputes, are deemed permissible. See: NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); and see: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (hereinafter: the Claiborne case); also see: Yaniv Meno, “Consumer Boycotts, the Ethical Weapon of the Consumers,” 15 Hamishpat 729 (2010) (Hebrew); Nili Cohen, “Law, Play, Game - The ‘Merchant of Venice’ and the ‘Breakdown’,” 51 Hapraklit 407, 433-434 (2012) (Hebrew) http://www.hapraklit.co.il/_Uploads/dbsAttachedFiles/Nili_Cohen_Article.pdf).

22.       In light of the finding that we are faced with an infringement of freedom of expression, which is a “daughter right” of human dignity (to adopt the term coined by Prof. Barak in his book Human Dignity, ibid.), the sanctions in the Boycott Law constitute an infringement of a protected constitutional right. However, that constitutional right, like all other constitutional rights in Israel, is not absolute, but rather relative, and may be restricted if the infringement meets the requirements of the “Limitation Clause” in sec. 8 of Basic Law: Human Dignity and Liberty (see: Aharon Barak, Proportionality in Law, 53 (2010) (Hebrew) (hereinafter: Barak, Proportionality in Law) [published in English as: Aharon Barak, Proportionality – Constitutional Rights and their Limitations, (Doron Kalir, trans.)]; HCJ 2194/06 Shinui- The Center Party v. the Chairman of the Central Elections Committee (2006) (published in Nevo) (hereinafter: the Shinui case); HCJ 236/13 Otzma Leyisrael v. Chairman of the Central Elections Committee for the 19^th Knesset (2013) (published in Nevo)).

            I will, therefore, examine below whether the Boycott Law meets the requirements of the “Limitation Clause”. But before doing so, I would note that we are aware of many instances of legislative prohibitions that were recognized as valid, even though they infringed freedom of expression per se. I would note a few examples: the prohibition of defamation (under the Prohibition of Defamation Law, 5725-1965 [19 L.S.I. 254] , which establishes both a criminal offense and a civil tort); racial incitement (see: sec. 144B of the Penal Law, 5737-1977 (hereinafter: the Penal Law); incitement to terrorism (see: the Prevention of Terrorism Ordinance, 5708-1948, and see: Dafna Barak-Erez & Dudi Zechariah, “Incitement to Terrorism and the Limits of Freedom of Expression: Between Direct and Indirect Limits,” 35 Iyunei Mishpat (2012) (Hebrew) (hereinafter: Barak-Erez & Zechariah); sedition (see; sec. 134 of the Penal Law. And see: Mordechai Kremnitzer and Liat Levanon-Morag, “Restricting the Freedom of Expression Due to Fear of Violence – On the Protected Value and Probability Tests in Crimes of Incitement to Sedition and Incitement to Violence in the Wake of the Kahane Case,” 7 Mishpat U’Mimshal 305 (2004) (Hebrew). A. Dorfman, “Freedom of Speech and the Economic Theory of Uncertainty”, 8 Mishpat U’Mimshal 313 (2005) (Hebrew). Barak, Human Dignity, pp. 737-738); procurement of prostitution (see: secs. 205B and 205C of the Penal Law); publications infringing a person’s privacy (see: sec. 2(11) of the Protection of Privacy Law, 5741-1981, and recently: CA 8854/11 Anonymous v. Anonymous (April 24, 2014) (published in Nevo); restrictions upon political campaign advertising (see: Elections (Means of Propaganda) Law, 5719-1959, and recently, HCJ 979/15 Yisrael Beiteinu Party v. Chairman of the Central Elections Committee for the 20^th Knesset (Feb. 25, 2015) (published in Nevo), and note that this judgment is currently pending in a Further Hearing); offences concerning public services that explicitly include a threat or intimidation by ostracism (see sec. 161 of the Penal Law; as well as contempt of court (see: sec. 255 of the Penal Law), and insulting a civil servant (see: sec. 288 of the Penal Law. And see: Re’em Segev (under the supervision of Prof. Mordecai Kremnitzer), Freedom of Expression against Governmental Authorities, pp. 31-35 (2001) (Hebrew)).

            It should be noted that some of the above provisions fall within the scope of the Validity of Laws provision under sec. 10 of Basic Law: Human Dignity and Liberty. On the interpretation of that section, see: Aharon Barak, “Validity of Laws,” (to be published in the Beinisch Volume); FH 5698/11 State of Israel v. Mustafa Dirani (January 15, 2015) (published in Nevo) (hereinafter: the Dirani case). Moreover, the case law of this Court has approved restrictions imposed pursuant to expressions (that would be deemed to be within the scope of freedom of expression in the United States) that smacked of racism, even though the restriction had no express statutory support. See: HCJ 4646/08 Lavi v. Prime Minister (Oct. 12, 2008) (published in Nevo).

            Thus we see that abstract “freedom of expression” is not the be-all and end-all. Against this background, this Court’s case law has, indeed, quoted with approval the words of United States Supreme Court Justice Brennan that “debate on public issues should be uninhibited, robust and wide-open” (see: CA 723/74 Ha'aretz Daily Newspaper Ltd. v. Israel Electric Corporation, IsrSC 31 (2) 281, 296 (1997) per Shamgar J.) [English: http://versa.cardozo.yu.edu/opinions/haaretz-daily-newspaper-ltd-v-israel-electric-corporation]; and see: HCJ 399/85 Kahane v. Broadcasting Authority, IsrSC 41 (3) 255, 280 (1987) (hereinafter: the Kahane case). However, when it found that the infringement of the said freedom met all of the conditions of the “Limitation Clause” (including the requirement of proportionality) in circumstances in which permitting the expression “could undermine axiomatic foundations in a manner that might threaten the social and national fabric” (HCJ Bakri v. Israel Film Council, IsrSC 58 (1) 278, 249 (2003)), the Court held that the restriction would be approved (and compare: para. 9 of the opinion of Barak P. in the Shinui case).

            23.       At this point we should note that even the case law of the Supreme Court of the United States – where the First Amendment to the Constitution grants particularly broad protection of freedom of expression – has created exceptions:

            First, everyone agrees that protection does not extend to a person falsely shouting “fire” in a packed theater, thus causing unnecessary panic, as Holmes J. stated in Schenck v. United States, 249 U.S. 47 (1919): 

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.

            These words have frequently been quoted in the past and were most recently referred to by my colleague Justice N. Hendel in LCrimA 2533/10 State of Israel v. Michael Ben Horin (Dec. 26, 2011) (published in Nevo). I would stress that this exception is somewhat artificial in that there is general consensus that falsely shouting fire in a theater may cause harm (and is therefore not protected), whereas the justification for calling for a boycott against the state is the subject of political debate. Nonetheless, along with this agreed exception, the United States – which is the most liberal in this field – has developed additional exceptions and new approaches, insofar as this has become necessary by changing times and needs. I will address these in para. 24A below, and further on.

24.       The constitutional examination that will be presented in my opinion will, as noted, focus on the legal aspects of the relevant provisions of the Law, and will also be aided by comparative law. However, several additional, basic premises underlying the examinations must be laid out:

(a).       It would seem that when expression does not solely concern an attempt to persuade the public in regard to facts, beliefs and worldviews, but also calls for action, we enter an area that goes beyond mere freedom of expression, and the matter also concerns, inter alia, the legality or morality of the referenced act (the boycott), its general context, and other considerations that balance the various interests concerned. Thus, a call to participate in a criminal act, or in a restrictive trade practice, or to breach a contract is generally prohibited (subject to exceptions). Therefore, we do not find a general law treating of boycott, or as Stevens J. stated in the United States Supreme Court decision in the Claiborne case, boycott is a concept that has a “chameleon-like” character that presents “elements of criminality and elements of majesty” (ibid., at p. 888). Thus, even in the United States, where freedom of expression enjoys primacy relative to other fundamental rights, sometimes a call for a boycott is permissible and deemed to fall within the scope of “freedom of speech” (see: the Claiborne case), and sometimes it is limited or prohibited, despite “freedom of speech” (and see: International Longshoremen's Association, AFL-CIO, v. Allied International, Inc., 456 U.S. 212 (1982); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (hereinafter: the Holder case); the latter two cases are closer to the material of the case at bar).

            Thus, while almost every expression of opinion is permissible in a democratic state, and the same is true, in principle, in regard to demonstrations (subject to certain restrictions of public safety), a call for a boycott is context-contingent, and involves, inter alia, the “legality” of the said boycott. Thus, for example, a consumer boycott that serves consumer objectives is generally possible (but an “advertising boycott” that harms the freedom of the press is generally deemed to be prohibited, in addition to the antitrust aspects that may be involved), while a boycott for a political end is generally forbidden. (See: Gordon M. Orloff, “The Political Boycott: An Unprivileged Form of Expression,” 1983 Duke L. J. 1076 (1983) (hereinafter: Orloff, “The Political Boycott”); and see: CA 115/75 Israeli Association of Travel and Tourism Agents v. Kopel Tours Ltd., IsrSC 29 (2) 799 (1975).

            Because the determination in regard to a boycott in the United States depends upon its type and circumstances, judicial review in this area is conducted from “the bottom up”, and is carried out as applied review rather than as facial review. On these distinctions and their consequences, see Ronen Polliack, “Relative Ripeness: As-Applied or Abstract Constitutional Judicial Review,” 37 (1) Iyunei Mishpat 45 (Feb., 2014), written following HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (Jan. 5, 2012) (published in Nevo) [English:  http://versa.cardozo.yu.edu/opinions/alumni-association-arab-orthodox-school-haifa-v-minister-finance] (hereinafter: the Alumni Association case); and Elena Chachko, “On Ripeness and Constitutionality: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance and HCJ 3803/11  Israeli Capital Markets Trustees Association v. State of Israel,” 43 Mishpatim 419 (2013) (hereinafter: Chachko, “On Ripeness and Constitutionality”) (for a detailed discussion of the ripeness doctrine in the context of our discussion, see para. 60, below).

(b).       In regard to the issues that are the subject of the petitions at bar, the Law defines itself – even by its name – as intended to prevent harm to the State of Israel by means of a boycott. We thus find that we must assume as a basic fact that the Knesset chose to enact legislation to aid in the state’s battle against those who seek to ostracize it and its residents.

(c).       It would appear that both the legislature and the Petitioners (with the exception of the Petitioners in the Barkai Petition), as well as the BDS (Boycott, Divestment and Sanctions) Movement, which acts against Israel, make no distinction between the State of Israel and its institutions, and areas under the control of the state. In calling for such a boycott, those addressed are asked to refrain from any economic, cultural, or academic connection with a person or other body solely due to their connection to the State of Israel or its institutions, or to areas under its control, and not due to their conduct.

            As noted, we addressed questions in this regard to the parties in the course of the hearing. Some of the attorneys for the Petitioners replied that even if the settlements (which are currently the focus of the calls for boycott) did not exist, it would still be permissible, in their opinion, to call for a boycott of the State of Israel, as defined by the Law, as long as Israel continues to conduct itself in a manner that they view as discriminating against the Arab minority, or does not change its character (as a Jewish state). True to this approach, some of the attorneys of the Petitioners informed us that they believe that it would have been permissible (even prior to the peace accords with Egypt and Jordan, and the “Paris Protocol” with the Palestinian representatives) to call for participation in the Arab League’s economic boycott against Israel – a boycott that, at the time, inflicted significant economic harm to the State of Israel and its residents when many international companies refused to trade with Israel, or conduct business in Israel. According to this view, the same legal approach should apply both to the current situation, in which, in the opinion of the Petitioners, it is permissible to encourage participation in boycotts against Israel, even in the future, and even if an arrangement for coexistence is achieved between Israel and its neighbors, as long as all the other “claims” that they see as justifying the call for a boycott continue to exist.

            At this juncture, we should recall that the State of Israel was rescued from the said “Arab Boycott”, inter alia, thanks to specific American and European legislation that prohibited participation in the boycott, or submission to it – legislation that remains in effect in those countries (for the details of that legislation, see the surveys prepared by the Knesset Research and Information Center that were presented to the Constitution Committee http://www.knesset.gov.il/mmm/data/pdf/m02861.pdf (Hebrew); and see: Greendorfer in regard to the current situation in the United States. The U.S. legislation that prohibited cooperation with the Arab Boycott was not found to be repugnant to the First Amendment of the U.S. Constitution, see:  Briggs & Stratton Corporation v. Baldridge, 782 F.2d 915 (7th Cir. 1984); The Trane Company v. Baldridge, 552 F. Supp. 1378 (W. Dist. Wisc. 1983). On the situation in Europe, see below, para. 49ff.).

25.       As we see from the above, a call for participation in the boycott against the State of Israel, as defined in the Law, organized by various actors in the United States, Europe, or Israel constitutes encouragement to participate in an unlawful act, or conduct that comprises prohibited elements of discrimination, impermissible intervention in contractual relations, or even restrictive trade practices (all in accordance with the relevant law), regarding which, in principle,  liability can already be imposed under the existing law. Nevertheless, the Knesset was of the opinion that it would be appropriate to provide a more tightly defined normative framework for the said wrongful conduct, and therefore three principles were established under sec. 2 of the Law:

(a)        Publishing a call for imposing a boycott against the State of Israel, as defined by the Law, and subject to the conditions set out in sec. 2(a) of the Law, constitutes a tort (sec. 2(a) of the Law).

(b)        In regard to sec. 62(a) of the Civil Wrongs Ordinance, a person who causes a breach of a legally binding contract by calling for a boycott against the State of Israel will not be deemed to have acted with sufficient justification (sec. 2(b) of the Law).

(c)        Under sec. 2(c) of the Law, the court may impose damages that are not contingent upon proof of damage (hereinafter: exemplary damages) upon anyone who commits a tort, as defined by the Law.

            In addition to the above, the Law establishes that, in the context of secs. 3-4, the Minister of Finance is granted the authority – subject to the conditions stated therein – to restrict the participation in a tender (in accordance with the Mandatory Tenders Law), or to withhold economic benefits as defined in sec. 4 of the Law, in regard to anyone who publishes a call for the imposition of a boycott against the State of Israel, as defined by the Law, or who commits to participate in such a boycott.

            I must now examine whether or not the said provisions meet the conditions of the “Limitation Clause”. I will put the cart before the horse and state that, in my opinion, secs. 2(a), 2(b), 3 and 4 of the Law can successfully overcome the constitutional “Limitation Clause”, whereas sec. 2(c) of the Law fails the required tests.

            I will now explain this in orderly detail, but before embarking, I would note that having expressed the view that there is an infringement of freedom of expression, there is no need for a separate examination of the Petitioners’ claims in regard to infringement of freedom of occupation and other constitutional rights, inasmuch as all of those infringements in this case derive from the infringement of freedom of expression, and if that infringement meets the criteria of the “Limitation Clause”, then the same holds for the other infringements. See: HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset, IsrSC 61 (1) 619, 674-675 (2006) per Barak P., pursuant to HCJ 4676/94 Meatrael Ltd. v. Knesset, IsrSC 50 (5) 206 (1998).

 

Examining the Provisions of the Law under the “Limitation Clause”

26.       Section 8 of Basic Law: Human Dignity and Liberty provides as follows, in what is commonly referred to as the “Limitation Clause”:

Violation of Rights

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.

            I will, therefore, examine the provisions of the Law in terms of the conditions of the Limitation Clause.

27.       The first condition established by the Limitation Clause requires that the violation of a constitutional right “under this Basic Law” be implemented by a law (or by virtue of express authorization in such a law).  This condition is met in the case before us, as the sanctions established under secs. 2-4 of the Boycott Law are established in a statute enacted by the Knesset.

28.       The second condition established by the Limitation Clause requires that the law befit the values of the State of Israel. This clause has been interpreted as pointing, first and foremost, to the values of the State of Israel as a “Jewish and democratic state”, which must be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel, as stated in sec. 1 and 1A of Basic Law: Human Dignity and Liberty. Other fundamental values of the State of Israel may also be considered within this framework.

            There is tension between the positions of the Petitioners and the Respondents in regard to whether this condition is met. The Petitioners are of the opinion that the Law infringes freedom of expression and detracts from the democratic character of the state. The Respondents, who justify the Law, argue that the Law falls within the scope of the state’s need to defend itself against those who would seek to destroy it, or those who seek to change its character, and it is thus an implement that a “defensive democracy” must have in its “tool box”. Moreover, the Law is intended to prevent discrimination against the citizens of the State of Israel, whether due to their national identity or due to their residence in areas under the control of the state. This disagreement will be examined below, and I shall try to provide answers to the said question in that framework.

29.       The “defensive democracy” doctrine was recognized – in a majority opinion – in EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19 (3) 365, although at the time, that approach did not have any express statutory underpinning (and see: Amnon Rubinstein & Barak Medina, The Constitutional Law of the State of Israel, vol. 2, (6^th ed., 2005) pp. 588-591, 604-618). That doctrine must be effected in accordance with the conditions of each state and its residents (see: Jan-Werner Muller, “A ‘Practical Dilemma Which Philosophy Alone Cannot Resolve’? Rethinking Militant Democracy: An Introduction,” 19 Int’l J Crit.Dem.Theory (2012) (hereinafter: Muller, “Militant Democracy”); and see: Svetlana Tyulkina, Militant Democracy (2015)). Accordingly, this approach was adopted through the recognition of Israel as a “Jewish and democratic state”, and this basic constitutional element was recognized and given expression in the Basic Laws enacted since 1992, as well as in the sub-constitutional normative area (for a list of all the relevant legal provisions, see: Hanan Melcer, “The IDF as the Army of a Jewish and Democratic State,” in Rubinstein Volume (2014) pp. 347, 349-351). In this regard, we must take note that in the Boycott Law the legislature expressed its intent that the Law’s provisions were meant to prevent harm to the state of Israel by means of boycott, and thus, on its face, and on the basis of the presumption of constitutionality of the Law, it would appear that the Law falls within the scope of the “defensive democracy” doctrine (and moreover, some of the Petitioners declared, as noted, that in their opinion it is indeed legitimate to call for a boycott as long as the character of the state remains unchanged). On the consequences of the “defensive democracy” doctrine, see my opinion in the Dirani case, and see: G.H. Fox & G. Nolte, “Intolerant Democracies,” 36 Harv. Int. L. J. (1995); Barak Medina, “Forty Years to the Yeredor Decision: The Right to Political Participation,” 22 Mehkerey Mishpat (Bar-Ilan University Law Review) 327-383 (2006) [Hebrew] (hereinafter: Medina, “Forty Years to the Yeredor Decision”) which mentions the decision (although the author criticizes it), stating:

On the basis of the principle regarding “defensive democracy”, it is possible to justify governmental restrictions upon elements that seek to harm important interests recognized as fundamental rights [of third parties – H.C.], even if those elements are committed to non-violent methods in this regard. [But it is questionable whether this comprises calls for boycott, as I shall explain below – H.M].

30.       Moreover, it would appear that a call for a boycott deviates from pure freedom of expression. Thus, for example, as Justice A. Barak wrote in regard to the purposes of freedom of expression in the Kahane case:

The justification for freedom of expression is complex and intertwined. It is the individual’s right to realize himself, to form a worldview and an opinion by giving flight to his spirit, creative and receptive. It is the freedom of the individual and the community to illuminate the truth through a free and unending struggle between truth and falsity. It is the freedom of society’s members to exchange opinions and views in a spirit of tolerance, without fear, with respect for the autonomy of every individual, and to persuade one another in order to strengthen, secure and develop the democratic regime [ibid., p. 272 – emphasis added – H.M.].

            Freedom of expression is thus intended, inter alia, to enhance public discourse and to present even unaccepted views, so that society’s political decisions will be made freely and intelligently, through persuasion, with tolerance, and with respect for the autonomy of the other.

            Thus, calls for a boycott against the State of Israel, as defined by the Law, do not serve the classical purpose of freedom of expression. As opposed to the view of the Petitioners, according to which calls for boycott advance “open and enhanced political discourse”, such calls are not actually interested in political decisions on the basis of free will, but seek to impose views by means of economic and other means (in the field of contracts, as well, influence by means of economic coercion has been recognized in the law and the case law as contrary to free will, and thus gives rise to a cause for rescission of the contract (see: sec. 17 of the Contracts (General Part) Law, 5733-1973; CA 8/88 Shaul Rahamin Ltd., v. Expomedia Ltd., IsrSC 43 (4) 95, 100-101 (1989); CA 1569/93 Maya v. Panford (Israel) Ltd., IsrSC 48 (5) 705, 706 (1994); and cf. Daniel Friedman & Nili Cohen, Contracts, vol. 2, 965 (1992),  who include in the scope of coercion: “also threats of ‘boycott’ or ‘blacklisting’, whose significance is that suppliers will refrain from transacting with a person, or that customers will refrain from transacting with him, or that other employers will refuse to employ him”, and conclude: “In this area , as well, it is conceivable that the threat, if not made in order to protect a justified interest, may constitute coercion”).

            This approach of calling for economic, academic and cultural boycott does not, therefore, serve democracy, but rather harms it, as I shall explain:

(A)       The Petitioners argue that the Boycott Law violates their freedom to conduct political discourse, but in this regard it would be proper to delineate the distinction between freedom of expression as a means of persuasion, which is a cornerstone of a democratic state, and freedom of expression as a means of coercion, which undermines the values of a democratic state. Whereas in order to advance freedom of thought and opinion, a democratic state will seek to encourage a free marketplace of ideas through freedom of expression, when that freedom is employed (by way of calling for boycotts) as a means for violating the right of the individual to choose on the basis of his opinions and beliefs, the protection granted to freedom of expression can be somewhat restricted. See: Orloff, “The Political Boycott” (ibid., pp. 1076-1077):

A political boycott is a coercive mode of expression that, regardless of its goals, deprives its victims of their freedom to speak and to associate as they please… A political boycott uses economic coercion to force its victims to speak or act politically in a way that furthers the goals, not necessarily of the speaker, but of the boycotter.

            Thus, a call for boycott falls within the category referred to in constitutional literature as “the democratic paradox”, in which it is permissible to limit the rights of those who seek to benefit from democracy in order to harm it (see: EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi, IsrSC 57 (4) 1, 14-18 (2003), per Barak P.). Calling for or participating in a boycott may thus, at times, smack of “political terrorism”.

            This view can be compared to the provisions of sec. 122 of the Knesset Elections [Consolidated Version] Law, 5729-1969:

122.     The following shall be liable to imprisonment for a term of five years or to a fine of IL 20,000:

(1)        a person who gives or offers a bribe for the purpose of inducing a voter to vote or to refrain from voting, whether generally or for a particular candidates’ list;

…

(3)        a person who threatens a voter with inflicting harm on him or any other person if such voter votes or refrains from voting, whether generally or for a particular candidates’ list;

…

(6)        a person who procures a person to vote or refrain from voting, whether generally or for a particular candidates’ list, by means of an oath, a curse, shunning, ostracism [Hebrew: “ḥerem”],[1] a vow, releasing from a vow, a promise to bestow a blessing, or giving an amulet; for the purpose of this section, “amulet” includes any object that some members of the public believe can cause benefit or harm to a person [emphasis added – H.M.].

 

            In explaining the purpose of this law, Justice M. Cheshin wrote as follows:

The purpose of the law is that voters decide for themselves for whom to vote and for whom not to vote, after free and informed consideration of whom they believe worthy of their vote…the purpose of the law is to prevent the improper phenomenon of people voting or refraining from voting for a party or candidate for prime minister while under the influence of extraneous or other improper considerations [EA 11/01 Pines-Paz v. Shas, IsrSC 55 (3) 168 (2001); emphasis added – H.M.].

(B)       The above is of special concern in regard to the boycotting of Israeli academia. Such a call for the boycotting of the Israeli academic community, or of Israeli lecturers, undermines academic freedom itself and prevents research and instruction whose purpose, inter alia, is the search for truth. It is, in effect, a boycott of intellectualism itself, as boycott silences the discourse. Therefore, the Law that prohibits such activity is appropriate to the values of the State of Israel that, inter alia, ensure full academic freedom and advance research and excellence, which underlie Israel’s qualitative advantages. See: Rubinstein & Pasha, Academic Flaws, pp. 117-119.

31.       All of the above arguments can suffice to show that the Law meets the second condition of the Limitation Clause, and also shed light upon the third condition, which I shall now address.

32.       The third condition established by the Limitation Clause requires that the law under which a protected right is infringed serve a proper purpose. It would appear that the Law before us also meets this condition, which in our context also somewhat overlaps the second condition (and therefore, to the extent that the matters are shared, I will not repeat them).

            As explained in paras. 28-30 above, the Law (without addressing the issue of the wisdom of its enactment) serves purposes that can be explained on the basis of the values of the state, and it is even intended to serve a number of specific purposes that can be viewed as legitimate:

1. It is intended to prevent harm by means of boycott to the State of Israel, as these terms are defined by the Law.
2. It delineates what is permitted and forbidden within the framework of freedom of expression, viz: it is permissible to express any political opinion and to attempt to persuade; it is permissible to demonstrate; it is forbidden to call for a boycott (which may also involve criminal elements (restrictive trade practices, improper violation of equality, or “boycott prohibitions” per se), or tortious elements (tortious inducement of breach of contract; unlawful acts of discrimination), or may be contrary to the fundamental values of the state (or its legal system)). Professor Preuss, in his article “Associative Rights (The Right to The Freedoms of Petition, Assembly, and Association)”, suggests an additional distinction according to which the expression of personal political dissent is permitted, whereas calls for collective action is prohibited, and comprises elements of conspiracy (see: Ulrich K. Preuss, “Associative Rights (The Right to The Freedoms of Petition, Assembly, and Association),” in Michael Rosenfeld & Andreas Sajo, eds., Oxford Handbook of Comparative Constitutional Law,  948, 963 (2012)). This distinction also provides an answer to the Petitioners’ claim of a logical fallacy in the Law.
3. It advances the values of equality and the prohibition of discrimination.

I will permit myself to expand somewhat in regard to the prohibitions of discrimination, which embody the right to equality insofar as they are related to the questions before us, and in relation to the issue of boycott.

33.       As noted, the Boycott Law defines a boycott against the State of Israel as: “deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm” (emphasis added – H.M.). This definition does not speak of a boycott against the conduct of the object of the boycott, but rather it applies only to their connection to the State of Israel, its institutions, or an area under its control.

            I am of the opinion that a law that is intended to prevent such a boycott can be said to advance a proper purpose, in terms of its legal meaning and consequences, in that, inter alia, it expresses the right to equality, which has been recognized in the case law as a fundamental right (see: Barak, Human Dignity, at pp. 691-705), as follows:

(A)       Boycott shares characteristics of unlawful discrimination. Both boycott and discrimination lead to a reduction of economic and other connections with people on the basis of an interest that may be deemed illegitimate. In the case of the Boycott Law, the basis for the boycott is a connection to the State of Israel. A similar basis – connection to a country of origin – is recognized by Israeli law as a justified basis for imposing tortious liability in the framework of the tort of discrimination. The Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law), which treats of a tort regarding discrimination, states, in sec. 3 and 5, as follows:

3. (a) Any person whose business is the supply of products or of public services, or who operates a public place, shall not – in the supply of products or of public services, in admitting to a public place or in providing a service in a public place – discriminate because of race, religion or religious group, nationality, country of origin, sex, sexual inclination, opinion, political allegiance, personal status, or parenthood.

…

5. (a) An act or an omission in violation of sections 3 and 4 constitutes a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] shall apply to them, subject to the provisions of this Law [emphasis added – H.M.].

            The Prohibition of Discrimination Law thus establishes that distinctions on the basis of country of origin are prohibited, and that a provider of products or services who discriminates on that basis exposes himself to an action in tort. It should further be noted that under the said law, a person’s opinion or political allegiance do not constitute a legitimate basis for making distinctions in supplying services or products. In other words, to some extent, the Prohibition of Discrimination Law defines discrimination even more broadly than the Boycott Law.

(B)       Here we should further note that the fact that a person politically objects to the policy of a country does no itself justify discrimination on the basis of country of origin. Discrimination based upon that justification harms the individual on the basis of acts and conduct that are not contingent upon him: This is “collective punishment” that uses an innocent individual as a means for deterring another (and cf: sec. 40G of the Penal Law). Such conduct is unacceptable, just as, for example, boycotting products produced by certain minorities is unacceptable.

34.       It would not be superfluous to note that the Boycott Law is not exclusive to Israel, and such laws – expressed in similar language, and comprising prohibitions upon discrimination on the basis of country of origin – can be found in many other countries. In fact, in some of those countries, the scope of the said prohibition upon discrimination is even broader than in Israel. Thus, for example, in France, the Penal Code includes a prohibition upon any discrimination that disrupts normal economic activity (Penal Code, Article 225-2). In England and Germany, the law defines any less favorable treatment of A towards B because of a protected characteristic as direct discrimination (sec. 13 of the Equality Act 2010 and sec. 3 of the General Act on Equal Treatment, respectively).

            From all the above we can conclude that the Boycott Law, like the Prohibition of Discrimination Law, also advances a proper purpose of equality in that it is intended, inter alia, to prevent discrimination, which is a purpose grounded in additional Israeli legislation, as well as in the legislation of many other countries.

35.       Now that we have established that the Law is consistent with the values of the State of Israel, and is intended for a proper purpose, it remains for us to examine whether the restriction it imposes upon freedom of expression is “to an extent no greater than is required”, which is the fourth condition of the limitation clause. I shall now proceed to that examination.

 

“To an extent no greater than is required” – Proportionality Tests

36.       The fourth and last condition for examining the constitutionality of an infringement of a basic right is that the violation be “to an extent no greater than is required”. The proportionality of the Law must be examined in light of three subtests of proportionality, as established in the case law: the rational connection test, the least harmful means test, the proportionality test “stricto sensu” – sometimes referred to as the “relativity test”— which is a type of “cost-benefit” test (see: the Hamifkad Haleumi case, CrimA 8823/07 Anonymous v. State of Israel (published in Nevo) (Feb. 11, 2010); my opinion in HCJ 6784/06 Major Shlitner v. Director of Payment of Pensions (published in Nevo) (Jan. 12, 2011) (hereinafter: the Shlitner case); Barak, Proportionality in Law, chaps. 9-12).

            We shall address these below.

The Rational Connection Subtest

37.       Under the rational connection subtest, there must be a possible rational connection between the proper purpose and the means that the law chose to advance that purpose (see: Barak, Proportionality in Law, pp. 373-383 [English: 303-307]; on the method for applying this subtest, see the majority opinion in HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481(2005)). In the case at bar, although some of the Petitioners argued that the Law is not effective in advancing the fight against boycotts (and thus it would seem that, in their view, it does not actually infringe freedom of expression), the general tenor of the arguments was that they admit that there is, in effect, a rational connection between the Law and the intention to prevent calls for boycott, inasmuch as that connection (which the Petitioners oppose) motivated the petitions. Indeed, some of the Petitioners stated that they were affected by the “chilling effect” of the Law, and were therefore forced to desist from publishing lists of products produced by Israeli actors in the Area, for the purpose of boycotting them. It is, therefore, clear that the Law, if only according to its initiators, advances its purpose, at least partially, by acting and helping to prevent harm which, in my view, only if caused would constitute the tort established by the Law in a manner that would permit collecting damages from the person calling for the boycott. Therefore, it is not repugnant inasmuch as the tortfeasor has a choice (as distinct from the provision under sec. 2(c) of the Law, which deems the call for a boycott to be a tort that justifies compensation even without proof of harm – which I believe must be voided).

            Thus, the Law passes the first subtest of proportionality. Moreover, one of the objectives of tort law is deterrence (see: Amos Herman, Introduction to Tort Law, 4-7 (2006) (hereinafter: Herman); Ariel Porat, Tort Law, vol. 1, chap. 6 (Optimal Deterrence), pp. 25-53 (2013) (hereinafter: Porat)).

 

The Least Harmful Means Subtest

38.       Under the second subtest of proportionality, we must examine whether the legislature chose the means that is relatively less harmful to human rights in comparison to the other available alternatives. The requirement is not that the means chosen be that which is absolutely the least harmful, but rather it is sufficient that the means fall within the “margin of proportionality” (HCJ 7052/03 Adalah v. Minister of the Interior, IsrSC 61 (2) 202, 234-235, para. 68 per A. Barak P. (2006) [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]; the Hamifkad Haleumi case, at p. 784, para. 51, per Naor J.), and that its harm be relatively moderate, even if it is not the least possible harm (HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed  v. Attorney General (published in Nevo) para. 115, per A. Procaccia J. (Sept. 2, 2010)).

            As noted, the purposes that the Law advances are the protection of the state and its values, equality, and individual liberty. Therefore, in order to avoid infringing freedom of expression as far as possible, the restriction of the right must be limited to that required in order to prevent those harms that might be caused by the boycott and that would intrude upon those purposes. Therefore, the Law may not create an excessive “chilling effect” upon political speech, as such, that is beyond what is required to prevent harm to the said purposes. Do the means incorporated in the Law meet that requirement? In order to answer that question, we must first consider the principles of the boycott tort as they appear in the Law, and in each of its subsections, and examine whether each means set forth in sec. 2 of the Law meets the least harmful means test. Following that, we must also examine whether the administrative restrictions imposed under the Law pass this subtest, as well. I shall now proceed to do so.

 

Section 2(a) of the Law

39.       This provision comprises several elements that must be examined.

(A)       The application of the Civil Wrongs Ordinance to the Boycott Tort

Section 2(a) of the Boycott Law establishes as follows:

Anyone who knowingly publishes a public call for a boycott against the State of Israel … commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

We find language similar to that of this subsection in the Prohibition of Discrimination Law, which also applies the Civil Wrongs Ordinance to the tort that is the subject of that law, as follows:

5. (a) An act or an omission in violation of sections 3 and 4 constitutes a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] shall apply to them, subject to the provisions of this Law.

            The significant difference between the above laws is that the Prohibition of Discrimination Law states “shall apply to them”, that is, to the act and omission, whereas the Boycott Law states “will apply to him”, that is, to the tortfeasor. I do not think that we should split hairs in regard to how application to the tortfeasor as opposed to application to the tort might influence the substantive meaning of the Law. There are two reasons for this:

(1)        It would be contrary to the narrow-construction approach that I have recommended in regard to the Law, which is accepted in constitutional interpretation that tends to prefer narrow construction to voiding a legal provision, and which I will discuss in para. 56, below.

(2)        Such an approach would not be consistent with the opinion of Cheshin J. in CFH 5712/01 Barazani v. Bezeq Israeli Telecommunications Company Ltd., IsrSC 57 (6)  385, 408 (2003) (hereinafter: the Barazani case), in which he held (para. 30) as follows:

I also do not find any merit in the arguments of the Consumer Council comparing the phrase “as a tort” in our case to similar but not identical wording in other statutes. Thus, for example, sec. 11 of the Commercial Torts Law, 5759-1999, states “The violation of the provisions of Chapters One and Two is a tort, and the Civil Wrongs Ordinance [New Version] … shall apply to it…” At times we find this wording and at times other wording, and we will not hang mountains by a hair.^[2] The same is true with regard to other statutes that employ various wordings. See, for example: sec. 28 of the Adoption of Children Law, 5741-1981; sec. 5 (a) of the Prohibition of Discrimination in Products, Services, and Entry into Public Places, 5761-2000; sec. 15 of the Banking (Customer Services) Law, 5741-1981, and others. In my opinion, the purpose of the Law in this case is crystal clear, and comparisons to other laws will not succeed [emphasis added – H.M.].

(B)       A rational connection and damage: If the approach I have recommended above is accepted, and we would, indeed, apply the principles of the Civil Wrongs Ordinance to the boycott tort, then it would seem to follow that some of the elements of the tort established under sec. 2(a) of the Law would require damage, and a rational connection between the tort and that damage, as a condition for obtaining relief. This conclusion derives from the opinion of Cheshin J. in the Barazani case. In that case, Justice Cheshin refers to secs. 2(a) and 31(a) of the Consumer Protection Law, 5741-1981 (hereinafter: the Consumer Protection Law). Those sections establish a tort of consumer deceit, but do not expressly state a requirement of damage or of a rational connection, stating as follows:

2. (a) A dealer must not do anything – by deed or by omission, in writing, by word of mouth or in any other manner, also after the transaction has been contracted – which is liable to mislead a consumer in regard to any material element of the transaction (hereinafter – deceit); without derogating from the generality of the aforesaid, the following matters shall be deemed as material for a transaction:

(1) the quality, nature, quantity and category of an asset or service;

(2) the size, weight, shape and components of an asset;

…                   

31. (a) Any act or omission in violation of Chapters Two, Three, or Four shall be treated as a tort under the Civil Wrongs Ordinance [New Version].

            Justice Cheshin noted in this regard that the fact that the requirements of a causal connection and damage do not expressly appear in the above sections does not nullify those requirements, as he states there:

35.       … one doctrine is that of causation, under which – in accordance with sec. 64 of the Civil Wrongs Ordinance – there must be a causal connection between a person’s act or omission – an act or omission that constitute a tort – and the damage incurred by the victim, for which he seeks redress. As stated in sec. 64 of the Civil Wrongs Ordinance: “… a person shall be deemed to be at fault for such damage when the fault was the cause or one of the causes of the damage …

36.       This is also the case in regard to the compensation doctrine. In accordance with sec. 76 of the Civil Wrongs Ordinance, and as has always been the case: a person is entitled to compensation only for damage caused as a result of the tortious act. A person will be entitled to compensation only to the extent of the damage incurred, and as stated in sec 76: “only in respect of such damage which may naturally arise in the usual course of things and which directly arose from the defendant’s civil wrong”. A fundamental principle of tort law is that of restitutio ad integrum, and therefore, a person who did not suffer damage will not be entitled to compensation… Of course, the legislature is free to deviate from this principle, and decide – for various reasons – that a victim be granted compensation without showing that he incurred damage… However, these are but exceptions to the rule [ibid., at p. 401].

            This approach is consistent with the harm principle of the philosopher John Stuart Mill (see: John Stuart Mill, On Liberty (1859); J. Feinberg, Harm to Others (Oxford University Press, 1984); and the principles of corrective justice, see: Porat, at pp. 55-56; Herman, at pp. 9-7), and it also contributes to the distinction that I propose that we make between the validity of secs. 2(a) and 2(b) of the Law, and the voidness of sec. 2(c) of the Law.

             In view of the above, I am of the opinion that a reasonable construction of the Law leads to the conclusion that the tort created under sec. 2(a) of the Law requires damage and a causal connection as preconditions to relief, and that a “potential causal connection” alone would not suffice. Therefore, the requirement of a “reasonable possibility” to show that the call for a boycott might lead to its realization, as it appears in that section, is, in my opinion, a requirement that is additional to that of the normally required causal connection, and that hampers rather than eases the crystallizing of the tort.

            Moreover, from the absence of a requirement of damage in sec. 2(c) of the Law (which I believe should be voided), one might infer a positive requirement of damage in sec. 2(a) of the Law.

            It should be stressed that having found that the boycott tort requires damage as one of the elements of the tort in order for the boycotted party to seek relief from the party calling for a boycott, it is also clear that the tort meets the “near certainty test” (established in HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (2) 871 (1953) [English:  http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case)). On the relationship between the “near certainty test” and the proportionality requirement, see: Barak, Proportionality in Law, pp. 643-650; HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49 (4) 94, 141 per Dorner J. (1995) [English: http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]; Medina, “Forty Years to the Yeredor Decision”, pp. 377-380; Barak Medina & Ilan Saban, “On the Freedom of a Knesset Member to Oppose the Occupation (following HCJ 11225/03 Beshare v. AG),” 37 Mishpatim (Hebrew University Law Review) 219, 231-232 (2007) [Hebrew]. Under the “near certainty” test, when freedom of expression clashes with another interest, we may prefer the other interest only if there is a high probability that the harm to the interest will actually be realized. From this we learn that in the matter before us, in which the boycott tort gives rise to a right to relief only after the realization of the damage, there is no further need to examine the probability of the realization of the infringement of the protected interest, inasmuch as imposing liability is contingent upon harm that caused damage.

(C)       Potential Plaintiffs: Having reached the conclusion that the principles of the Civil Wrongs Ordinance apply to the boycott tort, it is clear that only the direct victim of the tort can sue upon it, in accordance with sec. 3 of the Civil Wrongs Ordinance:

3.         The matters in this Ordinance hereinafter enumerated shall be civil wrongs, and subject to the provisions of this Ordinance, any person who suffers any injury or damage by reason of any civil wrong committed in Israel shall be entitled as against the person committing or liable for such civil wrong to the remedy hereinafter specified.

(D)       Mental element: The section requires that the publication of the call for a boycott be done “knowingly”. This requirement, as well, should be construed as limiting the scope. Thus, in regard to the elements of the tort regarding which there is a requirement of awareness, it must be shown that “according to the content and circumstances of the publication there is reasonable possibility that the call will lead to a boycott” (sec. 2(a) of the Boycott Law).

40.       The above demonstrates that the scope of the restriction upon calling for a boycott under sec. 2(a) of the Boycott Law is limited. Only a person directly harmed, who can prove a causal connection between the call and the damage he incurred and the tortfeasor’s awareness of the reasonable possibility that the harm would transpire as a result of the boycott, can obtain relief (and see: secs. 10, 64, and 76 of the Civil Wrongs Ordinance). Thus it would appear that we are concerned with a burden of proof not easily met by a claimant. Moreover, the section suffices with establishing a civil wrong, and the Law does not comprise an imposition of criminal sanctions upon a person calling for a boycott (this, for example, as opposed to the similar French legislation, as will be explained in paras. 49-51, below). It would, therefore, appear to me that the legislature reasonably exercised its authority in the framework of the “margin of proportionality”, in order to try to prevent the phenomenon of calls for boycott, which could inflict harm.

 

Section 2(b) of the Law

41.       In order to explain the nature of sec. 2(b) of the Boycott Law, I will first present sec. 62(a) of the Civil Wrongs Ordinance, which treats of the tort of causing a breach of contract:

62. (a) Any person who knowingly and without sufficient justification causes any other person to breach a legally binding contract with a third person commits a civil wrong against such third person; provided that such third person will not recover compensation in respect of such civil wrong unless he has suffered pecuniary damage thereby.

            In other words, in order to pursue a cause of action for causing a breach of contract, the claimant must prove five elements (see: CA 123/50 Bauernfreud v. Dresner, IsrSC 5 (1) 1559 (1950)): (a) the existence of a binding contract; (b) a breach of the contract (which realizes the harm, in principle); (c) causation – comprising a causal connection between the causative act and the breach; (d) “knowingly” – awareness of the contract and of the causative connection between the cause and the breach; (e) without sufficient justification. Additionally, the section establishes that a “third person will not recover compensation in respect of such civil wrong unless he has suffered pecuniary damage thereby”.

            Although much has been written on the nature of these five elements, and about the requirement of damage (see: Nili Cohen, Inducing Breach of Contract (1986) (Hebrew)), what has been said thus far is sufficient for the purpose of this discussion.

            We will now proceed to interpret sec. 2(b) of the Boycott Law, which establishes as follows:

In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

            What sec. 2(b) of the Boycott Law means is that if a person called for a boycott and caused financial harm, the person who incurred that harm can sue the person who called for the boycott, and the tortfeasor will not have recourse to the defense of sufficient justification. However, the claimant will still have to prove the additional elements of the tort in order to recover damages. That being so, a person wishing to recover damages by virtue of sec. 2(b) of the Law will also have to prove the following elements in addition to the element of a call for a boycott: causation, as defined under sec. 62(a) of the Civil Wrongs Ordinance, breach, a causal connection between the call for boycott and the breach, the mental element of awareness, and pecuniary damage. Thus to the extent that we find that sec. 2(a) of the law is constitutional, sec. 2(b) of the Law will, accordingly, also be constitutional. I am therefore of the opinion that sec. 2(b) also meets the second subtest.

Section 2(c) of the Law

42.       Section 2(c) of the Boycott Law establishes as follows:

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it will may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

            The damages awarded under the above section are not contingent upon damage, and as such, they do not realize the normal rule of tort law in regard to “restitution as integrum”. That being the case, it would be correct to characterize them as “punitive damages”, which are a type of hybrid creation grounded upon purposes both from the civil area and from the criminal area (see: Elyakim Rubinstein, “Punitive Damages – A View from the Bench,” in Orr Volume – Articles in Honor of Justice Theodore Orr, 99, 99-105 (2013) (Hebrew) (hereinafter: Rubinstein, “Punitive Damages”)). My colleague Justice Rubinstein also addressed the rationale grounding the granting of punitive damages in his opinion in CA 9656/03 Estate of Marciano v. Zinger, (published in Nevo) (April 11, 2005) (hereinafter: the Estate of Marciano case):

The rationale behind punitive damages is not to “rectify” or “repair”, in accordance with the usual approach of tort law, but to punish and deter.  This rationale is neither simple nor self-evident in civil law, but can be justified in particularly severe cases or instances of infringement of constitutional rights, and it can serve to reinforce effective deterrence where the criminal law does not apply [ibid., para. 34].

43.       Punitive damages are not generally awarded. The courts are reticent to grant such damages, which are imposed upon the wrongdoer only in exceptional cases (see: the Estate of Marciano case; CA 140/00 Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter in the Old City of Jerusalem Ltd., IsrSC 58 (4) 486 (2004) [http://versa.cardozo.yu.edu/opinions/ettinger-estate-v-jewish-quarter-co... CA 2570/07 Lam v. Hadassah Medical Organization (published in Nevo) (July 7, 2011); CA 9225/01 Zeiman v. Qumran (published in Nevo) (Dec. 13, 2006), and cf: Rubinstein, “Punitive Damages”, p. 117). Even where the legislature chose to establish damages that are not contingent upon damage, it generally set limits to such damages, and did not leave them “unlimited”, as in the case before us (see, e.g.: sec. 31A of the Consumer Protection Law, sec. 4 of the Right to Work while Sitting Law, 5767-2007; sec. 11 of the Aviation Services (Compensation and Assistance for Flight Cancellation or Change of Conditions) Law, 5772-2012).

            Thus, the imposition of a regime of unlimited punitive damages in regard to the boycott tort deviates, in my opinion, from the bounds of proper proportionality. Where a delicate balance must be achieved in order to ensure minimal infringement of the basic right of freedom of expression, and to refrain as far as possible from creating any unnecessary “chilling effect” upon political expression and vibrant public debate, recourse should not be made to tools that are exceptions in civil law, and that deviate from the classic requirement of damage that is generally a condition for the imposition of a civil obligation, and one of the primary jurisprudential justifications for governmental intervention in the affairs of the individual (see: Mill, On Liberty; the Holder case). Imposing punitive damages would thus make the boycott tort unnecessarily proximate to the criminal sphere, and would overly deter expression (to the extent that it does not have the potential for causing proven harm to society or an individual).

            In light of the above, in my opinion, sec. 2(c) of the Boycott Law does not meet the requirements of the second, least-harmful-means, subtest, and must be declared void.

 

Sections 3 and 4 of the Law

44.       I will first cite the language of sections 3 and 4 of the Law:

                        Directives restricting participation in tenders:

3.         The Minister of Finance is authorized, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to restricting the participation in a tender of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott, including a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control; in this section, a “tender” is defined as any tender that must be administered in accordance with the Mandatory Tenders Law, 5752-1992.

                        Regulations preventing benefits:

4.         (a) The Minister of Finance, in consultation with the Minister of Justice, may decide that someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott:

(1) Will not be deemed a public institution under clause 46 of the Income Tax Ordinance;

(2) Will not be eligible to receive monies from the Sports Betting Council under section 9 of the Regulation of Sports Betting Law, 5727-1967; exercise of the authority under this section requires the consent of the Minister of Culture and Sports;

(3) Will not be deemed a public institution under section 3A of the Foundations of the Budget Law. 5745-1985, regarding the receipt of support under any budget line item; exercise of the authority under this section requires the consent of the Minister appointed by the Government as responsible for said budgetary line, as stated in section 2 of the definition of  “person responsible for a budget line item”;

(4) Will not be eligible for guarantees under the State Guarantees Law, 5718-1958;

(5) Will not be eligible for benefits under the Encouragement of Capital Investment Law, 5719-1959, or under to the Encouragement of Research and Development in Industry Law, 5744-1984; exercise of the authority under this section requires the consent of the Minister of Industry, Commerce and Employment.

(b)        In exercising the authority according to subsection (a), the Minister of Finance will act in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee; however, if no such regulations have been promulgated, it will not detract from the authority under subsection (a).

            From the language of the Law, we learn that the administrative restrictions imposed thereunder are contingent upon a procedure that involves supervision by the Government and by the Knesset. Thus, in order for the Minister of Finance to issue directives that would restrict participation in a tender of someone who calls for or committed to participate in a boycott, as defined by the Law, he must first obtain the consent of the Minister of Justice and the approval of the Knesset Constitution Committee. Denying benefits to someone who calls for or committed to participate in a boycott must be done in consultation with the Minister of Justice, and issuing directives in that regard requires the consent of the Minister of Justice and the approval of the Knesset Constitution Committee. It would seem that the above procedures, required in order to approve the imposition of the restrictions, would serve to lessen the possible infringement of freedom of expression, if only by ensuring that the restrictions would not be imposed arbitrarily.

            But over and above this procedural restriction, I am of the opinion that the infringement caused by preventing the participation in a tender, and all the more so the infringement caused by denying state benefits, are inherently second order infringements, inasmuch as, in principle, the Government enjoys broad discretion in choosing with whom to do business, or to whom to grant financial support. Thus, in the matter of financial support granted by the state, it has been held on more than one occasion that a person or body does not have a vested right to receive state grants. See, in this regard: HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, 53 (5) 337, 385 (1999), where we find:

The state is entitled to grant or not grant support. The state is authorized to provide – or not provide – this and that activity with financial support, and in granting support to a particular activity, to decide how much money it will receive.

            And also see, inter alia: HCJ 5264/05 Shavei Shomron Yeshiva v. Minister of Education, Culture and Sport, (published in Nevo) (Nov. 16, 2005).

            We should further note that in regard to the participation in tenders, sec. 3B of the Mandatory Tenders Law states as follows:

The government, with the approval of the Knesset Foreign Affairs and Defense Committee, may direct, by order, that the State or a government corporation may not enter into a contract for the execution of a transaction as stated in section 2 with a particular foreign country or with a particular foreign supplier for reasons of foreign policy.

            If the Government may do so by order (with the approval of the Knesset Foreign Affairs and Defense Committee), it would seem, a fortiori, that the Knesset may enact a statute (like that before us) in regard to the possibility of denying participation in tenders to certain bodies for reasons that are, by nature, related to reasons of foreign policy or defense of the state (preventing a boycott of the State of Israel, as defined by the Law).

45.       One may also deduce the power of the state to deny benefits from those who use them against the state by analogy to the judgment in HCJ 10104/04 Peace Now – Shaal Educational Enterprises v. Ruth Yosef, Supervisor of Jewish Settlement in Judea and Samaria, IsrSC 61 (2) 93 (2006), which held that local and regional councils in the Area could not use government grants to finance protest activity against the Disengagement Plan. In this regard, Deputy President Cheshin wrote (ibid., pp. 185-186):

We cannot accept that a local council may use support funding provided by the state in order to fight against a state-initiated plan. A person will not be permitted to slap the hand extended to help him.

I concur with the opinion of Justice Dorner and with the opinion of my colleague Justice Rubinstein that it is improper and unacceptable that monies that the state granted to a local authority in support of its day-to-day municipal activity be used to fund the council’s struggle against a state decision. A local council that fights against a state plan, and funds that fight with support funding given by the state for other purposes, does something that should not be done. Such conduct by the council is incompatible with the principle of fairness, as well as with the rules of good governance. This rule is self-evident, and I think there is no need to elaborate [emphasis added – H.M.].

Indeed, the prohibition of “ingratitude” is everywhere a matter of conventional wisdom – both moral and legal –and various cultures have idiomatic expressions for it (in the U.S. “Do not bite the hand that feeds you”, in traditional Jewish sources: “To act like Zimri and be rewarded like Pinchas” (Babylonian Talmud, Sanhedrin 82a).

            Moreover, the administrative restrictions against those who call for a boycott have a kind of internal logic of their own, inasmuch as how can people who call for a boycott request aid from the very bodies that they believe should be boycotted? In this regard, the standard that the Law applies to those who call for a boycott is the standard that they themselves suggest.

            I would further emphasize that the infringement caused by the administrative restrictions also meets the “near-certainty” test. As I shall explain below.

46.       In the context of this case, the “near certainty” test requires that the in order to permit an infringement of freedom of expression, a nearly certain infringement of the protected interest must be shown to exist. Thus, for example, the Kol Ha’am case held that it must be proven to a near certainty that, under the circumstances, granting freedom of expression would cause “nearly certain” harm to public security.

            In the matter before us, the protected interest is not public security. As explained, one of the purposes of the administrative restrictions is the interest in preventing the funding of organizations or persons who call for a boycott against the State of Israel, as defined by the Law, in a manner that discriminates against the state’s citizens by coercive means that, in effect, infringe the free marketplace of ideas, and seeks to impose the views of the boycotters upon those harmed by the boycott. In addition, the administrative restrictions seek to prevent a situation in which a person or organization would “bite the hand that feeds them”, and act with premeditated ingratitude in seeking to exploit the benefits they would receive in order to expand their activities against the one who granted them those very benefits (and compare: the Holden case, and see: Barak-Erez & Zachariah, pp. 574-575).

            Thus, in the event that the benefits and various grants would be given to those who call for a boycott against the State of Israel, the said interest would certainly be harmed. That would be the case whether or not the call would lead to real damage. The reason for this is that, as noted, the very granting of the benefits to those who call for a boycott would involve a transfer of state resources to the benefit of organizations seeking to harm the state and discriminate among its citizens. This is a separate category, also recognized in comparative law, which permits authorities to predetermine situations of “expected ingratitude”, and deny benefits in advance. See: South Dakota v. Dole 483 U.S. 203 (1987; Regan v. Taxation with Representation 461 U.S. 540 (1983); Rust v. Sullivan 500 U.S. 173 (1991) (hereinafter: the Rust case), which held:

A legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.

            That rule was somewhat narrowed by the majority in Agency for International Development et al. v. Alliance for Open Society International, Inc., et al. 570 U.S 1 (2013), in that it held that an organization receiving governmental funding to fight AIDS abroad, cannot be forced to publicly profess – in accordance with the Government’s policy – that it does not support legalizing prostitution, or provide funding for organizations that have not explicitly declared that they are opposed to prostitution. However, that case differs from the one at bar, inasmuch as our case does not require that those who call for a boycott support the Government’s policy against the boycott, but only not to encourage the boycott, and such cases fall within the scope of the rule enunciated in Rust (and compare: HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs, (published in Nevo) (June 4, 2013) [English: http://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs], and in Jewish law in regard ingratitude: Babylonian Talmud, Avoda Zara 5a-b. And see: Nili Cohen, “On Parents, Children and Ingratitude: The Transaction of King Lear,” 14 Hamishpat 381 (2011) (Hebrew); Nili Cohen, “Law, Morality and Ex Turpi Causa,” Orr Volume 259 (2013) (Hebrew)).

            In light of all the above, it would appear that the infringement caused by the administrative restrictions also meet the least-harmful-means subtest.

 

The Proportionality Stricto Sensu Test

47.       Even after finding that the Law serves permissible purposes and falls within the “margin of proportionality” in achieving those purposes, it remains that we examine the Law’s proportionality “stricto sensu”, which is the third subtest of “proportionality”. Prof. Barak explains that the comparison here is not between the advantage in realizing the law’s purpose and the harm caused by infringing the right. “Rather, the comparison focuses only on the marginal effects – on both the benefits and the harm – caused by the law.  In other words, the comparison is between the margins”. In this regard, he adds: “we must consider the hypothetical proportional alternative to the limiting law. If indeed, such an alternative exists, then the comparison between the marginal benefits and marginal harm is made in light of that proportional alternative. Although this alternative was not adopted by the limiting law itself, the lawmaker can still adopt it as an amendment to the limiting law.” (See: Barak, Proportionality in Law, p. 432 [English: p. 350] (emphasis added – M.C.); and see my opinion in the Shlitner case).

            At this stage, we must therefore examine whether the balance between the harm caused to freedom of expression by the Law and the values grounding the Law, and ultimately decide whether one can say that the Boycott Law does not deviate from the proper balance between those values and interests, and therefore passes the “relativity” subtest. In this regard, I am of the opinion that the Law manages, if just barely, to meet the third subtest of relativity, as I shall now explain.

48.       As noted, the Boycott Law applies to those who call for the imposition of a boycott against anyone who has a connection to the State of Israel or an area under its control. In so doing, a person calling for a boycott may inflict harm upon an individual and violate his liberty. Imposing tortious liability upon a person whose call may cause harm to another is not exceptional in Israeli law. For example, sec. 12 of the Civil Wrongs Ordinance states as follows:

12. For the purposes of this Ordinance, any person who joins or aids in, authorises, counsels, commands, procures or ratifies any act done or to be done, or any omission made or to be made, by any other person will be liable for such act or omission.

            The above section also presents a certain infringement of freedom of expression, in that a person who procures another (even if only by speech) to commit a tort is exposed to a tort suit, see: CA 5977/07 Hebrew University of Jerusalem v. Schocken Publishing House Ltd. (published in Nevo) (June 20, 2014); CA 10717/05 Florist de Kwakel B.V v. Baruch Hajaj, (published in Nevo) (Sept. 3, 2013) [English: http://versa.cardozo.yu.edu/opinions/de-kwakel-bv-v-hajaj]; Paul S Davis, “Aid, Abet, Counsel or Procure,” in Chamberlain, Neyeres & Pitel, eds., Tort Law: Challenging Orthodoxy 413 (2013).

            Thus we see that in weighing the overall considerations, the legislator of the Law before us was of the view that the interest in preventing harm justified imposing tortious liability upon the wrongdoer, even at the expense of a certain infringement of freedom of expression. This constitutes something of a complement to the long-accepted principle in our case law that where a person encourages illegitimate discrimination by wrongful speech, the law recognizes the possibility of limiting his freedom of expression. Thus, for example, there is a provision in the Prohibition of Discrimination Law (sec. 4) that somewhat infringes freedom of expression in order to protect the right of an individual to equality:

4.         A person, whose business is the supply of products or of public services, or the operation of a public place, shall not publish any advertisement that includes any discrimination prohibited under section 3 [emphasis added – H.M.].

            However, the infringement of freedom of expression caused as a result of the Boycott Law is somewhat different from the infringement resulting from the torts listed above, inasmuch as the Law may have a “chilling effect” on the freedom of political expression, which is of particular importance in the public arena (see, for example: HCJ 606/93 Kidum Enterprises and Publishers (1981) Ltd. v. Broadcasting Authority, IsrSC 48(2) 1, 12 (1994)). It therefore remains for us to examine whether such an infringement nevertheless meets the requirements of the third subtest of proportionality. On this freighted point, I will “travel” abroad to bring back support from decisions that treated of related subjects and concluded that the infringement is, indeed, proportionate.

49.       The European Court of Human Rights in Strasbourg addressed the infringement of freedom of political expression in the context with which we are concerned, and this is the story:

            In the course of a town-council meeting, Jean-Claude Fernand Willem, the mayor of the French town of Seclin, called for a boycott of Israeli products (primarily citrus juice) due to Israel’s policy towards the Palestinians. That call was also published on the town’s Internet site. Pursuant to that call, a criminal complaint was filed against the Mayor with the public prosecutor, who decided to bring criminal charges against the Mayor for provoking discrimination on national, racial and religious grounds, which is an offense under secs. 23-24 of the French Law on the Freedom of the Press (Loi sur la liberté de la presse du 29 juillet 1881), which establish as follows:

Article 23: Seront punis comme complices d'une action qualifiée crime ou délit ceux qui, soit par des discours, cris ou menaces proférés dans des lieux ou réunions publics, soit par des écrits, imprimés, dessins, gravures, peintures, emblèmes, images ou tout autre support de l'écrit, de la parole ou de l'image vendus ou distribués, mis en vente ou exposés dans des lieux ou réunions publics, soit par des placards ou des affiches exposés au regard du public, soit par tout moyen de communication au public par voie électronique, auront directement provoqué l'auteur ou les auteurs à commettre ladite action, si la provocation a été suivie d'effet.

Cette disposition sera également applicable lorsque la provocation n'aura été suivie que d'une tentative de crime prévue par l'article 2 du code pénal.

Article 24: …Ceux qui, par l'un des moyens énoncés à l'article 23, auront provoqué à la discrimination, à la haine ou à la violence à l'égard d'une personne ou d'un groupe de personnes à raison de leur origine ou de leur appartenance ou de leur non-appartenance à une ethnie, une nation, une race ou une religion déterminée, seront punis d'un an d'emprisonnement et de 45 000 euros d'amende ou de l'une de ces deux peines seulement.

And in English translation:

Article 23: Will be punished as accomplices to an action qualified as a crime or a misdemeanor, those who, either by speech, calls or threats spoken in public places or public assemblies, or by writing, printed, drawings, engravings paintings, emblems, images or all other written support (format), spoken format, or visual image sold or distributed offered for sale or exposed in (public) places or public assemblies, either through billboards or via posters exposed for public access (viewing), or by any method of communication to the public by electronic means, which would have directly provoked the perpetrator (instigator) (single) or perpetrators (instigators)(plural), if the provocation was followed by the effect (or followed by a reaction).

This clause will be equally applicable in situations where the provocation would have been followed just by an attempted crime as provided by section 2of the penal code.

Article 24: … Those who, by one of the methods outlined in article 23, did provoke to discrimination, to hatred or to violence towards a person or towards a group of people by reason of their origin or of their membership (part of) or of their non-membership to a determined ethnic group, a nation, a race or a religion. Will be punished by a one year prison sentence and of a 45 000 Euro fine, or to either of these sentences alone.

            The Mayor was acquitted by the Lille Criminal Court, but the Court of Appeals ruled that the Mayor’s call was tainted by discrimination on national, racial and religious grounds, found him guilty, and imposed a fine of 1000 Euro. That decision was later upheld by the French Cour de Cassation.

50.       The Mayor appealed the judgment to the European Court of Human Rights, which denied the Mayor’s appeal (see: Willem v. France (application no. 10883/05), 10.12.2009).

            The panel of the European Court of Human Rights, composed of judges from Denmark, France, Germany, Liechtenstein, Monaco, Macedonia and the Czech Republic, held, in a majority ruling of 6 to 1 (the Czech judge), that the Mayor was not convicted for his political opinions, but rather because he called for discrimination against Israeli producers and their products. The European Court of Human Rights also found that the French law met the conditions of the European limitation clause, which is essentially similar to the Israeli “Limitation Clause”. The European Court of Human Rights further held that under the French Law, the Mayor was not entitled to undermine the French governmental authorities by calling for an “embargo” on the products of a foreign country, and noted that the penalty imposed upon him was relatively moderate.

            The European Court of Human Rights further held that the decision of the French courts to convict the Mayor was not inconsistent with the right to freedom of expression enshrined in sec. 10 of the European Convention on Human Rights. According to the European Court of Human Rights, the fine imposed upon the Mayor was lawful and intended for a proper purpose – protection of the rights of Israeli producers. The Court based its decision (ibid., para 20), inter alia, on another decision of the French Constitutional Court, in which it was held that a declaration made by a French company that sought to contract with another company from the United Arab Emirates, according to which it would not trade with Israel or transfer goods to it, was unlawful under sec. 225-1 and 225-2 of the French Penal Code. And see: the decision of the European Court of Human Rights in Leroy v. France, Application no. 36109/03 of Oct. 2, 2008.

51.       A similar matter, adjudicated in France and similarly decided, concerned the conviction of Saquina Arnaud-Khimoun by the Criminal Court in Bordeaux for labeling Israeli products with the sticker “Boycott Apartheid Israel”. The court held that Khimoun had hindered the normal exercise of economic activities by making a distinction on the basis of nationality. After the verdict was affirmed by the Appeals Court of Bordeaux, an appeal was filed with the Cour de Cassation (No B 10-88.315), which, in May 2012, reaffirmed the decision of the Appeals Court. For a discussion of the matter, see Rubinstein & Pasha, Academic Flaws, at pp 118-119, which also provides some answer to the Petitioners’ argument that the above cases differs from the Law under consideration, in that the European judgments concerned sanctions imposed upon persons calling for a boycott of a foreign state, whereas the Israeli Law imposes a prohibition upon persons calling for a boycott of their own state. In their book, the learned authors address the exceptional phenomenon of calling for a boycott of one’s own state, and suggest that this is the reason why there are no direct precedents on the matter, stating:

We have not found a parallel example in the United States [to Israeli calls for boycotting Israeli academia – M.C] of academic calls for boycotting the United States – not even in the turbulent times of the Vietnam War. Not even after four students were killed by the National Guard at Kent State University [ibid., p. 118].

52.       Having touched upon comparative law, it would be appropriate to add that in American law, in which freedom of expression is particularly broad, the call for a boycott in the Claiborne case was not disallowed due to the fact that the objects of the boycott had themselves behaved in a discriminatory manner towards African-Americans, and the boycott was intended to eradicate that discriminatory phenomenon by a focused attack upon those boycotted. As opposed to that, in the matter at bar, those being boycotted merely have a connection to the State of Israel, and it is the state that those who call for the boycott claim acts illegitimately. Therefore, it would seem that such a case, to the extent that it results in harm, would not fall within the scope of freedom of expression even in the United States (see the reasoning in the Holder case, as well as the article of Dafna Barak-Erez & Dudi Zechariah, ibid.).

53.       We may thus conclude that in accordance with the above European decisions and the approach we may deduce from the American Holder case, the Law that is the subject of the Petitions falls within the “legislative discretionary space”, sometimes referred to as the “margin of proportionality” or “zone of proportionality” (see: Barak, Proportionality in Law, pp. 505-508) [English: pp. 415-418]). Therein, the question posed before us is not whether the chosen arrangement is the best, but rather whether the chosen arrangement is lawful, that is, whether it falls within the “discretionary space” in which the legislature may act (see my opinion in the Shlitner case).

            I am of the opinion, as stated, that in this case, the arrangement enacted in the framework of the Boycott Law falls within the “legislative discretionary space”, even if one might say that it is at the outer limit of that space.

            The Law, in this case, does not impose a criminal prohibition upon political expressions as such, and the tort that the Law creates applies only to a call for the imposition of a boycott, but does not attribute tortious liability to a person who expresses the political views that underlie the call for a boycott (as long as they do not constitute a call for a boycott). Moreover, the injury to the person calling for a boycott is, as noted, limited: in order for a cause of action for relief under the tort to reach fruition, many conditions must be met: proof of harm, a causal connection between the tort and the harm, and awareness of a reasonable possibility for the realization of the harm. In addition, if tortious liability is attributed to a person calling for a boycott, the damages imposed upon him will not exceed the actual harm that he caused (subject, of course, to my holding as to the unconstitutionality of sec. 2(c) of the Law). The administrative restrictions imposed upon a person calling for a boycott are also proportionate, in view of the procedure required for their approval, and particularly in view of what I pointed out in paras. 44-45 above in regard to the broad discretion granted to a government in regard to the allocation of benefits and grants.

54.       The above holding can also be supported by several additional doctrines that all lead to the same result, which serves to show that in terms of jurisprudence (particularly in the field of public law), the conclusion is correct (see: my opinion in CA 4244/12 Haaretz Newspaper Publication Ltd. v. Major General Ephraim Bracha (published in Nevo) (February 19, 2014)). I will refer to those doctrines below.

 

Additional Approaches supporting the Proposed Conclusion

55.       The conclusion that I have reached is also required by additional constitutional law theories on the subject of annulling laws, which will now be surveyed.

An Interpretation of a Statute that upholds its Constitutionality is preferable to one that would annul it

56.       The above proposition validates the approach that nullifying a law should be the last resort, which should be adopted only when there is no other choice, as Justice Rivlin stated in HCJ 9098 Ganis v. Ministry of Building and Housing, IsrSC 59 (4) 286 (2004) (English: http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing] (hereinafter: the Ganis case). In this regard, our case law has developed a preference for the interpretive approach described by Justice Beinisch in the Ganis case:

Everyone agrees that when the validity of a statute is questioned and a doubt arises as to its constitutionality, the court should first consider whether it is possible to find a reasonable interpretation that will make it unnecessary to decide upon its constitutionality and will allow the statute to exist in harmony with the basic principles of the constitution and the legal system. [ibid., at pp. 290-291, and see the sources cited there in support of that proposition; and see HCJ 5113/12 Friedman v. Knesset, (published in Nevo) (Aug. 7, 2012) (hereinafter: the Friedman case)].

            That is the approach that was adopted by the expanded panel in HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (published in Nevo) (May 28, 2012) (hereinafter: the Association for Civil Rights case). Thus, the path of narrow construction that I proposed for the provisions of sec. 2(a) and 2(b), and secs. 3 and 4 of the Law is preferable to invalidating the said provisions.

            At this point, three additional comments would be appropriate:

(A)       Certain matters are indeed unclear in the provisions of sec. 2 of the Law. However, as noted, that lack of clarity can be mitigated through interpretation. Moreover, ambiguity does not constitute grounds for voiding a law. As a rule, in judicial review we must be careful to observe the difference between the grounds for review under constitutional law (in which the grounds are much more limited) and administrative law (where the grounds are inherently broader). See the Association for Civil Rights case.

(B)       The fear expressed that it might be possible to exercise prior restraint upon a call for boycott by means of a restraining order under the boycott tort is unfounded, inasmuch as it has already been held in a related matter that prior restraint in matters of freedom of expression must be very limited (see: CA 214/89 Avneri v. Shapira, IsrSC 43 (3) 840 (1989); and also cf: Avigdor Klagsbald, “Criminal Offense and Prior Restraint,” 2 Plilim 93 (1991)).

(C)       My proposal to void sec. 2(c) of the Law shows that there are limits to interpretation, and in the absence of an interpretive solution, the provision must be annulled.

 

The Legislature should be granted Deference

57.       In his book Proportionality in Law (ibid., pp. 488-491) [English: 396-399], Prof. Barak sought to reject the doctrine of deference that is accepted in many countries (both in Europe and in the United States), and that constitutes a certain constraint upon the judicial review of laws. Consequently, he characterized the concept of deference as “submission”.

            Justice E. Rivlin – who called for the adoption of this doctrine in appropriate cases – took the view that the term deference should be referred to as respect (for the legislature), see: HCJ 466/07 MK Zahava Gal-On v. Attorney General (published in Nevo) (Jan. 11, 2012), paras. 20-24 of his opinion [English: http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]. A similar position was adopted by my colleague Justice E. Rubinstein in the Friedman case.

            I would like comment in this regard that I believe that the Deference Doctrine can be situated in the framework of the proportionality tests (as for possible alternatives to the legislation – these would be examined in the framework of the second subtest, and the “overall relativity” would be examined in the framework of the third subtest – see: Alan D.P Brady, Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach, 30-34 (2012)).

            If we apply this approach to the matter before us, the result that I have proposed is necessary.

 

The “Margin of Appreciation” Theory also justifies the Proposed Result

58.       The Margin of Appreciation Theory was developed in European law, beginning with the decision of the European Court of Human Rights in Handyside v. The United Kingdom, App. No. 5493/72, 1 EHRR 737 (1979). It was held in that case that the margin of appreciation grants preference to the national legislature and the authorities of the state (that is part of the European Union), including its courts, in interpreting and applying domestic law, by reason of the relevant constitutional principles and circumstances of that state. On the development of the Margin of Appreciation Doctrine over the years, see: John Wadham, Helen Mounfield, Caoilfjionn Gallagher & Elizabeth Prochaska with Anna Edmundson, Blackstone’s Guide to The Human Rights Act 1998, 40-42 (5th ed., 2009).

            In his book Proportionality in Law, Prof. Barak explains the distinction between the “margin of proportionality” [which Barak terms the “zone of proportionality” – ed.] and the “margin of appreciation” as follows:

The notion of the zone of proportionality examines the constitutionality of a limitation on a human right from a national standpoint. It determines the framework of factual and normative data from which the legislator may derive a valid limitation on a human right. The doctrine of the “margin of appreciation” examines the constitutionality of the limitation of a right from the standpoint of the international community. It determines the framework of factual and normative data whose existence allows the international community to provide considerable weight to the factual and normative determinations made by contracting state actors. (ibid., p. 511) [English: pp. 419-420].

 

            Against the background of the similarity and difference between the two doctrines, Prof. Barak considers the place of the “margin of appreciation” in national (domestic) law, and finds that examining this doctrine is important in that it explains the international and foreign case-law to the local judge, and comparative law has a recognized place in constitutional interpretation (see: Barak, Proportionality in Law, pp. 91-94). He concludes:

First, the study of the concept is of major importance, as it may explain and clarify much of the international law decisions and rulings that can also apply locally…But these contributions conclude the role of the concept of margin of appreciation for the national (domestic) judge (see: Rivers “Proportionality and Variable Intensity of Review” 65 Cambridge L.J 175 (2006)). While ruling on domestic issues, the judge should base his or her decisions on the notion of the “zone of proportionality.” At the basis of such a decision is that legal system’s notion of the proper balance between the public interest and individual human rights. (ibid., p. 512) [English trans., p. 421].

            However, there those who are of the opinion that the margin of appreciation theory can also be situated in the “proportionality tests”, and that the “margin of appreciation” even applies to the relationship between domestic law and international law (see: Andrew Legg, The Margin of Appreciation in International Human Rights Law, 194-196 (2012); Paola Bilancia, The Dynamics of The EU Integration and The Impact on The National Constitutional Law, 147 (2012)).

            In view of the decisions of the European Court of Human Rights cited above, it would seem that the provisions established by the Israeli legislature in secs. 2(a) and 2(c) of the Law fall within the Israeli “margin of proportionality”, particularly in light of the “margin of appreciation”. And cf. my opinion in AAA 5493/06 Emanuel Peled v. Prison Service (published in Nevo) (Oct. 12, 2010).

            Moreover, a contrary holding by this Court might undermine the “margin of appreciation” that the European Court of Human Rights has recognized (in regard to France) in connection with the boycott against the State of Israel.

 

The Claim of Discrimination in regard to the enactment of the Boycott Law (in comparison to other boycotts not prohibited by law) must be dismissed

59.       The Petitioners argue that the Knesset chose to enact only a law against calling for a boycott against the State of Israel, as defined by the Law, but refrained from legislatively prohibiting other forms of boycott (such as consumer boycotts, religious boycotts, etc.), which constitutes a form of discrimination that should result in the voiding of the Law.

                        This argument is of no merit. As a rule, a claim of discrimination cannot be raised against the legislature for choosing to address a specific subject while refraining from addressing another, similar situation.

            Such an administrative cause of action cannot be claimed against the legislature, even if we ignore the subject of “lacuna”, “negative arrangement”, and legislative void in constitutional contexts. See: the Association for Civil Rights case.

 

The Ripeness Doctrine in Constitutional Law, as applied to the Matter at Bar, requires that other than the voiding of Section 2(c), the Claims of the Potential Claimants and Potential Defendants in regard to the Law will be examined in Application

60.       The Ripeness Doctrine was adopted into Israeli constitutional law in the Alumni Association case, and was further developed of late in HCJ 2311/11 Uri Sabah v. Knesset (published in Nevo) (Sept. 17, 2014) (hereinafter: the Acceptance Committee case), and see: Chachko, “On Ripeness and Constitutionality”. This doctrine “allows the Court to decide that a decision in regard to a constitutional question before it will be made at a later stage, if at all” (see: HCJ 7190/05 Lobel v. State of Israel (published in Nevo) para. 6 of the opinion of M. Naor J. (Jan. 18, 2006) (hereinafter: the Lobel case)), “due to the absence of a complete set of clear, concrete facts necessary for making a fundamental judicial decision” (the Lobel case, para. 4 of the opinion of M. Naor J.)). Also see: HCJ 3803/11 Israeli Capital Markets Trustees Association v. State of Israel (published in Nevo) (Feb. 5, 2012); HCJ 5440/11 David Hananel (Chen) v. Minister of Justice (published in Nevo) (March 11, 2012); HCJ 7872/10 Jaffa Moslem Council v. Prime Minister (published in Nevo) (June 7, 2012); the Acceptance Committee case.

            In his article cited in para. 6(A) above, Ronen Polliack tried to show that this doctrine should be applied in a relative manner, such that two additional pathways be added, which he views as preferable to the existing pathway: applied judicial review by the High Court of Justice, and applied judicial review by the trial court. In his opinion, the proposed model reflects a more careful balance between applied review and facial review, a subject that has recently been the subject of considerable discussion in the United States (see: Richard H. Fallon, Jr., “Fact and Fiction about Facial Challenges,” 99 Calif. L. Rev 915 (2011)).

            In fact, a similar approach was adopted in the decision in the Acceptance Committee case.

            In my opinion, applying the constitutional ripeness doctrine to the matter before us requires that – other that the striking down sec. 2(c) of the Law – the claims of potential claimants and potential defendants in regard to the Law should be subjected to applied review in the trial courts in the course of suits that may be filed in regard to secs. 2(a) and 2(b), or alternatively, when individual petitions are filed in regard to secs. 3 and 4 of the Law against a concrete decision of the Minister of Finance. We would thus follow the accepted American approach in which constitutional issues generally arise and are examined in the course of an “indirect challenge” and “from the bottom up”. This approach is also accepted in Continental Europe, as we see from the evolution of the case concerning the French mayor, which began in the local criminal court and reached the European Court of Human Rights. This development is particularly apt in the matter before us because, as I have explained, the law views boycotting as a “chameleon concept” that is sometimes acceptable and sometimes prohibited. This approach affects the legal outcome, which is also contingent upon the circumstances.

Conclusion

61.       In light of all the above, only sec. 2(c) of the Law should be struck down, while the remaining provisions should be left in force. This conclusion does not preclude the possibility of raising constitutional questions that have not been decided here at the “applied stage” (when actions brought under the law are examined), however, it would seem that it would be preferable to follow the American and European approach under which cases regarding “calls for boycott” begin in the trial courts (where the claims are examined in the context of concrete facts), and the matter then rises through the judicial system.

62.       Before concluding, I would add that I have, of course, read the opinions of my colleague the President, the Emeritus President, and my other colleagues, and I naturally agree with all of the reasons of those who concur with my position and added other considered reasons to it, as they saw fit. I also have the greatest respect for the views of those who disagree with me, but I have chosen not to open a round of responses and counter-responses, so as not to further lengthen my opinion, and inasmuch as the main points are set out for all, and now that we have decided, the reader can review and criticize in the appropriate forums.

63.       I will conclude in stating – above and beyond the result that I have reached – that, as a rule, it is preferable to follow the historical approach that saw fit to restrict boycotts in their various forms, at home or abroad, except for limited exceptions (among which the boycott against the State of Israel, as defined in the Law, is not included),. Boycotts are generally bad for the entire state (including the Jewish State), and bad both for democracy and for society.

 

Justice Danziger:

I have received my colleague Justice Melcer’s comprehensive opinion, read it, and concluded that I hold a different opinion. In my view, the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Law or the Boycott Law) substantially infringes the right to freedom of expression. In my opinion, that infringement does not meet the tests under the Limitation Clause in sec. 8 of Basic Law: Human Dignity and Liberty. Despite this conclusion, I believe that the degree of that infringement can be substantially lessened by means of interpretation, such that the Law can successfully ford the constitutional tests. Therefore, if my opinion were accepted, we would order that the Law be understood such that – as I shall explain more fully below – only a boycott of an “institution” or “area” that is a boycott against Israel, and that derives from their connection to the state, would fall within the scope of the Boycott Law, whereas a boycott against an “institution” or “area” that is not part of a boycott against the State of Israel would not fall within the scope of the Law’s definition.

1.         My colleague Justice Melcer surveyed the Law’s provisions in detail, as well as its legislative background and the arguments of the parties, and I see no need for repetition. The Petitioners present constitutional arguments. They ask that we strike down the Boycott Law for being repugnant, in their opinion, to Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. The examination of these claims must be carried out in three stages. At the first stage, the question to be examined is whether a constitutional right is violated. If so, then we must proceed to the second stage of constitutional review, in which the constitutionality of the violation is examined in light of the tests set out in the Limitation Clause. In the third stage, which would be addressed only if the Law were to be found unconstitutional, we would decide the consequences of that unconstitutionality (HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attorney General, IsrSC 62 (4) 715, 757 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general] (hereinafter: the Hamifkad Haleumi case); HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481(2005) (hereinafter: the Hof Azza Regional Council case).

 

The Boycott Law and its Infringement of Political Freedom of Expression

2.         My colleague Justice Melcer is of the opinion, with which I concur, that the Boycott Law infringes freedom of expression, and that it, therefore, violates the constitutional right to human dignity. However, my colleague believes that “we are not concerned here with an infringement of the nucleus of freedom of expression, even where political speech is concerned” (para. 21 of his opinion). I cannot agree.

3.         Freedom of expression is a constitutional human right. Its strict defense is an inseparable part of the Israeli constitutional tradition. Freedom of expression was granted far-reaching protection even before the enactment of the Basic Laws. It was made clear already then that freedom of expression is a “supreme value”, and that it “constitutes the pre-requisite to the realisation of almost all the other freedoms” (HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [English:  http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case)). It has further been held that it is “the apple of democracy’s eye” (CrimA 255/68 State of Israel v. Ben Moshe, IsrSC 22 (2) 427, 435 (1968)). With the enactment of Basic Law: Human Dignity and Liberty, freedom of expression was established as a constitutional right. A long line of decisions by this Court have established that certain aspects of freedom of expression – including freedom of political expression – are part of the constitutional right to dignity (see, for example: CA 4534/02 Schocken Chain Ltd. v. Herzikowitz, IsrSC 58 (3) 558, 565-566 (2004); HCJ 2557/05 Majority Camp v. Prison Service, IsrSC 62 (1) 200, 215-218 (2006) [English: http://versa.cardozo.yu.edu/opinions/majority-camp-v-israel-police] (hereinafter: the Majority Camp case); PPA 4463/94 Golan v. Prison Service, IsrSC 50 (4) 136, 156-157 (1996); LCA 10520/03 Ben Gvir v. Dankner (published in Nevo) para. 10 per E. Rivilin J. (Nov. 12, 2006) (hereinafter: the Ben Gvir case); the Hamifkad Haleumi case, paras. 22-26 per M. Naor J, at pp. 760-763; Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, pp 708-712 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)] (hereinafter: Barak, Human Dignity).

4.         The importance of freedom of expression can be learned from its purpose. In its extensive case law on the subject of freedom of expression, this Court has presented three primary purposes grounding the right (see, for example: Ilana Dayan-Orbach, “The Democratic Model of Freedom of Speech,” 20 Iyunei Mishpat 379-384 (1996) (Hebrew); Aharon Barak, “The Tradition of Freedom of Speech in Israel and its Problems,” in Aharon Barak, Selected Essays, (H. Cohn & I. Zamir, eds.) vol. 1, 531, 535-536 (2000) (Hebrew)).

            The first purpose is the search for truth. Grounding this purpose is the approach by which “sunlight is said to be the best of disinfectants”. Only in a free, spirited, and “sophisticated” marketplace of ideas and opinions allows the truth to overcome lies. John Milton expressed this justification in his famous saying: ““Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” (John Milton, “Areopagitica; A speech for the Liberty of Unlicensed Printing, to the Parliament of England,” quoted by Dorner J. in HCJ 316/03 Bakri v. Israel Film Council, IsrSC 58 (1) 249, 270 (2003) [English: http://versa.cardozo.yu.edu/opinions/bakri-v-israel-film-council] (Hereinafter: the Bakri case); the Kol Ha’am case, p. 877).

            The second purpose of freedom of expression concerns autonomy and individual self-fulfillment. “Without the freedom to be heard and to hear, to write or read, to speak or be silent, the individual’s personality suffers, as a person’s spiritual and intellectual development depends upon the ability to freely shape one’s worldview” HCJ 399/85 MK Rabbi Meir Kahane v. Managing Board of the Israeli Broadcasting Authority, IsrSC 41(3) 255, 274 (1987) (hereinafter: the Kahane case); and see: CA 8954/11 Ploni v. Plonit, (published in Nevo), para. 62 per N. Sohlberg J. (April 24, 2014)). Freedom of expression allows the individual, in the words of Agranat J., “to nurture and develop his ego to the fullest extent possible; to express his opinion on every subject that he regards as vital to him; in short, to state his mind, in order that life may appear to him to be worthwhile” (the Kol Ha’am case, p. 878).

            The third purpose concerns democracy. “The principle of freedom of expression is closely bound up with the democratic process” (the Kol Ha’am case, p. 876, per Agranat J.; and see: HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture, IsrSC 38 (3) 233, 238 (1984) (hereinafter: the Klopfer-Naveh case)). Freedom of expression is a precondition for the free flow of the information relevant to living as a community. Indeed, “elections in a democratic system would be unimaginable without a prior exchange of opinions and mutual persuasion” (the Klopfer-Naveh case, p. 239, per Shamgar P.). “A regime that usurps the right to decide what the citizen should know, will ultimately decide what the citizen should think. There is no greater contradiction than this for a true democracy that is not ‘guided’ from above” (HCJ 243/62 Israel Film Studios v. Levy, IsrSC 16 2407, 2415-2416 (1962)). The exchange of opinions and ideas in the free marketplace of speech is a condition for the possibility of changing the government. It is vital to preventing tyranny of the majority. It makes participation in the democratic process possible, and it is, therefore, fundamental to the political community. The right to freedom of expression ensures the legitimacy of the regime. Moreover, freedom of expression provides a means for “letting off steam” that might otherwise be stored up and vented in undesirable ways for lack of a legitimate avenue for release (see: the Bakri case, p. 262).

5.         These objectives of freedom of expression define its scope and the strength of its defense. Freedom of expression comprises a broad spectrum of speech. It applies to commercial and artistic expression, comprises political speech and news reporting, it extends to lies, tasteless statements, pornography, and even racism. But its wide range is met with differing levels of protection of the particular forms of expression. “A violation of the very heart of the right is not equivalent to a violation at its periphery” (the Hamifkad Haleumi case, pp. 760-761, para. 22, per Naor J.). Thus, as a rule, commercial speech will be afforded less protection than artistic expression. Racist speech will generally receive especially less protection. Political speech stands at the top of the ladder. “Freedom of political expression lies at the heart of the right to freedom of speech” (the Hamifkad Haleumi case, p. 761, para. 23, per Naor J.); and see: HCJ 6226/01 Indor v. Mayor of Jerusalem, IsrSC 57 (2) 157, 164 (2003) (hereinafter: the Indor case); the Kahane case, p. 293).  The protection of political speech, more than any other form of expression, ensures a free exchange of the opinion and positions relevant to our communal life. Freedom of political expression allows the individual to express himself within his community. It allows the individual to advance his views and objectives. It is a precondition to political assembly and association. Freedom of political expression is also “more exposed to political harassment by the regime than any other form of expression”, and therefore its protection is of particular importance (HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 289, 303, per Zamir J. (1999)).

6.         And so we arrive at the Law before us.

            The Boycott Law prohibits – in the manner set out therein – “a public call for a boycott” and “committing” to participate in a boycott. In general, a boycott may have various objectives. For example, a boycott may be motivated by economic, consumer or political considerations. The boycott that is addressed by the Law is a political-ideological boycott. The purpose of such a boycott is to “reflect the ethical position of the imposers of the boycott” and “express ideological discontent” (Nili Cohen, “Nili Cohen, “Law, Play, Game - The ‘Merchant of Venice’ and the ‘Breakdown’,” 51 Hapraklit 407, 433-434 (2012) (Hebrew) http://www.hapraklit.co.il/_Uploads/dbsAttachedFiles/Nili_Cohen_Article.pdf) (hereinafter: Nili Cohen, “Law, Play, Game”)). By means of the boycott, the boycotter refrains from supporting and encouraging actions that, in its opinion, are unworthy of its support. In certain senses, the boycott testifies to the “seriousness” of the expression, in that it embodies a readiness to act or refrain from acting. In addition, there are characteristics of a boycott that are not merely declaratory. Boycott is meant to lead change. It advances a practical result. The “tools” of the boycott are economic and social pressure. Boycott is a non-violent means for political change. It is intended to change, lessen or condemn the boycotted conduct.

            A call for a boycott, and a political boycott itself, are consistent with the three primary purposes of freedom of expression. Thus, the call for a boycott contributes its underlying political position to the marketplace of ideas. It allows the boycotting position to vie for its place, attempt to influence other positions and succeed or fail in that attempt. Theresa J. Lee addressed this in her article “Democratizing the Economic Sphere: A Case for the Political Boycott”, 115 W. Va. L. Rev. 531 (2012) (hereinafter: Lee, “Political Boycott”).

'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts. The boycott is precisely a means to persuade others to action, including those being targeted and those inspired to join. This "free trade" in persuasion is why the boycott finds a natural home under the marketplace of ideas theory…

In addition, even when a boycott does not necessarily achieve its ultimate end, it remains a vehicle for forcing the dissemination of an idea. Boycotts make the perhaps otherwise latent dissent visible to a greater number of participants in the marketplace of ideas, highlighting not only their position but also the very existence of the debate [ibid., p. 549].

            In the democratic context, political boycott is a means for achieving political objectives by peaceful means. “Indeed, public boycotting is a tool in the democratic game: it seeks to engender change by non-violent means, and it can be as effective as a legal sanction” (Nili Cohen, ““Law, Play, Game,” p. 433; and see: Lee, “Political Boycott,” pp. 553-556). The political boycott is also a means for self-fulfillment. It allows an individual to express his political views, influence his future, and decide for himself what values will be supported by his resources (see: Lee, “Political Boycott,” pp. 556-558); for further discussion of political boycotts, see: Notes, “Political Boycott Activity and the First Amendment,” 91 Harv. L. Rev. 659 (1977-1978)).

7.         My colleague Justice Melcer is of the opinion that “calls for a boycott against the State of Israel, as defined by the Law, do not serve the classical purpose of freedom of expression” (para. 30 of his opinion). The source of this position is the distinction that my colleague made between the terms “persuade” and “means for coercion”. According to his approach, a call for a boycott is a coercive form of expression, and therefore it should be afforded less protection than that granted other forms of political speech. I do not agree with that position. As I stated, I believe that calling for a boycott is consistent with the objectives of freedom of expression. Indeed, calling for a boycott, like imposing a boycott, comprises coercive characteristics. Calling for a boycott seeks, inter alia, to influence the object of the boycott to change its policy or conduct by inflicting economic, cultural or academic harm. However, that is not its sole purpose. A boycott expresses revulsion for the boycotted conduct. It testifies to a lack of desire to support and finance conduct that the boycotter finds objectionable. These characteristics of boycott justify its protection as a form of expression. True, we should not ignore the coercive elements of boycotting. A boycott can make political discourse superficial. It may put a “price tag” on political or other conduct that is inconsistent with the views of the boycotter. That can result in a “chilling effect” that will remove the boycotted expressions from the marketplace of opinions and ideas. However, as stated, that is not the only characteristic of boycotts. Along with the chilling effect, political boycott also has the potential of enriching the marketplace of opinions. Moreover, even if boycotting harms the boycotted positions, that is insufficient to automatically justify infringing it as a form of expression. The “harm” to the boycotted view as a result of the boycott is imposed by the members of society in the framework of their free activity in the marketplace of ideas. Prohibiting boycotts is not part of the free competition in the marketplace of ideas. As Lee aptly explains in “Political Boycott”:

Claims that boycotts fail to satisfy the values of the marketplace of ideas because they coerce others into not speaking, thus depriving the market of those ideas, must fail. Such claims give the boycott too much credit. Boycotts are only one voice among many; they are a costly form of speech for the speaker and within the market, they can be combated with further speech. As the Court has often made clear, just because one voice is louder does not mean that other voices are being silenced, and even if the danger of drowning out arises, the way to combat it has never been to temper the louder voice… [ibid., p. 549].

            And further on:

While a successful boycott may appear to drown out another position, the remedy is not to silence the boycott but instead for those on the other side to endeavor to make themselves 'louder' [ibid., p. 550].

8.         The decision of the United States Supreme Court in NAACP v. Claiborne Hardware Co., 458 U.S. 886, (1982) (hereinafter: the Claiborne case) reflects this position. In 1966, Afro-American residents of Claiborne County declared a boycott against white businessmen in the county. The purpose of the boycott was to persuade the government to act against racial discrimination and to promote integration. The boycott inflicted financial harm upon the white businessmen, some of whom filed suit against the boycott’s organizers and its supporters. The businessmen won the suit, and 92 of the boycotters were ordered to pay the businessmen damages in a total amount of 1.25 million dollars. The case ultimately reached the Supreme Court of the United States, which reversed the judgment. The Court held that boycotting, organizing a boycott, and supporting it are activities that fall within the compass of protected speech under the First Amendment of the Constitution. In so doing, the Court also held that the fact that the purpose of the boycott was to persuade others to change their views or conduct, and even to coerce them to do so, does not change its character as protected speech. As Justice Sevens wrote:

Petitioners admittedly sought to persuade others to join the boycott through social pressure and the “threat” of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action [ibid., p. 909-910].

And further on:

The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper… Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability [ibid., p. 911].

            And see: Barbara Ellen Cohen, “The Scope of First Amendment Protection for Political Boycotts: Means and Ends in First Amendment Analysis: NAACP v. Claiborne Hardware Co.,” 1984 Wis. L. Rev. 1273 (1984).

9.         The Boycott Law is not directed at any political boycott in general. It treats only of a boycott of a specific type – “a boycott against the State of Israel”. The Law defines this term as “deliberately refraining from economic, cultural or academic ties with another person or body solely because of his connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm (sec. 1 of the Boycott Law). According to its plain meaning, it “grasps” several types of boycotts. The first, self-evident, “type” is a comprehensive boycott against the State of Israel as such. An additional “type” of boycott that is apparently included in the definition is a boycott applying solely to the areas of Judea and Samaria (hereinafter: the Area), even when not ancillary to a boycott of the entire state. Such a boycott would appear to be deemed one that harms an individual or other element solely for its connection to “an area under its control” by the State of Israel. The future of the Area and the settlements located there is the subject of heated political and public debate in Israel. Many publics largely define their political loyalties by their stand on this debate. It would not seem an exaggeration to count the “subject of the territories” as one of the most politically disputed issues in Israel. Indeed, this issue has held a central place in Israeli public discourse for a generation (and compare: Kalman Neuman, Territorial Concessions as an Issue of Religion and State, Policy Paper No. 96, (IDI, 2013) (Hebrew) [http://en.idi.org.il/media/2108337/PP96.pdf]; Yael Hadar, Naomi Himeyn-Raisch, and Anna Knafelman, “Doves and Hawks in Israeli Society: Stances on National Security,” (2008) [http://en.idi.org.il/analysis/articles/doves-and-hawks-in-israeli-societ... Ephraim Yaar & Zev Shavit, eds., Trends in Israeli Society, vol. 2, 1165, 1224 (2003); Menachem Hofnung, Israel - Security Needs vs. the Rule of Law, 282-283 (Nevo: 1991) (Hebrew); Tamir Magal, Neta Oren, Daniel Bar-Tal & Eran Halprin, “Views of the Israeli Occupation by Jews in Israel: Data and Implications,: in Daniel Bar-Tal & Itzhak Schnell, eds., The Impacts of Occupation on Israeli Society (2013) (Hebrew) [http://lib.ruppin.ac.il/multimedia_library/pdf/45558.pdf]; Elisha Efrat, “Return to Partition of the Land of Israel,” in 23 New Directions 78, 81 (2010) (Hebrew); Chaim Gans, “Is There a Historical Right to the Land of Israel?” 24 Tchelet 103, 118 (2006) [English: 27 Azure (2007) http://azure.org.il/article.php?id=32]). And as Justice D. Beinisch so aptly described this in HCJ 7622/02 Zonschein v. Military Advocate General, IsrSC 57 (1) 726 (2002) [English: http://versa.cardozo.yu.edu/opinions/zonstien-v-judge-advocate-general]:

Political conflicts in Israeli society agitate its most sensitive nerves. Israeli society is characterized by its intense ideological conflicts, including conflicts based on reasons of conscience and reasons of religious faith [ibid., p. 735].

            In that case, this Court addressed the lawfulness of the Chief of Staff’s decision not to exempt the Petitioners from military reserve duty in the Area (on this, compare: Chaim Ganz, “Right and Left: Ideological Disobedience in Israel,” 36 Israel L. Rev. 19 (2002)).

            Calling for a boycott in order to express dissatisfaction with the Government’s policy in regard to the Area, to refrain from supporting that policy, or to persuade others to oppose that policy is a form of speech that clearly falls within the scope of political expression, and that is entitled to the full protection that our constitutional regime grants to political speech.

 

The Constitutionality of the Infringement

10.       Even expression that falls within the scope of political expression can be limited by the legislature. Various statutes limit, in one way or another, the voicing of political statements. Many of those laws were surveyed in the opinion of my colleague Justice Melcer (para. 21 of his opinion). That is clear. In spite of its importance, freedom of expression, like other constitutional rights, is not absolute. Other rights and interests may justify its restriction. In order for an infringement of freedom of expression to be constitutional, it must meet the criteria of the Limitation Clause in sec. 8 of Basic Law: Human Dignity and Liberty. As is well known, the Limitation Clause comprises four cumulative tests: the infringement of the constitutional right must be made by a law or by virtue of a law; it must befit the values of the State of Israel as a Jewish and democratic state; it must serve a proper purpose; and it may only infringe the right to an extent no greater than is required. The last condition comprises three subtests, which are: the Rational Connection test, the Least Harmful Means test, and the Proportionality “Stricto Sensu” test.

11.       The application of these criteria differs in accordance with the infringed right. In the case before us, we are concerned with freedom of political expression. I addressed the importance of this right above. Particularly careful, strict review is required in order to justify an infringement of political expression. Justice D. Dorner addressed this in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367 (1997) (hereinafter: the Investment Managers Association case):

As for the test in regard to matching the means to the purpose, the degree of certainty that will be required for matching the means and its effectiveness is influenced by the importance of the right and the reasons that ground it. Where we are concerned with an important right, “near certainty”, perhaps even nearly absolute, that the means will effectively and comprehensively realize its purpose may be required. As opposed to this, where a less important right is concerned, it may be possible to suffice with a “reasonable possibility” for the promotion of the purpose.

As for the test regarding the choice of the means that infringes the right to the minimally required extent, which as noted, is not an absolute test, the choice will be influenced by the infringed right. Where a particularly important, fundamental right is concerned, we will be stricter as to the choice of a means that only minimally infringes it, even if this means choosing a means of significant cost. The rule may be different where a less important right is concerned, whose protection will not require that the state adopt means that may be particularly burdensome.

As for the test in which a balance is struck between the benefit achieved by the purpose and the harm caused by the means for its achievement, that test will be applied – as accepted in the case law that I addressed above, treating of decisions of administrative authorities – in consideration of the nature of the relevant right, the reasons that ground it, and the values and interests harmed in the specific case [ibid., pp. 422-423].

12.       I will already state that, in my opinion, the Boycott Law disproportionately infringes the constitutional right to freedom of expression. This conclusion makes an examination of the other criteria of the Limitation Clause superfluous. In short, I will note that I concur with my colleague Justice Melcer that the Boycott Law befits the values of the State of Israel, and that it is intended to serve a proper purpose. I will address the proper purposes that I believe ground the Law in greater detail in addressing the third subtest of proportionality, when I examine whether the benefit from achieving the purpose justifies the infringement of freedom of political expression. Needless to say, the infringement of the right to freedom of expression by the Law is “by a law” or “by virtue of a law”.

 

Proportionality – Rational Connection

13.       In my view, the Boycott Law meets the first subtest of proportionality – the rational connection test. That test examines whether the means chosen by the Law serve the purposes that the Law is intended to achieve (see, e.g.: Aharon Barak, Proportionality in Law, 373-376 (2010) (hereinafter: Barak, Proportionality in Law)). The purpose of the Law, which I shall address at greater length below, is the prevention of harm to the State of Israel by means of boycott. That purpose is clearly promoted by the Law, the provisions of which are intended to impede the conduct of those calling for a boycott against the State of Israel, and to encourage them to refrain from doing so. On this point, we should note that some of the Petitioners pointed to various statements made by some persons or others in the course of the Knesset deliberations prior to the completion of the legislative process. From these statements, it would seem that those persons were of the opinion that the Law would not promote its intended purpose. An example of such a statement is the position taken by the representative of the Ministry of Foreign Affairs at a meeting of the Constitution, Law and Justice Committee (hereinafter: the Constitution Committee) on Feb. 15, 2011, according to which: “Not only does this bill not help in the fight against the international boycott, it may even harm it”. Another example is the position expressed by the representative of the legal department of the Ministry of Foreign Affairs in the Constitution Committee on June 27, 2011, according to which: “This bill, if passed, may yield the opposite result of its purpose, and increase the boycott phenomenon”. I do not think that we can learn from these statements that there is no rational connection between the provisions of the Law and its purpose. First, the purpose of the Boycott Law is not limited to preventing harm to the State of Israel by an international boycott, but is also intended to apply, perhaps primarily, to “homegrown” boycotts. Moreover, other professional positions were expressed beside those of the representatives of the Ministry of Foreign Affairs. Indeed, as my colleague Justice Melcer pointed out, the fact that some of the Petitioners reported that they, themselves, had been influenced in practice by the Law, and had ceased to call for boycotting products from the Area after its enactment, testifies to a rational connection between the provisions of the Law and it objective of preventing boycotts.

 

Proportionality – the Least Harmful Means

14.       I am of the opinion that the Boycott Law, in all its parts, also meets the requirements of the second subtest of proportionality – the least harmful means test (also referred to as the “necessity test”).  This second subtest examines whether the legislative means adopted least infringes the constitutional right from among the possible means that would realize the proper purpose of the Law. President Barak addressed this test in the Investment Managers Association case:

The legislative means can be compared to a ladder that the legislature climbs in order to reach the legislative purpose. The legislature must stop at that rung at which the legislative purpose is achieved, and that least harms the human right. The legislature must begin at the least harmful “rung”, and slowly climb until it reaches that rung that achieves the proper purpose without infringing the human right more than is required [ibid., p. 385].

            This subtest is grounded upon two premises. The first examines whether there is a hypothetical alternative that can achieve the “same level” of the purpose grounding the law. “However, if a hypothetical alternative means that equally advances the law’s purpose does not exist, or if this alternative means exists but its limitation of the constitutional right is no less than that of the limiting law, then we can conclude that the limiting law itself is necessary. The necessity test is met” (Barak, Proportionality in Law, p. 399) [English: p. 323]. “The second element of the necessity test examines the question whether the hypothetical alternative limits the constitutional right to a lesser extent than the limiting law” (Barak, Proportionality in Law, p. 405) [English: p. 326]. It has been held in this regard that “the means chosen must be of a kind whose infringement of the human right is moderate, but not necessarily the least possibly harmful in the range of possibilities” (HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed and Businesses in Israel v. Attorney General, (published in Nevo), para. 115, per A. Procaccia J.); and see: HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57 (1) 235, 280 (2002); the Investment Managers Association case, p. 420).

15.       It would appear that the Boycott Law meets these criteria. The Petitioners did not propose alternative means that might equally achieve the purpose – preventing harm to the State of Israel by means of a boycott – while harming freedom of political expression to a lesser degree. Thus, some of the Petitioners suggested that the state treasury compensate anyone who is harmed by a boycott against the state as a less harmful means. In my view, such a measure cannot yield the same measure of protection to the purpose. That suggested means, as opposed to the arrangements in the Law, could not be expected to deter those calling for a boycott from continuing to do so. Therefore, it cannot be expected to result in the same chilling effect as the Boycott Law. In practice, in this case, the Law’s infringement of rights and its effectiveness are closely tied. The harm that the Law causes to those who call for a boycott, which is expressed in civil and administrative sanctions, is the means that the legislature chose to achieve the Law’s purpose. Lessening the harm to those who call for a boycott would inevitably result in a lessening of the chilling effect, and would thus render the Law less effective in achieving its purpose. Additionally, compensating those private actors harmed by the boycott would not result in fully attaining the Law’s purpose. The Law is not solely meant to prevent harm to citizens and private actors. The boycott phenomenon harms the public in its entirety. Imposing the costs of the boycott on the public pocket, as the Petitioners suggest, would indeed lessen the harm to private actors, but would not lessen the public harm. In practice, the public harm, in turn, would translate into harm to the pockets of the citizens of the state. It is elementary that “harm to the public pocket … harms the public in its entirety” (CFH 3993/07 Jerusalem Assessment Officer 3 v. Ikafood Ltd., (published in Nevo), para 10, per E. Arbel J. (July 7, 2011)). In this regard, my colleague Justice Rubinstein aptly wrote in  AAA 7335/10 Rehabilitation Officer, Ministry of Defense v. Lupo, (published in Nevo) (Dec. 29, 2013), in regard to the importance of public resources:

It is elementary that the public pocket is not infinitely deep. Slicing and distributing the budgetary pie is like a blanket that is too short to cover the entire bed in view of the responsibilities and challenges facing the state in the fields of education, security, public welfare, etc. [ibid., para. 27].

            Another of the Plaintiffs’ claims is that there are existing legal devices that would suffice to achieve the Law’s purpose without infringing constitutional rights. This argument is not persuasive. Even if existing legal apparatuses could make it possible to contend with the boycott phenomenon to some extent, they cannot realize the said purpose to a similar extent. The fact that the Petitioners think that the existing apparatuses are less harmful to those calling for boycotts demonstrates this problem and shows that even according to the Plaintiffs’ approach, the chilling effect created by the existing law is not equivalent to that created by the Boycott Law.

16.       My colleague Justice Melcer takes the view that sec. 2(c) of the Law does not meet the criterion of the least harmful means. I, too, believe that this section unjustifiably infringes freedom of political expression and must be struck down. However, in my opinion, the reason for this is a lack of proportionality “stricto sensu”, and not a failure to meet the least harmful means test. It should be emphasized that the conclusion that there are no alternative means to be found that would achieve the Law’s purpose to the same “extent” while posing a lesser threat to freedom of political expression, does not mean that the Law is constitutional. However, “the same is true in those cases where the alternative, less limiting means are available, but the advancement of the law’s purpose is lesser than that of the limiting law. Here, too, the necessity test is of no assistance to the limited right” (Barak, Proportionality in Law, p. 415 [English: p. 338]). In such a case, the focus of constitutional review moves to the third subtest. As Barak writes in his book Proportionality in Law:

Judges should be honest with themselves. They must speak the truth and the truth is that in many cases the judge reveals that an alternative means that limits the right in question to a lesser extent does exist; but upon further examination it turn out that these means may not achieve the law’s purpose in full, or that in order to achieve those purposes in full the state has to change its national priorities or limit other rights. In those cases, the judge should rule that the law is necessary, and that the less limiting means cannot achieve the intended legislative purpose. Then, the judge must proceed to the next stage of the examination – and determine the constitutionality of the law within the framework of proportionality stricto sensu [ibid., pp. 416-417 [English: pp. 338-339]].

 

            We will now turn to the application of this subtest.

 

Proportionality – Proportionality “Stricto Sensu”

17.       The third subtest – that of proportionality “stricto sensu” – is a balancing test. “This is the most important of proportionality’s tests” (Barak, Proportionality in Law, p. 419 [English: p. 340]). It examines the proportionality between the social benefit inherent in achieving the Law’s purpose and the harm that may be caused to the protected right – in this case, freedom of political expression – as a result of the Law’s application. It focuses upon the marginal addition – positive and negative – of the examined law. This subtest addresses the “comparison between the proper purpose before and after the enactment of the law, and the situation of the human right before and after the enactment of the law” (Barak, Proportionality in Law, p. 433). Conducting this comparison requires an examination of the extent of the harm to the constitutional right, on the one hand, and the social benefit from achieving the legislative purpose, on the other. After placing the harm and benefit on the scales, they must be balanced, and it must be decided thereby which is to be afforded the greater weight. As noted, the balancing equation changes in accordance with the nature of the infringed right. In the matter before us, we are concerned with a “heavy” right – freedom of political expression. We are thus concerned with the “Kol Ha’am equation”, which requires a “near certainty” of real harm to an important public interest in order to justify infringing freedom of expression (the Kol Ha’am case, pp. 893-887; and see: the Bakri case, p. 263; Barak, Proportionality in Law, p. 631).

 

Proportionality “Stricto Sensu” – The Infringement of the Right

18.       The Boycott Law clearly and directly infringes the right to freedom of political expression. It establishes civil and administrative sanctions for political statements. The right to freedom of expression indeed includes the right not to be harmed by its realization (compare: the Majority Camp case, pp. 218-219). In the instant case, we are concerned with a particularly severe infringement, inasmuch as it is premised upon the content of the speech (compare the American rule of thumb, by which “[An] act would be content based if it required 'enforcement authorities' to 'examine the content of the message that is conveyed to determine whether' a violation has occurred” (McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) per Roberts CJ). The Boycott Law does not prohibit every type of call for a boycott. For example, it does not prohibit a call for a boycott of a person by reason of his association with any political position, whatever it may be. It also does not prohibit calls for boycotting a person by reason of his place of residence, wherever it may be. Its effect is limited to calling for a boycott against a person by reason of his connection to the State of Israel or the Area. In the Israeli political reality, calls for boycotting the State of Israel, and primarily calls for boycotting the Area, are voiced by only one side of the political map. A content-based limitation of freedom of expression, especially freedom of political expression, is particularly suspect. It comprises a breach of the neutrality that the state should exercise when acting as a “regulator” of the marketplace of ideas. Such intervention in the “rules of the game” endangers the marketplace of ideas and the free flow of information. It violates the democratic process. It undermines the protection that freedom of expression provides against tyranny of the majority. Discrimination also inheres in such a breach of state neutrality. It reflects a measure of preference for one opinion as against another. Such a preference harms the ability of those who hold a “silenced” political position” to compete on an even playing field for the place of their view in public opinion (and compare the Indor case, which struck down a decision by the Jerusalem Municipality to prohibit the publication of an advertisement due to its content).

19.       The rejection of content-based restrictions on freedom of expression while creating viewpoint discrimination, is a fundamental principle of American constitutional law. The principle has two main purposes. The first is the prevention of governmental action motivated by extraneous considerations or improper justifications. The second is the prevention of skewing the marketplace of ideas (see: Cass R. Sunstein, “Half-Truths of the First Amendment,” 1993 U. Chi. Legal. F. 25, 26-27 (1993) (hereinafter: Sunstein); and see the discussion of these purposes in Amnon Reichman, "The Voice of America in Hebrew – The US Influence on Israeli Freedom of Expression Doctrines," in Michael Birnhack, ed., Quiet, Someone is Talking: The Legal Culture of Free Speech, 185, 192-193 (2006) (Hebrew) (hereinafter: Reichman); and see: Elena Kagan, “The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion,” 1992 Sup. Ct. Rev. 29 (1992)). As Sunstein explains:

The notion that the First Amendment bans skewing effects on public deliberation is connected with the idea that government may not distort the deliberative process by erasing one side of a debate. Above all, government may not distort the deliberative process by insulating itself from criticism. The very freedom of the democratic process depends on forbidding that form of self-insulation [ibid., p. 27].

            Indeed, in a long line of decisions, the United States Supreme Court held that content-based prohibition of expression is incompatible with the First Amendment of the Constitution. Thus, for example, R.A.V. v. St. Paul, 505 U.S. 377 (1992) concerned the review of an ordinance that prohibited the placing of symbols – including a burning cross or a swastika – on private or public property in a manner that arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender. The Court held that the ordinance was incompatible with the right to freedom of speech. The Court found that the statute prohibited only “fighting words” that could insult or provoke violence, and it is, therefore, possible that the government could comprehensively prohibit such expressions. However, the government is not permitted to prohibit only certain expressions of this type while permitting others. In this case, expressions arousing anger or resentment on the basis of race were prohibited, while, for example, expressions arousing anger or resentment on the basis of, for example, political views or sexual orientation were not prohibited. As Justice Scalia explained:

[T]he ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas -- to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality – are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects… [ibid., p.391].

            The Supreme Court further held that the problem with the ordinance was, inter alia, that it prohibited the use of certain expressions – “fighting words” – only on one side of the political divide. Thus, one side is permitted to “fight freestyle” while the other side must show good sportsmanship, and fight by the Marquis of Queensberry rules. Justice Scalia wrote:

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words – odious racial epithets, for example – would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender – aspersions upon a person's mother, for example – would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents. One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules [ibid., p. 391-392].

            These words are also appropriate to the matter before us. The Boycott Law does not prohibit all forms of boycotts. It only prohibits a specific type of boycott that expresses a particular political view. The law thereby creates viewpoint discrimination. Such discrimination grants an advantage to one side of the political divide, while forcing only one of the sides to act according to the Marquis of Queensberry rules in the political arena. Such influence is particularly serious when the view protected by the law is, in effect, the view of the government. In this regard, the words of Justice Kennedy (who was in the minority in regard to the result in the case) in Hill v. Colorado, 530 U.S. 703 (2000) are appropriate:

Laws punishing speech which protests the lawfulness or morality of the government's own policy are the essence of the tyrannical power the First Amendment guards against [ibid., p. 787].

20.       My colleague Justice Melcer is of the opinion that the administrative sanction – preventing participation in a tender and restrictions on obtaining benefits – constitute merely “second order” infringements of freedom of expression. Indeed, as my colleague notes, the state enjoys broad discretion in deciding with whom to transact and which entities to support. Private entities do not enjoy a vested right to government support (see: HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, 53 (5) 337, 384 (1999) (hereinafter: the Masorti Movement case); HCJ 5364/05 Shavei Shomron Yeshiva v. Minister of Education (published in Nevo) (Nov. 16, 2005) (hereinafter: the Shavei Shomron case); HCJ 11020/05 Panim For Jewish Renaissance v. Minister of Education, Culture and Sport (published in Nevo) (July 16, 2006) para. 10 (hereinafter: the Jewish Renaissance case)). However, once the state has decided to support a certain type of activity, it must do so in accordance with the rules of administrative law. In doing so, it must employ “relevant considerations grounded upon considerations that relate to the substance of the supported activity, as distinct from the entity receiving the support” (HCJ 11585/05 Israel Movement for Progressive Judaism v.   Ministry of Immigrant Absorption (published in Nevo) May 19, 2009) para. 11) (hereinafter: the Movement for Progressive Judaism case)). It must distribute the support monies “among public institutions of the same type on the basis of equal criteria” (Sec. 3A of the Budget Foundations Law, 5745-1985). An authority is not allowed to distinguish among entities that are substantively members of the same “equality group” in a discriminatory manner, and may not make distinctions that violate protected fundamental rights. Justice I. Amit addressed these principles in AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality (published in Nevo) (Sept. 14, 2010) (hereinafter: the Open House case) [English translation: http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality]:

As a rule, no entity has a vested right in the receipt of support from the state ... However, once an authority has declared its intent to provide support and establishes criteria under which institutions will receive support, these criteria must comport with the principle of equality... The same principle applies to both support in general and to any specific benefit [ibid., para. 34].

            Justice Amit further stated in the Open House case that in distributing financial support or subsidies “require the administrative authorities to exercise their powers in a manner that protects the values protected by said Basic Laws” (ibid., para 35).

21.       These principles are a common thread in a long line of decisions treating of criteria for granting support (see, e.g: HCJ 59/88 MK Tzaban v. Minister of Finance, IsrSC 42 (4) 705, 706-707 (1989); HCJ 2196/00 Israel Camerata Jerusalem Orchestra v. Minister of Science, Culture and Sport, IsrSC 58 (4) 807, 814-816 (2004); HCJ 3354/12 Zankol Ltd. v. Government of Israel (published in Nevo) (Aug. 18, 2014) para. 15; HCJ 2021/11 Vaaknin v. Minister of Finance (published in Nevo) (June 6, 2013) para. 16). Thus, for example, the Movement for Progressive Judaism case addressed the validity of the rules for the distribution of support to conversion institutes. Those rules established that only Orthodox conversion institutes would be eligible for support. This Court held that the state is not required to support private conversion institutions. However, having decided to support such institutions, it must distribute the funds on the basis of relevant considerations, and without creating distinctions that violate fundamental rights. Therefore, it was held that the state was not permitted to discriminate against the Progressive Movement’s private conversion institutes on the basis of their religious views. It was held that such a distinction violated the right of the Reform conversion institutes to freedom of religion. As President D. Beinisch wrote:

It would appear undeniable that, in practice, the state does not wish to support the Petitioner because it has a religious outlook that is different from the one the state chooses to advance.  That is an irrelevant criterion for funding, on its face.  Furthermore, by doing so, the government shows preference for one religious outlook over another, consequently causing inappropriate damage in the proper "free market" of religious views that should be preserved.  This leads to the conclusion that the criteria for funding stand in contradiction to the state's duty to protect the religious freedom of the Petitioner, and discriminate on the basis of its religious outlook [ibid., para. 16].

            The above also applies to the matter before us. Just as the state may not discriminate among entities on the basis of their religious beliefs, so it cannot discriminate among them on the basis of their political statements. Both the first form of discrimination and the second form of discrimination constitute a violation of a constitutional right. Both harm the “free marketplace” of ideas. In the absence of relevant justification related to the nature of the supported activity, the state’s duty to maintain neutrality in exercising its regulatory authority does not permit it to distinguish among entities seeking support due to the manner by which they realize their right to freedom of expression. It must be emphasized that the state may support one type of activity but not another, It may promote its policy, inter alia, by providing financial support for matters that are the subjects of public debate. But, having decided to support an activity – no matter how hotly debated – the state may not distinguish among entities involved in such activity on the basis of considerations that are not relevant to the purpose of the support and that might violate constitutional rights. Thus, for example, the state may allocate funds in support of Torah study institutes, a matter that may be the subject of public debate (see: the Shavei Shomron case; the Masorti Movement case), but it may not distinguish among institutions operating in that area without relevant justification related to the purpose of the support. It cannot, for example, distinguish between two otherwise identical institutions, even in terms of their religious merits, simply because one of the institutions publicly expresses support for the political views of the ruling party or of a coalition partner, while the other does not.

22.       An example of this distinction can be found in Agency for International Development. v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013). In that decision, the United States Supreme Court addressed a law that provided generous federal grants to private agencies working to fight the spread of the HIV virus and AIDS. The law required that in order to receive the funding, the supported agency must adopt a policy explicitly opposing prostitution. The United States Supreme Court held that the restriction violated the constitutional right to free speech. It held that, as a rule, the fact that activity does not receive funding does not violate the rights of an entity that does not receive support. However, in order for a restriction related to the applicant’s views to be valid, it must be relevant to the funding program, and must be related to the funded activity itself. A restriction that lies “outside the contours” of the program in a manner that “leverages” the grant in order to interfere in the marketplace of ideas may not stand up to constitutional review. As Chief Justice Roberts wrote:

[T]he relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program – those that specify the activities Congress wants to subsidize – and conditions that seek to leverage funding to regulate speech outside the contours of the program itself [ibid., p. 2328].

            The Court further held that the said restriction conditioning the grant upon adopting the government’s position on prostitution did not meet the tests of constitutionality. It was held that such a restriction was not relevant to the definition of the nature of the supported activity – in this case, the fight against AIDS/HIV – and was intended to influence those receiving the funding in a manner unrelated to that fight. As Chief Justice Roberts explains:

By demanding that funding recipients adopt – as their own – the Government's view on an issue of public concern, the condition by its very nature affects “protected conduct outside the scope of the federally funded program”… A recipient cannot avow the belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient [ibid., p.2330].      

            That is consistent with the view of this Court in the cases cited above. In my opinion, they also serve to show that the Law’s administrative sanction substantially violates freedom of political expression. In sec. 4, the Boycott Law authorizes the Minister of Finance to establish that a person who publishes a call for a boycott against the State of Israel will not receive various governmental benefits. The Law does not limit its scope to those activities and forms of support that are relevant to the boycott phenomenon or to promoting the international standing of the State of Israel. The general authorization that it grants for denying support to any entity that calls for imposing a boycott against the State of Israel, and primarily, to any entity that calls for the imposing of a boycott against a person by reason of his connection to the Area, permits a priori consideration of the political views of the funded entity, divorced of any connection to the purpose of the actual grant. This problem can be demonstrated by means of sec. 4(a)(2) of the Boycott Law. This section authorizes the Minister of Finance, with the consent of the Minister of Culture and Sports, to decide that anyone calling for a boycott against the State of Israel will not be entitled to receive funds granted under sec. 9 of the Regulation of Sports Betting Law, 5727-1967 (hereinafter: the Regulation of Sports Betting Law). Section 9 of the Regulation of Sports Betting Law establishes that monies distributed thereunder be used “to promote and develop physical culture, physical education, and sports in Israel”. The subsections of sec. 9(b1) of that law itemize the particular details of that purpose, establishing that grant funds be used, inter alia, to support “the basic infrastructures of sports”; “sports associations and clubs”; “women’s sports and sports in areas of national priority”; and to support “popular amateur sports”. The declared political view of a funded entity is a consideration that deviates from the above criteria. The fact that a particular entity calls, for example, for a boycott of certain products produced in the Area is irrelevant to its contribution “to promote and develop physical culture, physical education, and sports in Israel”. It is a consideration that concerns the funded entity and not the nature of its funded activities. Taking account of that consideration in the context of the Regulation of Sports Betting Law violates the funded entity’s freedom of expression and forces it to refrain from realizing its constitutional rights in areas that are unconnected to its funded activities. As earlier noted, taking that consideration into account may even lead to discrimination against those who call for a boycott against the State of Israel or the Area as opposed to those that hold other political views, even if they choose to express those views by means of calling for imposing a boycott. This situation can be compared, for example, to denying benefits to entities that have a particular religious character.

23.       It is fitting in this context to draw a distinction between calls for a boycott against the State of Israel and calls for a boycott against the Area. The question of Israeli control over the Area is a subject of heated political debate (see para. 9 above, and the references cited there). Calling for a boycott against the Area is “within” the Israeli political debate, and is not comparable to calls for a boycott of the entire state. Therefore, one might be of the opinion that while the consideration of preventing a boycott of the Area is irrelevant to the purposes of some of the types of funding mentioned in the Boycott Law, the consideration of preventing a boycott of the State of Israel might be deemed relevant to such funding. That relevance is grounded upon the general principle that a democratic state may defend itself against those who seek to do it harm. Indeed, in the past, this Court has recognized the authority of administrative authorities to weigh general public considerations, even when such considerations are not directly connected to the exercised authority. Thus, for example, in HCJ 612/81 Shabo v. Minister of Finance, IsrSC 36 (4) 296, 301 (1982), the Court held that the Director of Customs and Excise may weigh road-safety concerns as “general public considerations”. In AAA 8840/09 Bauer v. National Planning and Building Board Appeals Subcommittee (published in Nevo) (Sept. 11, 2014) para. 13 per H. Melcer J., it was held that planning boards could take account of considerations of harming religious sentiments as a “general consideration”. It has also been held that planning authorities may weigh general considerations “of protection of the rule of law and deterrence of criminal behavior” (AAA 9057/09 Inger v. Hashmura Ltd. (published in Nevo) (Oct. 20, 2010) per U. Vogelman J.), and that in declaring a particular phenomenon to be a “natural disaster”, the Minister of Agriculture may weigh, as a “general consideration”, the financial burden on the state treasury (HCJ 3627/92 Israel Fruit Growers Association Ltd. v. Government of Israel, IsrSC 47 (3) 387, 391 (1993)). In the instant case, no significant question of authority arises, inasmuch as the consideration of preventing boycotts is explicit in the Boycott Law. However, by analogy to the above decisions, one might take the view that the consideration of preventing a boycott against the State of Israel may be a general consideration that would justify withholding governmental support from those who frontally oppose the state. That general consideration is not extraneous to any provision authorizing administrative agencies to grant support, inasmuch as it derives from the general principle that permits the state to refrain from directly supporting those who oppose it.

24.       My colleague Justice Melcer is of the opinion that the administrative sanctions in the Boycott Law are consistent with “the power of the state to deny benefits from those who use them against the state” (para. 45 of his opinion). My colleague does not distinguish in this regard between a boycott against the state and a boycott against the Area. He basis that position on HCJ 10104/04 Peace Now – Shaal Educational Enterprises v. Ruth Yosef, Supervisor of Jewish Settlement in Judea and Samaria, IsrSC 61 (2) 93 (2006) (hereinafter: the Peace Now case), which addressed the question of whether a local council in Judea and Samaria could use its budget in order to oppose the implementation of the Disengagement Plan. The opinion of the Court was divided in that case. Deputy President Cheshin, who was in the minority in this matter, was of the opinion that local councils, as statutory bodies, were not authorized to act against the Disengagement Plan, inasmuch as, in his opinion, that plan would not directly affect the municipal welfare of the residents of the local councils. Justice Cheshin further held that even if the local councils were authorized to do so, they could not use state funding for that purpose. Justice Cheshin held that a local council’s use of state funds in order to oppose governmental policy “is inconsistent with the fairness doctrine and the principles of good government”. In doing so, Justice Cheshin adopted the view of Justice D. Dorner in HCJ 2838/95 Greenberg v. Katzrin Local Council, IsrSC 53 (1) 1, 23 (1997) (see the Peace Now case, p. 186, para. 39, per M. Cheshin DP), in which Justice Dorner noted that “indeed, the possibility of protesting against the Government’s policy is vital to a democratic state, but it is not within the scope of authority of local councils”. Thus, Justice Cheshin’s opinion in the Peace Now case was based upon the fact that the authorities that were the subject of the opinion were statutory bodies that are subject to the principle of administrative legality. That is the general context of the decision, which primarily focused upon the question of authority. The opinion of Justice D. Beinisch in the Peace Now case clarifies in this regard:

In my view, we must distinguish between the clear interests of the residents in regard to their continued residence and life in the area of the local council and the interest of the local council in this regard. A decision to dissolve the local council may be of decisive importance in the lives of its residents. They may, of course, adopt every lawful democratic means at their disposal to fight the Government’s decision in regard to the local council. However, the local council itself was established in order to realize the purposes that inhere in the powers granted to it by law, and therefore, its continued existence as a local council is not, in my view, an independent purpose [ibid., p. 200, para. 3, per D. Beinisch J].

            Such reasoning is not relevant to private entities, and they – and not administrative agencies – are the objects of the Boycott Law. In regard to private entities, the legality principle applies in reverse (and cf: LCrimA 10141/09 Ben Haim v. State of Israel (published in Nevo) (March 6, 2012) para. 3 of my opinion). Individuals in a society, as opposed to local councils, are not part of the government. Their opposition to its policies does not violate the rules of good governance. It does not give rise to the problem inherent in an action of an organ against the body to which it belongs. Moreover, as opposed to a local council, individuals enjoy the constitutional right to freedom of expression in its full scope. While the role of governmental agencies is, in the sphere of their authority, to ensure the freedom of speech to the members of the society (sec. 11 of Basic Law: Human Dignity and Liberty), the members of that society are the subjects of that right, not its defenders. Therefore, even if it is possible to countenance a certain limitation upon funding those who call for a boycott against the State of Israel, that restriction cannot be based upon the reasoning of the Peace Now case. That is not to say that it would not be proper to recognize a general principle that, in certain cases,  would justify refraining from granting support to those who call for action against the supporting body – in this case, the state. Where a boycott against the State of Israel is concerned, such a justification may be derived from the principle of defensive democracy, which I shall address presently. However, inasmuch as the Boycott Law is directed at private entities, and because the Law substantially infringes freedom of political expression, that infringement must pass the tests of the Limitation Clause and be justified by a substantial interest in preventing nearly certain, substantial harm to an important public interest.

25.       One might further add that the tortious and administrative sanctions of the Law, which impede those who call for a boycott against the State of Israel, and particularly those who call for a boycott against the Area, are inconsistent with the principle of pluralism. This principle, which has been recognized in the case-law of this Court as an expression of the principle of equality (the Progressive Judaism case, para. 17), supports granting a voice to the entire spectrum of views and positions of society. Pluralism is tightly bound to freedom of expression. Without freedom of expression, there can be no pluralism. Without granting the possibility of expressing different opinions, including extreme positions that are not at the heart of the consensus, pluralism and the democratic process suffer. In this regard, the words of Justice I. Zamir in the Masorti Movement case are apt:

In a democratic society, different groups among the public, including spurned minorities, have the right to express themselves in the fields of culture, religion and tradition, each in its own way, and each according to its own beliefs. Moreover, it is advantageous to society that there be a variety of beliefs, lifestyles and institutions.  Variety enriches. It expresses vitality; it contributes to the improvement of life; it gives practical meaning to freedom. Freedom is choice. Without the possibility of choice between alternative paths, the freedom to choose one’s path is mere rhetoric. This is the heart of pluralism, which is a vital, central element of democratic society not only in politics, but also in culture and religion: a variety of paths and the possibility to choose among them [ibid., pp. 375-376].

            And see Justice E. Arbel in the Jewish Renaissance case:

The assumption is that pluralism is a basic, vital element of proper democratic life, because it is variety that expresses democracy in practice. A democratic state respects all of its streams, views and differences, grants them the space to live and thrive, and even supports them equally. A democratic society cannot merely suffice in providing the possibility for allowing different streams to exist; it must grant equal financial support to all of them. This does not mean that the state must support any particular activity. But once the state has decided to support a certain activity, it cannot discriminate against a particular group that performs that activity simply because of its identification with a particular stream [ibid., para. 90].

26.       Additionally, I would note that, in my opinion, no analogy can be drawn in this matter fron sec. 3B of the Mandatory Tenders Law, 5752-1992, to which my colleague Justice Melcer referred. That provision authorizes the Government to prevent governmental agencies from transacting with “a foreign state” or “a foreign supplier” “for reasons of foreign policy”. As opposed to that provision, the Boycott Law is not limited to reasons of foreign policy. It also applies, and perhaps primarily applies, to the residents and citizens of the state. It acts to prevent boycotting of the State of Israel, as well as boycotting of the Area. Of course, in regard to the residents and citizens of the state – who are members of Israeli political society and who enjoy the full scope of the constitutional right to freedom of expression – a significantly more substantial justification is required than that needed to categorically restrict the possibility of certain foreign actors to participate in tenders (and in regard to the consideration of a person being a foreigner, cf., for example: HCJ 5627/02 Saif v. Government Press Office, IsrSC 58 (5) 70, 75 (2004) [English trans: http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]; and on the different treatment due to an enemy detained by the state as opposed to an enemy operating from a foreign state: CFH 5698/11 State of Israel v. Dirani (published in Nevo) (Jan. 15, 2015)).

27.       We thus see that the Boycott Law prohibits the voicing of statements based on their content. It does so by means of ex post harm to a person expressing himself in a manner prohibited by the Law, by imposing civil and “administrative” sanctions. Along with this, the Law also comprises an ex ante harm that is expressed in the deterrent, chilling effect created by its provisions. Freedom of expression can, of course, be infringed by restricting it in advance. That is the case, for example, with censorship (and cf., for example: HCJ 4804/94 Station Film Co. Ltd. v. Film Review Board, IsrSC 50 (5) 661 (1997) [English trans: http://versa.cardozo.yu.edu/opinions/station-film-co-v-film-review-board]; the Bakri case), when holding a demonstration is prohibited (see, e.g: HCJ 153/83 Levi v. Commander of the Southern Police District, IsrSC 38 (2) 393 (1984)), when posting advertisements is prohibited (e.g: the Indor case, p. 164), or when voicing statements in any other way is prohibited (cf., for example: HCJ 2194/06 Shinui - The Center Party v. Chairman of the Central Elections Committee (published in Nevo) (June 28, 2006); the Mifkad Haleumi case; HCJ 7192/08 Hamateh Lehatzalat Ha’am Veha’aretz v. Second Authority for Television and Radio (Oct. 10, 2009)). It is customarily said that prior restraint of speech has a “chilling effect” on freedom of expression. However, freedom of expression can be indirectly harmed by imposing post facto burdens on the speaker or deterring expression. Such deterrence may cause those who might otherwise express themselves in a particular way to refrain from doing so in fear of being harmed. In this manner, potential speakers are harmed, the marketplace of ideas is impoverished, and democracy suffers. Justice A. Barak addressed the distinction between prior restraint of freedom of expression and ex post burdening of the speaker in HCJ 806/88 Universal City Studios Inc. v. Film and Theater Review Board, IsrSC 43 (2) 22 (1989):

The restriction of freedom of expression takes various forms. The most severe restrictions are those which prevent the expression in advance. An a priori ban prevents publication. The damage caused to freedom of expression is immediate. A less severe restriction is the criminal or civil liability of the person uttering the expression. The expression sees the light of day, but the person uttering the expression bears the responsibility “post-facto”. If the a priori prohibition “freezes” the expression, then after-the-fact responsibility “chills” it… [ibid., p. 35].

            The chilling effect’s infringement of freedom of expression has been recognized in the decisions of this Court. For example, it was held that a chilling effect upon freedom of expression may be relevant to establishing the extent of liability under the Prohibition of Defamation Law, 5725–1965 (hereinafter: the Prohibition of Defamation Law) and the application of the defenses that it provides, and may affect the interpretation of the provisions of the law (see, in regard to the defenses under that law, e.g., LCA 3614/97 Avi Yitzchak, Adv. v. Israel News Co. Ltd., IsrSC 53 (1) 62, 71-72 (1998); LCA 1104/07 Advocate Hir v. Advocate Gil, IsrSC 63 (2) 115, 517-518 (2009); CFH 2121/12 Ploni v. Dr. Dayan Urbach (pubished in Nevo) (Sept. 18, 2014) paras. 38, 50, 55, 78 and 83 per A. Grunis P.) (hereinafter: the Dayan case); the Ben Gvir case, para. 33, per E. Rivlin J. (dissenting). On the interpretation of sec. 4 of the Prohibition of Defamation Law, see: CA 8345/08 Ben Natan, Adv. v. Bakri (published in Nevo) (July 27, 2011), paras. 45-54 of my opinion, and para. 8 of the opinion of I. Amit J.). In regard to calculating the amount of damages, see: CA 89/04 Dr. Nudelman v. Scharansky (pubished in Nevo) (Aug. 4, 2008) para. 61; CA 5845/05 Hoter-Yishai v. Gilat (publlished in Nevo) (Sept. 20, 2007) per E. Rivlin DP (dissenting on the matter of damages)). Also, in his dissent in HCJ 6706/14 MK Zoabi v. Knesset Ethics Committee (published in Nevo) (Feb. 10, 2015) para. 15, (hereinafter: the Zoabi case), S. Joubran J. expressed his opinion that in a disciplinary hearing of a Knesset member for statements made by that member, the Ethics Committee must consider the chilling effect that may result from its decision. The minority in CrimFH 7383/08 Ungerfeld v. State of Israel (published in Nevo) (July 11, 2011) para. 29 (hereinafter: the Ungerfeld case), expressed the view that the possibility of a chilling effect is a relevant consideration in interpreting the offense of insulting a public servant under sec. 288 of the Penal Law, 5737-1977. In addressing the danger of a chilling effect on political expression as a result of imposing sanctions on a speaker, Deputy President E. Rivlin aptly wrote (concerning criminal sanctions in the Ungerfeld case):

Criticism directed against governmental policy, even if expressed before a public servant, is at the heart of freedom of expression. Its contribution to democracy, to enriching the marketplace of ideas, to the search for truth, and to the advancement of the principle of individual self-fulfillment is significant and central. It is also important to the very ensuring of the proper and appropriate functioning of government. A chilling effect upon criticism of the government would be destructive to the democratic system [ibid., para 29, per E. Rivlin DP].

28.       The chilling-effect doctrine has also earned a place in American law. In a long line of decisions, the United States Supreme Court recognized the possibility of violating freedom of expression through the creating of a chilling effect (see, e.g: Frederick Schauer, “Fear, Risk and the First Amendment: Unraveling the  ‘Chilling Effect’,” 58 B.U. L. Rev. 685 (1978) (hereinafter: Schauer); Notes, “The Chilling Effect in Constitutional Law,” 69 Colum. L. Rev. 808 (1969); Monica Youn, “The Chilling Effect and the Problem of Private Action,” 66 Vand. L. Rev. 1473 (2013); Leslie Kendrick, “Speech, Intent, and the Chilling Effect,” 54 Wm. & Mary L. Rev. 1633 (2013)).

29.       In my opinion, both aspects of the Boycott Law – the tortious and the administrative – may create a substantial chilling effect. As regards the tortious sanctions, the matter would appear to be self-evident. Imposing tortious liability for expression increases the “price” of expression in the estimation of the potential speaker. It adds an additional consideration – tortious liability – to the relevant set of considerations. This additional possible cost may cause a lessening of motivation to speak out, and may even cause certain potential speakers to entirely refrain from expressing themselves in “prohibited” ways. In practice, this deterrent effect is one of the objectives of tort law. Israel Gilead addressed this effect in his book Tort Law: Limits of Liability (2012) (Hebrew):

Imposing tortious liability on a wrongdoer is, by its nature, usually accompanied by a deterrent result. Deterrence, in this regard, is a change in the patterns of conduct of one who is influenced by the tortious liability.

First and foremost, deterrence affects potential wrongdoers, in other words, those involved in activity that results or may result in future liability. Imposing liability in tort, and the associated discomfort, are a sort of notice to anyone who may undertake such activity that he will bear the burden of any damage that the tortious activity may cause. That notice raises the price of the activity, inasmuch as bearing the cost of the damage for which liability will be imposed is added to the cost of the activity. Making the activity more expensive may lead to all of the following: a cessation of the activity if and to the extent that increased cost makes it not worthwhile for the potential wrongdoer; a change in the activity so that the cost of liability will be lessened; attempts at risk protection through of insurance or other means [ibid., pp. 45-46].

            The presence of a chilling effect in this case is not at all speculative. The creation of a chilling effect is the primary means chosen by the legislature for achieving the Law’s purpose. The state even addressed this in its response to the petition. It noted in regard to the “rational connection” that “it is clear that creating a cause of action in tort and imposing administrative sanctions on those who call for a boycott against people for their connection to the State of Israel or a area under the control of the State of Israel will deter such actors from acting to impose such a boycott, and will make the phenomenon less common”.

30.       My colleague Justice Melcer proposed that the chilling effect be reduced by means of narrow construction that would somewhat limit the boundaries of the tort under sec. 2(a) of the Law. To that end, my colleague proposed that the realization of the “boycott tort” be contingent upon actual damage; the existence of a causal connection between the tort and the damage; awareness of the reasonable possibility that the call and the circumstances of its publication would lead to the imposition of a boycott; and reserving the right to bring suit only to the direct victim of the tort. In my opinion, that construction, narrow as it may be, does not significantly reduce the Law’s chilling effect. The above “restricting” provisions are, as my colleague also notes, part of general tort law. They apply, as a rule, to most torts. Inasmuch as tort law is understood as promoting deterrence, and capable, as such, of directing human conduct, I do not think that applying the “regular” restrictions of tort law to the boycott tort is sufficient to significantly lessen the Law’s chilling effect.

            Nonetheless, I wish to note that I agree with my colleague’s proposed interpretation that the Law’s requirement of a “reasonable possibility that the call will lead to a boycott” (sec. 2(a)) joins with the requirement of the regular causal connection. It adds an additional requirement to the existence of general causation, which examines “whether the negligence was likely to cause damage of the type incurred by the claimant” (CFH 4693/05 Carmel-Haifa Hospital v. Maloul (published in Nevo) (Aug. 29, 2010), para. 128 per Naor J.). The potential causal connection does not replace the requirement for the standard causal connection. Justice Naor addressed this in regard to a negligence suit for exposure to poisonous substances (CA 1639/01 Kibbutz Maayan Zvi v. Krishov (published in Nevo) (June 2, 2004):

We have addressed the traditional rule that a person is held liable only for the harm that he caused: accordingly, when the question of the potential factual causation arises, the claimant must show not only potential factual causation (the exposure was capable of causing illness), but also specific factual causation (the exposure connected to the defendant caused the claimant’s illness) [ibid., para. 14 per M. Naor J].

31.       Another reason why I believe that the restrictive interpretation proposed by my colleague Justice Melcer is insufficient is the chilling effect caused by the very existence of the boycott tort. The existence of a tort of calling for a boycott, regardless of its scope, exposes those who call for a boycott to the possibility of a civil suit. That possibility creates uncertainty by its very nature. Indeed, a legal proceeding is not a sterile laboratory – “all litigation, and indeed the entire legal process, is surrounded by uncertainty” (Schauer, p. 687). A person calling for a boycott may have difficulty in assessing the results of the possible proceedings that may await him. That uncertainty increases the cost of his expression. It comprises the theoretical possibility of the imposition of liability where it is unjustified. It exposes the speaker to the possibility of bearing the heavy financial and emotional costs of litigation. That exposure, itself, imposes a burden upon potential speakers in a manner that creates a chilling effect. In this regard, Justice S. Joubran (dissenting) aptly noted in HCJ 1213/10 Nir v. Knesset (Feb. 23, 2012):

It should be noted in this regard that, in many cases, even if some law is not enforced, a law can create a chilling effect upon the performance of a particular action, and indirectly violate human rights… [ibid., para. 16 per S. Joubran J].

            And see the relevant statement of Justice Scalia in Virginia v. Hicks, 539 U.S. 11 (2003), which addressed the constitutionality of a policy that prohibited trespass on certain streets:

Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech… harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas [ibid., p. 119].

            A relevant example for our case can be found in Thornhill v. Alabama, 310 U.S. 88 (1940). In that case from the past, the United States Supreme Court considered an Alabama law that prohibited “loitering or picketing” near a place of business with the intent of influencing others to refrain from purchasing its products or to conduct business with it. In that, the law addressed in the Thornhill case is not unlike the one before us, inasmuch as it, too, concerns expression – demonstrating – in order to persuade a person to refrain from commercial trade with another, as in the case of a boycott. The United State Supreme Court found the law to be unconstitutional for violating freedom of political speech. The Court explained that the violation of freedom of speech derived from the very existence of the law itself, as just the possibility of imposing sanctions upon speech could deter a person from speaking, much as the actions of a censor. Justice Murphy, delivering the opinion of the Court, wrote:

The existence of such a statute… results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. It is not any less effective or, if the restraint is not permissible, less pernicious than the restraint on freedom of discussion imposed by the threat of censorship [ibid., p. 98].

            On the chilling effect created by imposing tortious liability, also see, e.g: Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

32.       Those words are appropriate to the three types of tort sanctions in sec. 2 of the Boycott Law. I agree with my colleague Justice Melcer’s statement that “to the extent that we find that sec. 2(a) of the law is constitutional, sec. 2(b) of the Law will, accordingly, also be constitutional” (para. 41 of his opinion). Therefore, the conclusion in regard to the violation of freedom of expression by sec. 2(a), even under the “narrow” interpretation, is relevant to sec. 2(b), as well. Moreover, clearly the chilling effect created by the Law is particularly significant in the case of exemplary damages without proof of damage. On this point, I agree with my colleague’s conclusion that sec. 2(c) of the Law does not meet the proportionality tests. I also agree with my colleague’s reasoning that damages in the absence of proof of damage are an “exception” that deviates from the basic rules of civil law, and comprise an element of punitive fine. For these reasons, I am of the opinion that sec. 2(c) must be struck down.

            The administrative sanctions may also have a chilling effect of freedom of expression. The source of that effect is the possible fear of groups entitled to support to express themselves in the manner prohibited by the Law out of a fear of being denied support. The broad application of the administrative sanction creates a real danger of a broad violation of political views.

33.       We have addressed the Law’s infringement of freedom of expression. It is now time to evaluate its benefits.

 

Proportionality “Stricto Sensu” – The Social Benefit Aspect

34.       The Boycott Law comprises several purposes. One clear purpose, as its title testifies, is “prevention of harm to the State of Israel by means of boycott”. One aspect of this purpose is to be found in the desire to protect the citizens and residents of the state against economic, cultural, and academic harm. It would appear that the Law is primarily directed at combatting the BDS movement, which my colleague Justice Melcer addressed at length. Indeed, the damage caused by the boycott phenomenon is not inconsiderable (see, e.g: Lior A. Brinn, “The Israeli Anti-Boycott Law: Balancing the Need for National Legitimacy Against the Rights of Dissenting Individuals,” 38 Brooklyn J. Int'l L. 345, 352 (2012); Marc A. Greendorfer, “The BDS Movement: That Which We Call a Foreign Boycott, By Any Other Name, is Still Illegal,” (2015) (Available at SSRN: http://ssrn.com/abstract=2531130) (hereinafter: Greendorfer)). Mitigating the damage of this phenomenon is a proper and important purpose.

35.       However, it should be noted that the Boycott Law is an Israeli municipal law. Its sanctions are therefore intended primarily to influence calls for boycott “performed” in Israel. This is primarily so in regard to the Law’s tort sanctions. The rules of choice of law in tort law establish that the applicable law in regard to torts is the place of the performance of the tort – lex loci delicti (CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara'an, IsrSC 59 (1) 345, 372-374 (2004) (hereinafter: the Yinon case); CFH 4655/09 Schaller v. Uviner (published in Nevo) (Oct. 25, 2011) para. 8, per Rivlin DP). Therefore, as a rule, the tort law of the State of Israel – including the Boycott Law – apply to “boycott torts” perpetrated in Israel. Of course, there are several exceptions to this rule. In the Yinon case, it was held that “when the place in which the tort was perpetrated is a fortuitous factor, lacking any real connection to the event” it is possible to apply tort law that is not the lex loci delicti (the Yinon case, p. 374). Moreover, it is not inconceivable that the development of additional exceptions may, under certain circumstances, allow for the application of Israeli law to torts that affect the State of Israel (cf. the “effect doctrine” that might make it possible, under certain circumstances, to apply Israeli law to acts occurring outside the borders of the state if their perpetration negatively impacts the state. (On the application of this doctrine on restrictive trade practices, see, e.g: Michal Gal, “Extra-territorial Application of Antitrust – The Case of a Small Economy (Israel),” New York University Law and Economics Working Papers No. 09-03 (2009)). Inasmuch as we may assume that the “tortious” effect of the Law will be more focused upon its influence on internal Israeli political discourse, and less upon its influence on international calls for boycotting Israel or the Area, this would somewhat reduce the Law’s potential contribution to the fight against international boycotts and the BDS movement. In addition, the arguments presented by the parties before us show that the “type” of boycott relevant to the internal Israeli discourse is, primarily, a boycott against the Area rather than a boycott against the State of Israel in its entirety. The result is that a call for a boycott against the Area will, it would seem, be prohibited when performed in Israel, and of a type that would be hard to prevent by means of the Law if it were performed outside on the state. This is a problematic result wherein protests that are permissible in international discourse would be prohibited internally, and a form of protest recognized in international discourse will be prohibited precisely to those seeking to advance their political views “internally”, within our political public rather than externally.

36.       Another aspect of the purpose of preventing harm to the State of Israel concerns the principle of defensive democracy. The declarations of some of those calling for a boycott of the State of Israel express a rejection of the state as such. Those speakers do not act within the Israeli political discourse, but rather seek to deny it. Some find such characteristics in the BDS movement. Greendorfer addresses this:

The BDS Movement is not a grass roots movement, nor is it a peace movement. In charitable terms, the BDS Movement is simply the latest iteration of the longstanding Arab League mandate to eliminate the only non-Arab state from the Middle East. In less charitable terms, the BDS Movement is the non-violent propaganda arm of the modern Islamist terror movement [ibid., p. 35].

            These characteristics are not unique to the BDS movement. Greendorfer is of the opinion that some of the global players calling for a boycott of Israel share those views. “While the names change, the objectives of many such groups remain the same: the demonization, marginalization and destruction of Israel” (ibid., p. 29).

            Defense against those who oppose the state is a proper and important purpose. Moreover, the very call for a boycott of the State of Israel, regardless of the objectives and characteristics of the caller, is a serious phenomenon that the state cannot ignore. I am of the opinion that the state may have a justified interest in restricting such calls. That interest can be premised upon the principle of defensive democracy. That principle permits the restricting of fundamental rights – including freedom of political speech, and even the right to vote and to run for office – in order to protect the fundamental principles of the democratic state (see, e.g: in EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19 (3) 365, 390 (1965); EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi, IsrSC 57 (4) 1, 66 (2003) (hereinafter: the Tibi case); HCJ 6339/05 Matar v. IDF Commander in the Gaza Strip (published in Nevo) (Aug. 1, 2005) para. 10; and cf. the Zoabi case, which held that a call by a member of Knesset for the imposition of a blockade against the State of Israel justifies imposing disciplinary sanctions of suspension from plenum and committee sessions. And see: Barak Medina & Ilan Saban, “Widening the Gap? On the Freedom of a Knesset Member to Oppose the Occupation (following HCJ 11225/03 Beshara v. AG),” 37 Mishpatim (Hebrew University Law Review) 219, 229 (2007) (Hebrew) (hereinafter: Medina & Saban, “Widening the Gap”). Justice A. Barak addressed this in EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39 (2) 225 (1985), IsrSJ 8, 83 [English trans: http://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]:

On the one hand, the fundamental right to political expression is not to be denied merely because of the nature of the political view. Quite the contrary, the power of democracy lies in the freedom it allows to express opinions, however offensive to others. On the other hand, democracy is allowed to protect itself, and it need not commit suicide so as to prove its vitality [ibid., p. 315, (English trans: para. 12)].

37.       However, the purpose concerning defensive democracy does not apply in the same manner and to the same extent to all the various forms of expression that fall within the compass of the Boycott Law. While one can accommodate applying that principle to calls for a boycott against the State of Israel per se, it is hard to harmonize that principle of defensive democracy with calls for a boycott only against the Area. A boycott of the Area is not directed at denying the State of Israel’s right to exist, but rather expresses opposition to one of the “expressions of its policy”. Israel’s policy in regard to the Area is not one of the fundamental characteristics of the state, like it Jewish character or its democratic regime, and opposing that policy is not equivalent to opposing the state’s right to exist. One can learn something about this from the decision in the Tibi case, in which the Court did not approve the decision of the Central Elections Committee to bar Knesset Member Tibi from participating in the elections. In so doing, it was held that MK Tibi’s statements reflecting non-violent opposition to the “occupation” did not justify disallowing his candidacy. President A. Barak wrote:

Knesset Member Tibi does not deny that he opposes the occupation and envisions its end. At the same time, he expressly and unambiguously declares that the opposition that he supports is not armed struggle, but rather non-militant, popular resistance. That is a form of opposition that does not involve the use of weapons. Indeed, the evidence before us does not reveal expressions or actions that evoke support for the armed struggle against the State of Israel…

For these reasons, the decision of the Elections Committee disallowing Knesset Member Tibi’s participation in the elections cannot be approved [ibid., pp. 49-50].

            I am of the opinion that, as a rule, great care should be taken in making recourse to the “defensive democracy” principle as justification for violating freedom of political expression. “Defensive democracy” draws rigid lines between legitimate and illegitimate views – between those views that are part of the political discourse and those that should properly remain outside of it. Drawing those lines is no easy task. “If the line is drawn too far, democracy will not endure, and to the regret of its supporters, it will collapse. But if the line is drawn too close, the apple of its eye will suffer, and those who cherish it will no longer recognize it. The resilience of the state in which democracy abides makes a decisive contribution to deciding the location of the borderline. The stronger the state, the further away the line, and vice versa” (EA 2600/99 Erlich v. Chairman of the Central Elections Committee, IsrSC 53 (3) 38, 48 (1999) per Y. Kedmi J). Restricting calls for boycott against the entirety of the State of Israel infringes freedom of expression. But such calls reside in a “gray area” that may justify their restriction in order to protect the state’s power to defend itself against those who seek to do it harm. However, calls for boycotting the Area are clearly located within the boundaries of legitimate democratic discourse. Calling upon the principle of defensive democracy in order to infringe non-violent political expression against a particular state policy is unacceptable.

38.       Another proper purpose grounding the Boycott Law is the prevention of discrimination. Calling for a boycott is not merely an expression of an opinion. Calling for a boycott is a call to action (or, more precisely, to refrain from performing an action) – the imposition of a boycott. Bboycott action harms the objects of the boycott. That harm may not be worthy of the protection of freedom of expression. Thus, clearly, a call for a boycott that would prevent the provision of products or services to publics on the basis of race, or for racist motives, would be deemed wrong. That would also be true for a boycott based upon “religion or religious group, nationality, country of origin, sex, sexual inclination, opinion, political allegiance, personal status, or parenthood”  (sec. 3(a) of the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law). And see sec. 4 of that law, as well as sec. 12 of the Civil Wrongs Ordinance [New Version]). Indeed, boycotting a person solely by reason of his connection to the State of Israel is a discriminatory act. It is an instance of treating a person differently – ostracizing him – by reason of his belonging to the group of which he is a member. In addition, the boycott that the Law addresses is a “secondary” boycott”. It is not directed at harming the state – for example, by refusing to trade with it – but at harming those who have a “connection” to the state. Such harm, arising from connection or membership, does not relates to the unique characteristics or conduct of the person ostracized. Such harm is particularly severe because a person’s connection to the state (despite the theoretical possibility to emigrate) may be viewed as an immutable characteristic. In that sense, a distinction based upon a connection to a state is comparable to a wrongful distinction based upon “country of origin”, which is included in the list of prohibited distinctions in the Prohibition of Discrimination Law.

39.       The state sought to argue that this reasoning also applied to a call for a boycott against the Area. It argued that calling for a boycott against a person due to his connection to the area is, in practice, discrimination on the basis of place of residence. To its thinking, such discrimination is wrongful, inter alia, because a person’s place of residence is “inherent to a person’s identity”. In this context, it should be noted that place of residence is considered to be “more” given to a person’s choice than connection to his state. In addition, and this is the main point, the Boycott Law does not prohibit discrimination on the basis of place of residence, or even the boycotting of a person due to his place of residence (for bills in that spirit, see: Employment (Equal Opportunities) Bill (Amendment No. 22) (Prohibition of Discrimination due to Place of Residence), 5773-2012, H.H. 499). The Boycott Law only prohibits calling for a boycott due to residence in the Area. Therefore, we are not concerned with “classic” anti-discrimination law, but rather with state intervention in the field of political debate. The attempt to clothe that in the garb of preventing discrimination can only fail. Anti-discrimination law must, by its very nature, be neutral. We cannot countenance a law prohibiting discrimination on the basis of one sexual orientation but not another, or a law prohibiting discrimination against one race while permitting discrimination against another (a certain exception to this is found in the principle of affirmative action, but that principle is justly viewed as promoting equality. See, in this regard, e.g: HCJ 10026 Adalah Legal Center for Arab Minority Rights in Israel v. Prime Minister of Israel, IsrSC 57 (3) 31, 38-40 (2003); HCJ 453/94 Israel Women’s Network v. Government of Israel, IsrSC 48 (5) 501, 516-521 (1994) [English trans: http://versa.cardozo.yu.edu/opinions/israel-women%E2%80%99s-network-v-government-israel]). The Boycott Law does not show such neutrality. Therefore, I am of the opinion that one cannot “muster” the full force of the interest in preventing discrimination in its defense.

            This conclusion does not apply to a boycott directed against the state in its entirety. While the Law does not prohibit boycotting a person by reason of his connection to any state whatsoever, but only in regard to his connection to the State of Israel, the state has a justified right to prevent discrimination between its citizens and residents and those of other countries. However, it must act in an equal, pertinent manner towards the residents of the various areas of the state and the areas under its control. 

 

Proportionality “Stricto Sensu” – A Final Balance

40.       As we have seen, the Boycott Law infringes the right to freedom of expression. We are concerned with the infringement of freedom of political expression, which is at the “core” of the constitutional right to freedom of expression, and constitutes part of the constitutional right to human dignity. This infringement results from the complex of the Law’s provisions as a whole. The tort sanction and the administrative sanction retroactively harm anyone who calls for the imposition of a boycott against the State of Israel or the Area. We are concerned with a severe infringement, as it specifically applies only to those who express political opinions of a certain type. The Boycott Law also infringes freedom of expression by deterring potential speakers from expressing themselves politically. These infringements of freedom of political speech are most severe in regard to calling for boycotting the Area. The “territories issue” is a subject of heated public debate. The viewpoint harmed by the Law is one that is critical of the Government’s policy. Changing the rules of the game in a manner that harms this viewpoint is inconsistent with the state’s obligation to maintain neutrality in regulating the “marketplace of ideas”. In order to justify these infringements of the constitutional right to freedom of political expression, the public benefit of the law must outweigh its harm. That balance must be struck in accordance with the near-certainty formula for significant harm to a public interest. Indeed, the Law does promote some important public purposes. The Boycott Law is expected to lessen the phenomenon of boycotting the State of Israel. That phenomenon inflicts economic, cultural, and academic harm upon the citizens and residents of the state. It challenges the fundamental principles of the state, and it harms equality between the objects of the boycott and those who are not exposed to it. The social benefit of the Law changes in accordance with the character of the specific boycott under consideration. Preventing a boycott against the State of Israel is consistent with the state’s right to defend itself against those who seek to do it harm. That is not the case in regard to a boycott directed at the Area. A boycott of this type concerns an internal Israeli political issue (although various entities around the world also express their opinions on this issue). Such a boycott cannot be deemed as targeting the state per se. It clearly falls within the bounds of legitimate political discourse.

            It would appear that the Law’s infringement of freedom of expression is particularly severe, but I am of the opinion that the method of interpretation that I shall propose below can prevent the extreme result of declaring the Law unconstitutional. Indeed, the Law serves several important purposes, but I do not believe that it is necessary in order to prevent the nearly certain realization of real harm, and that is certainly the case in regard to the Law’s effect in regard to calls for boycotting the Area. The sanctions imposed upon those who express themselves in this manner lead to a severe infringement of freedom of political speech. Lessening the prevalence of such calls yields a social benefit that is significantly less than the benefit inherent in imposing restrictions upon boycotts against the state in its entirety.

 

Consequences of Unconstitutionality

41.       I have considered the possibility that it might be proper to go over the Law with a “blue pencil”, in a manner that would let it ford the constitutionality tests. By this I mean writing out of the Law the words “or an area under its control” in the definition of a “boycott against the State of Israel”. This would abate the Law’s primary harm inherent in intervening in the political discourse by prohibiting calls for boycotting the Area. Eliminating that phrase would remove such boycotts from the Boycott Law. Indeed, “The Court is not liable to order the voidance of the law in its entirety. It may order the law to be split, so that those provisions of the law that suffer from a constitutional defect are declared void, while the other provisions remain valid” HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, 350 per A. Barak P. (2006) [English trans: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]. And see HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 59 (4) 241, 267-268 (2004) [English trans: http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing] (hereinafter: the Ganis case); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 736 (1994) (hereinafter: Barak, Constitutional Interpretation)). But the blue-pencil rule should not be employed when the result will upset the law’s internal balance and its purposes (HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63 (2) 545, 638 (2009) [English trans: http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance]; Barak, Constitutional Interpretation, p. 737).

42.       Ultimately, I have come to the conclusion that this approach should not be adopted. The reason for this, in my view, is that a similar result can be achieved through interpretation, without having to strike down one of the Law’s provisions. In my view, the interpretive solution is a proportionate one that limits judicial intervention in Knesset legislation, giving appropriate weight to the principle of separation of powers among the branches of government. The Knesset is the legislative branch. But the Court is the authorized interpreter of every piece of legislation. Indeed, “upon the completion of the legislative process, the law leaves the courtyard of the legislature. It lives independently, and its interpretation – in the broad meaning of the term – falls, at the end of the day, to the courts, and to them alone” LCrimA 1127/93 State of Israel v. Klein, IsrSC 48 (3) 485, 501 (1994) per Cheshin J.). And see: HCJ 73/85 Kach Faction v. Shlomo Hillel – Speaker of the Knesset, IsrSC 39 (3) 141, 152 (1985); Aharon Barak, Interpretation in Law – Statutory Interpretation, 57-58 (1993) (hereinafter: Barak, Statutory Interpretation). This approach is expressed in the well-known talmudic story of the “Oven of Akhnai” (TB Bava Metzia 59b). In that story, according to one of the interpretations, God the Legislator “admits” – saying “My sons have defeated Me, My sons have defeated Me”, for even though God was of the opinion that a particular interpretation – that of Rabbi Eliezer – was the correct one, the decision was not His but was in the hands of the Sages. Thus, after the norm is created, its creator loses the power to interpret it. The authorized interpreter may declare that it is not bound by a later interpretation presented by the legislator – “It is not in heaven”).[3]

            Indeed, this Court has held in a long line of decisions that interpretation is the preferred solution for resolving constitutional problems. In this manner, we can resolve the apparent contradiction between the law under examination and the constitutional norm without activating the “doomsday weapon” of declaring total or partial voidance (see, e.g: HCJ 5771/12 Moshe v. Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996 (published in Nevo) (Sept. 18, 2014) para. 5 of the opinion of H. Melcer J. [English trans: http://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law]; HCJ 2311/11 Sabah v. Knesset (published in Nevo) (Sept. 17, 2014) para. 5 of the opinion of H. Melcer J.; LCA 7205/06 Erlich v. Advocate Bartal (published in Nevo) (Aug. 22, 2012) para. 40 of the opinion of H. Melcer J.; HCJ 5113/12 Friedman v. Knesset, (published in Nevo) (Aug. 7, 2012) para. 5 of the opinion of E. Arbel J.). Grounding this approach is the idea that every legislative act is intended to advance – in addition to the concrete purposes that the legislature sought to promote – the fundamental values of our regime. Those fundamental values include the principles of democracy and the protection and advancement of human rights. The practical effect of this approach is expressed in the presumption that “the purpose of every legislative enactment is to realize the principles of the system and advance human rights within it” (HCJ 693/91 Dr. Efrat v. Director of the Polulation Registry in the Ministry of the Interior, IsrSC 47 (1) 749, 763 (1993) per A. Barak J.), and the presumption according to which “the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently” CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62 (4) 329, 351 (2008) per D. Beinisch P. (hereinafter: the Anonymous case) [English trans: http://versa.cardozo.yu.edu/opinions/v-state-israel-1]).

43.       One of the primary techniques that enable the Court to employ interpretation to remove apparent contradictions between a “regular” law and the provisions of a Basic Law is narrow construction. By this approach, the normative effect of the law is limited such that the semantic field that does not stand in contradiction to the Basic Laws is isolated from among the linguistic possibilities (see, e.g: Aharon Barak, “Judicial Lawmaking,” 13 Mishpatim 25, 30-32 (1983) (Hebrew); the Ganis case, p. 273; HCJ 4562/92  Zandberg v. Broadcasting Authority,  IsrSC. 50 (2) 793, 808 (1996); HCJ 4790/14 Torah Judaism – Agudath Yisrael – Degel HAtorah v. Minister of Religious Affairs (published in Nevo) (Oct. 19, 2014) para. 26 of the opinion of U. Vogelman J; HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police (published in Nevo) (May 28, 2012) para. 15 of the opinion of D. Beinisch P.; Barak, Constitutional Interpretation, p. 737). Justice Barak’s words in the Zandberg case are apt in this regard:

Indeed, the judge must not “sit on his hands” and observe the failure of the legislative purpose. He must interpret the law in accordance with its purpose. At times, that interpretation will lead to the conclusion that the language of the law can be broadly construed. At times – as in the case before us – that interpretation leads to the conclusion that the law must be narrowly construed…

Thus, where the language of the statute is broad, the judge is permitted and competent to give it a narrower meaning, which extends only to some of the options inherent in the language, provided that by doing so he realizes the purpose of the legislation. [ibid., p. 811].

            And see President Barak’s opinion in the Ganis case:

Is the interpreter permitted to narrow the broad language of the text in order to achieve the purpose of the text? When the text provides a legal arrangement that applies to “every person”,”with regard to “every object” or “in all circumstances”, may the interpreter — who wishes to achieve the purpose underlying the text — interpret the text in such a way that it does not apply to a particular class of persons (not “every” person) or such that it does not apply to a particular class of objects (not “every” object) or such that it does not apply in a particular class of circumstances (not “all” circumstances)? The answer given to this question in Israel and in comparative law is yes [ibid., p. 277].

44.       As for the matter before us, sec. 1 of the Boycott Law, which establishes its scope, is the entry way into the Law. Only a boycott that can be deemed “a boycott against the State of Israel”, as defined in that section, allows for the imposition of the Law’s tortious or administrative sanction upon the caller. Establishing the dimensions of the entry way in sec. 1 of the Law is an interpretive endeavor. It is carried out with the interpretive tools. First and foremost, we must address the language of the Law, which is the starting point of any interpretive endeavor. But the language of the Law is not necessarily the end point. The interpretation of the Law must take its purpose into account. In so doing, one must, as noted, address the specific purpose of the Law, but also, as explained above, the fundamental principles of our legal system and the general purpose of protecting human rights.

45.       I am of the opinion that the dimensions of that normative “entry way” in sec. 1 of the Law should be construed narrowly. The interpretation must allow only a certain “type” of boycott to cross the threshold – a general boycott of the State of Israel as such. As opposed to that, we must establish that other “types” of calls for boycott – primarily calls for the boycotting of the Area alone – will not cross the threshold, and not be deemed a “boycott against the State of Israel”.

            Section 1 of the Law instructs as follows:

In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

            Thus we find that in order to enter the compass of the Law, the boycott must be “because of its connection” to the State of Israel, one of its institutions, or an area under its control. The relationship between the “State of Israel” and the institutions and areas mentioned in the definition in sec. 1 is a relationship of belonging. In order for a boycott against a person due to his connection to an institution to enter into the compass of the law, the institution must be “one of the institutions” of the state. In order for a boycott against a person due to his connection to an area to enter this definition, the area must be “under its control” of the state. In my view, that belonging of “the institution” or “the area” to the State of Israel cannot remain merely technical. That requirement must be given normative significance. The belonging requirement must pertinently connect the boycott “against the State of Israel” and the boycott of the institution or the area. Its effect is the broadening of the scope of belonging, such that it also extends to the relationship between the boycott against the state and the boycott against the institution or against the area. Therefore, not every boycott of an institution or an area physically “belonging” to the state will fall within the definition of the Law. Only a boycott of an institution or of an area because of the boycotting of the state in its entirety should fall within this definition.

            Actually, this is a necessary interpretation. Clearly, the Boycott Law was not intended to apply, for example, to a call to boycott a public institution because of that institution’s particular characteristics. Consider, for example, a call to boycott a person due to his connection to a public institution because that institution conducts experiments on animals. Or, for example, a call to boycott a person due to his connection to a public institution because that institution promotes a policy that harms the environment. Or a call to boycott a person due to his connection to an Israeli community (which is “an area under [the state’s] control”) because of the community’s policy in regard to membership (cf. the Sabah decision).  On its face, according to the language of the Law, such boycotts might fall within the scope of the law and be prohibited by it. The reason for this is that they are calls for a boycott against a person merely because of his connection to one of the state’s institutions or an area under its control. Clearly, however, that was not “what the author had in mind”. The purpose of the Boycott Law, as its name shows, is to prevent harm to the State of Israel by means of boycotts. The law is intended to contend with the phenomenon of boycotts against the state. It is not intended, for example, to harm those who call for a boycott of an institution because of its destruction of natural treasures simply because that institution, coincidentally, “belongs” to the State of Israel and is not a private body. The fact that the institution in the example is a public institution may, of course, show that the policy that is the target of the boycott is a public policy. However, it would not be proper to interpret the Law as opposing calls for boycotts targeting any public policy, when the boycott does not comprise a dominant factor of opposition to the state as such. As the state’s attorneys noted before the Court, the Boycott Law is not intended, for example, to affect calls to boycott cottage cheese. I am of the opinion that this conclusion must stand even if it transpires that some of the boycotted cottage-cheese producers are state owned.

46.       Therefore, the terms treating of an “institution” and “area” were not intended to direct the Law at “new” types of boycotts. They were intended to reinforce the arrangement treating of the typical boycott with which the Law was intended to contend – a boycott against the State of Israel. Their purpose is to create a tight arrangement that will not permit calls for boycotting the State of Israel to evade the Law simply by targeting institutions or areas. In order to achieve that purpose, while not extending the Law beyond its proper scope, the connection between the “institution” and the “area” to the State of Israel must be interpreted as a material connection that also extends to the nature of the boycott. Only a boycott against an “institution” or “area” that is part of a boycott against the State of Israel and derives from the connection of the institution or area to the State of Israel will fall within the compass of the Boycott Law. As opposed to this, a boycott of an institution or area that is not part of a boycott against the State of Israel will not fall within the scope of the Law’s definition.

            The practical result of this distinction is the application of the Boycott Law only to calls for a boycott against the State of Israel in its entirety or as such. Accordingly, a call to boycott one of the state’s institutions, which is not accompanied by a call for a comprehensive boycott of the State, would not fall within the compass of the Law. Similarly, calls for boycotting areas under the state’s control, including boycotting the Area, that are not accompanied by a call to impose a boycott on the State of Israel, will not fall within the Law’s definition. This result is also applicable to the interpretation of the phrase “a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control” in sec. 3 of the Law.

            This interpretation is consistent with the language of the Law. It is “dependent” upon the relationship of a connection between the State of Israel and its institutions or areas under its control. It is consistent with the plain meaning of the phrase “boycott against the State of Israel” in colloquial language (see: Barak, Statutory Interpretation, pp. 117-118, 587-589). This phrase is the Law’s linguistic center of gravity. It impacts all of the Law’s provisions, including the definition of the very term “boycott against the State of Israel” in sec. 1 of the Law. It shows that the main point of the Law is the prevention of a boycott against the State of Israel, and not a boycott against its institutions or areas under its control. This interpretation does not make reference to institutions and areas superfluous. Without such reference, some calls for boycotting a person for his connection of an Israeli institution or area under the state’s control as part of a call for a boycott of the entire state might evade the Law’s embrace. That would be the case, for example, where the person under discussion has a connection only to the institution or controlled area, but lacks a direct connection to the state.

            This interpretation is also consistent with the Law’s purpose. The Law’s main purpose, as its name testifies, is the prevention of harm to the State of Israel by means of a boycott. This purpose is clearly delineated by applying the Boycott Law to calls for boycotting the State of Israel. It is not entirely realized when a boycott of the Area is concerned. Calls for a boycott of the State of Israel are directed at the state as such. The state may defend itself against such boycotts. A boycott against the State of Israel, as such, discriminates against the residents of the state on the basis of their connection to the state. The state may prohibit such discrimination. However, a boycott of the Area is not directed at the state, as such, but against one manifestation of its policy. Prohibiting boycotts of the Area cannot be justified by a desire to prevent discrimination, as it would not represent a comprehensive prohibition of boycotting or discrimination on the basis of place of residence. And primarily, the future of the Area is a matter of heated public debate. The “objective purpose” of the Boycott Law, and the presumption in regard to its consistency with the Basic Laws, cannot tolerate an interpretation that “lowers” the Law to the level of political debate in a manner that would limit the available arsenal of expressions to one side of the debate alone. That purpose would not be consistent with an irrelevant infringement of the possibility of those holding a particular political view to obtain government funding or to participate in tenders, on the basis of considerations that are unrelated to the nature of the funded activity, and while placing a burden on the constitutional rights of the funded entities. That purpose is also inconsistent with creating a chilling effect that would act as a deterrent to voicing one particular view from among the competing political views.

47.       In addition, as we know, the purpose of a Law is derived both from the objective purpose noted above – in regard to the objectives and values that a legislative act is meant to realize in a democratic society – and from the subjective purpose – in regard to the objectives that the legislature sought to realize by means of the legislation. Thus, we learn a law’s subjective purpose from its language, legislative history, and the historical, social, and legal background at the time of its enactment (see, e.g: Barak, Statutory Interpretation, pp. 201-202; CA 8622/07 Rothman v. P.W.D. - National Roads Company of Israel Ltd. (published in Nevo) (May 14, 2012) para. 49 of the opinion of U. Vogelman J.; HCJ 10771/07 Gewirtzman v. National Insurance Institute (published in Nevo) (Feb. 1, 2010) paras. 56-59 of my opinion). In this case, the parliamentary history of the Law shows that the proposed interpretation would seem to contradict the positions held by some of the members of Knesset who were involved in its legislation, and is consistent with the positions held by others (see, e.g: Protocol of meeting no. 342 of the Constitution, Law and Justice Committee of the 18^th Knesset, 4-5, 25-27 (Feb. 15, 2011) Protocol of meeting no. 416 of the Constitution, Law and Justice Committee of the 18^th Knesset, 49, 61 (June 27, 2011); Protocol of session no. 259 of the 18^th Knesset, 167 (July 11, 2011)). However, legislative history is but one source that the interpreter may use to learn the legislative purpose. President Barak aptly observed in this regard:

We are not interested in the judgment of the members of the legislature, but rather in their legislative act…The data about the legislative purpose that can be discovered in the parliamentary history are not “binding”; they are not the final word for all investigation and examination; they do not override the purpose that arises from the language of the law or other sources…the relative weight of this source depends on its importance and its reliability relative to other sources [Barak, Statutory Interpretation, p. 372].

I am of the opinion that no great weight should be assigned to this interpretive source in this case. This, inter alia, because various views were expressed about the purposes of the Law in the committee meetings and in the plenum debate, and as President Barak goes on to state:

It is very difficult to separate “personal” opinions of members of the legislature about what is ideal, and “institutional” opinions about what is real. This is especially true of spontaneous responses expressed in the legislature in the absence of extensive research or reflection. But even “considered” responses are sometimes expressions of the subjective view of the speaker…The interpreter must be able to distinguish between the wheat and the chaff, between personal opinions of members of the legislature in regard to the meaning of the law, and objective opinions about its purpose. The weight to be given to the results of the examination will change in accordance with the reliability that can be attributed to the sources of that examination [ibid., p. 380, emphasis added – Y.D.].

            Thus, it would seem appropriate, in my view, to interpret the Law such that it would apply only to calls for boycotting the State of Israel in its entirety, but not to calls for boycotting the Area alone. Although this interpretive result contradicts the express position of some of the Law’s initiators, the subjective views of the members of Knesset who took part in the legislative process does not obligate the Court. Indeed, interpretation concerns the “analysis” of the law, and not the “psychoanalysis” of the legislature (the Sabah case, para. 26 of the opinion of Grunis P.; HCJ 246/81 Agudat Derekh Eretz v. Broadcasting Authority, IsrSC 35 (4) 1, 17 (1981), IsrSJ 8 21 [English trans: http://versa.cardozo.yu.edu/opinions/agudat-derekh-eretz-v-broadcasting-authority]). As noted, the position of one Knesset member or another, or even the view of those who proposed and initiated the Law, does not necessarily reflect the view of “the legislature”, which is a body composed of many members, and who represent the spectrum of political views of the state’s citizens. Thus we have the well-known approach according to which: “We must not seek to establish a Knesset Member's attitude towards a particular problem confronting us from the legislative history of an enactment. The solution of such problems is our responsibility, and ours alone” HCJ 428/86 Barzilai, Adv. v. Government of Israel, IsrSC 40 (3) 505 (1986) 593; IsrSJ 6 1 [http://elyon1.court.gov.il/files_eng/86/280/004/Z01/86004280.z01.pdf].  Along with the interpretive sources offered by the parliamentary history, we have such additional interpretive sources as the language of the law, its normative context, and the principles of the fundamental rights that stretch a “normative umbrella” above it. Justice A. Barak addressed this is HCJ 142/89 Laor Movement v. Knesset Speaker, IsrSC 44 (3) 529 (1990):

Legislative history, in general, and parliamentary history, in particular, are among the sources that we may turn to in seeking and discovering the legislative purpose. Nevertheless, legislative history should not be viewed as the end-all, and its overall weight in establishing the purpose and in interpreting the law is not significant. Indeed, the information that it provides about the law’s purpose must be integrated into the information about the law’s purpose that derives from the language of the law and other reliable sources, such as its structure, the legal system, and the various presumptions about the purpose of the law, and the overall sense of the matter. Moreover, a judge seeks information about the purpose of the law from the legislative history. He does not seek the interpretive understanding of the members of Knesset and how they understood a concept or term, or how they would solve the legal problem facing the judge … [ibid., p. 544].

            I am of the opinion that there is no alternative in the case before us but to find that, despite various statements made in the course of the legislative process, the language of the Law and its purposes, including its objective purpose, do not allow the Law’s application to boycotts directed solely at the Area.

48.       In conclusion, it only remains to address several matters raised in the opinion of my colleague Justice Melcer.

 

Gleanings

49.       Ripeness – My colleague Justice Melcer is of the opinion that the petitions – with the exception of the part concerning sec. 2(c) of the Law – are not ripe for decision. My colleague believes that the Petitioners’ claims should be examined in the “applied review” track, attendant to suits or petitions directed against the concrete application of the Law (para. 59 of his opinion). The ripeness doctrine has, indeed, been incorporated into Israeli constitutional law (see, e.g: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (published in Nevo) (Jan. 5, 2012) paras. 26-33 of the opinion of M. Naor J. [English:  http://versa.cardozo.yu.edu/opinions/alumni-association-arab-orthodox-school-haifa-v-minister-finance] (hereinafter: the Alumni Association case); HCJ 7190/05 Lobel v. State of Israel (published in Nevo) (Jan. 18, 2006) para. 6 of the opinion of M. Naor J.; Elena Chachko, “On Ripeness and Constitutionality: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance and HCJ 3803/11  Israeli Capital Markets Trustees Association v. State of Israel,” 43 Mishpatim (2013)). The ripeness doctrine permits the Court to refuse to hear a petition directed against a statute by reason of the fact that it has not been applied in practice, and therefore there are no “factual grounds” that would allow for an adequate evaluation of its harm or benefit. However, when the constitutional question raised is primarily legal, there is no justification for “waiting” until factual foundations have been laid, inasmuch as that foundation may not be relevant to the final disposition of the case. That is the case, for example, when “the Court is persuaded that any future application of it will lead to an infringement of a constitutional right or when the harm that will result from the law in the future is certain” (the Sabah case, para. 15 of the opinion of Grunis P.). Even when assembling a factual foundation may contribute to the final disposition of the dispute, there are a number of exceptions that justify addressing a petition on the merits despite that fact. One of those exceptions is when the law under scrutiny may have a chilling effect. By means of the chilling effect, the law infringes the violated right by its very existence. In addition, the chilling effect can create a vicious circle in which the Court refrains from addressing the law’s constitutionality in the absence of actual application, but the law is not applied due to the chilling effect, which deters – sometimes unlawfully – actions contrary to the law. President A. Grunis addressed this in the Sabah case:

The best known exception to addressing the constitutionality of a law even before it has been put into effect is the fear of a “chilling effect” … What we are referring to is situations in which allowing the law to remain in force may deter people and cause them to refrain from otherwise lawful conduct due to the fear of the enforcement of the law. In such cases, the very existence of the legal authority may violate constitutional rights, and therefore the Court’s review is required even before the law is applied. The chilling effect is cited in American case-law as an exception that justifies examining a matter even if it is not yet ripe. For the most part, the exception is applied to petitions in regard to the violation of freedom of speech … [ibid., para. 16 of the opinion of A. Grunis P.).

50.       An example of the application of the chilling-effect exception can be found in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). In that case, the United States Supreme Court reviewed a federal law that prohibited corporations from providing funding to campaigns for or against a candidate for election. The United States Supreme Court held that corporations could not comprehensively be forbidden to expend monies in that manner, as such a restriction was repugnant to the constitutional right to freedom of speech. One of the arguments of the respondents in the case was that the constitutional claims raised by Citizens United should be considered “as applied”. The Court rejected that argument. It held, inter alia, that postponing the hearing of the claims would lead to a chilling effect upon freedom of speech. The Court explained that substantial litigation of the law’s provisions could require a lengthy process. In the meantime, the right to freedom of speech might be violated as a result of the chilling effect, which might also result in potential petitioners not challenging the law. This effect is particularly problematic where political speech is involved, and where the restriction under review concerns speech in regard to elections. Justice Kennedy wrote:

[S]ubstantial time would be required to bring clarity to the application of the statutory provision on these points in order to avoid any chilling effect caused by some improper interpretation... Here, Citizens United decided to litigate its case to the end. Today, Citizens United finally learns, two years after the fact, whether it could have spoken during the 2008 Presidential primary--long after the opportunity to persuade primary voters has passed [ibid., pp. 333-334].

            These word are also appropriate in the case before us. As explained above, the Boycott Law may have a real chilling effect on freedom of political speech. Such a violation of freedom of expression exists whether or not the Law’s sanctions are actually put into effect. Denying the petition for lack of ripeness, and waiting for the law to be given effect in practice would allow this ongoing violation to continue. In practice, the chilling effect may even lead to extending the time that would pass until the “case-by-case” examination of the Law, or until enough data is collected to justify its review in the framework of a petition to this Court. The chilling effect deters potential speakers from calling for a boycott as defined by the Law in a manner that reduces the number of those who might bring the Law before the courts. In my opinion, the Boycott Law violates freedom of expression by its very enactment. Therefore, we should review its constitutionality now, and not wait, as my colleague proposes, for its review “indirectly” or “from the bottom up”.

51.       Comparative Law – My colleague Justice Melcer referred to a number of laws of different countries that treat of calls for boycott in one way or another.  Indeed, various countries have arrangements for limiting the imposition of boycotts in one way or another. Thus, for example, the American Export Administration Act, 50 USCS Appx (1977) (hereinafter: EAA) empowers the President to establish directives that would prohibit participating in a boycott declared by a foreign state against a friendly state. I do not believe that this legislation is relevant to our discussion. The purpose of the EAA, as presented by the state in its response to the petition, is the protection of American foreign policy. The EAA does not directly address “private” boycotts, and it appear not to directly treat of boycotts related to the specific policies of the friendly state, such as Israel’s policy in regard to the Area. As opposed to the arrangement in the EAA, the Boycott Law – particularly the arrangement in regard to the Area – does not exclusively concern Israeli foreign policy, but rather imposes restrictions on internal Israeli public discourse. My colleague also referred to the “anti-discrimination law” of various countries, including France and Germany. In my opinion, these, too, are irrelevant to the matter before us. Even if there is justification for prohibiting calls for boycott that comprise certain discriminatory aspects, as can be seen in those comparative law provisions, and even in Israeli anti-discrimination laws, there is no justification for doing so only in regard to a certain type of political positions.

52.       A comment on recourse to American law – In my opinion, I referred several times to doctrines and cases from American law. It should be noted in this regard that there are significant differences between our legal system and the American legal system in regard to the scope of protection granted to freedom of expression. As a rule, the protection granted to freedom of expression in the United States is broader. The constitutional balancing equations employed in the United States in cases of violation of freedom of speech are different from those that we employ, particularly in regard to content-related restrictions on freedom of speech (see, e.g.: United States v. Alvarez, 132 S. Ct. 2537, 2543-2544 (2012); United States v. Stevens, 130 S. Ct. 1577, 1584 (2010); Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, 2733 (2011); Reichman, pp. 192-193; Aharon Barak, “The American Constitution and Israeli Law,” in Selected Essays, vol. 1, 385, 388-391 (2000)). In view of those differences, it should be clear that the American rules cannot be applied as such. However, the principles and methods of analysis that were presented are relevant to the matter before us. They allow us to examine the challenges that the American legal system confronted in regard to freedom of expression, and they can shed light on the relevant problems. Thus, for example, reference to American law elucidates the dangers attendant to content-based state intervention in the marketplace of expression. It focuses a spotlight on some of the relevant considerations for protection (or lack of protection) of coercive speech. It proposes a equilibrium point between freedom of expression and the state’s power to decide whom to fund, and sheds light on the various considerations relevant to invoking the ripeness doctrine. The decisions of the United States Supreme Court in these matters are, in my opinion, worthy of examination and study, even if we ultimately decide not to adopt them. In any case, the final decision is one “made in Israel”. It is founded upon Israeli legal principles, and upon the Israeli constitutional tradition. These Israeli principles – and only they – ground my above opinion.

53.       Public trust – The Boycott Law concerns one of the most heated and charged political issues in Israeli society. My conclusion is rooted in legal considerations. It derives from the supreme importance of freedom of political expression. However, despite its being a legal conclusion, our decision in regard to this petition will be of political significance. Leaving the Law intact, as written, will be celebrated by part of the public, while striking it down or restricting it will be welcomed by another part of the public. Every result may negatively affect public trust in the judiciary. We have no control over that. However, “the desire to ensure public trust in the judicial system does not mean that a judge must decide contrary to his conscience. Judges must know how to ignore the passing winds of the moment, which sometimes blow in one direction and sometimes in another, sometimes as a blessing and sometimes a curse” (CrimA 8080/12 State of Israel v. Olmert (published in Nevo) (July 6, 2014) para. 12 of my opinion). In this regard, we may return to the relevant insight of Justice M. Landau in HCJ 390/79 Dwiekat v. Government of Israel, IsrSC 34 (1) 1 (1979):

In this instance, we have appropriate sources for ruling and we have no need, and indeed we must not, when sitting in judgment, take our personal views as citizens of the country into account. Yet, there is still grave concern that the Court would appear to be abandoning its proper place and descending into the arena of public debate, and that its ruling will be applauded by some of the public and utterly, vehemently rejected by others. In this sense, I see myself here as one who’s duty is to rule in accordance with the law on any matter lawfully brought before the Court. It forces me, to rise above the disputes that divide the public, knowing full well in advance that the wider public will not note the legal argumentation but only the final conclusion, and that the appropriate status of the Court, as an institution, may be harmed. Alas, what are we to do when this is our role and our duty as judges [ibid., p. 4].

54.       In conclusion, if my opinion be heard, we would instruct that the Law be interpreted as stated in paras. 45-47 of my opinion, in order to avoid the severe result of striking down the Law as unconstitutional.

 

Justice N. Hendel

The Constitutional Discourse in this Case

1.         A constitutional petition may take many forms. At times, it concerns the boundary of a legal norm, and at times it may accentuate the importance of a particular legal value that may have been neglected. And sometimes a petition contends with a conflict created by the clash of two revered, fundamental values. Such a conflict may counterpose the one and the many, the individual and the public, as opponents in a constitutional contest. That is the case in the matter before us. It places freedom of political expression on one side, and Israeli society’s desire to protect itself against harmful activities that continually harass it, on the other.

2.         Freedom of expression is the lifeblood of democracy. In my view, it is a substantive, practical factor that distinguishes a democratic society from one that is not. It should come as no surprise that, already in the early days of the state,  freedom of expression was established as a fundamental constitutional principle (HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (1) 871, 878 (1953), IsrSJ 1 90 [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case). That case was decided long – some forty years – before the enactment of Basic Law: Human Dignity and Liberty. Judicial recognition of the singular importance of freedom of expression came into being decades before the modern constitutional discourse that now characterizes Israeli society and many others.

            Of course, freedom of expression is not an absolute right. It must be balanced and weighed opposite other rights and interest of independent importance, even if not necessarily of the same weight and power. I will address this below. Nevertheless, as I pointed out in the Further Hearing in the Ilana Dayan case:

The preeminent status of freedom of expression in the State of Israel cannot be questioned. As early as the Kol Ha’am case, freedom of expression was deemed a “supreme value” that “constitutes the pre-requisite to the realisation of almost all the other freedoms” (HCJ 75/73 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (1) 871, 878 (1953)). That is the first example of recognition of a constitutional right “ex nihilo”, as is only proper for the first days of creation [CFH 2121/12 A v. Dayan, (published in Nevo) para. 3 of my opinion].

And as my colleague Deputy President E. Rivlin wrote in the decision that was the subject of the Further Hearing:

This liberty, which is not second to none but which nothing precedes, was intended, first and foremost, to allow a person to express his personal identity. Freedom of expression allows every person to express his personal feelings and characteristics, to express his concerns, and thereby to develop and cultivate his identity […]. In that sense, freedom of expression is part of human autonomy, part of one’s right to self-definition, and part of one’s ability to give expression to one’s uniqueness. It is the right to self-fulfillment [CA 751/10 A v. Dayan (published in Nevo) (Feb. 8, 2012) para. 62].

            This is especially true in all that concerns freedom of political expression, that is: the individual’s right to express his opinions and views on various aspects of governance in a clear voice. In practice, the primary rationales grounding the recognition of freedom of expression are all the more pertinent in regard to freedom of political speech. In this regard, Justice Agranat’s word in the Kol Ha’am case are particularly apt:

The principle of freedom of expression is closely bound up with the democratic process. In an autocratic regime, the ruler is looked upon as a superman and as one who knows, therefore, what is good and what is bad for his subjects. Accordingly, it is forbidden openly to criticise the political acts of the ruler, and whoever desires to draw his attention to some mistake he has made has to do so by way of direct application to him, always showing an attitude of respect towards him. Meanwhile, whether the ruler has erred or not, no one is permitted to voice any criticism of him in public, since that is liable to injure his right to demand obedience […]. On the other hand, in a state with a democratic regime - that is, government by the “will of the people” - the “rulers” are looked upon as agents and representatives of the people who elected them, and the latter are entitled, therefore, at any time, to scrutinize their political acts, whether with the object of correcting those acts and making new arrangements in the state, or with the object of bringing about the immediate dismissal of the "rulers", or their replacement as a result of elections [p. 876 (English: para. “A”, per Agranat J.)].

And let us emphasize: Freedom of expression is not practically tested when we are concerned with the expression of views that are at the very heart of the consensus. The problem arises when a person wishes to express opinions that are somewhat – or even very – remote from society’s accepted views. Those are views that the majority may see as extreme, outrageous, and even harmful. “A strong, true democracy must ensure that the manner for confronting such opinions not be by way of prohibition of their dissemination from on high, but rather through free, open debate in which every member of society can arrive at his own opinion” (HCJ 399/85 MK Rabbi Meir Kahane v. Board of the Broadcasting Authority, IsrSC 41 (3) 255, 310 (July 27, 1987), per G. Bach J.). Thus we find that the Kol Ha’am decision stands tall when an individual voice confronts the nation on a political matter.

The great importance of freedom of political expression is premised upon a number of grounds.

First, the claim that freedom of expression aids in the exchange of opinions is of particular importance in the political arena. The most significant and influential normative arrangements in the political public are established in that forum.

            Second, freedom of expression aids in realizing the democratic component of majority decision. According to various conceptions, the value of the election process rises to the extent that the public votes intelligently, on the basis of a position grounded in familiarity with facts and various claims of the candidates. One might even say that the centrality of freedom of political expression derives precisely from the fact that there is no right answer to political questions. In this area, there is no examination of facts or desire to reach the absolute truth. Politics treats of questions that can and should be the subjects of debate. The hope in a democratic society is that the majority is right. But a 51% majority does not guarantee that the majority view is necessarily more intelligent than that of the minority. Therefore, the ideological “give and take”, the discourse of different views – including those that reside at the periphery – is necessary in the extreme. Freedom of expression is important not only on Election Day, but always, as the public debate continually influences the decision making of the leaders of the political branches.

This second ground for the great importance of freedom of political expression also comprises the third. The latter serves as a means for the constant monitoring of the activities and decisions of the various governmental agencies.

Fourth, according to certain approaches, the participation of individuals in the political process is of independent value. This derives from a recognition of their dignity and their role as social creatures with values. This ground stand on its own, and goes beyond the influence upon the decisions actually made (see: Re’em Segev, Freedom of Expression: Justifications and Restrictions, 124-148 (2008)).

On a more general level, freedom of political expression is protected not only because we are a democratic state, but also because we are a Jewish state. Thus from the earliest days of our existence. We are told that our Patriarch Abraham was called “Ivri” [“Hebrew”] because he maintained his opposition to the idolatrous regime: “And told Abram the Hebrew [ha-‘ivri] … Rabbi Judah said: The whole world was on one side [‘ever], and he was on the other side [‘ever]” (Genesis Rabba 48:8). The first holiday of the Jewish nation – in fact, its constitutive holiday – is Passover. It is a holiday that counterposes individual liberty and the slavery regime of the Egyptian Pharaoh. These points accentuate the centrality of freedom of political speech as integral to freedom of the individual confronted by the existing regime that limits his choice. The issue is not only the “marketplace of ideas”, but a person’s right to freedom of expression in opposition to the ruling political regime. The power of the individual to make his own decisions and express his views without society – even a democratic society – deciding for him in the public’s name.

I note these matters first, because the petitions before the Court require that we examine the borders of freedom of expression. The petitions all focus upon the constitutionality of the Boycott Law, while emphasizing different aspects. It would seem that our decision in this matter may depend upon the weight to be accorded to freedom of political expression.

3.         As the bill explains, the purpose of the Law is “to prevent harm caused by the phenomenon of imposing boycotts on various entities due to their connection to the State of Israel. The boycotts may harm commercial, cultural or academic activity that is the object of the boycott, or inflict serious loss thereto” (H.H. 373 (2.3.2011).

            It is clear that the Law’s initiators considered the importance of freedom of political speech. Thus, for example, the final version of the Law does not include a criminal sanction against a person calling for a boycott. Another example is that the Law is not directed at every person calling for a boycott, but only one who “knowingly publishes a public call for a boycott against the State of Israel” (hereinafter: the  “caller” or the “call for a boycott”). My colleague Justice Melcer also provided an excellent review of additional aspects of the values comprised by the Law, for example the desire to prevent discrimination on the basis of a connection to a country of origin (para. 32 of his opinion). Nevertheless, the matter in its entirety must be examined from the perspective of constitutional judicial review.

            The decision in this case is not an easy one. It raises legal, extra-legal and social questions. As judges, our role is, first and foremost, to examine the law as it is. In other words, the conflict –which must be evaluated and decided – arises in a concrete manner, and affects particular aspects of specific rights. It concerns a particular legal text. That text – the Boycott Law, in the matter before us – is the basis for that decision.

            The Law consists of a number of provisions. First, it defines the boycott (sec. 1), which is the cornerstone of the other provisions of the Law. That is followed by a number of sanctions that may apply to a person calling for a boycott under the established conditions. The sanctions can be divided into three categories: torts (sec. 2), prevention of participation in tenders (sec. 3), and denial of benefits (sec. 4). I will separately address each element in that order.

Definition of the Boycott

4.         Section 1 of the Law states:

In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.      

            It should be noted that the definition comprises three elements: refraining from economic, cultural or academic ties; connection with the State of Israel, one of its institutions or an area under its control; economic, cultural or academic harm.

            As noted, the definition section focuses upon “boycott”. However, one cannot learn from that, alone, what action by an individual might lead to the imposition of the three sanctions. The answer to that may be found in the relevant sections, 2-4. Common to all of those is that the particular sanction – payment of damages, prevention from participating in a tender, or denial of benefits – will apply to one who knowingly publishes a public call for a boycott. To complete the picture, it should be noted that sections 3-4 also refer to one who committed to participate in a boycott. The emphasis is upon the commitment, and not on the participation. Either way, this means that in order to fall within the scope of the sanctions, the very call for participation in a boycott suffices, even in the absence of any actual participation. Participation in a boycott is not required in order to fall within the purview of the sanctions. A concrete examination of the Law reveals that it targets freedom of expression in the range of freedom of political expression – for example, the State as such, or even parts of it.  We thus see that the Law is intended to restrict the freedom of political expression. However, when we look at the call, we find that that we are not concerned with the highest degree of freedom of expression, which is the pure expression of an opinion or a position, or the publication of facts. The Law does not apply to an individual’s expression by which he, personally, imposes a boycott on Israel, as defined by the Law. The expression is calling for a boycott by another. But still, we are concerned with a “call”, which is clearly part of freedom of expression (on this point, see the para. 6 of opinion of my colleague Justice Y. Danziger, as well as the references to the articles by Theresa J. Lee and Prof. Nili Cohen). Moreover, we are not concerned with a call for the perpetration of a criminal offense or a civil tort. As noted, a boycott, itself, is not prohibited by the Boycott Law. Therefore, even if there are more “pure” expressions of freedom of political expression, we are still within its compass, with all that derives therefrom in terms of the recognition of the proper weight of the infringement. That is to say, the type of infringement and its importance are of significance in a democratic state.

            As noted, the right to freedom of expression stands at the highest level. I have elsewhere expressed my opinion that when the Court conducts judicial review, it is important to consider the location of the relevant right on the scale of rights. I believe that even if this is not the place to decide a hierarchic structure of rights, and even if that may not be desirable in a relative and proportionate constitutional system, it would be proper – even in accordance with the instructions of the legislature in sec. 8 of Basic Law: Human Dignity and Liberty – to consider the type of right being infringed, while establishing principles. That is also the case in the United States, where three levels of rights are customarily distinguished for the purpose of deciding the requisite level of judicial review. In short, one can summarize that the Rational Basis Test is employed in regard to an arbitrary governmental decision; discrimination on the basis of age or sex will be judicially reviewed through Intermediate Scrutiny; while racial discrimination – which is viewed as a particularly severe form of discrimination – will be subjected to Strict Scrutiny (see: HCJ 466/07 Galon v. Attorney General (published in Nevo) (Jan. 11, 2012), para. 4 of my opinion [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]).

            This is the required approach. To paraphrase George Orwell’s Animal Farm, one might say that “not all rights are equal; some rights are more equal than others”. This is all the more so when the Court must examine a law under the proportionality test, in both its broad and narrow senses. Clearly, this does not mean that due to the importance of freedom of expression, or even freedom of political expression, it will always prevail in any competition with another right. However, the status of freedom of expression does influence the constitutional analysis in the concrete case.

             Reference to American law may help sharpen the point. That system recognizes the restriction of freedom of expression in certain cases. However, the list of cases is very limited, and focuses primarily upon a situation in which one person’s freedom of expression causes harm to another. The leading case in this regard is Brandenburg v. Ohio, 395 U.S. 444 (1969), which established when certain expression crosses the line distinguishing protected speech and a criminal offense. It was held that there is a two-part test: direct incitement, and likelihood of imminent lawless action. A causal connection must be shown between the speech under review and the expected harm or unlawful conduct.

            There are, of course, Israeli laws that limit freedom of expression, such as the Prohibition of Defamation Law, 5725-1965, sec. 12 of the Civil Wrongs Ordinance [New Version], or sec. 122 of the Knesset Elections [Consolidated Version] Law, 5729-1969. The restriction in those laws was intended to prevent harm of a certain magnitude, for example, limiting freedom of speech that disgraces or humiliates another person. Here we are concerned with speech that may harm income, occupation, employment, and academic research.  But in the background, and not only there, we should again emphasize that a public call for a boycott will suffice to fall within the scope of the sanctions, even if the caller does no participate in the boycott. We point this out not so as to reject such a distinction a priori, but only to show that the Law, as drafted, was primarily intended to limit freedom of expression. That, in my opinion, provides a different perspective of the Boycott Law, as per its language. Just as the law depends upon the facts, so judicial review depends upon the legal text – upon what is says and what it does not say.

 

A Civil Wrong – Section 2

5.         The section, whose heading is “Civil Wrong”, states as follows:

(a) Anyone who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility, commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

(b) In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

            In effect, sec. 2 comprises three different elements: creating a new tort treating of a call for imposing a boycott (ss. (a)); a determination in regard to a certain element of the tort of inducement of breach of contract (ss. (b)); establishing the possibility of awarding damages without proof of damage (ss. (c)). I will begin by stating that, in my opinion, section 2 in its entirety does not stand up to constitutional review, and should therefore be struck down. In order to understand that position, I will make it clear that I am willing to assume that the Law passes the three preliminary tests: by a law and for a proper purpose befitting the values of the State of Israel. I am also willing to assume that the Law passes the first two subtests of proportionality – that of a rational connection and of an alternative, less harmful means. Nevertheless, I am of the opinion that sec. 2, in its entirety, does not pass the third subtest of proportionality: proportionality stricto sensu. I will first examine subsections (a) and (c), which would seem to be more closely related.

6.         The elevated status of freedom of political expression requires a detailed examination of the innovation introduced by the Law, which infringes that right. At first glance, it would appear that sec. 2 of the Law makes it easier for a plaintiff seeking damages in two ways.

            First, damages can be awarded without proof of damage – subsection (c). It is true that this possibility is contingent upon the tort being committed with malice. However, this would not appear to be a sufficiently high bar. The term “malice” is not defined by the Law. It would seem that the legislative intent was to remove cases of negligence or cases in which there was awareness of the possibility of a boycott without intention to cause it (compare with the malice requirement in sec. 131 of the Tenant Protection Law [Consolidated Version], 5732-1972, which was interpreted as referring to an intentional act. See, e.g.: CA 774/80 Badawi Arslan v. Daad Fahoum, IsrSC 35 (3) 584 (1981); LCA 4740/02 Ibrahim Halil Alamad v. Muhammad Zaki Albudari (published in Nevo) (June 23, 2005)). Alternatively, it may be that the requirement refers to a particularly negative motive – a desire to cause harm, like the requirement of malice in the Civil Wrongs Ordinance (see: Israel Gilead, Tort Law: The Limits of Liability, 1160-1162(2012) (Hebrew) (hereinafter: Gilead); Izhak Englard, The Law of Civil Wrongs – The General Part, 2^nd ed., 130, 150 (Gad Tedeschi, ed.)  (1976) (Hebrew)). However, practically speaking, the action of calling for a boycott generally indicates – by its nature – the publisher’s intention that his call will lead to an actual boycott, which fulfils the requirement of a negative motive. That is true even if it is employed as a means for achieving another end, and not with the ultimate objective of harming those boycotted. Thus, the question of how hard it would be to prove the element of malice arises in all its force. It would appear, without making any definitive statement on the issue, that the answer is that it would not present any great difficulty.

            Second, prima facie, it would appear that, under the language of sec. 2(c), it would be possible to impose tort liability without proving some of the classic elements of a tort – a causal connection and causing damage – and that, prima facie, this would also be true under the language of sec. 2(a).  Liability could be imposed under the latter when, according to the content of the call and the circumstances of its publication, there “is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility”. In other words, there is no requirement of proof of causal connection between the call for a boycott and the damage in accordance with the balance of probabilities, but only proof of a reasonable possibility. It would be germane to ask whether lightning the burden of proof in a civil suit, while eroding and infringing freedom of political expression, is proportionate. It has the potential for excessively limiting freedom of political speech. That freedom requires constitutional protection. The legislature chose the sanction of tortious liability while abandoning the approach of criminal responsibility, and rightly so. However, one might argue that this two-pronged relaxing of the tort requirements makes the tort quasi-punitive.

            I find this disturbing, but I accept the solution proposed by my colleague Justice Melcer to be a legitimate interpretation.  His position is that sec. 2(c), treating of exemplary damages, should be struck down, and that the elements of the tort under sec. 2(a) be construed in a manner consistent with the elements of a tort as established by the Civil Wrongs Ordinance. In other words, in proving a tort under the Boycott Law, the plaintiff would be required to show both damage and a causal connection between the call and that damage he incurred. In my view, one might ask whether that proposed interpretation is necessarily what the legislature subjectively intended. However, the interpretation of sec. 2(a) proposed by my colleague is possible under the language of the Law (and there is even some support for it in the bill). It is the accepted rule that a construction that prevents the voiding of a law is preferable to one that renders it void. According to the proposed approach, the phrase “[according to] circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility” is an additional condition.  In other words, it places an additional hurdle before proof of the tort. However, “Anyone who knowingly publishes a public call for a boycott … commits a civil wrong and the provisions of the Civil Wrongs Ordinance will apply to him”. In other words, the tests for the causal connection and the proof of damage derive from the Civil Wrongs Ordinance. That interpretation renders sec. 2(c), regarding the imposition of exemplary damages, void, while sec 2(a) – boycott as a tort – is preserved subject to the requirement of proof of a causal connection and damage as required under tort law.

            However, this is not the end of the road. In other words, while I accept the proposed construction, I do not believe that sec. 2(a) meets the requirements of constitutionality. My focus will now be upon the third test of proportionality – proportionality stricto sensu, harm versus benefit.

 

Section 2(a) – The Proportionality Stricto Sensu Test

7.         My conclusion that this section does not pass the proportionality stricto sensu test rests upon a number of tiers. First, there is the near-certainty test. My colleague Justice Melcer explained that an infringement of freedom of expression in order to protect a competing interest must meet the criterion of near certainty. Under this test, the call under discussion must have a high probability of infringing the protected interest (see: the Kol Ha’am case, pp. 887-889). But he argues that this presents no difficulty in in the present case. The reason for this is that having established the need for proof of a causal connection between the conduct and the damage, we are no longer concerned with a near certainty of damage, but rather with certainty. This clever argument appears logical. However, I am not sure that it is precise. The reason for this is that the factual causal connection test examines the relationship between the speech and the result ex post. It does not examine the a priori reasonableness of the connection. As opposed to this, the near certainty test is a substantive test that applies ex ante, at the time of the call for a boycott. It is intended to filter from the scope of liability those expressions that should not be prevented. The quasi-evidentiary test is meant to regulate conduct or speech in “real time”. The information collected thereafter is but hindsight.

            Consider, for example, a call for a boycott in a closed, small forum of students. It might “leak” out and actually lead to the boycotting of a large commercial company. Near certainty is absent at the moment of speaking, but there may be a causal connection. Indeed, the legal causal connection test is meant to address this. In its framework, the situation is examined at the time of the call itself. That is also true of the “reasonable possibility” test established under sec. 2(a) of the Law. But those tests are not of “near certainty”, but rather are more lenient tests. We thus find that the substantive requirement of near certainty need not be met in order to give rise to the “tort of calling for a boycott”. I am aware that my reservation is not entirely free of doubt, and it, too, is clever. I will, therefore, buttress my conclusion that the constitutional harm exceeds the benefit of retaining sec. 2(a) even without granting weight to this argument, although I believe it has merit.

            The second tier is that we are concerned with the creation of a new tort. The assumption is that in enacting the Law, and particularly sec. 2(a) – a tort of calling for a boycott -- the legislature intended an innovation. Inasmuch as this innovation infringes freedom of political speech, as earlier noted, this requires careful constitutional examination. That examination must attribute the proper weight to the infringement, on the one hand, and to the proper purpose of preventing harm to the State of Israel by means of a boycott, on the other hand. The innovative nature of the Law cannot be denied. As the bill stated:

This bill is intended to establish a new tort that would also apply to cases that do not fall within the scope of the said torts [of inducing breach of contract and negligence], and will make it possible for a person or other entity harmed as a result of a boycott imposed upon it due to its connection to the State to sue for his injury.

            In other words, the legislature did not wish to reiterate what already existed, but rather to break new ground.

8.         The third tier, and with the purpose of thus pinpointing the innovation, treats of the uniqueness of sec. 2(a) as opposed to secs. 3 and 4. The former provides a tool for an individual to sue another individual in tort for his call for a boycott. The latter concern administrative sanctions by the state. This distinction is very significant. Granting such a tool to an individual does not create a proportionate balance between the (proper) purpose and the infringement of freedom of political expression. The reason concerns the relative ease in filing and conducting the suit. Imagine that a person calls for a boycott as defined by the section. During the course of the following three months, there is a drop in the profits of the factories and stores in the boycotted area. That would be sufficient to ground filing a tort suit against the caller, which, prima facie, would meet the threshold requirements. After all, there is a call for a boycott, and injury. The plaintiff can attempt to prove the causal connection in regard to the entire loss: assuming a twenty-percent loss, it may be argued that the entire loss derived from the call. Alternatively, it may be argued that only part of the loss derived from the call – for example, fifty percent. In the latter example, the plaintiff would be able to claim that even though three was a recession during the relevant period, were it not for the call, the loss would have amounted only to fifteen percent. Such a suit could be brought by every factory, business and store in the area. Even a profitable factory would be able to argue that were it not for the call for a boycott, the profit would have been greater, and therefore it incurred damage.

            I am willing to assume that there will be suits in which the damage would be proven by means of the regular tests of tort law. However, many suits would become an instrument – a means for filing suits in order to create a new, harsh reality for various people and entities. The harm of such a situation would be inflicted even if the suit does not succeed. One may even assume that various lawyers will muster for this, also as part of an ideological struggle. Such suits will become a means for political “goring”, with the courts serving as the horns. The harsh result will be a chilling effect that will influence freedom of expression, particularly in the case of an individual defendant. He will have to evaluate (in every sense) his conduct before calling for a boycott, and this in relation to freedom of political speech. As Justice Danziger put it: “The presence of a chilling effect in this case is not at all speculative. The creation of a chilling effect is the primary means chosen by the legislature for achieving the Law’s purpose” (para. 29 of his opinion). And see the clear, comprehensive summary in his opinion, as well as the opinion of my colleague President (Emeritus) Grunis in HCJ 2311/11 Sabah v. Knesset (published in Nevo) (Sept. 17, 2014) para 16 of his opinion).

            This point highlights the difference between the tort under sec. 2, and the administrative sanction under secs. 3 and 4. The latter is exercised by the state, which is entrusted with protecting the interests of the entire general public and of specific groups. As such, it must act in accordance with the criteria of public and administrative law in regard to such matters as selective enforcement, establishing criteria and internal procedures, reasonableness, the rules of natural justice, and so forth. An individual is under no similar duty. This point is expressed both in Israeli and comparative law.

            In Israeli law, we can point to the arrangement under sec. 4 of the Prohibition of Defamation Law [19 L.S.I. 254]:

Defamation of a body of persons, or any group, other than a body corporate […] shall not be a ground for a civil action or private complaint.

            An individual cannot sue another individual for a publication defaming a public of which he is a member. He also cannot file a private complaint. This arrangement does not derive from the view that groups do not require protection of their good name, or under an assumption that the members of a group are not harmed by a publication that disparages or humiliates the group. Those are protected by a criminal prohibition. Why, then, is a member of the group prevented from making recourse to the courts in regard to the publication?

            There are several reasons for this. Among other things, there is a fear that such cases may have a chilling effect upon freedom of expression. Due to this fear, the ability of individuals to “flood” the publisher with civil suits is denied. This is so even in regard to a low degree of expression – “a public falsity” that disparages an entire public (see CA 8345/08 Ofer Ben Natan v. Muhammad Bakri (published in Nevo) (July 27, 2011) para. 8 of the opinion of Justice I. Amit). The proper balance between the conflicting values grants the state the power to institute proceedings. The assumption is that, from the outset, it will wield its power in an appropriate, balanced manner that will prevent a chilling effect and harm to freedom of expression. An additional reason is the view that the protection of a particular public – of the entire public – is a governmental rather than an individual interest. That interest should be protected by the authorities, and not be “privatized” and granted to individuals (ibid.; Khalid Ghanayim,  Mordechai Kremnitzer & Boaz Shnoor, Libel Law: De Lege Lata and De Lege Ferenda, 250 (2005) (Hebrew) (hereinafter: Libel Law).

            To return to the matter at hand, a call for a boycott differs from a “publication of a public falsehood”. There, we may be may be concerned with a false fact. Here, we are concerned with expression that is similar to an opinion. There, the publication may be of no public value. Here, we are concerned with political speech. We should learn from this that if the legislature exercised caution in regard to the less severe case, we should be exponentially more careful in regard to the more severe case. It would not be superfluous to recall that the subject of defaming the public arose in the debate on amending the Defamation Law. The possibility of establishing a civil tort was barely mentioned. As opposed to that, there was support for the view that even establishing a criminal offense would be extreme. Similar situations can be found throughout the world (see: Libel Law, at pp. 248-240).  Protecting the public interest – yes. But, at the same time, entrusting it to the authorities and not to the public. And this due to the care that must be exercised in regard to limiting freedom of expression. Let me put this differently. One of the defenses to a defamation suit is a plea of truth (sec. 14 of the Defamation Law). That defense cannot be sustained in reply to political speech because, as explained above, we are concerned with an opinion rather than a fact.

            As for comparative law, my colleagues Justice Melcer and Justice Danziger presented a broad comparative picture of legislation and case law. In my opinion, comparative law is of particular importance in this case. The reason is that the background of the Law includes acts for and against the boycotts, including boycotts against the State of Israel. It should come as no surprise that the bill’s Explanatory Notes refer to the American Export Administration Act of 1979 (hereinafter: EAA). However, in my opinion, even if we were to accept the comparative law analogies in this regard, they concur with and lend support to my position. The comparative examination reveals that the sanctions in the other legal systems are not between individuals, as in the case of a tort suit, but are granted to the state, for example, in the form of administrative sanctions. Consider, for example, the United States. The two primary pieces of legislation referred to by the Respondents are the EAA and the Ribicoff Amendment to the Tax Reform Act of 1976 (hereinafter: TRA). These pieces of legislation were enacted against the background of the Arab Boycott against the State of Israel, and were intended to help protect the interests of the State of Israel and the United States. In both laws one can find sanctions directed at anyone who participates in a boycott against a country that the United States does not boycott. Thus, in the framework of the amendment to the TRA, certain tax benefits are denied to anyone participating in a boycott (26 USC § 908). In addition, administrative sanctions can be imposed upon such a participant by virtue of sec. 11(c) of the EAA. The law does not comprise a section permitting a citizen who views himself as harmed by the boycott to file a civil suit. Additional laws that appear in the survey submitted to the Constitution Committee also do not establish calling for or participating in a boycott as a civil wrong (see: http://www.knesset.gov.il/mmm/data/pdf/m02861.pdf).

            According to the Boycott Law Bill, it is not the only legislation treating of calls for a boycott. According to that view, a suit can be filed for the torts of negligence or inducement of breach of contract. Even if we were to assume that to be wholly or partly correct in accordance with the circumstances, we are, in any case, concerned with exceptions that certainly do not allow for suits to the extent and in the circumstances permitted under the current language of section 2 of the Law.  That is true both for Israel and for other countries. Let us again consider the situation in the United States. Attempts to sue for calling for a boycott, even under existing tort causes of action, failed due to the importance of freedom of expression. My colleague Justice Danziger addressed the Caliborne case, in which a similar tort suit was denied, at some length. In that case, as noted, residents boycotted a group of merchants in order to influence governmental policy. As a result, those merchants suffered financial losses. As was held: “Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action”. And even if it were possible to present circumstances or an example in which such a suit might prevail – which would appear to be the position of my colleague Justice Melcer – that claim should not be accepted in its comprehensive form. The Supreme Court’s case law has recognized the conflict between opposing the boycott and the right to freedom of expression, and has preferred the latter over the former. To return to our legal system, the language of the section is broad – too broad. The criteria of the proportionality stricto sensu test are not met. So it would seem to be in the entire world, and so in the State of Israel.

            And note that I am not stating that we must follow in the footsteps of American law in regard to the judicial review of sec. 2. In the United States, the result derives from the force of the First Amendment to the Constitution, whereas in our legal system, the Law is examined in accordance with the constitutional test under sec. 8 of Basic Law: Human Dignity and Liberty. Of course, however, the status of freedom of political expression is recognized by this Court, and weight can be given to the American approach in that regard. From this perspective, both in principle and in practice, I am of the opinion that the harm is greater than the benefit of the Law. The section does not meet the test of proportionality stricto sensu.

9.         The fourth tier is of a practical nature. There is, in my opinion, a problem created in terms of judicial policy considerations. Sec. 2 of the Law requires that the court contend with additional factors as a trial court of first instance rather than an instance performing administrative review and examining the margin of proportionality. For example, the court must weigh the content of the call and the circumstances of its publication (sec. 2(a)), as well as the circumstances of the commission of the tort, its severity and its scope (sec. 2(c)). Experience shows that in quantifying various forms of damage, a court must get into the thick of things and perform various estimates. For example, in order to decide the fate of a private complaint before it, it will have to evaluate, compare and distinguish different cases and calls for boycotts of various scopes and types. In that regard, the judicial task differs from evaluating suffering or even libel, regarding which there are factual issues rather than disagreements in the political arena. There is a fear that the new Law will require – or, at least may drag – the courts examining tort suits – the Magistrates Court and the District Court – to delve into and decide purely political matters. In my opinion, it would be better that such tasks not be performed within their walls.

            Another aspect of this tier is the problematic nature of the Law from a tort-law perspective. The Law makes it possible for a large number of plaintiffs to sue for purely economic damage. Questions relating to proving the necessary causal connection were not clarified. It would seem that sec. 2 suffers from inherent ambiguity. Even if that does not lead to invalidation, the ambiguity carries weight in the constitutional review of freedom of political expression in a civil proceeding. In this regard, we should note the American doctrine of “void for vagueness” in regard to criminal offenses. Nevertheless, it carries weight in constitutional review of civil proceedings. Of course, if I were of the opinion that the section could survive constitutional review, then considerations of judicial policy – or more precisely, policy considerations in regard to the judicial task – would probably not tip the scales on their own. But, inasmuch as I do not believe that to be the case, it would be worthwhile to present the said problem. This information reinforce the possibility of a violation of freedom of political expression. The more fundamental the infringed right, and the more severe its ramifications, the greater the need for precision in its delineation. The language of sec. 2 does not meet that requirement.

            The fifth tier is the very statement that we are treating of a tort. This is related to the innovation in the enactment of sec. 2. The bill stated:

In order to prevent such damage, it is proposed to establish that knowing publication of a public call for the imposition of a boycott on any entity due to its connection to the State of Israel be deemed a tort to which the provisions of the Civil Wrongs Ordinance [New Version] will apply. In other words, it will be possible to seek damages for the damage caused by the tort … Even now, a person harmed as the result of such a boycott may sue in tort, in the appropriate circumstances, for the tort of inducement of breach of contract or the tort of negligence.

            Without setting anything in stone, I would say that I am not convinced that it would be possible, at present, to file a negligence suit, except, perhaps, in exceptional cases. A central element of that tort is the existence of a duty. Is a person normally subject to a duty not to call for a boycott? This is not comparable to calling for prohibited conduct like racism (cf. LCrimA 2533/10 State of Israel v. Michael Ben Chorin (published in Nevo) (Dec. 26, 2011) paras. 5-7). It is also not comparable to procuring a civil wrong under sec. 12 of the Civil Wrongs Ordinance. In the above examples, a person calls for the perpetration of an act that is, itself, an offence or a tort. Calling for a boycott, at least in some of situations, is a person’s basic right of conscience. There are people whose conscience will not permit them to purchase an automobile produced by a certain country. Others are upset by the very thought of patronizing certain stores that sell non-kosher products alongside kosher ones. They do not wish to empower those that they perceive as “offenders”. To each his choices, and to each his conscience. Such choices stand at the core of a person’s freedom to realize his values in his lifestyle. At times, a call for a boycott is a call to act in accordance with one’s conscience. Conscience may be the compass of freedom of expression, including the freedom of political expression. Various policy considerations may indeed justify prohibitions upon the imposing of boycotts, and more widely, calls for boycotts. It is not my intention to loosen all restraint. The weight on each side of the scales will decide.

10.       Looked at in its entirety, and for all the reasons stated, it is my opinion that a detailed examination of sec. 2(a) of the Boycott Law leads to the conclusion that the harm caused by the infringement of freedom of political speech exceeds the benefit accruing from the protection it affords to the purpose of the Boycott Law. I would again emphasize that the freedom of political speech does not grant comprehensive immunity. There are possible situations in which the call would justify its restriction by appropriate means. In that, sec. 2(a) – which establishes a civil wrong – differs from secs. 3-4 and their administrative sanctions. These section are consistent with the necessary balance required by proportionality stricto sensu, as I shall explain in greater detail.

 

Section 2(b) – Proportionality Stricto Sensu

11.       Section 2(b) establishes that a person calling for a boycott, as defined by the Law, does not act with sufficient justification in regard to the tort of causing a breach of contract. Does this meet the requirements of the proportionality stricto sensu test? Pursuant to the above, I am of the opinion that this section of the Boycott Law passes the other tests set out by the Limitation Clause, and therefore, I shall proceed to examine proportionality stricto sensu.

            The tort of causing a breach of contract is set forth in sec. 62 of the Civil Wrongs Ordinance [New Version] as follows:

Unlawfully Causing Breach of Contract

62. (a) Any person who knowingly and without sufficient justification causes any other person to break a legally binding contract with a third person commits a civil wrong against such third person; Provided that such third person will not recover compensation in respect of such civil wrong unless he has suffered pecuniary damage thereby.

            The rationale is clear – protecting performance of contracts. We cannot discount the possibility that a statement or commercial act may cause a breach of contract. Therefore, the legislature limited tortious liability by means of two primary liability filters: the first, a requirement of a mental element of subjective awareness that the conduct would cause a breach of conduct, and the second, the requirement of a lack of sufficient justification (and cf. Gilead, at p. 1168, fn. 53). Thus there is recognition of the complex – protection of contracts along with “sufficient justification”. The nature of the justification is not explicitly stated in the law. An examination of Israeli law, comparative law, and the legal literature reveals that we are concerned with a “safety-valve concept” [Ventilbegriffe; concetti volvola] in the scope of which concerns of justice and various interests may be considered (see: CA 406/59 Lindsay v. Scheiber, IsrSC 14 (3) 2422, 2427 (1960); Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 495-496, [1942] 1 All ER 142 at 175, HL, per Lord Porter). Not surprisingly, the opinion has been expressed that “this element is the most difficult to delimit”, and “it requires that the court exercise broad discretion” (Nili Cohen, Inducing Breach of Contract (The Law of Civil Wrongs – The Particular Torts, G. Tedeschi, ed., 207 (1986)) (Hebrew) (hereinafter: Cohen).

12.       Despite the complexity of the Law’s provisions and the subject, I would conclude that a call for a boycott for political reasons is constitutionally protected. The reasons given in regard to sec. 2(a) also hold in regard to the existing tort of causing breach of contract. Therefore, there cannot but be a similar result. I will clarify my position.

            The emphasis of this discussion will center upon the element of justification, which is the core of the amendment in the Boycott Law. As the language of the Law states: “In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.” In other words, the consideration of freedom of political speech by means of a call for a boycott, as defined by the Law, does not grant a person who causes a breach of contract a justification that would exempt that action from the compass of tortious liability.

            Several types of justification have been recognized in the case law in Israel and abroad. One type concerns causing a breach that is desirable, or by the exercise of a lawful right. One example is the case of conflicting contracts. The first buyer who insists upon his rights, justifiably causes a breach of contract with the second buyer, inasmuch as his right has priority (See Cohen, p. 219). Another example is the “necessity defense”, as in causing a person to breach an employment contract in order to save the life of another (see Cohen, pp. 212-218). Another type of defense may be available to a person causing a breach of contract even when the breach itself is not deemed justified or desirable. A person may have a justification if he acted in good faith (see: CA 3668/98 Best Buy Marketing Ltd. v. PDS Holdings Ltd, IsrSC 53 (3) 180, 189-190 (1999); Cohen, pp. 233-235). In other situations, a public interest can lead to an exemption from tortious liability. In CA Yosef Etzion v. Naftali Stein, IsrSC 45 (3) 554, 560-561 (1991), it was held that a lawyer has a defense of justification for giving advice to a client that causes a breach of contract. The reason for that is desire to prevent a chilling effect that would harm a lawyer’s ability to properly protect his client’s interests. Another example can be found in sec. 62 of the Civil Wrongs Ordinance itself, which establishes that “a strike or lockout will not be deemed to be a breach of contract”. That may be viewed as a sort of defense intended to protect the ability of workers to realize the freedom to strike (see: Ruth Ben-Israel, “Tort Liability for Strike Action,” 14 Iyunei Mishpat (Tel Aviv University Law Review) 149, 169-170 (1989) (Hebrew)). Does the protection of the freedom of political expression also serve as justification?

            In the United States, tortious interference with contractual relations, under sec. 766 of the Restatement of Torts (Second) (hereinafter: the Restatement), has been addressed in the context of political boycotts. This tort has been interpreted, inter alia, as including an action lacking justification (see sec. 767 of the Restatement). Whereas a boycott for economic reasons may fall within the scope of this tort, it was held that a political boycott is protected by the constitutional right to freedom of speech. In Environmental Planning & Information Council v. Superior Court, 36 Cal. 3d 188 (1984) (hereinafter: the EPIC case), the California court addressed this issue and concluded:

Most of the cases in which claims of tortious interference have been considered have involved either pure commercial relationships or union-management relationships. There is a paucity of authority in the application of common law principles to a situation such as this, in which a group organized for political purposes allegedly undertakes a consumer boycott to achieve its ends. What authority does exist in this arena strongly suggests, even apart from constitutional doctrine, that such action will not give rise to liability [p. 194].

            In other words, most cases of tortious interference in contracts are connected to purely economic relationships or labor relations. As opposed to this, the case law supports the conclusion that, even in the absence of constitutional doctrine, a politically motivated boycott does not create liability. The court arrived at this conclusion, inter alia, after surveying the relevant case law, including the Claiborne case. It would not be superfluous to quote Justice Stevens, delivering the opinion of the Court, whose words were considered there, and which are appropriate to the case before us, as well:

While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U.S. 455, 467. “[Speech] concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75. “There is a profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 [p. 913].

            Freedom of political expression in public matters merits the greatest protection. Incidentally, we should note the reference to New York Times Co. v. Sullivan, 376 U.S. 254, 270, whose principles have been adopted in our legal system in the law of defamation (see: CA 323/98 Sharon v. Benziman, IsrSC 56 (3) 245, 266 (2002)). To return to the tension between causing a breach of contract and freedom of expression, the EPIC case held that that in the typical case of causing a breach of contract for commercial reasons, the court must balance the interests of the parties and of the public. However, where the “defendant’s activities constitute a ‘politically motivated boycott designed to force governmental and economic change,’” the Court is “precluded by the First Amendment itself from gauging the degree of constitutional protection by the content or subject matter of the speech: ‘[There] is an equality of status' in the field of ideas’” (ibid. at p. 197). In other words, when we are concerned with acts that constitute a political boycott intended to bring about a change in the policy of the authorities, the law will protect freedom of political speech. There is an equality of status in the field of ideas. Under this approach, the court will not decide by “grading”, so to speak, one political opinion as opposed to another. As may be recalled, the true test of freedom of political expression is not when it is in the consensus, or even near it, but when it is very far from it, and not merely by a stone’s throw.

            This is also true in regard to a call for a boycott as defined in the Boycott Law, and also when the call is intended to cause a breach of binding contracts, as for example, in the case of Cincinnati Arts Association v. Jones et al., 120 Ohio Misc. 2d 26; 2002-Ohio-5428. In that case, the defendants called for a boycott following the death of a person at the hands of the police. In the framework of that boycott, there was a call for artists to cancel their appearances in the city concerned. The court held that the call was constitutionally protected, and dismissed the tort suit filed by the promoters of the events that were cancelled.

13.       The result arrived at by the American courts should come as no surprise. The balance that we performed in the examination of sec. 2(a) of the Boycott Law also holds in regard to the examination of the constitutionality of sec. 2(b). Practically speaking, many calls for boycott concern existing contractual relations – calls for artists to cancel their appearances, calls for the media to cancel existing commercial ties, and so forth.

            True to my above approach, constitutional review is not conducted in light of the First Amendment of the United States Constitution. We are concerned with the proportionality test established under sec. 8 of Basic Law: Human Dignity and Liberty, in general, and at this stage, the proportionality test stricto sensu, in particular. From that standpoint, entrusting the power to impose sanctions for the expression of a political position in the hands of an individual is not proportionate. I will refer to the reasons given above in regard to the constitutional analysis of the tort established in sec. 2(a), including the chilling effect that derives from filing a suit by one individual against another. As stated, there is no effective “filter” that would prevent the filing of multiple, political tort suits in the various judicial instances. An after-the-fact dismissal of a suit by the court will not prevent the overall influence of the effect upon freedom of expression. It is a priori improper to conduct political debates in the courts. And it is also certainly undesirable, in terms of judicial policy, to allow such conflicts to be brought before the courts for judicial decision. It should again be emphasized that we are concerned, inter alia, with subjects that are at the heart of the political debate. This is as opposed to entrusting this sensitive matter in the hands of the government, which enforces the protection of the interests of the boycotted group while employing a filter from the start, as will be explained below. This allows for the achievement of a proportionate balance between the purpose and the means adopted to protect it. Moreover, judicial review can be conducted in advance, by examining the directives or criteria established by the authorities.

            One might raise objections to this approach. One possible argument is that it cannot definitively be stated that a politically motivated call for a boycott will always be immune to a claim of inducing breach of contract. “Justification” is a broad safety-valve concept. Within its bounds considerations of justice, personal interests and public interests are examined. The scope of judicial discretion is broad and flexible. Moreover, sec. 62(a) of the Civil Wrongs Ordinance comprises other elements – “knowingly” and “causal connection”. Each of the elements comprises a broad spectrum of situations. As for knowingly, in one case a person converses with another and asks him to breach a specific contract. In another case someone makes a general call for the breach of contracts in a particular field, knowing that people may respond to the call. The causal connection may also be complicated and difficult to untangle. Is it sufficient that the defendant presented convincing arguments in expressing his political position? Is procuring required? Is there a difference between a situation in which the caller for a boycott initiates the call, and one in which the party in breach asks his opinion? (See and compare: CA 123/50 Bauernfreud v. Dresner, IsrSC 5 (1) 1559, 1573 (1951), Cohen, pp 233-236).

            From these question we see that, even absent the condition of justification, it is possible that the tests of causal connection (“caused”) and mental element (“knowingly”), each independently erects challenging hurdles in the path of proving the tort of inducing breach of contract by means of a call for a boycott. The three terms have mutual influence. The terms “knowingly”, “causation”, and “justification” must be defined against the background of their mutual interaction. Moreover, Israeli legal experience shows that plaintiffs have not made broad recourse to this section on the basis of political stands. This, as opposed to commercial considerations. And we would again recall what was held in the American EPIC case, according to which the case law in this area strongly supports the thesis that, even without recourse to constitutional considerations, it is doubtful whether a call for a political boycott, by its nature, would result in tortious liability (the EPIC case, p. 194).

            Of course, these considerations are not primary, but are a helpful device for understanding the nature of the issue. We should not forget that according to the language of sec. 2(b), the Boycott Law enters the lion’s den of conditions for proving the tort of inducing a breach of contract. The position adopted is one sided – freedom of political expression in the form of a call for a boycott is never a justification. Even if we were to assume that, under certain circumstances, the justification would not be available to a person causing the breach, it would appear that the comprehensive result is not proportionate. We are, after all, concerned with the test of proportionality stricto sensu under sec. 8 of Basic Law: Human Dignity and Liberty. The assumption is that the section is intended for a proper purpose. However, a proper purpose does not ensure that the law is proportionate in the narrow sense. We should bear in mind that we are concerned with a suit filed by one individual against another. This situation reinforces the need to maintain the accepted principles of tort law, and not so sharply deviate therefrom. This is particularly so when the need to protect freedom of political speech is poised on the other side of the scales. Section 2, together with its subsections, is aimed at the person calling for a boycott and not the boycotter. A call for participation in a boycott focuses the debate in the field of freedom of expression. Freedom of political speech is center stage. The prohibition created under the Boycott Law treats not of the action but of the call. The rule is that it is easier to restrict the freedom of political speech when it is intended to promote an unlawful purpose. And at its most fundamental level, it would appear that the disproportionality of sec. 2 derives from the concrete form that it takes in regard to freedom of political expression: granting an individual a means for suing another individual on the basis of his position on a political issue.

            The end of a section: From the perspective of interpretive harmony, there is no room for drawing distinctions among the subsections of sec. 2 of the Boycott Law. In our view, even if some distinctions might be found among them, they would be distinctions without a constitutional difference. I therefore join my colleagues Justice Melcer and Justice Danziger, though each following his own approach. My conclusion is that sec. 2 – as drafted – is not proportionate, and it must be struck down in its entirety. On the scales of proportionality stricto sensu, the value of freedom of political expression must prevail, both in principle and in practice.  On the level of principle, a different outcome may inadvertently deprive freedom of political speech of its proper protection. Of course, I am aware that the enacting of the Law reflects the position of the majority of the Knesset that a call for a boycott of the State of Israel and its academic institutions, or part of its territory, is a severe matter that harms the state. Nevertheless, the real test of freedom of political speech is precisely when freedom of speech is “problematic” and may even anger. A defensive democracy must also protect its character by protecting freedom of speech. On the practical level, an approach that would not invalidate the Law might open a door. The majority will be left to decide, in accordance with its view, when to create a chilling effect by means of a civil suit against political positions. Such an approach is inappropriate to a democracy. I would therefore recommend to my colleagues that sec. 2 must be struck down.

 

Section 3 – Denying Participation in a Tender

14.       Common to sections 3 and 4 of the Law is the imposition of administrative sanctions. Section 3 treats of the precluding participation in tenders. Section 4 concerns provisions in regard to the denial of certain benefits, for example, denying tax incentives Just as there is a connection between the constitutional analysis of sections 2(a) and 2(b), there is a connection between sections 3 and 4. I will begin by examining sec. 3. This section, entitled “Directives restricting participation in tenders”, establishes as follows:

The Minister of Finance is authorized, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to restricting the participation in a tender of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott, including a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control; in this section, a “tender” is defined as any tender that must be administered in accordance with the Mandatory Tenders Law, 5752-1992.

            Thus, a connection is created between a public call for imposing a boycott or a commitment to participate in a boycott and restricting the participation in a tender. I am of the opinion that, as opposed to sec. 2, this section clears the constitutional hurdle. The infringement is by a law; the purpose of preventing harm to the State of Israel by means of boycott – which appears in the Law’s title – is a proper purpose that befits the values of the State of Israel.

            As for proportionality stricto sensu, I believe that there is a rational connection between the means and the purpose. Moreover, there would not appear to be a less harmful means that would achieve the same purpose. That, bearing in mind the objective of giving real expression to the consequences of calling for a boycott or committing to participating in a boycott.

15.       As for the third subtest, I will say as follows. In general, a careful distinction should be drawn between sec. 2, which treats of a civil tort, and sec. 3, which treats of participation in a tender. Taking a broad view, this section differs from sec. 2 in two primary ways: the first is the character of the harm to the publisher or the person committing to participate in the boycott. The second is the identity of the entity that initiates the process.

            As for the first sense, both sections impose a restriction upon freedom of political speech. However, in my opinion, it is easier to restrict freedom of expression by means of restricting participation in a public tender than by creating a new tort or a sweeping principle concerning the tort of inducing breach of contract. By nature, a tender establishes conditions for participation. That does not mean that any condition may be imposed. However, in the matter at hand, there would appear to be a certain logic to an approach by which a person wishing to participate in a state-sponsored tender cannot oppose the state while enjoying absolute immunity.

            As for the second sense, I explained above the problematic nature of granting a legal permit to individuals to act against other individuals on the basis of political expression. For the same reasons, when the entity imposing restrictions upon the caller for a boycott is the state, there are mechanisms that make the sanction more proportionate. As noted, the state is subject to the principles of administrative and public law, including the principles of natural justice, fairness and reasonableness. These two considerations – the character of the infringement and the identity of the initiating party – join at the point where the process meets the criteria for a proportionate action. We thus find that the combination of the character of the infringement – a tender as opposed to a tort suit, and the identity of the party initiating the process – the state as opposed to an individual, points to the advantage of sec. 3 over sec. 2 of the Boycott Law in all that relates to proportionality stricto sensu.

            As I will explain in detail below, the balance inherent in sections 3 and 4 between the sanction and the act that invites it also meets the comparative-law test. For the moment, I will suffice in referring to a law of the State of New York that comprises a similar sanction in the context of boycotts. Section 139-h of the New York State Finance Law establishes that contracts with the state will include a clause in regard to any contractor that “has participated or is participating or shall participate in an international boycott”, where such participation is prohibited. A contract with an entity that meets that criterion is deemed void. On one hand, the clause does not concern one who calls for a boycott, but rather a participant or one who will participate in the future. On the other hand, the clause does not only prohibit participation in a tender, but establishes a mechanism that leads to the voiding of contracts that have already been signed.

16.       Nevertheless, I am of the opinion that two elements of sec. 3 may raise a constitutional problem: the first – the need for due process, and the second – the lack of directives or rules may lead to the absence of a rational relationship between the denial of participation and the call for boycott. I will explain.

            I will begin with the issue of due process. The Law authorizes the Minister of Finance, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to participation in a tender. In this regard, account should be taken both of the infringement of freedom of political expression and the infringement of equality. I extensively discussed the importance of freedom of expression above. As for equality, the significance of the provision is that were it not for call for boycott, the bidder might have met the other threshold conditions of the tender.  In other words, he will only be prevented from participating due to the call for a boycott. It should be borne in mind that a public tender supports the principle of equality. It is, therefore, vital to ascertain whether there is a legal mechanism that allows such a bidder, whose bid was rejected for non-fulfillment of the conditions of sec. 3, to challenge the decision.

            It would seem that the answer to that is in the affirmative. The key to this conclusion is to be found in sec. 5(1) of the Administrative Affairs Courts Law, 5760-2000. That section concerns the Administrative Court’s jurisdiction over various matters. The section refers to Appendix 1, and sec. 5 of that Appendix addresses tenders. Therefore,  on the face of it, a person deprived of the possibility of participating in a tender on the basis of a call for a boycott has the right to bring the matter before the Administrative Court, and in accordance with the rules of procedure, even submit an appeal to this Court.

            The second problem concerns the specific provisions that will be established in regard to restricting the participation in a tender. It must be assured that the application of the section to a bidder will be rational. We would emphasize that we are not referring to the second test of proportionality – rational connection. In my opinion, as explained, sec. 3 passes this test. But here we are concerned with the application of the third subtest – harm versus benefit. In this regard we may ask if it is imaginable that, for example, anyone who calls for a boycott would automatically be prevented from participating in a tender. But one can even learn from the language of the Law that such is not the intention. Otherwise, how are we to understand the various levels of the mechanism for establishing directives for the purpose of making individual decisions – the involvement of three different authorities?

            It should again be emphasized that the decision is that of the Minister of Finance, subject to the consent of the Minister of Justice and the approval of the Knesset. This is a structured administrative process that may justify the belief that the decision will be made thoughtfully. Nevertheless, it would seem that it will be necessary to show a rational connection between the nature of the tender and the nature of the call for a boycott. I will present an example that is not intended as a basis for my decision but only to illustrate the complexity: The owner of a transportation company calls for a boycott – as defined by the Law – against the Judea and Samaria territories. Despite that conduct, he submits a bid in a tender for the transport of school children in Ariel. In another case, the tender is for the transport of school children in Tel Aviv, and the bidder calls for denying services to the residents of Judea and Samaria. It would appear that from the viewpoint of a rational connection, it would be easier to justify the first case as opposed to the second. This would seem to be the difference that must be taken into consideration. As noted, it is not my purpose to permit precluding participation in the tender in the first case, or to deny it in the second. But I do believe that we can expect some rational relationship between the nature of the tender and the nature of the call for a boycott.

17.       Any other result might intensify the infringement of freedom of political expression in an unjustifiable manner. And note that I am not defining what a “rational relationship” might be. But, clearly, this must be expressed in the directives that the Minister is required to establish.

            To allay any doubts, I would like to clarify the matter of the Minister’s duty to establish directives as a condition for restricting participation in tenders. Section 3 states: “The Minister of Finance is authorized… to issue directives…” I would address two points in this regard. First, there is no need in this context to address the linguistic difference between “directives”, “criteria” or “internal procedures”. In any case, criteria will have to be established, which will be published, and that will allow various entities to plan their steps accordingly. The Law itself says as much. A tripartite mechanism is established that requires the consent of the Minister of Justice, approval of the Constitution, Law and Justice Committee, and the establishing of the directives. We can learn from this that the Law requires the exercise of discretion. That discretion is “fortified” by the consent of the Minister of Justice and the approval of a Committee, as opposed to mere consultation with those entities whose concern is the field of law. Secondly, it is clear from the language of the Law that authority granted the Minister permits him to establish or not establish directives. He does not have authority to prevent participation in a tender without establishing directives. That is to say, the promulgation of procedural directives, as provided in the section, is a precondition to precluding participation in a tender. This interpretation is reinforced by the language of sec. 4, which expressly states that the Minister may exercise his authority under that section even without promulgating regulations. A similar provision in regard to directives does not appear in sec. 3. In any case, criteria that will accompany and preceed any decision are required for any decision by the Minister.

            Therefore, there is an infringement of freedom of political expression, but even if the case is liminal, it would appear that the legislature’s decision is within the boundaries of the constitutional margin.

17.       To summarize this chapter: There is a complex administrative mechanism for establishing the directives for restricting participation in a tender. In addition, there is a mechanism for judicial review. I am, therefore, not of the opinion that sec. 3 should be struck down. This view is based upon the nature of the sanction and the identity of the party initiating the proceeding. Additionally, the comparative-law review supports imposing sanctions of this type as a response to participating in a boycott and other activities associated with it. This matter is somewhat complex, and operates in two directions in all that relates to calling for a boycott. I will address this below. In any case, nothing in the conclusion not to void this section would prevent judicial review of the manner of its application. On the contrary, in the absence of directives at this stage, judicial review may be necessary. I believe that sec. 3 of the Law should be understood such that the directives that the Minister is meant to establish must reflect – in manner and in some level of detail – a rational relationship, as explained. It should be noted that in this matter, as opposed to sec. 2, I believe that we may take the path of constitutional interpretation – for example, the need for a rational relationship – rather than voiding the section. This difference derives from the fact that in regard to sec.3, we are at most concerned with a lacuna, whereas the language of sec. 2 is clear and does not leave room for alternative interpretation, in my view.

            Subject to the aforesaid, I would recommend that my colleagues deny the petitions to the extent that they concern sec. 3.

 

Section 4 – Denial of Benefits

18.       This section concerns “Regulations preventing Benefits”:

(a) The Minister of Finance, in consultation with the Minister of Justice, may decide that someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott:

(1) Will not be deemed a public institution under clause 46 of the Income Tax Ordinance;

(2) Will not be eligible to receive monies from the Sports Betting Council under section 9 of the Regulation of Sports Betting Law, 5727-1967; exercise of the authority under this section requires the consent of the Minister of Culture and Sports;

(3) Will not be deemed a public institution under section 3A of the Foundations of the Budget Law. 5745-1985, regarding the receipt of support under any budget line item; exercise of the authority under this section requires the consent of the Minister appointed by the Government as responsible for said budgetary line, as stated in section 2 of the definition of  “person responsible for a budget line item”;

(4) Will not be eligible for guarantees under the State Guarantees Law, 5718-1958;

(5) Will not be eligible for benefits under the Encouragement of Capital Investment Law, 5719-1959, or under to the Encouragement of Research and Development in Industry Law, 5744-1984; exercise of the authority under this section requires the consent of the Minister of Industry, Commerce and Employment.

(b)        In exercising the authority according to subsection (a), the Minister of Finance will act in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee; however, if no such regulations have been promulgated, it will not detract from the authority under subsection (a).

            The heart of the matter is the denial of five benefits: tax credits for contributions; funding from the Sports Betting Council; support from the state budget; state guarantees; and benefits under the Encouragement of Capital Investment Law.

            For the reasons set out in regard to sec. 3. I am of the opinion that this section, as well, clears the first hurdles of constitutional review – “by a law” and for a proper purpose that befits the values of the state. It also passes the rational connection and the least harmful means tests. Our focus, then, is on the third subtest, and again the spotlight is upon the infringement of freedom of political speech. Section 4 is similar to sec. 3 in important ways. Both are distinguished from sec. 2 in the character of the sanction and the identity of the initiator of the process. I will make three comments in regard to sec. 4 that are intended to show that the problems related to sec. 4 are greater than, or at least different from the problems that characterize sec. 3.

            The first comment concerns the nature of the sanction. In my view, from a constitutional standpoint, it is easier to limit participation in a tender than to deny benefits established by law. A tender inherently includes a variety conditions. As a result, every tender creates group that is defined by the conditions of the tender as precluded from participation. As opposed to that, benefits are directed at known groups whose activity is constantly influenced by the benefits provided by law. Of course, the state is not required to grant benefits. But once it has decided to do so, that decision comprises an obligation to allocate those benefits in an equal manner. I shall put that that differently. What is common to sections 3 and 4 – denying benefits and limiting participation in tenders – is the allocation of resources, but in two different ways. A participant in a tender is interested in profiting from a framework established by the state. As opposed to this, the various benefits of sec. 4 derive from the public character of the organizations, or from the public interest in their activities. In general, the conduct of such organizations is more closely connected to the public benefits to which they are entitled in accordance with the existing legal criteria. Such harm to the expectations of such groups it more severe than the commercial and general harm of sec. 3 to entities interested in winning a public tender.

            But why do I believe that the Law clears the hurdle of proportionality despite this observation? According to my approach, the weight of the considerations stated in regard to sec.3 tilt the scales: the difference between a civil action for damages by an individual as opposed to a denial of benefits by governmental authorities. That serves to limit the harm to freedom of political expression and balance the scales of proportionality. Moreover, although the sanctions under sec. 4 are more severe than those under sec. 3, they have an “advantage” over them in another area. The benefits under discussion are intended to promote objectives that the state views positively by granting benefits or funding to organizations that work to realize them. If the organization also – or only – works to undermine those desired objectives – for example, economic prosperity -- then denying the benefit can contribute to their achievement. Such a rational connection does not necessarily exist between permitting participation in a tender and the realization of various objectives. In that regard, the administrative sanction is “external” to the tender and does not derive from its character. The overall result is that even if sec. 4 is more borderline than sec. 3 from the constitutional point of view of freedom of political speech, it meets the test of proportionality.

19.       A second comment. With a view to restraining the Minister of Finance, the Law requires that he establish regulations. This is a proper approach. The regulations provide context for the exercise of the Minister’s discretion. Nevertheless, the end of sec. 4(b) raise a problem – even if regulations are not established, it will not detract from the Minister’s authority to implement the Law. Section 4(b) requires that the Minister of Finance promulgate regulations, with the consent of the Minister of Justice and the approval of the Knesset Constitution Committee. In other words, the procedural mechanism we also find under sec. 3, except that here it concerns regulations rather than directives. The requirement of establishing regulations may clarify what needs to be clarified. But the end of sec. 4(b) – stating, as noted, that notwithstanding the requirement for regulations, the Minister can deny benefits even without establishing those regulations – remains.

            In my opinion, the possibility that the Minister might act in the absence of regulations, and without the consent of the Minister of Justice and the Constitution Committee is problematic where the sensitive issue of freedom of political expression is concerned. Moreover, it would hardly be an exaggeration to say that legislative experience shows that time – even a long time -- may elapse before regulations are promulgated. As long as the Law permits the Minister to exercise his authority under sec. 4 in the absence of regulations, the problem remains. On the other hand, this Court has not adopted an approach of making the implementation of a law contingent on the promulgation of regulations, except where the language of the law and its purpose show that it cannot be implemented in their absence (see: Itzhak Zamir, Administrative Authority, vol. 1, 209-210 (2^nd ed., 2010) (Hebrew); HCJ 28/94 Bezalel Zarfati v. Minister of Health, IsrSC 49 (3) 804, 815, 825 (1995)). In the present case, the Law expressly states that there is no requirement of establishing regulations. It would be far-reaching to prevent the possibility of implementing the Law for this alone, when the Law otherwise clears the constitutional hurdle.

            We know arrive at the third comment – the procedure for denying the benefit by the Minister of Finance.  Section 3 authorizes the Minister to issue directives, and conditions denying participation in a tender on their issuance. The directives must receive the consent of the Minister of Justice and the approval of the Constitution Committee. As opposed to this, sec. 4 grants the Minister of Finance himself the authority to deny a benefit, and not merely to establish directives. Moreover, in exercising that authority, he is required to consult with the Minister of Justice. To “consult”, without need for approval or consent. Even if this consultation is substantive and not formal, the discretion is that of the Minister of Finance alone. The mechanism falls upon his shoulders. This comment is particularly important in a situation in which the Minister might exercise his authority in the absence of regulations established with the consent of the Minister of Justice and the approval of the Constitution Committee. But this comment is also of importance even if the Minister were to act after the establishing of regulations. The reason for this is that the person responsible for making a legal decision is not one who fulfils an operative legal function. In any case, it is clear that this third comment is of greater weight if regulations are not promulgated.

            But if my conclusion is that the Law is proportionate, what are the consequences of the second and third comments? My answer to this is that it is important to point out the necessity for establishing regulations, to the extent possible. It is not clear why the Minister of Finance is given the broadest authority particularly in regard to the more “harmful” sec. 4. It may be that the legislature thought that the harm inflicted by sec. 3 is greater for the reason stated above or for other reasons. In any case, establishing regulations is needed even if not required. Moreover, the legislature did not establish how the Minister of Finance might exercise his authority in the absence of regulations. There is no linguistic basis for interpreting the Law as saying that the procedure established under sec. 3 – promulgating directives with the consent of the Minister of Justice and the approval of the Constitution Committee – is required. However, we can learn the nature of the requirement from those procedures – at the very least, the establishment of directives or procedures. The criteria that will be established will have to meet the rationality and reasonableness tests (see and compare HCJ 4540/00 Labar Abu Afash v. Minister of Health (published in Nevo) paras. 5-6 (May 14, 2006)). One might say that precisely because sec. 4 does not require the consent or approval of the Minister of Justice or the Constitution Committee, the rules to be established are of greater importance. In my opinion, serious consideration should, perhaps, be given to not implementing the Law until regulations have been promulgated. Although the Law allows for its implementation even without regulations, and while the legislature’s word should, of course, be respected, the matter is given to the discretion of the executive branch. What this means is that if regulations are not promulgated, the Court will have to exercise stricter scrutiny, not as an incentive for promulgating regulations at an earlier date, but rather in response to the situation that will be created prior to their promulgation. While the Minister of Finance indeed enjoys broad discretion, which is properly exercised in the context of taxation and benefits, we are here concerned with a restriction upon freedom of expression. One cannot exaggerate the care that must be exercised in this regard.

            An additional point is that of appropriate adjudicative procedures. The matter should properly be arranged expressly in the regulations, and without wishing to prejudice the issue, one might consider that the matter initially be addressed by a trial court, such as the District Court or the Administrative Affairs Court.

19.       To summarize, I am of the opinion that the petitions should be denied in regard to sections 3 and 4. However, section 3 is borderline, and section 4 even more so. I have explained my reasons for that. In my view, in order to meet the proportionality stricto sensu test, the mechanisms for establishing the criteria for the implementation of the sections must be put into operation in accordance with the interpretive guidelines that have been delineated. 

            In order to present the complete picture, recourse should be made to comparative law, both in regard to sections 3 and 4, as well as in regard to the entire Law.

 

More on Comparative Law

20.       We are concerned with a transnational legal issue. The issue is the right to freedom of political expression versus protecting the state against the imposition of a boycott upon it, or upon part of it, or upon its institutions. As we shall see, the “Made in Israel” version of the Boycott Law has unique characteristics that more directly and clearly affect freedom of political speech. Nevertheless, an examination of comparative law will be helpful in deciding this case. Over and above the fact that recourse to comparative law is accorded a place of honor in our legal system, such recourse appears especially justified in the case at bar. The reason for this is that the State of Israel is the object of a boycott in certain states, whereas other states have enacted laws in order to combat the phenomenon. My colleagues, and the various parties to the petition, dived deeply into the waters of American law. This was also given significant emphasis in the Explanatory Notes of the original bill (the Prohibition of Boycott Bill, 5770-2010, was presented to the Speaker of the Knesset on July 5, 2010. The Explanatory Notes can be found on the Knesset website: knesset.gov.il/privatelaw/data/18/2505.rtf). The Explanatory Notes begin by saying that “in the United States there is a similar law protecting its friends against third-party boycotts, with the basic assumption that a citizen or resident of the country should not call for a boycott against his own state or its allies … if the United States protects its friends by law, then a fortiori, Israel has a duty and right to protect itself and its citizens by law” (this part does not appear in the official Explanatory Notes). In view of the aforesaid, and considering the impressive American tradition of defending freedom of speech, and freedom of political speech in particular, it would, therefore, be useful to examine the American laws on point.

            As noted, the two primary American laws treating of boycotts are the Export Administration Act of 1979 (EAA), and the Ribicoff Amendment to the Tax Reform Act of 1976 (TRA). We will briefly review what is stated in those laws. Both laws relate to participation in a boycott (other than a boycott imposed by the United States), or the performance of acts connected to the imposing of such a boycott, the nature of which will be explained below (see para 8, above). By virtue of the EAA, criminal sanctions of imprisonment or fine can be imposed, as can various administrative sanctions, such as an administrative fine. By virtue of the amendment to the TRA, certain tax benefits can be denied. Additional laws have been enacted by various states. We have seen an example of that in the state of New York. As noted, sec. 9 of the New York STF establishes that contracts between the state and bodies that have participated or are participating or shall participate in a prohibited boycott are void. Several laws address this issue in the state of California. For example, sec. 16649 of the California Government Code includes a reference to the Arab League boycott of the State of Israel. Inter alia, various sanctions are imposed upon the use of state funds in the framework of contracts with companies participating in that boycott. The state of Florida prohibits, inter alia, the transfer of information requested for the purpose imposing a boycott. The possible sanctions include a fine or imprisonment (Florida, Statues, Title XXXIII §542).

            Comparing the Boycott Law and the various American laws is instructive. It will aid in clarifying what they share in common and in what they differ. This will sharpen the delicate balances that the Law strikes between the protected interest and the scope of its protection, and the extent of the harm to freedom of expression.

21.       The most salient difference is the absence of a civil tort of calling for a boycott in the American legislation. Those laws do not permit a party harmed by a boycott to initiate a civil suit. It should be emphasized that the legislation also relates to situations in which one company refuses to contract with another company within the United States (see, e.g., sec. 8(a)(1)(A) of the EAA: “Refusing… to do business with… any other person, pursuant to… a request from… the boycotting country”). The law does not recognize situations in which another person incurs damage as exceptions. As opposed to this difference, there is a striking similarity in the authority’s ability to impose sanctions that are comparable to those appearing in sections 3 and 4. The state’s right to act to protect its interests is recognized, even at the expense of restricting various forms of self-expression. Nevertheless, it is both proper and important that we emphasize the differences in this regard, as well.

            The emphasis of the Israeli Boycott Law is upon the call for a boycott. Sections 3 and 4 retain the prohibited call alongside the alternative of an undertaking to participate in a boycott. It is not clear whether this refers to a legally binding commitment, such as a contractual obligation. Moreover, it is unclear whether the phrase “who committed to participate in such a boycott” refers to present participation in a boycott, or even to a commitment to participate in a boycott the future. In either case, it would seem that the alternative of committing to participate in a boycott is shared in common by the Boycott Law and its overseas cousins. Thus, sec. 999(a)(3)(A) of U.S. Code 26 gives the following definition: “For purposes of this section, a person participates in or cooperates with an international boycott if he agrees as a condition of doing business… with… a company… to refrain from doing business with… companies of that country [which is the object of the boycott]”. In other words, a person who agrees to refrain from doing business with companies from a certain country as a condition to doing business with another company is considered as participating in a boycott. Thus also the alternative “…has participated or is participating or shall participate in an international boycott” in sec. 9 of the New York STF. It should come as no surprise that a commitment to participate in a boycott is commonly found in boycott legislation. We are more concerned with a (legal) act than a mere expression. It would seem no coincidence that the legislature established a requirement of a “commitment” as opposed to a general declaration or non-binding expression of desire.

            The alternative of calling for a boycott presents a different picture. There is not prohibition upon calling for a boycott. While some laws do refer to actions related to boycotts other than active participation, they do not reach the level of a “call”. For example, the alternatives in the EAA define the prohibited conduct as “refusing” or “requiring another person to refuse” (sec. 8). As we see, the section concerns a demand from a third party to participate in a boycott in the course of a transaction. Section 16649 of the Cal. Gov. Code addresses a party that expresses “Compliance with the Arab League's economic boycott of Israel”. Similar language can be found in other laws. One can also find restrictions concerning freedom of speech, or at least indirect, non-participatory support of a boycott in American law. Thus, for example, sections 8(a)(1)(D-E) of the EAA impose a prohibition upon providing information about persons or bodies where the information is intended to lead to boycotting. A similar alternative can be found in Florida: “It is an unlawful trust and an unlawful restraint of trade for any person… to… furnish information with regard to… a person’s… national origin… in order to comply with, further, or support a foreign boycott” (Florida, Statues, Title XXXIII §542.34). Nevertheless, there is a difference between providing information for the purpose of a boycott and calling for a boycott. Providing information is part of the boycott activity itself – in the sense of “aiding” or “participation in a common purpose”. As opposed to this, a call remains in the sphere of “procuring” – addressing another with the purpose of persuasion. Therefore, restrictions upon the latter directly infringe freedom of political expression. Nevertheless, one might say that the prohibition upon providing information – without participating in the boycott – reduces the distance between the two. Ultimately, the two laws are comparable for other reasons as well. For example, the Israeli law does not impose a criminal sanction, as opposed to the above-mentioned laws.

            And now to return to sections 3 and 4 of the Boycott Law. As I noted above, a comparative examination of these provisions is complex. As opposed to sec. 2, secs. 3 and 4 also extend to one who commits to participate in a boycott. This approach, including its sanctions, is consistent with the comparative law. The problem lies in the first alternative – calling for a boycott. I noted above my belief that whereas sec. 2 does not succeed in overcoming the constitutional hurdle, secs. 3 and 4 do. There are four reasons for this. The first consists of the reasons stated above in regard to the identity of the party initiating the process and the nature of the harm (see paras. 15 and 18 above). The second, although not a primary reason, is that while these sections do not establish a prohibition upon participating in a boycott, they do establish a prohibition upon committing to do so. This paves the way for a certain leniency as opposed to sec. 2. We should not ignore the fact that there are sanctions for participating in a boycott and for other actions, which is not the case in our system, and rightly so. Overall, the American law strikes various balances that decrease the distance between the United States and Israel.

            A third reason is that there are states, like France, that adopt a closer approach to calls for boycott (see, e.g., the survey presented to the Constitution Committee, para. 8 above, at pp. 12-13). Although we are speaking of legislation that prohibits discrimination on the basis of origin or nationality, and I am not sure that the two are necessarily congruent, it does carry some weight. Fourth, some weight must be given to the fact that the State of Israel is the object of a boycott in various countries. This influences the proportionality stricto sensu of secs. 3 and 4, which infringe freedom of political expression to a lesser degree than sec. 2. The test is one of benefit versus harm, and one cannot ignore the harm to the State of Israel as a result of these boycotts. This is also true when the boycott is directed at a particular, law-abiding public, which the state is duty-bound to protect. The above can serve to justify secs. 3 and 4 in the face of constitutional review, even if they are borderline, as is particularly the case in regard to sec. 4. We should recall the statement made by Prof. Mordechai Kremnitzer before the Constitution Committee: “if this bill were built along the lines of existing models in the world, I would not have a word to say on the constitutional level” (p. 28 of the protocol of the session of Feb. 15, 2011). That position falls upon open ears. Even if one may take the view that the balance achieved abroad differs from that appropriate to the Israeli system, there is a constitutional margin in this regard, and secs. 3 and 4 of the Israeli Law fall within its bounds, subject to the reservations expressed above.

            At the end of the day, section 3 is borderline. Section 4 pushes the limits. But both remain – even if just barely – on the constitutional side of the border. I have, therefore, added the requirement of a rational relationship in regard to the implementation of those provisions, and I emphasized the need for close review of the implementation of the Minister of Finance’s authority under sec. 4. For example, it would appear that the criteria to be established must take account, inter alia, of the nature of the call, its content, character and force.

            As opposed to that, all of the above reinforce my conclusion in all that regards sec.2 of the Law. Overall, that provision is deviant even in terms of comparative law, which should come as no surprise inasmuch as its danger greatly exceeds the relief that it provides.

22.       I shall now move from legislation to case law. My colleagues and I addressed the Claiborne case at length. My present purpose is not to reiterate, but rather to address the reservations expressed and the distinctions suggested. My colleague Justice Melcer expressed the opinion that two precedents erode that rule – the Holder case and Longshoremen’s case. I do not agree with him in all that concerns the interpretation and development of American law. In my opinion, that also arises from the cases themselves.

            In Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the plaintiffs sought to aid groups that were designated as terrorist organizations. Their claim was that the aid was intended solely for lawful purposes and to promote peace. The aid involved the study of various legal practices. The petition challenged a law that prohibited providing support to foreign terrorist organizations. The majority opinion of the Court held that the case concerned providing support for a terrorist organization, which was provided in the form of “speech”. Therefore, that speech was not protected under the First Amendment of the Constitution. The opinion of the Court does not refer to the Cliaborne rule, and that rule has neither been overturned nor eroded. Israel, too, has a criminal offense of providing support to a terrorist organization. Support by means of “political expression” is not protected. However, no analogy can drawn between this and calling for a boycott by peaceful means. The case of International Longshoremen's Association, AFL-CIO, v. Allied International, Inc., 456 U.S. 212 (1982) concerned stevedores who refused to handle cargoes from ships arriving from or destined for the Soviet Union, against the background of its invasion of Afghanistan. The Court held that the case concerned an illegal boycott prohibited by the National Labor Relations Act. This did not concern freedom of political expression, but rather conduct that did not amount to a political boycott, and it was certainly not a call for a boycott. Moreover, the context was conduct contrary to labor laws that directly addressed the subject. In other words, the relevant considerations concerned the special status of the labor union. Its power in relation to the employer is so great that it was held that the powers afforded it should not be extended to third parties in commercial relationships with the employer that are unrelated to the labor union. That is to say that no analogy can be drawn from this case to boycotting that is part of normal public discourse, and the related issue of freedom of political expression.

            The cited decisions do not, therefore, detract from the Claiborne rule. As opposed to this, Orloff does express a different opinion in his article cited by my colleague Justice Melcer (see Gordon M. Orloff, The Political Boycott: An Unprivileged Form of Expression, 1983 Duke L. J. 1076 (1983)). However, that view can be seen as an isolated opinion that was written about a year after the Claiborne decision. The author expressly states that he disagrees with it on the merits. But those reservations have not been adopted in practice. In the thirty years that have passed since the publication of that article, the courts of the United States have charted their course for the protection of freedom of speech. My colleague suggests that we see those two cases as proposing a different direction for the future. In my opinion, a different conclusion is indicated. In any case, the current case case law clearly disagrees with that view, as I shall explain below.

            Truth be told, the Claiborne case did not introduce a revolutionary innovation. For the purpose of illustration, let us consider the case of Missouri v. Nat’l Org. for Women, Inc., 620 F.2d 1301 (8th Cir. 1980). In that case, which preceded Claiborne, women’s groups boycotted states that had not ratified the Equal Rights Amendment. As a result, businesses in the state of Missouri were harmed. Their tort suit was denied on First Amendment grounds. The situation following Claiborne remains unchanged. The background of the dispute in Searle v. Johnson, 709 P.2d 328 (Utah 1985) was a call by the defendants for a tourism boycott of Uinitah County. Their purpose was to raise public awareness of the poor conditions and suffering of animals in the county dog pound. The court exempted the defendants from tortious liability in reliance upon Claiborne. While other cases did not expressly refer to the Claiborne rule, freedom of political speech was shielded against tortious liability (see, e.g., Hotel Saint George Assocs. v. Morgenstern, 819 F. Supp. 310 (S.D.N.Y. 1993); A Fisherman's Best v. Rec. Fishing Alliance, 310 F.3d 183 (2002)).

23.       Another decision that received significant attention was that of the European Court of Human Rights in Strasbourg in the matter of the mayor of Seclin (Willem v. France (application no. 10883/05), 10.12.2009). As may be recalled, the court denied the mayor’s appeal of his conviction for discrimination on national, racial and religious grounds. I will briefly refer to two point in this matter. The first is that the case concerned a sanction imposed by the state. We are not aware of the granting of damages in favor of any of the companies whose products gathered dust on supermarket shelves in Seclin. This result is, therefore, not at odds with the striking down of sec. 2, which establishes a civil tort.

            The second is the uniqueness of the judgment. We learn from the court’s reasoning that the conviction was grounded upon the combination of the defendant’s identity and the circumstances of the call for a boycott. Paragraph 32 of the decision emphasizes that “the fact that the applicant is the mayor is central to this case” (translation here and below are mine – N.H.). Paragraph 37 explains that “as mayor, the applicant has duties and responsibility. In particular, he is required to maintain neutrality…in municipal matters, in which he represents the public”. In addition, para. 36 refers to the special circumstances of the call: “Consideration must be given not only to the oral declaration of a boycott in the city council, but also to the announcement published on the municipal website. This announcement intensified the discriminatory character of the call for a boycott, and the use of controversial expressions in that regard”. Thus, it was the combination of circumstances that led to the finding that the conviction did not disproportionally infringe freedom of political expression. The call for a boycott defined in the Israeli Law does not apply solely to such circumstances, but encompasses every person or body without consideration of personal status or public function. Without wishing to express a definitive opinion on the matter,  it would seem that the question of how to deal with a call for a boycott of the state by an individual is different from the question of how to deal with a mayor who allocates public funds in contravention of the requirements of administrative law.

24.       Conclusion. The situation with which we are concerned is not simple. The State of Israel was unwillingly drawn into it even in the international arena. The conclusion I have reached – the striking down of sec. 2 and the approval of secs. 3 and 4, subject to certain reservations – gives what I believe to be a balanced, proportionate expression to all the conflicting values and interests. At the same time, it recognizes the legitimate interest of the state to defend itself and its communities. It does not leave the state vulnerable to the actions of those who seek to harm it or any particular pubic that it is duty bound to protect. It merely draws the boundaries within which the legislature may act without leading to a disproportionate result. We can summarize this as follows: The state is allowed to contend with the boycott phenomenon by means of appropriate administrative sanctions, whereas an individual cannot do so by means of a new tort against the freedom of political expression. And note that this is an integrated change. It is not merely “the state versus the individual”, but rather an administrative sanction depriving a benefit as opposed to exposure to a new kind of tort suit. This, in particular, when a call for a boycott is an element of that tort, while there is no prohibition upon participating in it.

            It can be said that this result creates a defensive democracy that defends itself against those who rise up against it, but that preserves the democratic character of society and the ideal of freedom of expression. This is an important element that distinguishes between a democratic state and one that is not. The meeting of real and ideal can make for a rocky path. That path, with all its prohibited entries and its permitted ones, is also subject to judicial review.  I would, therefore, recommend to my colleagues that we strike down sec. 2 in its entirety. As opposed to that, I believe that, in the context of this petition, we should not order the revocation of the other sections of the Law.

 

Deputy President E. Rubinstein:

Preface

1.         The Yom Kippur prayers begin with a declaration called Kol Nidre, for which the entire evening is referred to as the Kol Nidre service, and which concerns the revoking of vows, among them ostracism [ḥerem]:

“All vows, obligations, oaths, and ostracisms, restrictions or interdictions, or by any other name, which we may vow, or swear, or pledge, or whereby we may be bound … we do repent. May they be deemed absolved, forgiven, annulled, and void, and made of no effect; they shall not bind us nor have power over us. The vows shall not be reckoned vows…” What the Knesset sought to achieve in the Law that is the subject of this proceeding is, in short, a battle against ostracism, a malignant disease of which Israel is a victim. The focus of this petition is boycotts [ḥerem][4], not the freedom to use the term.

2.         I concur in the learned, comprehensive opinion of my colleague Justice H. Melcer, and would like but to add a few observations. I must begin on the level of principle. We are concerned with a central subject in the political history of the State of Israel and the region. This Court’s expertise in this regard is limited. We must, therefore, be particularly careful in considering whether constitutional intervention is appropriate. This Court decided not to intervene in the matter of the disengagement (HCJ 1661/05 Hof Azza Regional Council v. Knesset, IsrSC 59 (2) 481) in regard to the decision on the disengagement itself, as opposed to the extent of compensation for those displaced, first and foremost because it concerned a political matter, even though it involved infringement of basic – and not merely economic – rights of the Israeli residents of Gaza and northern Samaria who were forcibly evicted from their homes. The judgment stated (pp. 575-596) that the issue concerned a disagreement “that was of broad scope, pertaining to entire range of dangers and prospects related to the solution of the Israeli-Palestinian dispute. It is not at all possible to expect that this Court – and we may go as far as to say: any other court in the world – will decide these questions. The probability of the realization of the objectives of the disengagement plan rests at the heart of political, national and security activity. The Court cannot take any stand except in extreme, exceptional cases”. The matter before us concerns a delicate, sensitive situation in which the State of Israel finds itself hounded by boycotts by organizations like BDS (see the examination of the NGO Monitor website) that are not offended merely by settlement in Judea and Samaria, but by the very existence of the State of Israel, as my colleague Justice Melcer noted, and – in my opinion – the Court must not adopt an approach that may, God forbid, be viewed by a large part of the public as if “they join also unto our …” (Exodus 1:10). My colleague Justice Danziger addressed the issue of the Court’s duty, following the unforgettable words of Deputy President Landau in the Dwiekat case (HCJ 390/79 Dwiekat v. Government of Israel, IsrSC 34 (1) 1 (1979)). Indeed, at times, human rights must be defended even when that defense is unpopular. However, it seems to me that the Law under review represents a kind of cry and fear for the human rights of the citizens and residents of the State of Israel, and not only those residing in Judea and Samaria, and this carries great weight in light of what is occurring in many countries in their regard, as if to say, if someone comes to boycott and even destroy you, arise to combat him first.[5] That is the Law, that is its purpose, even if there may be other or additional means for defense, and it must be examined with a broad view and eyes open to reality. I respect the fear for freedom of expression. The right to freedom of expression is very broad in the State of Israel, but as we shall see below, the picture is complex, and the situation is not one sided.

 

A brief history

3.         My colleague Justice Melcer also addressed history (para. 23). We cannot ignore the sad facts, which have been forgotten by some with the passing years, that the Arab Boycott against the State of Israel began even before its establishment (in a 1946 decision by the Arab League imposing a boycott against the Jewish community in Palestine), was especially broadened in 1951, and has formed a particularly severe element of the pressure placed by the Arab states upon Israel over the course of many years. The boycott was run from a central office in Damascus, and operated against thousands of international firms and others that, as a result, refused to conduct business in Israel. Eventually, various states enacted laws against the boycott, particularly the United States, and the State of Israel itself fought with all its might against the boycott in various ways.

            It should be added that immediately following the Six Day War, on July 27, 1967, the military commander promulgated the Order concerning the Revocation of the Boycott Laws against Israel (Judea and Samaria) (No, 71) 5727-1967, which establishes (sec.2) that “all boycott laws against Israel are void” (sec. 1 enumerated those laws) (and see E. Zamir & E. Benvenisti, The Legal Status of Lands Acquired by Israelis before 1948 in the West Bank, Gaza Strip and East Jerusalem, (1993) 140 (Hebrew)). The peace agreements between Israel and Egypt – the Camp David Accords of Sept. 19, 1978 and the Peace Treaty of March 26, 1979 – included an obligation to normal relations between the two states, including “termination of economic boycotts and discriminatory barriers to the free movement of people and goods” (Camp David Accords, and art. 3(3) of the Peace Treaty). That is also the case in regard to the Peace Treaty between Israel and Jordan, in which art. 7(2)(a) includes the obligation “to remove all discriminatory barriers to normal economic relations, to terminate economic boycotts directed at each other, and to co-operate in terminating boycotts against either Party by third parties”. As a result of these, the boycott was significantly eased, but did not disappear (see E. Kaufman, “Analysis of the Possible Consequences of an Economic Boycott of Israel,” (Knesset Research and Information Center), presented to the Knesset Finance Committee on Dec. 31, 2014 (Hebrew); Haya Regev & Dr. Avigail Oren, The Arab Boycott (1995) (Hebrew)).

 

On the Boycott and Freedom of Expression

4.         At this point we should note, as does my colleague Justice Melcer, that even though our colleague Justice Danziger emphasizes the distinction between calling for boycotting Israel in general and calling for a boycott of products of the Jewish settlements, the attorneys for the Plaintiffs were not willing to state that they would retract their petition if the section concerning the territories were removed. In other words, even a boycott against the State of Israel, of the old sort that Israel – and other states, with the United States at the forefront – worked to combat, falls within the scope of freedom of expression. Woe unto such freedom of expression if its objectives be achieved. It might join – without drawing a comparison – Holocaust denial and antisemitic and racial slurs, which I do not believe should enjoy the protection of freedom of expression. We are not the United States, we are not obligated to an extreme interpretation of the First Amendment to the Constitution of the United States, and no one can truly claim that Israel does not enjoy exceptional freedom of expression. On Holocaust denial and its close relationship to the denial of the State of Israel, see Professor Elhanan Yakira’s instructive book, Post-Holocaust, Post-Zionism: Three Essays on Denial, Forgetting, and the Delegitimation of Israel, (Am Oved, 2006) pp. 40-53 [English: Cambridge, 2007]; and my essay “On Antisemitism” (Information Center, Ministry of Education and Culture, 1990), also published in Moshe Yegar, Yosef Guvrin & Arye Oded, eds., The Ministry of Foreign Affairs: The First Fifty Years (2002) 930, which treated of the Israeli government’s tracking of this subject.

5.         Therefore, I do not find any great difficulty in deciding this case along the lines of the overall approach of Justice Melcer’s opinion. In the broad context, if Israel’s enemies who seek to do it harm do not distinguish in this regard between “little” Israel and the territories it controls, and if the Petitioners, in their own right, were unwilling to do so, as arose in the hearing before us, why should we be making that distinction, with all due respect to the good intentions of my colleagues who support freedom of expression. One who has, like us, been scalded by boiling water, may also blow on cold water, and all the more so on boiling water.

6.         As my colleague Justice Melcer noted, freedom of expression is a two-way street. Indeed, calling for a political boycott of Israel is presented in the petitions as realizing that freedom of expression that is granted to all, and the legislation they argue against is, therefore, repugnant. My colleagues Justices Danziger and Hendel are fearful for freedom of speech, including that of those who call for boycotts, which explains their (different) opinions. But it is the call for boycott itself that may clearly silence the discourse and harm freedom of expression, such that those boycotted will be deprived of true expression for their positions in fear for their livelihoods and property, which is not to be taken lightly. Thus, because as opposed to other courses of action, boycotting is a means for imposing the boycotter’s view upon those who disagree, rather than persuading the other of its justice. This type of coercion may have severe consequences:

“The coercive power of a political boycott should not be underestimated. Merchants depend on sales for their livelihood; an effective boycott of their stores deprives them of their source of income. Although attempts to persuade individuals to act are usually protected by the first amendment, attempts to coerce individuals to act are not so immunized” (Gordon M. Orloff, “The Political Boycott – an Unprivileged Form of Expression,” D.Law.Jour. 1076, 1092 (1983)) (hereinafter: Orloff).

7.         Even American law, which is undeniably one of the most liberal legal systems in all that pertains to freedom of expression under the First Amendment of the United States Constitution, which is foundational to the American public existence, does not grant blanket permission to political boycotting. Thus, for example, some American courts distinguish between a political boycott intended to protect legally or constitutionally protected values, such as racial discrimination, and other political boycotts. The protection afforded freedom of expression is greater in regard to the former as opposed to the latter (see, e.g., Note, “Political Boycott and the First Amendment,” 91 Harv. L. Rev. 659, 661 (1977-1978); Isaiah Madison, “Mississippi's Secondary Boycott Statutes: Unconstitutional Deprivations of the Right to Engage in Peaceful Picketing and Boycotting,” 18 Howard L.J. 583, 593-594 (1973-1975)). In the Claiborne case, as well, although on its face, the United States Supreme Court appeared to broaden protection for political boycotts significantly, the case concerned a boycott in protest of racial discrimination, with the purpose of compelling the state and the commercial sector to grant equal rights to the African-American public. The Court emphasized that that fact justified the broad protection of the boycotters:

Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself" (NAACP v. Claiborne Hardware Co., 458 U.S. 886, 914, per Justice Stevens (1982)).

8.         In addition, American federal law in the field of labor relations prohibits a secondary boycott, establishing, inter alia, that a labor union is prohibited from adopting a course of action intended to compel a person to refrain from commercial ties with another (Labor Management Relations Act of 1947, s. 8(b)(4)(B)). In the Allied case, it was held that the said prohibition also includes the possibility of a political boycott by a labor union – in that case, a boycott within the company in which the union operated, in order to express its opposition to the foreign policy of the Soviet Union and its invasion of Afghanistan. As a result, the union was found liable for the harm that it caused to the company in which it operated, owing to the political boycott it imposed. Of particular interest is the following statement in regard to the relationship between the First Amendment to the Constitution of the United States, which enshrines freedom of speech, and a political boycott:

It would seem even clearer that conduct [a political boycott – E.R] designed not to communicate but to coerce merits still less consideration under the First Amendment… There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others (Int'l Longshoremen's Ass'n v. Allied Int'l, 456 U.S. 212, 226-227, per Justice Powell (1982)).

            Although this was stated in the concrete circumstances of labor law, as I will explain below, the same logic applies in the matter before us. I would further note that Justice Melcer rightly pointed out that Israeli law comprises restrictions upon freedom of expression, as in regard to defamation.

 

From the general to the particular

9.         My colleague Justice Melcer noted that in seeking to protect the State of Israel against those who seek to boycott it, the Boycott Law meets the tests of the Limitation Clause in that it is intended for a proper purpose, befits the values of the State of Israel as a Jewish and democratic state, and proportionately infringes freedom of expression. As I have already stated, I concur with that view, but in my opinion, although the Petitioners unreservedly insist upon their right to call for the imposition of a boycott against the State of Israel itself, we cannot ignore the fact that an additional purpose of the Law, which the Petitioners addressed at length, as did my colleague Justice Melcer, is the protection of businesses specifically operating in the areas of Judea and Samaria, such that a “boycott against the State of Israel” is defined under sec. 1 of the Law as one that includes a boycott against “an area under its control”, and those objecting to the Law are particularly opposed to that clause. It was not the Law’s central purpose at present – we do not know what the future may bring – to protect businesses in Tel Aviv, or the Negev or the Galilee, but rather to protect against boycotts of businesses in the Jewish settlements in Judea and Samaria, which are indeed suffering economically due to those calling to boycott them, at home and from abroad. In this regard, see the exchange in the Knesset Constitution, Law and Justice Committee from Feb. 15, 2011, between the committee chairman MK David Rotem and MK Dov Henin:

Chariman David Rotem: My dear sir, Dov Henin, this law is intended to protect the settlement that you call “illegal”, and I call “residence”.

Dov Henin: Then tell the truth.

Chairman David Rotem: On Jewish residence in Judea, Samaria, and the Gaza Strip (p. 27 of the protocol).

10.       Thus, in certain ways, the Law grants preference to the freedom of expression of one political group as opposed to another. For example, a person who – in theory – calls for a boycott of those who support returning areas of Judea and Samaria to the Palestinians in order to achieve peace would not be exposed to the tort sanction of the Law, whereas a person who calls for a boycott of a person who chose to reside in the Judea and Samaria area would be exposed to the tort sanction. Indeed, this creates an apparent infringement – creating a constitutional problem – of the freedom of expression afforded the former as opposed to the latter, although we should not exaggerate the extent of that infringement. In my view, as far as sec. 2(a) and sec. 2(b) are concerned, it is certainly a proportionate infringement, and as opposed to my colleagues Justices Danziger and Hendel, I believe that it meets the proportionality stricto sensu test. The Law restricts political expression in a very limited way, in that it its provisions reserve the tort sanction to one who calls for a boycott of another “solely because of their connection with the State of Israel … or an area under its control” (emphasis added – E.H.). Thus, on its face, a person calling for the boycott of a factory operating in the Judea and Samaria Area for reasons other than its connection to the Area, would not necessarily be exposed to the tort sanction under the Law, as, for example – legally speaking, and the example being theoretical – in the case of a call to boycott a factory operating improperly towards the local population.

11.       As opposed to this, the Law will help in providing tort protection for anyone who has chosen to act in a place that the state sees as permissible for Jewish settlement against those who harm them solely because they are located there. It would not be superfluous to note that settlement in the Judea and Samaria area over the years was not the policy of governments from one side of the political map, but rather all of Israel’s governments supported it in one way or another. These and those provided support, in the form of various incentives, to settlement in the Judea and Samaria area, as well as in Gaza, from the Six Day War and to this very day. And we should not forget that in the view of many of those calling for a boycott, even the Jewish neighborhoods in East Jerusalem fall within the scope of the boycott. It therefore seems very reasonable to me that a person who acted lawfully and in accordance with government policy be entitled to the legislature’s protection. Moreover, in addition to the examples presented by my colleague Justice Melcer, and those that I presented from American Law, above, we are not actually concerned with a boycott intended to defend a legal or constitutional right under Israeli law, but rather to attack the subjects of the boycott solely because of where they are located. And I would again emphasize that the law does not impose any restrictions upon boycotting a person or party for its opinions or actions. In other words, we continue to “respect” the desire of a person who does not wish to visit Israel or Judea and Samaria, or purchase their products. All that the Law seeks to do is to restrict those who call for a boycott “solely” due to a connection to the state or an area under its control, that and nothing more. That does not, in my opinion, involve that “silencing” of which the learned M. Kremnitzer and A. Fuchs have spoken (see Amir Fuchs, Dana Blander & Mordechai Kremnitzer, Anti-Democratic Legislation in the 18th Knesset (2015) and the material presented in their opinion at pp. 66-71 (Hebrew)).

12.       In the same vein, according to my approach the logic grounding the Allied case is applicable here, as well. The parties that the Law seeks to protect are not “punished” for their actions or views. They are punished solely as a means for influencing the policy of the State of Israel, primarily on the issue of the territories, by means of calling for a boycott against them, which is a hypocritically coercive means by its very nature. As was noted in the in the Allied case, when an individual seeks to impose his views upon another by the callous means of calling for a boycott against him, as opposed to persuasion, the protection of his right to freedom of expression will clearly be diminished a priori. To paraphrase what was stated in that case, there are many ways for the Petitioners to continue to express their political views – and an undeniably broad spectrum of possibilities is available to them in Israel – but without infringing the rights of those whose only sin is that they chose to reside and act in an area permitted them by the State of Israel. If any should nevertheless choose to call for a boycott of companies conducting business in the State of Israel or in an area under its control solely by reason of their connection with the state or the Area, they will be exposed to a tort action for damage caused. The limited restriction of their freedom of expression is meant to protect third parties harmed through no fault of their own, but rather due to a political boycott against a policy of the state:

In prohibiting or providing recovery for damages caused by secondary political boycotts the government is not seeking to ban certain ideas. It is attempting only to outlaw a mode of expression which by its nature injures third parties regardless of the ideas it happens to communicate (Orloff, at p. 1084).

            Indeed, why should a person who chose to live or act in the Area pay the price of the policies of successive Israeli governments by granting “free reign” to those who call for a boycott against them?

13.       The Petitioners further argue that the Law leads to a legal anomaly by creating a tort of calling for a boycott, while actual boycotting is legally permitted. I cannot accept that argument. In my view, and as my colleague Justice Melcer noted, this is similar to the situation in the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law). That law clearly distinguishes – in practice – between an individual’s conduct in the private domain and his conduct in the public domain. A person may decide, for personal reasons, that he does not wish to shop in a particular market because he is does not accept the seller’s sexual preference, or because he is of a different race, or does not share his religious beliefs. One may strongly criticize or object to that, but it remains that person’s privilege. However, the seller cannot act in that manner. He is required to sell without discriminating on the basis of sexual preference, racial origin, or religion, for example, on the basis of sec. 3(a) of the Prohibition of Discrimination Law (also see in this regard, F. Raday, “Privatising Human Rights and the Abuse of Power,” 23 Mishpatim (2004) (Hebrew) [English: 13 Canadian Journal of Law and Jurisprudence 103 (2000)]). The reason for this is not – of course – that the legislature wishes to encourage the former conduct, but rather because the individual’s freedom of conduct in the private domain is far broader than in the public domain, and a situation in which the enforcement and judicial authorities would enquire into a person’s intentions in not patronizing a particular establishment is problematic in a democratic society, not to mention the practical difficulty, and as M. Cohen-Elia noted in this regard:

The purpose of the accepted liberal distinction between the “public” and the “private” is to limit the areas in which the state may employ its coercive power in the public, political domain, and to allow citizens greater freedom in private spheres. The liberal demand that the state refrain from intervening in the private domain is essentially intended to realize the individual’s right to privacy, which is generally justified primarily by reason of autonomy. A person who enjoys privacy is autonomous, inasmuch as the right to privacy affords him a sense of security from governmental intrusion into those most intimate areas in which he forms the values and positions of his worldview (Moshe Cohen-Elia, “Liberty and Equality in the Prohibition of Discrimination in Products and Services Law,” 3 Alei Mishpat 15, 28 (2003) (Hebrew); and see: Barak Medina, “Economic Justifications of Antidiscrimination Laws,” 3 Aley Mishpat 37, 44-46 (2003) (Hebrew)).

            In my view, that is the difference between one who personally boycotts and one who calls for a boycott in this context. We cannot – and the Knesset’s attorney addressed this in the hearing before us – prevent a person from boycotting some entity or another, whatever his reasons, and whatever our opinions. The reasons for this are constitutional – the broad freedom granted an individual when he acts in the private domain, as well as evidentiary – the practical impossibility of knowing a person’s intentions in choosing not to buy a product from someone. Thus, in transitioning from boycotting to calling for a boycott, an individual largely removes himself form the private sphere and into the public sphere. Therefore, in my view, it is not at all unreasonable that the legislature would find it proper to impose greater obligations upon him for that conduct, including a prohibition upon calling for the boycott of a person or other entity by reason of its place of residence or activity, which as I and my colleague Justice Melcer noted, is discriminatory in nature.

 

Sections 3 and 4 of the Law

14.       We will now address sec. 3, which restricts the participation in a public tender of a person who calls for a boycott, subject to directives to be established by the Minister of Finance, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, and sec. 4, which restricts granting state benefits to a person calling for a boycott, subject to regulations to be promulgated by the Minister of Finance, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, and the decisions of the Minister of Finance accordingly. I will already state that I do not see any reason to declare them unconstitutional.

            First, as a preliminary comment, I am doubtful as to whether the constitutionality of these provisions should be addressed at this stage. As is well known, this Court will not lightly strike down a law enacted by the Knesset that, by its very nature, reflects the public will (HCJ 7111/95 Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996); HCJ 3434/96 Dr. Menachem Hoffnung v. Knesset Speaker, Prof. Shevach Weiss, IsrSC 50(3) 57, 67 (1996); HCJ 8425/13 Eitan – Israeli Immigration Policy Center v. Government of Israel, (published in Nevo), para. 23 of the opinion of Vogelman J. (2014) [English: http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=54e607184]). In the matter before us, as long as the Minister has not established directives, has not promulgated regulations, and has not issued decisions, and needless to say, it is not yet clear what the nature of the above will be, how they will restrict participation in public tenders, and which benefits will be denied, there is no place for the exceptional intervention of this Court in the form of striking down a statutory provision. In effect, this is an a fortiori application of the ripeness doctrine, under which the Court must refrain from striking down a law when the constitutionality of the law is contingent upon the manner of its implementation in concrete circumstances which have not yet come into being (HCJ 2311/11 Sabah v. Knesset, (published in Nevo) paras. 11-23 of the opinion of Grunis P. (2014) (hereinafter: the Admissions Committees case); HCJ 8276/05 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Defense, (published in Nevo) para. 31 of the opinion of Barak P. [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-defense];  and see: Elena Chachko, “On Ripeness and Constitutionality: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance and HCJ 3803/11  Israeli Capital Markets Trustees Association v. State of Israel,” 43 Mishpatim 419 (2013) (hereinafter: Chachko)). In the matter before us, not only do we lack concrete circumstances in which the Law has been implemented, but at present it is not actually possible to implement these provisions (with the exception of sec. 4(b), which will be discussed below). Establishing directives and promulgating regulations is required for the legislation to proceed to the stage of implementation, and therefore the matter would seem unripe.

            Indeed, as my colleague Justice Melcer noted, a chilling effect has been recognized as possible grounds for the annulling of a law, even in the absence of ripeness (the Admissions Committees case, para 16; Chachko, at p. 446; and see Notes, “The Chilling Effect in Constitutional Law,” 69 Colum. L. Rev. 808 (1969)).  As I will explain below, this argument can be considered in regard to sec. 2(c) of the Law. However, I believe that the force of this argument is diminished in regard to secs. 3 and 4, as noted. The directives and regulations that might create a chilling effect have not yet been established, we do not know when they will be, if at all, and if and when they are established, what there scope might be. The idea that someone might choose to speak or not speak in a particular way on the basis of directives and regulations that do not exist is not, in my opinion, well founded. Therefore, I cannot agree with the opinion of Justice Danziger in this regard, according to which “the broad application of the administrative sanction creates a real danger of broad violation of political views” (para. 32 of his opinion). Such a sanction has not yet emerged – with the exception of the end of sec. 4(b), which will be addressed presently – and as noted, we cannot know what it may be and to what extent it may infringe anyone’s freedom of expression. I will go one step further: I do not think that the expression “chilling effect” is the end all. In my opinion, there are forms of expression for which “chilling” is appropriate. No one would deny that a call for violence is an example. No one would deny that shouting “fire” in a crowded theater is another. Therefore, the test is contingent upon the circumstances, and in my opinion, a call for racism – for example – is also such a case. All of these are “fighting words”.

            Nevertheless, as my colleague Justice Hendel emphasized, the end of sec. 4(b) of the Law permits the Minister to deny the benefits enumerated in sec. 4(a) even in the absence of appropriate regulations. I would concur with my colleague’s comment in that I agree that the regulations should be promulgated promptly so that matters may be appropriately clarified. However, the Law, as it presently stands, permits the Minister to act as stated, and therefore it is nevertheless necessary that we examine whether sec. 4 meets the tests for constitutionality. Over and above that need, we will also examine sec. 3 from a constitutional perspective.

15.       On the merits, I am of the opinion that sec. 3 and sec. 4 meet the tests of the Limitation Clause. In HCJ 10104/04 Peace Now – Shaal Educational Enterprises v. Ruth Yosef, Supervisor of Jewish Settlement in Judea and Samaria IsrSC 61(2) 93 (2006) (hereinafter: the Peace Now case), which treated of the use of public funds to oppose the Disengagement Plan, which was cited by Justice Melcer and Justice Danziger, the conclusion was as follows (p. 201):

(1)        By the majority opinion of President Barak and Justices Grunis and Rubinstein, and as opposed to the dissenting view of Deputy President (Emeritus) Cheshin and Justice Beinisch, that under the circumstances before the Court, a local authority may transfer funds to another entity or other entities in order to oppose the implementation of the Disengagement Plan;

(2)        By the majority opinion of President Barak, Deputy President (Emeritus) Cheshin, and Justices Beinisch and Grunis, and as opposed to the dissenting view of Justice Rubinstein, that in every case in which a local authority transfers monies to the opposition of the implementation of the Disengagement Plan, the state may set off from the funding of that council a sum equal to the amount of money that the authority transferred to another entity or other entities for the purpose of that campaign. Justice Rubinstein, dissenting, was of the opinion that monies for the campaign could be taken only from the municipal taxes of the residents of the authority, and in such a case, there should be no set off.

            Deputy President Cheshin stated, inter alia (p. 186):

…that we not decide that the local authority use the support granted to it by the state in order to oppose a plan initiated by the state. A person will not be permitted to bite the hand that feeds him.

            My colleague Justice Danziger is of the opinion that no analogy should be drawn between the Peace Now case and the matter before us, inasmuch as that case concerned statutory bodies, whereas the matter before us applies to all, including private bodies. I respectfully disagree. I am of the opinion that what was said in the Peace Now case applies a fortiori to the matter before us. Clearly, if the state is permitted to withhold funds from a public authority, which is an organic element of the state by its very nature, when it uses the monies to act against the state, then the state is also permitted to withhold benefits from private bodies when they do so, as “no entity that carries out activities has a vested right in the receipt of governmental support” HCJ 11020/05 Panim For Jewish Renaissance v. Minister of Education, Culture and Sport (published in Nevo) para. 10 of the opinion of Justice Arbel (2006); and see: HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, 53 (5) 337, 385 (1999); AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, (published in Nevo), para. 34 (2010) [http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-je....

            I will unequivocally state: in my opinion, the state would have to be the world’s greatest fool to grant benefits at its expense to private entities, or to contract with private entities, that call to boycott individuals or companies by reason of their connection to the state, one of its institutions, or areas under its control. It is like a victim giving his assailant a stick to hit him harder. In the words of Justice Barak: “A constitution is not a prescription for suicide, and civil rights are not a stage for national extinction” EA 2/84 Neiman v. Chairman of the Elections Committee, IsrSc 39 (2) 225, 311 (1985) [http://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee], and with all due respect for pluralism and freedom of expression, I do not think that this requires granting funding and various benefits to, or that the state contract by means of public tenders with, those who act against state policy, and in effect, against the state itself, as if to thank those who spit upon you for the blessed rain. Even insanity requires some sense (see in this regard, D. Barak-Erez and G. Sapir, “The Anger and Insult Law,” Ha’aretz (July 18, 2011) (Hebrew); or to quote Justice Melcer, as if to “bite the hand that feeds them” (para. 46). And note that this is being stated in view of the said unique character of a call for a boycott – a coercive measure that may have far-reaching and even existential consequences – and in no way affects anyone’s ability to express criticism, protest, or attempt to convince of is rightness by means of the many means that a democratic regime puts at his disposal, without fear that the state might deprive him of benefits or refrain from contracting with him by reason of such criticism or protest. Therefore, like my colleagues Justice Melcer and Justice Hendel, and as opposed to the view of my colleague Justice Danziger, I am of the opinion that to the extent that sec. 3 and sec. 4 infringe the Petitioners’ freedom of expression, that infringement is proportionate and clearly meets the tests of constitutionality, as long as they are implemented in a proper, transparent manner. I find no need to elaborate on the additional tests, which my colleagues agree are met in this case, and I, of course, do not disagree.

Section 2(c)

16.       After all the preceding, how does sec. 2(c) differ? It would seem that it goes one step too far. The primary purpose of tort law is the restoration of the victim, to the extent possible, to his situation prior to the commission of the tort. This is achieved by awarding damages for the harm he incurred as a result of the tortious conduct (I. Englard, A Barak & M. Cheshin, The Law of Torts – The General Theory of Torts, 571-574 (G. Tedeschi ed.) (2^nd ed., 1977) (Hebrew)); I. Gilead, Tort Law: The Limits of Liability, vol. I, 78-79 (2002) (Hebrew) (hereinafter: Gilead). Damages without proof of damage – sometimes called statutory damages, or also punitive damages – are an exception. Their purpose is to express society’s condemnation of the tortfeasor’s conduct in severe cases by means intended to deter the tortfeasor, or others like him, from such tortious conduct, even in the absence of damage, or at least, where damage, or its extent, has not been proven (CA 140/00 Ettinger v. The Company for the Reconstruction and Development of the Jewish Quarter, IsrSC 58 (4) 486 (2004) paras. 73-9 [http://versa.cardozo.yu.edu/opinions/ettinger-estate-v-jewish-quarter-co... CA 9656/03 Estate of Marciano v. Zinger, (published in Nevo) (April 11, 2005) para 34; CA 89/04 Dr. Nudelman v. Scharansky (published in Nevo) (Aug. 4, 2008) para 45; Gilead, 44-44; T. Kremerman, “Ruling Damages with No Damage in the New Amendment to the Israeli Defamation Law,” 43 Mishpatim 899, 907-908 (Hebrew)). Thus, for example, over the years the legislature provided for the possibility of awarding damages without proof of damage in regard to sexual harassment or persecution (sec. 6(b) of the Prevention of Sexual Harassment Law, 5758-1998); discrimination in the providing of a service or product on the basis of religion, race or sexual inclination, etc. (sec. 5(b) of the Prohibition of Discrimination Law); and publishing anything likely to humiliate or debase a person due to his conduct, actions, religion, etc. (sec. 7A(b) and sec. 7A(c) of the Defamation Law, 5725-1965). Thus, we are concerned with conduct that is deemed improper by a broad social consensus, and that should be deterred even at the price of deviating from the basic principle of tort law that a victim should be compensated only for the damage incurred (and see the Explanatory Notes to the Prevention of Sexual Harassment (Amendment 8) (Damages without Proof of Harm) Bill, 5758-1998; and in regard to punitive damages, also see the sources cited by my colleague Justice Melcer in paras. 41-42 of his opinion).

17.       The matter would appear to be different in all that regards sec. 2(c). As noted, the main reason – but certainly not the only one – for the enactment of the Law is the protection of the residents of Judea and Samaria from the harm caused them by the actions of those who call to boycott them, which is a subject of public debate in Israel. This, as noted, is of significance in the context of damages without proof of damage and punitive damages (see, also, E. Rubinstein, “Punitive Damages – A View from the Bench,” in A. Barak, R. Sokol, O. Shaham (eds.), Orr Volume 97, 102-105 (2013)). Sections 2(a) and 2(b) are sufficient for achieving that purpose, and as stated, do not disproportionately infringe the Petitioners’ freedom of expression by imposing an obligation to compensate those harmed by their actions. Section 2(c) upsets this delicate balance. It significantly restricts the Petitioners’ freedom of expression by creating an intensified chilling effect, even for someone who, like myself, holds a more moderate view of the fear of chilling effects, while protecting the objects of the call for a boycott, even if they incur no damage. It would therefore appear that there is an alternative means that would serve the purpose that the Law’s intended purpose while infringing the Petitioners’ right to freedom of expression to a lesser extent. That is sufficient for determining that sec. 2(c) is unconstitutional.

Before Concluding

18.       Out of a love of Jewish law, I would add that while it does recognize the concept of boycott [ostracism] as a prerogative of the public, it is imposed for the purpose of facilitating societal life rather than its division, in order to prevent misconduct by means of an act that is not legally required or prohibited (see: HaEncyclopedia HaTalmudit, vol. 17, s.v. Ḥerem (Ḥaramei Tzibbur) 343 (Hebrew)). As Gideon Libson writes in his article “The Ban and Those under It: Tannaitic and Amoraic Perspectives,” Annual of the Institute for Jewish Law, vol. VI-VII (1979) 177–202 (Hebrew):

In our sources, we find not only a rejection of the ostracism of sages or a denial of facts that deprives an act of the justification for employing ostracism, but even apology for the use of ostracism and an explanation of its need. Thus, Rabban Gamaliel apologizes for ostracizing Rabbi Eliezer ben Hyrcanus, according to the Babylonian Talmudic tradition regarding the ostracizing of Rabbi Eliezer ben Hyrcanus: “Sovereign of the Universe! You clearly know that I have not acted for my honor, nor for the honor of my paternal house, but for your honor, so that divisiveness may not multiply in Israel.” We have before us various expressions of the sensitivity displayed by the Sages in regard to the ostracizing of their fellows: rejection of ostracism itself, denial of the facts that would ground its imposition, apology for its imposition. All of these express reticence and reservation in regard to the use of ostracism.

19.       As stated above, I concur in the opinion of my colleague Justice Melcer, according to which the Boycott Law meets the tests for constitutionality, with the exception of sec. 2(c) that would appear to infringe freedom of expression disproportionately, and which must, therefore, be struck down. I respect the differing views of my colleagues Justices Danziger and Hendel (which differ in their results). But in my opinion, the balance struck by my colleague Justice Melcer is more appropriate to the circumstances of the State of Israel. In conclusion: these lines are written on the eve of Passover. The Passover haggadah speaks of the Divine promise of the survival of the Jewish People in spite of its enemies – “It is this promise that has sustained our ancestors and us, for not just one enemy has arisen to destroy us; rather in every generation there are those who seek our destruction, but the Holy One, praised be He, saves us from their hands.” There is nothing wrong with Israel’s Knesset giving legal expression to the fight against those who would seek our destruction.

20.       After writing and distributing my opinion, I came across an article by Prof. Lawrence Summers, President Emeritus of Harvard University and Secretary of the Treasury under the Clinton administration, who also held other senior economic positions. The article is entitled “Academic Freedom and Antisemitism” (ISGAP Policy Paper Series No. 1, March 2015), and I would like to quote the abstract:

In the broader context of rising antisemitism on college campuses, the response of universities to proponents of Israeli boycotts, divestiture, and sanctions must unite the preservation of academic freedom with a clear and forceful condemnation of the vilification of Israel. During his tenure as president of Harvard, the author delivered a set of widely noticed remarks in which he described the calls for divestiture and boycott as “antisemitic in their effect if not their intent.” Refusing to frame his critique in more generic terms, the author instead drew attention to the way in which divestment advocates focused solely on Israeli universities and scholars. The more recent intensification of pressure for boycotts, divestment, and sanctions against Israel, as evident in the American Studies Association boycott, likewise calls for a morally clear rejection of the demonization of Israel. Rather than resorting to overly broad language that criticizes boycotts in general, uni­versities should specifically reject the singling out of Israel for persecution, and should take steps to dissociate themselves from any organizations or movements that do so. A zealous minority that utilizes the resources and prestige of the acad­emy to pursue antisemitic objectives poses a genuine threat to academic freedom. Protecting academic freedom demands that this threat be addressed directly.

            At the end of the article, Prof. Summers concludes (p. 10):

If zealous minorities, no matter how well intentioned, are able to hijack the prestige and resources of the academy in pursuit of objectives that are parochial and bigoted, why should the broader society refrain from seeking to set the academy’s agenda. The right to say, advocate, or propose anything must always be protected. But it must come with the right or even obligation of others to call out words and deeds that threaten the com­munity and the values of moral concern and rational inquiry for which it stands.

Simply stated: even freedom of expression has its limits. This, I believe, should be borne in mind, a fortiori, in the matter before us.

 

Justice I. Amit

1.         The strength of a state is the product, inter alia, of its standing among the nations of the world, the legitimacy of its existence and its actions, and its economic strength. Over the last years, the State of Israel has faced the three D’s: Demonization, Dehumanization, and Delegitimization, and the BDS (Boycott, Divestment, Sanctions) movement is the vanguard of these three (some recommend a different reading of the acronym BDS: Bigoted, Dishonest and Shameful, as suggested in Gabriel Noah & Asaf Romirowsky, “Anti-Semitic in Intent if not in Effect: Questions of Bigotry, Dishonesty and Shame,” in Cary Nelson & Gabriel Noah Brahm (eds.),  The Case Against Academic Boycotts of Israel 75, 80 (2015).

            However, the Israeli legislature was of the opinion that it lacked capacity to combat those who called for a boycott against Israel abroad, and therefore, the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011 (hereinafter: the Prevention of Boycott Law, or the Law) is directed internally, at citizens and residents of the state who call for an academic-cultural-economic boycott against their own state.

            Does the Law withstand the “test of fire” of the Limitation Clause of the Basic Laws?

2.         My colleagues Justices H. Melcer, Y. Danziger and N. Hendel each set their own course, and I will begin by stating that I concur with the opinion of Justice Melcer according to which the Law passes – albeit with great difficulty – the proportionality test, with the exception of subsec. 2(c), which treats of punitive damages.

            I, too, am of the belief that the Law infringes freedom of political expression, which stands at the heart of freedom of expression. However, in my opinion, a close examination of the matter leads to the conclusion that although our subject is freedom of political expression, when a public call for boycott is concerned, we are not faced with a high level of freedom of expression, and the infringement is less than it initially appears. In view of the Law’s purpose to protect the rights of Israeli citizens to dignity and property – which are also rights of the first order – I believe that the Law meets the tests of the Limitation Clause, with the exception of subsec. 2(c).

            Inasmuch as my colleague Justice Melcer reviewed the elements of the Law, the background of its enactment, and the arguments of the parties in detail, I will not reiterate. I shall proceed as follows: I will begin with a preliminary remark and a remark in regard to comparative law, and then continue with the reasons grounding freedom of expression, and that a call for a boycott stands in contradiction to some of those rationales, which has consequences for the extent of the infringement of freedom of expression, I will address the second and third subtests in view of the purposes of the Law and the secondary harm to the objects of the boycott, I will consider the Law from the standpoint of tort law and in the context of the “chilling effect”, and I will conclude with a brief consideration of secs. 3 and 4 of the Law and the interpretation proposed by my colleague Justice Danziger.

 

Preliminary Remark

3.         The Law has prepared a “masked ball” for us, both in regard to the legislature and the Petitioners. I will explain.

            By its language and declared purpose, the Law is intended to protect the State of Israel against cultural-academic-economic boycotts. But the Knesset proceedings and the background of the Law reveal that its midwives were motivated by a desire to protect industries and institutions in the Area against internal and external boycotting, which is why the phrase “or an area under its control” was added to the definitions section (the bill was introduced at the height of a public debate that arose following a call to boycott the public auditorium in Ariel – see Amir Fuchs, Dana Blander & Mordechai Kremnitzer, Anti-Democratic Legislation in the 18th Knesset, 59 (Israel Democracy Institute, 2015)).

            For their part, the Petitioners made hay of the phrase “or an area under its control”. The Petitioners complained up and down their petitions that the Law infringes freedom of expression in regard to a subject that stands at the center of Israeli political debate. But in the course of the hearing, they removed their masks and showed their true colors.  With the exception of the Petitioners in HCJ 5392/11 (the Barkai petition), it turned out that the other Petitioners do not distinguish between the State of Israel and the Area. As far as the Petitioners are concerned, even a call to join the Arab Boycott that was imposed on Israel at the time, is a call that falls within the scope of freedom of expression that should not be restricted, such that their position would remain unchanged even if the legislature were to remove the phrase “or an area under its control” from the definition of “a boycott against the State of Israel”. In other words, it is not the protection of institutions, organizations and industries in the Area that keeps the Petitioners up at night, but the restriction of the very right to call for a boycott against the State of Israel for any reason whatsoever.

            With all due respect for the subjective intention of the legislators and the intentions of the Petitioners, as my colleague Justice Danziger pointed out, the business of this Court is analysis of the law and not psychoanalysis of the legislature. Therefore, even if the legislature primarily intended to combat the boycotting of industries and institutions in the Area, the law that it enacted was expressly intended to combat boycotts against the state, and it is in that light that we must examine its provisions.

On Comparative Law

4.         Before embarking upon an examination of the Law’s infringement of the constitutional right to freedom of expression, I will devote a few words to the use of comparative law in legal interpretation. The debate unfolding on these pages on the subject of freedom of expression and its infringement is bursting at the seams with references to foreign cases, particularly from American law. Indeed, no one would deny that the study of foreign law and cross-pollination is good and desirable. “It is appropriate for an interpreter to be open to the fundamental principles of enlightened legal systems ‘that form the world’s cultural view’” (Aharon Barak, Interpretation in Law – Constitutional Interpretation, 236 (1994) (hereinafter: Barak, Constitutional Interpretation). However, “the use of comparative law in our case — like in every case — must be made sensitively and carefully, after thorough examination as to whether the legal arrangements practiced in one country or another are compatible with the law in Israel and the reality of life with which we contend” (HCJ 7052/03 Adalah v. Minister of the Interior, IsrSC 61 (2) 202, 419 (2006) perm. Cheshin D.P. [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]). As my colleague Justice Danziger noted, the protection afforded freedom of expression, in general, and freedom of political expression, in particular, is broader in the United States than the protection afforded freedom of expression in Israel. There are many reasons for this difference, and I will note one central reason, which is the constitutional text that is the source of the right.

            The right to freedom of expression in American constitutional law derives from the First Amendment to the Constitution, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

            The right to freedom of expression in the American Constitution thus comprises the right to freedom of the press, the right to assemble, and the right to petition for governmental relief. This special constitutional context led the United States Supreme Court to emphasize, for reasons that are at the foundation of freedom of expression, the reason of defense of the democratic regime (see: Eric Barendt, Freedom of Speech, 48 (2^nd ed., 2005), and see: Laurence H. Tribe, American Constitutional Law, 804 (2^nd ed., 1988) (hereinafter: Tribe)). This explains the centrality of freedom of political expression in the American constitutional system, as well as the severe requirements that American law has established for justifying an infringement of that right. In the United States, freedom of speech is directly connected to the freedom of political expression.

            As opposed to this, in Israeli constitutional law, freedom of expression is a right that is inferred and derived from the right to dignity in Basic Law: Human Dignity and Liberty, as a subsidiary of human dignity. This reflects the concept that “what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?” (CA 4463/94 Avi Hanania Golan v. Prison Service, IsrSC 50 (4) 136, 153 (1996) per Mazza J. [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service]). The source of Israeli freedom of expression is human dignity, and the core of Israeli freedom of expression is human dignity (Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 730 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)] (hereinafter: Barak, Human Dignity); “the right under discussion – freedom of political expression – is, according to our juridical conception, closely and materially bound to human dignity”, HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attroney General, IsrSC 62 (4) 715, 753 (2008) per Naor J. [http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]).

            The source of the right to freedom of expression, along with many additional reasons that I see no need to address, result in a different approach to freedom of expression in general, and freedom of political expression in particular, in the United States and the State of Israel, and to different balancing formulas (Barak, Constitutional Interpretation, p. 236).

            In American law, a finding that something is protected speech is often the end of the road, which is not the case in our legal system, with its various balances between freedom of expression and other conflicting values. It is, therefore, appropriate to learn from other countries that have liberal democratic legal systems and values similar to our own. Israel is not an island unto itself, and we should not adopt an approach according to which “we have nothing to gain in this regard from foreign fields” (HCJ 5771/93 Citrin v. Minister of Justice, IsrSC 48 (1) 661, 676 (1994) per Mazza J. in a different context). However, we should bear in mind that recourse to foreign law is an additional resource from among many interpretive resources, and “the status of comparative law is no different than a good book or a good article. Its bearing is determined by the quality of its rationale” (Barak, Human Dignity, 195 [English edition: p. 93]). Enrichment from such sources must, therefore, be approached with care, and with due consideration of the differences between the foreign system and our own.

            In conclusion, we can enjoy and be inspired by American law on the subject of freedom of expression, but we cannot entirely adopt it in the matter before us. Some say that boycotts are impressed upon the American DNA, as a nation whose founding fathers employed boycotting in their struggle for independence (Yaniv Meno, “Consumer Boycotts, the Ethical Weapon of the Consumers,” 15 Hamishpat 729, 756 (2010) (Hebrew) (hereinafter: Meno “Consumer Boycotts”)). However, it should be noted that while consumer boycotting is well-developed and protected in the United States, that is not the case in regard to political boycotting, despite, or perhaps because of the special place of freedom of expression in the United States. We do not make this “cautionary note” to derogate from the value and importance of freedom of expression in Israeli law, which I will address below.

 

The Reasons for the Right to Freedom of Expression

5.         It would be hard to exaggerate the importance of freedom of expression in general, and freedom of political expression in particular. Even prior to the enactment of Basic Law: Human Dignity and Liberty, this Court recognized the importance of this “supreme value” HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [English:  http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case)). With the enactment of Basic Law: Human Dignity and Liberty, the right to freedom of expression won supra-legal constitutional status as a right derived from human dignity:

The case law has repeatedly established that freedom of expression forms an inseparable part of the right to dignity, inasmuch as freedom of expression is essential to personal development and the fulfillment of one’s human potential. We are the heirs to a longstanding legal tradition that views freedom of expression as a constitutional freedom that derives from the fundamental values of the State of Israel as a Jewish and democratic state. Freedom of expression and democracy have a reciprocal relationship – democracy is a necessary condition for freedom of expression, and freedom of expression gives democracy its meaning. It is not without reason that freedom of expression has been referred to as a “supreme value”, the “apple of democracy’s eye”… and other such expressions and idioms that have been coined, and praises that have been sung over the years in honor of “that giant that is called freedom of expression”… (my opinion in CA 751/10 A. v. Dr. Ilana Dayan-Orbach (published in Nevo) para. 4 (Feb. 8, 2012) (hereinafter: the Ilana Dayan case)).

6.         My colleagues addressed the reasons underlying freedom of expression, and I will only briefly mention them: freedom of expression is an end in and of itself, it is a part of human dignity and the right to autonomy that makes it possible to realize one’s potential and express one’s opinions; freedom of expression is a means for achieving social and democratic objectives, inasmuch as only the public can only form its opinions through free, open debate; freedom of expression serves to promote knowledge and uncover the truth in a competitive free marketplace of ideas and opinions, and the assumption is that the best opinion is the one that will survive, and the truth will conquer lies (see, e.g., the Ilana Dayan case, para 17, per Vogelman J., and the references there).

            Distilling the above shows that freedom of expression rests upon three primary, intertwined and integrated rationales: human self-fulfillment; exposing the truth; ensuring a democratic regime (and see: Barak, Human Dignity, 712-719 and references there). The cumulative force of those three reasons grants freedom of expression a place of honor in our liberal democratic conscience, and in our constitutional legal system. But note that not every form of expression corresponds with all three of those reasons. There are forms of expression that promote scientific or other “truths” that are unrelated to a democratic regime. There are forms of expression that express a person’s “credo”, but do not make any special contribution to the free marketplace of ideas. However, that neither adds nor detracts from the value of such forms of expression nor from the extent of their constitutional protection. Nevertheless, considering the rationales grounding freedom of expression helps us achieve a better understanding of what it is that we seek to protect in the framework of freedom of expression. Expression that is unconnected to any of those reasons, or that is only tenuously connected to one or another, may be granted different weight when we examine the proportionality of its infringement. It is at this juncture that we arrive at the Law before us.

The Prevention of Boycott Law and the Infringement of Freedom of Expression in light of the Rationales grounding Freedom of Expression

7.         The Prevention of Boycott Law establishes that “anyone who knowingly publishes a public call for a boycott against the State of Israel” commits a civil wrong (sec. 2 of the Law), and his right to participate in public tenders or receive benefits or funding from the state may be denied (secs. 3 and 4 of the Law). According to the Petitioners, the law infringes, inter alia, their right to freedom of expression because the Law “expropriates […] the right of a certain part of Israeli society to state its opinion in opposition to the lawfulness […] of actions performed by the Government of Israel and/or the State of Israel in the territories that were conquered […]” (para. 10 of the petition of the Petitioners in HCJ 5549/11). The Petitioners point out that imposing a boycott is an important democratic tool, and that “there are those who choose to boycott in obedience to the dictates of their conscience, which does not permit them to use a particular product […and] there are those who choose to boycott in order to apply pressure upon the object of the boycott so that it will change its course” (para. 18 of the petition in HCJ 5239/11). These arguments are, indeed, consistent with the reasons grounding freedom of expression. However, in my opinion, the provisions of the Law do not prevent the Petitioners from realizing their right to freedom of expression. I shall explain.

8.         I will begin in praise of the boycott. Boycotting is considered a tool for the voicing of non-violent opposition of a type that has the potential for initiating change in various areas, such as in the political and consumer areas. It can serve society’s weaker groups, and it  also realizes the right to assemble, such that it may be seen as one of the tools of the democratic process.

            As noted, no one disputes that the Law infringes the Petitioners’ right to freedom of expression. However, the Law does not apply to a person who publishes criticism of the State of Israel, its policy in the Area, or of entities or persons who support that policy. The law does not apply to a person who boycotts the State of Israel or an area under its control. As opposed to the impression that might be gained from reading the petitions, the Law does not prevent any person or entity from expressing a position on the question of continued Israeli control of the Area, and does not prevent anyone from boycotting a particular dairy or winery due to its connection to the State of Israel or the Area. The Law does not prohibit or in any way restrict expression against any particular institution or factory, and does not even prevent action to boycott, and therefore, a person can persuade another not to purchase goods from a particular factory. The Law only prohibits publishing a public call. A person can boycott and participate in a boycott, but cannot publicly call for a boycott, just as a person may hold racist views, but may not publish incitement to racism, and a person may identify with a terrorist or violent act, but may not call for or support such acts (see secs. 144B and 144D (2) of the Penal Law, 5737-1977 (hereinafter: the Penal Law)). A distinction should therefore be drawn between using words to express an opinion, and the use of words as a form of action. While we are, indeed, concerned with a call for a boycott, which American law would categorize as speech, as opposed to participation in a boycott, which is deemed as conduct, in my opinion, a call for a boycott – as a motivation to action – is not normal speech, but rather falls within the interstice between speech and conduct.

            The Law therefore applies solely to a publically calling for a boycott. It is through this lens that I will examine the question of whether a call for a boycott, as distinct from participation in a boycott, corresponds with the reasons grounding freedom of expression enumerated above, and if so, to what extent.

9.         Autonomy and self-fulfillment: Participation in a boycott involves an element of self-fulfillment. It can provide a feeling of inner satisfaction that is something of an end in itself (Meno, Consumer Boycotts, 750-751). But a call for a boycott, as a form of expression intended to motivate a specific action by another, is expression that is outwardly directed. The purpose of a call for boycott is to change the conduct of others – to cause part of the public to boycott, and to cause the objects of the boycott to change the conduct at which the boycott is directed. This aspect of a call to boycott is not at the core of the rationale of a person’s self-fulfillment and autonomy. As noted, the Law does not prohibit a person from obeying the dictates of his conscience and refrain from purchasing from a factory located in the Area, just as a person who objects to animal testing may refrain from using products produced on the basis of animal testing. Indeed, no one denies that the ability to motivate others and bring about a change of their conduct is part of a person’s “selfhood”, but infringing this rationale is less severe, considering that a person has many options at his disposal for expressing his opinion in the marketplace of ideas, and other possibilities for explaining and for persuading another of the justice of his cause. There are even those who are of the opinion that boycotting, and certainly cultural-academic boycotting, should be the last arrow – if it is there at all – in the quiver of a person who believes in freedom of expression. The Law can also not be said to infringe the dictates of a person’s conscience. Conscience is threatened when a person is required and actively compelled to act against the principles in which he believes. Restricting a person from calling others or preventing others to act in a manner that he conceives to be improper is not an infringement of conscience (Daniel Statman & Gidi Sapir, State and Religion in Israel, 120 (2014) (Hebrew)).

            In conclusion, while the Law does infringe the reason of fulfillment of selfhood underlying freedom of expression, that infringement is not as great as us claimed by the Petitioners.

10.       Exposing the Truth and Defending Democracy: A call for a boycott is a form of expression intended to motivate a specific action (boycott) by others, as opposed to expression that concerns persuasion, study and the stating an opinion. As opposed to the Petitioners’ claim, the right of part of society to have its say has not been “expropriated”, and they may express their opinion aloud, even and especially on subjects that are the subject of debate, like the state’s control of the Area. The Law does not contradict the statement that “debate on public issues should be uninhibited, robust, and wide-open” (New York Times v. Sullivan 376 U.S. 254, 270 (1964) per Brennan J.) (hereinafter: the Sullivan case). Therefore, it would appear that the Law does not substantially infringe the first reason grounding freedom of expression – exposing the truth.

11.       But the Petitioners argue that restricting the ability to call publically for boycotting deprives them of a key tool in the democratic toolbox of freedom of expression.

            It cannot be denied that a boycott can serve to bring pressure to bear upon various bodies and, in the short or long term, bring about dramatic change. However, it is hard to conceive of a call for boycotting as serving the “exposure of the truth”, which is also of consequence in regard to the motive of defending democracy, and as will be explained, the two motives are closely related.

            Freedom of expression protects democracy in two primary ways. The first is closely tied to the principle of exposing the truth and the free marketplace of ideas. “Only by considering ‘all’ points of view and a free exchange of ‘all’ opinions is that ‘truth’ likely to be arrived at” (Kol Ha’am, p. 877, per Agranat J. (emphasis original – I.A.)). Without freedom of expression, we cannot know what is good for us, we cannot persuade others of the rightness of our ideas, and we cannot arrive at wise decisions and chart our course. The second way that freedom of expression protects democracy is in providing a safe, agreed platform for expressing disagreements and attenuating public tensions (see Barak, Human Dignity, 716). Indeed, “thanks to freedom of expression, social pressure can be vented in words rather than deed” (HCJ 399/85 Kahane v. Broadcasting Authority, IsrSC 41 (3) 255, 276 (1987)). Freedom of expression primarily concerns speech rather than actions. Freedom of expression primarily concerns the expression of opinions through discourse, and not through coercion.

12.       Boycott is an exceptional tool in the freedom-of-expression toolbox. It is intended to impose change through harmful means. Rather than debate and discuss conflicting views, a boycott is intended to oppose a particular policy by silencing other opinions, whether by economic means or through cultural and academic ostracism. Rather than respect the opinion of others and grant them a place in the free marketplace of ideas, a person calling for a boycott denies the legitimacy of those holding opposing views, and banishes them.

            My colleague Justice Danziger holds the view that boycotting is an effective democratic tool, and he marshalled support from the legal literature, as follows (para. 7 of his opinion):

While a successful boycott may appear to drown out another position, the remedy is not to silence the boycott but instead for those on the other side to endeavor to make themselves “louder” (Theresa J. Lee, “Democratizing the Economic Sphere: A Case for the Political Boycott,” 115 W. Va. L. Rev. 531, 550 (2012)).

            I cannot agree with that statement, neither in terms of the free marketplace of ideas, nor in regard to the protection of democracy. It would seem that in the learned author’s marketplace of ideas, opinions are measured in decibels rather than their merits. The sellers in the author’s market do not try to persuade buyers, but rather to drown out the competition. But democracy is not a shouting match. It is a forum for discourse, for sharing opinions, and for patient, tolerant attention to differing views.

            Bearing in mind the rationale of the free marketplace of ideas as a means for exposing the truth – a rationale that undergirds our adulation of freedom of expression – there is something Orwellian to the Petitioners’ argument that the Law restricts freedom of expression. An academic-cultural boycott muzzles expression in the plain meaning of the term. Granting a monopoly to one stand in the marketplace of ideas is the absolute antithesis of freedom of expression and the idea of a free marketplace of opinions. The cultural-academic boycott of Israel is intended to paralyze and silence political expression, impose one opinion and one “truth” (on the “facts” that guide the BDS movement, see Ben-Dror Yemini, The Industry of Lies (2014) (Hebrew); and Cary Nelson & Gabriel Noah Brahm (eds.), The Case against Academic Boycotts of Israel (2015)). Against this light, the Boycott Law appears to promote freedom of expression, and defend it against those who would seek to restrict it. Voltaire was ready to fight for an opponent’s freedom of expression, but surely would not have been willing to shed his own last drop of blood to defend that opponent’s right to silence him. The academic-cultural boycott is largely symbolic. It is a crude device that targets the entire academic community and the institution itself, without distinction, and as such, in flagrant contradiction of academic freedom, and it is worthy only of contempt (for an in-depth argument against academic boycotts, see Martha Nussbaum, “Against Academic Boycotts,” in Cary Nelson & Gabriel Noah Brahm (eds.), The Case Against Academic Boycotts of Israel 39 (2015)).

            From this perspective, it is somewhat naïve to compare political and consumer boycotts. We conceive of freedom of political expression as more exalted than the freedom of commercial-consumer expression. In view of that very importance of political expression, a consumer boycott of a factory that exploits child labor or the environment – which is essentially an economic boycott – is unlike a boycott intended to silence another political opinion, including a cultural-academic boycott. It is the supreme value of freedom of expression that justifies placing restrictions upon calls for boycott that are intended to silence the expression of the other.

13.       As we see, boycott is an aggressive device in the democratic toolbox, whose legitimacy in extreme cases does not derive from reasons based upon freedom of expression. Similarly, the right to strike is a democratic tool, but the case law has rejected its forceful use. Thus, in HCJ 525/84 Hativ v. National Labour Court IsrSC 40(1) 673 (1986) (hereinafter: the Hativ case), this Court addressed the issue of political strikes, and rejected the plaintiffs’ argument that it was a legitimate democratic device:

The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such (ibid., at p. 703).

            This is also true, by analogy, of the coercive force of an economic-academic-cultural boycott.

            In summary, the Prevention of Boycott Law infringes freedom of expression primarily in terms of autonomy and fulfillment of “selfhood”, but does so with less force than may appear at first glance. I shall now address the second stage of constitutional review: whether the Law meets the conditions of the Limitation Clause.

The Limitation Clause

14.       In order to decide whether a law that infringes constitutional rights meets the conditions of the Limitation Clause, we must examine the whether the arrangement established by the law falls within the “margin of proportionality”. This margin delineates the boundaries of legislative discretion. The Court does not examine whether the arrangement established by the law is optimal, or whether the Court would have chosen that arrangement were it the legislature. It is common knowledge that the Court will not replace the legislature’s discretion with its own, and “will not place itself in the authority’s shoes to select the appropriate alternative from among the possible choices”  (HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed  v. Attorney General (published in Nevo) para. 113, per A. Procaccia J. (Sept. 2, 2010)). The legislature is granted the power to choose among the possible alternatives in the “margin of limitation”, and the Court will show judicial restraint – although not judicial torpidity – in regard to the legislature’s choice (HCJ 1715/97 97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 389 (1997) per Barak P.).

            We must, therefore, exercise restraint in navigating the Limitation Clause. We will not annul a provision of a law merely because we are uncomfortable with it, as long as that law falls within the margin of proportionality. Even if we do not find the form and concept of the law to be attractive, this Court is not a plastic surgeon who erases wrinkles and removes fat upon request. It is, of course, good for a law to be attractive, balanced and optimal, but it is solely required to meet the conditions of the Limitation Clause. As my colleague Justice Melcer emphasized in his opinion, we are concerned with the constitutionality of the law, and not with the legislature’s wisdom in equating a winery in the Area with one in the territory of the State of Israel. “The Court must determine the constitutionality of the law, not its wisdom. The question is not whether the law is good, efficient, or just. The question is whether the law is constitutional” (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village IsrSC 49 (4) 221, 438 (1995), IsLR 1995 (2) [English: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... and see HCJ 8425/13 Eitan – Israeli Immigration Policy Center v. Government of Israel (published in Nevo) (Sept. 22, 2014), para. 1 of the opinion of Grunis P. [English: http://www.refworld.org/cgi-in/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=54e607184]).

15.       My colleagues Justices Melcer, Danziger and Hendel examined the Law under the proportionality tests, and I, too, am of the opinion that the Law is consistent with the values of the State of Israel as a Jewish and democratic state, that it is intended for a proper purpose, and that there is a rational connection between the Law and its purpose. On the issue of the matter of the third subtest of proportionality – proportionality stricto sensu – I concur in the opinion of my colleague Justice Melcer.

Proportionality Stricto Sensu

16.       In examining the proportionality of the infringement of a right (stricto sensu), we balance the benefit of realizing the law’s purpose against the harm it poses to the right. We place the benefit and the probability of achieving it on the positive side of the scales, and balance it against the importance of the right, and the severity and probability of its violation on the negative side of the scales (see: Aharon Barak, Proportionality in Law 438-445 (2010) (Hebrew)).

17.       On the negative side, I would note our point of departure that the Law infringes the fundamental right of freedom of expression. To that we must add the Law’s chilling effect, which I will address below. However, in examining the infringement of freedom of expression, we do not consider the harm in abstract terms, but rather in terms of the concrete context of its circumstances (Barak, Proportionality 440). We earlier noted that a call for a boycott of Israel does not “correspond” with the reasons undergirding freedom of expression, and that infringing the possibility for publically calling for a boycott – as opposed to participating in a boycott – as one of the tools available in a democratic system, is not a significant violation.

18.       On the positive side, I would point to my colleagues’ opinions that addressed the purposes of the Law in preventing harm to the State of Israel by means of boycott, and the protection of its citizens form economic, cultural and academic harm. These objectives concern constitutional rights of the citizens of Israel, like the right to freedom of expression, the right to property, the right to freedom of occupation, the right to equality, and the right to human dignity, some of which the state is obligated to defend (sec. 4 of the Basic Law states: “All persons are entitled to protection of their life, body and dignity”).

            An academic or cultural boycott of Israel infringes the freedom of expression of every individual connected with the institutions that are the objects of the boycott. It harms the ability for a lecturer in a boycotted academic institution to participate in academic discourse, it harms the ability of an actor in boycotted theater to express his “selfhood” by means of stage performance. A boycott against Israel harms the property rights of the boycotted individuals and companies, their vocation and freedom of occupation. The matter is clear, and I see no need to elaborate.

19.       A public call to boycott a person due to his connection to the State of Israel violates the core of human dignity by exploiting that person as a means for achieving a political end (HCJ 10843/04 Hotline for Migrant Workers v. Government of Israel, IsrSC 62 (3) 117, 147 (2007) per E. Levy J. [http://versa.cardozo.yu.edu/opinions/hotline-migrant-workers-v-governmen.... This conception, referred to as the “object formula” in philosophical and legal literature, views a specific person as a means or an object for achieving the goals of another, and seriously violates the dignity of that person (on the object formula, see Barak, Human Dignity, 64, 254, 453).

            We have noted that a boycott is intended to pressure the object of the boycott in order to cause him to change his ways. Boycotting a clothing manufacturer for violating the rights of workers is intended to cause that manufacturer to change its ways and treat it workers properly. Boycotting a bus company that discriminates against blacks is intended to cause that company to change its ways and treat all of its customers properly. Such is not the case in regard to the boycott against the State of Israel, which is intended to apply pressure to the objects of the boycott – persons with a connection to the State of Israel – in order that they might, in turn, apply pressure upon a third party (the state) in order that the state will change its ways. When A calls for a Boycott of B for the racist opinions he disseminates among his students, there is an identity between the purpose of the boycott and its object. Those who call for a boycott of the State of Israel take aim at the State of Israel and its policies, but the individuals who are the objects of the boycott are the ones who pay the price, and serve solely as a means for achieving the ends of those who call for the boycott. That constitutes a severe violation of the dignity of the objects of the boycott, who are discriminated against, through no fault of their own, as victims of a secondary boycott.

Secondary Boycotts

20.       A secondary boycott inflicts harm upon a party that is not directly connected to the reason underlying the call for a boycott, and who is not always able to respond to the boycotters’ demands for a change of general political policy (in the consumer-economic sphere, a distinction is customarily drawn between a direct, first-order boycott, such as when a manufacturer refuses to supply a product to a particular distributer, and a secondary boycott, in which a business refuses to purchase a product from a particular manufacturer who continues to supply the product to a boycotted competitor – Yitzchak Amit, “Prohibition of Unfair Competition Bill,” 23 HaPraklit 223, 231 (1996) (Hebrew) (hereinafter: “Prohibition of Unfair Competition”)).

            The United States Supreme Court addressed this in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (hereinafter: the Claiborne case), mentioned by my colleague Justice Hendel as a decision that recognized the constitutional protection of political boycotting as free speech, which stated: “Secondary boycotts and picketing by labor unions may be prohibited, as part of ‘Congress’ striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife’” (p. 912). The Court cited the case of International Longshoremen's Association v. Allied International, Inc., 456 U.S. 212, 222-223 (1982) (hereinafter: the Longshoremen case), to which my colleague Justice Hendel referred. In that case, American stevedores refused to unload cargo from the Soviet Union in protest its invasion of Afghanistan. The Supreme Court held that the boycott was secondary and political, and therefore prohibited by law.

            There would appear to be two differences between the matters discussed in Claiborne and Longshoremen that explain the different conclusion arrived at by the Court, and which are of consequence in the matter before us. First, the former case addressed a consumer boycott for racially discriminatory conduct that was aimed directly at the employer (although some of the demands were directed at the state), whereas the Longshoremen case concerned a purely secondary boycott in the sense that the victim was not the Soviet government, but rather third-party merchants. Second, the cause of action in Claiborne was a common-law tort, whereas the secondary boycott in Longshoremen was prohibited by an express statute – sec. 8(b)(4) of the National Labor Relations Act – that provides:

8(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents:

—

 (4)

—

(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is

—

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees […]

            This section was examined in light of the First Amendment of the United States Constitution on several occasions, and was not found to be constitutionally repugnant to freedom of speech. In the Longshoremen case, Justice Powell even wrote: “Application of 8(b)(4) to the ILA's activity in this case will not infringe upon the First Amendment rights of the ILA and its members. We have consistently rejected the claim that secondary picketing by labor unions in violation of 8(b)(4) is protected activity under the First Amendment. […] It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment” (ibid., 226). The import of these distinctions for the case before us, in which we are concerned with the constitutionality of an express statutory provision prohibiting secondary boycotts, should, I believe, be self-evident (for a comparison of the Claiborne and Longshoremen cases, and a critique of the Supreme Court’s decision in Claiborne, see: Gordon M. Orloff, “The Political Boycott: An Unprivileged Form of Expression,” Duke L. J. 1076, 1089 (1983)).

            The parallel drawn in Claiborne between a secondary boycott and a political boycott, as cited above, is not accidental. In both situations, the direct victim is not a party to the dispute, but rather someone “caught in the crossfire” between the party choosing to employ economic power to bring about political change by deviating from the democratic highroad and the state. This problematic aspect of political boycotts has long been recognized by the case law, and it has been held that one who employs his coercive power to influence political policy indirectly is not entitled to the protection of the law (see: the Hativ case; HCJ 1074/93 Attorney General v. National Labor Court, IsrSC 49 (2) 485 (1995) [English: http://versa.cardozo.yu.edu/opinions/attorney-general-v-national-labour-... HCJ 1181/03 Bar-Ilan University v. National Labor Court (published in Nevo) (April 28, 2011) [English: http://versa.cardozo.yu.edu/opinions/bar-ilan-university-v-national-labo... (hereinafter: the Bar-Ilan case)). The accepted view is that a purely political boycott does not enjoy the protections of the freedom to strike against an employer (on the distinctions between an economic boycott and a political boycott, also see: Ruth Ben-Israel, “Strikes as Reflected in Public Law: Strikes, Political Strikes and Human Rights,” Berenson Commemorative Volume, vol. III, 111 (2007) (Hebrew); Michal Shaked, “A Theory of Prohibition of the Political Strike,” 7 Yearbook of Labor Law,  185 (1999) (Hebrew); Frances Raday, “Political Strikes and Fundamental Change in the Economic Model of Labor Law,” 2 HaMishpat 159 (1994) (Hebrew). For a comparative survey of the law prohibiting political strikes, see: Haim Berenson & Assaf Berenson, “Sympathy Strike – Its Status and Proportionality,” Berenson Commemorative Volume, vol. II, 763 (2000) (Hebrew)). American judge Learned Hand addressed this in stating: “The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it” (International Bhd. of Elec. Workers v. NLRB, 181F.2d 34, 37 (2d Cir. 1950)).

21.       We can draw an analogy to our case from the inapplicability of the usual defenses of the right to strike to political strikes. A call for a secondary boycott is a form of expression intended to coerce the authority to adopt decisions in an extra-democratic manner, while secondarily harming third parties who are the objects of the boycott. Therefore, a call for such a boycott is not a form of expression over which Olympian freedom of expression will fully spread its aegis.

            The realization of the purposes of preventing harm to the State of Israel and the protection of the constitutional rights of the objects of the boycott as against a moderate violation of one of the grounds freedom of expression that is achieved by the unpopular means of a call for a boycott, should be given weight in the framework of the balancing required under the third subtest of proportionality.

22.       The Prevention of Boycott Law stands on three operative legs: a tort – sec. 2 of the Law – non-participation in public tenders – sec. 3 of the Law, and withholding State benefits and support – sec. 4 of the Law. Against this background, I will turn to an examination of the tort.

Section 2 of the Law – The Civil Wrong

23.       Like the tort of defamation, the tort established under the Prevention of Boycott Law is one that restricts expression. The tort is distinctive in transferring the issue to the civil-law arena, and thus “privatizing” the fight against calls for boycott. Section 2 of the Law creates a new tort, and it is therefore appropriate to address the tort from the tort-law perspective. That perspective will aid us in evaluating whether the provision meets the proportionality tests.

24.       I will begin by reminding the reader of the wording of the tort:

                        Boycott – Civil Wrong:

2.         (a) Anyone who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility, commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

(b) In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

 

            The section, in its current wording, suffers from a lack of clarity and ambiguity that impede an evaluation of the scope and implementation of the tort. I harbored some uncertainty as to whether that should lead to a conclusion that the petition should be dismissed for lack of ripeness in regard to the tort, due to its abstract nature and the absence of a clear set of facts that could be addressed in examining the elements of the tort. In any case, my colleague Justice Melcer discussed the primary problems raised by the tort at some length, and skillfully suggested an interpretation that resolves a major part of the difficulties, while leaving an examination of arguments concerning implementation for such time that they may arise (para. 58 of his opinion). That being said, I shall briefly address the main points, and conclude with an examination of whether the defects and flaws that I shall enumerate would justify annulling the tort in its entirety, as recommended by my colleague Justice Hendel.

25.       As a rule, torts are thought of as a closed list, to which various statutes contribute new torts such as consumer protection, violation of privacy, defamation, and so forth. We have before us a new particular tort that, at first sight, would appear to address a tort of conduct rather than result. But a more in-depth examination shows it to be a tort intended to protect against pure economic loss, that is, harm expressed in financial loss without any physical harm to the person or to property (on the reticence of Anglo-American law to impose liability for the negligent infliction of pure economic loss, see Ariel Porat, Tort Law, vol. I, 223-230 (2013) (Hebrew) (hereinafter: Porat). As opposed to this, pure economic loss is not foreign to Israeli law. On the contrary, denying liability for purely economic harm is the exception (see: Israel Gilead, Tort Law: The Limits of Liability, vol. II, 806 (2012) (Hebrew) (hereinafter: Gilead, Limits of Liability)). By its wording, the tort before us demonstrates some of the characteristic problems of a tort that concerns pure economic loss, such as increased litigation, over deterrence, causal connection, the nature of the victim (direct or indirect), etc. (on the policy considerations and the various categories of pure economic loss, see Tamar Gidron, “The Non Liability of a Bank (in England) and the (Potential) Liability of the State (in Israel): Pure Economic Loss in Light of Recent Developments - A Comparative Analysis and Evaluation,” 50 HaPraklit 95 (2008) (Hebrew) [English: https://www.researchgate.net/publication/228141641_The_Non_Liability_of_a_Bank_in_England_and_the_Potential_Liability_of_the_State_in_Israel_Pure_Economic_Loss_in_Light_of_Recent_Developments_-_A_Comparative_Analysis_and_Evaluation]; Tamar Gidron, “The Duty of Care in the Tort of Negligence and Pure Economic Loss,” 42 HaPraklit 126 (1995) (Hebrew). On pure economic losses incurred by a secondary plaintiff as a result of harm to the primary victim, see Ronen Perry, Economic Ricochets: Pure Economic Losses deriving from Tortious Harm to the Person or Property of a Third Party or Ownerless Property (2002) (Hebrew)).

26.       Expanding the plaintiff pool: According to the plain language of the section, any Israeli citizen can join a dispute in which he has no personal interest, and sue a person who called for a boycott against some bank that has a branch in Judea and Samaria. That would appear to be so in light of the tort’s wording “…commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him”. In other words, the tort would appear to apply to the tortfeasor-defendant rather than the victim-complainant. We may arrive at this conclusion through a comparison of other particular torts external to the Civil Wrongs Ordinance, such as sec. 31 of the Consumer Protection Law, 5741-1981, which establishes: “Any act or omission in violation of Chapters … shall be treated like a wrong under the Civil Wrongs Ordinance [New Version]” (and see similar wording in sec. 31B of the Protection of Privacy Law, 5741-1981 – “… shall be a wrong under the Civil Wrongs Ordinance [New Version]”, and sec. 11 of the Commercial Torts Law, 5759-1999 (hereinafter: the Commercial Torts Law) “… is a tortious act, and the Civil Wrongs Ordinance [New Version] shall apply …”). It might be argued that the fact that the same language was not adopted in sec. 2(a) of the Law shows that the Law applies the Civil Wrongs Ordinance to the tortfeasor-defendant rather than the plaintiff, such that a person might join a fight that is not his own.

            My colleague Justice Melcer addressed this problem in his opinion, and concluded that we should not parse the language, and I concur with that conclusion, which is based upon the legislative intent and the Law’s Explanatory Notes that state that the Law is intended to allow a suit by one who is harmed as a result of a boycott.

            In any case, even according to that construction granting a cause of action only to one actually harmed by the call for a boycott, we are concerned with a tort that expands the potential plaintiff pool.

27.       Causal connection: One of the inherent problems of pure economic loss is that of the causal connection between the tortious conduct of the tortfeasor and the infliction of the pure economic loss. Policy considerations justify caution in awarding damages for pure economic loss, and one of the proposed solutions in this regard is not to suffice with the normal burden of proof required under tort law (Porat, p. 230, fn. 443).

            My colleague Justice Melcer concluded that the near-certainty test could be applied, and in his opinion, the plaintiff would also be subject to an additional burden above and beyond the regular burden of proof. However, based upon the language of the tort, it would appear that no causal connection at all need be shown between the call for a boycott and the harm resulting from the boycott. Rather, “a reasonable possibility that the call will lead to a boycott” would suffice. According to the plain meaning, the plaintiff need prove, only at the level of probability, the potential of the imposition of a boycott, while the requisite causal connection between the call for a boycott and the imposition of the boycott, as opposed to a causal connection between the call for a boycott and the damage incurred as a result of the boycott (compare to the language of sec. 144D2(a) of the Penal Law, concerning the publication of incitement to violence or terror, which refers to a person publishing a call to commit an act of violence or terror “and because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror …”).

            Here, too, I am willing to concur with my colleague Justice Melcer, and read a requirement of a causal connection to the damage into the tort, as this Court did in regard to the consumer tort of  deception mentioned by my colleague (CFH 5712/01 Barazani v. Bezeq Israeli Telecommunications Company Ltd., IsrSC 57 (6)  385 (2003) (hereinafter: the Barazani case). If the legislature, cognizant of the Barazani rule, was of the view that there is no need of proving a causal connection to the damage, we would expect that it would have been stated expressly (compare sec. 1144B(b) of the Penal Law, concerning publication of incitement to racism, which states that “it does not matter whether or not the publication did cause racism...”). Having recognized the need for proof of damage, as will be explained in the next paragraph, the question of the probability that the damage will result would appear to become irrelevant, as it has already been realized. But that is not the case. The purpose of the tort is deterrence. It is a tort intended to direct an individual’s conduct in real time – at the time of the publication of the call for a boycott, when the content of the call is examined in terms of the probability that it will lead to the imposition of a boycott (that will later result in damage). And note: the legislature chose the reasonable possibility test, rather than a real possibility or near certainty test. Bearing in mind that we are concerned with a type of political expression, this low threshold has a chilling effect, and I will not deny that on that basis I seriously considered following the approach of my colleague Justice Hendel, who was of the opinion that the tort should be annulled in its entirety. However, in light of the special nature of a call for a boycott in the arsenal of means and forms of expression, which we addressed above, and in view of the moderating construction proposed above, I have concluded that the tort passes the third test of proportionality, if just barely (the legislature refrained from including a criminal sanction in the law, which would have raised the question of the appropriate test with full force).

            Clearly, it is not easy to prove a causal connection in regard to a tort of pure economic loss with a large plaintiff pool. Thus, there may be many reasons for a particular reduction in the sales of a factory operating in area threatened with a boycott, and in order to estimate the loss, the element of the call for a boycott must be isolated from among all the reasons. As opposed to this, a plaintiff might argue that when there is an “ambiguous reason”, in terms of the number of possible reasons for the harm, the plaintiff’s evidentiary burden is to prove the relative weight of the boycott among the total number of possibilities (the chances for the success of such an argument are not high, inasmuch as ambiguous causality is currently recognized in the framework of only three doctrines – loss of chance, inherent evidential damage, and recurring distortion – Guy Shani, “Loss of Chance, Evidential Damage and Recurring Distortion: Points of Concurrence and Sites of Conflict among the Models for Resolving the Ambiguous Causation Problem,” in A. Grunis, E. Rivlin & M. Karayanni (eds.), Shlomo Levin Book: Essays in Honour of Justice Shlomo Levin 395 (2013) (Hebrew)).

28.       Damage: The question of the causal connection is related to the requirement of damage. It might be argued that applying the Civil Wrongs Ordinance to the tort does not necessarily imply that the requirement of proving damage be read into the tort. There are torts in the Civil Wrongs Ordinance, like assault and false imprisonment (secs. 23 and 26 of the Ordinance), in which damage does not constitute an element of the tort. When the legislature wished to establish damage as an element of a tort, it did so expressly. For example, the tort of negligence (sec. 35 of the Ordinance) states: “Any person who causes damage to any person by his negligence commits a civil wrong”. In the torts of trespass to immovable property and trespass to movable property (secs. 29 and 31 of the Ordinance), the legislature took care to state: “Provided that no plaintiff will recover compensation in respect of trespass to immovable/immovable property unless he has suffered pecuniary damage thereby”.

            In this matter, as well, I am willing to accept the conclusion of my colleague Justice Melcer that the legislature did not waive the requirement of damage, by analogy to the consumer tort under the Barazani rule. I would also draw an analogy to the provisions of the Commercial Torts Law, in which the legislature details a list of specific torts (passing off, false description, unfair interference) by reference to the Civil Wrongs Ordinance, and regarding which it is self-evident that damage is an element of the torts. To this we may add the position of the Plaintiffs and the Explanatory Notes of the Law according to which the Law was intended to compensate the objects of the boycott for damage. In light of all the above, I am of the opinion that the tort of calling for a boycott can easily be construed to comprise an element of damage.

            My colleague also bases his conclusion in regard to the damage requirement upon the fact that sec. 2(c) of the Law does not require damage where the tort is perpetrated with malice. From this he infers that damage is required under subsec. (a). In theory, punitive damage can be awarded even in the absence of damage, where the legislature seeks to punish and compensate for malicious conduct. However, normally, punitive damages are awarded for torts that involve damage, and the punitive award goes beyond the damage. Subsection 2(c) of the Law permits the court to impose punitive damages that are not contingent upon damage, but that does not necessarily imply that the legislature waived the demand for damage. On the contrary, one of the considerations in awarding punitive damages – alongside the tortfeasor’s malicious conduct – is the damage caused by that tortious conduct, which I will address presently (and see: Israel Gilead, “Comments on the Tort Provisions in the Proposed New Civil Code,” 36 Mishpatim 761, 811 (2007) (Hebrew) (hereinafter: Gilead, “Comments on Tort Provisions”), in which the author distinguishes between compensation for damages the extent of which is unknown, and “situations of compensation that is not for damage, such as punitive damages”. From this one might conclude that the author is of the opinion that punitive damages are awarded even in the absence of any damage. However, that would not appear to be the author’s view, and see: Gilead, Limits of Liability, vol. I, 221, where the author notes as self-evident that, as a rule, “punitive damages” are awarded in situations of intentional causing of damage).

29.       The mental element – the difference between ss. 2(a) and ss. 2(c): In subsection (a), the legislature refers to one who “knowingly” publishes a call for a boycott, where the publisher is “aware” of the reasonable possibility that the call will lead to a boycott, whereas subsection (2) refers to committing the tort with “malice”.

            How are we to understand the term “knowingly”? In this regard, I am hesitant to draw an analogy form criminal law to tort law. The term “knowingly” alludes to a subjective, intellectual knowledge, while the term “malice” alludes to an emotional attitude towards the result. While that may be so in theory, in practice it is difficult to avoid associating an element of intent to the term “knowingly”. For example, the tort of assault, under sec. 23 of the Civil Wrongs Ordinance, which is one of strict liability, is defined as follows: “Assault consists of intentionally applying force of any kind … to the person of another”. The drafters of the new Israeli Civil Code chose to replace the term “intentionally” in the tort of assault with the term “knowingly”, as can be seen from Part IV, Chap. I, sec. 388 of the Civil Law Bill, 5771-2011 (hereinafter: the Civil Code):

Assault it the knowing use of direct or indirect force against the person without his consent, or a real threat to use such force.

            In the tort of unlawfully causing breach of contract, under sec. 62(a) of the Civil Wrongs Ordinance, the legislature employs the same term – “Any person who knowingly and without sufficient justification causes any other person to break a legally binding contract with a third person” – where the term “knowingly” is understood, in practice, to mean intent (Nili Cohen, Inducing Breach of Contract (1986) (Hebrew). The author is of the opinion that the mental element required under the tort is no less than required under English law, which also initially speaks of malice, and then of intention or causation accompanied by intention and knowledge). Similarly, sec 7A(a) of the Civil Wrongs Ordinance grants immunity from tortious liability to a public servant, except for “action knowingly committed with the intent to cause damage or carelessness of the possibility of causing said damage”. In other words, the legislature reserved the term “knowingly” to the mental element of intention to cause damage, as opposed to indifference/carelessness/willful disregard/recklessness to the realization of the result.

            If we interpret the term “knowingly” in subsection (a) as intention to cause damage, then the question of the difference between “knowingly” in subsection (a) and “malice” in subsection (c) automatically arises. I would note that the element of malice is mentioned in regard to two torts in the Civil Wrongs Ordinance – that of “injurious falsehood” under sec. 58, concerning “the publication maliciously by any person of a false statement”, and the tort of “malicious prosecution” under sec. 60, concerning “actually and maliciously … instituting or pursuing” frivolous proceedings. The tort of malicious prosecution was left out of the Civil Code (along with the tort of fraud requiring an element of intent), and the tort of injurious falsehood has, in any case, become irrelevant and has been replaced by the tort of “false description” under sec. 2 of the Commercial Torts Law, which does not require malice (Gilead, Limits of Liability, vol. II, p 1168, fn. 53).

            The term “malice” is ambiguous. It is not clear whether it refers to intentional causing of damage arising from an improper motive, or to any intentional causing of damage, whether even carelessness would be deemed malice (Gilead, “Comments on Tort Provisions” 810), or whether only damage deriving from an intention to harm another is “malice”, as opposed to “intent” to cause damage that is not motivated by a desire to inflict harm upon another (ibid., 1160-1661). The term “malice” indeed suggests a higher level of moral culpability, a desire to inflict harm upon another, and I am, therefore, willing to assume that the legislature sought to distinguish between “malice” and “knowing”, with the latter indicating a lesser mental element. But it is hard to imagine a call for a boycott being carried out negligently, recklessly or carelessly, and not intentionally. In the normal course of events, a person who calls for a boycott does so with direct intention, such that it is unclear what difference there might be between doing so “knowingly” or “with malice”. There is, therefore, a fear that every call for a boycott may automatically fall within the compass of subsec. (3), which allows for punitive damages. The exception would thus become the rule, along with an attendant “excess” chilling effect, which I will address below. For this reason, as well, I concur with my colleague Justice Melcer that subsec. (3) should be annulled. In other words, in order to fall within the scope of the tort of calling for a boycott against Israel, the call must reflect an “intention”, “desire” or “purpose” of achieving a result. This interpretation is consistent with the deterrent purpose of the tort, deterrence being one of the recognized purposes of tort law.

30.       A specific tort and a framework tort: The specific torts enumerated in the Civil Wrongs Ordinance or elsewhere do not detract from the scope of incidence of the tort of negligence, by which liability can be imposed even in situations addressed by a specific tort requiring a mental element or actus reus. A prime example is the “circumvention” of the malice requirement in the tort of malicious prosecution (CA 243/83 Jerusalem Municipality v. Gordon, IsrSC 39 (1) 113 (1985)). Above, we arrived at the conclusion that the tort under subsec. (a) should be understood as requiring a mental element of intent or desire to achieve a result, like the requirement of “malice” in subsec. (c) of the Law. Can this mental element be circumvented by means of the tort of negligence? And what consequences might flow from the possibility of employing the new tort as a basis for the framework tort of breach of statutory duty? These are questions lacking clear answers at this stage.

31.       Defenses: Will the defenses provide by the Civil Wrongs Ordinance apply? For example, would the defense of contributory fault, under sec. 68 of the Civil Wrongs Ordinance, or the defense of “conduct of plaintiff”, under sec. 65 of the Civil Wrongs Ordinance, apply?

65. Where a defendant has caused damage by his fault, but his fault was brought about by the conduct of the plaintiff, the court may exempt him from liability to pay compensation or may reduce the amount of compensation payable, as the Court may think just.

            I fear that raising such claims by a defendant in an action for the boycott tort might drag the courts, against their will, into the political arena – a fear addressed at length by my colleague Justice Hendel. As opposed to this, just as the legislature barred the justification defense in subsec. 2(b) in regard to sec. 62(a) of the Civil Wrongs Ordinance, it would also be possible to deny the above defenses by analogy. Thus, for example, a defendant’s claim of contributory fault against the plaintiff, by reason of his erecting his factory in the Area, or for prominently printing on the label that his product was “made in Israel”, or such like, would be denied.

32.       Remedies: The Civil Wrongs Ordinance grants both damages and injunctive relief (sec. 72 of the Ordinance). Consequently, it would be possible, under sec. 2 of the Law, to request preliminary relief in the form of an injunction preventing a person to call for a boycott, which would be deemed “prior restraint” and an ever more serious infringement of freedom of expression. My colleague Justice Melcer addressed this in his opinion, and I am willing to concur with his conclusion that the Court will refrain from granting preliminary injunctive relief in light of the case law regarding prior restraint of expression. I would note that in the more than twenty years that have passed since the adoption of Basic Law: Human Dignity and Liberty, the case law has not deviated from the rule established in CA 214/89 Avneri v. Shapira, IsrSC 43 (3) 840 (1989) (and see LCA 10771/04 Reshet Communications and Productions (1992) Ltd. v. Professor Ettinger, IsrSC 59 (3) 308, 319 (2004) (between marginal letters E-F) per Beinisch J.).

33.       Joint tortfeasors: In order for a call for a boycott to be effective, it must be published, and  thus in subsec. (a): “Anyone who knowingly publishes a public call for a boycott against the State of Israel …”. Might the application of the Civil Wrongs Ordinance also lead to imputing liability as joint tortfeasors to broadcast media that publish the call? In my opinion, it would not. Had the legislature so desired, it should have said so explicitly, as it did in sec. 11 of the Defamation (Prohibition) Law, 5725-1965 [19 L.S.I. 254; amended 21 L.S.I. 132, 38 L.S.I. 176] (hereinafter: the Defamation Law), which imposes liability upon “… the editor of the communication medium and the person who actually decided upon the publication of the matter, and civil liability shall be borne also by the person responsible for the communication medium”.

34.       Private Enforcement: Section 4 of the Defamation Law establishes:

                        Defamation of a Group

                        4.         Defamation of a body of persons, or any group, other than a body corporate, shall be treated in like manner as the defamation of a body corporate, provided that it shall not be a ground for a civil action or private complaint. An information for an offence under this section shall only be filed by, or with the consent of, the Attorney General.

In the Defamation Law, the legislature chose to deny an individual’s right to bring civil action, preferring to grant the state power to bring criminal action. I was disturbed by this central point raised by my colleague Justice Hendel. The tort of calling for a boycott represents a kind of “privatization” of tort law by providing that individuals initiate actions that would seem to be within the state’s province, as is attested by the Law’s title: “Prevention of Harm to the State of Israel by means of Boycott Law”. This, as opposed to the approach adopted under sec. 4 of the Defamation Law.

            However, several distinctions can be drawn between the tort of defamation of a public and that of a call for a boycott, which I will briefly address: Section 4 of the Defamation Law raises a question of interpretation in regard to the terms “public” and “body of persons”, and in regard to the identification of the injured group and the injured members of that group. Recognizing an individual right to sue in regard to statements made about a group would result in a broad “chilling effect” upon freedom of expression, bearing in mind that, in most cases, such statements about a “public” or “group” consist of criticism or the expression of an opinion concerning social phenomena or matters of public interest. In the case of a false statement about a public, the harm is “diluted” and dispersed among all the members of the group, such that the power of the false statement is mitigated by the size of the group. And most importantly, when we are concerned with a false statement about a group, it is not the individual who should bear the burden of defending the public, and therefore, “privatization” of the right to sue by granting it to individuals would be inappropriate (see the matter concerning the film “Jenin-Jenin” in CA 8345/08 Ofer Ben-Natan v. Muhammad Bakri [published in Nevo] (July 27, 2011)).

            That is not the case in regard to a call for a boycott against Israel, which may be either a general call or a specific call for the boycott of particular enterprises, institutions or products that are connected with Israel. The harm is not inflicted solely upon the state, but rather, as we have already noted, the direct harm is incurred by the individual, the business whose sales are affected, the academic who is denied a research grant, or the ballet company whose performance is cancelled as the result of a call for a boycott. We might make an analogy to the tort of “unfair interference” under sec. 3 of the Commercial Torts Law, under which: “A business shall not unfairly prevent or burden the access of customers, employees or agents to the business, goods or services of another business”. One form of unfair interference is the imposition of a boycott by one business against another (Amit, “Prohibition of Unfair Competition,” p. 231). From this perspective, calling for an economic boycott against a particular enterprise is equivalent to unfairly preventing or burdening access to the business, and inasmuch as it is the business that is harmed by the call, it should be permitted the right to sue. This can justify the distinction between sec. 4 of the Defamation Law and sec. 2 of the Boycott Law that allows a person or private body to bring suit in tort for a call to boycott.

35.       Interim summary: From the perspective of tort law, the specific tort of calling for a boycott raises a number of issues as a result of the ambiguous language adopted by the legislature in defining the tort. But ambiguity and questions of interpretation do not justify annulling a law on constitutional grounds. This was addressed by my colleague Justice Melcer, who chose not to await the coming of Elijah the Prophet to provide the answers to unresolved questions, but rather suggested interpretive solutions for some of the problems raised above, while adopting a reserved approach to the elements of the tort.

            For the above reasons, I have decided not to join Justice Hendel’s dissent that would annul the entire tort of calling for a boycott. Rather, I concur with the view of my colleague Justice Melcer that sec. 2(c) of the Law be annulled, as I shall explain below.

Section 2(c) of the Law – Exemplary Damages

36.       Section 2(c) of the Law permits the court to impose “damages that are independent of the actual damage caused (in this section – exemplary damages)” upon a person maliciously calling for a boycott against Israel. The intention is to punitive damages, and three distinctions should be drawn in this regard: regular damages (monetary and non-monetary), damages without proof of damage, and exemplary (punitive) damages.

            Two principle reasons may be adduced to justify the imposing of damages without proof of damage: the absence of the possibility of proving the precise extent of the damage caused by the tort, and the desire to deter potential tortfeasors (CA 3559/02 Toto Zahav Subscribers Club v. Sports Betting Board, IsrSC 59 (1) 873, 903 (2005) (hereinafter: the Toto Zahav case)). The Israeli legislature allows the imposing of damages without proof of damage when the damage is inherent to the tort or the injurious act, and there is a high probability of concurrence of both of the above conditions, as for example: sec. 7A of the Defamation (Prohibition) Law, 5725-1965; sec. 10 (a) of the Employment (Equal Opportunities) Law, 5748-1988; sec. 6 (b) of the Prevention of Sexual Harassment Law, 5758-1998; sec. 13 (a) of the Commercial Torts Law, 5759-1999; and sec. 56 (a) of the Copyright Law, 5768-2007. Both of the conditions are met in regard to the tort of “calling for a boycott”.  Due to the difficulty in proving the causal connection between the call for a boycott and the resultant damage incurred by the boycotted party, and due to the difficulty in precisely quantifying the damage, it can be argued that not permitting the court to impose damages without proof of damage arising from the tort, would lessen the Law’s deterrent value and prevent the Law from achieving its purpose.

            However, the legislature did not establish “damages without proving damage” in the Law, but rather employed the term “exemplary damages”, with the intent of punitive damages. That is precisely the term currently employed in sec. 461 of the Civil Code Bill, titled “Exemplary Damages”, which states that “the court may award the victim damages that are not contingent upon damage, if it find that the violation was perpetrated with malice” (for laws establishing exemplary damages, see: sec. 33K (b) (1) of the Collective Agreements Law, 5741-1981; sec. 26A (b) (1) of the Wage Protection Law, 5718-1958; sec. 31A of the Consumer Protection Law, 5741-1981; sec. 30A (j) (1) of the Telecommunications (Bezeq and Broadcasts) Law, 5742-1982; sec. 3 (a) (1) of the Protection of Employees (Exposure of Offences, of Unethical Conduct and of Improper Administration) Law, 5757-1997; sec. 5 (b) (2) of the Notice to Employee (Terms of Employment, Vetting Procedures and Hiring Process) Law, 5762-2002; sec. 4 (b) (1) of the Right to Work while Seated Law, 5767-2007; sec. 11 (a) of the Aviation Services (Compensation and Assistance for Flight Cancellation or Change of Conditions) Law, 5772-2012). (I would note that all of these laws establish a ceiling for damages). Punitive damages, as a type of retribution from the tortfeasor, is not among the primary purposes of tort law (Gilead, Limits of Liability, vol. I, 224), and it constitutes an exception to the principle of restitutio ad integrum underlying tort law. Punitive damages are intended to achieve two objectives: punishment and deterrence (CA 140/00 Estate of Ettinger v. The Company for the Reconstruction and Development of the Jewish Quarter in the Old City of Jerusalem Ltd., IsrSC 58 (4) 486, 564 (2004) per Rivlin J. [http://versa.cardozo.yu.edu/opinions/ettinger-estate-v-jewish-quarter-co... (hereinafter: the Ettinger case). Punitive damages are not common in our legal system, and are viewed as “exceptionally exceptional” to the usual remedial damages in cases that are particularly egregious (see, for example: CA 2570/07 Lam v. Hadassah Medical Organization [published in Nevo], para. 5 and the citations there (Jan. 29, 2009); LCA 9670/07 Plonit v. Ploni [published in Nevo], paras. 24 and 26 per Rubinstein J, and the opinion of Danziger J (July 6, 2009)). Punitive damages are intended to express society’s condemnation and extreme revulsion in regard to the tort, and not without reason it concerns violent crimes or heinous sexual offenses (CA 4576/08 Ben-Zvi v. Hiss [published in Nevo], para. 45, per Rivlin J. (July 7, 2011)).

            The punitive aspect of the damages requires that some moral blame attach to the tortfeasor’s conduct, which is expressed in a mental element of malice that reflects contempt for the victim’s right. There are those who are of the opinion that punitive damages are justified in only three primary situations: when the tort is committed with intent/malice; when the damage is the result of conduct that has no redeeming social value; and when the tort causes catastrophic damage and the tort is shameful in terms of its result (Orr Karsin, “The Doctrine of Punitive Damages in Israeli Law – A Re-examination,” 29 Mehkerey Mishpat 571, 582-583, 640-644 (hereinafter: Karsin); and on exemplary damages, see, e.g: Amos Herman, Introduction to Tort Law 413 (2006). On calls for exemplary damages as a means for restoring mutual respect to individuals in society, see: Avihay Dorfman, “What is the Point of the Tort Remedy?” 55 Am. J. Juris. 105, 140 (2010)).

            Exemplary damages are an accepted, recognized tool of tort law in the common-law world (see: A. Burrows, “Damages,” in Michael A Jones (ed.), Clerk & Lindsell on Torts, 1965 (20th ed., 2010); W.V.H Rogers, Winfield & Jolowicz on Tort, 948 (12th ed., 2006). For the recommendation of the English Law Commission to expand the use of exemplary damages, see: Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com. ([247] (1997)). For a similar recommendation for the expansion of the circumstances that would justify imposing punitive damages in Israeli law, see Karsin, above).

37.       We have already noted that, in practice, under the current wording of the Law, every call for a boycott against Israel, as defined by the Law, would fall within the scope of sec. 2(c), and would expose the defendant to the possibility of punitive damages, with all the special characteristics of such damages. At the bottom line, the punitive character of sec 2(c) places the defendant in a worse situation than would a criminal sanction, first, due to the lower evidentiary burden in civil cases, second, because civil law does not afford a defendant the defenses available in criminal law, and third, because a criminal procedure is instituted by the state, while a civil tort action can be initiated by anyone.

If that were not enough to explain why sec. 2(c) should be annulled, I would add that the absence of a cap on exemplary damages (as opposed to the situation in the other laws cited above that place a limit on exemplary damages), further intensifies the “chilling effect”, which I will address below.

The Chilling Effect

38.       At times, the legislature adopts legal arrangements that infringe an individual’s freedom of expression, but with a proper purpose, as in the case of prohibiting the publication of defamatory material (see: the Sullivan case), or a  law prohibiting publications that may incite to violence (see: Winters v. New York 333 U.S. 507 (1948); and see Tribe, p. 863). These arrangements infringe an individual’s freedom of expression, but the infringement does not present a constitutional problem as long as it is proportionate. However, an arrangement intended to restrict certain forms of expression may have a deterrent effect that extends beyond the scope of the conduct targeted by the sanction, and deter other forms of expression that are beyond the legislature’s original intent. For example, a law that imposes a civil or criminal sanction for publishing defamatory statements may deter people from expressing their opinions in fear of the publication being deemed defamation.

            The chilling-effect doctrine was developed in the United States in the context of the restriction of constitutional rights (such as freedom of assembly, Law Students Research Council v. Wadmond, 401 U.S. 154 (1971); freedom of movement, Thompson v. Shapiro, 270 F. Supp. 331, 336 (D. Conn. 1967); due process, Bankers Life & Casualty Co. v. Crenshaw 486 U.S. 71 (1988), Colautti v. Franklin, 439 U.S. 379 (1979), Berger v. New York, 388 U.S. 41 (1967); privacy, Lankford v. Gelston 364 F.2d 197 (4th Cir. 1966)), and especially in the context of the First Amendment right to freedom of speech. “A chilling effect occurs when individuals seeking to engage in activity protected by the first amendment are deterred from doing so by governmental regulation not specifically directed at that protected activity” (Fredrick Schauer, “Fear, Risk, and the First Amendment: Unraveling the Chilling Effect,” 58 B.U.L. Rev. 685, 693 (1978) (hereinafter: Schauer). As noted, the chilling-effect doctrine concerns unintentional deterrence, that is, a deterrent effect that exceeds the scope of expression intended by the legislature, and thus allows for the striking down of the entire arrangement due to the unintended deterrence (“the chilling effect”).

            In an ideal world, the question of the chilling effect would not arise. The legislature would adopt an arrangement that would limit certain forms of expression in a proportionate manner, and anyone who would deviate from that arrangement established by law would expose himself to a civil or criminal sanction. But in practice, it is not possible to ascertain in advance what forms of expression will be caught up in the net of the arrangement established by the law, and which will fall outside the scope of that arrangement. An arrangement may be drafted in a vague manner, such that an individual seeking to adapt his conduct will not be able to know with certainty whether some expression falls within the ambit of the arrangement. Or an arrangement may be entirely clear but overbroad, such that it also applies to forms of expression that the legislature did not intend, and whose infringement deviates from the scope of proportionality (see: Schauer, p. 698; Tribe, p. 1030). One of the early cases in the development of the chilling-effect doctrine, Walker v. City of Birmingham, 388 U.S. 307, 342 (1967) concerned an order prohibiting parades and demonstrations supporting the rights of blacks in the city of Birmingham, Alabama. Justice Brennan noted:

We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the “chilling effect” upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.

There is almost no legal arrangement that is unaffected by a chilling-effect halo, inasmuch as reality is almost never absolutely clear (Schauer, p. 700), and uncertainty is inherent to the interpretation of the legal arrangement. Therefore, in order to strike down an arrangement by reason of its inherent chilling effect, that effect must be substantial, and not some negligible chilling (see: Tribe, p. 1024). “Overbreadth […] must not only be real, but substantial as well, judged in relation to the statutes' plainly legitimate sweep” (Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).

39.       In the matter before us, sec. 2(c) indeed “chills” freedom of expression by means of over-deterrence and punishment of a call for “a boycott against the State of Israel” as defined by the Law. We have addressed the vagueness of the wording of the tort, and inter alia, the mental element of intent that it requires, as well as the possibility that every call for a boycott might be ensnared in the net of sec. 2(c). The ambiguity in regard to the scope of the tort, in and of itself, raises a fear of an “excess” chilling effect upon freedom of expression. This fear is particularly forceful in regard to subsec. (c), which permits the awarding of exemplary damages without any criteria and without any cap. The combined effect of the ambiguity of the tort and a sanction that is unrestricted in any direction doubles and triples the halo of the Law’s attendant chilling effect in the form of over-deterrence. Inasmuch as we are concerned with tort law, and inasmuch as the primary purpose grounding the tort is deterrence, we would recall that maximal knowledge is a precondition to effective deterrence. A tortfeasor who despises risks that present unquantifiable “price” cannot carry out a loss-benefit calculation in choosing his conduct and words, such that he is subject to absolute deterrence, or over-deterrence at the very least, and such deterrence presents a particularly strong “chilling effect” (see: John C. Coffee, Jr., “Paradigms Lost: The Blurring of the Criminal and Civil Law Models and What Can Be Done About It,” 101 Yale L.J. 1875, 1882 (1992)).

            This, too, must be taken into account in subjecting the section to the crucible of the second subtest of proportionality. Fixing defined damages in the absence of proof of damage as opposed to exemplary damages, or capped exemplary damages, as established in other laws, might have served to blunt somewhat the extent of the infringement. But as currently drafted, the marginal benefit of the arrangement established under sec. 2(c) of the Law is smaller than the infringement of freedom of expression, in view of the uncertainty and ambiguity of the boycott tort together with the severe chilling effect that derives from the uncertainty in regard to the scope of exemplary damages.

40.       Interim Summary:  Considering that the mental element of intent is inherent to a call for boycott, such that there is a fear that every call for a boycott would fall within the ambit of sec. 2(c) of the Law and place the defendant at risk of punitive damages; considering that punitive damages is a stepchild of the normal purposes of tort law, and to date, has only been awarded in exceptional, outrageous cases that engender contempt and revulsion; considering that a call for boycott falls within the scope of freedom of expression, and realizes some of the rationales of freedom of expression, such that it cannot be said that a call for boycott is of no social benefit; considering the centrality of freedom of expression; and considering that uncapped punitive damages may lead to absolute deterrence, and at the very least, to a broad chilling effect in the sense of over-deterrence – considering all of the above, sec. 2(c) does not pass the third subtest of proportionality. At the bottom line, I therefore concur with the opinion of my colleague Justice Melcer that the harm caused by sec. 2(c) of the Law to freedom of expression exceeds what is required.

Sections 3 and 4 of the Law – Restricting Participation in Public Tenders, Tax Benefits and Subsidies

41.       My colleagues are unanimous in the view that secs. 3 and 4 meet the criteria of the Limitation Clause, and I concur.

            At first glance, one might be struck by the shamelessness, and even hypocrisy of a person who calls for a boycott of the state – and thus harms the state economy and the livelihood and employment of others – knocking at the state’s door asking to enjoy state benefits and subsidies. There is even something of the absurd in the Petitioners’ suggestion that the state treasury bear the costs of the harm inflicted by the boycott upon private entities, that is, that the state should directly subsidize the call for boycotting it. In general, harm to the state economy, and harm to the property of a citizen or resident of the state, as such, is viewed as a serious matter, such that it should come as no surprise that sec. 13 of the Penal Law, 5737-1977 establishes extraterritorial jurisdiction in regard to such offences:

                        Offenses against the State or against the Jewish people

13. (a) Israel penal laws shall apply to foreign offenses against –

(4) State property, its economy and its transportation and communication links with other countries;

                        (b) Israel penal laws shall also apply to foreign offenses against –

(1) the life, body, health, freedom or property of an Israel citizen, an Israel resident or a public servant, in his capacity as such;

            (Hanan Melcer, “The I.D.F. as the Army of a Jewish and Democratic State,” in Law and the Man, Festschrift for Amnon Rubinstein, 347, 354 (2012)).

42.       As my colleague Justice Melcer noted, a person does not have a vested right to receive a benefit or subsidy from the state, and when the state grants a subsidy or benefit, it must examine whether the receiving entity serves the public with the monies it receives. Thus, when the state grants an entity a tax advantage by defining it as a “public institution” for the purposes of sec. 46 of the Income Tax Ordinance, it recognizes that entity as one fulfilling an important public function that is worthy of public funding. It is difficult to imagine that the public would participate in funding an entity that calls for harming the public, and as noted, a call to boycott a person solely due to his connection to the State of Israel constitutes a serious violation of that person’s rights, and even a violation of our democratic system. “Recognition of a body as a ‘public institution’ reduces the state’s revenues from taxes, and is equivalent to increasing the state’s expenses by means of distributing funds. Recognition of a ‘public institution’, and thus recognition of a ‘public purpose’ as well, must be carried out in a reasonable, relevant manner, while strictly maintaining equality” (HCJ 637/89 A Constitution for the State of Israel v. Minister of Finance, IsrSC 46 (I) 191, 200 (1992); and also see: HCJ 10893/08 Vipassana Association v. Minister of Finance, [published in Nevo], para 29 (Aug. 23, 2012)). My colleague Justice Danziger is of the opinion that the state is not permitted to discriminate among entities on the basis of their political statements. I, of course, agree. But the Law does not claim to deny a benefit or subsidy by reason of political expression, and not even for political boycott, but rather for a public call for boycott – a call intended to motivate others to harm others on the basis of their connection to the state. Thus, a particular theater may decide that it is unwilling to stage its productions in one of the auditoriums in one of the settlements in the Area without fear that sec. 4 of the Law might apply to it.

            A part of that “reasonableness and relevance”, the state may, and indeed must, distinguish between entities that contribute to the public and entities that seek to harm the public or a particular group that is part of that public. For example, in 1970, the American Internal Revenue Service (IRS) decided not to grant tax exemptions to educational institutions that maintained a discriminatory policy toward black students. As a result of that decision, the definition of “charitable organization” was changed in the tax regulations, such that it applied to non-discriminatory educational institutions. Bob Jones University, a religious university that, for religious reasons, maintained a policy that discriminated against blacks, lost certain tax exemptions, and petitioned on the basis of the claim that the IRS lacked the authority to amend the definition of a “charitable institution” as it had, and that the amendment had violated the institution’s right to freedom of religion. In Bob Jones University v. United States, 461 U.S. 574, 591 (1983), Chief Justice Burger held: “The institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred”. That is all the more the case when the reason for harming that group is the connection of the group’s members to the state itself.

43.       Nevertheless, I do not believe that the time is ripe to decide that the provisions of secs. 3 and 4 of the Law are necessarily constitutional (and obviously they do not render the responsible minister “immune” from judicial review in exercising his authority under these provisions). In my view, this would require that we examine the application of the Law’s provisions and the minister’s exercise of authority in regard to a concrete set of circumstances, when the appropriate case arises. This brings me back to the ripeness doctrine to which I referred at the outset of my examination of sec. 2 of the Law (para. 24, above), and connects me to the end of the opinion of Justice Melcer. Inasmuch as the matter has already been addressed by him, I will be brief.

44.       Sections 3 and 4 of the Law grant the Minister of Finance powers, while establishing a mechanism for their exercise. Thus, sec. 3 provides that the decision of the Minister of Finance in regard to restricting participation in a tender must be made “with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee”, while sec. 4(a) of the Law provides that a decision by the Minister of Finance to deny benefits must be made “in consultation with the Minister of Justice”, and in some of the cases, also requires the consent of the responsible minister (the Minister of Culture and Sport (sec. 4(a)(2)); the minister appointed by the Government as responsible for relevant budgetary line (sec. 4(a)(3)); and the Minister of Industry, Commerce and Employment (sec. 4(a)(5)).

            We should also bear in mind that sec. 4(b) of the Law, which provides that the exercise of the Minister of Finance’s authority under sec. 4(a) must be “in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee” (and I am not unaware of the provision at the end of sec. 4(b) that not promulgating such regulations will not detract from the authority granted under sec. 4(a) of the Law).

45.       Thus we find that while the powers established under secs. 3 and 4 are granted to the Minister of Finance, before he may exercise those powers he must obtain the consent of the relevant organs and confer with them, and it would also be appropriate that he do so after promulgating regulations. In any case, even if the provisions of secs. 3 and 4 of the Law remain in force, that would not necessarily mean that the powers granted under those provisions will be exercised in the near future, and it is conceivable that they may never be exercised.

            This point recently formed the basis for this Court’s decision in HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (Jan. 5, 2012) (published in Nevo) [English:  http://versa.cardozo.yu.edu/opinions/alumni-association-arab-orthodox-school-haifa-v-minister-finance] (hereinafter: the Alumni Association case), in which the ripeness doctrine was expressly invoked. There would appear to be certain similarities between the circumstances of that case and the matter at bar. Both raised the problem of the tension between freedom of (political) expression and economic sanctions that might infringe it in all its force, and the issue of ripeness arose in both.

46.       As may be recalled, the Alumni Association case focused upon a provision of the Foundations of the Budget (Amendment no. 40) Law, 5771-2011. That provision granted the Minister of Finance the power to decrease the budget allotted by the state to a budgeted or supported body in a number of situations, such as when that body expended monies in regard to marking the day of the establishment of the state as a day or mourning. Similar to secs. 3 and 4 of the Boycott Law, the relevant provisions of the Foundations of the Budget Law comprised a mechanism for exercising the authority granted therein (a mechanism that included obtaining the consent of the responsible minister, holding a hearing for the relevant body, obtaining an opinion from the legal adviser of the Ministry of Finance, and obtaining a recommendation from a professional team in regard to the scope of the relevant expenditure and the consequences of the budget decrease).

            Ultimately, this Court denied the petition on the grounds that the case was not yet ripe for decision, or in the words of Justice Naor:

Thus, the Law requires that a long road must be travelled before the sanction created by the Law can be imposed. I will not take any position at this stage regarding the mechanism established in the Law or regarding the Law’s constitutionality. However, at this stage, before the Law has been implemented and when the mechanism established therein has also not yet entered into operation, I do not believe that there is any reason to engage in speculations and estimations regarding the manner in which the power granted in the Law will be exercised. As I noted in Lobel, a well-informed judicial determination must be tightly connected to concrete facts that are presented in the case before the court, even if a constitutional question has arisen. (See: Lobel, at para. 6. See also HCJ 3248/09 Sari v. Minister of Justice, at para. 3; HCJ 6972/07 Lakser v. Minister of Finance, at para. 26). In this case, there have not yet been any incidents in which a question has arisen regarding the application of the Law, its interpretation or its consequences [the Alumni Association case, para. 29].

            In my opinion, applying the ripeness doctrine in the case before us – as it was applied in the Alumni Association case – leads to a similar result in regard to secs. 3 and 4, and deciding the Petitioners’ constitutional arguments requires that we wait for petitions directed against a concrete decision by the Minister of Finance, on an appropriate factual basis. As Justice Naor noted, “it may also be the case that the passage of time will render a deliberation of a petition irrelevant, as the petitioners’ concerns may never be realized … either because the Minister of Finance may fail to exercise the power conferred upon him by the Law, or because the provisions will be exercised in a manner that does no harm to the petitioners; other factors may allay the petitioners’ original concerns as well. However, in the current situation, the operative significance of the Law is not yet clear and it is not yet the right time for us to respond to the substance of the claims” (ibid., para. 32 of her opinion). As stated, this I true for the case before us, as well.

47.       And note: secs. 3 and 4 of the Law differ in this regard from the tort established under sec. 2 of the Law. Whereas the implementation of the provisions established in secs. 3 and 4 are contingent upon the Minister of Finance’s choice to exercise his authority, obtain the consent of the relevant ministers, and confer with them (and to promulgate regulations, as well), sec. 2 of the Law permits any person who deems himself harmed by a call for a boycott to initiate a tort suit, the submission of which is not subject to the rules of administrative law or any review mechanism, but entirely contingent upon the desire of the plaintiff. Hence the severe infringement of freedom of expression posed by sec. 2 of the Law, which, if allowed to stand, has the potential for creating a real chilling effect, and which must, therefore, be struck down (on the two-stage evaluation of the ripeness of a petition, and on the recognition of the need to proceed with its examination where a chilling effect may be created, see HCJ 2311/11 Sabah v. Knesset (published in Nevo), paras. 16-17, per Grunis P. (Sept. 17, 2014); on the doctrine of partial ripeness, which draws a distinction between different arguments directed at different provisions, some of which may be ripe while others not, see ibid., paras. 3-8, per Hendel J, and para. 3, per Naor J.).

            I therefore concur with the opinion of my colleague Justice Melcer that, for the present, the issue of the constitutionality of secs. 3 and 4 of the Law must wait until a specific petition challenges a concrete decision by the Minister of Finance on the basis of concrete facts.

 

“Or an area under its control” – The Opinion of my Colleague Justice Danziger

48.       I began my opinion with the “masked ball” presented to us by the Law, with the above phrase at its center, as part of the definition of “boycott against the State of Israel”, which would appear to have been the primary concern of the Law’s initiators, and was the focus of the Petitioners’ attack on the Law. For the reader’s convenience, here is that definition:

In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

            Those words [“an area under its control”] address an issue that is at the heart of an Israeli political debate, and it is not surprising that the Petitioners’ arrows centered on the claim that the Law intervenes in political speech in such a highly charged issue among the Israeli public. My colleague Justice Danziger proposed a creative interpretation in an attempt to square the circle, in employing – in practice, although not in law – a sort of “blue pencil” for the phrase, such that, according to his approach, only a call for a boycott of Israel per se, only a boycott of an institution or area deriving from their connection to the state, as part of a boycott of the state per se, would fall within the scope of the definition. In support of that view, my colleague presented a call for a boycott of a person due to his connection to a public institution involved in animal experimentation as an example of a call that might fall within the scope of the Law, inasmuch as that institution is connected to the state. But that fear is unwarranted in light of the requirement that the call for a boycott be “solely because of their connection with the State of Israel, one of its institutions or an area under its control”. The word “solely” means that the only reason for the boycott – and it would not be sufficient that it be the dominant reason among others – be the connection to the state. Therefore, if the reason for the boycott derives from environmental harm or animal experimentation, the boycott would not fall within the scope of the definition.

            The construction proposed by my colleague deviates, in my opinion, from the plain meaning. Indeed, the phrase “boycott against the State of Israel” shows that the primary concern of the Law is preventing a boycott of Israel, and the legislature established “anyone who knowingly publishes a public call for a boycott against the State of Israel …”, and defined what would constitute a boycott against the State of Israel by an accepted legislative technique (compare, for example, the definition of “road accident” in the Compensation for Victims of Road Accidents Law, 5735-1975, as “an occurrence in which bodily damage is caused to a person as a result of the use of a motor vehicle”, and thereafter defines what  would constitute use of a motor vehicle). On the main point, my colleague acknowledges that the state may defend itself against boycotts, but bodies, institutions and people stand behind the state. According to my colleague’s approach, a call to boycott a particular bank because it has a branch in the Area, or a call to boycott an Israeli university because of a scientific experiment it conducted in the Area, or because its academic staff did not adequately express solidarity with universities in the Area, would not fall within the scope of the tort. Such a result would eviscerate the tort.

            For this reason, and despite the weighty reasons raised by my colleagues Justice Danziger and Justice Vogelman, at the end of the day I have chosen to prefer the approach of my colleague Justice Melcer, rather than the effective nullification of the loaded words “an area under its control”.

 

Summary and Conclusion

49.       The Law serves a proper purpose, although there is no denying that it causes “collateral damage” in restricting and chilling one of the tools in the democratic arsenal in an area at the core of Israeli political debate.

            At the bottom line, I find that the Law can pass the proportionality filter – even if not easily – inter alia, for the following reasons:

(-)        The Law does not prohibit the expression of an opinion concerning the state or the Area, and does not prohibit participating in a boycott, but only prohibits a public call for a boycott, which is an act in the interstice between expression and conduct.

(-)        While calling for a boycott is one of the tools in democracy’s toolbox, it is a coercive tool, and as such, it does not enjoy the full protection afforded to freedom of expression.

(-)        A call for a boycott does not meet or correspond with most of the reasons grounding freedom of expression.

(-)        A call for a boycott infringes the constitutional rights of the objects of the secondary boycott, and inflicts direct harm upon them.

(-)        The narrow construction given to the civil wrong in sec. 2 of the Law, including the demand for a causal connection and damage, together with the annulment of sec. 2(c) of the Law.

(-)        Lastly, taking a comprehensive overview: The United States has legislation prohibiting or restricting a boycott of Israel. The European courts, including the Court for Human Rights, are willing to recognize that calling for a boycott of Israel constitutes a criminal offense, such that Israel, all the more so, may decide that a call by its own residents and citizens for a boycott against their own state and country of origin is a civil wrong.

 

Justice U. Vogelman:

            I have read the comprehensive opinions of my colleagues, and in my opinion, the appropriate constitutional relief should be a declaration annulling sec. 2(c) of the Law, as well as the erasure of the phrase “or an area under its control” in sec, 1 of the Boycott Law (in the spirit of the proposal of my colleague Justice Y. Danziger). In addition, in my opinion, upholding the Law requires that it be construed as applying solely to such cases in which the only reason for the call for “deliberately refraining from economic, cultural or academic ties with another person or body” is its connection to the State of Israel or one of its institutions. These are the reasons grounding my conclusion.

1.         The Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Law or the Boycott Law) establishes three arrangements that, each in its own way, infringe constitutional rights, primarily the right to freedom of expression. The first – a civil wrong that would apply to “anyone who knowingly publishes a public call for a boycott against the State of Israel” (sec. 2 of the Law); the second – restricting the participation in a public tender “of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott” (sec. 3 of the Law); the third – provisions denying various benefits from the state treasury to “someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott” (sec. 4 of the Law). The question before us is whether these arrangement pass constitutional review. In view of the reasons addressed by my colleague Justice Danziger (para. 49 of his opinion), I, too, am of the view that the Petitions are ripe for decision.

2.         As we know, every expression is protected in the framework of the constitutional right to freedom of expression (see, for example, HCJ 4804/94 Station Film Co. Ltd. v. Film Review Board, IsrSC 50 (5) 661 (1997) [English trans: http://versa.cardozo.yu.edu/opinions/station-film-co-v-film-review-board]; HCJ 316/03 Bakri v. Israel Film Council, IsrSC 58 (1) 249, 270 (2003) [English: http://versa.cardozo.yu.edu/opinions/bakri-v-israel-film-council]; CA 9462/04 Mordov v. Yediot Aharonot Ltd., IsrSC 60 (4) 13, 26 (2005), but we have a deeply entrenched rule that political expression enjoys particularly broad constitutional protection, as such expression enables the very existence of political debate, and is an indispensable condition of democracy (HCJ 869/92 Zvili v. Chairman of the Central Elections Committee, IsrSC 46 (2) 692, 703 (1992); HCJ 6226/01 Indor v. Mayor of Jerusalem, IsrSC 57 (2) 167, 164 (2003); HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attorney General, IsrSC 62 (4) 715, 761 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]. Among the forms of expression that fall within the scope of the Boycott Law are expressions concerning calling for a boycott of the Judea and Samaria area (hereinafter: the Area). Calling for a boycott of the Area is pure political expression. My colleague Justice Y. Danziger addressed at some length the fact that the subject of Israel’s belligerent occupation of the Area has been the subject of political debate among various sectors of the Israeli public for decades. Indeed, the question of the Area’s future and the status of its residents has been defined as “the cardinal question of Israeli public debate”, that has disrupted the system of internal alliances and understandings that existed on issues of state, society and economy, and has led “to the creation of a party system whose primary variable for defining the left-right continuum, and for the creation of political alliances is the moral stand on the question of the future of the administered territories” Menachem Hofnung, Israel - Security Needs vs. the Rule of Law, 282-283, 2^nd ed. (1991) (Hebrew)).

3.         This debate, in and of itself, does not arouse a constitutional problem. The constitutional problem is in the Law (see and compare: HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481, 543 (2005)). The Law infringes freedom of political expression. The Law may silence political expression concerning the Area. The very enactment of the Law places a dilemma before a person seeking to express himself: if he should choose as he wishes, he will be exposed to the sanctions provided by the Law.  If he refrains from expressing his opinions due to the “chilling effect”, the Law will do its job, and expression will be prevented. What is the appropriate scope of protection in this regard? My colleague Justice Melcer is of the opinion that because calls for a boycott of the State of Israel, as defined by the Law, “are not actually interested in political decisions on the basis of free will, but seek to impose views”, “the protection granted to freedom of expression can be somewhat restricted” (paras. 30 and 30(A) of his opinion, emphasis original, and see para 6 of the opinion of my colleague Deputy President Rubinstein). I do not concur with that view. Indeed, a boycott can apply pressure, and such pressure may lead the person boycotted to change his position. But applying pressure is not the same as coercion. Repeated demonstrations in front of a person’s office can also pressure him to do something. Would we therefore argue that a demonstration is “coercive expression”? After all, the boycotted person (or one who is the object of a demonstration) can stick to his position and refuse to change his conduct. No one prevents him from doing so. In any case, as my colleague Justice Danziger notes, a call for a boycott is consistent with the purposes of freedom of expression (para. 7 of his opinion). Freedom of expression is not meant to protect only accepted views. Its primary importance is precisely in defending the ability to express and hear opinions that deviate from the social consensus and that grate on the public ear (HCJ 6126/94 Szenes v. Broadcasting Authority, IsrSC 53 (3) 817, 838-839 (1999) [English: http://versa.cardozo.yu.edu/opinions/szenes-v-matar]. As we pointed out in another affair: “We must again reiterate and again recall that the primary purpose of freedom of expression is to guarantee protection particularly for extreme expression that gives rise to dispute and even disgust. Pleasantries that are pleasing to the ear, pleasurable to watch and easy to digest do not require the protection of freedom of expression” (LCA 10520/03 Ben Gvir v. Dankner, (published in Nevo) para 33 (Nov. 12, 2006); CA 4534/02 Schocken Chain Ltd. v. Herzikowitz, IsrSC 58 (3) 558, 573 (2004)). As the power of the interest, so the power of the defense (see and compare: AAA 3782/12 Tel Aviv-Jaffa District Police Commander v. Israel Internet Association, (published in Nevo) para. 10 of my opinion (March 24, 2013) [English: http://versa.cardozo.yu.edu/opinions/tel-aviv-jaffa-district-commander-v-israel-internet-association]).

4.         Do the provisions of the Boycott Law infringe freedom of expression? The Boycott Law does not prohibit calling for a boycott of the Area in the sense that such a call would constitute a criminal offense. Nevertheless, the Law establishes economic sanctions that can be imposed upon a person making such a call. The infringement of freedom of expression is thus carried out by placing a burden upon the possibility for expression, inasmuch as a person may be liable in tort for his call, and he may even risk not being able to participate in a public tender or being denied various benefits granted by the state. Each of the responses established by the Law imposes a significant burden upon anyone seeking to realize his right to expression. A person who chooses to continue to call for a boycott of the Area risks economic harm and the loss of possible employment through winning a public tender published by the authorities. These are significant consequences:

Such a result has the effect of “shutting mouths” that has no place in a democratic regime, as what is the message of such silencing? The very knowledge that expressing an unpopular opinion may eventually have consequences in an area that is professionally related, even in regard to the awarding of a prize, is inconsistent with a culture of freedom of expression in a democratic regime [HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education, (published in Nevo) para. 10 (April 17, 2008)].

5.         Freedom of expression is not only infringed by the expected reaction to a case of calling for a boycott (both by another individual who may sue the person calling for a boycott, and by the state). The very fact that the legislature chose to create specific arrangements in regard to the said expression gives rise to an infringement of freedom of expression. A legislative act has a known declarative effect. Laws are intended to direct behavior. Most law-abiding citizens will choose to act in a manner consistent with the law’s provisions (compare the significance attached to the repeal of the Penal Law’s prohibition upon homosexual acts, despite the preexisting policy not to enforce it: Yifat Bitton, “The Effect of Basic-Law: Human Dignity and Liberty on the Legal Rights of Homosexual Couples,” 2 Kiryat Hamishpat L. Rev. 401, 403-404 (2001) (Hebrew)).

6.         My colleagues discussed at length the purposes that the right to freedom of expression is intended to realize, and there is no need to repeat that discussion. For our purposes, I would only emphasize that the restrictions that the Law imposes upon a call for a boycott of the Area infringe each of those purposes. As for the purpose of uncovering the truth, the Law’s restrictions prevent public debate, and do not allow for fair competition among differing ideological views. A person seeking to boycott can not display his “wares” in the marketplace of ideas, and others cannot be exposed to his position, or reinforce or change their own position through discourse. Mill addressed this as follows:

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race […] those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they [those who oppose the opinion – U.V.] lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. (John Stuart Mill, On Liberty, chap. 2; and see: HCJ 399/85 Kahane v. Managing Board of the Israeli Broadcasting Authority,  IsrSC 41 (3) 255, 273 (1987)).

7.         Along with that, restricting political expression, and in the matter before us – indirectly – the act of boycotting the Area, which is a non-violent response to a particular policy, also infringes the democratic process. My colleague Justice Danziger correctly pointed out: “The exchange of opinions and ideas in the free marketplace of speech is a condition of the possibility of changing the government. It is vital to preventing tyranny of the majority” (para. 4 of his opinion). Moreover, the Law does not, indeed, prohibit the act of boycotting itself. A person may continue to express his political dissent. However, the Law harms the possibility of a person disseminating his views and making them heard by others (who may be persuaded that their views are mistaken), as well as the possibility for others to respond and decide how they wish to act. The Law chills expression. Freedom of expression is also an essential part of an individual’s right – the listener as well as the speaker – to realize his autonomy. That is a person’s ability to tell the story of his life, to state opinions, and express his worldview. That autonomy is part of the human dignity enjoyed by all, and is a condition for spiritual and intellectual development (see and compare: HCJ 8425/13 Eitan – Israeli Immigration Policy Center v. Government of Israel, (published in Nevo), para. 121 (Sept. 22, 2014) [English: http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=54e607184]).

8.         In light of all the above, I concur with the conclusion of my colleague Justice Y. Danziger – for his own reasons – that in all that concerns expressions related to the Area, the infringement of expression does not meet the tests of the Limitation Clause. My colleague is of the opinion that this problem can be resolved through interpretation. He proposes that we read the law such that “Only a boycott against an ‘institution’ or ‘area’ that is part of a boycott against the State of Israel and derives from the connection of the institution or area to the State of Israel will fall within the compass of the Boycott Law. As opposed to this, a boycott of an institution or area that is not part of a boycott against the State of Israel will not fall within the scope of the Law’s definition” (para 46 of his opinion). Indeed, as a rule, a construction that upholds the law should be preferred to annulling it. “[…] the law still expresses the intent of the sovereign, which is the people, and therefore it is the law that goes before the camp, of which the Court is also a part” HCJ 7111/95 Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996)). However, in the absence of an appropriate linguistic foothold, the appropriate relief, in my view, is the erasure of the phrase “or an area under its control” from the Boycott Law, in a manner that would separate the invalid part of the Law from the healthy, valid one (see and compare: HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 59 (4) 241, 267-268 (2004) [English trans: http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing]).

9.         We are, therefore, left with the question of the constitutionality of a call for a boycott against the State of Israel or one of its institutions. Would it be constitutional that such a call give rise to a civil wrong, and prevent participation in a public tender and a restriction upon receiving state subsidies?

10.       In my opinion, an interpretive path can be found that would preserve the validity of the Law (which, of course, is preferable to striking it down). Before addressing that proposed interpretive path, I would like to clarify one matter. My colleague Justice Melcer noted: “Boycott shares characteristics of unlawful discrimination” (para. 33(A) of his opinion). I only agree with that statement in part. Not every boycott comprises characteristics similar to unlawful discrimination. I will demonstrate this with an example: In one type of boycott, A wishes to boycott B because he is a member of a minority. In another type of boycott, A wishes to boycott B, who is a member of a minority, because B does not pay his employees fair wages. Do both types of boycott comprise characteristics similar to unlawful discrimination? The answer is no. A boycott of the first type is like that form of “generic” discrimination that is at the “hard core” of discrimination, which derives solely from a characteristic of a person’s identity (for example, his religion, ethnicity or gender). Such discrimination has been described as  “mortally wounding human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630, 658-659 (1998); AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64 (2) 1, 41-41 (2010) [English: http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality]). The prohibition of such discrimination is anchored in various areas of law (see, for example, sec. 1A(a) of the Equal Rights for Women Law, 5711-1951; sec. 2(a) of the Equal Opportunity in Employment Law, 5748-1988; sec. 3(a) of the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000; and see: Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 685-688 (2014)). As opposed to that, a boycott of the second type does not express unlawful discrimination. It expresses a critical view of B’s conduct, rather than of B himself.

11.       In my opinion, an interpretation that would preserve the validity of the Boycott Law would lead to the conclusion that the Law applies only to boycotts of the first type, viz., boycotts directed against the State of Israel or one of its institutions as such. I shall explain. Section 1 of the Boycott Law, the “definition” section of the Law (worded in accordance with the constitutional approach that I propose), would read as follows:

                        Definition:

1.         In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, [or] one of its institutions, such that it may cause economic, cultural or academic harm.

12.       What, then, is a boycott according to this section? A boycott under this section is the refraining from (or termination of) one of the relationships listed in the Law (economic, cultural or academic ties) with someone for one reason alone: due to its connection to the State of Israel or one of its institutions. The emphasis in this regard is one the word “solely” in the definition: “refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, [or] one of its institutions, such that it may cause economic, cultural or academic harm”. What does “solely” normally mean? It means “for this, and only for this”. If a person does not buy merchandise “solely” because of its price, that means that if its price were different, he would buy it; if a person does not wear an item of clothing “solely” because of its color, it means that were its color different, he would wear it, etc. Adding the word “solely” removes from the Law’s incidence a person who intentionally calls for refraining from the connections listed in the law for “mixed reasons”: both due to the connection to the state and for other reasons – for example, the policy of the State of Israel in regard to some other matter.

13.       This is an important distinction. Whereas “mixed” expression expresses a critical view of the state’s policy (or one of its institutions) in a particular area, the other form of expression (that is “solely” due to the connection of one of these) is criticism regarding the very existence of the State of Israel (or one of its institutions). For example, a person declares: “Do not buy ‘made in Israel’ products. Israel’s policy in the Judea and Samaria area is wrong”. What would that person do if Israel were to change its policy in the Area? He would no longer call for avoiding Israeli products. In other words, that person does not seek to boycott the State of Israel as such. If Israel’s control of the Area were brought to an end, that person would no longer call for a boycott. When the caller does not call for a boycott due to the connection to the State of Israel (or one of its institutions per se, but calls for a boycott, for example, due to the policy of the authorities in regard to the Area, the caller is not calling for a boycott “solely” due to the connection to the State of Israel or one of its institutions, but rather expresses a critical view of the state’s conduct. His conduct does not, therefore, fall within the purview of the Law. As opposed to this, if a person were to call for a boycott of a body or person solely due to the connection to Israel – for example, if a person were to call for a boycott of Israeli businesses because they are Israeli businesses, and for that reason alone, such that some change in circumstance, whether political or otherwise, would not change his position – that call, which is essentially similar to a discriminatory call, would fall within the scope of the Boycott Law. It would seem that that was what my colleague Justice Danziger intended in saying that the practical result of his proposed interpretation of the Law is “the application of the Boycott Law only to calls for a boycott against the State of Israel in its entirety or as such” (emphasis added – U.V.). I would add that this position is consistent with the manner in which the Law’s purpose was presented by the Knesset. The Knesset emphasized that “combatting discrimination directed at a citizen of Israel as such, is a proper purpose”, and explained that this purpose is consistent with the various provisions regarding the prohibition of discrimination in Israeli legislation.

14.       I would emphasize: My colleagues Deputy President E. Rubinstein and Justice I. Amit also stressed the importance of the word “solely” in interpreting the Law. However, there would seem to be a difference in our interpretive approaches. My colleagues presented examples of boycotts for reasons that are not “the connection to the Area”. My colleague Deputy President E. Rubinstein addressed a case of “a call to boycott a factory operating improperly towards the local population (referring to a factory operating in the Area; para. 10 of his opinion). My colleague Justice I. Amit explained that “if the reason for the boycott derives from environmental harm or animal experimentation, the boycott would not fall within the scope of the definition” (para. 48 of his opinion). While it is clear that those examples would not fall within the scope of the Boycott Law, in my view, they do not exhaust the situations that should be removed from the purview of the Law. As earlier stated, in my opinion, even when the call for a boycott is a “mixed” critical call, the Law should not apply.

15.       Having arrived at the interpretive conclusion that the Law “catches” only expression that is essentially very similar to discriminatory statements, and subject to the change proposed in regard to sec. 1 of the Law, it cannot be said that this Law, by which the state seeks to contend with such forms of expression by creating a civil wrong (sec. 2 of the Law) or by means of the distribution of its resources (secs. 3 and 4 of the Law) does not meet the requirements of the Limitation  Clause (also see paras. 36-37, 46 of the opinion of my colleague Justice Y. Danziger, which point out that the restrictions established there are an expression of “defensive democracy”). I would add that this conclusion also derives from the fact that I concur with the opinion of my colleague Justice H. Melcer in regard to the application of the Civil Wrongs Ordinance to the boycott tort and the interpretation he proposes for sec. 2 of the Law, and therefore, for the reasons addressed by my colleague, I am of the opinion that there is no alternative to striking down sec. 2(c) of the Law.

            In conclusion, subject to the annulling of sec. 2(c) of the Law and the erasure of the phrase “or an area under its control”, and subject to the interpretation according to which the Boycott Law would apply only when the sole reason for the call for “deliberately refraining from economic, cultural or academic ties with another person or body” is its connection to the State of Israel or one of its institutions, I find no reason to fully annul the Law that is the subject of this case.

 

President M. Naor:

1.         I share the view of my colleague Justice H. Melcer and of my colleagues who concurred in his opinion. That being the case, my comments will be brief.

2.         Freedom of political expression enjoys enhanced protection. My colleagues have already addressed this, and there is no need for me to elaborate. Indeed, every person in Israel can express his views in regard to what is referred to by the Law as “an area under its [the state’s] control”. Every person can publically call for a withdrawal from what he views as “occupied territories”, while others may call for the extension of Israeli law, jurisdiction and administration over the entire area of “Judea and Samaria”. Both, and all the hues between them, are views that one may express without fear in a democratic state.

3.         Although a call for a boycott also falls within the scope of freedom of political expression, it is a special type of expression. Our colleague Justice Y. Danziger described it well in this case, in saying: “Calling for a boycott is not merely the expression of an opinion. Calling for a boycott is a call to action (or, more precisely, to refrain from performing an action) – the imposition of a boycott. The boycott action harms the objects of the boycott. That harm may not be worthy of the protection of freedom of expression. Thus, clearly, a call for a boycott that would prevent the provision of products or services to publics on the basis of race or for racist motives would be deemed wrong” (para. 38 of his opinion). At the same time, under certain circumstances, a call for a boycott may be deemed a non-violent means of protest, intended to encourage others to take action that the law does not prohibit. Clearly, freedom of expression does not merely comprise the possibility of stating an opinion or providing information, but also allows taking such actions as demonstrating and striking, and permits a person to harness others to such actions.

4.         In light of the above, the Boycott Law does, indeed, infringe freedom of political expression. However, even the freedom of political expression may be infringed if the conditions of the Limitation Clause, by which constitutional review is conducted, are met. As my colleague Justice Melcer noted, we are not called upon to examine the wisdom of a law in the course of judicial review, but only its constitutionality. It would appear that many of my colleagues do not dispute that the state may adopt proportionate measures to prevent harm to itself by a call to boycott. The State of Israel finds itself defending itself against boycotts in the international arena, and its attempts to defend against the various harms that may be caused as a result is a proper purpose. At the bottom line, our disagreement concerns the proportionality of the provisions of the Law under review in the petitions before us. I will return to this disagreement further on. In my opinion, there is no reason to intervene in the legislature’s decision not to distinguish between a call for a boycott of the state and a call for a boycott due to a connection to an area under the state’s control. We should bear in mind that the prohibition in regard to the Area applies solely to a call for a boycott due to the connection to an area under the state’s control. A classic example of this is a call to boycott the products of an industrial enterprise for the sole reason that it is located in the Area. Such a call may lead to the imposition of the Law’s sanctions. As opposed to that, if, for example, a factory located in an area under the state’s control were to discriminate between Jews and Arabs, and the call for a boycott was premised upon that, it would not incur the imposition of the Law’s sanctions. In my opinion, that would also be the case if the factory were located in an illegal settlement of the type that has been or that must be evacuated in accordance with the decisions of this Court due to its location on the private land of Palestinian residents. In my opinion, calling for a boycott of such a factory because the settlement was built illegally would not lead to the imposition of the Law’s sanctions. That would not be a call for a boycott due to a connection to the Area, but rather due to unlawful conduct. However, a call for a boycott solely due to a factory having a connection with an area under state control falls within the scope of “a boycott against the State of Israel”, as defined by the Law.

            In my opinion, as noted, there are no grounds for intervening in the legislature’s decision not to distinguish between a connection to the Area and a connection to the state. Ultimately, the calls for a boycott of the state are often tied and linked to the matter of the state’s connection to an area under its control. The close relationship between a boycott of the state and a boycott of the area held by it is attested to by the approach of most of the Petitioners, who made it clear that they insist upon the repeal of the sanctions for a call for a boycott of the state. I also believe that the analogy made by my colleague Deputy President E. Rubinstein to our non-intervention in the question of the disengagement from the Gaza Strip (HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481(2005)) is apt. The views of the Israeli public on the relationship between the state and the Area are not merely those of extremes. There is broad spectrum of views among the public. There are those who, apparently like the Petitioners, are of the view that the state should leave the Area, while others are of the view that the Area should be made an indivisible part of the state, while others would say that they would like to hold on to the Area, but that it is not possible, and still others would say that the state should wait and continue to hold the Area as a bargaining chip in the framework of a political settlement. In my opinion, we should stay out of that political debate in all that relates to the Area, while recognizing that in the margin of discretion granted to the legislature, there are no grounds for the Court to prevent it from defending against a boycott not only of the state itself, but also of enterprises and institutions erected in the rea with the consent of the state, and at times, with its encouragement, as part of the Government’s overall policy, and that of the Governments that preceded it. The law-abiding residents of the Area are entitled to the state’s defense of their property and income.

5.         As for the question of proportionality, I fully concur with my colleagues who found that secs. 3 and 4 of the Law establish a proportionate arrangement, while making it clear that it will be possible to attack the arrangements that will be made, if they be made, under those sections. As for sec. 2(c), like my colleagues, I am of the opinion that the section does not meet the proportionality tests. I deliberated in regard to the other provisions of sec. 2 of the Law, primarily concerning the question raised by my colleague Justice N. Hendel on the matter of leaving enforcement in the hands of individuals rather than the state. However, the construction of the section proposed by my colleague Justice H. Melcer limits its scope to the necessary minimum, and it is better to interpret it as he does than to annul it.

6.         I therefore concur in the opinion of Justice H. Melcer and those who joined him.

 

President (Emeritus) A. Grunis:

1.         I have read the various opinions of my colleagues. The opinions reflect a broad spectrum of views concerning the constitutionality of the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011 (hereinafter: the Law). My opinion on the matter is like that of my colleague Justice H. Melcer, who presented his view in thorough detail. I will, therefore, only add brief observations.

2.         A point that I believe should be emphasized, and which justifies striking down sec. 2(c) of the Law alone, concerns the effect of a boycott. Indeed, “the boycott silences the discourse” (Amnon Rubinstein& Isaac Pasha, Academic Flaws: Freedom and Responsibility in Israeli Higher Education 118 (2014) (Hebrew)). The fear of a “boycott against the State of Israel” (as defined in sec. 1 of the Law) may result in reducing the discourse on the future disposition of the Judea and Samaria area. While a call for a boycott, including, of course, a public call, falls within the scope of freedom of expression, the fear of the harm inflicted by the boycott may, itself, harm freedom of expression. A person who holds a view that differs from that of one calling for a boycott may fear that if he makes his views on the political debate known, he may find himself or his business boycotted. In other words, the view of my dissenting colleagues leads to a paradoxical situation: the freedom of expression of the person calling for a boycott may infringe the freedom of expression of a person holding a different view. In other words, freedom of expression may become a means for silencing the other. For this reason, as well, secs. 2(a) and 2(b) of the Law pass the constitutional tests, even if just barely, at this stage, prior to the implementation of the Law and in the absence of concrete facts.

3.         However, and due to the fear of infringing freedom of expression, if and when a tort action is brought on the basis of sec. 2(a) of the Law, or if another proceeding is instituted in regard to the implementation of the Law, it may be expected that, against the background of the factual background of a concrete case, the Court may construe the Law very narrowly. This, in order to mitigate any possible violation of the right to freedom of expression of a person claimed to have made a public call for a boycott against Israel.

4. As stated, I concur in the opinion of my colleague Justice H. Melcer.

 

Justice S. Joubran:

1.         The law before us, the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011 (hereinafter: the Law), raises a number of complex legal issues. My colleagues discussed these issues in broad detail, including various references to the history of the institution of boycotts in general, and the legislative history of boycott law in particular, drawing upon far-reaching comparisons, and examining the principles of tort law. My colleagues did so while separately evaluating the civil wrong under sec. 2 of the Law and the administrative sanctions established under secs. 3 and 4 of the Law. At the end of day, the opinions of my colleagues present a number of approaches: President (Emeritus) A. Grunis, President M. Naor, and Justices E. Rubinstein, H. Melcer and I. Amit are of the opinion that only sec. 2(c) should be struck down, and that the Law’s remaining provisions should be upheld, while for the present, the question of the constitutionality of secs. 3 and 4 should await the submission of specific petitions against them. My colleague Justice N. Hendel is of the opinion that sec. 2 should be annulled in its entirety, but concurs in upholding secs. 3 and 4 of the Law for the present. My colleague Justice Y. Danziger is of the opinion that sec. 2(c) should be annulled, and that the infringement of freedom of political expression can be mitigated by means of interpretation in regard to a call for a boycott of a person due to his connection to an area under the control of the state. And lastly, my colleague Justice U. Vogelman concurs with the spirit of Justice Y. Danziger’s interpretation, but is of the opinion that we should make recourse to the “blue pencil” rule in this regard, and accordingly strike out the phrase “an area under its control” in sec. 1 of the Law. According to his approach, as well, sec. 2(c) of the Law must be annulled, and secs. 3 and 4 upheld. For my part, I would note that my opinion is as that of my colleagues Justices Y. Danziger and U. Vogelman in all that relates to a call for a boycott against a person or other entity by reason of its connection to the Area under the control of the state, as I shall explain.

2.         Like my colleagues, I, too, am of the opinion that sec. 2(c) of the Law must be annulled. Moreover, like my colleagues Justices Y. Danziger and U. Vogelman, I am of the opinion that a distinction must be drawn between a call for a boycott of a person due to his connection to the State of Israel and a call for a boycott of a person due to his connection to an area under the state’s control. In my view, the approach that should be adopted is that of my colleague Justice Y. Danziger in regard to the expressions related to the connection to “an area under its control”. As my colleague noted, the relationship between the “State of Israel” and the institutions and areas mentioned in the definition in sec. 1 of the Law is one of belonging. The requirement of belonging must relevantly connect the boycott of the state to the boycott of the institution or the Area. Therefore, only a boycott of an institution or of an area because of a boycott of the state in its entirety should fall within the scope of this definition. The practical outcome of this distinction is the application of the Law solely to calls for a boycott of the State of Israel in its entirety and as such (and see, in depth, paras. 45-47 of the opinion of my colleague Justice Y. Danziger). As opposed to this, my colleague Justice U. Vogelman chose to strike out the phrase “an area under its control” from the language of the Law, rather than preferring an interpretive path.

3.         As for the administrative sanctions established under secs. 3 and 4 of the Law, like my colleagues, I, too, am of the opinion that they meet the conditions of the Limitation Clause, and that at this stage – before the Minister of Finance has exercised his authority to implement the provisions of the Law – there are no grounds for their annulment.

4.         Therefore, in my opinion, sec. 2(c) of the Law should be struck down, and sec. 1 should be construed in the spirit of the interpretation proposed by my colleague Justice Y. Danziger in regard to areas under the control of the State.

 

 

The Court therefore unanimously holds that section 2(c) of the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011, be annulled, and to deny the petitions in all that regards sections 3 and 4 of the Law. In addition, by a majority decision of President (Emeritus) A. Grunis, President M. Naor, Deputy President E. Rubinstein, and Justices H. Melcer and I. Amit, to deny the petitions in regard to sections 2(a) and 2(b) of the Law, contrary to the dissenting opinions of Justices Y. Danziger and S. Joubran and the separate opinion of Justice N. Hendel and the separate opinion of Justice U. Vogelman.

Given this 26^th of Nissan 5775 (April 15, 2015).

 

In the Supreme Court

Sitting As the High Court of Justice

HCJ 3809/08

HCJ 9995/08

 

Before:	Her Honor, President (Ret.) D. Beinisch His Honor, President U. Grunis His Honor, Deputy President E. Rivlin Her Honor, Justice M. Naor Her Honor, Justice E. Arbel Her Honor, Justice E. Hayut His Honor, Justice H. Melcer
The Petitioner in HCJ 3809/08:	The Association for Civil Rights in Israel
The Petitioner in HCJ 9995/08:	The Israel Bar
AGAINST
The Respondents in HCJ 3809/08:	1. The Israel Police
	2. The Military Police CID
	3. The Police Internal Investigations Department of the Ministry of Justice
	4. The Securities Authority
	5. The Antitrust Authority
	6. The Israel Tax Authority
	7. The Minister of Justice
	8. The Knesset
	9. Bezeq, The Israel Telecommunications Corp. Ltd
	10. Pelephone Communications Ltd
	11. Cellcom Israel Ltd
	12. Partner Communications Ltd
	13. MIRS Communications Ltd
	14. HOT Telecom LP
	15. Netvision 013 Barak Ltd
	16. 012 Smile Communications Ltd
	17. Bezeq International Ltd
The Respondents in HCJ 9995/08:	1. The Minister of Justice
	2. The Israel Police
	3. The Military Police CID
	4. The IDF Military Police Internal Investigations Unit
	5. The Securities Authority
	6. The Antitrust Authority
	7. The Israel Tax Authority
	8. The Knesset
Amicus Curiae in HCJ 3809/08:	The Press Council

 

Petitions for the award of an order nisi

 

Date of Sessions:	28th Shevat, 5769 (February 22, 2009)
	23rd Cheshvan, 5770 (November 10, 2009)
On behalf of the Petitioner in HCJ 3809/08:	Adv. Dori Spivak
On behalf of the Petitioner in HCJ 9995/08:	Adv. Dan Hay; Adv. Kobi Sade
On behalf of the First to Seventh Respondents in HCJ 3809/08 and HCJ 9995/08:	Adv. Dana Briskman;
On behalf of the Eighth Respondent in HCJ 3809/08 and HCJ 9995/08:	Adv. Roxanna Scherman-Lamdan
On behalf of the Tenth Respondent in HCJ 3809/08:	Adv. Guy Flanter; Adv. Abayansh Tasma
On behalf of the Eleventh Respondent in HCJ 3809/08:	Adv. Jonathan Hamo; Adv. Asher Doga
On behalf of the Twelfth Respondent in HCJ 3809/08:	Adv. Amir Vang
On behalf of the Ninth and Thirteenth to Seventeenth Respondents in HCJ 3809/08:	No appearance
On behalf of the Press Council (Amicus Curiae):	Adv. Orna Lin; Adv. Vered Kinar

 

 

 

JUDGEMENT

 

President (Ret.) D. Beinisch

 

The petitions, which have been joined, concern the constitutionality of some of the arrangements prescribed in the Criminal Procedure (Powers of Enforcement – Communications Data) Law, 5768-2007 that was published in the Official Gazette on December 27, 2007 and came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”), which permits the Israeli investigatory authorities to obtain communications data of telecommunications subscribers generally, as they are defined in the Communications (Telecommunications and Broadcasting) Act, 5742-1982 (hereinafter referred to as “the Communications Act”).

 

General

 

1.         It is common to say that we are now living in what is called the “information age,” an age in which advanced technology makes it possible to transmit large-scale data in respect of the world around us immediately. Infinite information flows through various media – especially the Internet and the cellular communications related to it – providing a rapid answer to all the issues that concern us in our lives. The general public takes an active and intensive role in the flow of information and it streams data into the information market that affects different strata of the fabric of our lives.

 

As everyone knows, the technological age has not stopped developing merely with the creation of infrastructure for the ongoing transmission of information, and over the years modern technologies have also been created to enable gathering the information that flows in the virtual world and processing and analyzing it according to the different needs of those who have the ability to do so. Combining the ability to transmit information rapidly and the ability to gather it has given various entities – from State authorities, through private corporations to organized crime – a wide variety of tools and abilities they did not previously have.

 

This is also the background to the enactment of the Communications Data Act – the subject matter of the petitions – which resulted from an attempt to regulate how the various State authorities’ powers to obtain communications data on Israel’s residents are exercised in the course of performing their public duties, as well as to regulate how those data are kept by the authorities. This is of particular relevance in terms of how enforcement agencies follow the Act when performing their duties, and it necessitates a balance between the purpose of enforcement and the infringement of individual liberty.

 

2.         The Communications Data Act prescribes arrangements, as detailed below, which enable investigatory authorities – the Israel Police, the Military Police CID, the Military Police Internal Investigations Unit, the Police Internal Investigations Department of the Ministry of Justice, the Securities Authority, the Antitrust Authority and the Israel Tax Authority – to obtain communications data of telecommunications subscribers generally. According to the Act, a telecommunications subscriber is anyone who receives telecommunications service. The Act defines “telecommunications” as “broadcasting, transfer or reception of signs, signals, writing, visual forms, sounds or information by means of wire, wireless, an optical system or other electromagnetic systems.” Therefore, a telecommunications subscriber is anyone who makes use of a telephone, mobile phone or computer for the transfer of messages of any type (conversations, text messages, email and the like.) This means the Act makes it possible to obtain communications data from all the communications companies – the various different cellular and line telephone companies and Internet providers. The communications data covered by the Act include subscriber data, which include the subscriber’s identifying particulars, details of his means of paying for the service, the address where the telecommunications device used by him is installed and more; location data, which include pinpointing the peripheral equipment in the subscriber’s possession; and traffic data, which include details of the type of message transmitted, its duration and scope, identification details of the subscriber who is the source of the message and also the subscriber to whom it is addressed, the time of the message’s transmission and more. The Act clarifies that obtaining those data does not include obtaining the content of the messages transmitted. The ability to obtain the content of communications messages is limited, and it is regulated by the Secret Monitoring Act, 5739-1979 (hereinafter referred to as “the Secret Monitoring Law,”) that is not subject to constitutional review here.

 

In brief, it can be said that the Act regulates three major aspects. The first concerns granting the relevant authorities power to obtain an ex parte order for obtaining communications data. The second is issuing an administrative permit, without filing a motion with a court, to obtain communications data in the cases detailed in the Act. The third is a database set up by the Israel Police to include several sets of data prescribed in the Act.

 

3.         Two similar petitions challenge the Act, focusing on complaints related to those three arrangements (hereinafter “the petitions.”) On April 28, 2008 the Association for Civil Rights in Israel filed a petition in which the Association maintains, in a nutshell, that the arrangements established by the Act to obtain communications data infringe the right to privacy disproportionately, and that the Act, as it is, is therefore unconstitutional. On November 26, 2008 the Israel Bar filed a petition aiming, in a nutshell, to limit the Act’s application to those who have privilege (hereinafter referred to as “professionals,”) such as attorneys and their clients, and also to restrict the ability to use the information collected under the Act as evidence in court proceedings. At a later stage the Press Council joined the first petition as amicus curiae, seeking to emphasize the harm anticipated from implementing the Act on journalists and their work because of the possibility created by some of the Act’s provisions that journalists’ sources would be exposed. With the State’s oral consent, given during a hearing held before us on February 22, 2009, these petitions were heard as if a provisional order had been issued.

 

Discussion

 

4.         The petitioners’ arguments in the petitions are rooted in constitutional law, which are the foundation for the constitutional challenge against the Act. We shall therefore review their arguments according to the process of constitutional review accepted in our jurisprudence; in the first stage we shall review whether the Act does indeed infringe upon a protected constitutional right; in the second stage we shall review whether the Act meets the requirements of the Limitations Clause – whether it is for a proper purpose and whether it meets the criteria of proportionality accepted in our case law. In this latter respect we shall focus the discussion on the three main arrangements that make up the Act, which the petitioners’ arguments mainly target . Alongside this, we shall consider whether the Act overall, given all of its arrangements, meets the criteria of proportionality. After all this we shall consider several other arguments made by the petitioners.

 

Does the Act Infringe a Protected Human Right?

 

The Right to Privacy in the Information Age

 

5.         The petitioners’ central complaint is that the Communications Data Act infringes the constitutional right to privacy. The right to privacy is enshrined in section 7 of Basic Law: Human Dignity and Liberty, which is titled “Privacy” and provides as follows:

 

“(a)     All persons have the right to privacy and to intimacy.

(b)       There shall be no entry into the private premises of a person who has not consented thereto.

(c)       No search shall be conducted on the private premises of a person, or on or in his body or personal effects.

(d)       There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.”

 

In light of the clear, express language of the Basic Law, it appears we need not go into the extensive case law that has elucidated these express statements for the purpose of these petitions. Instead, suffice it for us to refer to the classic definition of the right to privacy, developed by Warren & Brandeis back in 1890, as “the right to be let alone” (S.D. Warren, L.D. Brandeis, The Right to Privacy, 4 Harv L. Rev. 193 (1890)). As was held in the past, the right to privacy “draws a domain in which the individual is left to himself, to develop his ‘self,’ without the involvement of others (and see HCJ 2481/93, Dayan v. The Jerusalem District Commander, IsrSC 48(2) 456, 471 (1994) and the references there,) and as such it is worthy of constitutional protection.

 

Nevertheless, given current reality it would be difficult for us to discuss the right to privacy without giving weight to the complexity of protecting it in the modern age because of the challenges that modern technology poses to the proper protection of the right (Michael Birnhack, The Private Domain: the Right to Privacy between Law and Technology, at 35-36, 44-55, 57-88 (5771) (hereinafter: “Birnhack”); David Brin, The Transparent Society – Will Technology Force Us to Choose between Privacy and Freedom?, at 3-26 (1998)).

 

On one hand, it is clear to everyone that modern technological resources give those with access to them – be they the State or private individuals – numerous very sophisticated tools to penetrate a person’s private domain that used to be considered almost inaccessible: means of surveillance and identification, computerized search methods and organized data collection in electronic databases. On the other hand, at the same time technology also provides tools that make greater protection of privacy possible, enabling the blurring of identity in the virtual domain and the performance of acts in the real world that used to necessitate complete exposure: from economic interactions through to the creation of virtual, interpersonal connections. For us, this complexity means an ambivalent attitude to the adoption of such technologies and their role in protecting the constitutional right to privacy. Moreover, it is not unusual these days to hear arguments that the behavior of individuals in the information age can be regarded as their implied waiver of privacy rights. This is in light of a prima facie informed choice by individuals in society to conduct social, political and economic interaction over the Internet and cellular communications, with clear knowledge of the potential exposure of that information (see further, Birnhack, at 267). It should be noted that only recently the significance of this implied waiver arose in a decision by the United States Supreme Court that came down on January 23, 2012 (United States v. Jones, hereinafter: “Jones,” available at http://www.supremecourt.gov/opinions /11IsrSCf/10-1259.IsrSCf). All these aspects demonstrate to us the complexity of imposing constitutional balances and delineating the boundaries of the right to privacy in the present age. We have borne this complexity in mind when ruling on the petitions.

 

The complexity of positioning the boundaries of protection of privacy is particularly highlighted against the background of the “concern about excess power of the State, which may gather together under its control extensive information about citizens and residents and may abuse such information” (Then Justice A. Grunisin HCJ 8070/98, The Association for Civil Rights in Israel v. The Ministry of Interior, IsrSC 58(4) 842, 856 (2004)). This concern increases as the government gains more sophisticated means, making more extensive infringement of privacy possible. On the other hand, it is also clear that modern technology is a vital, important tool in the hands of the government, a tool that significantly assists the government in performing its duties. In fact, barring the authorities from making reasonable, balanced use of technological tools available to them could significantly impair their ability to perform their law enforcement duties. This is because technological progress and the tools that it develops are not only in the authorities’ possession but are also extensively used by both small and large criminal groups that long ago realized their advantages strongly facilitate their objectives (see also Birnhack, at 175-176). In this technological battle, which continues to be waged, he who lags behind is likely to have the lower hand. It can therefore be said that the authorities must almost certainly keep their hands on the technological pulse and rapidly adopt advanced tools and systems to help them do their work.

 

We considered this complexity in the past in a discussion that was focused on the proper regulation of the laws of search regarding “intruding” into one’s computer:

 

““Needless to say that due to the potential infringement of the individual’s rights when intruding into computer material, such regulation is essential and therefore ought to be completed soon. In the present era, computers have become a prime work tool and means of communication and an almost infinite archive that stores one’s memories, the fruits of his work and his negotiations (as to the potential infringement of one’s rights when intruding into computer material, see Sharon Aharoni-Goldenberg, Hacking into Computer Systems – the Ideal and Actual Scope of the Offense, The David Weiner Book on Criminal Law and Ethics 429 (2009) (hereinafter: ‘Aharoni-Goldenberg’). At the same time, the intensive use of computers also makes them a treasure trove of incriminating evidence and relevant information that can and should be used by investigatory authorities in their battle against lawbreakers and criminals. The complexity and sensitivity of the subject makes it necessary for the Act’s adaptation to technological innovation and the potential harm that follows technology, to be undertaken not only seriously and responsibly but also with due speed” (CrimLA 8873/07, Heinz Israel Ltd v. State of Israel, (unreported, January 2, 2011) para. 17 of the opinion).

 

The statement is also apt herein.

 

The balance between these extremes – the concerns of government’s over-intrusion into the individual’s life, on the one hand due to increased technological capabilities, and the importance of recognizing the advantages that technological resources provide as a means to ensure security and public order, on the other hand – is what lies at the heart of the petitions herein. Making these balances is undoubtedly intricate. In our opinion we shall examine whether the balance the legislature reached in the Act’s arrangements meets the constitutional criteria recognized in our legal system.

 

In this context we would mention that this complexity – which affects the right to privacy in the modern era – is certainly not specific to Israel, and many countries seek to contend with it. As mentioned, as recently as January 23, 2012 the United States Supreme Court decided Jones, which is important to this issue. In that case the question that arose was whether attaching a GPS tracking device to a person’s private vehicle amounted to a search, which is protected by the Fourth Amendment to the United States Constitution. The United States Court unanimously held that the search violated the Constitution and that an appropriate judicial order was therefore necessary. Nevertheless, the Justices were split on the proper criterion for the application of the Fourth Amendment – whether it should be in the context of the doctrine of trespass under common law (the majority opinion) or in the scope of the criterion adopted in Katz v. United States, 389 U.S. 347, namely the “reasonable expectation of privacy” (the minority). The ability of different criteria to adapt to the changing technological environment that makes the physical dimension underlying the search less relevant given the technological surveillance capabilities that the authorities currently possess was, among other things fundamental to the difference in opinions between Justices.

 

6.         We would also mention the important protection of the right to privacy provided by the Protection of Privacy Act, 5741-1981, which preceded the Basic Law and prohibits infringement of privacy. Although the Protection of Privacy Act expressly provides that a security authority is immune from responsibility under that statute, the exemption is limited to “an infringement reasonably committed in the course of their functions and for the purpose of carrying them out” (section 19(b) of that Act.)

 

Infringement of the Right

 

7.         The Act relevant to these petitions makes it possible, as noted, to obtain communications data relating to the conversations between a subscriber and other parties, the type of messages that the subscriber transmits, their scope, duration and more. In fact, as its language additionally reflects, the Act permits obtaining all the information concerning the message transmitted, other than its contents. In addition, the Act allows obtaining extensive information about the subscriber, independently of the message he transmitted – the subscribers’ current location (looking back and to the future), address, the means of payment used to purchase the device in his possession and more. In its general wording the Act allows obtaining communications data about any person involved in an offense, whether he is the victim, suspect or someone else who can lead investigatory entities to a clue. Moreover, though incidentally, the scope of the powers granted by the Act includes the authority to obtain other communications data relating to other individuals who are not necessarily involved in any offense, with whom the person who is involved in the offense has been in touch.

 

On its face, reviewing the powers granted by the Act suffices to reach the conclusion, which even the State does not dispute, that the Act indeed violates the constitutional right to privacy. Clearly, in surveillance of a subscriber, the investigatory authority can observe his habits in using a mobile phone, a computer or the Internet and thereby locate his social network and his activity both during working hours and in leisure time. Even assuming that the surveillance is justified and even if the subscriber is somehow involved in an offense that should be prevented, there is no doubt that his privacy is infringed when his moves are studied in such a way. Clearly, the surveillance of someone, even for the purpose of a criminal investigation, can reveal other details, the knowledge of which constitutes an infringement of the person’s privacy, such as health problems, consumption habits, sexual preferences and the like. The very knowledge of them infringes the person’s privacy after the data is obtained and they certainly have potential to infringe his privacy when they can be used for the purposes of investigation. This is also the case in respect of third parties with whom the individual involved in the offense has any contact. In their petition, the petitioners draw a scenario similar to that described by George Orwell in 1984. Even without finding that we have already reached such a horrifying scenario, there is no doubt that the feeling of surveillance – the knowledge that the investigatory authorities are watchful and can scrutinize anyone, anywhere and at any time – has a disciplining effect on a person’s behavior even in the private domain (Michel Foucault, Discipline and Punish: the Birth of the Prison, 195-228 (1977); Bart Simon, The Return of Panopticism: Supervision, Subjection and the New Surveillance, 3(1) Surveillance and Society 1-20 (2005)). Such being the case, it appears that we can assume that the Communications Data Act does indeed infringe upon the constitutional right to privacy.

 

8.         As to the extent of the Act’s infringement of the right to privacy, the petitioners compare the infringement of privacy caused by the Act and that caused by the Secret Monitoring Act. According to them, the infringement is on a similar scale, which, in the appropriate cases, necessitates a comparison between the various arrangements in the Secret Monitoring Act and the Act relevant to these petitions. The State again emphasized to us that, in its view, the comparison is not appropriate and that the infringement caused by the Communications Data Act is not similar to that caused by the Secret Monitoring Act. Thus, it was explained, for example, that the Communications Data Act does not permit actual listening to conversations or reading written transmitted messages, while the Secret Monitoring Act allows far greater exposure of one’s privacy. According to the State, the infringement caused by the Communications Data Act is more akin to that caused by search warrants and production orders of different types.

 

It seems that the State’s position is accepted in other legal systems. Thus, for example, American legislation distinguishes between four basic categories of electronic surveillance (see the Electronic Communications Privacy Act 1986 (ECPA) established by Chapter 18 of the United States Code (hereinafter: “USC”), the first category, and the greatest infringement of privacy, is secret monitoring (which is regulated by Chapter 1 of the ECPA). The other categories are perceived as constituting lesser infringements of privacy: electronic tracing devices (which in certain respects provide information similar to location data in the Israeli statute) are perceived as infringing privacy less than secret monitoring; obtaining data from communications service providers (similar in part to subscriber data in Israel) is a category whose infringement is even lower (the obtaining of which is regulated by the Stored Communications Act, which is part of the ECPA); and finally what are known in American law as pen/trap taps (electronic surveillance devices that make it possible to obtain data in real time about telephone numbers that have been dialed and received on a particular telephone device) that are defined as the least infringing surveillance category. In this context we would first note that the United States Patriot Act (2001) extended the definition to additionally include data about Internet addresses. Second, American courts are split as to whether permitting the use of these surveillance devices also permits obtaining data on the location of cellular phones (see further: Deborah F. Buckman, Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 ALR Fed. 2d 537 (2006)). This difference in the extent of the infringement is demonstrated in different arrangements formulated in American law for the different categories’ application, which include looser requirements as the infringement caused is mitigated. The same is the case regarding different data that can be obtained from communications providers under the Stored Communications Act mentioned above, which sets different arrangements depending on the type of data sought and distinguishes, for example, between identification data, which can also be obtained through an administrative subpoena (§2703(c)2, Chapter 18 of the USC), and the contents of transmitted messages, which require a search warrant with judicial authorization (§2703(a)(b)). Thus, according to American law’s approach, in light of the relatively limited infringement caused by obtaining data through surveillance devices of the pen/trap taps type, it was held in Smith v. Maryland, 442 US 735, 745 (1979) that individuals have no inherent expectation of privacy in the telephone numbers that they voluntarily dial. Consequently, it was held there that a motion to obtain such data cannot be considered a “search,” as protected by the Fourth Amendment to the Constitution and therefore investigatory authorities need not meet the requirements necessary for obtaining a search warrant. Nevertheless, as stated above, on January 23, 2012, the United States Supreme Court unanimously held in Jones that fitting a GPS tracking device to one’s private motor car and monitoring his movements for 28 days did constitute a “search” that is protected under the Fourth Amendment to the Constitution and therefore did necessitate an appropriate judicial order. English law also draws a similar distinction in protecting content data compared to communications data (see, for example, section 1 the Regulation of Investigatory Powers Act, 2000, c. 23 (Eng.) (hereinafter: “the RIPA,”) which requires an order for obtaining the contents of communications, as opposed to sections 21 to 25 of the same Act that grant powers to numerous authorities to obtain other communications data.)

 

It should be said that the parties’ positions regarding the extent of the infringement upon the right to privacy as a result the Communications Data Act impacted those parties’ positions regarding the Act’s arrangements and their proportionality. We have given consideration to these aspects and reached the overall conclusion that for the purposes of the petition we need not decide whether the infringement of the right to privacy in the Act is greater or less than the infringement of privacy resulting from the Secret Monitoring Act. It should not be overlooked that given modern technology, the State’s position creates a somewhat artificial distinction between content data and data, the obtaining of which the Act permits, because it appears that the differences between them are not so clear (see further Omer Tene, Look at the Pot and See What Is in It: Communications Data and Personal Information in the 21st Century, in Legal Net: Law and Information Technology 287 (Niva Elkin-Koren and Michael Birnhack eds., 2011). However, for the purpose of these petitions we need only find that the Communications Data Act indeed infringes upon the constitutional right to privacy, and we do not consider it necessary to establish strict rules on the relationship between the data obtained under the Secret Monitoring Act and the data obtained under the Act subject to our review.

 

In any event, it is clear that such infringement in itself does not render striking down the Act as unconstitutional. Investigatory powers, like penal powers, for the most part inherently infringe protected human rights. We must therefore analyze – under our accepted constitutional system – whether the infringement of the constitutional right which results from the Act’s implementation meets the requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty. Should it become clear that the infringement meets such requirements, there would be no constitutional reason to strike down the Act.

 

9.         However, before moving on to study the conditions of the Limitations Clause, in view of the petitioners’ pleas, we must also review whether alongside the right to privacy, the Act infringes other protected rights. According to the Israel Bar, In addition the infringement of privacy, the Act does infringe other rights, namely the rights embodied in the professional privileges that have been recognized by statute and case law, including the right to be represented by defense counsel, freedom of the press, freedom of association, free expression, freedom of occupation, freedom of religion and more. Naturally, the Bar devoted most of its arguments to the infringement that the Act causes, as it argues, to attorney-client privilege and to the client’s right to be assisted by an attorney, even when the attorney is not at all involved in the offense.

 

Indeed, as a general rule, it can be said that the infringement of privilege established in statute might infringe the rights the privilege protects. Among other things, as the State also mentions in its reply from January 11, 2009, the infringement of attorney-client privilege might infringe the client’s due process rights. Similarly, infringing the privilege of a journalist’s source might lead to an infringement of the journalist’s freedom of expression. Moreover, infringing the privilege of other professionals presumably impairs – if only to a certain extent – their professional activity. On its face, professionals’ freedom of occupation is thereby also infringed because such infringement erodes their ability to assure their clients’ absolute confidentiality about the very relationship with them, which is an important aspect to many clients, especially when the mere need for the professional is something that the client wishes to conceal, for example need for psychological treatment or support by the social services.

 

Nevertheless, according to the State, the Communications Data Act – which as mentioned, prohibits the transmission of message content – does not infringe upon the various different professional privileges (except in the case of journalists, as discussed below.) This is because obtaining data concerning the very relationship between the privileged person and the professional is not within the scope of the privilege recognized by the Israeli legal system.

 

10.       Courts have reviewed the extent of the various different professional privileges several times in the past and have held that professional privileges essentially extend to the content of the conversations held between the professional and the privileged person but not to the very existence of a relationship with the professional. The purpose of the privilege is to allow the privileged person a realm of free communication between him and the professional. Therefore, it appears that there is merit to the State’s position that, generally, when the statute does not permit obtaining the contents of the conversation it does not infringe upon the protection that the privilege affords to the privileged person. (See also on medical privilege: HCJ 447/72, Dr Bernardo Ismachovitz v. Aharon Baruch, Tel Aviv and Central Investigatory Assessing Officer, IsrSC 27(2) 253, 259 (1973) (Justice Y. Sussman); on attorney-client privilege: MP 227/83, Eliyahu Miron et al v. State of Israel, IsrSC 45(1) 62, 79 (1983) (Judge Z Cohen); MP (TA) 1529/83, Israeli, Yerushalmi, Cohen & Co. v. State of Israel, DCJ 5746(3) 265 (1985), which was upheld in HCJ 301/85, Jacob Israeli v. Israel Levy, Deputy Chief Secretary of the Tel Aviv – Jaffa District Court, IsrSC 40(1) 159 (1986)). See also Gabriel Kling, Ethics in Advocacy 418 (2001). See also in American Law: Baird v. Koerner 279 F. 2d 623 (9th Cir. 1960).

 

It is fitting here to emphasize that professional privilege, including attorney-client privilege, is for the benefit of the client, not the professional, as has already been held:

 

“The privilege in section 90 above is that of the client and is first and foremost designed to guarantee an honest and open relationship between him and the attorney when the latter’s professional services are needed, without the client being concerned or afraid that matters or documents disclosed during the consultation or handling of his case will ever be used against him without his consent” (BAA 17/86, John Doe v. Israel Bar, IsrSC 41(4) 770, 778 (1987), Justice M. Beiski).

 

As for journalists, the situation is slightly different. We have already discussed the importance of free press in many decisions by this Court as well as the difference between journalism and other professions. Thus, in CFH 7325/95, Yedioth Aharonoth et al v. Kraus et al, IsrSC 52(3) 1, 53 (1998) Judge Y. Zamir stated that:

 

“A free press is not only a necessary result of democracy but it is also a necessary condition for democracy. It is a necessary condition for a representative regime, for fair and functioning governance and for human liberty. It can in fact serve as a litmus test for democracy: there is free press, so there is democracy; there is no free press, so there is no democracy. One of the main functions of the press in a democracy is to regularly and effectively criticize and check all the state agencies, and first and foremost the government. To enable the press to perform that function properly, it must be free of supervision or other government involvement.”

 

As the State also agreed, with regard to journalists, the very identity of the person who contacts a journalist can constitute part of journalistic privilege because it may expose the journalist’s source despite the protection given to such sources. This Court, by Justice M. Shamgar, discussed the protection afforded a journalist’s source in the Tzitrin case (MP 298/86 Ben Zion Tzitrin v. The Disciplinary Tribunal of the Israel Bar, Tel Aviv District IsrSC 41(2) 337 (1987)). Justice Shamgar stated there: “protection of sources of information necessary for the performance of a journalist’s function, including protecting the relationship of trust on the basis of which information is given in return for assurance that the source will not be revealed, is therefore a public interest and not the particular interest of the relevant newspaper or journalist” (id., at 358). We shall return to this relevant distinction below when we come to discuss its significance in respect to the various arrangements concerning those who have privilege.

 

To summarize, given the concept of privilege in our legal system, apart from the case of journalists, the petitioners were unable to demonstrate that the Communications Data Act per se infringes the various professional privileges created by statute and case law. To the extent that there is an infringement, it is marginal to the protected right and not at its core, which enjoys broad protection. Consequently, nor have we found it possible to show infringements to other rights intended to be protected by the privilege.

 

Nevertheless, and for the purposes of the discussion here, we are willing to assume the possibility of obtaining communications data about professionals also constitutes a derivative infringement of the right to privacy. Consequently, when analyzing the infringement of the right to privacy as detailed above, it is proper to review it – together with the right’s derivatives by applying the Communications Data Act in light of the Limitations Clause.

 

The Limitations Clause

 

Proper Purpose

 

11.       The purpose of the Act, as put to us by the State, is to give the Police and other investigatory authorities effective tools for the battle against crime in the developing, modern world. According to the State, the dramatic development of the modern world of communications has not passed over criminals, and the media have become a convenient platform to improve the means of communication and commission of crimes. Consequently, enforcement authorities must contend with such capabilities and at the same time improve their own. It was therefore argued that an inability to obtain communications data would place law enforcement authorities at a significant disadvantage compared to criminals, both when it comes to detection and when it comes to gathering the evidence for their prosecution. In addition, the State pleads that the purpose of the Act is to make it possible to deal with urgent situations quickly, for example when a person’s life is on the line or when it is necessary immediately to find offenders who have already committed crimes. According to the State, communications data – and especially pinpointing the telephone – might save lives and significantly help the prosecution of offenders. It appears that at this level there is no dispute between the parties because, as emerges from the petitions, the petitioners also agree that the purpose of the Act is a proper one and in fact they are merely contesting some of the arrangements contained in it (and see para. 23 of the Association for Civil Rights’ petition and para. 22 of the Bar’s petition).

 

We would mention that in addition to these purposes, the State mentions another, which is to regulate the obtaining of communications data which until now, according to it, has been regulated generally and broadly in the scope of section 43 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 (hereinafter referred to as “the Criminal Procedure Ordinance”) and internal guidelines of the Attorney General. According to the State, the Act is designed to regulate and limit investigatory authorities’ use of communications data in order to reduce the infringement of human rights as much as possible. Clearly this purpose itself is also a proper one. The petitioners do not dispute this, and they also agree that the creation of a complete legal arrangement for obtaining communications data by enforcement authorities is justified (see para. 22 of the Bar’s petition). Indeed, as already mentioned above, it is difficult to conceive these days of law enforcement without monitoring communications data – from locating offenders when they commit offenses, tracking them and making immediate arrangements to stop an offense while it is committed (for more see Birnhack, at 53). It is therefore possible to sum up by saying that the Communications Data Act was legislated for a proper purpose. It is also clear that the Law is not inconsistent with the values of the State of Israel.

 

As such, our main discussion will address the proportionality of the Act and its arrangements. The petitioners themselves concentrated their constitutional arguments on the three basic arrangements relating to the possibility to obtain a judicial order under section 3; the possibility to obtain an administrative order under section 4; and the establishment of a database under section 6. At the same time, the petitioners’ case did not seek the Act’s striking down as a whole, and the Association for Civil Rights even emphasized in its petition that it does not dispute its “constitutionality as a whole”. Our discussion will therefore first focus on reviewing the individual arrangements challenged in the petition. We shall then also briefly discuss the proportionality of the Act as a whole, considering the mechanisms and internal balances in it.

 

The individual arrangements prescribed by the Law, the proportionality of which we shall discuss below, are as follows –

 

(a)       The Arrangements Prescribed in the Law

 

Section 3 – A Judicial Order

 

12.       Section 3 prescribes an arrangement that enables an investigatory authority, as defined by the Act, to obtain communications data by applying to the magistrates court in the jurisdiction where the investigatory unit is located or the offense for which the data sought was committed. Because of the section’s importance, we shall quote it below:

 

“Order to Obtain Communications Data from the Database of a Telecommunications Licensee

3.         (a)       The court may, upon a motion by a police officer authorized by the Inspector General, or by a representative of another investigatory authority (in this section referred to as “the motion”), permit by order the Police or the other investigatory authority to obtain communications data from the database of a telecommunications licensee as prescribed in the order, if it is satisfied it is necessary for any of the purposes specified below, provided that obtaining such communications data does not infringe any person’s privacy beyond that necessary:

                        (1)       To save or to protect human life;

                        (2)       To detect, investigate or prevent offenses;

                        (3)       To detect and prosecute offenders;

                        (4)       To lawfully confiscate property.

           

            (b)       Where the subscriber subject the motion is a professional, the court shall allow communications data to be obtained as provided in subsection (a) only where there are grounds to suspect that the professional is involved in the offense for which the motion is filed.

                       

            (c)       The motion shall be filed in writing, and it shall be supported by a declaration under warning, or by an affidavit.

           

            (d)       All the following shall, inter alia, be stated in the application:

                        (1)       The facts establishing the court’s jurisdiction;

                        (2)       Details of the identity and position of the filing party and the source of his authority to file for an order under this section;

                        (3)       A summary of the facts and information on which the motion is based;

                        (4)       The purposes for which the communications data are needed;

                        (5)       The requested communications data;

                        (6)       The period of time for which the communications data are requested, including the time period preceding the order, and – subject to the provisions at the bottom of subsection (g) – including the time period after the order (in this section referred to as “future communications data”);

                        (7)       Identifying details of the subscriber or the telecommunications installation for which the communications data are requested, if known in advance, including whether the subscriber is a professional covered by professional privilege under any law (in this Act referred to as “professional”); in this paragraph, “law” includes case law;

                        (8)       Details of previous motions to obtain communications data regarding the same person in the same investigation file (in this section referred to as “previous motions”).

 

            (e)       Privileged material, on which the information specified in subsections (d)(3) and (4) is based, shall be made available only for study by the court; the material shall be marked and returned to the moving party after it has been studied.

 

            (f)        (1)       The following shall be attached to the application:

 

                                    (a)       Decisions of the court that heard previous motions;

                                    (b)       Copies of previous motions and transcripts of court hearings on previous motions, to the extent that those were heard by a different court.

                        (2)       Notwithstanding the provisions of paragraph (1), the court may – for special reasons that shall be recorded – hear an urgent motion even without the documents in that paragraph, if it is satisfied that it has the information it needs in order to decide the motion.

 

            (g)       When deciding a motion and when setting the period for which the communications data will be provided, the court shall consider, inter alia, the need to realize the objectives detailed in subsection (a), the extent to which a person’s privacy will be infringed, the severity of the offense, whether the subscriber is a professional and the kind of communications data permitted to obtain under the order. The court may set different periods for obtaining communications data according to the type of communications data it permitted to obtain, provided that the maximum period for obtaining future communications data shall not exceed thirty days from the day of the order.

 

            (h)       All the following shall be specified in an order under this section:

                        (1)       The grounds for making the order, and for an order regarding a subscriber who is a professional – detailed grounds for making the order under such circumstances;

                        (2)       The communications data that may be obtained under the order;

                        (3)       Identifying details of the subscriber or of the telecommunications installation, for which the communications data were requested, if known in advance;

                        (4)       The period of time during which communications data may be obtained under the order;

                        (5)       The date on which the order is issued and the date on which it expires.

 

            (i)        The grounds for issuing the order, as provided in subsection (h)(1), shall not be communicated to the telecommunications licensee to whom the order applies.

 

            (j)        An order issued under this section shall be in effect for thirty days from the day of its issue. 

 

            (k)       The provisions of this section shall not limit the court’s power to grant additional orders in the same investigation.”

 

As can be seen, this comprehensive arrangement was established in primary legislation and it details the procedure of issuing a judicial order granting permission to obtain communications data. According to the arrangement, representatives of the competent authorities may request a communications data order from a court in the cases listed in the section. The particulars of the motion, and the factors that the court ruling on the motion must consider, are detailed and include reference to preventing unnecessary infringement of the right to privacy of the person for whom the order is sought and that of others.

 

13.       The petitioners’ arguments as to this arrangement are essentially twofold. Firstly, they maintain the objectives defined in sections 3(a)(2) and 3(a)(3) are overly broad. The petitioners ask us to read into these sections a restriction whereby the goal of a judicial order under the Act can be the investigation of a particular, specific offense or the detection of an offender who has committed a particular offense, rather  than general intelligence activity to be used by the investigative authorities in their regular work of detecting offenses and offenders. Second, the petitioners assert that applying the arrangement to misdemeanors violates the proper balance between infringing the right to privacy and the proper public interest of preventing dangerous crime, and the section should therefore only be applied to offenses that are a felony.

 

In its reply to the petitioners’ arguments, the State argued generally that the Act, including the arrangement now being discussed, is balanced, detailed, proper and practical, and that it improves, rather than violates, the protection of privacy. This is essentially considering the situation before the Act came into effect, when investigatory authorities could request communications data from communications companies with a court’s order to produce documents issued according to section 43 of the Criminal Procedure Ordinance upon the request of investigatory entities. The State explains that the legislature was aware of the possibility of infringing the right to privacy but, according to it, the current Act includes mechanism to properly protect citizens against disproportionate infringement of their rights. With reference more specifically to the petitioners’ first argument, the State asserted that it did not consider additional conditions to the Act’s sections to be justified. This is because, according to the State, the sections of the Act in any event require demonstrating a concrete suspicion in order to file the motion. Thus the petitioners’ concern about a general motion that involves no suspicion is dispelled. The mandatory reports to the Knesset also limit the petitioners’ concern. We shall consider the petitioners’ arguments in order.

 

The Breadth of the Grounds for Issuing a Judicial Order under Section 3

 

14.       According to the language of sections 3(a)(2) and (3) they do prima facie permit the investigatory authorities to act in the broadest of circumstances. According to those sections, when issuing an order the court may consider general objectives, like detection of offenses or detection of offenders. The acts specified in subsections (1) to (4) do in fact define all the functions of the investigatory authorities, and thus under the language of the Act the court may therefore issue an order to obtain communications data regarding any activity by such authorities. This arrangement meets the first requirement of proportionality because it maintains a rational connection between the objective of preventing crime and detecting and penalizing offenders. Nevertheless, the arrangement does create several difficulties in terms of the second proportionality requirement. In other words, does the arrangement in section 3 of the Act constitute the least restrictive means of those available to the investigatory authority. According to the petitioners, the purpose of the Act can be achieved by taking less restrictive means: exercising the power prescribed in sections 3(a)(2) and 3(a)(3) only in cases where the communications data is requested for detecting a particular offense or a specific offender, as opposed to general intelligence activity for detecting offenses or offenders.

 

15.       According to the petitioners, such a limiting requirement can be read into the Act under the doctrine known (essentially in Canadian law) as “reading in”. This doctrine seeks to read into the statute under judicial review a provision that will cure its unconstitutionality (on “reading in” see: Aharon Barak, Interpretation in Law, Part Three – Constitutional Interpretation 763 (5754), hereinafter: “Interpretation in Law”, HCJ 8300/02, Gadban Nasser v. Government of Israel (unpublished, May 22, 2012 (hereinafter: “Nasser”) paras. 55-60). It should first be said that the use of this tool is not the appropriate way to limit the arrangements in the Act as the petitioners seek. The use that is generally made of this doctrine has sought, in the name of the principle of equality, to apply the statute under review to categories the legislature omitted, reading new categories into the statute, all within the legislative purpose. This was done, for example, in HCJ 721/24, El Al Israel Airlines Ltd v. Jonathan Danilevitz, IsrSC 48(5) 749 (1994) (hereinafter: “Danilevitz”), when a new category – same-sex couples – was introduced into the beneficial collective agreement (and see Danilevitz, p. 764-67 and sources there; Interpretation in Law, Id.; see also s, para. 60). Our case is different. In the circumstances of the Act, we are not faced with a question of preferring certain categories to categories to which the Act, according to its plain language, does not apply, and we have no interest in infringing equality. Even the petitioners do not indicate such infringement. We therefore do not believe the doctrine of “reading in”, with all its implications, should be applied in the present circumstances. At this time, when the Act is before us at first instance, we must make use of the inherent tools at the Court’s disposal – interpretation of the statute from within it and according to its language. This is how we must interpret the arrangement in section 3 of the Act because, as we previously held, so long as the potential infringement involved in the provision of the statute can be limited by interpretation, the interpretive move should be advanced, thereby exercising constitutional review according to the Limitations Clause (and see CrimA 6659/06, John Doe v. State of Israel (unpublished, June 11, 2008) hereinafter: “the Unlawful Combatants case”, para 7).

 

As we know, the Court’s interpretative work is done according to the limitations obliged by the language and purpose of the statute, in addition to presumptions of interpretation accepted in our legal system which the interpreter may utilize (the Unlawful Combatants case; HCJ 9098/01, Genis v. Ministry of Construction and Housing, IsrSC 59(4) 241 (2004) (hereinafter: “Genis”). As the point of departure in the work of interpretation the Court will, so far as possible, seek to avoid striking a statute enacted by the Knesset in deference to the legislature and the separation of powers that stands at the centre of the Israeli legal system. The Court will therefore often prefer to leave the statute as it is, applying an interpretation that is adaptable it to the constitutional system and fundamental values. Accordingly, we shall seek to adopt an interpretation of the text that leads to the least infringement of human rights. As we said, for example, in the Unlawful Combatants case:

 

“Our legal system presumes the legislature has knowledge of the contents and effects of the Basic Laws and every statute enacted after them. According to the presumption, a statutory provision is reviewed in an attempt to interpret it so as to befit the protection extended to human rights by the Basic Law. This achieves the presumption of normative harmony, according to which ‘a discrepancy between legal norms is not presumed and every possible attempt is made to maintain ‘legal uniformity’ and harmony between various norms’ (A. Barak, Interpretation in Law – the General Doctrine of Interpretation (1992), 155).  … An effort of interpretation should be made in order, as much as possible, to reduce infringement on liberty so that it be proportional for the purpose of achieving security and no more. Such interpretation will be consistent with the basic philosophy prevailing in our legal system, that a statute ought to be implemented by interpretive means and as much as possible striking it down for unconstitutionality must be avoided” (id, para. 7).

 

And in HCJ 4562/92, Zandberg v. The Broadcasting Authority, IsrSC 50(2) 793, 812 (1996) President A. Barak stated:

 

“It is better to achieve limits on a statute by interpretation rather than having to limit it by declaring part of the statute void for violating provisions of a Basic Law… A reasonable interpretation of a statute is preferable to finding it unconstitutional.”

 

According to our said philosophy, based on the assumption that the legislature intends to limit infringement on human rights as much as possible, and especially the human rights enshrined in and protected by Basic Laws, there might be cases where, in order to achieve the purpose of the text and avoid striking it down, it is justified to interpret it more narrowly so that it will not apply, for example, to a particular category of circumstances.

 

President A. Barak’s statement is apt here:

 

“May the commentator limit the broad language of the text in order to achieve the purpose of the text? When the text prescribes a legal arrangement that applies to ‘everyone’ with respect to ‘everything’ in ‘all circumstances’, may the interpreter – who seeks to achieve the underlying purpose of the text – interpret the text so it does not apply to a particular category of persons (not ‘every’ one,) does not apply to a particular category of things (not ‘every’ thing,) and does not apply to a particular category of circumstances (not ‘all’ circumstances)? The answer to this question in Israel and also in comparative law is in the affirmative. I considered this in the Zandberg case, stating: ‘When the language of the statute is broad, the judge may and can give it a narrow meaning, extending to only some of the options emerging from the language, provided that he thereby achieves the purpose of the enactment. That is the case in Israel. That is the case in comparative law…

 

            … Indeed, in order to achieve the underlying purpose of the statute – be it a specific or general purpose – the interpreter may give the broad language of the statute a narrow meaning” (Genis, p 37).

 

From the General to the Specific – the Interpretation of Section 3

 

16.       Hence, it appears that under the circumstances here the petitioners’ application can be considered in terms of interpretation, as a request for narrow interpretation that would limit investigatory authorities’ ability to rely on general objectives for the purpose of orders to obtain communications data. To that end, we must, to use Justice M. Cheshin’s metaphor, “peel the statute as one peels the integuments of an onion: healthy ones are kept and unhealthy ones discarded” (Genis, at 268). The “unhealthy integuments” are those cases where the investigatory authority might have applied to court for an order to obtain communications data for achieving general objectives. Although according to the language of the Law – and its language alone – there is no bar, on its face, to doing so, it does appear that in light of constitutional interpretation, consistent with the language and purpose of the Act, the investigatory authority is not authorized to act in that way and must apply for orders only in cases where the order is necessary for detecting a particular offender or for investigating or preventing a particular offense that is anticipated or being committed. This conclusion is consistent with the particular stated purpose of the Act, which concerns combating crime and the detecting and punishing of offenders, while limiting the use of the broad tool embodied in section 43 of the Criminal Procedure Ordinance. This conclusion is consistent with the general purpose of the Act, which calls for limiting the infringement on the constitutional right to privacy so that it is proportional in achieving the purpose of the Act (see also Genis, at 291-93, the Unlawful Combatants case, para. 8). This interpretation is consistent with the fundamental concepts of our legal system and brings about a proper balance between leaving the Act as it is and achieving the goals of Basic Law: Human Dignity and Liberty.

 

As mentioned, this is indeed the position of the State as well. In its notice of May 22, 2008 the State agreed to this narrow interpretation. According to the State, the language of the Act clearly indicates its drafters intended to permit issuing orders in order to obtain communications data only where necessary to inquire into a concrete suspicion rather than for gathering general intelligence. The State clarifies that, in its opinion, too, in requesting an order investigatory authorities must at least “indicate a clue, the first stage of a prima facie evidential foundation for police action relating to a concrete investigation,” consistent with the relief the Association for Civil Rights seeks in its petition (para. 52 of the State’s notice). Then chairman of the Knesset’s Constitution, Law and Justice Committee expressed a similar position (hereinafter: “the Constitution Committee”) in the discussions around the Regulations for the Act’s implementation. Thus, then chairman of the Constitution Committee, Prof. Menachem Ben Sasson, stated during the discussion held on August 13, 2008: “This Act must be elucidated narrowly. That is to say that where there is doubt, the answer is ‘no’. I am not saying that as an interpreter of the Act but it cannot be interpreted otherwise and anyone participating in the discussions knows it…” (Transcript of meeting no. 639 of the Constitution, Law and Justice Committee of the 17th Knesset, 5 (August 13, 2008)). This limit on investigatory authorities’ discretion, which is accepted by the State, also finds expression in the Police procedure that regulates Police action under the Act, which is none other than procedure 03.344.306 that was formulated after the Act came into effect and when the petitions were pending (hereinafter: “the procedure”). As for section 3, the procedure adds little to what the Act requires given the procedure in section 3 is very detailed. Thus, the procedure specifies, lifted directly from the Act’s language, the details that any request for an order must included, as well as the considerations the officer seeking the order must apply. Those considerations are, inter alia, the severity of the offense and the strength of the suspicion, and the evidential foundation as to the request’s subject matter. By following this, the Police activity in terms of these orders complies with the proper interpretation as established by us above.

 

It should be emphasized that our above interpretation of section 3 is not based on the State’s concession as to the proper interpretation of the section or of other sections the petitioners have challenged.  Nor is it based on the existence of the Police procedure. The State’s concession or action may change as they are a product of the State’s policy alone. Nevertheless, under the circumstances here, that concession also reflects the proper interpretation that, in our opinion, should guide how the authorities exercise their powers. This interpretation is consistent with the language of the text and its purpose (both particular and general), and it permits the arrangement prescribed in section 3 to subsist as a proportional arrangement that does not over-infringe the constitutional right to privacy. Indeed, it might perhaps have been preferable to amend the Act itself so that it embodies the approach – shared by the State, the petitioners and the Court – with regard to the narrow implementation of section 3’s broad provisions. Nevertheless, interpretation is a tool at the Court’s disposal and it enables us to clarify the boundaries of the Act, even if the actual language of the Act remains unchanged. We would go on to say that in the scope of our interpretive work of identifying the legislative intent we may be assisted by information the executive authority holds (see: Aharon Barak, Interpretation in Law, Part Two – Legislative Interpretation 346 (5753) (hereinafter: “Legislative Interpretation”). Thus, the procedure demonstrates the Act’s legislative intent as viewed by the executive authority and that the interpretation it adopted is consistent with the interpretation that we have prescribed above. This joins with the other facts that have led us to conclude this is indeed the proper interpretation of the Act under review.

 

We have therefore reached the overall conclusion that the proper constitutional interpretation of sections 3(a)(2) and of 3(a)(3) of the Communications Data Act is that investigatory authorities are empowered to request a court for an order under the Act only for the purpose of detecting concrete offenders or offenses rather than for general intelligence activity as to offenders or offenses. This interpretation achieves the second requirement of proportionality because, in our opinion, it constitutes a means that less restricts the right to privacy, while still achieving the purpose of the Act in the same way. This conclusion is also required by the State’s concession to a narrow interpretation, which indicates that in its opinion the objectives for which the Act was passed will not be hindered by that narrow interpretation.

 

Given this interpretation, we have reached the overall conclusion that the arrangement in section 3 also meets the third requirement of proportionality because the extent of the infringement on the right to privacy – in the manner described – is in proper proportion to the benefit from applying the Act and its arrangements, a benefit which the petitioners themselves do not dispute.

 

17.       A similar approach, that relates to the necessary balance between the right’s infringement and the benefit to public interest characterizes parallel legislation in legal systems similar to ours, which have articulated various grounds for obtaining communications data – some more extensive than the grounds under Israeli law and some closer to the grounds included in it. Some countries have made the concrete nature of the offense or offender requirement clear as opposed to general aspects of law enforcement, and others have not. This reinforces our conclusion that in terms of the grounds for exercising authorities under the Act, and given the proper interpretation for their exercise, as delineated above, this aspect of the Israeli Act complies with the requirements of proportionality and is consistent with the constitutional concepts prevailing in legal systems that are similar to ours.

 

In English law, for example, the RIPA, mentioned above, regulates powers to obtain communications data in an arrangement that sets the various surveillance powers State authorities have, both to obtain the content of information and to obtain communications data without content. The Chapter that addresses the grounds for requesting communications data, regulated in section 22(2) of the RIPA, is relevant here. It details a very broad list of grounds for when communications data can be obtained. Not all the grounds make it possible to obtain all types of data and in any event obtaining them is subject to proportionality. The grounds are defined in the English Act as follows:

 

“(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;

(g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or

(h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State”.

 

From the above it is clear that the list of grounds in English law is far broader than those recognized in the Act subject to the petitions here. In American law as well, the accepted criterion for placing surveillance devices of the pen/trap device type – which require a judicial order – is relatively broad and examines whether the required data are “relevant to an ongoing criminal investigation” (18 USC §3123(a)(1) which is the ECPA, mentioned above). Reviewing section 2703(d), which addresses the conditions necessary for granting a judicial order to obtain communications data (which are similar to subscriber data and some of the traffic data in the Israeli Act), and also regulates the possibility of obtaining message content, a higher bar emerges, which is supplemented by the condition that the party requesting the order must indicate “specific and articulate facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”. On its face, the American standard does not limit the nature and gravity of the investigation but it does appear that, like in the Israeli Act as we described above, it is necessary that the information is sought for a concrete investigation. Canadian law, on the other hand, permits granting a judicial order when only two requirements are fulfilled – other means of investigation cannot be used (or they have been attempted and failed); and the order “would be in the best interests of the administration of justice” (see the Criminal Code of Canada, §186(1)(a)), namely in circumstances where granting the order will best serve justice.

 

Application of the Arrangement in Section 3 to Offenses of the Misdemeanor Type

 

18.       As mentioned, the petitioners’ second argument is that the Act as a whole – and section 3 in particular – should be applied to offenses that are defined by the Israeli Penal Law as “felonies” but not to those defined as “misdemeanors”. As this argument goes, and reiterated in both petitions as well as in the position of the Press Council, offenses of the “misdemeanor” type extend over a wide range, a substantial proportion of which are not sufficiently serious to justify the infringing measures in the Act. Consequently, according to the argument, granting sweeping power in the Act to obtain a judicial order for all misdemeanors, without drawing lines based on the seriousness of the offense, is sweeping and not proportional. In support of this argument, the petitioners referred to the Secret Monitoring Act, which restricts the exercise of the power prescribed in it to felonies.

 

The State for its part does not believe that the petitioners’ arguments in this regard justify amending the Act, let alone striking it down . In its introduction, the State explains that many misdemeanors are serious, very common offenses that affect the quality and integrity of life in the country. Thus, for example, the State mentioned that these offenses include assault, fraud, forgery, breach of trust, computer hacking, sexual harassment, harassment by telecommunications device, obstruction of justice, witness harassment, giving information to the enemy, threats, negligent homicide and more. Serious misdemeanors are included in the Military Justice Act as well. The State therefore asserted that granting the relief sought and precluding investigatory authorities from obtaining communications data for misdemeanors would significantly impair their ability to perform their duties. Additionally, the State explained that there are misdemeanors that cannot be investigated without communications data, such as sexual harassment by a computer or telephone. The State also reiterated its position that the infringement caused by obtaining communications data is far reduced compared to that caused by other investigatory means, including secret monitoring. Therefore, according to the State, there is no justification for imposing a limitation based on the gravity of the offense, as prescribed in the Secret Monitoring Act. After all that, the State again emphasized that the Act prescribes many mechanisms intended to prevent its improper exercise, including for misdemeanors that do not justify it – from the detailed mechanism for submitting motions, through a court’s role in authorizations, to the mechanism for reviewing the Act’s implementation through reports to the Knesset and the Attorney General.

 

19.       The Penal Law, 5737-1977 (hereinafter: “the Penal Law”) prescribes in its definitions section that a misdemeanor is:

 

“An offense punishable by no less than three months’ imprisonment, but no more than three years imprisonment; and if the penalty is a fine – a fine higher than the fine that may be imposed for an offense punishable by fine the amount of which has not been determined ”.

 

            This definition applies to many of the offenses on the Israeli law books and it means that investigatory authorities’ powers under the Communications Data Act cover a wide range of offenses, the severity of which varies. Consequently, the petitioners’ argument that a sweeping application of section 3, without requiring authorities to consider the gravity of the offense, could indicate a disproportionate infringement on the right to privacy is understandable. In view of this, we somewhat hesitated as to whether it is indeed justified to leave misdemeanors to the sweeping application of section 3 or whether in this case as well the section should be narrowly interpreted so that only when particularly serious misdemeanors are concerned or where communications data is an inherent element of the offense (for example computer hacking) will it be possible to request the court for such an order.

 

            Ultimately, we reached the overall conclusion that this aspect does not warrant our intervention and that this arrangement meets the requirements of proportionality. To be specific, regarding the first requirement of proportionality, there is no question that there is a rational relationship between the means and the end because including misdemeanors would significantly help the Police achieve legislative intent and it would appear that their blanket removal would likely impair that ability. Nevertheless, as mentioned, here again the second requirement of proportionality raises difficulties because on its face, limiting the types of misdemeanor to which the arrangement applies similarly achieves the end but nevertheless reduces the infringement on the right to privacy. The position of the State in this respect is based on the nature of requests under section 3. According to the State, there is no justification for making a formal distinction between different types of misdemeanors for the purpose of applying the Act and the focus should be on the need for the request. To that end, according to the State, the Act establishes balances and checks that do not consider obtaining communications data as trivial but present a detailed mechanism for submitting the request. Moreover, as mentioned, these requests are submitted merely for the court’s approval and the court must review all the relevant aspects, including whether obtaining the data in order to detect the concrete offense infringes the right to privacy beyond that necessary. Again, the array of reports to the Knesset and the Attorney General should ensure that the arrangement is only used when appropriate.

 

Under the circumstances, it appears to us that the mechanisms in the Act – and especially the motion’s judicial review – may certainly provide at this time an adequate resolution for the petitioners’ concern as to the arrangement’s improper use. It should be added that according to the reports that were submitted to the Knesset in 2009 and 2010 as to the implementation, 60% to 70% of the motions for a judicial order were made and approved regarding felonies. As regards misdemeanors for which a judicial order was sought, it appears that between July 2009 and June 2010, a substantial proportion of the offenses would apparently have been considered by the petitioners, too, as “serious offenses”, including threats, theft, negligent homicide, harassment, arson, killing, vandalism, causing damage and more. These data indicate, on their face, that in the implementation of section 3 in terms of misdemeanors is not treated lightly and the data above certainly do not demonstrate the alleged disproportionality resulting from including misdemeanors under the section. Under the circumstances, and considering the restraint that we exercise in intervening in legislation, we have not found it justified for us to intervene in this determination by the legislature. Nevertheless, there is no doubt that the courts that grant the various motions are tasked with considerable work – to ensure the Communications Data Act is used solely in the cases where it is necessary according to the interpretation adopted above. In this respect it is clear that courts would have to analyze whether the nature of the offenses for which the orders are sought necessitate exercising the powers granted by the Act in light of the privacy infringements they cause. Courts would also have to consider the possibility that the extent of infringement by one type of data might be greater than another.

 

Apt in this respect is the Canadian Supreme Court’s ruling in R. v. Araujo [2000] 2 SCR 992, Par. 29, which our courts should also apply as a point of departure when considering various different motions to obtain data under the Act:

 

            “The authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.

 

The judge should not view himself or herself as a mere rubber stamp… The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. The judge should remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies.”

 

As stated there, judges are duty-bound to safeguard the Act and the protection of privacy, and they must bear in mind that the State’s citizens should be protected against a fishing expedition conducted by law enforcement agencies.

 

Assuming that this power will be exercised only when appropriate, we believe that the arrangement that covers misdemeanours also meets the third criterion of proportionality because the infringement to privacy caused by its application is in proper proportion to the benefit from exercising the authorities the Acts grants.  

 

20.       It appears, regarding the types of offense that justify obtaining communications data, different legal systems have adopted different arrangements that are essentially based on the same principles. Thus, for example, it seems the American legislature did not see fit to limit the power to obtain data along the “ordinary” track – by judicial order under chapter 18 of the USC – to a particular type of offense. In English law, too, there is no such restriction and the grounds permitting obtaining communications data are, as mentioned, broader. It should nevertheless be noted that English law does define “serious crime”, but solely in the context of obtaining content data. According to the definition, a serious crime is one that carries, for an adult without relevant previous convictions, an expected sentence of at least three years imprisonment. It is also a crime committed in collusion, a crime committed with the use of violence or a crime leading to substantial financial gain. Hence, it appears that the English legislature also prescribed a threshold for the definition of a “serious crime” that does not make do with defining the offense according to the likely penalty for it, but also takes into account the circumstances in which it is committed. This substantive view with regard to the offense and its gravity is similar to the State of Israel’s position regarding cases in which it could be appropriate to act according to the arrangement in section 3. On the other hand, Canadian law, which regulates the issue through the Canadian Criminal Code, details a very extensive list of various offenses defined as serious. The Canadian list includes more than 100 offenses (see section 183 of the Criminal Code). Hence, we again see that different countries have prescribed different arrangements as to the types of offenses resulted in requests for obtaining communications data. We can infer from this that it is at least possible to articulate several means that achieve the purpose in the same way and it clearly cannot be said that the Israeli arrangement goes beyond those applied in countries with a similar constitutional regime. The arrangement therefore does not exceed the bounds of proportionality so that they justify the Court’s intervention.

 

21.       Consequently, regarding section 3, we have reached the overall conclusion that subject to our interpretation of above observations, the arrangement in section 3 meets the requirement of proportionality and we have therefore not found there is constitutional grounds for our intervention.

 

Section 4 – Administrative Order

 

22.       Section 4 of the Act prescribes a different arrangement that does not condition obtaining communications data upon a judicial order. Instead it allows investigatory authorities to obtain communications data in urgent cases through an order from a professional entity (hereinafter: “the administrative arrangement”). The language of the section is as follows:

 

“Permit to Obtain Communications Data in Urgent Cases

 

4.         (a)         A competent officer may – at the request of a policeman or military policeman, as the case may be – grant a permit to obtain communications data from a telecommunications licensee’s database without a court order under section 3, if he is satisfied that, in order to prevent an offense that is a felony, to detect its perpetrator or to save human life, it is necessary to obtain the said communications data without delay and that an order under section 3 cannot be obtained in time.”

 

            According to the petitioners, the arrangement in section 4 is disproportionate because it permits an administrative – rather than judicial – entity to issue an order that enables a serious infringement of privacy without the restrictions imposed on courts by section 3, especially in terms of professionals. The petitioners, who are also joined by the Press Council in this respect, focus their arguments on the following two. Their first argument is that the investigatory authorities’ power to obtain the communications data of professionals, especially journalists and attorneys, by administrative order is not proportionate. This is essentially because that power is not subject to restrictions similar to those the Act imposes on communications data orders regarding professionals because section 4 – unlike section 3 – does not refer at all to the aspects relating to obtaining an order in urgent cases when professionals are involved. According to the argument, enabling an administrative entity to infringe legal privilege without a judicial order is not proportionate. These arguments were presented to us by the entities that represent such professionals. As metioned, the Israel Bar filed a petition addressing the alleged damage to lawyers’ occupation because this compromises attorney-client privilege. The Press Council joined the general petition as amicus curiae and presented its arguments as to the likely damage to journalists’ occupation caused by section 4, in light of the potential exposure of journalists’ sources. The Press Council applied to the Court for the principal relief of an order striking down section 4 in terms of journalists so that a motion for obtaining communications data of journalists would be only allowed under the mechanism set in section 3(b) of the Act, namely by a judicial order alone, and only if there are grounds to suspect the journalist is involved in an offense. The other argument against the arrangement in section 4 made during the hearing concerned the method of implementing the arrangement and its alleged excessive use. In this context it was also argued that judicial and administrative review of investigatory authorities’ exercise of their powers under the arrangement is deficient.

 

23.       The State asserted in response that the benefit of this arrangement exceeds the infringement of the right to privacy caused by obtaining communications data urgently without a judicial order. According to the State, the need to save lives or immediately detect offenders at the crime scene does, in urgent cases, justify forgoing judicial review facilitated by a court procedure as provided in section 3 addressing the population as a whole, without having to make a specific distinction in the case of professionals. As appears from the State’s reply “the urgent cases which section 4 addresses are extreme… in cases of saving life, in urgent cases of solving a crime when the professional is the victim of a felony or is missing and must be found urgently, where it is necessary to obtain the professional’s communications data in order to prevent a felony of which he is suspected and other urgent cases of similar nature” (see para. 61 of the State’s reply of May 22, 2008). Moreover, the State asserted that the urgent arrangement is applied sparingly and limitedly according to relevant Police procedures. As discussed, on February 16, 2009 the State furnished for our review the Police procedure that regulates the Act’s application, formulated after the Act came into effect. The procedure is based on section 4(f) of the Act, which provides that “the Inspector General … shall ... prescribe provisions for the purpose of this section, including how the permit is granted … and may prescribe different provisions according to the grounds for granting the permit and the circumstances in which it is granted.” The procedure emphasizes and clarifies the Act and limits the competent officer’s discretion in two significant respects. Thus, in terms of the factors the competent officer must consider before authorizing obtaining communications data without a judicial order, the procedure replicates the factors the officer must consider before applying for a judicial order. It then adds other factors as to the existence of an urgent need to prevent an offense, to detect its perpetrator, or to save human life. These factors also include the type of communications data sought, the severity of the offense and the extent of the damage to those who are not suspects.

 

            As to professionals, the procedure distinguishes between journalists and others referenced in the procedure: lawyers, doctors, social workers, clergymen, psychologists, government ministers and Knesset member. In regard to urgently obtaining professionals’ communications data, the procedure mandates that: “if the subscriber is a professional, that should be specifically taken into account and the necessary balance should be made between the possibility of infringing the professional’s privilege and the benefit that the communications data might have in the specific investigation, factoring in the seriousness of the offense, the circumstances of its commission, the likelihood the communications data will indeed lead to discovering the truth and detecting the offenders” (para. 7B(4) of the procedure). Regarding journalists the procedure lays down a narrower arrangement, providing that “insofar as it is known that the subscriber is a journalist, who is neither suspected of the offense nor the victim, the competent officer shall not authorize obtaining their communications data or the traffic data type (a list of incoming and outgoing calls).” This distinction is inter alia based on the State’s position, as detailed above, according to which, but for journalists, in the absence of power to obtain the content of calls the Communications Data Act does not infringe the various different professional privileges. Nevertheless, the State agrees the different privileges in the context of making a decision to grant an administrative order must be considered, and this is within the competent officer’s discretion. According to this set of balances, the State believes that under the circumstances the arrangement is proper and proportional.

 

(a)     Is the Arrangement Prescribed in Section 4 Proportional?

 

24.       On the face of it, it is clear that the arrangement in section 4 is narrower than that prescribed in section 3. Thus, it applies only to offenses of the felony type and it is plain from its wording – and the State also elucidated the same in its reply – that it applies in concrete cases in which there is an urgent need to prevent an offense, detect a perpetrator or save human life. Our interpretive finding, that the provisions of the Act do not grant power to obtain an order in circumstances where the order is sought for general intelligence activity detecting offenses, therefore also applies to section 4. That is indeed the proper interpretation of the section. Moreover, section 4 permits only the Police or the Military Police CID, and no other investigatory authorities, to obtain communications data urgently, and it is effective only for 24 hours.

 

            Nevertheless, the arrangement extends the power of investigatory authorities to obtain communications data without a judicial order. Thus, for example, until the Act became effective, the investigatory authorities followed the Attorney General’s Directive 4.210 (90.013) (The Delivery of Information by Telephone Companies to Entities Having Investigatory Authority), which provides that without a judicial order communications data (other than the name, address or telephone number of the subscriber) cannot be obtained, unless the defense of necessity applies in the particular case. This threshold, which required immediate, urgent danger that justifies obtaining communications data, has been lowered in the current arrangement. Moreover, the arrangement lacks section 3’s restrictions to discretion, particularly the restriction on transferring professionals’ communications data. According to this arrangement, as set in the Act, it is prima facie possible to transfer a professional’s communications data without any restriction when authorized by a competent officer, who is satisfied there is an urgent need to do so. These restrictions, albeit not in full, do appear in the Police procedure that regulates both the competent officer’s discretion to authorize administrative permits and the obtaining of professionals’ communications data.

 

            The petitioners’ arguments in this context reflect both aspects. The first aspect is at the level of the administrative discretion. In this respect the petitioners argued that restrictions in addition to those specifically mentioned in section 4 should be imposed on how the administrative discretion is exercised. The other aspect, according to the argument, concerns the Act’s actual infringement on the various different privileges.

 

25.       The point of departure necessary for reviewing the proportionality of the arrangement is based on our above finding that, in general – apart from in the case of journalists – the Communications Data Act does not infringe the various different professional privileges. This is considering the scope and extent of those privileges as recognized by Israeli law, compared to the data that can be obtained by applying the Act’s arrangements. In the absence of such infringement, prima facie it cannot be said that because section 4 does not refer to professionals per se it must be struck down for unconstitutionality. This is reinforced especially because the purposes of sections 3 and 4 are not the same. While section 3 is intended to enable obtaining communications data in the cases detailed in the section, which by their nature give the authorities adequate time to turn to a court, section 4 is designed to give the Israel Police and the Military Police CID a tool for cases where there is an urgent need, that cannot be delayed, to obtain the data without approaching a court. This distinction between the purpose of the sections can on its face also justify a distinction regarding professionals so that where there is urgent need, for example in life-threatening cases or because of the gravity of the matter, the weight attributed to protecting their privacy would be diminished. For such cases, it is difficult to say that the mere absence of an express provision of the Act relating to professionals amounts to a constitutional flaw that justifies our intervention.

 

26.       Nevertheless, despite the arrangements’ different purposes, we cannot help but wonder why the legislature saw fit to set out such a detailed arrangement in section 3, which delineates how the discretion of administrative authorities and courts dealing with applications to obtain data must be exercised, while in section 4, which concerns only how administrative authorities’ discretion must be exercised, there is no similar detail whatsoever. We have not been satisfied, nor has it been pleaded to us, that there is any particular difficulty in establishing more detailed guiding criteria in section 4 as well, to give proper weight to its different purpose. Thus, for example, in the case of professionals, section 3 provides that “the court shall not permit obtaining communications data… unless it is satisfied, on the basis of clear details to such effect in the motion, that there are grounds to suspect that the professional is involved in the offense for which the motion was filed.” As aforesaid, in view of the difference between the arrangements, we have not found that the legislature was required to prescribe identical arrangements. Nevertheless, along the lines of the legislature’s provision in section 3, it would be proper, while exercising power section 4 of the Act grants, that the authority considered that the subscriber is a professional and decides whether it is appropriate to obtain communications data in such case considering the proper balance between the privacy infringement and the urgent need to obtain the data. The considerations should also include the reservations required by the fact that the details sought involve professionals who have a special interest in not disclosing the data. In this context the authority clearly could also consider whether it is appropriate to order obtaining communications data even where the professional is not involved in the offense.

 

            The Act’s language certainly does not limit such an interpretation regarding how the power granted by section 4 of the Act must be exercised. It is also consistent with the particular purpose of the arrangement because it does not preclude the issue of an appropriate order in urgent situations in terms of anyone, depending on the competent authority’s needs. It is also such as to create internal harmony between the Act’s sections by attaching greater weight to the duty to consider the right to privacy when professionals are involved, along the lines of the legislature’s own determination in section 3. In addition, this interpretation achieves the general legislative intent because it gives greater weight to the constitutional right to privacy. This interpretation thereby constitutes the least restrictive means, while achieving the arrangement’s legislative intent in a similar way. Consequently, it appears to us that this interpretation is the proper one regarding how the authority should exercise its power under section 4.

 

            It should be noted that this is in fact apt not only as to professionals, but also as to the overall aspects emerging from section 3 and the restrictions on judicial discretion that the legislature mandated in it and which should of course also guide the administrative authority when exercising its power under the arrangement in section 4. In fact, the restrictions section 3 imposes can be viewed as part of the overall relevant considerations that must come into account when exercising the powers granted by the Act, in light of the arrangements’ different purposes. This aspect in fact mirrors the axiom of administrative law that an authority must exercise its power while weighing all relevant factors and ignore improper factors (Daphne Barak-Erez, Administrative Law vol. II 642 (5770); HCJ 953/87, Poraz v. Shlomo Lahat, Mayor of Tel Aviv – Jaffa, IsrSC 42(2) 309, 324 (1988)). Thus, for example, alongside the special reference to professionals that we have discussed at length, it appears that before deciding to permit obtaining communications data, the type of communications data sought, the extent of the infringement to anyone not suspected, the gravity of the offense, the urgency and the ability to take the judicial track under section 3, and which option should be given first preference are, among others, the factors to be considered. Let there be no doubt that in light of the differences in circumstances around implementing the arrangements, the authority need not attribute similar weight to each of these considerations, and the decision should be made in light of the particular circumstances of the case. Nevertheless, it does appear exercising the power under section 4 is subject to particularly strict review of all the above factors.

 

27.       It appears the State, too, accepts this approach as to how the power under section 4 must be exercised in terms of professionals – and generally. Thus, it asserts in its reply that the administrative arrangement in section 4 was essentially designed to be used in extreme cases where the professional is the victim of an offense or suspected of a felony, or in extreme cases of saving life. Given that, it appears that the State also believes that the difference between the restrictions imposed by the arrangement in section 3 and those imposed on the party seeking to obtain data under section 4 is not so great. Bear in mind that the petitioners’ basic argument is that section 4 is disproportional because it does not prescribe conditions similar to those in section 3 of the Act. Consequently, given to the proper interpretation which requires exercising discretion in a way that considers all the factors necessitating obtaining communications data, and in light of the State’s position as to how that principle should apply, it appears the argument regarding section 4’s disproportionality fails.

 

            As discussed, the administrative arrangement’s purpose – saving human life, preventing serious crimes of the felony type or quickly detecting an offender who has committed a felony – is achieved through this tool, which prevents having to approach a court and awaiting a judicial order. This tool is of course restricted and clearly should only be used where “the main road” – seeking a judicial order under section 3 – cannot be followed. Thus it appears there is a rational connection between the means and the end and that the arrangement would only be implemented where the end cannot be achieved by other means. This is where the very court proceeding makes the Police unable to obtain communications data “in real time”, in very urgent cases that necessitate doing so. Even when approaching a court can be done as quickly as possible, the same speed as when a competent officer who is always accessible and whose authority to obtain communications data immediate, is impossible. The State’s examples as to the cases where this procedure is used demonstrate this. At the same time, it also appears the Police acknowledges the potential privacy infringement the administrative procedure causes and the proper interpretation as to the exercise of the power as found here, which also appears to be accepted by the State, therefore further limiting the competent officer’s discretion. These restrictions, and paying strict attention to applying the administrative process only in serious, urgent cases, in our opinion reflects a proper balance between infringing the right to privacy and the need for Police immediate action.

 

            This approach as to how the power granted by section 4 should be exercised is also reflected in the Police procedure, which, according to the Police, achieves the proper balance between infringing privacy and the purpose of obtaining the order under section 4. Regarding professionals, and how we believe the power must be exercised, the procedure emphasizes the importance of safeguarding their privacy and the privacy of their clients, and it requires the competent officer to carefully examine the need for administrative order, considering the gravity of the offense, the circumstances of its commission, and the likelihood that communications data would indeed result in detecting the truth and discovering offenders. Nevertheless, the procedure does not apply all the restrictions prescribed in section 3 and does not limit the use of administrative order for professionals solely to cases where they are involved in an offense – except in the case of journalists. As mentioned, in our opinion, the purpose of the arrangement in section 4 is not the same as that of section 3 and the arrangements therefore need not be identical. This difference is, as noted, found in how some aspects of section 4 are narrow compared to section 3. As mentioned, including restrictions in the procedure does not demonstrate their proper interpretation as to the exercise of the power in section 4. However, the procedure does express the authority’s position in this respect and this is coupled with the overall factors leading to the conclusion that our above interpretation is the proper one.

 

            In light of all the above and the legislative intent behind section 4, recognizing the importance of cases where an urgent need can justify infringing professional privilege, and considering the limited infringement of privilege obtaining the data that the Act permits causes in any event, it appears to us that the arrangement in section 4, as written, given its proper interpretation, which requires considering the issue of professional privilege and other aspects as mentioned, does not require additional legislative restriction over the authority’s power in this context. This arrangement, which appears in the Police procedure too, therefore expresses in our opinion the proper equilibrium between protecting the right to privacy and the sometimes urgent need to obtain communications data, and as such we have found that it meets the criteria of proportionality.

 

28.       As we have mentioned above, and as noted that the State agrees with this approach, different treatment of the journalist’s privilege is appropriate. The State was therefore correct in prescribing special conditions for journalists in the procedure. As mentioned, according to the procedure, if the subscriber is a journalist who is neither suspected nor the victim of the offense, the competent officer will not authorize obtaining communications data of the traffic data type. In this way the journalist’s privilege has special protection in the procedure. Nevertheless, in cases in which the journalist’s life is at risk or in which the journalist is himself suspected of offenses – and it should be borne in mind that only offenses of the felony type are relevant – and in exceptional circumstances when because of their urgency it is impossible to approach a court to obtain a judicial order, it is indeed appropriate to permit obtaining a journalist’s communications data, even if this might be at the cost of infringing a source’s privilege. In such circumstances we do not believe there is any foundation to the argument that infringing the journalist’s privilege is disproportional. Here again it should be borne in mind that the procedure reflects how the authority interprets the Act in terms of journalists. As said above, through our interpretive work, the interpreter may refer – amongst the other sources available to him in understanding the legislative intent and its proper interpretation – to the information in the possession of the executive authority, as revealed by its secondary legislation (see Legislative Interpretation 346, 800-802). This information does not of course obligate the court insofar that it believes there is a more proper interpretation for the statute. But it can help in making the interpretation and ascertaining the purpose of the legislation (see HCJ 142/89, Tnuat Laor v. The Chairman of the Knesset, IsrSC 44(3) 529, 550 (1990)). In the instant case it appears that although there is no relevant secondary legislation and the procedure has inferior normative standing, the procedure indicates that the executive sees the purpose of the Act and the interpretation it adopted for it is consistent with the interpretation we stated above. In the circumstances, it appears the proper interpretation is the one the State follows and thus, too, it ought to be adopted.

 

29.       To complete the picture, we would mention that English law has an arrangement similar to that emerging from the Israeli procedure. There, the different treatment of professionals in gathering communications data is also regulated in a procedure, rather than a statute (Interception of Communications: Code of Practice (London, 2002)). There, too, sections 3.2 and 3.9 of the procedure provide that when permitting access to the communications data of anyone not directly linked to the data sought, the utmost care must be taken, especially where the information infringes legally recognized privilege or the data is personal, which by its nature is generally kept private or confidential. Section 3.2 of the procedure provides as follows:

 

“Confidential Information

      

3.2       Particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic material…

 

For example, extra consideration should be given where interception might involve communications between a minister of religion and an individual relating to the latter’s spiritual welfare, or where matters of medical or journalistic confidentiality or legal privilege may be involved”.

 

            Nevertheless, the statute and procedure there do not prohibit transferring data despite these privileges (even for journalistic privilege). Transferring such data is subject to the doctrine of proportionality, which as an overarching principle covers all the arrangements in the statute (see section 5 of the procedure). In this respect it should be noted that the English procedure was approved by Parliament. Again, Canadian law, in which the treatment of communications data is regulated by the Criminal Code, permits access to the communications data of practicing lawyers through a judicial order but only in circumstances where the lawyer himself is involved in the investigated offense or is likely to be its victim (section 186 of the Canadian Criminal Code). The Canadian arrangement is thereby similar to that prescribed in section 3 of the Israeli Law and also to a large extent, as in the interpretation adopted by us, to the way in which the arrangement in section 4 is applied to professionals.

 

30.       As mentioned, we were not originally satisfied in light of the specific purpose of section 4 and the limited potential infringement of privilege of most professionals caused by obtaining the data the Act permits, the section’s lack of specific reference to professionals does not indicate a lack of proportionality. A fortiori the same is the case in view of the section’s proper interpretation as to cases where section 4, whose arrangement is also acceptable to the State, should be applied. As noted, we have looked at journalists somewhat differently but it does appear the special treatment to the procedure affords journalists does in fact express the proper interpretation of section 4 in their regard. In view of all this, we have reached the overall conclusion that the arrangement is proportional and properly balances the purposes of the Act and the infringement to the right to privacy. Here again, like our process of interpreting section 3, we view the Police procedure and the restrictions imposed by it as reflecting the Act’s proper interpretation. This interpretation is consistent, as said, with the Act’s language and achieves its purposes. This interpretation is also consistent with the basic concepts of our legal system and our duty to exercise judicial restraint in intervening in the Knesset’s legislation. We have therefore considered it proper to adopt it  (compare: HCJ 1911/03, The Association for Civil Rights v. The Minister of Finance, (unpublished, November 12, 2003)).

 

            We would mention that we have not ignored the petitioners’ claim that the State could change the procedure or even revoke it completely. We have also considered the petitioners’ assertion that the procedure cannot “cure” a constitutional flaw in the Act, insofar as such flaw exists. Nevertheless, in view of our finding that section 4’s proper interpretation and its detailed reflection in the procedure the State presented, we do not believe that there is cause for us to intervene in the statutory arrangement as it is written. Naturally, a change in the authority’s conduct could also lead to a material change in the balance embodied in the Act. Such a change would give rise to new cause to challenge the Act, certainly at the administrative level and perhaps even the constitutional level. However we must not get ahead of ourselves and we can only assume that the administrative arrangement will be implemented according to the proper interpretation – sparingly, in extreme cases, for the purpose of dealing with offenses that necessitate so and only where urgency makes it clear that it would be impossible to obtain a court order under section 3. This is when the reasons for not approaching a court are circumstances relating to saving life or other serious circumstances, all considering a variety of factors, including the fact that the subscriber is a professional, the extent of his involvement in the offense, and the type of data sought, etc.

 

            It should nevertheless be noted, to complete the picture, that the other legally empowered authorities have not produced procedures to us that are similar to the Police procedure concerning the way they exercise these powers. The Military Police CID has a duty to prescribe such procedures under section 4(f) of the Act. In light of our findings as to the proper interpretation of how the Act’s powers must be exercised, and its compliance with the principles delineated in the Police procedure, we assume that the other authorities that operate under the Act will not exercise their statutory powers without applying similar criteria for exercising the authorities in the Act and formulating appropriate criteria to regulate those aspects.

 

(b)       The Act’s Practical Application

 

31.       In the time when the petitions were pending, the petitioners added to their case another claim essentially concerning the implementation of the Act in the years before it came into effect. At the heart of this argument was the petitioners’ concern that the investigatory authorities would exploit the powers granted by the Act where they could employ other less restrictive means. To support these arguments, the petitioners analyzed the data produced by the State about the extent of the Act’s use, which according to them demonstrate that the powers the Act has granted hare overused. Although the petitioners sought to establish constitutional cause to strike down the Act, it appears the argument is ultimately on an administrative law level, and challenges upon whom powers conferred by the Act are exercised. The petitioners therefore sought to show a flaw in the authorities’ discretion in implementing the Act or at least to express concern in how the discretion will in the future be exercised.

 

32.       From the material before us, it does indeed appear the petitioners are not the only ones concerned about the extent to which the powers the Act grants are exercised. The Constitutional Committee, which debated a motion to approve regulations of the database under section 6 of the Act, also expressed similar concern to the Police. This emerges, for example, from studying the transcripts of the proceedings of the Constitution, Law and Justice Committee dated August 13 and November 9, 2008, during which then chair of the Committee, Professor Menachem Ben Sasson, expressed his opinion that the Act should be interpreted narrowly. Concern was also expressed that the Police might use its powers under the Act excessively. The Constitution Committee of the current Knesset, headed by MK David Rotem, which met on February 2, 2010 in order to follow up the Act’s implementation, also emphasized the importance of correctly and cautiously using the tools the Act provides.

 

            The petitioners, for their part, used the concerns the Constitution Committee expressed on August 13, 2008 to support their position on the use of the Act’s powers and asserted these concerns demonstrate that the Israel Police contravened Act’s provisions. The State, in its replies, explained that the concerns raised in the Constitution Committee’s 2008 debates were essentially about mishaps resulting from the fact that the Act’s implementation was in its early days. Additionally, the State strongly rejected the petitioners’ arguments that the Police contravened the Act’s provisions.

 

            As to the actual use figures, the State presented us with very little data, which related solely to the use of section 4 of the Act (an administrative order) from its effect date (in June 2008) until the end of 2008. Those data shows that a total of 546 permits were sought in cases of life-saving, 85 in the prevention of future felonies and 124 permits were to detect perpetrators of felonies that had already been committed.

 

Nevertheless, studying the Constitution Committee’s portal on the Knesset website shows that to date various authorities have submitted two annual reports to the Committee according to the Act (available at http://www.knesset.gov.il/huka/FollowUpLaw_2.asp). The first report, filed by the Israel Police, is relevant to the period between June 27, 2008 and June 30, 2009. This report shows that 9,603 motions were filed and granted under section 3 of the Act (a judicial order). Of them, 9,227 were motions for detection and investigation of offenders, 252 were for saving of human life, and 124 were for seizure of property. The breakdown between felonies and misdemeanors is unclear. Nevertheless, a supplement submitted to the chair of the Constitution Committee on February 1, 2010, shows that as in 2009, more than 60% of the total offenses for which an order was sought were felonies. On the other hand, the Police’s second report, which was relevant to the period between July 1, 2009 and June 30, 2010, reveals that 14,133 motions were filed under section 3, namely an increase of about 4,500 (or approximately 50%). Of the motions filed in that period, 13,946 were for the purpose of detecting offenders and investigating offenses, 185 for the purpose of saving human life and two for seizure of property. Of the total offenses for which the order was sought, 71% were felonies.

 

            According to section 4 the Act (an administrative order) the first report reflects that 2,031 urgent permits were sought. 1,513 were for the purpose of saving human life and 518 for the purpose of preventing a felony and detecting the perpetrator of an offense. The second report reflects that under this section 3,039 applications were made, namely an increase of about 1,000 (a rise of approximately 50%). 2,192 were for saving human life and 847 were for preventing a felony and detecting a perpetrator. Data were not produced as to the orders sought for professionals. Hence, it appears that there was a significant increase in the Israel Police’s use of the Act.

 

            As regards the Military Police CID, The first report indicates that between November 1, 2008 and November 3, 2009, 1,381 motions for orders in under section 3 were filed, the majority for detecting and preventing offenses, conducting investigations, detecting offenders and their prosecution. The second report that was furnished by the Military Police CID relates to a shorter period from January 1, 2010 to July 1, 2010, and it indicates that 703 motions were filed to obtain orders under section 3. These included 38 motions for the purpose of saving or protecting human life, 340 for detecting, investigating or preventing offenses, 325 for detecting and prosecuting offenders and none for seizing property. It appears that on average there was no change in the total motions the Military Police CID filed under section 3.

 

            In respect to motions under section 4, it seems that on average there was some  increase in their number. While the first report states that 58 administrative requests were approved, including 6 cases for urgent policing, 4 cases for urgent investigatory purposes to prevent a crime and in 48 cases for the purpose of saving human life, the second report (relating, as mentioned, to only seven months) stated that 44 requests were filed, in six cases for urgent investigatory purposes to prevent an offense, 37 cases for saving human life and 1 for urgent policing purposes.

 

Reports were also received from the other authorities granted powers under section 3 of the Act. The data of the Tax Authority shows that between July 2008 and July 2009, 146 motions were filed under section 3, of which 145 were approved. Between July 2009 and June 2010 the number of motions doubled to 318. The Police Internal Investigations Department filed 388 motions between June 2008 and June 2009. The Police Internal Investigations Department filed 406 motions between June 1, 2009 and May 31, 2010. 44% of the motions were for felonies and 56% related to misdemeanors. The Antitrust Authority filed motions for 4 orders in the period between June 27, 2008 and June 16, 2010. Until June 2009 the Securities Authority obtained 13 orders; between July 2009 and June 2010 it obtained 12 orders, including 3 relating to people with professional privilege. Between June 2010 and June 2011, 19 orders were issued, including 2 relating to people with professional privilege.

 

33.       All the above figures reveal only a partial picture. On the one hand, it appears, prima facie, that some authorities, especially the Israel Police, have significantly increased their use of their powers under the Law – both section 3 and section 4. On the other hand, we have no explanation as to the change in the total use of the Act’s powers, which could actually be justified. In any event, in the current circumstances we do not see it necessary to review these aspects further. This is first because in practice all the petitioners’ arguments in this respect concern aspects of the Act’s implementation which do not, certainly not directly, go to the matter of its constitutionality. We have indeed already held in several contexts that implementing an administrative act can raise the question of its proportionality (HCJ 9593/84, Rashad Murad v. The Commander of the IDF Forces in Judaea and Samaria (unpublished, June 26, 2006); HCJ 9961/03, The Centre for the Protection of the Individual Founded by Dr. Lotte Salzberger v. The Government of Israel (unpublished, April 5, 2011)). We have also held that the implementation of a statute can impact its meeting the proportionality criteria (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset IsrSC 61(1) 619 (2006), HCJ 6298/07, Yehuda Ressler v. The Israel Knesset (unpublished, February 21, 2012) paras. 19-22 of my opinion). Nevertheless, it appears that at the moment no justification has yet emerged for our intervention in this context. This is essentially based on the fact that the statute charges the Attorney General and the Israel Knesset with the task of reviewing the Act’s implementation. Their work in this respect is merely beginning. Nevertheless, from the material presented to us and the Israel Knesset’s position as reflected in its arguments, it appears on its face that the Knesset is acting according to its duties, and that it is aware of the concern of excessive use of, or extending, the powers under the Act to improper cases. Therefore we believe that for the time being various authorities should be permitted to do their work with the tools at their disposal. This should be coupled with the fact that our findings and the proper interpretation for the Act’s implementation would certainly help to maintain the proportionality of the authorities’ action under the Act and thus, too, all the authorities – both those that operate under the Act and those responsible for reviewing its implementation – should be permitted to create an accepted best practice routine according to the boundaries and restrictions we outlined. Under these circumstances, at the moment it is inappropriate for us to intervene in the aspects of the Act’s implementation. Hopefully there will be no need for us to consider them in the future either. Nonetheless, we have not overlooked the fact that the duty to report to the Knesset as prescribed in the Act was established as a temporary provision that is in effect only for four years from the date the Act took effect (see section 14(c) of the Act). It appears to us that because of the difficulties associated with the Act’s growing pains, which even the State does not dispute, the period of time necessary for assimilating the principles binding the authorities and the importance we attributed to the Knesset’s consistent review, it is appropriate to take action in order to extend the effect of that section. It could even be made permanent. We would also reiterate that it should not be ignored that aspects of a statute’s implementation might also affect review of its proportionality, and that the concern that the tools the Act granted be used excessively, especially given the significant increase in the number of motions filed, is real. Consequently, if in the future there is a change in the balance between the Act’s use, we do not discount the possibility the petitioners or others would once more be able to approach the Court for relief.

 

Sections 6 and 7; the Database

 

34.       Another argument by the petitioners challenges the arrangement in sections 6 and 7 of the Act, which establishes a database to be kept by the investigatory authorities (hereinafter: “the database”). These sections provide as follows:

 

“Requirement to Transfer an Information File from the Database of a Telecommunications Licensee

 

6.         (a)         The head of the Investigations and Intelligence Division may require a telecommunications license holder providing domestic landlines or mobile radio telephone services to transmit to him by computerized methods an up-to-date information file, as specified in paragraphs (1) and (2) below, which is in the licensee’s database:

 

                          (1)     Its subscriber’s identifying details, as well as the identifying numbers of his telephone devices or of any components thereof;

 

                          (2)     Information on the map of antennas which the licensee uses to provide telecommunication services by mobile radio telephone, including identifying data of each antenna and the areas it covers.

 

Keeping Information Files in a Protected Database

 

7.         (a)         An information file transferred as provided in section 6 shall be kept by the Police in a confidential database (to in this Act referred as ‘database of (communications) identification data’).

 

(b)       The database of (communications) identification data shall be kept as to ensure its protection and prevents its unauthorised use, including reading, transmitting, copying or altering the information without lawful authorization, and prevents its use in violation of this Act; acts performed in the database of (communications) identification data shall be documented as to facilitate supervision and control.

 

(c)       The database of (communications) identification data shall only be used for the purposes specified in paragraphs (1) to (4) of section 3(a)”.

 

            This reveals that the Act enables the Israel Police to require a telecommunications licensee, as defined, to transfer to it subscribers’ computerised identification data and the identifying numbers of their telephone devices (or of any components thereof). The Act also facilitates requiring information about antennas the licensee uses in providing telecommunications services. In effect, the Act permits the Police to establish a database linking one’s name with their telephone number and eliminates the need to telephone 144 service (which provides one’s telephone number according to their name or address) or the 441 service (which provides one’s name and address according to their telephone number). That said, information is kept in a confidential database and the use of that data is limited, according to section 7(c), to purposes that also warrant a judicial order, namely: saving or protecting human life, detecting, investigating and preventing offenses, detecting offenders and prosecuting them, and seizing property under the Act. It should be noted that the database does not permit keeping any data that the Israel Police is authorized to obtain under the Act. That is, it may not keep location and traffic data.

 

            We would say that on December 19, 2008, under his authority according to section 7(d) of the Act and with the Constitution Committee’s approval, the Minister of Internal Security promulgated the Criminal Procedure (Powers of Enforcement – Communications Data) (Database of Communications Identification Data) Regulations, 5769-2008 (hereinafter: “the Regulations”). These are designed to regulate the use of the database, define those authorized to access it, guide the position of database manager, and other aspects concerning its operation and maintenance and the security of the information it stores.

 

35.       The petitioners, and especially the Association for Civil Rights, do not object to the transmission of publically accessible telephone numbers to the Israel Police and other police entities. Their objection to the identification database is more specific and they request we restrict the ability to transmit identification data of anyone whose telephone number is unlisted to the database. They argue that the constitutional right to privacy, which includes the right to keep one’s “conversation confidential”, also includes the right to own a telephone number that is hidden from the public eye and the investigatory authorities. Although the petitioners do not dismiss the possibility that criminal activity will be conducted under “cover” of unlisted numbers, they maintain it is always possible to approach a court. They claim it is unnecessary to establish a database that is always open to investigatory authorities without having to obtain a court’s approval for unlisted numbers. The petitioners in fact focuses on the risk of establishing a database that includes unlisted numbers accessible to any policeman or other person who works for the investigatory authority, and on the concern about information “leaking” from the database to others – inside or outside the investigatory authority – who would use the information improperly.

 

36.       In response the State maintains first that the right to “confidential conversation” does not include the right to an unlisted telephone number, which is merely a technical possibility provided by the telephone companies as a contractual matter between them and customers. Furthermore, the state argues that even were the right to an unlisted telephone number recognized, such right does not exist vis-à-vis the investigatory and law enforcement authorities, and presumably no reasonable person really expects this to be the case. At the practical level, the State argues that even now calls made from unlisted telephone numbers to the Police call centers are not confidential to these centers. The State further warns that excluding unlisted numbers from the database that is accessible to the investigatory authorities would create a means for criminals, who wish to use unlisted numbers in criminal activity, to hide from the eyes of the Police. As to the purpose of establishing the database, the State explained that the arrangement is designed to limit the time necessary to trace a particular telephone number’s owner.  Without the arrangement embodied in the Act, investigatory authorities would have to reach out to the communications companies about any number in order to obtain the subscriber’s identification details.

 

37.       We do no see fit to accept the petitioners’ request to restrict the use of the database. We accept the State’s argument that a communication company’s commitment to the customer to provide an unlisted number does not entitle the customer to confidentiality from law enforcement authorities. Moreover, it should be borne in mind that the interpretation of the database’s use – like the use of the judicial arrangement – is narrow and restricts the investigatory authorities’ action to specific cases only, when the information in the database is required to prevent a particular crime, trace a particular offender, save or protect human life or seize property under the Act in concrete circumstances (and see section 7(c) of the Act, which refers to sections 3(a)(1) to (4)). As analyzed above, it appears that, given the Israeli constitutional system, it is improper to interpret the Act to permit using the database for Police intelligence activity generally or for infrastructure. Given this presumption, we do not consider it justified t limit the actual transmission of particular numbers to the database to enable those who wish to conceal themselves from the eyes of law enforcement authorities to do so. Consequently, the petitioners’ argument should be dismissed.

 

            As obiter dictum, we briefly refer to a new argument by the Association for Civil Rights (hereinafter: “the Association”) in its supplemental brief from November 16, 2008, which was not raised in the actual petition. As the argument goes, the Act’s infringement is aggravated due to the Police’s capability to obtain communications data automatically, without needing the communications companies’ authority, by connecting online to the cellular and Internet companies’ computers. According to the Association, section 13(b) of the Communications Act hints at this capability. The section enables the Prime Minister to prescribe security arrangements for transmitting data between security forces – including the Israel Police – and the communications companies. The Association relies on the fact that the General Security Service already uses such capability, and as support it presents the respondents’ answer in AP 890/07, The Movement for Freedom of Information v. The Ministry of Communications (unpublished, November 5, 2007). The respondents there explained there are indeed secret security appendices that regulate transmission of communications data from communications companies to the General Security Service. Nevertheless, the respondents there explained that those appendices do not regulate the General Security Service’s powers to obtain communications data but only the technical means to obtain them and that the powers to obtain the data are subject to the substantive law regulating them. In response, the State explained here that independently from how the data are transmitted – be it online in real time or by a specific motion – the accessible data would only be those permitted by the Act and its arrangements. It was further explained that the question about the technological way the data is transmitted is in any event of no constitutional significance. We have not found the Association’s argument, which was made partially and unsatisfactorily, to constitutionally justify striking down the Act. In any event, the concern the Association raised in its argument relates to the improper use of access to the data, which is facilitated through online access to the data, rather than to actually permitting access, which is restricted, as mentioned, by the Act, with the narrow interpretation that our opinion applies to them. Clearly, should the petitioners believe that the way the data are actually transferred demonstrates the Act’s implementation beyond the proper criteria outlined or should the petitioners find evidence of improper use of the means granted to the investigatory authorities, they may take the appropriate steps.

 

(b)       The Proportionality of the Law As a Whole

 

38.       We have therefore reached the conclusion that the arrangements in the Act, including the judicial arrangement, the administrative arrangement and the keeping of unlisted numbers in the database, do meet the requirements of the Limitations Clause and do not establish cause for constitutional intervention. In addition, we would further say that an overall review of the Act and all the arrangements and balances in it also leads to the conclusion that no cause for our intervention has been established.

 

            First, as stated in paragraph 25 of our opinion, the administrative arrangement in section 4 concerns only grave, urgent cases. Accordingly, the legislature has left the majority of the investigatory authorities’ actions under the Act to address by a court through the judicial arrangement. Such a balance, insofar as actually implemented according to the obligatory criteria, ensures judicial review of the majority of cases in which investigatory authorities infringe privacy by exercising powers under the Act. As discussed, the judicial authority has a weighty responsibility to insist on limited and appropriate use of the powers granted by the Act. But as discussed, the very existence of judicial review of the main procedure for obtaining data under the Act indicates its proportionality.

 

            It should be noted that the fact that “the usual course” is that which passes through the courts and that it is not self-evident that only in urgent, exceptional cases will the administrative course be used. Thus, for example, in the English law that deals with obtaining communications data, this distinction between emergencies and the ordinary course does not exist, and investigatory authorities can in all cases act through the administrative course without needing a judicial order (sections 25(1) and (2) of the RIPA). In particularly serious emergencies the authority may even act without written authorization at all – even administrative – and oral authorization is sufficient (as provided in the Regulations – section 3.56). On the other hand, the outlook of American law is closer to Israeli law and it lays down an administrative, alongside a judicial, course. As detailed above, the administrative course, which is regulated in §2703(c)2, Chapter 18 of the USC, enables the investigatory authority to obtain various types of communications data without judicial involvement. In this connection, by means of an administrative order, it is possible to obtain the subscriber’s name, address, calls documentation, means of payment and others. Beyond the data that can be obtained under this section, a judicial order is necessary (the American law distinguishes between two types of orders). It should nevertheless be noted that insofar as our examination has revealed, it appears that American law sometimes recognizes the ability to be relieved of the primary duty to approach a court and in urgent cases permits administrative orders. When the investigatory authority seeks to use surveillance devices that enable obtaining real time data of outgoing and incoming calls from an Internet or telephone communications source (pen registers/trap and trace devices), American law recognizes exceptional cases where a judicial order may be bypassed and an administrative order suffices: a risk to a person’s life or serious injury; acts suspected as organized crime; an immediate threat to a national security interest; or an attack on a protected computer. An administrative order issued according to this arrangement is only valid for 48 hours, after which the investigatory authority must request a judge’s approval again or stop using it (§3125(a) of Chapter 18 of the USC). Canadian law, too, reflects a similar approach to that of Israeli law. It provides that the usual course for obtaining communications data is by approaching a judge (sections 184 to 186 of the Canadian Criminal Code), while the administrative course is defined in Canada as an option that is available to the investigatory authorities only in rare emergencies.

 

            Second, the Law grants different powers to different investigatory authorities and delineates their use in a way that contributes to its proportionality. Thus, while all investigatory authorities addressed by the Act – the Israel Police, the Military Police CID, the Police Internal Investigations Department of the Ministry of Justice, the Securities Authority, the Antitrust Authority and the Israel Tax Authority – are authorized to use the judicial arrangement and approach a court for an order to obtain communications data, only the Police and the Military Police CID have been empowered to follow the administrative arrangement. This distinction acknowledges that alongside the importance of enabling the other investigatory authorities to perform their duties in the best way, the most “infringing” powers are to be granted to a limited group of authorities that are used to dealing with urgent cases, whose potential need of those powers is greater. In our opinion this substantially limits the potential infringement of the right to privacy.

 

            Again in this respect, the Act’s proportionality may be inferred by reviewing similar arrangements in corresponding legal systems. Thus, English law’s list of the authorities empowered to use the arrangements for access to communications data is not exhaustive. Instead, several investigatory entities are explicitly named, like the Police, the National Criminal Intelligence Service, the National Crime Unit, the Customs Authority, the Inland Revenue and also the intelligence services – and the Home Secretary is also empowered to go on to prescribe additional agencies for the purposes of the Act (see section 25 of the RIPA). It appears the powers the English law grants the various different authorities are broader than those recognized in the Communications Data Act, especially in light of the ability of the agencies mentioned to obtain communications data merely by using the administrative course, without needing a judicial order.

 

            Third, the Act’s proportionality also depends on the review to which it subjects its proper, limited implementation. This check is prescribed in section 14 regarding the Act’s general use and in sections 4(d) and (e) regarding the use of an administrative order. Section 14 mandates that the Minister responsible for the relevant investigatory authority must report to the Knesset Constitution Committee as to the use the investigatory authority for which he is responsible made of the Act, including the database. Sections 4(d) and (e) respectively provide that the competent officer who has authorized the administrative arrangement must report the order in writing; and that once every three months the head of the Israel Police Investigations and Intelligence Branch and the Commander of the Military Police CID must submit the data collected from the competent officers to the Attorney General or the Military Advocate General, as the case may be. This review is far more frequent than the review conducted by the Knesset. We would also mention that, presumably, in the course of the Attorney General’s periodic review, there will be consideration for, inter alia, reviewing the circumstances in which communications data has been obtained under section 4 and to whether it might have been possible in those circumstances to act under section 3 and obtain an appropriate judicial order.

 

            These mechanisms for review, coupled with the court’s approval of motions pursuant to section 3, make it possible to control the Act’s actual implementation and ensure the investigatory authorities limited use of the tools the Act provided them, according to the criteria detailed in our decision. Their existence makes it possible to assume that the Act’s implementation would be periodically reviewed and that problems arising in such respect, as reflected from the discussion in paragraphs 31-33, will be dealt with in the best possible way. That this control is maintained and that the supervisory entities – the Attorney General and the Constitution Committee – examine in detail the reports received and the authorities’ compliance with the guidelines deriving from our interpretation of the Act, as expressed by us above, must be guaranteed. It should be borne in mind that the Attorney General holds a special role in strictly ensuring that government authorities exercise their powers under the Act merely to the extent necessary in order to achieve its purposes, according to our interpretation in this decision and the criteria outlined in it.

 

39.       We acknowledge that a statute under review is not reviewed in a vacuum. As we have shown, the existence of the Police procedure, which should be read together with the Act, affects our perception of its implementation and the view that investigatory authorities would only use it properly and intelligently. Thus, the overall arrangements contained in it display a balanced and proportional picture of the exercise of powers it grants. In addition, the other means available to the authorities – which also infringe privacy – have an effect on our perception of the Act. As said, these means now include the capability to listen to one’s conversations, which are regulated and limited under the Secret Monitoring Law, and the ability to obtain information by implementing section 43 of the Criminal Procedure Ordinance. This means the Police, in fighting crime, has various resources that, to some extent, infringe privacy. The relevant Act joins those resources and apparently specifically within its scope the State has come a long way towards safeguarding the constitutional right to privacy. Given the restrictions detailed above we can see it as a means that does not infringe the systemic balance between the need to fight crime effectively and maintain public order, on the one hand, and the right to privacy and dignity to which everyone is entitled, on the other hand. It is to be expected that by adding more tools in the future to be available to investigatory authorities, the legislature will maintain the internal balance of each tool as well as the systemic balance, considering all the existing resources recognized by law.

 

            In this context we would also mention that the comparison with various arrangements the world’s countries have adopted must not be made in a vacuum either; rather, how the means for obtaining communications data are integrated into the general legal system should be analyzed. Thus, for example, countries where the ability to collect communications data in particular crimes is limited – like Canada and England (partially), which limit the list of offenses in different ways – at the same time make extensive access to communications data available. Thus, English law does not require authorization by a judge in order to collect communications data, and Canadian law makes obtaining communications data possible when demonstrating a vague, general cause. The comparison with different systems and their approach to the means for collecting communications data, as adduced above in the relevant contexts, leads to conclude that even were different countries to choose different balances, the balance in the Act under review is not unreasonable compared to the balances adopted in countries with similar legal systems to Israel’s, and which contend with similar challenges regarding technology, their battle against crime and in protecting privacy.

 

            In view of all the above, we have reached the overall conclusion that the Act – together with its arrangements and their interpretation in our decision – does not infringe the constitutional right to privacy to beyond necessary.

 

Inadmissibility of Evidence

 

40.       Before concluding, we believe it is appropriate to consider another issue the petitioners raised, namely the admissibility of evidence collected according to the Act in legal proceedings. The Israel Bar, which is the petitioner in HCJ 9995/08, asks that the Act stipulate that obtaining communications data in violation of the Act could not produce evidence that would be admissible in legal proceedings. Furthermore, it requests we add a requirement for the use of evidence procured through the administrative proceedings in section 4 of the Act, whereby a court would retroactively approve the competent officer’s permit before the communications data obtained through the administrative order may be used as evidence in court.

 

41.       Let it immediately be said that we do not find the petitioners’ arguments in this respect substantial and do not see fit to grant the relief sought here, for several reasons. First, we would mention as our premise that the majority of statutory arrangements in our legal system do not include specific rules for inadmissibility (see CrimA 5121/98, Private Refael Isascharov v. The Military Prosecutor, IsrSC 61(1) 461, 524-525 (2006) (hereinafter: “Isascharov”) and also compare CrimA 115/82, Heil Muadi v. State of Israel, IsrSC 38(1) 197, 262 (1984)). Consequently, the absence of an inadmissibility rule in the Communications Data Act does not per se indicate that the Act is constitutionally flawed. Moreover, we would note there are exceptions to the general rule about the lack of inadmissibility provisions in most statues in Israeli law as a limited number of statutes do include such provisions: section 32 of the Protection of Privacy Act, section 13 of the Secret Monitoring Act and sections 10A and 12 of the Evidence Ordinance [New Version], 5731-1971.

 

            As to the Protection of Privacy Act, section 32 of that law already prescribes that material unlawfully obtained while infringing privacy is inadmissible as evidence. As the section states:

 

“Material Inadmissible As Evidence

 

32.       Material obtained while committing an infringement of privacy shall not be used as evidence in court without the consent of the injured party, unless the court, for reasons which shall be recorded, permits such use or if the infringer, as a party to the proceeding, presents a defense or enjoys exemption under this Act.”

 

            Consequently, without ruling on the relationship between the inadmissibility section of the Protection of Privacy Act and conduct under the Communications Data Act, material obtained in violation of the criteria concerning the Communications Data Act might be subject to the inadmissibility provision of the Protection of Privacy Act. Insofar as the Secret Monitoring Act’s inadmissibility rule, as we have already held above, we do not find it possible to analogize between the two statutes and the fact that the Secret Monitoring Act includes a specific inadmissibility rule does not make it necessary to adopt a specific inadmissibility rule in the Communications Data Act too.

 

            Moreover, as we have already held many times in the past, since the 1980s our legal system has been marked by moving from rigid rules of admissibility towards a substantive examination of evidence. We acknowledge this approach prioritizes the court’s substantive review of evidence over disqualification. Nevertheless, this move has been tempered in recent years and because defendants’ basic rights in criminal law were increasingly recognized, a doctrine of relative inadmissibility was adopted in Isascharov. Under this doctrine a court has discretion to rule on the admissibility of evidence that has been unlawfully obtained, depending on the specific circumstances of the case. The rule in Isascharov was summed up as follows:

 

“Where in the past the case law in our legal system held that evidence admissibility is not examined by how it was obtained because the interpretive weight in such context was placed on the purpose of uncovering the truth and fighting crime, a more flexible balance is now sought. It takes into account the duty to protect the defendant’s rights and the fairness and integrity of the criminal procedure. The proper balance between all the competing values and interests in this particular respect leads to the adoption of a doctrine of relative inadmissibility, whereby a court would have discretion to rule on the admissibility of evidence that has been unlawfully obtained on the merits of the actual circumstances of every case and according to the criteria below” (Id, at 546).

 

Given this legal framework, we have, as mentioned, not considered it proper to grant the petitioners’ motions and we have certainly not found that the absence of a specific inadmissibility rule in the Act justifies constitutional intervention. Clearly, insofar as a defendant seeks to assert that material that was obtained under the Act is inadmissible evidence, he may so argue during the judicial proceedings and the court adjudicating the case would review these claims. We do not find this arrangement should be augmented by a specific provision as to evidence obtained under the Act, as opposed to any other evidence allegedly unlawfully obtained. In terms of a requirement to obtain retroactive approval of administrative orders that were duly issued under the Act, to the extent we held the Act and the procedures under it are constitutional, it is inappropriate to hold that they should be bolstered by requirements as to how investigatory authorities may use them in legal proceedings.

 

Conclusion

 

42.       The modern reality in which we live and the technological innovations that accompany it give the citizens of the world – who can afford it – means of communication that are constantly refined and that facilitate easy, quick transmission of information over great distances. On the one hand, this reality has made our world a place where a great deal of private information about the individual moves freely – frequently with the consent of that individual – in the public sphere. On the other hand, this reality has become a convenient platform for negative elements and criminals who wish to use such technology for their own purposes. Countries around the world, including Israel, have realized that these changes can be harnessed to improve their enforcement capabilities and the quality of life for their residents. The Act challenged by these petitions is Israeli law’s regulation of how law enforcement may use sophisticated technology. As discussed at length above, enforcement authorities should have appropriate tools to facilitate law enforcement in the changing reality. Additionally, undoubtedly these moves may potentially infringe greatly on residents’ privacy. This reality requires developing complex arrangements that properly weigh the overall interests at stake. Having carefully reviewed the overall arrangements of the Communications Data Act and its procedures, we have reached the overall conclusion that, considering the proper interpretation regarding the exercise of the powers the Act prescribes – an interpretation which essentially calls for limited implementation strictly when necessary – we see no cause for constitutional intervention. Nonetheless, as we have emphasized time and again, enforcement authorities are under a substantial duty to exercise their powers with prudent discretion and closest attention to the fact that the infringements caused by the Act should be executed only to the necessary extent and degree. Moreover, the Knesset and the Attorney General, who are legally charged with maintaining regular review over how much the Act is used, hold great responsibility in this respect. The same applies to courts reviewing motions for obtaining communications data under the Act. We assume, and trust, that all the authorities involved in implementing the Act will take the strictest care to ensure the powers the legislature granted them are not exercised unnecessarily and that they are used following the limiting criteria delineated in our decision.

 

For the sake of clarity, we would therefore sum up our interpretive findings regarding the Communications Data Act: first, as to the exercise of the powers in both section 3 and section 4, we held that they should be interpreted so that obtaining data under the Act is only permissible where it is necessary for a specific, concrete purpose, like an investigation of a particular occurrence regarding a specific suspect or victim, as opposed to executing the Act for general purposes of detecting offenders and preventing crime. Second, regarding exercising the power in section 4 of the Act, we held this should be interpreted so that a permit obtaining communications data is only sparingly permissible, in extreme cases, in order to deal with offenses that require it and only where because of the urgency it has become clear that it impossible to obtain a court order under section 3. This is when the reason for not approaching a court is because of circumstances involving saving life or other serious factors, always considering a range of factors, including that the subscriber is a professional, the extent of his involvement in the offense, the type of data sought, the degree of urgency, the gravity of the offense and other similar considerations. To the extent journalists are concerned, we have found that the restrictions on the use of orders, as reflected in the procedure concerning section 4, are mandated by the Act’s purpose and the balances the procedures reaches in implementation. Accordingly, when the subscriber is a journalist, who is not the victim or is not suspected of the offense, a motion under section 4 to obtain his communications data of the traffic data will not be approved.

 

43.       Given the above and subject to the restrictions and limitations outlined in this decision as to the proper exercise of powers under the Act, we found no constitutional cause for our intervention. The petitions are dismissed. In the circumstances, there will be no order for costs.

 

Justice E. Arbel

 

1.         The petition centers around the boundaries of the right to privacy as a constitutional right. Technological innovations raise concern that the State will gather and use extensive information of nationals and residents, and this requires adapting the law to this possible harm. In her opinion, the President reviews extensively and in great detail whether the balance the legislature strikes in the            Criminal Procedure (Powers of Enforcement – Communications Data) Act, 5768-2007 (hereinafter: “the Act”) meet the criteria of constitutionality according to our legal system. I agree with her unequivocal conclusion that the Act does infringe the right to privacy. Nevertheless, as stated, the Act neither permits actual listening to conversations or reading messages nor does it permit disclosure of the contents of a person’s conversations. I also agree that the Act meets the criteria of proportionality accepted in our jurisprudence and does not infringe the constitutional right to privacy to an extent beyond necessary. Constitutional cause therefore for this Court’s intervention does not arise. I believe that the inability to obtain communications data would place enforcement authorities at a disadvantage compared to offenders. I agree with my colleague the President’s interpretive findings and reasoning as to the execution of the powers under sections 3 and 4 of the Act. Nevertheless, I find it proper to add one point of reference.

 

2.         I would add what is seemingly self-evident about section 4 of the Act, which permits a competent officer to grant a permit to obtain communications data without a court order in urgent cases in order to prevent a felony, to detect its commission or to save human life, when a court order under section 3 cannot be obtained in time under the circumstances. Section 4(b) of the Act limits such permit to a period of no more than 24 hours. Nevertheless, the Act’s language does not expressly preclude the permit’s renewal by a competent officer at the end of such period or some time thereafter. In my opinion, section 4(b) should be construed as precluding that possibility and as requiring the competent authority to approach a court for an order under section 3 of the Act to the extent it is necessary after the initial period has expired – namely after 24 hours. This interpretation is warranted so that the infringement of the right to privacy does not to exceed the necessary. I would also note that it would be proper, in my opinion, to consider inferring from section 5(d) of the Secret Monitoring Law, 5739-1979 about the court’s retroactive approval of permits issued in urgent cases without a court’s approval. Although section 4 of the Act prescribes arrangements that would permit the Attorney General and the Military Advocate General’s review of that section’s application, in my opinion that is inadequate and the court’s review of the section’s implementation should also be required through retroactive approval of the permit awarded.

 

As said, I concur with the President’s comprehensive opinion and reasoning.

 

President U. Grunis

 

I agree that the petitions should be dismissed as proposed by my colleague, President (Ret.) D. Beinisch.

 

Justice M. Naor

 

I join the comprehensive opinion of my colleague, President (Ret.) D. Beinisch.

 

 

Justice E. Hayut

 

I join the opinion of my colleague the President and her conclusion that subject to the reservations detailed in her opinion as to the proper exercise of the powers granted by the Criminal Procedure (Powers of Enforcement – Communications Data) Act, 5768-2007, the Act meets the criteria of proportionality under the case law and does not infringe the right to privacy unconstitutionally.

 

Justice H. Melcer

 

1.         I join the comprehensive opinion of President (Ret.) D. Beinisch (hereinafter: “the President”) in respect to the proper constitutional interpretation of sections 3, 6 and 7 of the Criminal Procedure (Powers of Enforcement – Communications Data) Law, 5768-2007 (hereinafter: “the Communications Data Collection Act” or “the Act”). Nevertheless, I find myself at issue with the President on two matters:

 

(a)          The protection that should be given in the context of the Law to someone in respect of whom professional privilege applies by law, including case law (hereinafter: “professional privilege”); and

 

(b)         The proper constitutional interpretation of section 4 of the Act and the limitations of its deployment.

 

My opinion on both these issues is expressed below. I would immediately say that my view leads to a constitutional-interpretative conclusion that a competent officer, as defined by section 1 of the Act, cannot act under section 4 of the Act where professional privilege prima facie applies. The only way to try to obtain communications data in such situations is approaching a court and securing its authorization according to section 3 of the Act (especially section 3(b)), subject always to the provisions of law (including case law).

 

I shall now present the reasoning of my said approach and give details in order.

 

The Scope of Professional Privilege in the Context of the Communications Data Collection Act and the Constitutional Rights Involved, upon which the Privilege is Based

 

2.         The President states (at the beginning of para. 10 of her opinion) that it was held in the past that professional privileges “essentially extend to the content of the conversations between the professional and the privileged person but not to the very existence of a relationship with the professional person, and the purpose of the privilege is to allow the privileged person a realm of free communication between him and the professional.” Therefore, the President believes that the Communications Data Collection Act does not in fact infringe privilege, apart from journalistic privilege because, as she sees it, the Act in any event does not permit the obtaining of substantive data, to which the privilege applies.

 

3.         We can see that this method – which distinguishes between the conversation’s substance (which is privileged) and the information around the conversation’s existence and the identity of the parties to it, which is not privileged (according to the argument) – has a significant effect on the consequences of reviewing the whole Act because it impacts the precursory determination of the scope of the constitutional rights that are infringed by the Communications Data Collection Act. Indeed, the conclusion that the first stage of the constitutional analysis, which concerns identifying the scope and force of the constitutional right and its limits, naturally has a significant effect on the second stage of that analysis, which deals with reviewing the constitutionality of the infringement on the constitutional right or of the limitations imposed upon it (see: Aharon Barak, Proportionality in Law 43-48 (2010)).

 

I shall therefore start my enquiry into the key preliminary question as to the relevant privileges and the constitutional rights involved in the whole, an issue where my opinion differs from the position presented by the President.

 

4.         I agree that as a point of departure the distinction between “form” and “substance” should be respected so that the core of the privilege should first apply to the information concerning the contents of conversations between the privileged party and the professional. However, there are cases – and current technological development demonstrates that the same is becoming more and more prevalent – where the core of the privilege, as defined above, radiates outwards and should also protect information, which although per se constitutes only the “form” of the communication, does in the relevant context provide tools for the prohibited disclosure of privileged information. In such cases, that “technical” data, which is not apparently originally privileged, falls within the privilege because its disclosure provides access to protected information. What is important here is that in such cases (which, as noted, are recently not so few) obtaining communications data might infringe professional privilege.

 

Hence, the constitutionality of the Data Communications Collection Act’s provisions, for a provisional order was issued, not only regarding journalistic privilege but also regarding the privilege of other professionals, within the meaning of section 3(d)(7) of the Act. I shall now express my position as to two privileges: attorney-client privilege and doctor-patient privilege. I shall then explain what sets journalistic privilege apart and refer to the constitutional rights in all these contexts and their implications to the Act’s interpretation.

 

Attorney-Client Privilege and the Constitutional Rights upon Which It Rests

 

5.         It is common to believe that a particular method of payment by a client to an attorney – in cash or by check etc. – ordinarily falls into the category of information that is not privileged. In the United States, this distinction gives rise to certain difficulty that impacts the instant case. The enforcement authorities there have discovered that offenders who deal in smuggling dangerous drugs habitually pay for the services they use (that is to say lawful services, including legal services) in cash. Enforcement authorities therefore tried to use this and have attempted to inspect lawyers’ tax returns in order to find large payments of professional fees in cash and the identity of the payers. The lawyers have argued that privileged information, which should not be disclosed, is involved. The conclusion reached in the United States is that, generally, information concerning the method of a particular client’s payment and his identity are not privileged but such information can enjoy privilege where the information:

 

“reveals the motive of the client in seeking representation, litigation strategy, or the specific nature of the service provided” (Chaudhry v. Gallerizzo, 174 F. 3d 394, 402 (4th Cir. 1999); Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514 (S.D.N.Y. 2003)).

 

That is then one typical way in which the privilege can radiate outwards from its core to information that is not prima facie privileged and that is indeed the way in which matters have also been interpreted in the legal literature there:

 

“The privilege protects an unknown client’s identity where its disclosure would reveal a client’s motive for seeking legal advice. Here extending the privilege to the client’s statement of identity is a means to the end of protecting the confidentiality of the client’s more substantive communications with the attorney” (Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges 746 (2nd Ed., 2009) emphasis added – H.M.; see also Thomas E. Spahn, The Attorney-Client Privilege and the Work Product Doctrine vol. 1 93 (2007)).

 

In Israel, although it is usual to think that the privilege does not apply to the client’s name, it has been maintained that this position is not free of difficulties similar to those described above (see, Dr Gabriel Kling, Ethics in Advocacy 418-419 (2001)). It should also be noted that it was recently held in this context that the obligation imposed on certain attorneys in Israel to include clients’ names in their periodic VAT returns “is not a disproportionate infringement of the client’s privilege vis-à-vis his relationship with the attorney.” Nevertheless, that finding was qualified: “if a concrete problem arises regarding the privilege, the client’s right to argue for privilege is reserved.” (HCJ 115/11, Adv. Cassouto v. The Tax Authority (unpublished, April 30, 2012)).

 

6.         It should be noted here that attorney-client privilege, which is regulated in Israel by section 90 of the Israel Bar Act, 5721-1961 and section 48 of the Evidence Ordinance [New Version], 5731-1971 (hereinafter: “the Evidence Ordinance”), preceded the Basic Law: Human Dignity and Liberty, but since its legislation this privilege apparently also has constitutional element. Attorney-client privilege now derives, at the constitutional level, from the constitutional right to dignity (sections 2, 4 and 11 of the above Basic Law), the constitutional right to liberty (sections 5 and 11 of the above Basic Law) and the right to due process, which was recognized in the case law as a (derivative) constitutional right. See and compare the statement by then Justice D. Beinisch in CrimA 5121/98, Isascharov v. The Chief Military Prosecutor, IsrSC 61(1) 461, 560-561 (2006); Mot.Crim 8823/07, John Doe v. State of Israel, para. 16 of Deputy President E. Rivlin’s opinion (unpublished, February 11, 2010).

 

7.         It should also be mentioned here that the Constitutional Court of Germany recently heard a petition similar to those before us here (which was brought by the German Bar and German Press Association against a corresponding statute that had been enacted there, regulating the collection of communications data). The German Constitutional Court held – in a judgement that was handed down on October 12, 2011 – that absolute privilege should be granted in respect of the gathering of communications data from a practising lawyer, on the basis of attorney-client privilege (which there is based on the constitutional right to dignity) and it also recognized partial privilege (which can be lifted by judicial order) over collecting communications data from journalists. (See BVerfG, 2. Senat, Az: 2 BvR 236/08, 2 BvR 422/08).

 

A similar constitutional approach was adopted in Britain in R. (On the Application of Morgan Grenfell & Co. Ltd) v. Special Commissioner of Income Tax [2003] 1 AC 563 (hereinafter: “MG”). See also Phipson, On Evidence 658 (17th ed, 2010). Compare the judgment of the European Court of Human Rights, Kopp v. Switzerland [1998] 27 EHRR 91. See on the other hand In Re McE [2009] UKHL 15 and criticism of that judgment by Simon McKay, Covert Policing – Law and Practice, pp 277-279 (2011).

 

Doctor-Patient Privilege

 

8.         When a doctor practices exclusively in a particular medical field a situation might arise where the very contact with that doctor – even though the substance of the contact or treatment is not disclosed – will enable a third party to deduce information concerning the purpose underlying the contact and infringe the privilege that governs the relationship between doctor and patient. Thus, for example, it was held in this context in HCJ 447/72, Ismachovitz v. The Investigatory Assessing Officer, IsrSC 27(2) 253 260 (1973) (hereinafter: “Ismachovitz”), as also mentioned in the President’s opinion:

 

“… Here the petitioner states that because of his specific practice in the sphere of sterility and impotence, the disclosure of patients’ names and others who have visited him, such as sperm donors for artificial insemination, merits privilege because those involved would not go to a doctor if they perceived the risk that it would become known. […] I am willing to assume that there may be special cases, where even the identity of the patient will fall within the scope of a privileged confidence under section 49 of the Ordinance, although I dare to doubt whether the petitioner’s practice does indeed require such extension of the protection of privilege”.

 

As mentioned, in the circumstances of Ismachovitz it was held that the identity of the person going to the doctor was not protected, inter alia because the petitioner there practiced in several spheres (and for other legal reasons). However, this conclusion does not derogate from the more general perception that the rigid distinction between the very contact and its substance is problematic in many cases, especially in areas concerning telecommunication. See Constitutional Rights and New Technologies – a Comparative Study, 277-278 (Ronald Leenes, Bert-Jaap Koops, Paul De Hert, Ed., 2008).

 

Furthermore, once the Patient Rights Act, 5756-1996 was legislated (especially if we interpret it in light of Basic Law: Human Dignity and Liberty, which preceded it), the patient’s right to privacy gained paramount status and was raised to constitutional level. Section 19(a) of this Act provides in our context as follows: “a clinician or medical institution worker shall keep secret all information relating to the patient that comes to his knowledge in the course of his duty or in the course of his work” (emphasis added – H.M.).

 

Nevertheless, there is still a certain difference so far as we are concerned between the professional privileges that are regulated, for example in the Evidence Ordinance (all of which can be constitutionally justified one way or another) and journalistic privilege (which is considered to be a creature of case law, with specific characteristics). This difference was also highlighted in these petitions and the President also acknowledged it. We shall immediately deal with this at greater length.

 

The Journalistic Privilege and the Constitutional Rights upon Which It Rests

 

9.         In paragraph 10 of her opinion, the President writes as follows:

 

“As the State also agreed, with regard to journalists, the very identity of the person who contacts a journalist can constitute part of journalistic privilege because it may expose the journalist’s source despite the protection given to such source.”

 

This Court has considered the protection granted to a journalist’s source. In the case of Tzitrin (MA 298/86, Ben Zion Tzitrin v. The Disciplinary Tribunal of the Israel Bar, Tel Aviv District, IsrSC 41(2) 337 (1987) (hereinafter: “Tzitrin”)), President M. Shamgar stated:

 

“The protection of the sources of information necessary for the performance of the journalist’s function, including protecting the relationship of trust on the basis of which information is given in return for an assurance that the source not be disclosed, is therefore a public interest and not the particular interest of the relevant newspaper or journalist” (ibid, p 358).

 

Since Tzitrin, this view has been an axiom of Israeli constitutional law. Nevertheless, the journalist’s privilege has several unique elements compared to other professional privileges and they are set out below –

 

(a)       As already mentioned, it is the result of case law, while the others are statutory.

 

(b)       It is relative (like some of the statutory privileges), unlike, for example, the privilege covering evidence concerning the attorney-client relationship (section 48 of the Evidence Ordinance) or evidence presented by clergymen (section 51 of the Evidence Ordinance), which are absolute. For these, the Evidence Ordinance does not prescribe a balancing formula and courts have not been granted power to order revoking the privilege. See: LCA 5806/06 The Estate of Michael Namirovski, Deceased v. Shimko, paras. 6-7 of Deputy President E. Rivlin’s opinion (unpublished, June 13, 2007); HCJ 844/06 Haifa University v. Prof. Avraham Oz, para. 11 of Justice E. Hayut’s opinion (unpublished, May 14, 2008) (hereinafter: “Haifa University”).

 

(c)       It blocks evidential expression in judicial or investigative proceedings – with the intent of making journalistic information public. The other privileges that apply, for example, in respect of treatment-oriented professions, like lawyers, doctors, psychologists or social workers, preclude the flow of information (to the court) in order to enable the individual privately to put to the professional all the information necessary for his treatment. On the other hand, journalistic privilege blocks evidential expression in judicial or investigatory proceedings specifically with the intention of making matters public and ensuring the public’s right to know. See: pp viii and ix of the work by Yisgav Nakdimon, Precluding Expression in Order to Permit Expression – Suggested Thought Process for Fashioning the Scope and Protection of Journalistic Privilege in the Constitutional Era (Ph.D. thesis, under the supervision of Prof. Ariel Bendor, The Faculty of Law, Haifa University, 2012 (hereinafter: “Nakdimon”).

 

(d)       Unlike the other privileges, it is likely to be infringed per se on disclosure of the journalist’s communications data, which is likely to expose the identity of his sources of information, which is at the very heart of the privilege and not the mere periphery of the right. Hence, it should be acknowledged that not only the name of the source, but any detail or information that might lead to his identification should fall within the scope of journalistic privilege. See: Nakdimon, id, at 153-154, 276-277.

 

10.       The journalist’s privilege is therefore one of the means that guarantee freedom of the press, and constitutionally it is as though it were drawn from the freedom of expression, which is an independent constitutional right that is “at the very heart of democracy” (CrimA 255/68, State of Israel v. Ben Moshe, IsrSC 22(2) 427, 435 (1968)). Other approaches maintain that the freedom of expression itself depends upon a certain degree of privacy, which permits one’s autonomous and original development. See: Stephen Breyer, Active Liberty 62-63 (2008); Ruth Gavison, Privacy and the Limits of the Law (Yale L. J. 475 (1980). For a summary of the different perspectives on this, see also: CA 751/10, John Doe v. Dr Ilana Dayan-Orbach, paras. 61-66 of Deputy President E. Rivlin’s opinion (unpublished, February 8, 2012) (hereinafter: “Dayan”).

 

11.       The other view does not see journalistic privilege as rooted in the doctrine of free expression but bases it directly on the rationale of individual privacy and confidentiality of conversations, that are now constitutional values protected under section 7 of Basic Law: Human Dignity and Liberty (to be precise, the confidentiality of conversation would also appear to include the confidentiality of the parties to the conversation, rather than just its content). Hence, according to this view, journalistic privilege enables the reporter’s source to maintain his anonymity in the world outside the “confidential domain” between the two (see: Michael Birnhack, Control and Consent: the Notional Basis of the Right to privacy, Mishpat U’Mimshal II, 63-64 (2007) (hereinafter: Birnhack, Control and Consent); Michael Birnhack, The Private Domain: the Right to Privacy between Law and Technology, 121-122 (2011) (hereinafter: Birnhack, Private Domain); Nakdimon, at 141-143). In this context anonymity is perceived as part of the right to privacy since “it enables a person ‘to act in peace’ and avoid personal exposure and the giving of information about himself that he does not wish to give… Anonymity gives a person control over information about himself… and prevents ‘gazing’ into his privacy”. (See LCA 4447/07, Mor v. Barak ETC (1995) International Telecommunication Services Ltd, para. 13 of Deputy President E. Rivlin’s opinion (unpublished, March 25, 2010); see also Nakdimon, p 141).

 

12.       All the above indicates that the journalist’s original privilege can also be based on the value of human dignity, enshrined in sections 2, 4 and 11 of Basic Law: Human Dignity and Liberty, because such privilege contributes to safeguarding the freedom of expression, which in turn is embodied in the doctrine of human dignity (see: CA 105/92, Reem Contracting Engineers Ltd v. Nazareth Elite Municipality, IsrSC 47(5) 189 (1993); HCJ 2481/93, Dayan v. The Commander of the Jerusalem District, IsrSC 48(2) 456 (1994); PPA 4463/94, Golan v. The Prison Service, IsrSC 50(4) 136, 152-153 (1996)).

 

To be exact, another constitutional track, which also has certain support, in fact finds the constitutional embodiment of the freedom of expression in the right to liberty, as protected under sections 5 and 11 of Basic Law: Human Dignity and Liberty (see, for example, the paper by Dr Guy E. Carmi Dignity – the Enemy from Within: a Theoretical and Comparative Analysis of Human Dignity As a Free Speech Justification, 9 U. Penn. J.  Con. L. 957 (2007) (hereinafter: “Carmi I”); Guy E. Carmi “Dignitizing” Free Speech in Israel: the Impact of the Constitutional Revolution on Free Speech Protection 57 McGill L. J. (forthcoming 2012) (hereinafter: “Carmi II”). However, this possibility – which has not yet become entrenched in the Israeli legal system – does not directly impact the analysis here and there is therefore no need to consider it at length. Furthermore, as mentioned in LCA 10520/03, Ben Gabir v. Dankner (unpublished, November 12, 2006), there is in any event a certain natural proximity between the separate doctrines of liberty and dignity, which inter alia also finds expression in protections of free expression: “the freedom of expression is the mother of freedoms. It is also the most fragile of them. It is the first to be infringed but the infringement never stops there. All the freedoms fall together with it. Its fall marks the end of human dignity. Human liberty – man’s dignity. Human dignity – man’s liberty” (emphasis added – H.M.; see also in this respect Carmi I, pp 966-967; Dayan para 66).

 

Interim Summary

 

13.       The analysis so far demonstrates that the possible infringement by the Communications Data Collection Law of the protected privileges is not limited merely to journalistic privilege and it might also extend to other privileges that are embodied in the Evidence Ordinance and other provisions of law, or those the case law has or will recognize in the future (see: section 3(d)(7) of the Act. See also Haifa University, bottom of para. 19 of Justice E. Hayut’s opinion (unpublished, May 14, 2008); HCJ 793/05, Bar Ilan University v. The Jerusalem National Labor Court, paras. 11-14 of President D. Beinisch’s opinion (unpublished, January 31, 2011)).

 

Professional privilege therefore promotes the interests of a person involved in a variety of relevant spheres (religion, medicine, law and the like), without concern that his sensitive, personal information will be disclosed (see: Birnhack, Control and Consent, p 34; Isaac Amit, Admissibility, Confidentiality, Privilege and Protected Interests in Civil Law Discovery Proceedings – An Attempt to Impart Order in Uri Kitai Book 247 (Ed. Boaz Sangero, 2007)).

 

As aforesaid, this concept affects constitutional review because in my opinion infringing the privileges constitutes at least an indirect infringement of the constitutional rights to dignity, liberty and privacy.

 

14.       In view of all this and considering the compound infringement of the constitutional rights of privileged persons, which is at stake here, it seems appropriate to ease the sharp distinction between “substance” and “form” in the context of privileges and the communications that include or encompass them. Indeed, “cohesion between the media and the collapse of the distinction between content and communications data requires a new legal framework for protecting privacy, which is not based on a dichotomy like its predecessor but on a continuum of situations classified according to the degree of risk they pose to privacy” (see: Omer Tene, Look at the Pot and See What Is inside: Communications Data and Personal Information in the 21st Century” in Legal Network: Law and Information Technology 287, 313 (Ed. Niva Elkin-Koren & Michael Birnhack, 2011)).

 

I shall now then move on to analyze the constitutional validity of the provisions of the Communications Data Collection Act under review here, in light of my conclusions above. Since I do agree, as noted, with the President’s approach as to the constitutionality of sections 3, 6 and 7 of the Communications Data Collection Act, my review below will center on the constitutionality of the “administrative course” prescribed in the Act, and the boundaries that should, in my opinion, be set for it.

 

Summary Review of the Constitutionality of Section 4 of the Communications Data Collection Act

 

15.       Section 4 of the Communications Data Collection Act establishes a “course” for obtaining permits under the Act, which is reserved for “urgent cases.” The main characteristic of this “course” is that the entity authorizing the permit is not a court but a “competent officer,” as defined in section 1 of the Communications Data Collection Act. It stands to reason – and the President also agrees – that such “administrative course” involves greater infringement of constitutional rights than the “legal course” since a permit to obtain communications data is granted here by an administrative entity – the competent officer – who is asked to do so by another administrative entity (sometimes within the same organization as the competent officer), without having to justify to the judicial authority the reasons for awarding the permit.

 

Indeed, there is a presumption that the administrative authority acts properly and presumably section 4 of the Communications Data Collection Act will only be used where the competent authority believes – in good faith – that this is essential. However, even given this, it does appear to me that, as a society, it is our duty to limit such situations as far as possible since “without judicial review of the executive authority, the separation of powers is undermined and with it man’s liberty is impaired and the fundamentals of the free regime are harmed” (see: HCJ 294/89, The National Insurance Institute v. The Appeals Committee under Section 11 of the Victims of Hostile Action (Pensions) Law, 5730-1970, IsrSC 45(5) 445, 450 (1991); see: Amnion Rubinstein, Barak Medina, The Constitutional Law of the State of Israel vol. I 174 (2005)). Compare with the decision of the Constitutional Council in France, No. DC 2005-532 of January 19, 2006.

 

16.       This inherent problem of section 4 is resolved to some extent by the fact that some of the elements of the “the administrative course” detailed in it are narrower than “the judicial course” regulated in section 3 of the Act and also because it is motivated by the situation’s urgency.

 

Nevertheless, as I see it, “the administrative course” is not appropriate for contending with professional privilege. I shall below explain the reasons for this approach, which differs from my colleague’s opinion.

 

17.       In paragraph 25 of her opinion, the President states that “in the absence of such infringement [in the proportionality of the Communications Data Collection Law – of the privileges, apart from journalistic privilege; the additions in square brackets are mine – HM], prima facie it cannot be said section 4 does not refer to professionals per se it must be struck down for unconstitutionality.” The President also believes the difference between the purposes of the separate “courses” established in the Communications Data Collection Act and the fact that section 4 of the Act is reserved merely for urgent cases can all justify infringing the constitutional rights (to privacy) of professionals, including journalists (albeit with more extensive reservations regarding the latter).

 

In this respect I would adopt a different line and, in my opinion, even in urgent cases, greater (albeit not absolute) weight should be attributed to the constitutional rights of the beneficiaries of professional privilege that may only be infringed, if at all, through a judicial order under section 3 of the Act, which inter alia meets the conditions of the Limitations Clause (my opinion in CA 9183/09, The Football Association Premier League Ltd v. John Doe (unpublished, May 13, 2012). I reach this conclusion by giving a restrictive constitutional interpretation to the provisions of section 4 of the Communications Data Collection Act and the structure of the Act generally but not by invalidating the section, as the petitioners seek. The main reason I am adopting this method of interpretation is twofold –

 

(a)       Invalidating a provision of statute is indeed a last resort and before doing so it should be attempted to resolve the difficulties, if at all possible, by interpretation.

 

(b)       Invalidating a section of the Act opens up the possibility for another inadequate normative arrangement to be enacted in the future, while interpreting the section now resolves the constitutional difficulty once and for all.

 

See: HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4) 241 (2004) – in the opinions of President A. Barak and then Justices M. Cheshin and D. Beinisch there.

 

My willingness to interpret, rather than strike down, is thus my joining the President’s. Nevertheless, as for the proper interpretation, I take issue with my colleague’s opinion as I shall immediately explain.

 

18.       The President believes that the narrow arrangements in section 3 of the Communications Data Collection Act can also be reflected in implementing section 4 of the Act as relevant factors that must be considered when exercising the discretion (see para. 26 of her opinion). She also states (in paras. 27-28 of her opinion) as a factor in support of her opinion that the State in fact accepts that position and it is reflected in the Police procedure that regulates the Act’s use (hereinafter: “the procedure”).

 

I myself believe that neither the State’s concession nor the procedure should carry determinative weight in this context. Although the State now agrees that the section 4 of the Act should be implemented somewhat narrowly, nothing lasts forever and in any event this concession (and the procedure based on it) does not constitute a meaningful constitutional factor, but at most alters the administrative framework. It is also deficient in that it involves something of a prohibited secret enactment. Compare: CA 421/61, State of Israel v. Haaz, IsrSC 15 2193, 2204-2205 (1961); LPrisA1127/03, State of Israel v. Klein, IsrSC 48(3) 485, 515 (2005).

 

Hence, I cannot accept the President’s position that “naturally, a change in the authority’s conduct could also lead to a material change in the balance embodied in the Act. Such a change would give rise to new cause to challenge the Act, certainly at the administrative level and perhaps even the constitutional level” (see para. 30 of her opinion). As I see it, the infringement of privilege is currently happening and there is therefore no reason to postpone constitutional review until such time as the administrative authority departs from its narrow approach, a fortiori since in my opinion that approach is inadequate. Hence, as I see it, considering the great role of privileges in safeguarding the constitutional rights detailed above, it is appropriate to hold that interpretatively the “course” for dealing with requests concerning professionals is only in section 3 of the Communications Data Collection Act and constitutes specific law in such respect. Section 4 of the Communications Data Collection Act cannot therefore be used in order to request an “administrative permit” concerning professional privilege.

 

I shall clarify this conclusion below and commence by detailing the relevant constitutional context.

 

19.       In CA 6821/93, United Mizrahi Bank Ltd v. Migdal Cooperative Village, IsrSC 49(4) 221, 265 (1995), President (Ret.) M. Shamgar held as follows (emphasis added – H.M.):

 

“The theoretical point of departure is that the legislature, wishing to alter or infringe a protected right, does so by express provision or clear contradictory determination in the language of the new provisions that conflicts with what preceded it. In any event there should be an attempt to implement statutes that cause this issue by trying to reconcile them. Consequently, the interpretive presumption is that a right protected by an ordinary statute cannot be changed or infringed by subsequent ordinary legislation unless otherwise stated or implied.”

 

In the instant case I believe the argument was established that section 4 of the Communications Data Collection Act – if implemented against professional’s privilege – would infringe their constitutional rights. Such infringement is not done by express language but impliedly and it does not constitute a “clear contradictory determination” in the words of President (Ret.) M. Shamgar. President D. Beinisch and Justice. E. Hayut adopted a similar approach in HCJ 10203/03, National Commander Ltd. v. The Attorney General (unpublished, August 20, 2008). It should also be noted that based on a similar perception it was held in Britain, in MG, that:

 

“Legal professional privilege is a fundamental human right long established in the common law… The courts would ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication… Section 20(1) contained no express reference to legal professional privilege and the question is therefore whether its exclusion must necessarily be implied.”

 

(Id, paras. 7 and 8 of the opinion; emphasis added – H.M.)

 

In this context it should be further emphasized that there is a consensus that section 3 of the Communications Data Collection Act offers a more balanced arrangement in this respect, both substantively (the inclusion of detailed arrangements) and at the level of jurisdiction (the requirement that the application for the permit should be made to court, rather than the administrative authority.) The question is therefore whether, in view of the infringement to constitutional rights that underlie professional privilege, we can make do with a guideline that section 3 of the Communications Data Collection Act constitutes considerations (and nothing more) when exercising the power under section 4 of the Act. In my opinion, the answer to the question is in the negative. The overall proper constitutional result is therefore that the arrangement along the court “course” should constitute an exclusive mandatory course in the case of an application to obtain communications data concerning professionals. The reasons for this are explained below.

 

Professional Privilege Is Not to Be Infringed without a Judicial Order

 

20.       Section 3 of the Communications Data Collection Act purports to also permit consideration of urgent cases (see: section 3(f)(2) of the Communications Data Collection Act, in the knowledge that the courts system is organized to respond to such situations 24 hours a day); the “course” prescribed in it is more balanced and proportional than that delineated in the “administrative course”; its infringement on such constitutional rights is less restrictive because it requires considering a greater range of factors. It furthermore requires the administrative authority to submit its justifications to judicial review. Given these factors, enabling the administrative authority “to circumvent” the balanced legal “course” in section 3 of the Communications Data Collection Act in the case of professionals is improper. As mentioned, a series of reasons support the above conclusion and they are set out immediately below.

 

21.       The purpose of the professional privileges is to protect the constitutional values that justify them. They therefore cannot be infringed without suitable justification as provided in the Limitations Clause of Basic Law: Human Dignity and Liberty. Such justification is generally only possible through a judicial order, rather than administrative measures (a fortiori since the privileges are sometimes also presumed absolute.) This perception is what led to MKs Gideon Sa’ar and Shelly Yachimovich’s proposal on second reading, in a reservation to the Act’s Bill, the language of section 3(b) of the Act that was passed, providing as follows:

 

“If the subscriber subject the motion is a professional, the court shall not allow communications data to be obtained as provided in subsection (a), unless it is satisfied, on the basis of clear details to such effect in the motion, that there are grounds to suspect that the professional is involved in the offense, in connection with which the motion was filed.”

 

See: Knesset Proceedings of the 181st session of the 17th Knesset on December 17, 2007, at 12,895, 12,901.

 

These conditions strengthen the requirements the court faces when issuing an order to obtain communications data from the database of a telecommunications licensee, as set in section 3(a) of the Act, which mandate the court be satisfied that “it is necessary” for the purposes of the section “provided that obtaining the communications data does not infringe a person’s privacy beyond necessary”. We therefore have expression of the “Limitations Clause”, which is to be applied in every specific motion and reviewed by the judicial authority. If it does not do so, a serious situation arises as stated by then MK Gideon Sa’ar:

 

“… Whoever understands the significance in the relationship of attorney-client or journalistic privilege, or all those types of privilege, understands that it could be a device for suppressing all professional privilege” (id, at 12,895).

 

MK Shelly Yachimovich further refined matters in the context of journalistic privilege and stated:

 

… And it could go further into somewhat darker realms, and the risk of leading to the unnecessary monitoring of a journalist’s telephone lines might seriously impair his ability to function, the trust that his sources place in him, his ability to expose wrongdoing and corruption and therefore indirectly, or even directly, infringe the freedom of the press, which is a fundamental cornerstone of our democracy” (id, at 12,901)

 

22.       In light of this, it appears to me that the approach that makes infringing professional privilege conditional upon obtaining a judicial order  is the “proper constitutional” format, without which doing so is impossible. The language of section 52 of the Evidence Ordinance, which provides as follows, supports this as well:

 

“The provisions of this chapter shall apply to providing evidence both to a court or tribunal and to any authority, body or person competent under law to hear evidence; and every reference in this chapter to a court shall be deemed to be a reference to a tribunal and to any such body or person as well.”

 

In this regard, scholar Jacob Kedmi states in his work On Evidence, Part III (2009) as follows:

 

“The prevailing approach is to view the term ‘authority’ as expressing the entities that are empowered to conduct an investigation within the meaning of gathering evidence (as distinct from other entities that are empowered ‘to hear evidence’ in the way typical of giving testimony in court); and in that way to interpret the initial provision – as distinct from the final provisions that do not include the term ‘authority’ – as also applying to entities that are legally empowered ‘to gather evidence,’ like the Israel Police, income tax investigators, customs investigators, etc.” (id, at 1012) (emphasis in original – H.M.).

 

This position was in fact adopted in CrimA 8600/03, State of Israel v. Gilad Sharon, IsrSC 58(1) 748 (2003), where an extended bench, per Deputy President T. Or, held as follows:

 

“On its face, it may have been concluded that the Police, which collects evidence, could be treated as a ‘court’… This result is unsatisfactory. It is unreasonable that the Police, in attempting to obtain certain documents and facing a suspect who asserts privilege, are charged with deciding whether he does indeed have privilege… Consequently, when a suspect being investigated by the Police claims a privilege applies, the Police investigator will not have power to decide whether the documents are privileged. In order to obtain the documents the investigator will have to request a court order” (id, at 766).

 

Here it should be stated that in MG, in Britain, a similar approach and interpretation were adopted.

 

It should further be noted that section 12 of the Communications Data Collection Act, which regulates the conflicts of laws, gives effect to this position, as follows:

 

“The provisions of this Act shall not affect the powers granted by law in respect to obtaining information and documents, including communications data, but for a court’s power under section 43 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 to order communications data to be presented or produced upon request by investigatory or prosecution authorities.”

 

23.       My above conclusion is further supported in terms of journalistic privilege – because of its special characteristics as discussed above since the interpretation expressed in the Police procedure and adopted by the President – does not prima facie bar that where a journalist is suspected of committing a felony (for example holding “secret information” within the meaning of section 113(c) of the Penal Law, 5737-1977) the authorities would seek to act in his regard according to section 4 of the Act or by another administrative method, and there have indeed been examples of this (see Nakdimon 274-276).

 

Moreover, in the analysis so far I have ignored the fact that the Police procedure’s reference to the case of obtaining an “administrative permit” to gather communications data relating to a journalist is limited solely to traffic data (a list of incoming and outgoing calls) (see: section 7(b)(4) of the procedure). On its face this means there is no impediment to requesting other communications data, even when the journalist is not suspected of a “felony,” but this is not expressed in the President’s opinion. This is joined with the initial problem I have discussed above, and even aggravates it, because other communications data can also infringe the journalist’s privilege to the same extent as traffic data. For example, location data regarding communications equipment in the journalist’s possession could expose or help to expose the source of the privileged information (on the distinction between location data and traffic data, see: section 1 of the Communications Data Collection Act.) In this respect Nakdimon states as follows:

 

          “It appears to me that this state of affairs, where journalistic privilege as to communications data is partly regulated by internal Police directives – that might change from time to time otherwise than in the context of public proceedings, and from which the authority might depart – rather than principal legislation, is improper. Moreover, the substance of the arrangement prescribed in the directives is also inadequate because it leaves the door open to circumventing journalistic privilege, without judicial review that would facilitate its protection where it is asserted that the journalist is suspected of the offense involved in the investigation or is its victim, or when the communications data sought are not traffic data but, for example, location data that enable knowing exactly where the parties to the communication between the journalist and the source of information are” (see: id, at 277; emphasis added – H.M.).

 

          This logical statement is apt here and it appears to me that it also appropriately sums up my overall position. The time has therefore come to conclude the matter.

 

Conclusion

 

24.    In conclusion, in light of the Communication Data Collection Act’s potential significant infringement on professionals’ privilege and their protected constitutional rights, I believe that the scope of the Act should be confined by an interpretive determination that the “administrative course” to obtain a permit may not be used where the permit is sought regarding professional privilege. In such a case, the “legal course” will in my opinion constitute an exhaustive and exclusive arrangement. Furthermore – again in the scope thereof – a court would grant an order for disclosure only when the conditions of the “Limitations Clause” were met and when the court is satisfied, in the context of the “professional privilege,” that the interest of collecting the data outweighs the constitutional values that justify the specific privilege.

 

25.    A review of the history that has recognized professional privilege – in Israel and elsewhere in the world – demonstrates that individual rights were developed and founded, inter alia, on the basis of this specific area of law. This was the case in the past and although the present is somewhat complex, as noted, I trust this will also be the case in the future given the need to contend with the challenges with which new technology, the Act and the case law present us.

 

Deputy President E. Rivlin

 

          I join in the result my colleague President D. Beinisch reached, whereby the petitions should be rejected, in light of and subject to the boundaries and limitations detailed in the judgement.

 

          My colleague Justice H. Melcer rightly insists on the need for special protection the Act should afford anyone with professional privilege under statute or case law. He believes that a competent officer should not be permitted to act under section 4 of the Act where privilege prima facie applies because of a profession and that the only way to obtain communications data in those situations must be approaching a court.

 

          As for myself, I would not go so far as to rule out the administrative course in those cases. Nevertheless, I do agree that extreme care should be taken in such cases, as reflected in my colleagues the President and Justice E. Arbel’s opinions.  First, as President D. Beinisch held regarding exercising the power in both section 3 and section 4 of the Act, it should be interpreted so that the data is only obtained where it is required for a specific, concrete need. Second, regarding the exercise of the power in section 4 of the Act, it should be interpreted, as she proposed, so that it is used sparingly in extreme cases for the purpose of dealing with offenses that require it and only where because of the urgency it is impossible to obtain a court order; this is when the motive for applying to court is a serious circumstance such as a  risk to human life. The fact that the subscriber is a professional person should also be taken into account when exercising the power under section 4 or refraining from doing so.

 

          As my colleague Justice E. Arbel believes, I too believe that section 4 of the Act should be construed to preclude the competent officer’s authority to renew a permit. After issuing the initial permit, which is not to exceed 24 hours, section 4 should be interpreted so that the permit may only be renewed by a court.

 

 

          Unanimously decided to dismiss the petitions.

 

          Regarding the interpretation of sections 3, 6 and 7 of the Act, it is decided according to President (Ret.) D. Beinisch’s opinion, joined by all members of the bench.

 

          Regarding the interpretation of section 4 of the Act, it is decided by a majority of the bench, as stated in President (Ret.) D. Beinisch’s opinion, that the power can also be exercised where the communications data are sought from a “professional,” always subject to the limitations and reservations detailed in the opinion. This is against Justice H. Melcer’s dissenting opinion, who believes that the power prescribed in section 4 may not be exercised in order to obtain a permit under the Law in the case of a “professional”.

 

May 28, 2012 (7th Sivan 5772)

 

Before the Supreme Court sitting as High Court of Justice

HCJ 4797/07

 

Before:                                    The Honorable Chief Justice (ret.) A. Grunis

                                    The Honorable Chief Justice M. Naor

                                    The Honorable Deputy Chief Justice E. Rubinstein

 

The Petitioner:             Association for Civil Rights in Israel

                                                                v.

The Respondents:       1. Airports Authority

                                    2. General Security Services

                                    3. Ministry of Transportation

 

Petition for the granting of an order nisi.

 

Date of hearing:          1 Kislev 5775 (Nov. 23, 2014)

 

For the Petitioner:       Auni Bana, Adv., Dan Yakir, Adv.

For the Respondents:  Chani Ofek, Adv.

 

Facts:   The petition concerned the security procedures for screening Israeli citizens at Israeli airports. The Petitioner’s primary claim was that Israel’s Arab citizens are generally subjected to stricter security checks than Israel’s Jewish citizens. The Petitioner argued that employing ethnicity as a criterion for the rigorousness of airport security screening of Israeli citizens is fundamentally unacceptable. The petition was submitted in 2007, but the decision was delayed in light of changes that the Respondents implemented in the security procedures, primarily comprising the introduction of new technology for the inspection of checked baggage, which was the subject of main concern of the passengers, as well as additional steps adopted to reduce distinctions among passengers in the security procedures. In light of those developments, the Respondents argued that the petition should be dismissed. In their view, the claims in regard to the security procedures in place at the time the petition was submitted were no longer relevant, while the claims advanced in regard to the new procedures were not yet ripe for decision. The Petitioner demanded that Court decide upon the fundamental issue it had raised, and advanced additional claims in regard to the changes that had been adopted.

Held:   The High Court of Justice (per Chief Justice (ret.) A. Grunis, Chief Justice M. Naor and Deputy Chief Justice E. Rubinstein concurring) dismissed the petition for the following reasons:

The Respondents had made considerable progress towards increasing equality in the security procedures. It was clear that significant efforts were being devoted to the implementation of technological solutions that would reduce, to the extent possible, the differences in the security procedures applied to different passengers, and significantly limiting the public element that formerly characterized the screening of certain passengers, while maintaining the appropriate level of security that is indisputably required in regard to air transport. It is only natural that such changes require time, and are dependent upon the cooperation of many parties. Under the circumstances, the Court ruled that the petition had exhausted itself. The authorities should be permitted to complete their work and collect data in regard to the effect of the changes that had been made before subjecting the fundamental question to judicial review. In this regard, the Court emphasized that achieving the correct balance between the need for air transport security and the reasonable functioning of the airports, and the protection of individual rights is an especially difficult task, particularly in Israel’s current security situation. It should also be borne in mind that a terrorist attack upon an airplane could result in the loss of many lives.

If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

The petition was therefore dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents were ordered to pay the Petitioner’s costs in the amount of NIS 30,000.

 

Judgment

Chief Justice (ret.) A. Grunis:

1.         The subject of this petition, which was submitted in 2007, is the security procedures for screening Israeli citizens in Israeli airports. The Petitioner’s main claim is that Arab citizens of Israel are generally subjected to more intensive inspection than Jewish citizens of Israel. In the opinion of the Petitioner, employing ethnicity as a criterion for deciding the extent of the screening to which citizens are subjected at the airports is fundamentally flawed.

2.         The Petitioner is the Association for Civil Rights. Respondent 1 is the Israeli Airports Authority. Respondent 2 is the General Security Service, which advises the Airport Authority in the field of security. Respondent 3 is the Ministry of Transport. On March 3, 2011, an order nisi was granted, ordering the Respondents to show cause as to why security screening for all citizens at the airports should not be carried out in accordance with equal, relevant and uniform criteria (D. Beinisch, CJ, E. Rivlin, DCJ, and M. Naor, J). On May 23, 2011, the Minister of Defense signed a security-interest immunity certificate in accordance with sec. 44 of the Evidence Law [New Version], 5731-1971, in regard to the details of the procedures and guidelines for security screening at the airports. Information in regard to the details of the procedures was presented to us at various stages in the proceedings. The information was presented ex parte due to its sensitivity and the danger to state security posed by its disclosure.

3.         In the course of the proceedings, we learned that, in 2006, the General Security Service and the Airports Authority began a broad administrative examination of the security-inspection procedures. In the course of that process, changes were adopted in regard to the screening of Israeli citizens in Ben Gurion Airport (hereinafter: Ben Gurion) in order to reduce the differential aspect of the inspections, i.e., to promote uniformity in the security procedures applied to all Israeli citizens. The primary change relates to the procedure for screening baggage intended for the airplane's baggage hold (hereinafter also: checked baggage), which was the subject of most passenger complaints. A new technological system was developed (Hold Baggage Screening – HBS) that allows for the inspection of all the checked baggage in a separate, non-public area, without the presence of the passengers, and its direct transfer to the baggage hold. The inspection by the new technology is performed at various security levels in accordance with threat levels. In addition to the plans regarding the new technology, other changes were introduced at Ben Gurion in 2008, such as changes in the security procedures at the vehicle entrances to the airport and at the terminal entrances. In their answer to the order nisi, the Respondents claimed that the new security procedures will serve to alleviate the sense of discomfort and humiliation attendant to the rigorous inspection of a passenger’s baggage in the main passengers’ hall, the detaining of the passenger and the conducting of public screening in the presence of other passengers waiting in line. They added that they intended to begin operating the HBS system in the course of 2013, subject to operational exigencies. It should be noted that the Respondents presented more optimistic timetables in earlier responses. The Respondents further emphasized that there is no uniform, strict level of screening for all Israeli Arab citizens. They maintained that, in practice, most of that population undergoes quick, simple screening, and the planned changes will help to further simplify the procedure. Moreover, the Respondents explained that the level of screening is not based upon a single criterion, but rather upon a mix of criteria, based upon empirical data and professional threat assessment that indicate the potential threat level posed by a particular passenger.

4.         In light of the significant change expected in the screening procedures, this Court (D. Beinisch, CJ, E. Rivlin, DCJ, and M. Naor, J) decided to postpone its decision on the fundamental issues raised by the petition, in order to allow time for the integration of the new system and the gathering of data in regard to the effect of the changes upon the security screening procedures. The Court decided to leave the petition pending, and the Respondents were ordered to submit an updated response in six months. The decision stated, inter alia:

“The application of a security profile to an Israel citizen in a manner that would justify conducting stricter security screening, even without concrete information in regard to that citizen, raises significant problems. We are doubtful whether the use of a security profile that is based upon sweeping, general characteristics, and that relies upon a passenger’s being a member of a specific ethnic group as a sole characteristic, is legitimate. […] Indeed, although a person does not have a vested right not to be subjected to security screening at the airport, it is a person’s right that such screening be applied equally, based upon equal, uniform criteria. No one doubts that since the phenomenon of widespread, intensive terrorist attacks began, many countries are confronted by the question of the legitimacy of profiling potential threats through tagging that is based upon origin or ethnicity. Such tagging, of course, raises particular difficulties when we are concerned with citizens whose equal rights must be respected. Even in the instant case, although high-level screening is not applied to all the Arab citizens of the state, the existence of sweeping, general criteria for threat assessment – to the extent that those are indeed the factual circumstances, and we are not ruling on that – raises a problem that justifies a more in-depth examination on the basis of the relevant data” (para. 5 of the decision).

5.         On Nov. 22, 2012, the Respondents informed the Court that the integration of the HBS system at Ben Gurion was proceeding, despite operational difficulties. They estimated that the technology would become operational in accordance with the timetable that was presented to the Court, that is, already in the course of 2013. The Respondents emphasized that the Airports Authority is prepared, in principle, to introduce the technology into the security procedures of the domestic airports, as well, subject to exigencies. Thus, they stated, an advanced technological system was put in place in the Eilat airport in the second half of 2011, which makes it possible to inspect checked baggage behind the scenes and without the involvement of the passengers. They are also trying to implement the screening procedure, as far as possible, in Ben Gurion, although there are differences in this regard between the two airports. At the Uvda airport, which serves only international flights, there is a uniformly strict screening procedure for all passengers, most of whom are foreign nationals. Both the Eilat airport and the Uvda airport are scheduled for relocation to a new site in Timna, where the new screening procedure being implemented in Ben Gurion will be fully adopted. As opposed to that, the Haifa airport and Tel Aviv’s Sde Dov airport present significant infrastructure problems. Nevertheless, advanced technological systems have been installed at the terminal entrance for the inspection of both carry-on and checked baggage. It should be noted that there is an intention, in principle, to relocate Sde Dov. The Respondents further informed the Court that, in addition to the technological changes, the operation of the “Security Center” (“Mokdan”) will be expanded. The purpose of the Security Center is to provide security services to foreign business travelers, and guests of government ministries and Israeli companies, in order to simplify the process for them. The data of the Security Center are shared with the domestic airports and the Israeli carriers flying to Israel. According to the Respondents, this service has significantly reduced friction with sensitive populations in the security screening process.

6.         On Sept. 18, 2013, the Respondents submitted an updated affidavit. In that affidavit, the director of Ben Gurion informed us of a delay in the timetable for integrating the HBS technology, and therefore the implementation of the new security procedures would only begin in March 2014, at the earliest. According to him, the reason for the delay was that the foreign companies involved in the project had not met their commitments. The Respondents emphasized that as soon as they became aware of the delay, a number of steps were taken to mitigate it. According to the Respondents, the Airports Authority made the necessary changes required of it in Ben Gurion in terms of construction and infrastructure, as well as the recruitment and training of manpower, and it was, therefore, prepared, in principle, to incorporate the system on the intended date, had a working system been supplied by the foreign companies. In accordance with the amended timetable presented by the Respondents, examinations and other actions in preparation for the full implementation of the system in Ben Gurion will be carried out between March and July of 2014. The running-in stage of the system will begin in July 2014, and six months later, the system will be fully transferred from the foreign companies to the Airports Authority. The Respondents emphasized that further delays were possible due to the complexity of the integration process and the possibility of unforeseen developments.

7.         In an additional notice, dated Nov. 14, 2014, the Respondents updated the Court that due to recent developments in the integration of the HBS system, it appeared that the system would indeed be fully operational in March 2014, and that it would be finally transferred to the Airports Authority in December. The Respondents explained that the HBS system would be put into use only in Terminal 3 in Ben Gurion, and not in Terminal 1. Terminal 1 was designated to serve domestic flights, after the opening of Terminal 3, but in 2011, it was decided that it would also serve low-cost international flights. The Respondents further noted that, as of 2014, a project will commence for the introduction of a system like HBS in Terminal 1, and that the expected timetable for this is two years, subject to operational exigencies. That estimate was later amended, and the current projection for the introduction of the system in Terminal 1 is 2017. The Respondents emphasized that the changes made in Ben Gurion in regard to the vehicle entrances and the entrances to the terminals will also apply to Terminal 1.

8.         On Dec. 20, 2013, a hearing was held on the response to the petition before a three-judge panel (A. Grunis, CJ, and M. Naor and E. Arbel, JJ). At the end of the hearing, it was decided that it was not yet time to rule upon the petition, in light of the progress in integrating the changes in the security system in Ben Gurion, despite the delays. The Respondents were ordered to submit an update by April 30, 2014. Accordingly, in notices dated April 28, 2014 and November 2, 2014, the Respondents confirmed that the HBS system began operation in Terminal 3 of Ben Gurion as of March 2014. According to the Respondents, there is a possibility of limited recourse to the “old” screening procedure in cases of breakdowns and due to operational needs. The Respondents noted that the initial experience gained from operating the system was positive, and that it appeared that the system allowed for the required level of screening from a security perspective, while mitigating the attendant intrusion of strict screening of passengers in public. They reiterated that they intend to introduce the new technology in Terminal 1. In addition, The Respondents provided other details concerning additional steps taken, in addition to the installing of the HBS, to reduce the differences between passengers in the screening procedures. Thus, they stated, advanced screening devices had been purchased that would reduce the need for the physical examination of passengers. They added that such gates had been purchased for Ben Gurion, and an additional purchase was planned for the Eilat airport.

9.         In light of the above developments, the position of the Respondents is that the petition should be dismissed. In their view, the claims made in regard to the security screening procedures in place at the time the petition was submitted are no longer relevant, while the claims regarding the current changes are not yet ripe for a decision. The Respondents are of the opinion that they should be allowed time to evaluate the effects of the changes upon passenger screening procedures. However, the Respondents expressed their commitment to continuing their efforts to reduce the offense caused to individuals by security screening procedures in the airports. According to the Respondents: “The treatment of the broad issue raised by the petition is over but not completed. The Respondents are committed to continue and persist in implementing technological solutions, while diminishing the injury caused by public exposure and the character of strict security screening” (see para. 4 of the Respondents’ notice of April 28, 2014).

10.       The position of the Petitioner has consistently been that the question raised by the petition concerns the lawfulness of the use of the criterion of ethnicity as a basis for adopting differential screening methods for a specific group of Israeli citizens. In its view, this is a fundamental question. The problem in the very distinction on the basis of ethnicity will not be resolved, it argues, even if all the changes in the security procedures detailed above are fully implemented. The Plaintiff argues that even the Respondent admits that the technological and other changes will not lead to uniformity in the security procedures, and at most, they will lessen the discomfort felt by Arab citizens in the airports. The Petitioner also criticizes the HBS system itself. In its view, it is unclear what criteria are employed for deciding whether to carry out a physical inspection of hand luggage that has been scanned by the new system. According to the Petitioner, the changes adopted do not address other elements of screening that discriminate against Arab citizens, such as the inspection of the hand luggage of passengers, their pre-check-in questioning in Israel and on flights of Israeli carriers flying to Israel. In addition, the Petitioner complains of the recurring delays in the date for the planned implementation of the HBS system in Ben Gurion, and that as far as Terminal 1 and the other domestic airports are concerned, there are only intentions for future implementation of the new technology. The Petitioner also argues that it is unclear what contribution the Security Center – which provides services to government ministries and companies – makes to advancing equality between Arab and Jewish citizens of Israel in the security screening process. In addition, the Petitioner emphasizes that introducing screening devices that perform full-body scans raises significant problems, in and of itself, due to the infringement of privacy attendant to their use.

11.       On Nov. 23, 2014, another hearing was held before this Court. In the course of that ex parte hearing, we were presented with classified information in regard to the changes made in the security screening procedures. In light of that information, and in light of all the developments made over the years that this petition has been pending, we are under the impression that the Respondents have gone a long way in increasing equality in the screening process. It is clear that significant efforts have been made to implement technological solutions that will limit differences in the screening process, to the extent possible, while maintaining an appropriate level of security, which is indisputably required in the field of air transport. By their very nature, such changes demand time, and are contingent upon the cooperation of many parties. As noted, the HBS technology is currently operating in Terminal 1 of Ben Gurion, which is the main hub of Israel’s air transport. That technology enables the examination of checked baggage without a need for the passenger’s presence, and while significantly reducing the public exposure that formerly characterized the screening of certain passengers. A similar system is planned for Terminal 1. While the screening process is not identical for all passengers, and some baggage undergoes greater scrutiny, the distinction is based upon technological indicators. Although recourse to the “old” screening process may occur in cases of breakdowns, that possibility is reserved for exceptional cases in which the need may arise in order to ensure the proper functioning of Ben Gurion. Changes have also been made in the domestic airports, which include the introduction of new technologies. Some of those airports are slated for relocation, and according to the Respondents, the screening procedures currently employed in Terminal 3 will be implemented at the new locations. In addition to the changes in the system for screening checked baggage, scanning gates will be employed to reduce the need for the physical inspection of passengers. Those changes are in addition to earlier technological changes in the screening procedures at the vehicle entrance of Ben Gurion and at the entrances to the passenger terminal.

12.       Under these circumstances, we are of the opinion that, at present, the petition has exhausted itself (and compare: HCJ 2467/05 Gorenberg v. Director of the IDF and Defense Establishment Archives (Jan. 13, 2010); HCJ 1254/10 Anonymous v. Population, Immigration and Border Crossing Authority – Ministry of the Interior (April 4, 2012); HCJ 3091/99 Association for Civil Rights in Israel v. Knesset (May 8, 2012)). The Petitioner’s claims in regard to the screening procedures prior to the introduction of the HBS system and the other changes have been rendered superfluous. Looking to the future, it is as yet too early to evaluate the effect of those changes upon the extent of harm to individual rights involved in the screening process. We must wait and see whether the significant changes introduced will, indeed, help reduce expressions of distinction among different groups of Israeli citizens in the airport screening process. We should note that the case before us is not one in which the authorities have sat on their hands and refrained from correcting a situation that poses an unnecessary infringement of individual rights. The Respondents are aware of their responsibility to address this issue, and expressed their intention to implement and initiate additional changes in the screening process, which are intended to contend with the problems raised in the petition. We are of the opinion that the authorities should be permitted to complete their work and collect data in regard to the effect of the changes that have been implemented, before subjecting the fundamental questions to judicial review.

13.       We are aware of the Petitioner’s stance that any distinction between Israeli citizens that is based upon ethnicity – even if it is “behind the scenes” and not visible – infringes human dignity, equality, freedom of movement and privacy. As opposed to that, the alternative of strict, uniform screening of all passengers also raises significant problems, and according to the Respondents, such screening cannot be implemented without causing extreme harm to the proper functioning of the airports and to the effectiveness of security screening. Finding the appropriate balance between the need for the security of air transport and the reasonable functioning of the airports, and protecting individual rights is a particularly difficult task. We must bear in mind that an act of terrorism carried out against an airplane may result in the loss of many lives. Israel is not the only country faced with this challenge, although it cannot be denied that it also faces certain unique problems due to the nature of the security threats with which it must contend. For the reasons stated above, we are not ruling upon the fundamental issue at this time. If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

14.       The petition is, therefore, dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents will pay the Petitioner’s costs in the amount of NIS 30,000.

 

                                                                                                            Chief Justice (ret.)

Chief Justice M. Naor:

I concur.

                                                                                                            Chief Justice

 

Deputy Chief Justice E. Rubinstein:

1.         I concur in the opinion of my colleague the former Chief Justice. We are concerned with one of the most sensitive subjects in the relationship between the state and its Arab citizens, as my colleague observed in para. 13. The situation in which the State of Israel finds itself requires a very delicate balance. On the one hand, in addressing security screening, we are treating of human dignity as such, and to say more would be superfluous. On the other hand, the heavy burden placed upon the security authorities by the security situation that surrounds us cannot be ignored. This is nothing new. In Mapp 6763/06 Khiat v. Airports Authority (2006), I had the opportunity to state (at para. 10):

“We are concerned with a sensitive matter. It is doubtful whether there is another nation that is called upon to make such a delicate balance between the need for equality for all the citizens of the state – not merely in words but in action – and security needs that none, including the petitioners, dispute. The subject of the security screening of Israel’s Arab citizens in various places – one of a collection of subjects that require fair and balanced treatment – arises from time to time over the years. In a lecture that I delivered at the Faculty of Law in Jerusalem on May 25, 2002, when I was still serving as Attorney General, I noted – in the midst of terror – that ‘I am personally conducting a constant dialog with the security services in regard to security screening, in order to prevent unnecessary harm to the human dignity of Arabs, even in times of stress. I do not relent on that subject, even at this time’ (“The State and Israeli Arabs: The Struggle for Equality in the Framework of an Agonized Jewish and Democratic State” (In Memory of Justice Haim Cohn), 3 Kiryat Mishpat 107, 112 (5763) (Hebrew), reprinted in my book Paths of Governance and Law, 293, 298 (Hebrew)). I believe that awareness of this subject, in the instant case in which we are concerned with the airports, as well, has already penetrated to some degree, and has found a place in the public agencies, as it should.”

2.         Indeed, as my colleague has shown, the Respondents are striving to improve screening in this regard in various ways. The Respondents should be encouraged in every way to continue in those efforts to the extent possible. As a Jewish and democratic state, we should be particularly sensitive. As stated, I concur with my colleague.

                                                                                                Deputy Chief Justice

 

Decided as stated in the opinion of Chief Justice (ret.) A. Grunis.

Given this 19^th day of Adar 5775 (March 3, 2015).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Decided in the majority opinion of President Barak, against the opinion of Justice

 

M. Cheshin.

 

Today, 16 Av 5762 (July 25, 2002)

 

 

 

IN THE

SUPREME COURT OF THE STATE OF ISRAEL SITTING AS THE

HIGH COURT OF JUSTICE

 

 

HCJ 355/79 HCJ 370/79 HCJ 373/79 HCJ 391/79

 

Before: Hon. President M. Landau

Hon. Vice President H. Cohen Hon. Justice A. Barak

 

 

Petitioners:   1. Aryeh Ben Binyamin Katlan,

2.            Shimon Tzion Dovivechi,

3.            Meir Ben Aharon Marciano v.

Respondents: 1. Prison service

2. Ramla Detention Center Administration

 

 

Argued:         8 Av 5739 (August 1, 1979)

9 Kislev 5740 (November 29, 1979)

Decided:        24 Nissan 5740 (April 10, 1980)

 

 

The Supreme Court sitting as the High Court of Justice

[April 10, 1980]

Before President M. Landau, Vice President H. Cohen and Justice A. Barak

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: The Prison Service was struggling with the phenomena of drugs smuggling into the Ramla Detention Centre by inmates who swallowed drugs packages while outside the Centre. Prison authorities decided to deal with the matter by performing enemas on detainees. On July 31, 1979 the Prison Authority issued a directive regulating a policy of administering enema’s to detainees, where the warden of the Detention Centre established probable cause to suspect that the detainee was smuggling drugs inside his body. The procedure was to be performed discreetly in a manner consistent with all hygiene rules and medical guidelines. The directive allowed carrying out an enema against the will of the detainee if a doctor provided assurances that it would not be detrimental to his health. If the inmate resisted and the medical staff believed his resistance made it is impossible to conduct the procedure, the detainee would be put into solitary confinement for no longer than 48 hours, in order to supervise the discharge of the drugs. Each of the Petitioners had been administered an enema, but no drugs were found. The main question arising from the petitions was whether the Respondents were authorized to perform enemas on the detainees without their consent.

 

Held: Every person in Israel, including inmates and detainees, has a fundamental right to physical wellbeing and human dignity. The performance of enemas on detainees without their consent and without medical justifications, infringes these rights. Therefore, the Court held that for the Prison Service to be able to administer such procedure there must be a statute allowing them. It was determined that although Section 5 of the 1971 Prisons Ordinance permitted the searching for and confiscation of prohibited items, it did not allow for the search to be invasive. The Court ruled that the term "search" used in the Ordinance refers only to search of [over] the inmate's body and not to an invasion of his body. It reflected that a search inside the body of the person may lead to consequences that are inconsistent with human rights in Israel. The court determined that the authority to maintain order and discipline within the prison does not include the power to conduct invasive searches. Thus, the Court adjudicated that the directive that allowed for the performance of enemas on detainees, without their consent, and the procedures that were carried out in accordance with it, were illegal. It further determined that the best way to deal with the matter concerned was through primary legislation. President Landau preferred not to provide the Knesset with guidance on how to resolve the issue and determine when it is justified to conduct an invasive search against the detainee's will. He noted that the prevention of drug crimes in detention facilities and prisons is necessary, not only in order prevent lawlessness, but also for the protection of weaker prisoners from stronger ones.

 

 

On behalf of the Petitioners: Adv. S. Ziv (Aryeh Ben Binyamin Katlan)

Pro Se (Meir Ben Aharon Marciano, Shimon Dovivechi) On behalf of the Respondents: Adv. M. Naor

 

JUDGMENT

 

Justice A. Barak

 

1.            A significant amount of dangerous drugs have been smuggled into the Ramla Detention Center.

[Over time], the ability to smuggle drugs into the detention center has improved and the main importers [of the drugs] are the detainees themselves. Every evening, approximately one hundred detainees are returned to the detention center after being questioned at the police station or after appearing in court. Apparently, they obtain the dangerous drugs in the hallways of the court or at the police station when they have the opportunity to meet with friends or suppliers. Although the detainee is accompanied by a police officer, all that is needed is a momentary distraction for the detainee to obtain the drugs and either hide them under his tongue or swallow them. The drugs are packaged so that they will not break up when swallowed and remain intact inside the body. Once back in the detention center, the detainee discharges the drugs upon defecating. The drugs are then available to the detainee either for personal use or as a way of gaining power and standing in the detention center. According to the Prison Service, in exchange for the drugs, the detainee may obtain servants and partners for homosexual intercourse. Drug smuggling has created an environment of interdependence, and violence may be expected to break out any time a detainee breaks the “rules.”

2.            The prison authorities must face this serious phenomenon. They have tested various alternatives [in order to try to solve the problem]. External body checks have proven fruitless because the drugs are inside the detainee's body. According to the Prison service, isolating the detainee until he defecates is ineffective because reality has proven that the detainees do not recoil from re-swallowing the drugs after passing them. After trial and error, the Prison service

 

concluded that the only way [of dealing with the phenomenon] was by administering an enema to the [suspected] detainee. On July 31, 1979, the prison’s administration approved the following procedure. The terms of the directive state that the warden of the detention center may order the administration of an enema only when there is probable cause, based on reliable evidence, to suspect that the detainee has drugs inside of him. The enema can only be administered by a medic under the professional auspices of the medical department. The enema is administered privately, discreetly and in a manner consistent with all hygiene rules and medical guidelines. The detainee is offered the opportunity to sign a consent form stating that he is willing to undergo the procedure. If he refuses, the warden of the detention center may order the procedure against the will of the detainee provided there is a signed statement from a doctor to the effect that the procedure will not harm the health of [the detainee]. If the detainee forcefully resists the procedure and the head of the medical clinic determines that it would be impossible to administer the procedure due to the detainee’s resistance, the detainee is placed in solitary confinement for no longer than 48 hours, in order to supervise and monitor the discharge of the drugs. Isolation for longer than 48 hours requires the approval of the Commissioner of the Prison service.

3.            Enemas that were conducted in the Prison Service in the spirit of the [aforementioned] procedure, even before it was formulated in writing, [produced impressive results]. Since the opening of the Ramla Detention Center, prison officials have intercepted a significant amount of dangerous drugs (44 hashish joints, 200 grams of opium, 17 grams of heroin, 7 grams of cocaine, hundreds of methadone tablets and hundreds of other pills). The vast majority of these drugs were discovered by means of the administration of an enema. A study conducted at the end of 1978 revealed that approximately 70% of the detention center’s population use dangerous drugs. Another study conducted in April 1979 revealed that drug use fell to 2%. Prison officials credit

 

the use of the enema procedure as the reason for this decline. Furthermore, the significant decline in the amount of dangerous drugs successfully smuggled into the detention center has positive residual effects, as there are no longer stabbings, instances of homosexual intercourse or other violent phenomena, [associated] side effects of the use of drugs.

According to intelligence gathered by relevant authorities, the fear of being caught with drugs during the administration of an enema prevents detainees from using this method [of drug smuggling].

4.            The administration of the detention center had intelligence that [established] reasonable grounds to assume that each one of the Petitioners in these four petitions carried dangerous drugs inside his body. In light of this information, each one of them was administered an enema, but drugs were not found. The Respondents claim that the Petitioners consented to have the enema administered, but the Petitioners deny that this is so. Even though there is ample reason to believe the detainees did consent in writing to the procedure, counsel for the Respondent has agreed that we adjudicate this case on the assumption that the Petitioners were administered an enema without consent and despite their resistance (they ceased to resist before the enema was administered). The Petitioners claim, each one in his own words, that the administration of an enema is humiliating, degrading and violates their privacy and dignity. The question before us is whether the Respondent is authorized to order the procedure without the consent of the detainee.

5.            Every person in Israel is entitled to the fundamental right of physical wellbeing and to the protection of their right to human dignity. These rights are included in the “scroll of judicial rights”, as President Landau put it in HCJ 112/77 Fogel v. Israel Broadcast Authority, IsrSC 31(3) 657. Even detainees and inmates are entitled to these rights. Prison walls do not sever a detainee’s right to human dignity. While the nature of life in prison does infringe upon many of

 

the rights of a free individual (see HCJ 269/69 New Communist Party v. Police Minister, IsrSC 23(2) 233; HCJ 881/78 Mutzlah v. Warden of Deman Prison, IsrSC 33(1) 139), prison life does not require the deprivation of a detainee’s right to physical wellbeing and protection from infringement of his human dignity. His freedom is taken away, not his rights as a human being. The administration of an enema to a detainee without his consent, without any medical reason, violates his physical well being and infringes upon his privacy and his human dignity. Referring to such an intrusion into one’s body, Justice Frankfurter said, “This is conduct that shocks the conscience.” (Rochin v. People of California, 342 U.S 165, 72 S. Ct 205, 209).

Therefore, for the Prison service to be able to administer an enema without the consent of the detainee, and thereby justify a potential criminal offence and a civil act of battery, there must be a statute allowing them to do so. Ms. Naor, who, on behalf of the Respondents made an exhaustive effort to present a comprehensive and balanced picture of the problem, pointed to two legal sources which may authorize the Prison service to administer an enema to detainees and inmates. The first is a law which allows the Prison service to search detainees and inmates, and the second is a law which authorizes the Prison service to maintain order in prisons. Do these statutes serve as a statutory basis for the administration of an enema?

6.            Section 5 of the Prisons Ordinance (new version) states, “During the intake of an inmate, he shall be searched and any prohibited items are to be confiscated.” The term “inmate,” as used in this ordinance, includes detainees. Section 40(a) of the ordinance says, “Inmates are to be searched from time to time as established, and prohibited items are to be confiscated.” The original version of the ordinance stated in Section 54(1) that, “Every prisoner shall be searched on admission and at such times subsequently as may be prescribed, and all prohibited articles shall be taken from him” [English original]. It seems to us that the [Hebrew] terms [for] “shall be

 

searched” or “every inmate shall be searched,” alike the English term “searched,” allow for a search of [over] the inmate's body. However, the plain language of these terms does not seem to allow for an invasion of [inside] the inmate's body. The distinction between the outside of the inmate’s body and the inside of his body is not always easy and no scientific method of distinguishing has been suggested to us. In our opinion this distinction is grounded in common sense, and according to this, the administration of an enema, needle or a scalpel is not in the category of a “search.”

7.            The State’s approach that a “search” includes a search inside the body of the person subject to the search may lead to harsh consequences to human freedom in Israel. The authority of the Prison service to conduct searches is not limited to detainees, but applies to those visiting the prisons as well (Section 40(b) of the Prisons Ordinance). Furthermore, this authority is not unique to the Prison services, as other authorities are authorized [to conduct searches] as well, according to various legislation (See, e.g., Section 184 of the Tax Ordinance (new version); see also, LIBAI, RULES OF ARREST AND RELEASE 65 on). Above all, an arresting police officer may search the body and the belongings of an arrestee (Section 22(a) of the 5729/1969 Criminal Procedure Ordinance (arrest and search) (new version)), and the officer is permitted to check the belongings and the body of a person in the course of a house search (Section 29). If we are to allow searches to extend into the bodies of detainees via the authorization to search, we would be unable to prevent it in any other situation where searches are permitted. What would stop an officer who has reasonable suspicion that a suspect swallowed dangerous drugs from asking a doctor to obtain a blood sample, pump the person’s stomach, administer an enema or even perform surgery? In In re Guzzardi, 84 F. Supp. 294, 295 (1949), Justice Atwell stated:

 

If a stomach pump may be used, then the surgeon’s knife may be used. If the stomach pump can be justified, then the opening of one's person by the surgeon's knife can be justified [.] We would then have returned to trial by ordeal which has long since been abolished by right thinking, liberty-loving people.

Citing the above case, Justice Weinberger said with regards to the use of a stomach pump via the authorization to search:

We may venture a little further into the realm of conjecture than did the judge in the case just read from to consider whether if a search such as was made in the instant case may be approved would it not likewise follow that if the narcotics after being swallowed has passed from the stomach to the blood stream some officers might feel it incumbent upon them to drain the defendant of part of his life-blood in an effort to discover the hidden evidence?

(U.S v. Willis, 85 F. Supp 745, 748).

 

Indeed, this prediction became a reality in the United States in Rochin, where, after a violent exchange between police and a suspect and an unauthorized search of the suspect’s home, an emetic was forced into the suspect through his nostrils, making him throw up the drugs he had swallowed. [ In a decision written] by Justice Frankfurter, the Supreme Court invalidated that search, and added that it shocks the conscious and that such methods “are methods too close to the rack and screw to permit of constitutional differentiation.”

Over the years this rule has been narrowed despite the vigorous opposition of a growing minority of U.S. Supreme Court justices such as Justices Warren, Black, Douglas, and Fortas. It was determined that it is not the mere invasion into the suspect's body that shocks the conscious,

, rather it is the totality of the circumstances of the case. Therefore, the U.S. Supreme Court has held that drawing blood from a suspect -whether conscious or not - is not forbidden per se, because the act itself does not shock the conscious (See Breithaupt v. Abrams, 352 U.S. 408; Schmerber v. California, 348 U.S 757). Lower courts have extended these rules and have held

 

that a similar approach applies to various methods of stomach pumping used to uncover dangerous drugs (See, Barbour, Constitutionality of Stomach Searches, 10 U.S.F. L. REV.93 (1975), which discusses the extensive ruling in this matter). Recently, [a U.S. Court] has gone so far as to issue a search warrant allowing [authorities] to surgically remove a bullet from the body of a suspect (See Crowder v. U.S., 543 F. 2d 312).

However, it is questionable whether these decisions are consistent with the few U.S. Supreme Court decisions addressing this matter, and, most recently. Indeed, the emerging trend is to limit the authority to conduct invasive body searches (See Adams v. State of Indiana, 299

N.E. 2d 834; People v. Bracamote, 540 P. 2d 624). Nevertheless, the authority of the government to administer an enema or pump someone’s stomach has yet to be decided by the U.S. Supreme Court. The only time the U.S. Supreme Court has directly addressed this matter was in Rochin and the act was deemed illegal. I am in doubt as to whether the development of the rule in the lower courts which relied upon Breithaupt and Schmerber (which dealt with drawing blood and not the administration of an enema or stomach pumping), are consistent with the principles established by the U.S. Supreme Court in the aforementioned cases. Justice Brennan’s comments at the end of his decision in Schmerber should be noted (at 772):

The integrity of an individual's person is a cherished value of our society. That we today hold that the State’s minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions or intrusions under other conditions.

8.            We should be careful when looking towards U.S. law. Just as we are not as strict as them, as we do not exclude evidence that was obtained illegally on the basis of the illegality of its obtainment, we are also not as lenient as they are [in other respects]. Absent a statute permitting it,  we  cannot  allow  a  search  inside  someone’s  body  without  his  consent  or  a  medical

 

justification, whatever the circumstances are. Our guiding principle is the one stated by U.S. Supreme Court President Warren who wrote the dissenting opinion in Breithaupt v. Abrams, 352

U.S 408, 414 (with Justices Black and Douglas joining):

 

Law enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids whether they contemplate doing it by force or by stealth.

Taking blood from an adult without his consent is illegal in England. The question arose in S.v.S;

 

W.v. Official Solicitor (1972) A.C 24, 43, where Lord Reid stated the following, which is also appropriate for the case before us:

There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups détat but by gradual erosion; and often it is the first step that counts. So it would be unwise to make even minor concessions.

We will follow this path as well. We have already held that blood samples cannot be drawn from a suspect without his consent (See CrimA 184/62 Peretz v. Attorney General, [1963] IsrSC 17, 2104). In that spirit, we hold today that search authorization does not allow for an invasive search inside a person’s body, whether a detainee, an inmate or a suspect. It may be true that the days in which a person’s home is his castle have passed, but we have not reached the point where the inside of someone’s body is open to all. In the Canadian case, Le Lapurte and the Queen (1972) 29 D.L.R 3d 652, the court determined that a justice is not authorized to issue a search warrant pursuant to which a suspect will be cut open in order to have a bullet removed from his shoulder which was necessary for his pending trial. Justice Hugessen wrote:

If the police are today to be authorized to probe into a man's shoulder for evidence against him, what is to prevent them tomorrow from opening his brain or other vital

 

organs for the same purpose. The investigation of crime would no doubt be thereby rendered easier, but I do not think that we can, in the name of efficiency, justify the wholesale mutilation of suspected persons. The criminal law has always had to -strike the precarious balance between the protection of society on the one hand and the protection of the rights of the individual members of such society on the other. Both rights are equally important, but any conflict between them must wherever possible be resolved in a manner most compatible with individual human dignity. Even if the operation proposed were minor, and the evidence is that it is not, I would not be prepared to sanction it and I do not do so. The Crowder case may or may not be the law in the United States; it is not the law in Canada.

This applies to our case as well.

 

9.            The Prison service has been given extensive authority to maintain order and discipline within the prison (See Sections 76, 87 of the Prisons Ordinance). It is within this framework that the 5738/1978 Prison Regulations state:

“A prison guard is permitted to use all reasonable means, including force, to maintain order, to protect a guard or an inmate, or to prevent an inmate’s escape.”

According to Ms. Naor, this regulation authorizes a prison guard to use force to find dangerous drugs that the detainee has swallowed. We do not accept this approach. This regulation was not enacted for this purpose, and even if it [the regulation] would purport to permit penetration into the inmate's body in order to find dangerous drugs, I would say that it is outside the bounds of the authority granted to the Interior Minister [who enacted  this regulation] by the Prisons Ordinance. “Maintaining order” is not an authorization to administer an enema without consent.

10.          Our conclusion is that the current policy, which allows the administration of an enema without consent, and the procedures performed in accordance with it it, are illegal. It is true that Respondent has a just and right motivation, but the means he used are not grounded in law. Our decision is not an easy one because it involves two important, but conflicting, interests in which a compromise is impossible. The first interest is that of every person, including detainees and

 

inmates, to physical well being and dignity, and the other is the interest of both inmates and the State to maintain order in the prisons and keep them free of the harm caused by dangerous drugs. These two interests are important to us. If it were possible, we would try to find the proper balance between them. However, the facts upon which we base our decision, as presented, do not allow for a balance of the interests. Therefore, there is no way for us to escape the fact that we must make a clear and definitive ruling, as our reasoning must be based upon the present legal framework.

We have concluded that the authorization to conduct searches on one hand and the authorization to maintain order on the other are not an appropriate legal instrument to settle the difficult issue presented by this petition (Cf. Bachelder, Use of Stomach Pump as Unreasonable Search and Seizure, 41 J. CRIM. L. CRIMINOLOGY AND POLICE 41 (1950)). Not only does the term “search” as it is normally used not allow for the intrusion into another’s body, but also appropriate legal policy, which is aware of the severe consequences of accepting the Respondent’s approach does not allow for it either. If, despite [our reasoning], the government believes that our decision is unsatisfactory regarding the situation in the prisons, it has the power to turn to the Knesset to solve the problem, and might even request urgent legislation addressing the matter. We believe that the best way to deal with this matter is through primary legislation which may authorize the [relevant] regulator to act (See LEIGN, POLICE POWERS ENGLAND AND WALES 193 (1975)). The legislative process, by its very nature, allows the legislature to thoroughly analyze the situation and examine all possible alternatives [and address questions such as:] is there choice other than performing an enema? Are there no better alternatives? Would it not be preferable to wait until [the inmate] defecates on his own (See U.S v. Cameron, 538 F.2d 254)? Are there no medical dangers in administering an enema especially in cases in

 

which the drugs are contained in an oversized container which may tear the inmate’s bowels (as was the case in Blefare v. U.S., 362 F.2d 870)? Are there no medical dangers in leaving the drugs inside the detainee’s body as sometimes the wrapping tears open, causing the drugs to penetrate the [detainee’s] circulatory system? What sort of suspicion justifies the use of an enema? These questions, along with others, should be analyzed in depth. If after doing so, the Knesset reaches the conclusion that there is no choice other than to continue using enemas as those administered by the procedures forming the basis for this petition, this will be  the conscious determination of the elected representatives. This determination, by its nature, will be limited to its specific circumstances , without bearing directly upon other issues discussed in this decision.

If my opinion is followed, the temporary order will be made permanent and the Respondents will be required to refrain from administering enemas to the Petitioners without their consent.

No order is given for costs.

 

 

 

Vice President H. Cohen

 

I agree.

 

Sections 22 and 29 of the 5729/1969 Criminal Procedure Ordinance (new  version) (arrests and searches) allows for the search of a person’s body or property. Ms. Naor, who commendably argued for the Respondent, argued that these clauses allow for the invasive search of one’s body in addition to external searches. The new version of the law says that “[searches may be conducted] in the body…” and not “on the body”. Although all other versions of the law are no longer valid, it cannot be claimed that the new version changes anything that was written

 

on this matter in the original version (Section 16(g) of the 5724/1964 Government and Legal Procedure Ordinance); and the original version of the law (Sections 11 and 22 of the Criminal Procedure Ordinance, chapter 33 of the Law of the Land of Israel) permitted the search of the person […]. The new version of the law does not change anything written in the old law when it states “in the property or the body” instead of “the person.” The intent of the law is, just as it was before, [to allow] for the search of a person including his clothing and the property that is with him. Nobody imagined that [such a search] would include an examination of his internal organs.

Even if we are to say that the text can tolerate such a broad (and deep) interpretation, it would be inconsistent with the intent of the legislature. Even if there is a court that dares to apply an interpretation which is inconsistent with the legislature's presumed intent, if the text justifies or requires such an interpretation, it would only be to increase the remedy, ensure justice and protect human rights. This would not be the case where such an interpretation would broaden the authority of the government and reduce human rights. In such circumstances, the court will [use] the legislature's intent as a fortified wall and barricade itself in order to protect human rights.

However, the Criminal Procedure Ordinance (arrests and searches) is not relevant to this case. The prison administration had no aspiration and no intent to search for illegal drugs outside of its powers emanating from the Prisons Ordinance and the relevant regulations enacted based upon it. Neither Section 5 nor Section 40 of the Prisons Ordinance (as cited by my colleague, Justice Barak in his opinion) use the term “in his body.” Section 5 describes the search “of an inmate” [literally in Hebrew: "in an inmate"] and Section 40 describes the search “of every inmate.” Therefore, there is no valid claim that [those terms also include invasive searches]. Furthermore, we obviously cannot use the [old] Criminal Procedure Ordinance (arrest and

 

searches) to understand the new version of the Prisons Ordinance although the English original uses the same idioms.

Nevertheless, the official translation of regulation 167 of the 1925 Prisons Regulations into Hebrew, which requires a thorough search of inmates when they are admitted to prison, states that “every inmate’s body must be thoroughly searched before being admitted to prison.” But, regulation 169, which also requires every inmate to be searched when returning from work outside of the prison, was not officially translated as requiring that inmates be searched “in their bodies” but rather that a search must be conducted “in them.” This tells us that the official translator did not see any distinction between “in him” and “in his body” as both are phrases which mean search the inmate. These regulations, which date back to the period of the British Mandate of Palestine, have since been superseded (see 5727/1967 Prisons Regulations), but neither the superseding regulations, nor the 5738/1978 Regulations, explain how the search is to be conducted (truth be told, did the 1925 Regulations did not add much to [explain] the Ordinance's provisions). Also, Section 113 of the Prisons Ordinance permits the [Interior] Minister to enact regulations on different issues including the medical examination and treatment of inmates and the preventative treatment of inmates, but not regarding invasive searches of inmates’ bodies, that is if you do not derive such power from the general and residual provision granting the minister the power to regulate anything “necessary for the efficient implementation of this Ordinance, the safety of guards, discipline and wellbeing of the inmates or the proper maintenance of the prison.” In my opinion, like that of my colleague, Justice Barak, and for the same reasons, even if we could find a power that allows the minister the authority to regulate this matter, it is preferable that it would be done through legislation. I would also overturn the

 

administrative rules of July 31 1979, according to which the prison authorities may conduct their searches, even if they were regulations, because they are unreasonable.

The reasonableness of regulations and, even more so, of administrative rules, is measured according to the measure that is acceptable to most people in a democratic society and in a State governed by the rule of law. There is no better measure than the principle of human dignity. A free and enlightened society differs from a wild and deprived society in the amount of dignity recognized for each and every person. This is reflected in a classic and sublime manner by the Mishna which states, “Therefore, but a single person was created, to teach that anyone who destroys a single life is considered by scripture as having destroyed an entire world; and anyone who saves a single life is considered by scripture to have saved an entire world. Also, for the sake of peace among humankind, so that no person should be able to say to his fellow, ‘My father is greater than your father…’ Therefore, each and every person is obligated to say, ‘For my sake was the world created.’” Babylonian Talmud, Sanhedrin, Chapter 4, Mishna 5. Just as everyone is obligated (not merely permitted) to say “for my sake was the world created,” everyone is also obligated to say, “The world was created for him no less than it was for me.” It was Hillel the Elder who said that the entire Torah can be summarized by one great rule of thumb: everyone is entitled to be treated with the same dignity that you would want to be treated with (Babylonian Talmud, Shabbat 31a). Treating others with dignity is not only a significant part of Jewish heritage, it is also a precondition for the guarantee of other rights and liberties, and it is the appropriate measure for reasonableness, as mentioned above.

My knowledgeable colleague, Justice Barak, cited very instructive examples from American and English jurisprudence to demonstrate that great justices and scholars in other countries also found that human dignity outweighs the legitimate needs of maintaining order. I

 

told myself, we need not [base our conclusion] only on these sources, as we may find a basis for this ruling in the teachings of our own Sages.

The obligation to follow not only the laws of the written Torah, but also the Rabbinical laws stems from the verse which states, “According to the laws that they teach you and the judgments that they tell you to do, you shall do; do not veer from what they tell you to the right or to the left.” (Deuteronomy 17:11). This is the basis for the law that anyone who disobeys the words of the Sages is in violation of a negative commandment [a term referring to commands that are worded in a negative imperative], as the verse says “do not veer.” (Maimonides, Laws of Rebelliousness 1:2). Our Sages have said that “[the importance of] human dignity is so great, it can set aside a negative commandment of the Torah.” (Babylonian Talmud Birakhot 19b, and other sources). Rabbi Bar Sheva interpreted this rule in front of Rabbi Kahana as referring specifically to the negative commandment of “do not veer,” meaning that human dignity trumps all Rabbinical commandments, which is to be distinguished from Biblical commandments, which are not set aside for the sake of human dignity.

However, this rule seems to contradict that which is stated in Proverbs 21:30, “There is no wisdom, understanding or counsel against God.” If God commands us to fulfill the directives of the Sages, how can the Sages exempt us from this command whether for human dignity reasons or any other reason? The answer is, as the Babylonian Talmud states, “Anything the Rabbis command us to do is pursuant to their authority which stems from the verse which states: ‘do not veer,’ but when human dignity is at stake, the Rabbis added a dispensation to their enactment.” The Rabbis who have the power to forbid something may also permit that which they have forbidden; and that which they have seen fit to forbid they decided to permit when human dignity is at issue.

 

The distinction between Biblical commandments, which are not superseded for human dignity, and Rabbinical commandments, which are, directly applies to this case as well. If we view a statute as a Biblical command and regulations as Rabbinical commands [when considering matters of human dignity], we may hold that concerns for human dignity may not override a statute, but may override a regulation. As we said, when we consider [the possibility of a forced invasion of a person's body, which involves infringement of human dignity], it is clear that only the legislature can regulate such an act. So long as [the legislature] has not permitted that, or as long as infringement of human dignity [it is not necessary in order to apply the law in good faith], human dignity is immune to all harms.

If this metaphor is not exact it is only because the written Torah is eternal and cannot be changed, while legislation is man-made and can be changed or annulled and is thus more like the oral law which was developed by the Sages. This can be a lesson for our legislature. Just as the Sages allowed for their prohibitions to be set aside when human dignity was at stake, the legislature should take care not to sacrifice human dignity on the altar of other needs.

The term “human dignity” has not been explicitly defined. However, wherever it is referenced [in Jewish sources], it suggests that harming one’s dignity refers to anytime a person is humiliated, shamed or shown contempt. This is how the [Talmud] views removing one’s clothes in public (Babylonian Talmud, Menahot 37b) or preventing one from reliving himself (Babylonian Talmud, Eruvin 41b). Likewise, a foul smelling body may be removed from a house on the Sabbath because of human dignity, as it is offensive to people and is dishonorable to the body (Maimonides, Laws of the Sabbath 26:23 (citing Babylonian Talmud, Shabbat 94b)). Similarly, while it is generally forbidden to move  heavy stones on the Sabbath, and  it is prohibited to move them from one domain to another, the Sages permitted moving sharp stones

 

to the roof, which were used to cleanse one’s self after defecating, because of human dignity (Babylonian Talmud, Shabbat 81a-b). (Do not be surprised that these stones were used for this purpose. Their size was only about that of a nut according to Rabbi Meir, or an egg according to Rabbi Yehuda; Rabbi Yohanan forbade using a stylus for this purpose on the Sabbath because, as Rashi interprets, it removes hair due to its sharpness; but some say it is forbidden to use pottery shards for this purpose even on a weekday because it is too dangerous; one who cleanses himself with lime or clay is prone to a disease which hurts the eyes and can be agonizing (Babylonian Talmud, Nedarim 22a), but will be protected from intestinal diseases. I have only added this because it is related to our topic on enemas).

On the other hand, we are required to act in order to prevent others from sinning, even if it harms their dignity. For example, one who sees his friend wearing [clothing containing a prohibited mixture of wool and linen], which is a Biblical prohibition (Deuteronomy 22:11), must tear off the clothing even in public, “and even if it is his teacher who has taught him wisdom, because human dignity does not override an explicit prohibition in the Torah” (Maimonides, Laws of Forbidden Mixtures 10:29). However, this only applies when the sin is clear to all and there is no doubt as to the sin being committed and the identity of the sinner. This is not the case if we are in doubt whether an article of clothing contains a forbidden mixture, in which case it is forbidden to touch the suspect in any harmful manner (Babylonian Talmud, Menahot 37b). The same applies here. If it is acceptable to enforce a prohibition by removing drugs from inside a person, this can only be when we know for certain that they are hiding drugs inside their body. However, it is not permitted merely to conduct an invasive search on someone for the purpose of determining whether a crime has been committed. In other words, these measures taken to “prevent sin” are only permitted when used to put a stop to a crime that has

 

already commenced; they were not meant to prevent an anticipated crime from being committed [in the future].

In conclusion, maintaining human  dignity  is so important, that it  trumps the [prohibition]of bringing drugs into prison, if the only way to prevent it is by infringement of human dignity and wellbeing of the inmate.

 

 

President Landau

 

I agree with everything my distinguished colleague, Justice Barak, wrote, and I also agree with the comments of my honorable friend, the Vice President, except for the advice he gives to the legislature when he says, “Just as the Sages allowed for their prohibitions to be set aside when human dignity is at stake, the legislature should take care not to sacrifice human dignity on the altar of other needs.” Later, my honorable colleague provides the legislature guidance of sorts when he says:

If it is acceptable to enforce a prohibition by removing drugs from inside a person, this can only be when we know for certain that they are hiding drugs inside their body. However, it is not permitted merely to conduct an invasive search on someone for the purpose of determining whether a crime has been committed.

In my opinion, it would be preferable for us not to provide the Knesset with guidance on how it should resolve this important issue and leave it with the difficult task of thoroughly researching the issue and determining when it is justified to conduct an invasive search inside a person’s body against his will, which is something this Court cannot do in the framework of such a petition. The presumption is that the members of the legislature will make human dignity a priority and legislate in a way that will not harm human dignity unless absolutely necessary and only in the most specific circumstances as defined by the legislature.

 

A blind eye cannot be turned to the serious situation existing in State prisons,  as described by the warden of the Ramla Detention Center in his affidavit, details of which were already cited by Justice Barak at the beginning of his opinion. We have a vital interest in preventing drug crimes in our detention facilities and prisons, not only to prevent lawlessness, but no less importantly to protect weaker prisoners from becoming the pawns of the stronger ones who may order them around and force them to unwillingly smuggle drugs into detention facilities or into prisons. The knowledge that an invasive bodily search may be conducted on any detainee or inmate returning to prison from a furlough or from court, based solely on a suspicion and not only when there is a clear proof that the individual is smuggling drugs, is likely to deter the stronger inmates from “enslaving” weaker ones and coercing them to carry the drugs in their bodies. This actually may protect their [the weaker prisoners'] dignity from being violated by their oppressors. As was stated in the affidavit, administering an enema, towards which we all feel understandable repugnance, has proven its effectiveness by the drastic reduction of drug consumption in detention facilities and prisons. It is therefore possible that we face vital interets that outweigh the importance of preserving one’s privacy in one’s own body. Finally, regarding the words of our Sages of blessed memory, they never closed their ears to a pressing need and always knew how to enact proper laws on a temporary basis as a preventative measure when they saw that the circumstances required such action in order to prevent bad things from happening (See ELON, MISHPAT IVRI VOL. 2, 413 on).

To summarize, it seems to me that this issue cannot be solved at either the administrative level, or at the regulatory level, due to the privacy right at stake. Only primary legislation which either speaks directly to the matter or explicitly authorizes another body to act can adequately address this matter. As to the content of such legislation, I would not pre-comit myself to a one

 

solution or another , nor would I make suggestions to the legislature as to how it should proceed on the matter.

 

 

The opinion of Justice Barak is accepted.

 

 

 

Decided Today, 24 Nissan 5740 (April 10, 1980).

The Supreme Court sitting as the High Court of Justice

HCJ 2442-11

CrimApp 4002/11

 

Before:                                                His Honor President A. Grunis                                                                                   His Honor Justice E. Rubinstein                                                                                 His Honor Justice H. Melcer

 

The Petitioner in HCJ 2442/11:           Haim Shtanger, Adv.

 

The Applicant in CrimApp 4002/11:  The State of Israel

 

V.

 

The Respondents in HCJ 2442/11:         1.     The Speaker of the Knesset

                                                                2.     The Government of Israel

 

The Respondents in CrimApp 4002/11: 1.     Hagai Zaguri

                                                                2.     Ramy Azran

                                                                3.     Yossi Mirilashvili

 

                                                                        Petition to Grant an Order Nisi and an Interim Order

                                                                        and a Request to Extend a Detention

 

Date of Session:                                           12^th of Tamuz, 5771 (July 14, 2011)

 

On behalf of the Petitioner

in HCJ 2442/11:                            Himself; Adv. Guy Halevy

 

On behalf of the Applicant

in CrimApp 4002/11:                    Adv. Shaul Cohen

 

On behalf of Respondent 1

in HCJ 2442/11:                            Adv. Dr. Gur Bligh

 

On behalf of Respondent 2

in HCJ 2442/11:                            Adv. Aner Helman

 

On behalf of Respondent 1

in CrimApp 4002/11:                    Adv. Avigdor Feldman

 

On behalf of Respondent 2

in CrimApp 4002/11:                    Adv. Moshe Sherman

 

 

 

 

 

 

 

 

J U D G M E N T

 

President A. Grunis:

 

1.The question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") stands at the center of the petition before us. These arrangements were added to the Detention Law as part of the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 8) Law, 5771-2011 (hereinafter: the "Amendment to the Detention Law" or the "Law") which was legislated by the Knesset on March 14, 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Court decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, will be appealed by permission and not as of right. The first arrangement therefore provides that, from now on, the option of a second appeal will be by permission only. The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days (and to re-order this from time to time). This, in cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

 

Background

 

2.The Criminal Procedure (Enforcement Powers – Detention) (Various Amendments) Legislative Memorandum, 5770-2010, upon which the Amendment to the Detention Law was enacted, detailed the reasoning for the new arrangements, which were incorporated into the Detention Law. It emerges from the legislative memorandum that the purpose of the first arrangement, which, as stated, addresses the revocation of the right to a second appeal and its transformation into an appeal by permission, was to reduce the number of detention hearings being held at the Supreme Court (hereinafter: the "First Arrangement"), and this is what was written in the memorandum:

 

"In light of the heavy workload imposed on the Supreme Court and the scope of appeal hearings, including "third instance" appeals, it is recommended to amend the law such that it will grant only one right of appeal on decisions regarding detention, release, violation of terms of bail, decisions on motions for reconsideration, while allowing the option of a second appeal by permission only. Additionally, in order to prevent courtroom hearings regarding the motion for permission to appeal, and in order to streamline the process, it is recommended that the Supreme Court hearing the second appeal (on a District Court's decision in an appeal) be authorized to dismiss an application in limine, based on the reasons detailed in the motion for permission to appeal, if it did not find there to be a cause justifying granting the application."

 

The purpose of the Second Arrangement, which addresses the extension of the period of detention until the end of proceedings to a period of up to 150 days, was to enable flexibility in extending detentions beyond the nine months prescribed in the Law, in unusual cases in which it is clear in advance that the maximum time period for extending the detention – 90 days – is not sufficient to exhaust the legal proceedings, even given efficient and practical management of the trial. The section specified the circumstances in which, in general, an extended detention extension will be necessary. For example, in cases of complex serious crimes or in cases in which there are a large number of defendants or witnesses (hereinafter: the "Second Arrangement").

 

3.A bill in the spirit of the said legislative memorandum (The Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010) was presented to the Knesset on July 13, 2010, as a government bill. On July 21, 2010, the Knesset plenum passed the bill in the first reading, and it was sent to the Constitution, Law and Justice Committee, to be deliberated and prepared for the second and third readings. The committee held two meetings regarding the bill. On March 14, 2011, the bill was debated in the Knesset plenum, in accordance with the updated draft that was prepared by the committee. The Knesset passed the entire bill in the second and third readings on that same day.

 

It will be noted that the First Arrangement, which addresses the right of a "third instance" appeal, underwent a number of changes over the years. At first, in Amendment no. 10 of the Detention Law of 1998 (S.H. 5748 no. 1261) the legislator distinguished between the right of a detainee to a second appeal (meaning, an appeal before the filing of an indictment) and the right of a defendant to a second appeal (meaning, an appeal after an indictment has been filed). Hence, it was prescribed that a detainee, a person released on bail, and a prosecutor may, as of right, appeal for the second time a decision regarding detainment, release, or a motion for reconsideration. In contrast, a defendant may only appeal "in a third instance" if given permission to do so by a Supreme Court judge. This provision was amended in 1995 (S.H. 5755 no. 1514), and the distinction between a "third instance" appeal prior to the filing of an indictment or thereafter was revoked, and a right to a second appeal was granted in both cases. In 1997 this section was revoked in its entirety, and was replaced by the arrangement, the change of which is deliberated in the petition before us (and which, as mentioned, allowed a second appeal as of right).

 

4.Here is the wording of the arrangement, as currently prescribed in the Detention Law. For the sake of convenience, the relevant statutory clauses are presented in their entirety and the additions to the Detention Law, which are the subject of our discussion, appear in bold:

 

Appeal of the Court's Decision	53. (a) A detainee, a person released on bail and a prosecutor may appeal a decision of a court on any matter relating to detention, release, violation of terms of bail or a decision on a motion for reconsideration, and a guarantor may appeal a matter of his guaranty before a court of appeals, which will hear the appeal by a single judge;   (a1) (1) Each of those specified in sub-section (a) may motion the Supreme Court to be granted permission to appeal a District Court decision in an appeal pursuant to sub-section (a) ;   (2) The Supreme Court shall hear the motion by a single judge, however, the Supreme Court may deny the motion in limine, without a hearing in the presence of the parties; if permission to appeal was so granted, the Supreme Court shall hear it by a single judge and it may hear the motion for permission to appeal as though it were the appeal. …
Release in the Absence of Judgment	61. (a) If, after an indictment was filed against a defendant, he was detained for a cumulative period of nine months, and his trial in the first instance did not conclude with a judgment, he shall be released from detainment, either with or without bail.   (b) (Cancelled)   (c) …
Extension or Renewal of Detention	62. (a) Notwithstanding the provisions of Sections 59 to 61, a Supreme Court judge may order the extension or renewal of a detention for a period which will not exceed 90 days, and may repeat that order from time to time, and he may also order the release of the defendant either with or without bail.   (b) Notwithstanding the stated in sub-section (a), if the Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

The Parties' Arguments

 

5.The Petitioner in HCJ 2442/11, an attorney by profession, filed his petition as a public petitioner. He requests that the Court declares the Amendment to the Detention Law void, based on two arguments. The first and main argument is a procedural argument and it relates to the legislative process of the Amendment to the Detention Law. According to this argument, during the legislative process, the Knesset deviated from the specific provisions prescribed in Sections 126 and 128 of the Knesset by-laws (hereinafter: the "By-Laws"), which delineate the manner of debating government bills. The Petitioner points to two central flaws in the process: First, after a reservation to a certain section was rejected, a separate vote was not conducted on the wording of the section as proposed by the Constitution, Law and Justice Committee (hereinafter: the "Constitution Committee"), but rather a vote was held on the wording of the section as proposed by the Constitution Committee together with the subsequent section, with respect to which no reservation had been submitted. This vote was conducted contrary to what is prescribed in Section 126 of the By-Laws, according to which it is necessary to vote separately on each section of the law with respect to which reservations were submitted. The second flaw relates to the fact that the chairperson of the Constitution Committee did not respond to the reservations that were submitted to some of the sections of the law, despite the fact that Section 126(f) of the By-Laws explicitly provides that "The chairperson of the committee or whomever is appointed thereby or by the committee, shall respond to those who submitted reservations." In light of these flaws, the Petitioner claims, the Knesset could not vote on the Law at the third reading, and therefore it is void ab initio.

 

6.The second argument raised by the Petitioner is an argument of substance. According to the Petitioner, the arrangements that were prescribed in the Amendment to the Detention Law are contrary to the Basic Law: Human Dignity and Liberty. The crux of the Petitioner's arguments was directed at the revocation of the right to a second appeal as of right and its transformation into an appeal by permission only. According to the Petitioner, one cannot compare between the scope of the right to appeal granted to a defendant in a primary proceeding and the scope of the right to appeal of a detainee, since the former is not necessarily being detained while his trial is being held. Furthermore, according to the Petitioner, the amendment to the Law is wrong in not distinguishing between an appeal filed by the detainee and an appeal filed by the State. According to this argument, one cannot compare between the right of the detainee to a second appeal on a decision to re-detain him (after the Magistrate Court ordered his release from detainment), and the right of the State to appeal a decision to release a defendant. According to the Petitioner, where the State appeals the Magistrate Court's decision, and the District Court accepts the appeal and orders detention, the detainee is not entitled even to one appeal as of right. Therefore, his rights are infringed. As for the second arrangement, about the possibility of extending a defendant's detention period until the end of proceedings for a period of up to 150 days, the Petitioner argued that the Law denies the detainee's right to have his matter examined and reviewed by a Supreme Court judge knowingly and in advance. Therefore, it is argued, this arrangement is not proportionate, does not befit the values of the State of Israel, was not meant for a proper purpose and infringes on a detainee's right of freedom in a scope which is greater than necessary. It will be noted that in the petition, the Petitioner also argued against the legality of an additional arrangement in the Amendment to the Detention Law, which allows the Court to order a maximum 72 hour detention given a prosecutor's declaration regarding an intention to motion the Supreme Court to extend the detention. In the hearing we held in the petition, the Petitioner stated that he withdraws his arguments against the legality of this arrangement.

 

7.It will be noted that CrimApp 4002/11 was joined to the hearing in the petition before us. In this case, a detention extension of 150 additional days beyond the nine months was requested. Incidentally to the hearing regarding the application to extend the detention, the defendants raised arguments regarding the legality of the Second Arrangement. In the decision dated June 14, 2011, it was ruled that the constitutional arguments that were voiced in the hearing before us and that primarily relate to the Second Arrangement, will be examined in the framework of the petition before us (Justice H. Melcer).

 

The Respondents' Response

 

8.The Knesset and the State (hereinafter together: the "Respondents"), filed separate responses to the petition, but their arguments were similar. Therefore, we shall present the essence of their arguments together. Both the Knesset and the State rejected both parts of the Petitioner's arguments. The Knesset's response specified the proceedings that preceded the vote on the Law. The Knesset confirmed in its response that Member of Knesset Ofir Akunis, who chaired the session, added the vote on Section 2 – to which reservations had not been submitted, to the vote on Section 1 of the bill, to which a reservation had been submitted and was rejected. However, according to the Knesset, the process was not flawed, and certainly not by a "flaw that goes to the root of the process", which would justify this Court's intervention in the legislative process. While the Respondents did not deny that according to the provisions of the By-Laws, the Knesset should have put each section for which reservations had been submitted to a separate vote, they argue that the fact that the vote was held for a section for which a reservation had been submitted along with a section for which a reservation had not been submitted, does not constitute a flaw that goes to the root of the matter. The Respondents argue that, as is apparent from the minutes of the Knesset plenum session, during the course of the second reading, the plenum de facto voted separately on each of the reservations that were submitted to the bill, and rejected them all. It further emerges from the minutes that in the votes in the second and third readings the Knesset plenum also positively confirmed the wording of all of the sections of the Law, in accordance with the proposal of the Constitution Committee. In the Knesset's response it was further argued that the technical flaw did not lead to any substantive impairment of the legislative process or to its fundamental objective, i.e., the realization of the right of participation by the Members of Knesset. This, so it was argued, is because Members of Knesset were given two opportunities to consider their position regarding the bill. It is argued that in fact, this practice of voting in an aggregated manner on a section of law for which reservations were submitted, together with an adjacent section for which no reservations were submitted, is customary at the Knesset in many cases. Therefore, the Knesset argued it should be deemed a kind of custom that projects onto the proper interpretation of Section 126 of the By-Laws. The Knesset further argued that pursuant to Section 126(c) of the By-Laws, the chairperson of the session may vote on consecutive sections in an aggregated manner, unless a Member of Knesset demanded to vote separately on each or any of them. In this case, it is argued, Member of Knesset Dov Khenin – who presented the reservations – did not request such a vote. According to the Knesset, this indicates that the Members of Knesset were not of the opinion that the voting process was significantly flawed or that their right to participate in the voting process was infringed.

 

9.The Respondents also rejected the argument that the chairperson of the Constitution Committee did not respond to the reservations to the bill. They argue that a review of the minutes of the Knesset session indicates that during the presentation of the bill the chairperson of the Constitution Committee explicitly related to the reservations and explained why they should be rejected. Therefore, the Respondents were of the opinion that the flaws in the legislative process against which the Petitioner is arguing, are simply technical flaws that at most constitute a slight deviation from the provisions of the By-Laws, and have no real impact on the legislative process.

 

10.The Respondents also requested to reject the substantive constitutional arguments that the Petitioner raised. In the Knesset's response it was even argued that these arguments should be dismissed in limine, since they were raised in a general manner without specifying the substance of the constitutional infringement or the reason why the infringement does not allegedly comply with the terms of the limitation clause. To the point, the Respondents argued that an examination of the substance of the Amendment to the Detention Law does not reveal an infringement of the detainees' basic rights, since the amendment does not relate to the original decision regarding the detention and does not deny the detainee's right to appeal the detention decision. The revocation of the right to a "third instance" appeal (i.e., a second appeal), as argued in the State's response, does not lead to an infringement of the constitutional right of freedom, since the freedom of the detainee or of the defendant was already denied by a previous judicial instance. It was further argued that the basic rights to freedom and dignity do not include the right that the matter of a concrete detention be heard by a third judicial instance – neither as of right nor by permission, as is indicated in the provisions of Section 17 of the Basic Law: The Judiciary, which deals with the right to appeal in Israeli law.

 

11.The Respondents also disagreed with the Petitioner's argument that there is an infringement of constitutional rights in light of the lack of distinction between an appeal submitted by the detainee and an appeal submitted by the State. They argue that it is not unusual because when a State’s appeal on the acquittal of the defendant as part of the primary trial is granted, the defendant also does not have a right to appeal such a judgment. In any event, it was argued, the detainee will have the option of presenting its arguments before an additional instance as part of the appeal procedures, regardless of the identity of the party appealing. This last matter, as it emerges from the Knesset's response, was also discussed at the Constitution Committee, where it was argued that it should be assumed that upon examining motions for permission to appeal, the Court will examine, among its considerations, whether the decision to detain was given following an appeal of the State and whether this prejudices the detainee in such a manner that justifies granting permission to appeal.

 

12.The Respondents also requested to reject the Petitioner's arguments regarding the constitutionality of the Second Arrangement, which allows a Supreme Court judge to extend a detention until the end of proceedings, for a period of up to 150 days. The State argued that since this amendment constitutes a new arrangement, which authorizes ordering the detention of a person, it infringes on the constitutional right of freedom. However, it was argued, the infringement of the right is limited and proportionate, since it is limited to unusual cases and reflects the balance underlying the bill between the principle of the finality of the process and the types of matters which should be examined in the Supreme Court, and the realization of the substantive rights of detainees and defendants.

 

13.It will be further noted that in its response, the State elaborated on the customary practice at the Ministry of Justice pursuant to which Ministry initiatives of legislation amendments in significant matters and matters of principle in the field of criminal procedure and evidence laws are presented for examination to the Minister of Justice's Criminal Procedure and Evidence Laws Advisory Committee (hereinafter: the "Committee"). The Committee is appointed by the Minister of Justice and is headed by a Supreme Court judge. The Committee is comprised of three additional judges (two District Court judges and one Magistrate Court judge), the Deputy Attorney General (Criminal), representatives of the State's Attorney, representatives of the Public Defender, representatives of the Israel Bar Association, a lawyer from the private sector, representatives of the Israel Police and representatives from academia. The State noted in its response that both of the arrangements being examined in this petition were presented to the Committee and that after the Committee examined them it recommended that the Minister of Justice act to amend the Detention Law so that the said arrangements would be prescribed.

 

Discussion

 

The Arguments regarding the Legislative Process of the Amendment to the Detention Law

 

14.The Petitioner's arguments regarding flaws in the legislative process of the Amendment to the Detention Law focus on the proceedings in the Knesset plenum during the second reading. According to the Petitioner, the legislative process did not comply with the provisions of Sections 126 and 128(a) of the Knesset By-Laws. Section 126 of the Knesset By-Laws, entitled "Proceedings for Second Reading" and Section 128(a) entitled "Voting at Second Reading", prescribe as follows:

 

126. (a) The discussion in the second reading shall begin with a speech on behalf of the committee, by the chairperson of the committee or a committee member appointed thereby for such purpose, or, in the chairperson's absence, by a committee member appointed thereby for that purpose by the committee, and the speech on behalf of the committee shall be deemed as a proposal to adopt the bill in the second reading.

 

(b) The chairperson shall put each of the sections of the bill to a separate vote.

 

(c) The chairperson may put consecutive sections for which no reservations were submitted to a vote together, unless a Member of Knesset demanded to vote separately on each or any of them or on one of them.

 

(d) If a reservation was recorded for a specific section, the person submitting the reservation shall be given the right to speak for five minutes to explain the reservation.

 

(e) The chairperson may, with the consent of the person submitting the reservation and of the chairperson of the committee, combine the explanations for the reservations of a number of sections at once.

 

(f) The chairperson of the committee, or whomever appointed thereby or by the committee for such purpose, shall respond to the reservations.

 

(g) The right granted to each member of government to speak on behalf of the government at any stage of the discussion is also granted, at the second reading, to the deputy minister whose ministry is in charge of implementing the proposed law.

 

…

 

128 (a) The chairperson shall first vote on the proposal of the party making the reservation; if the proposal by the party making the reservation is not adopted, the section, as drafted by the committee, shall be voted upon; if the proposal of the party making the reservation is adopted, he shall vote on the section as drafted in line with the reservation.

 

15.There is no dispute that Section 126 of the By-Laws explicitly provides that the chairperson of the session must put the sections of the bill to a vote one at a time, unless there are consecutive sections for which reservations were not registered – in which case the chairperson may put them to a collective vote (assuming he was not requested to act otherwise by one of the Members of Knesset). There is also no dispute that in accordance with that stated in Section 126 of the By-Laws, the chairperson of the Constitution Committee (or another committee member appointed thereby) should have presented the bill to the plenum and responded to reservations to the bill.

 

In the case at hand, the legislative process indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws. The chairperson of the session did not act in accordance with Section 126(c) in all that relates to voting on Section 1 of the bill (relating to the revocation of the right to appeal and its transformation into an appeal by permission), when it put Section 1 of the bill, with respect to which a reservation had been registered, to a vote along with Section 2 of the bill, with respect to which a reservation had not been registered. Additionally, the chairperson of the Constitution Committee did not respond to the reservations after these were presented by Member of Knesset Dov Khenin, but rather, as argued in the Knesset's response, the reservations should be deemed as having been given at the outset of his statement, when he presented the bill to the plenum. The question that arises is whether these deviations from the provisions of the By-Laws should lead to the conclusion that the Law is void or voidable, as the Petitioner claims.

 

The Court's Intervention in the Legislative Process

 

16.The legislative processes in Israel are prescribed, pursuant to Section 19 of the Basic Law: The Knesset, in the Knesset By-Laws. The Knesset By-Laws "prescribe provisions, pursuant to which the Knesset's authorities must act, in the house's 'internal' procedures" (HCJ 652/81 Sarid v. The Speaker of the Knesset, PD 36(2) 197, 202 (1982); hereinafter: the "Sarid Case"; see also Tzvi Inbar "The Legislative Processes in the Knesset" Hamishpat A 91 (5753)). Thus, in order for a "law" to pass, a series of provisions prescribed in the By-Laws, must be satisfied (see, HCJ 975/89 Nimrodi Land Development Ltd. v. The Speaker of the Knesset, PD 45(3), 154, 157 (1991); hereinafter: the "Nimrodi Case"). At the basis of the legislative process is the obligation to conduct three hearings in the Knesset plenum and to enable a discussion in the Knesset committee relevant to the bill, in order to prepare the bill for the second and third readings (ibid, ibid). The Knesset By-Laws distinguish between a private bill, which is presented by one or more Members of Knesset and a bill presented on behalf of the government. The Seventh Chapter of the Knesset By-Laws, which includes Sections 126 and 128, which are relevant to the case at hand, addresses discussions regarding bills on behalf of the government. This chapter outlines the legislative process from the submission of the bill to the Knesset, through the first reading and the discussions at the relevant Knesset committee and ending with tabling the bill for the second and third reading. Sections 126 and 128 focus specifically, on the particular procedures of voting on the bill at the second and third reading.

 

17.A series of rulings by this Court prescribes the conditions upon which the Court will intervene in internal parliamentary proceedings, and specifically, the circumstances in which a statue would be declared void on the grounds of flaws in the legislative process (see, inter alia, HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society Ltd v. The State of Israel, PD 59(2) 14 (2004) (hereinafter: the Poultry Farmers Case); HCJ 5131/03 Member of Knesset Litzman v. The Speaker of the Knesset, PD 59(1) 577 (2004)). In the first cases in which the scope of this Court's intervention in internal parliamentary proceedings was examined, the Court ruled that even though it is authorized to examine the Knesset's internal decisions, it will tend to intervene in internal parliamentary proceedings in a limited way, taking into consideration the extent of the alleged infringement of the fabric of the parliamentary relations (see, HCJ 761/86 Miari v. The Speaker of the Knesset, PD 42(4) 868 (1989) (hereinafter: the "Miari Case"); the Sarid Case; the Nimrodi Case). In accordance with this criterion, it was prescribed that when the alleged infringement is slight and "does not impact the structural foundations of our parliamentary system" (the "Sarid Case", page 204), the Court will tend to avoid intervening in the Knesset's internal working procedures (see also, the Miari Case, page 873; Suzie Navot "Twenty Years After the "Sarid Test": Revisiting Judicial Review of Parliamentary Decisions" Mechkarei Mishpat 19 721 (5762-5763)).

 

18.This case law, which allows limited review of the internal work of the Knesset, was interpreted even more narrowly in matters related to judicial review of the legislative process. Justice Barak elaborated on this in the Miari Case, on page 873, when ruling that:

 

"The High Court of Justice is not required to exercise every power with which it is vested. The Court has discretion in exercising the power. Exercising this discretion is of particular importance in matters related to the judicial review of the activity of entities of the legislative authority. Therefore, we will intervene in internal parliamentary proceedings only when there is a allegedly significant infringement which prejudices substantive values of our constitutional system… This self-restraint must be, first and foremost, exercised when the process in which the intervention is requested is the legislative process itself."

 

The constitutionality of the Arrangements Law was discussed during this Court's intervention in the legislative process in the Poultry Farmers Case. In this case Case it was held that the criteria for the Court's intervention in the legislative process, and for the declaration of a law as void due to flaws in the process of its legislation. Therefore, it was held that "the Court must examine, in each and every case, whether it was tainted by a flaw that "goes to the root of the process" which would justify judicial intervention, and that only a flaw that severely and significantly infringes on the fundamental principles of the legislative process in our parliamentary and constitutional system will justify judicial intervention in the legislative process (the Poultry Farmers Case, page 42, original emphases). The fundamental principles of the legislative process, so it was held in the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process (ibid, page 43).

 

19.Does the case before us indeed involve such a flaw that “goes to the root of the process" and severely and significantly infringes on the fundamental principles of the legislative process? The answer is no. The underlying purpose of the process prescribed in the Seventh Chapter of the Knesset By-Laws, and particularly in Sections 126 and 128 which are relevant to the case at hand, is to ensure that the reservations to the sections of the bill being voted on are heard. An additional purpose underlying the legislative process is to ensure that the Members of Knesset choose, in accordance with their vote, one of the drafts for each of the sections of the bill – either the draft that was proposed by the Constitution Committee or the draft that was proposed by the Members of Knesset who raised reservations. In order to realize these purposes, Section 126 prescribes a detailed procedure, in the framework of which the Members of Knesset are presented with drafts of the sections proposed in the bill, and those raising reservations are given an opportunity to express their position. Section 126 further prescribes that the chairperson of the relevant committee (or someone on his behalf) respond to the reservations and present the committee's position regarding the arguments that were raised by those with reservations. After the various positions are presented to the Members of Knesset they are requested to vote in the second reading. The chairperson of the session is required to put each section and reservation to a vote one at a time to ensure that the Members of Knesset are aware that these sections were subject to some kind of dispute, and that by their vote they are supporting one of the proposed drafts.

 

20.In the case before us the chairperson of the session acted properly with respect to most of the sections in the bill, but did not do so when putting section 1 of the bill to a vote. A review of the minutes of the session reveals that the Members of Knesset first voted on the reservation regarding section 1, and only after it was rejected did they move on to vote on section 1, but along with section 2 of the Law. Indeed, according to the provisions of the By-Laws, the Members of Knesset should have voted on section 1 separately from the vote on section 2. However, this deviation does not constitute "a substantial flaw that goes to the root of the process". Due to the separate vote on the reservation, which preceded the vote on the section, it appears that a distinction was made between the draft proposed by those who raised the reservation and the draft that was proposed by the committee. As such, the primary purpose of the legislative process was realized, and therefore no room for the argument that the root of the process was flawed in a manner justifying declaring the Law void.

 

21.The argument that the legislative process was substantively flawed because the chairperson of the Constitution Committee did not respond to the reservations that were raised by Member of Knesset Dov Khenin, is also to be rejected. As mentioned, the position of the Knesset was that the chairperson of the Constitution Committee responded to the reservations when presenting the Law for the second and third reading. Personally, I doubt if the intention of the section was an advance response to reservations that are yet to be presented during the discussion. As stated above, Section 126 prescribes a certain chronological sequence in order to allow the committee that examined the bill to convince the Members of Knesset to support the bill in accordance with the draft proposed. Reversing the order – so that the response to a potential reservation is made before the reservation is presented –misses to some extent the point underlying the section. Therefore, it would be better had they avoided that and acted in accordance with the sequence prescribed in Section 126. However, in the case at hand the minutes of the session indicate that this deviation did not lead to a significant flaw at the root of the process. It seems that Member of Knesset David Rotem, the chairperson of the Constitution Committee, knew of the reservation that Member of Knesset Dov Khenin would present after him, and therefore explicitly stated:

 

"The Hadash group proposed a few reservations which request not to cancel the right to a second appeal in decisions regarding detention and to allow the extension of detention beyond the nine months by 100 days instead of by the 150 days proposed by the committee, and to enable a "bridging" detention of 36 hours instead of 72. We request to reject the reservations, which upset the balance between making the court procedures more efficient and the detainee's rights" (Divrei Haknesset 36 42 (2011)).

 

After Member of Knesset Dov Khenin finished presenting the reservations, the chairperson of the session turned to Member of Knesset Rotem and asked him if he wishes to respond. Once he received a negative answer (from Member of Knesset Ze’ev Bielski) the chairperson said: "He doesn't want to, we shall proceed immediately to voting" (Minutes of the Knesset plenum dated March 14, 2011, page 47. The Minutes were attached to the petition and marked Annex C). It merges from here that the option of relating to the reservations was examined but rejected, probably because of the things voiced by Member of Knesset Rotem when presenting the bill to the Members of Knesset. As mentioned, it would have been better had the committee's response to the reservations been presented after they had been presented to the Members of Knesset, but in the case at hand, it appears that Member of Knesset Rotem's reference satisfies the principle need for a reference to the merits of the reservations, even if the sequence in which it was presented constituted a procedural violation of the provisions of the By-Laws. It will be parenthetically noted that in any event those who could have been prejudiced by the fact that the reference to the reservations was given in advance and not after they were presented to the committee, are those supporting the bill and not those objecting to it; since the response to the reservation is intended to convince the Members of the Knesset to vote for the draft proposed by the committee and not by those raising reservations.

 

Inconclusion,  although the Members of Knesset deviated from the provisions of the By-Laws in the legislative process, this deviation was not a flaw at the root of the process, which infringes on the fundamental principles of the legislative process in Israel, in a manner that would lead to declaring the Law void.

 

The Arguments regarding the Arrangements in the Law Infringing on the Right of Freedom

 

22.The Petitioner's second argument was directed to the merits of the arrangements. As mentioned, according to the Petitioner, these arrangements result in disproportionate infringement of the right of freedom. It will be noted at the beginning that the Petitioner's arguments in this matter were general and unclear. The Petitioner did not specify the nature of the infringement of the right of freedom, and did not clarify why the infringement does not satisfy the terms of the limitation clause. On these grounds alone the Petitioner's arguments could have been rejected (on burdens of proof in constitutional petitions see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, PD 49(4) 221, 428-429 (1995) (hereinafter: the "Mizrachi Bank Case"); HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, 2nd paragraph of Justice D. Beinisch's judgment (December 12, 2005)). Nevertheless, and in light of the importance of the main constitutional right discussed in the petition, we shall discuss the merits of this argument (see in this context, HCJ 6055/95 Tzemach v. The Minister of Defense, PD 53(5) 241, 268 (1999); hereinafter: the "Tzemach Case").

 

The Stages of Judicial Review

 

23.As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. The limitation clause conditions the validity of an infringement on the satisfaction of cumulative conditions: the infringement is prescribed by a statute or pursuant to a statute by virtue of explicit authorization therein; the infringing statute befits the values of the State of Israel; the infringing law is intended for a proper purpose, and the last condition, the proportionality condition, requires that the infringement is no greater than necessary. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement (for the stages of the constitutional examination, see, among many others, the Mizrachi Bank Case, page 428; HCJ 1715/97 The Israel Investment Managers Association v. The Minister of Finance PD 51(4) 367, 383-389 (1997); HCJ 1661/05 Hof Azza Regional Council v. The Israel Knesset, PD 59(2) 481, 544-548 (2005)).

 

24.Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights (see, HCJ 10662/04 Hasan v. The National Insurance Institute, paragraph 24 of President D. Beinisch's judgement (February 28, 2012)). Obviously, there is a reciprocal relation between the two stages. The limits of the constitutional right are not only determined by outlining the conceptual scope of the right but also by outlining the degree of protection they shall be given. However, the distinction between the stages should not be blurred. Each of the stages has its own balances and independent objectives. Therefore, in my opinion, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria (see CrimA 4424/98 Silgado v. The State of Israel, PD 56(5) 529 (2002)). Interpreting the right at the first stage, in order to determine its extent, and ruling whether there is an infringement of the constitutional right, will assist clarifying the scope of the constitutional rights. It will ensure that the Court will not be swamped with motions to examine the constitutionality of each and every law (see the Mizrachi Bank Case, Justice Y. Zamir's position, on pages 470-471; see also my position in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, PD 61(2) 202, 513-514 (2006); hereinafter: the "Adalah Case"). It will prevent debasing and diluting the constitutional rights and weakening the protection they are granted against infringement (regarding the matter of the two stages of the constitutional examination, see HCJ 10203/03 "The National Census" Ltd. v. The Attorney General, PD 62(4) 715 (2008)). Indeed, once two central stages of the constitutional discussion have formed in our system, each of them must be granted its proper place. We will turn then to examining the first stage in the case at hand.

 

Do the Arrangements of the Law Infringe the Right of Freedom?

 

25.With respect to the question whether there is an infringement of the right of freedom, the Respondents distinguished between the two arrangements discussed in this petition. As for the First Arrangement, which cancels the right to a second appeal and transforms it into an appeal by permission only, the Respondents were of the opinion that this arrangement does not infringe on constitutional rights at all, since the First Arrangement does not address the original decision regarding the detention and does not deny the right to appeal the detention decision, but rather only determines that the second appeal will be by permission and not as of right. As for the Second Arrangement, the State agreed that since it constitutes a new statutory provision that authorizes the Court to extend the detention of a person who has been detained until the end of proceedings by 150 additional days, it should be deemed an arrangement that infringes on the right of freedom. The dispute between the parties, thus, relates to the question whether the First Arrangement infringes on the right of freedom.

 

26.As we elaborated above, the first stage in the constitutional examination requires the interpretation of the constitutional right. This interpretation, as President A. Barak said (in a minority opinion), "Does not restrict nor expand. This is an interpretation that reflects the Israeli society's understanding of the substance of human rights, based on their constitutional structure and in accordance with the constitutional measurements that were prescribed in the basic laws, all while considering that which is of value and fundamental and rejecting that which is temporary and passing (the Adalah Case, page 356). Does a constitutional interpretation of the right of freedom lead to the conclusion that the right incorporates the option of filing a second appeal as of right on decisions regarding matters of detention, release, violating terms of bail or a motion for reconsideration (and on decisions of the District Court regrading matters of bail)?

 

27.I believe that there is no dispute that the right of freedom, in general, and the right of freedom from detention, in particular, is a fundamental right in Israel. It is anchored in Section 5 of the Basic Law: Human Dignity and Liberty, which prescribes that: "There shall be no deprivation or restriction of the freedom of a person by imprisonment, detention, extradition or otherwise" "Personal freedom" as Justice Y. Zamir says, "is a constitutional right of first degree, and practically speaking it is also a prerequisite for exercising other basic rights… personal freedom, more than any other right, it is what makes a person free. Therefore, denying personal freedom is an especially severe infringement" (the Tzemach Case, page 261). Detention infringes on a person's freedom in the most basic way. Detention denies the freedom from a person who has not yet been convicted by law and is still presumed innocent. At times, detention denies the freedom of a person who is only suspected of committing an offense, and his detention is necessary solely for interrogation purposes. Therefore, the infringement of freedom, which is the direct consequence of the detention, requires taking cautionary measures prior to instructing that a person be detained (see CrimApp 537/95 Ganimat v. The State of Israel PD 49(3) 355, 405 (Deputy President A. Barak) (1995); hereinafter: the "Ganimat Case").

 

28.The Respondents' position, as mentioned, was that there is no infringement of the right of freedom since the First Arrangement does not address the actual detention decision itself, but rather the possibility of appealing such decision as of right. Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, does it follow that only the original decision regarding the detention infringes on the right of freedom? Does an infringement of the procedural frameworks that are meant to realize the right of freedom and protect it, not amount, at least in some cases, to an infringement of the right of freedom itself? In other words, does the right of freedom also encompass the procedural process that accompanies the detention decision? In my opinion, interpreting the right of freedom as applying only to the detention decision is an excessively limiting interpretation of the scope of the right. The importance and centrality of the right of freedom – in and of itself and as a means to promote and realize other rights – requires a broader interpretation of the right, so that it will also apply to procedural protections and procedural arrangements that are directly related to the right and its realization. Interpretation of this spirit was adopted in previous rulings of this Court. For example, it was held that the legitimacy of denying freedom depends of the identity of the entity authorized to deny the freedom and the manner in which freedom is actually denied (see, HCJ 2605/05 The Academic Center for Law and Business (Registered Amuta) v. The Minister of Finance, paragraphs 29-30 of President D. Beinisch’s judgment (November 19, 2009)). It was further held that maintaining a fair detention process is a constitutional principle that derives from the protection of the rights to freedom and dignity (CrimApp 8823/07 Anonymous v. The State of Israel, paragraph 19 of Deputy President E. Rivlin's judgment (February 11, 2010); hereinafter: the "Anonymous Case"). Indeed, this interpretation of the right of freedom, as a right that also applies to procedural protections directly and tightly related to the protection of the right, also coincides with the customary principle in our system that constitutional rights are to be interpreted from a "broad perspective" (see the words of Deputy President S. Agranat in FH 13/60 The Attorney General v. Matana, PD 16 430, 442 (1962); HCJ 428/86 Barzilay v. The Government of Israel, PD 40(3) 505, 595 (1986); see also President A. Barak's words that the "Constitutional interpretation is not pedantic, not legalistic… indeed, constitutional interpretation is from a 'broad perspective'… but the constitutional interpretation is a legal interpretation; it is part of our interpretation theory" HCJ 4128/02 Adam, Teva V’din - Israel Union for Environmental Defense v. The Prime Minister of Israel, PD 58(3) 503, 518 (2004)).

 

29.In the matter at hand, the question is whether the option to file a second appeal as of right and not by permission is one of those procedural protections directly and tightly related to the right of freedom, such that denying it constitutes an infringement of the right itself (although it is important to note that the right to appeal, in and of itself, is considered a provision of substantive law as opposed to procedural law (see HCJ 87/85 Arjub v. IDF Forces Command, PD 42(1) 353, 361 (1988); hereinafter: the "Arjub Case")). In my opinion the answer is no. Without setting hard rules regarding the procedural protections that will fall under the rubric of the right of freedom – a matter which should be examined on the merits of each case – it cannot be said that the scope of the constitutional right of freedom expands as far as granting the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system.

 

30.Section 17 of the Basic Law: The Judiciary provides the fundamental rule that "A judgement of a court of first instance, other than a Supreme Court judgment, can be appealed as of right". In a series of judgments this Court has discussed the nature of the right to appeal (see the Arjub Case, on pages 360-363; CrimA 111/99 Schwartz v. The State of Israel, PD 54(2) 241, 271-272 (2000) and the references appearing therein; LCrimA 3268/02 Kozali v. The State of Israel, paragraph 6 of the decision (March 5, 2003)). Although the importance of the right to appeal has been recognized in case law, the question of its constitutional status in not sufficiently clear (see, for example, Shlomo Levin, "Basic Law: Human Dignity and Liberty and Civil Procedure" Hapraklit 42 451, 462-463 (5755-5756); but see the positions of Registrar Y. Mersel in LCivA 9041/05 "Imrei Chaim" Registered Amuta v. Aharon Wisel (January 30, 2006) that since the right of appeal was anchored in the Basic Law: The Judiciary, it is customary to view it as a right that has a constitutional status. See also: Asher Grunis, Tel Sela "The Courts and Procedural Arrangements" The Shlomo Levin Book 59, 64-67 (2013). In any event, it has been held that even if the right to appeal is deemed a constitutional right, then as all the other rights, it also is a restricted and not absolute right, and it is weighed against organizational principles of stability and finality (See CApp 3931/97 Efraim v. Migdal Insurance Company Ltd. (August 5, 1997)).

 

31.The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will only be held, as a rule, by permission. The said Section 17 applies regardless of whether it is a criminal, civil or administrative matter, but it does not relate to interim decisions – with respect to which there is a distinction between the criminal, civil and administrative fields. In the criminal field, other than special cases, there is no right to question interim decisions. In the civil field, there is no right to appeal interim decisions, but it is possible to request permission from the appellant instance to appeal (Sections 41(b) and 52(b) of the Courts [Consolidated Version] Law, 5744-1984; see also the Courts (Types of Decisions for which Permission to Appeal will not be Granted) Order, 5769-2009; LCivA 3783/13 I.D.B. Development Company Ltd. v. Shamia (June 5, 2013)). In the administrative field, permission to appeal may only be requested with respect to certain interim decisions (see, Section 12 of the Administrative Courts Law, 5760-2000). In addition, Section 41(b) of the Courts Law provides that a District Court judgment in an appeal can be appealed to the Supreme Court if permission was granted by the Supreme Court or by the District Court in its appeal judgment (for a review of the appeal arrangements customary in our legal system, see CrimA 4793/05 Navon v. Atzmon (February 6, 2007); hereinafter: the "Navon Case").

 

32.It emerges from this review that a litigant has a vested right that its matter be heard only before two instances, the trial instance and the appellate instance. A hearing in a third instance is subject to receive permission from the authorized instance. This scope of the right to appeal is based on a number of foundations. First, it has been held in previous rulings of this court that the existence of a right to appeal strengthens the fairness and reasonableness elements of the judicial process and allows an additional opening to discovering errors. However, it was held that this reason alone should not enable multiple "appeals on appeals", and that "there must be a limited format that distinguishes between an appeal as of right and an appeal by permission" (the Arjub Case, on page 372). Secondly, it has been held that interpretation leads to the conclusion that a litigating party must request permission to appeal is not equivalent to denying the right to appeal (see CivApp 4936/06 Aroch v. Clal Finances Management Ltd. (September 25, 2006)). Thirdly, it has been found that "doing justice does not necessitate such a comprehensive examination of every matter" (ALA 103/82 Haifa Parking Ltd. v. Matzat Or Ltd., PD 36(3) 123, 125 (1982); original emphasis), and that limiting the right to appeal allows to define the discussion in a manner that promotes the principle of finality of the process. An additional reason that underlies this approach is the issue of the courts’ workload. It is clear that if every matter were to be brought before three instances, this would impose a heavy workload on the court system. The meaning of such overload is an infringement on the right of litigants that legal processes conclude within reasonable time. Therefore, the customary case law here is that a litigating party has one right to appeal, and that the authorized court will concede to the motion for permission to appeal in extraordinary cases only, in which there is legal or public importance that a certain matter be examined by a third instance (ibid, on pages 125-126).

 

33.It could be argued that in detention procedures it is necessary to deviate from the ordinary customary rules regarding the right to appeal. Thus, it would be argued that in detention procedures a different approach, which is more lenient with the detainee, is required, in light of the possible infringement of a person's freedom. Therefore, while the right to appeal, in general, includes only one appeal as of right, the right to appeal in detention matters, as a right that is protected in the framework of the right of freedom, also encompasses the option to file a second appeal as of right. I do not accept this argument. While I do not dispute the need – which is expressed in the legislation and in the rulings of this Court – to recognize the special status of detention procedures (see, for example, CrimApp 3357/03 Kaabiya v. The State of Israel (May 1, 2006); Anonymous Case, paragraphs 19-21 of Deputy President E. Rivlin's judgment; CrimApp 3899/95 The State of Israel v. Jamal PD 49(3) 164, 167 (1995)), this special status does not necessitate recognizing that the right of freedom includes a right that two different instances be required to examine a detention decision (for criticism on the right to a second appeal in detention decisions, see CrimApp 45/10 Masarwa v. The State of Israel (January 8, 2010)). In fact, accepting this position would lead to an anomaly not only between the detention laws and the other legal fields, but also within the detention laws themselves. Take for example a case in which a person was detained until the end of proceedings. Section 21 of the Detention Law grants the court to which an indictment was filed authority to order the detention of the defendant until the end of proceedings. Where an indictment was filed to the Magistrate Court, and the Court decided to detain the defendant until the end of proceedings, the detainee will be able to appeal the decision to the District Court as of right, and today, following the First Arrangement, it will be able to request permission from the Supreme Court to appeal. In comparison, a defendant against whom an indictment was filed to the District Court and the Court decided to detain him until the end of proceedings, will be able to appeal to the Supreme Court as of right, but he will not have the option to request permission from an additional instance to appeal. Will we say that the latter's right of freedom was infringed because he is not able to bring his matter before three instances? Can we not assume that the infringement of his freedom could be more severe, since in most cases detainment until the end of proceedings for an indictment filed to the District Court might continue for a more extended period of time than detainment until the end of proceedings for an indictment filed to the Magistrate Court?!

 

34.It follows that it cannot be said that in order to realize and protect the right of freedom, it is necessary that three instances review a detention decision. The meaning is that regardless of whether we classify the detention decision as a judgment or as an interim decision (see, for example, regarding the definition of a "judgment", CA 165/50 Epstein v. Zilberstein PD 6 1201, 1210 (1952); see also LCrimA 7487/07 Yakimov v. The State of Israel – The Head Military Prosecutor (April 16, 2008)), the fact that the detainee is not a-priori entitled as of right to have his matter heard by three instances, will not change. Furthermore, the fact that different decisions were adopted in each of the instances does not impact the scope of the right to appeal, and consequently, the right of freedom. Thus, there is no significance to the fact that a Magistrate Court chose to release a detainee while the District Court reversed that decision. The fact that conflicting decisions were given does not, in and of itself, lead to the conclusion that the detainee has a right that his matter be heard before a third instance (see the Navon Case, paragraph 7 of my judgment). The fact that different decisions were given in each of the instances is certainly a circumstance, among various circumstances, that the Supreme Court will consider when deciding if it is appropriate to concede to the motion for permission to appeal. This fact in and of itself does not create an automatic entitlement to an additional appeal as of right.

 

35.It is important to note that the injury that might be caused to the detainee, which is severe in and of itself, cannot justify a holding that he is entitled to be heard in three instances. There are many other situations in which a significant infringement of rights can occur, but this is not sufficient to impact the scope of the right to appeal. Suffice it to mention that there is no right of appeal at all on petitions to the High Court of Justice – the decisions of which could have a significant impact on the individual – (but rather only a petition for a further hearing, the causes for which are narrow and limited); and that there is only one right of appeal on criminal or civil judgments. Indeed, there is no dispute that the infringement of a person's freedom as a result of detention is severe, and therefore, it constitutes an important circumstance when examining the detainee's matter, including in the decision whether to grant permission to appeal to the Supreme Court. However, this is not an exclusive circumstance in the sense that that right to a second appeal is a part of the protections that fall under the rubric of the constitutional right of freedom, such that its denial is an infringement of the right itself. We will further note parenthetically that the First Arrangement, which was examined in the Petition, does not only address detention decisions, but also appeals on decisions relating to release, violation of terms of bail, motions for reconsideration and appeals on District Court decisions regarding bail. It is clear that the level of injury in the latter cases is not identical to that of detention and, therefore, the justification to deviate from the ordinary rule of a hearing before two instances, is even weaker in these cases.

 

An examination of the Supreme Court's decisions in motions for permission to appeal on decisions regarding detention, pursuant to the First Arrangement, reveals that the Court indeed takes the infringement of the right of freedom into consideration when ruling whether permission to appeal should be granted. Although the case law is that permission to appeal will be granted when the motion raises a legal question of importance as a principle, which exceeds the matter of the parties to the proceeding, the Court was willing to adopt a broader approach and to also grant motions for permission to appeal when there are special and extraordinary individual circumstances which justify a hearing before a third instance (see, for example, CrimApp 2786/11 Gerris v. The State of Israel, paragraph 7 of the decision (April 17, 2011); CrimApp 4900/12 The State of Israel v. Anonymous, paragraph 8 of the decision and the references there (June 25, 2012); CrimApp 4706/12 Anonymous v. The State of Israel, paragraph 8 of the decision (June 21, 2012); CrimApp 1200/13 Azulay v. The State of Israel, paragraph 9 of the decision (February 24, 2013)).

 

36.The conclusion is that the First Arrangement does not infringe on the right of freedom. It will be noted that the Petitioner did not raise arguments in his petition regarding the potential infringement of the First Arrangement of the right to due process or the right to access courts. Therefore, we did not see it necessary to address the infringement of these rights. As we have not found there to be an infringement of the right of freedom, this ends the constitutional examination of the First Arrangement.

 

Does the Second Arrangement Satisfy the Conditions of the Limitation Clause

 

37.As mentioned, there was no dispute between the parties that the Second Arrangement infringes on the right of freedom. We are therefore left to examine whether this arrangement satisfies the conditions of the limitation clause. For the sake of convenience, we will requote the language of the Second Arrangement:

 

(b) Notwithstanding that which is stated in sub-section (a), if a Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

38.The first condition of the limitation clause requires that the infringement be by a law or pursuant to a law. There is no dispute that in the case at hand this condition is satisfied, since the Second Arrangement is prescribed in the law amending the Detention Law. The second and third conditions address the purposes of the infringing law. According to the second condition, the infringing law must befit the values of the State of Israel, and according to the third condition it should be demonstrated that the infringing law is intended for a proper purpose. We will now examine both of these conditions.

 

39.The purpose of the Second Arrangement, similar to the purpose of the entire amendment, as it emerges from the explanatory notes to the bill, was "to shift the balance between the principle of finality and the types of matters that should be examined by the Supreme Court and the realization of the substantive rights of detainees and defendants " (Explanatory notes to the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, Government Bills 533). Regarding the Second Arrangement, the legislative memorandum stated that: "Experience shows that in some cases it is clear in advance that the maximum time period for extending the detention prescribed in these sections is not sufficient to exhaust the legal proceedings. This is sometimes the case in cases of complex severe crimes in which the defendants are detained until the end of the proceedings against them, in which there are many witnesses. At times, numerous hearings are required, which significantly extends the duration of the trial, and consequently the period of the defendant's detention (the legislative memorandum was attached to the State's response dated July 7, 2011, and marked Res/1).

 

40.The underlying purpose of the Second Arrangement was to reduce the number of Supreme Court hearings on motions to extend detentions in particularly complex cases in which it is clear that the period of time the legislator allocated (90 days beyond the nine months of detention) will not be sufficient to conclude the trial. That, even when the trial is conducted efficiently and purposefully it cannot be said that this is not a proper purpose. In light of the heavy workload imposed on the Supreme Court and the entire justice system, reducing the number of detention extension hearings – in special circumstances and based on criteria prescribed in the law – is a proper and vital purpose. This purpose will allow the Court to dedicate time to other proceedings before it, including other criminal cases and detention procedures, and reduce the period of time required to rule thereon. In this context, we will mention Section 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides a series of conditions for a fair trial, including the need to conclude legal proceedings within a reasonable time. It cannot be said that this purpose does not befit the values of the State of Israel as a Jewish and democratic state. Reducing the time of handling cases and responding to the needs of those approaching the court system is a purpose that definitely befits the values of the State.

 

41.The main question to be decided with respect to the Second Arrangement is its compliance with the proportionality condition. As is known, it is customary to divide the condition that the infringement is no greater than necessary into three sub-tests. The first sub-test examines whether there is a rational connection between the means selected by the law and the purpose thereof. In the case at hand, it is clear that there is a rational connection between the means – extending detention by 150 days instead of by 90 days – and the purpose of reducing the number of hearings in the Supreme Court. The second sub-test examines whether the selected means is the less harmful means. As stated in the State's response, the means selected balances between the infringement of the detainee's freedom and the need to adjust the options to extend the detention in order to fit complex cases, cases of severe crimes and cases in which it is clear to the Court that a 90 day extension will not be sufficient. One of the main balances outlined in the Law is that the Law did not revoke the option of extending a detention by 90 days (pursuant to Section 62 of the Detention Law), but rather left that as is, and allowed the Court to choose, as a matter of discretion and as an exception to the "standard" detention extension, the option of extending the detention by 150 days. An additional balance is that the authority is vested with a judge of the highest instance. Furthermore, in order to exercise this authority, one of the special conditions listed in the section, which lead to the conclusion that it will not be possible to conclude the examination of the case in a shorter period of time,  must be satisfied, i.e., the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges. These balances indicate that the legislator selected the less harmful means in order to realize the purpose.

 

42.The third sub-test, the proportionality test "in the narrow sense", requires that there be a reasonable relation between the infringement of the constitutional right and the social advantage  derived from it. This test is also satisfied in the case at hand. Prior to the amendment of the Law, there was a problematic situation as motions to extend detentions beyond nine months would be filed to the Supreme Court, and the Court would grant the motions in cases in which it was clear that the trial was not foreseen to conclude within 90 days. And then, upon the lapse of the 90 days, a motion would again be filed to the Supreme Court, and so forth. In one of these decisions, Justice A. Procaccia elaborated on the need to adjust the Detention Law to the reality of "mega-cases" in which a large number of defendants are indicted together and many witnesses testify. In CrimApp 644/07 The State of Israel v. Natser (February 20, 2007), Justice Procaccia stated:

 

"Section 61 of the Detention Law limited the basic time period for detention until the end of proceedings to nine months, without making any distinction between types of criminal proceedings that are to be adjudicated based on the judicial time that is necessary for their examination. He did not draw a distinction between the types of charges with regard to the complexity of the issue to be decided. Similarly, the period of nine months of detention was applied equally to indictments relating to one or a small number of defendants, and to indictments that include a long list of defendants. Additionally, no distinction was made regarding the duration of the detention for trial purposes, between charges in which it is necessary to have a small number of prosecution witnesses testify and those in which it is necessary to have dozens of witnesses testify. Moreover, Section 61 of the Law did not reflect the judicial time actually required for conducting proceedings that involve large criminal organizations, which by their very nature require investment of extensive resources and judicial time. This provision of the Law does not reflect the deep changes that occurred in the nature of crime in the country as a result of the escalation of the development of criminal organizations and the complexity and severity of their activities, which have greatly increased over the last decade, and which clearly impact the judicial time required to rule in criminal proceedings related to them. The procedural needs in managing complex cases which involve multiple defendants, charges and witnesses, do not generally coincide with the Law's uniform and general determination regarding nine months of detention as a basic period in which the criminal proceeding should be concluded" (paragraph 17 of the decision). See also CrimApp 7738/06 The State of Israel v. Sharon Parinian, paragraph 10 of the decision (October 5, 2006).

 

The Second Arrangement attempts to solve this problem, by providing the Supreme Court judge deliberating the motion to extend the detention the option to choose between a "standard" detention extension, up to 90 days, and a "special" detention extension up to 150 days. The Second Arrangement only allows to do this in special cases in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses. The Court must be convinced that the proceeding is conducted by the trial court efficiently, and that the detention extension is not requested because of an inefficient conduct of the trial. In my opinion, the combination of these circumstances strikes the proper balance between the infringement of freedom – which no one disputes exists – and the purpose underlying the Second Arrangement.

 

43.The conclusion is that the Second Arrangement complies with the proportionality condition. It follows that the infringement of the right of freedom is proportionate, and the Petitioner's arguments regarding the illegality of the Second Arrangement should be dismissed. In this framework, the indirect attack regarding the legality of the amendment, the arguments for which were presented as part of the hearing regarding the detention extension in CrimApp 4002/11 is also dismissed.

 

Summary

 

44.It emerges from the stated above that both of the arguments presented by the Petitioner in HCJ 2442/11 are to be denied. Procedurally speaking, while we found that the legislative process of the amendments which are the subject of this petition deviated from the provisions of the Knesset By-Laws, the deviation did not constitute a "flaw that goes to the root of the process", which justifies this Court's intervention. On the merits of the amendment, we also rejected the Petitioner's substantive arguments (which are largely identical to the arguments raised in CrimApp 4002/11). We held that the revocation of the right to appeal "in a third instance" while only granting permission to appeal, does not infringe on the right of freedom, although we found that in certain circumstances, which will be determined in each case on its merits, the constitutional right of freedom also extends to the procedural proceedings bound with the exhaustion of the actual right. We further held that the amendment that allows to extend a detention by 150 days infringes on the right of freedom, but this infringement complies with the limitation clause, and is therefore constitutional. The result is that both parts of the petition are denied.

 

45.One methodological note before summation. In the case before us the legislator brought about a change in an existing law. This is not a new law that is meant to address a matter that was not regulated by law. There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. Indeed, with regard to the two arrangements, the legal status that preceded the amendment set a higher threshold than the constitutional threshold, as suspects and defendants had the right to file a second ("third instance") appeal and the detention extension period was limited to 90 days. However, as emerges from the analyses we presented, the constitutional threshold is lower than the threshold the legislator had set under the arrangement preceding the amendment to the Law. Therefore, the fact that the Law was amended and lowered the legal threshold does not, in and of itself, lead to the conclusion that the constitutional threshold was infringed with the adoption of the amendment to the Law. Graphically speaking, it can be said that when amending the law, the legislator has leeway between the legal threshold prescribed before the amendment (which, as mentioned, was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional. In this context we should mention the validity of law clause in the Basic Law: Human Dignity and Liberty (Section 10). This section sets a different threshold: even if the law preceding the Basic Law infringes a constitutional right and does not satisfy the limitation clause, it shall not be deemed invalid (subject to the interpretation of the law the validity of which is preserved under Section 10 of the Basic Law, see the Ganimat Case, pages 375-76, 389-401, 410-417), even if had such law been legislated today, we would have said that the constitutional threshold had been infringed.

 

46.Epilogue. The petition is denied. The constitutional arguments raised in CrimApp 4002/11 are also denied. In the circumstances of the matter – no order for expenses is issued.

 

The President

 

Justice E. Rubinstein

 

a.I agree with the result reached by my colleague the President and with the essence of his legal constitutional analyses, subject to a few remarks. Indeed, this amendment to the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (the Detention Law) is not suited for constitutional judicial review, but in my opinion there is a difference between its two parts. The arrangement amending Section 53 of the Detention Law is an amendment that revokes a most unusual situation compared to other countries and the past in our own country, a situation in which the Supreme Court is required, as of right, to consider a detention as a third instance, as we experienced until recently. In contrast, the arrangement amending Section 62 of the Detention Law is not a simple arrangement, since its implication is an extension of up to 150 days – five months of detention – instead of 90 days, without judicial review, this is not simple at all. Indeed, as my colleague explained (paragraph 42, and as emerges from the explanatory notes to the Criminal Procedure (Enforcement Powers – Detention), Amendment no. 9 (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, following the recommendation of the Criminal Procedure and Evidence Laws Advisory Committee, headed by this Court's Justice (currently Deputy President) Miriam Naor, Government Bills 5770, 1229-1330 and the words of Justice Procaccia in CrimApp 644/07 The State of Israel v. Natser (February 20, 2007)) – the 150 days arrangement does not exceed the constitutional proportionality test; as it was designated for special cases "in which the Court is convinced that the judicial time required to complete the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses.." Legally speaking, I agree with this. However, alongside this I would like to raise a small warning flag and say that I think that in practice, a 150 day extension should certainly be the exception.

 

b.Regarding the matter of extending detentions by a 150 days, I think that it is necessary to distinguish between the authority and its exercise. As mentioned, the authority, in and of itself, is within the boundaries of the constitutional proportionality. See for example Section 5(c) of the Imprisonment of Unlawful Combatants Law, 5762-2002, where judicial review once every six months was prescribed. However, I will admit that when the case at hands relates to the denial of freedom from a person who is presumed innocent, I would tend to allow relatively frequent judicial review, and five months is a long time. Therefore, one must be extremely diligent in complying with all of the conditions of the law as prescribed and the justification in the circumstances, including the conduct in the trial court, in order to grant 150 days. I will add that based on my impression of the decisions handed down by this Court, approximately a half of the motions for 150 days were not granted and 90 days were granted instead, and the vast majority of the remaining ones were by consent. I will not specify so as not to overburden.

 

c.As for the second appeal, that is deliberating the case in a third instance (the amendment of Section 53), it is obviously clear that the right to an appeal in and of itself has a distinguished status (see Section 17 of the Basic Law: The Judiciary, regarding an appeal on a judgment of court in the first instance, which was granted constitutional status; see also Y. Ben Nun and T. Havkin The Civil Appeal (3 ed., 2013) page 35; Y. Mersel "The Right to Appeal or an Appeal as of Right? Section 17 of the Basic Law: The Judiciary and the Essence of an Appeal" The Shlomo Levin Book (2013) 141; the references in my opinion in LCivA 5208/06 Davis v. Malca (June 29, 2006) and in LFamA 8194/08 Anonymous v. Anonymous (December 10, 2008)). However, in the matter of a third instance I will add a few short words from the “field”. The third instance appeal as of right in Section 53 was first legislated in the during the period in which the entire Detention Law was legislated, meaning, a short while after the Basic Law: Human Dignity and Liberty was legislated in 1992 and as part of the effort to give it substance; see the review of the legislative history in the explanatory notes to the bill at hand on pages 1328-1329; as it emerges therefrom, in the far past, even an appeal by permission was not an option; the option to request permission was granted in 1988, and in 1996 it became a right. Amendment no. 8 of the Detention Law transpired in light of the lessons learned by the Criminal Procedure and Evidence Law Advisory Committee, headed by Justice Naor, lessons which all of us at this Court have shared. I will quote from my words in CrimApp 6003/11 Taha v. The State of Israel (August 18, 2011):

 

"The legislator decided that this Court, given the workload it carries, cannot continue with what it has been doing for years, and which clearly has moral value, in light of the presumption of innocence and the essence of the detention – denying freedom, that is - allowing third instance appeals as of right. This, I believe, is unique to this Court compared to fellow courts in democratic states, many of which (see the United States, Britain and Canada) only address appeals by permission. When I have told a Supreme Court judge from these countries of the number of cases we have per year (currently approximately 10,000 cases and a few years ago up to approximately 12,000 cases per year) compared to theirs (80 per year), and that each detention has an appeal as of right to this Court – he became sympathetic or anxious. This does not mean that the door has been locked for cases that should be permitted to appeal to this Court as a third instance, and the legislator left this open to be developed by case law; for a review of current case law see the decision of Justice Amit in CrimApp 5702/11 Tzofi v. The State of Israel (August 8, 2011)."

 

d.It appears that there is no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, and that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. Until the amendment "Israel had something that did not exist in any nation, a right to a detention being heard in two appellate instances …" (CrimApp 3932/12 Elafifi v. The State of Israel (June 3, 2012)). Changing this does not contradict the approach that the right to appeal is a constitutional right of some degree or another. Indeed, in practicality, those night and Sabbath eve and afternoon hearings of appeals as of right regarding "detention days" (detention for interrogation purposes), of which we had our share over the years, hardly exist anymore. Permission to appeal in a third instance is granted scarcely. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that there already is one appeal as of right, as prescribed. Upon review of my colleague Justice Melcer's remarks, with which I agree, I also noticed that the "right of the option to request permission to appeal" which he addresses, can also be found in this Court's customary practice. In contrast, for example, to the United States, where the denial of a motion for permission to appeal, is summarized in the words "cert denied" – in Israel the denial of such a motion is well reasoned and in great detail.

 

e.As said, I concur with my colleague the President.

 

Justice

Justice H. Melcer

 

I agree with the comprehensive and meticulous judgment of my colleague, President A. Grunis, and with the emphases of my colleague, Justice E. Rubinstein.

 

In light of the importance of the distinctions that arose in this case, I allow myself to add two insights:

 

(a)Alongside the right to appeal – the option to request permission to appeal is also a right, however narrower than the former. It follows that the second alternative – requesting permission to appeal – can be seen as a means of review of the decision which is the subject of the request, and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law - see for example:

 

In the Unites States: Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court, 33 J. SUP. CT. HIST 1 (2008).

 

In Canada: R v Gardiner [1982] 2 S.C.R. 368 ;

Bora Laskin, The Role and Functions of Final Appellant Courts: The Supreme Court of Canada, 53 CAN. BAR REV. 469, 471 (1975).

 

In Australia: Smith Kline & French Laboratories (Australia) Ltd. v Commonwealth (1991) 173 CLR 194;

David Solomon, Controlling the High Court’s Agenda, 23 U.W AUSTL. L. REV. 33 (1993);

Sir Anthony Mason, The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal, 15 U. TAS. L. REV. 1 (1996);

Marrie Kennedy, Applications for Special Leave to the High Court 1 High Ct. Q. Rev. 1 (2005);

 

See also: John Anthony Jolowicz, Appeal and Review in Comparative Law: Similarities Differences and Purposes 15 MELB. U. L. REV 618. (1986)

 

In this context,  remember that in contrast to the motion for permission to appeal, in our country's legal system there are certain situations in which even this limited right (to motion for permission to appeal) is denied (even if only during the trial) – see: Sections 41(c)(1) and 52(c)(1) of the Courts (Consolidated Version) Law, 5744-1984. The Courts (Types of Decisions for which Permission to Appeal shall not be Granted) Order, 5769-2009. This is the law with regard to most interim decisions in criminal proceedings. See: the President's decision in LCivA 3783/13 I.D.B Development Company Ltd. v. Shamia (June 5, 2013). The difference in the case at hand requires further consideration.

 

(b)The arrangement amending Section 62 of the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996, that allows a Supreme Court judge to extend detention up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (also referred to as the "boundaries of proportionality"), albeit, in my opinion, it is situated at the "far end" of such boundaries. It follows that constitutional relief should not be granted, since intervention of such nature in such circumstances is reserved only to the most extraordinary cases, and this is not the case here. See: HCJ 1661/05 Hof Azza Regional Council v. The Prime Minister, PD 59(2) 481 (2005); my judgment in HCJ 6784/06 Major Shlitner v. The Director of Pension Payments (January 12, 2011).

 

The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we act.

 

                                                                                          Justice

 

It was decided as stated in President A. Grunis' Judgment

 

Given today, 18^th of Tamuz, 5773 (June 26, 2013).

 

 

The President                          Justice                                     Justice