The Supreme Court

 

CFH 2121/12

 

 

Petitioner:                                  Anonymous

 

                                                            v.

 

Respondents:                          1.  Dr. Ilana Dayan Orbach

                                                2.  Telad Studios Jerusalem Ltd.

 

 

Further Hearing on the judgment of the Supreme Court of Feb. 8, 2012, in CA 751/10, CA 1236/10, and CA 1237/10 (Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit).

 

Before:  President A. Grunis, Deputy President M. Naor, Justice (Emerita) E. Arbel, Justice E. Rubinstein, Justice S. Soubran, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice Y. Amit

 

Judgment

 

President A. Grunis:

 

1.         The underlying tension of defamation law is expressed in full force in this Further Hearing before the Court. On one side stand the dignity and good name of the person harmed by a publication, and on the other side stand freedom of speech and freedom of the press, with all their significance for the individual journalist and the public at large. The legal questions raised in this proceeding go beyond the borders of the particular case that engendered them. Inter alia, we must address questions concerning the nature of “truth” in the legal sphere, the role and duties of the press in a democratic society, and striking a proper balance among the rights and interests concerned in the specific context before us. We will address all of these in this Further Hearing.

 

Factual Background and History of the Proceedings

2.         On Nov. 22, 2004, the television program “Uvda” [“Fact”] with Ilana Dayan” (hereinafter: Uvda) aired an investigative report (hereinafter: the report) prepared and delivered by Dr. Ilana Dayan-Orbach, Respondent 1 (hereinafter: Dayan). The report was preceded by “promos” by Respondent 2, Telad Studios Jerusalem Ltd., which was the Channel 2 concessionaire at the time (hereinafter: Telad). The report and the promos concerned an incident that occurred in an IDF installation in the Gaza Strip in 2004. The details of the incident were addressed at length in the prior proceedings, and in additional legal proceedings, and certain aspects continue to be disputed. Therefore, I will suffice with a very brief description of the matter, based upon the findings of the courts that addressed these proceedings. On Oct. 5, 2004, a suspicious entity was spotted near the installation, which was at a high state of alert. After the fact, it turned out that it was a girl named Iman Al-Hams, a resident of Rafah, who was thirteen years and ten months old (hereinafter: the deceased). There was weapons fire from the installation, the alarm was sounded, and the public address system was turned on. The deceased threw down her bag, fled, and took cover behind a sand berm. The commander of the company manning the installation at the time – the Petitioner – was alerted, and he ran toward the entity. It should be noted that at the time of the incident, shots were fired from the vicinity of Rafah in the direction of the Petitioner and his soldiers. The Petitioner fired two shots in the direction of the deceased, and retreated. He then retraced his steps, and fired a burst toward the area to the east of where she lie. As a result of the shots fired in the course of the event, the deceased was killed.

3.         The report, which was some 18 minutes long, addressed the said event, which was termed “the kill confirmation affair”. The report was described in detail in the prior proceedings, and I will, therefore, only summarize its main points. The report described the unfolding of the event from the moment the suspicious entity was identified by the installation; the gunfire in her direction from the installation; her flight; the assault in her direction by the force led by the Petitioner to “confirm the kill”; the Petitioner’s fire at her; and, ultimately, the removal of the deceased’s corpse from the area. Among other things, the report noted that the incident concerned a little girl who was on her way to school. In addition, the report described the identification of the deceased by the installation’s spotters, the soldiers’ conjectures as to her age, as well as in regard to her being hit, and her condition. The report also stated that the installation was in a evident state of security readiness and tension, and that the soldiers, including the Petitioner, thought that they were concerned with a terrorist event. In addition, Dayan pointed out that the recording from the communication network ended “with these words, that for some reason it was urgent for the company commander [the Petitioner – A.G.] to communicate now with the HQ”.  Then the Petitioner was heard stating over the communications network: “This is leader. Anyone that moves in the area, even if it is there years old, has to be killed. Over.” The report made use of recordings from the installation’s communications network, video clips recorded by the installation’s security towers at the time of the incident, and testimony of soldiers serving in the company. Illustrative pictures and videos clips showing company life, recorded by the soldiers in various contexts, were also included. In this context, a video clip was presented that shows a kind of party held by the soldiers in their room, and it was stated that these pictures appeared immediately after the shooting incident on the videotape recorded by the soldiers.

4.         The report also addressed developments and investigations that followed the incident. It criticized the army’s investigation of the incident, which found that the Petitioner had acted appropriately. In this regard, it mentioned claims by soldiers that they lied in the investigation out of fear of the Petitioner. In addition, the report described the ugly state of affairs in the company. It was noted that “when they [the Petitioner’s soldiers – A.G.] see him shooting at the little girl’s corpse, they are sure that he carried out a kill confirmation”. In this regard, it was stated that “it is not certain that this story would have gotten out were it not for the state of affairs in the company”. It was further noted that the Petitioner was placed under arrest, and that he was interrogated by the Military Police, and video clips of that interrogation were shown in which he explained, among other things, that he acted to neutralize a threat. It was also reported that an information was filed against the Petitioner in the military court on the day of the report was broadcasted. Finally, the responses of the Military Spokesperson and the deceased’s family were shown. It was also stated that the Petitioner had not yet been given permission to be interviewed, although the representatives of Uvda asked to interview him.

5.         In the broadcast of Uvda that was aired a week later, Dayan added a number of clarifications and emphases in regard to the report. Inter alia, it was emphasized that the installation was operating under threat warnings, and the threats under which the soldiers were operating were mentioned. In addition, further clips from the communications network at the time of the incident were aired. Among them were estimates as to the deceased’s age, and it was noted that one of the questions to be answered is who heard that. Dayan emphasized that the report accurately portrayed the events, but clarified that there was one mistake in the report. According to her, the video clip in which a soldier is seen shooting from a position in the installation was not related to the incident. Nevertheless, it was stated that there is no dispute that there was heavy fire from the positions in the installation, which continued for an extended period.

6.         On July 5, 2005, in an end-of-season review of Uvda, a four-minute summary of the report that is the subject of these proceedings was broadcasted. It was accompanied by remarks by Dayan at the beginning and the end of the report, in which, inter alia, she presented an update of the developments since the original broadcast (hereinafter: the review report). The content of the review report will be described at length below. I would already state that the editors of Uvda approached the Petitioner prior to the broadcast of the review report. In response, the Petitioners attorneys claimed that the broadcast was defamatory, and demanded that the review report not be aired, or in the alternative, that their full response be presented.

7.         As noted, on Nov. 22, 2004, an information was filed against the Petitioner in the Military Court on five charges: unlawful use of a firearm, for the two shots fired in the direction of the deceased; unlawful use of a firearm, for the burst he allegedly fired at her; obstruction of justice; deviation from authority creating a life-threatening danger as a result of the rules of engagement that he allegedly issued to his soldiers; and conduct unbecoming. On Nov. 15, 2005, the Military Court acquitted the Petitioner on all counts. The Petitioner then filed suit against the Respondents in the District Court, under the Defamation Law, 5765-1965 (hereinafter: the Law, or the Defamation Law).

 

The Judgment of the District Court

8.         The Jerusalem District Court (Judge N. Sohlberg) found in favor of the Petitioner, in part (CA 8206/06 of Dec. 7, 2009). It held that the report constituted defamation of the Petitioner, who was presented as having acted in a cruel and evil manner, and the soldiers under his command were presented as having maintained heavy fire at the deceased without regard for the possibility that she might be killed. It was held that this was done in a manner that affected the Petitioner’s good name. In addition, the court ruled that the report gave the impression that the Petitioner forced his soldiers to lie in the military enquiry, that the suspicions against him were whitewashed in the enquiry, and that he feigned innocence in his interrogation and refrained from presenting a consistent version of the events. The District Court held that this, too, constituted defamation of the Petitioner. It was held that the Respondents could not claim the plea-of-truth defense under sec. 14 of the Law, nor the plea-of-good-faith defense under sec. 15 of the Law. Therefore, they were ordered to pay damages to the Petitioner in the amount of NIS 300,000, and it was ordered that the Uvda program would correct the impression that the report created. In that context, the Respondents were ordered to report the fact of the Petitioner’s acquittal, as well as the main points of the Military Court’s judgment, to explain that the report had conveyed a mistaken impression in regard to the Petitioner and in regard to the incident, and to report the outcome in the District Court. All of the parties appealed the decision.

 

The Judgment on the Appeals

9.         On Feb. 8, 2012, judgment was handed down on the appeals (CA 751/10, Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit; hereinafter – the Appeals Decision or the Decision). All of the justices of the panel agreed that the report that was broadcasted constituted defamation of the Petitioner. However, they were of the opinion that liability should not be imputed to Dayan, inasmuch as she enjoyed a defense under the Law. The justices were divided as to which defense applied. Deputy President Rivlin and Justice Amit were of the opinion that the report met the conditions of the plea-of-truth defense under sec. 14 of the Law. They held, pursuant to CFH 7325/95 Yediot Aharonot Ltd. v. Krauss, 52 (3) 1 (1998) (hereinafter: CFH Krauss), that the first condition of this defense – the truth of the publication – was met in the sense that the publication was “true at the time”. Deputy President Rivlin explained that “the picture of reality as portrayed by the report as a whole is not substantially different from the truth as it was known at that time, as best as could be ascertained with the investigative tools available to a reasonable journalist” (para. 97 of his opinion). That was the case, inter alia, considering that the facts grounding the report at the time of the broadcast also served as the grounds for the charges brought against the Petitioner. Justice Amit concurred with Deputy President Rivlin on this point. He emphasized that the media cannot be demanded to meet “an absolute standard of pure truth” (para. 14 of his opinion). He was of the opinion that in this case, the condition of truthful publication was met, inasmuch as the report reflected the truth as it was known to the investigating authorities and the prosecution at the time of the broadcast. Both justices held that the second condition of the truth defense – a public interest in the publication – was also met. Justice Vogelman, however, was of the opinion that Dayan could claim the good-faith defense under sec. 15(2) of the Law, in circumstances in which the relations between the publisher and the audience to which the publication was addressed “imposed on him a legal, moral or social duty to make the publication”. The Appeals Decision held that the time had come to recognize, in the framework of sec. 15(2) of the Law, a broader journalistic obligation than that previously recognized in CA 213/69 Israel Electric Corporation Ltd. v. Haaretz Newspaper Ltd., IsrSC 23 (2) 87 (1969) (hereinafter: the First Haaretz case). This, while establishing appropriate conditions for the application of the defense. Justice Vogelman was of the opinion that such an obligation would arise upon meeting two conditions. The first is the presence of a significant public interest in the publication, and the second, that the publication is the result of careful, responsible journalistic work. Additionally, Justice Vogelman made a non-exhaustive list of auxiliary tests as aids in ascertaining the meeting of these criteria.

10.       The result was that Dayan’s appeal was granted (CA 1236/10), and the judgment of the District Court in her matter was reversed. As opposed to that, the Court held that the defenses under the Law did not apply to the program’s promos. That being the case, the Court did not find grounds for intervening in regard to Telad’s liability. As a result, the Court decreased the damages awarded against it to NIS 100,000, and rescinded the obligation to publish a correction. Telad’s appeal (CA 1237/10) was granted in part. The Petitioner’s appeal in regard to the damages awarded to him (CA 751/10) was denied.

 

The Petition for a Further Hearing

11.       Following the Appeals Decision, the Petitioner submitted a petition for a Further Hearing. After considering the petition and the responses of the Respondents, on Oct. 3, 2012, I ordered a Further Hearing on the Appeals Decision, in accordance with my authority under sec. 30(b) of the Courts [Consolidated Version] Law, 5744-1984 (hereinafter: the Courts Law). In my decision of Nov. 25, 2012, the issues that would be addressed in the Further Hearing would be as follows:

(a) Can the phrase “the matter published was true”, in sec. 14 of the Defamation Law, also be construed to mean “true at the time”, and if so, under what conditions?

(b) Can the requirement, under the above sec. 14, that “the publication was in the public interest” not be met when legal proceedings are pending in the matter that is the subject of the publication?

(c) Can a journalist, as a journalist, enjoy the defense under sec. 15(2) of the Defamation Law, 5725-1965, and if so, under what conditions?

Pursuant to that, the parties submitted supplementary pleadings, and a hearing was held before us. Following are the main arguments of the parties.

 

…

 

Justice Rubinstein

…

On Defamation in the Jewish Law Ethos

3.         Before doing so, I would first recall where, in my opinion, the historical ethos of Jewish law stands in this area – as we are a Jewish and democratic state, and Jewish law holds an important place among the sources of Israeli law, see: Aharon Barak, Purposive Interpretation in Law, 452-453 (2003) (Hebrew) [English: Aharon Barak, Purposive Interpretation in Law, (Princeton: Princeton University Press, 2005)]; Aharon Barak, The Judge in a Democracy, 290 (2004) (Hebrew) [English: Aharon Barak, The Judge in a Democracy, (Princeton: Princeton University Press, 2006)]; and see my article, “Malkhut Yisrael Le’umat Dina deMalkhuta,” 22 (2)  Mekhkarei Mishpat 489, 496-498 (Hebrew). No proof is required of the fact that our exposure to various kinds of electronic and virtual communication, including television, radio, internet, in addition to the print media, is tremendous, unforeseen by our predecessors, and continuously growing. What seemed like high waves before the internet age, is now an unfathomable ocean and a rising spring. It is an appropriate time for a brief study of the approach of Jewish law and halakha to defamation, and further on, I will return to the Jewish law approach to the defenses. I would first note that Jewish law served as one of the sources of the Defamation Law, 5725-1965, see the Defamation Bill, 5722-1962, H.H. 504 (5722) 142, 145, 147; and see: LCA 531/88 Avneri v. Shapira, IsrSC 42 (4) 20, 25-26; and see: N. Rakover, Jewish Law in Knesset Legislation, 631-639 (1988) (Hebrew), and the references there. The late Professor Elon noted that “this is an example of a respected halakhic institution that served as inspiration for legislation in the criminal field, not in terms of its details, but rather in terms of its general approach” (M. Elon, Jewish Law: History, Sources, Principles, 1380 (1973) (Hebrew) [English: M. Elon, Jewish Law: History, Sources, Principles (Jewish Publication Society, 2003)]).

            Indeed, much of what is openly declared in public is protected by Israeli law as part of freedom of expression, or under other defenses provided by the Defamation Law. Even if that does not mean that a person whose reputation is tarnished has no legal remedy – and there are no few possibilities under the Defamation Law – still, especially where the media is concerned, those remedies are becoming fewer and fewer as a result of judicial interpretation. Jewish law is meticulous in regard to a person’s dignity – human dignity, and respect for a person in the plain sense – including in regard to one’s reputation, and thus its view of disparagement is more extreme than that of the Defamation Law. Its rules concerning defamation form a significant chapter, and the District Court addressed this in the matter before us, in the context of “constructive defamation”, as I shall explain.

4.         The Hafetz Hayim, Rabbi Yisrael Meir Hakohen of Radun, a leading Jewish personage in Russo-Poland in the 19^th-20^th centuries, until his death in 1933, and author of the books Hafetz Hayim and Shemirat Halashon placed the subject of lashon hara [literally: “evil speech”, i.e., defamation –trans.] at the center of his toraitic works (he would also write the Mishne Berura, which may be described as the authoritative commentary to the Shulhan Arukh: Orah Hayim, and more) and endeavors. His book Hafetz Hayim (which was initially published anonymously in the early 1870s) presents the rules of lashon hara in comprehensive detail, while his book Shemirat Halashon, which compliments it, and which was published in the latter half of the same decade, provides aggadic [non-halakhic, rabbinic exegetical texts – trans.] sources and moral insights in regard to the prohibition of defamation and rumor mongering. At the beginning of his book Hafetz Hayim, [literally: “Desires Life” – trans.], which draws its name from the verses “Which of you desires life, and covets many days to enjoy good?  Keep your tongue from evil, and your lips from speaking deceit. Depart from evil, and do good; seek peace, and pursue it” (Psalms 34:13-14), the author lists seventeen negative commandments, fourteen positive commandments, and four instances of “cursed be” that a person may transgress in the framework of lashon hara and gossip.  Hafetz Hayim examines the laws of lashon hara and gossip in detail, and provides an accompanying commentary (“Be’er Mayim Hayim”), while Shemirat Halashon [lit. “Guarding the Tongue” – trans.], whose title is a reference to the verse “He who guards his mouth and tongue, guards himself from trouble” (Proverbs 21:23), completes it, thus constituting an indispensable pair of compositions for anyone who seeks to observe the halakha in this area (many summaries have been written over the years, e.g., Ikarei Dinim by Rabbi Shmuel Huminer). The Hafetz Hayim deemed guarding one’s tongue as possible, despite the widespread phenomenon of defamation, or at least of “quasi-defamation” [“avak lashon hara”, literally “dust – i.e., a “tinge” or “trace”— of lashon hara”—trans.] and gossip, on the presumption that the Torah does not impose obligations and prohibitions that cannot be observed.

5.         The primary, direct prohibition in the Torah is to be found in the verse “You shall not go up and down as a talebearer among your people: neither shall you stand against the blood of your neighbor” (Lev. 19:16). Rashi explains (ad loc.): “since all those who instigate disputes and speak lashon hara go into their friends’ houses in order to spy out what evil they can see, or what evil they can hear, to tell in the marketplace”. And as the Hafetz Hayim (Negative Commandments 1) explains, following Maimonides (Hilkhot De’ot 7:2): “Who is a gossiper? One who collects information and goes from person to person, saying: This is what so and so said about you, and this is what I heard that so and so did to you. Even if the statements are true, they bring about the destruction of the world. There is a much more serious sin than this, which is also included in this prohibition, which is lashon hara, that is also comprised by this prohibition, and which is relating deprecating facts about another, even if he speaks the truth. But one who tells a lie, defames his colleague’s good name” (emphasis added – E.R.). And further on (Lashon Hara, Principle 5:2), the Hafetz Hayim states: “And needless to say, if the matter is false or partly true and he exaggerates it more than it is, this is surely a very great sin, which is more severe than plain lashon hara, and it is in the category of defaming a person’s name, because he humiliates his friend by his lies. Even if it is the absolute truth, all the Rishonim [halakhic scholars active in the 11^th-15^th centuries, prior to the publication of Joseph Karo’s Shulhan Arukh – trans.] have established that … it is lashon hara even if it is true”. This is intended to remind us that we are not concerned with a solely moral issue, as one might mistakenly imagine, but rather with a clearly halakhic issue. And note that the Torah compares gossip, which is the lowest level in the laws of defamation, to standing “against the blood”, and no less, and that lashon hara is prohibited even if true, and thus Jewish law is, as noted, more strict than the prevailing Israeli law.

            The Gemara (TB Arakhin 15a-b and 16a-b) addresses lashon hara. The Mishna that is the basis for the discussion (15a) states: “Thus we also find that the judgment against our ancestors in the wilderness was sealed only because of their evil tongues, as it is written: you have tried me these ten times … (Numbers 14:22).” Those words referred to the affair of the ten spies who spoke ill of the Land of Israel, and R. Eliezer b. Perata says (ibid.), “Come and see how great the power of an evil tongue is. Whence do we know? From the spies [the spies that Moses sent, and who spoke ill of the Land of Isral – E.R.]: for if it happens thus to those who bring up an evil report against wood and stones, how much more will it happen to him who brings up an evil report against his neighbor”. We also find there: “Of him who slanders, the Holy One, blessed be He, says: He and I cannot live together in the world” (ibid., 15b). And on the verse “Death and life are in the power of [literally: “in the hand of” – trans.] the tongue” (Proverbs 18:21) the Talmud states (ibid.): “Has the tongue a hand? It tells you that just as the hand can kill, so can the tongue … One might say that just as the hand can kill only one near it, thus also the tongue can kill only one near it, therefore the text states: ‘Their tongue is a sharpened arrow’ (Jeremiah 9:7) [in other words, lashon hara reaches and causes harm even at a distance – E.R.]”.

            The Sages also said that all are guilty of “avak lashon hara” [“the tinge of defamation” – trans.] (TB Bava Batra 165a), in other words, no one (or at least, almost no one) is entirely innocent of lashon hara. Pursuant to the Gemara in Arakhin (ibid.), Maimonides states (Hilkhot De’ot 7:3): “Our Sages said: There are three sins for which retribution is exacted from a person in this world and he is denied a portion in the world to come: idolatry, forbidden sexual relations, and bloodshed, and lashon horah is equivalent to them all … Our Sages also said: Lashon hara kills three, the one who speaks it, the one who listens to it, and the one about whom it is spoken. The one who listens to it more than the one who speaks it.” Maimonides is of the opinion that transgressing this prohibition may lead to bloodshed – “A person who collects gossip about a colleague violates a prohibition, as it says: Do not go around gossiping among your people. And even though this transgression is not punished by lashes, it is a severe sin and can cause the death of many Jews. Therefore, it is placed next to: Do not stand against your neighbor's blood …” (Hilkhot De’ot 7:1; and see: Sefer Mitzvot Gadol (R. Moses b. Jacob of Coucy, France, 13^th cent.) Prohibitions 9). According to Sefer Hahinukh (R. Aaron Halevy of Barcelona, 13^th cent.), the justification for the prohibition is that “God wishes the good of His creations, and instructed us by this that there should be peace among us, because gossip leads to dispute and strife” (ibid., Commandment 236), in other words, preventing arguments and disagreements in society, and see: I. Warhaftig, The Right to Privacy in Jewish Law, 233-235 (2009) (Hebrew); S. Aharoni-Goldenberg, “On-Line Privacy from Jewish Law Perspective,” 52 (1) HaPraklit 151, 162-164 (2013) (Hebrew). On lashon hara, also see my article Bad Reports – On the Continuing Struggle for the Dignity and Good Reputation of Others, Parashat Hashavu’a Bereshit (A. Hacohen & M. Vogoda eds.), 211 (Hebrew), also published in my book Paths of Government and Law, 336 (2003) (Hebrew); N. Sohlberg, On Lashon Hara, “Lashon Tova”, and Damages – Money isn’t Everything, ibid., Vayikra 117 (Hebrew); M. Vigoda, Do Not Stand Upon Your Neighbor’s Blood – The Duty to Rescue and its Limits, ibid., Vayikra 150, 151 (Hebrew); N. Sohlberg. The Right to Reputation – Freedom of Expression and Defamation for a Constructive Purpose, ibid., Bemidbar 59 (Hebrew); M. Vigoda, How Beautiful are Your tents O Jacob – Privacy and Freedom of Expression, ibid., 208 (Hebrew); Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information, (Center for the Application of Jewish Law, Netanaya Academic College, Elul 5774).

6.         In his monograph The Defense of Privacy (2006) (Hebrew), Professor Rakover notes that “anything that can cause a person sorrow falls within the scope of lashon hara, even if it is not denigrating in any way” (p. 31). He adds that “a broad definition of the prohibition of gossip and lashon hara can even comprise a violation of a person’s privacy, inasmuch as every person is sensitive to intrusions into his personal life, and does not consent to his private matters being in the public domain” (ibid., p. 32).

            In his well-known letter, R. Elijah of Vilna wrote that “…as our Sages said (Tosefta Pe’ah 81), the sin of lashon hara in its entirety … ‘and lashon hara is equivalent to them all’, and what need is there for me to elaborate on this sin that is the worst of all transgressions”.

            In his writings, the Hafetz Hayim went above and beyond, and as R. Israel Salanter, one of the founders of the Musar Movement, wrote of him, “he took … one Torah verse, and created an entire Shulhan Arukh around it”. And note that that Hafetz Hayim’s approach did not oppose freedom of expression, but rather sought to combat its abuse, with deep understanding of the complexity of the human experience, but in his view “the prohibition upon lashon hara is so great that the Torah prohibited it even in regard to the truth and in every form …” (Hafetz Hayim, Principle 3:16). Moreover, according to him – and let us think of the media in this regard – “the greater the number of listeners, the greater the sin of the speaker (Hafetz Hayim, Hilkhot Issurei Lashon Hara, Principle B:1). Thus, as noted, Jewish law goes to the extreme.

7.         In a eulogy of the Hafetz Hayim, one of his students said that “his circumspection in speaking was beyond human understanding … and he never made any expression of anger or even avak lashon hara…” (quoted in Rabbi Israel Joseph Bronstein, Hanhagot HaHafetz Hayim, 279 (5767) (Hebrew)). Many stories are told of him, like, for example, that he went so far as to refuse to stay in a home in which he heard lashon hara (ibid., 280-281). His son-in-law, Rabbi Menachem Mendel Zaks, related that “he told me several times, ‘Thank God that I was always careful in regard to avak lashon hara’” (ibid., 280). In other words, the Hafetz Hayim lived as he preached. Rabbi Yehudah Segal of Manchester, one of the most ardent activists for distributing the book Hafetz Hayim, said that a person who is circumspect in his speech acquires the Hafetz Hayim as his advocate. No less.

            Indeed, Jewish history is full of incidents in which lashon hara “killed” people. For example, Rabbi Meir Leibush Wisser, the Malbim (1809-1879), was forced to leave his position as Chief Rabbi of Romania when a public smear campaign depicting him as a dark, boorish character, and the enemy of progress and Jewish integration in general society led to his dismissal. Rabbi Jonathan Sacks (former Chief Rabbi of the United Hebrew Congregations of the Commonwealth) wrote in The Plague of Evil Speech (Metzorah, 5768) [http://rabbisacks.org/covenant-conversation-5768-metsorah-the-plague-of-...

For a people of history, we can be bewilderingly obtuse to the lessons of history … Jews have continued to excoriate, denounce, even excommunicate those whose views they did not understand … Of what were the accusers guilty? Only evil speech. And what, after all, is evil speech? Mere words …Words wound. Insults injure.

            The number of people now studying the Hafetz Hayim’s books Hafetz Hayim and Shemirat Halashon has increased. It would seem to me that even if it is difficult to completely free ourselves of lashon hara in a world like ours in which the possibilities for expressing lashon hara are so great, and so many are harmed for no reason, and only the rare few can succeed,  we may still benefit from its study. In my opinion, contending with this is, in sum, the challenge before the Court in this case as in other defamation cases, and the question is whether or not we will contribute to creating a more decent, moderate society.

8.         In addition, the prohibition upon causing embarrassment is another aspect of protecting a person’s reputation. Of this it was said that a person who embarrasses his fellow in public has no place in the world to come (Mishna Avot 3:11), and “when a person who embarrasses his fellow in public, it is as if he has shed blood” (TB Bava Metzia 58b), and it is also said that “It is better for a man that he should cast himself into a fiery furnace rather than that he should put his fellow to shame in public” (TB Berakhot 43b). And see: The Talmudic Encyclopedia, vol. 9, s.v. Halbanat Panim; and see: A. Cohen, Have Everyone withdraw from Me, Parashat Hashavua (5767) 273 (Hebrew). However, despite the great weight and importance attributed to reputation, even the prohibition upon lashon hara in Jewish law is not absolute, and as the Hafetz hayim states in the preface to his book Hafetz Hayim, if the approach were absolutely strict “it would not be possible to live in this world in this regard, without entirely withdrawing from worldly matters”. Even in Jewish law, the laws of defamation do not exist in a vacuum, and there may be cases – exceptions – in which the prohibition upon publishing lashon hara will retreat before other vital interests.

 

On Freedom of Expression in the Jewish Law Ethos

9.         Jewish law indeed recognizes the great importance of freedom of expression against the government, and as Deputy President Elon pointed out: “The prophets of Israel and their prophecies have long served as the paradigm of impassioned and uncompromising rebuke of governmental abuse of might and power, and of a corrupt public or individual. They condemn oppression of the poor and exploitation of the widowed, the repression of individual and community rights, and deviation from the spirit and substance of the Torah and halakha. The firm stand and struggle of the prophets of Israel, even when they evoke severe and angry reactions, has been an inexhaustible source of inspiration in the struggle for freedom of expression and for contemporary enlightened democratic regimes” (EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39 (2) 225, 294 [English: http://elyon1.court.gov.il/files_eng/84/020/000/Z01/84000020.z01.pdf]; and see CFH 7383/08 Ungerfeld v. State of Israel (2011)), paras. 2-3 of my opinion; A. Cohen, Jewish Law and Freedom of Expression, Parashat Hashavua (5765) 205 (Hebrew); H. Cohn, On Freedom of Opinion and Speech in Jewish Law, Parashat Hashavua (5762) 78 (Hebrew)). Here is but one example from among many. In the first chapter of his book, the prophet Isaiah, incisively criticizing the rulers of Jerusalem, states: “Hear the words of the Lord, you chieftains of Sodom … devote yourselves to justice, aid the wronged, uphold the rights of the orphan, defend the cause of the widow … Your rulers are rogues, and cronies of thieves, every one avid for presents and greedy for gifts; they do not judge the case of the orphan, and the widow’s cause never reaches them” (Isaiah 1:10, 17,23). Harsh criticism, without fear. In LCrimA 10462/03 Harar v. State of Israel, IsrSC 60 (2) 70, 92 (2005), I stated that “the idea of freedom of expression is not, in my opinion, conceptually at odds with the approach expressed in Jewish sources in regard to euphemistic language”. However, despite the importance that Jewish law attributes to freedom of expression, there is no denying that the default position – when lashon hara is concerned – is refraining from publication, except in exceptional cases in which the lashon hara is intended to be constructive, to which I will return. Indeed, in our world, refraining from publication is an impractical utopia, but with the help of the courts, it is possible to restrict lashon hara, except when it is constructive, and not broaden it.

…

25.       As noted, the judgment that is the subject of the Further Hearing held that the rule established in the Ha’aretz case should be changed. It was held (para. 26 of the opinion of Justice Vogelman) that “the phrase ‘moral or social duty’ that appears in sec. 15(2) of the Law is an ‘open canvas’ to which the Court must give meaning in accordance with the proper balance among the conflicting rights, values and considerations”, and that the Ha’aretz rule “no longer reflects the proper balance between freedom of expression and freedom of the press, and the right to dignity, reputation and privacy”. It was further stated that the proper solution “is protection of good-faith publication by the media that is of a significant public interest, when it is a publication that meets the strict standards of responsible journalism” (emphasis original). This holding was based, as arises from what I stated above, primarily upon a change in the conception “in regard to the status of freedom of expression in Israeli law, which has been recognized as being of constitutional status” (para. 5 of the opinion of Justice Vogelman), and the change that has occurred in England and the Common Law countries in regard to the application of the “obligation to publish” in regard to factual publications in the media (para. 14). Deputy President Rivlin noted (para. 119) that in view of this conceptual change – in the context of which freedom of expression was recognized as being of constitutional supra-legal status, together with the recognition of the importance of the free press – the Ha’aretz rule has largely become obsolete. In the view of Justice Amit (para. 17 of his opinion), the change of the rule is required in view of the “changing times, and the vicissitudes that have taken place over the last decades, both on the normative-legal plane and in the communications media”. That is, essentially, also the view of the President and those who concur with him in the Further Hearing.

26.       With all due respect, I take a different view. I am of the opinion that even the changes and vicissitudes that have occurred in the world do not justify a change of the Ha’aretz rule, and it would not be superfluous to say that the force of the matter before us – defamation of an IDF officer in a case concerning nothing less than human life – is more serious than the situation in the Ha’aretz case, as described, without taking that affair lightly. I am, as stated, of the opinion that even in the balance between a person’s – any person – right to his good name and freedom of expression, the latter should not be preferred a priori. The grounds for my position are to be found in the exalted value of human dignity, which has been raised to the level of a Basic Law over two decades ago. Human dignity, and a person’s right to his reputation are also related to the approach of Jewish law to lashon hara, as described above. In my opinion, the rule established in the judgment that is the subject of this Further Hearing, and that arises from the opinions of my colleagues in the Further Hearing, may lead – even though this is clearly not the intent – to the trampling of the dignity and reputation of a person, to a “doormat”, as Justice E. Goldberg put it in CFH 7325/95 Yediot Aharonot Ltd. V. Krauss, IsrSC 52 (3) 1, 106 (1998) (hereinafter: CFH Krauss). I will now turn to address the balancing of interests and rights in the Defamation Law – the right to one’s good name on one side, and freedom of expression and freedom of the press on the other. But before proceeding, I would note that in my opinion – absolutely clearly – the Ha’aretz rule should not be viewed as being “archaic”. Is it archaic to hold that in the legal framework of defamation, the purpose of the press, as important as it may be, does not rise to the level of a duty that permits telling a falsehood? My colleagues who are of that opinion surely refer to the strengthening of the status of the media and to developments in the general and legal world. But do values that hold fast to the remnants of reputation and defend human dignity in its plain sense belong in the archives? I do not think so. The justices of the Supreme Court in the sixties and seventies were not conservative dinosaurs that could not see the light. The strengthening of the media does not imply a weakening of the need to insist upon the truth. There are values that are steadfast, for what have not changed at all in the last forty years are the nature and the errors of humanity, which remain as they were since Creation, while the means have become more developed, and what was once available only to the relatively few, now spreads like a brush fire in the electronic and virtual world.

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30.       On the other side of the scales is freedom of expression, the importance of which is undeniable. Freedom of expression is one of the central, most important values of a democratic regime. It has been described as a “superior right” (HCJ 73/53 “Kol Ha’am” Company Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]), and as the “apple of democracy’s eye” (CrimA 255/68 State of Israel v. Ben Moshe, IsrSC 22 (2) 427, 435 (1968)). Thus it was prior to the enactment of Basic Law: Human Dignity and Liberty, and so it is thereafter (see, among many, the Szenes case [HCJ 6126/94 Szenes v. Broadcasting Authority, IsrSC 53 (3) 817, [http://versa.cardozo.yu.edu/opinions/szenes-v-matar]], at pp. 828-830, para. 9 of the opinion of Barak P.); the Ben Gvir case [LCA 10520/03 Ben Gvir v. Dankner – trans.], at para. 13 of the opinion of Procaccia J). For my part, I had the opportunity to point out that “freedom of expression is a supreme right of a citizen in a democratic society, in order to free the human spirit, and combat tyranny and silencing opinions, to facilitate public discussion in the marketplace of opinions, to help liberty conquer oppression and totalitarianism” (LCrimA 10462/03, above, at p. 90). Of course, first and foremost is its importance for criticizing government.

31.       Freedom of the press derives from freedom of expression (CA 723/74 Ha’aretz Newspaper v. Israel Electric Corporation, IsrSC 31 (2) 281, 298 (1977) [http://versa.cardozo.yu.edu/opinions/haaretz-daily-newspaper-ltd-v-israe...). This Court has addressed the importance of freedom of the press in many decisions. Thus, for example, in CFH Krauss, at p. 53, Justice Zamir wrote that “a free press is not only a necessary result of democracy, but a necessary condition for democracy. It is a necessary condition for a representative regime, for good, proper governance, and for human rights. In practice, it can serve as a litmus test of democracy: if there is a free press – there is democracy; if there is no free press – there is no democracy. One of the main tasks of the press in a democracy is to continuously and efficiently monitor all of the state institutions, first and foremost the government”. In LCrimA 761/12 State of Israel v. Makor Rishon HaMeuhad (Hatzofe) (2102) [http://versa.cardozo.yu.edu/opinions/state-v-makor-rishon-hameuhad-hatzo... (hereinafter: the Makor Rishon case)), I wrote: “The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society … A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right” (para. 73). However, as I noted in my article Stains in the Press (Hebrew), “The problems in the field of freedom of expression that now face us are different from those we have become accustomed to confronting in the past. Today, the competition is not – primarily – between the right to freedom of expression and governmental interests for which the government wishes to limit that right. Today, we can say that in the relationships between the individual and the government, freedom of expression has attained an established status in our society and legal system. The historical fear of government that tyrannically shuts mouths is no longer – not in the electronic media (ever since the Broadcasting Authority Law), nor in the print media. The power of censorship has been reduced incredibly in the era of Basic Laws, and even enforcement in regard to the exposure of secrets is quite rare” (pp. 199-200). Who can seriously say that there is no freedom of the press in Israel? Indeed, criticism of the government is rooted in our national ethos. As noted, the Prophets of Israel raised their voices against the government, and even with the reservation, i.e. that the Prophets spoke as God’s mouthpiece and not of their own (see: A. Hacohen, On the Principles of Freedom of Expression and its Limits in Jewish Law, Parashat Hashavua Vayikra 137, 136), in any case, criticism of the government is not like criticism of an individual. And as Prof. A. Barak wrote (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, p. 723 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)], “…the scope of the individual’s right of expression against the state is more comprehensive than an individual’s right to freedom of expression against another individual”; and see ibid., 588-599: “an individual’s right too human dignity in regard to the state differs from that individual’s right to human dignity in regard to another individual. Against the state, the individual’s right to human dignity applies in to the full extent of the ideal it is meant to achieve. But against another individual, the individual’s right is subject to a process of balancing and limiting in view of its engagement with other constitutional rights or the public interest”; and see Justice Sohlberg’s opinion in CA 8954/11 Anonymous v. Anonymous (April 4, 2014), para. 122. Indeed, in these contexts, Jewish law, at the very least, sets boundaries for freedom of speech, as A. Hacohen describes in the aforementioned essay, and see the references there.

…

 

40.       Thus, Basic Law: Human Dignity and Liberty expressly established human dignity, including the right to reputation, as a constitutional right, and in my opinion, the time has come to reexamine the balance struck prior to the Basic Law in the Avneri case, so as to reinforce reputation. The clear, express words of Basic Law: Human Dignity and Liberty cannot remain merely declaratory, and remain without practical effect. The Court is required to defend human rights, rights that include the right to one’s good name. It must stand up to the erosion of human dignity not only in respectful, beautiful words. In other words, it must ensure that every woman and man know that a person’s good name is not a doormat. Once the legislature established – in express words, and by all that is holy, and no one can possibly argue that a person’s dignity does not, first and foremost include his reputation – that a person’s right to a good name is a constitutional right, we must give that real, practical content. In my opinion, real content in the context with which we are concerned – the laws of defamation – would mean changing the balance, and returning to the balance rule established in the Further Hearing in the Electric Corporation case, i.e., freedom of expression should not be deemed a superior right that stands above the right to a good name, but on the contrary, where there is doubt, it would be better to err in favor of a good name. I would stress that I have no desire to harm freedom of expression and freedom of the press, which are held undisputedly high in Israeli law and reality. On the contrary, I hold them in high regard. They have a very important role in protecting democratic society, and I am the last who would not contribute to that. However, in my opinion, “freedom of expression is not an unbounded, theoretical concept. The prohibition of defamation is one of the significant boundaries, and the question is how to interpret defenses and licenses in regard to defamation. I believe that Basic Law: Human Dignity and Liberty should play a part in that” (LCA 1104/07 Hir v. Gil (2009), para. 29 of my dissent). “Freedom of the press also applies to biting journalism, but that does not mean that the freedom is unlimited … the basic presumption of freedom of the press is also responsible journalism. A person’s good name is not at forfeit” (the Makor Rishon case, para. 73). The approach protecting a person’s good name is my consistent approach, even when I am in the minority (see my opinion in LCA 4447/07 Mor v. Barak E.T.C. (1995) (hereinafter: Mor v. Barak). A person’s good name is a constitutional right of the highest order, and as such, we are required to accord it its rightful place. This is particularly the case when we are speaking, as in this case, of a suit concerning a story/report that has been published, and not – as was the case in in the Avneri case – a restraining order to prevent publication (on the distinction between preventative relief and retroactive sanctions in these contexts, see CA 409/13 Keshet Broadcasting Ltd. v. Cooper (April 11, 2013) para. 16 of the opinion of Grunis P.). I would reiterate that, in my opinion, freedom of expression, which  is necessary for the oversight of governmental authorities (as see, inter alia, Re’em Segev, Freedom of Expression against Governmental Authorities (Israel Democracy Institute, 2001), is not, as noted, identical – and certainly not necessarily so – to freedom of expression against a person who is not a governmental personage, and see para. 31 above. Indeed, Israeli law protects untrue publications when there is a legal obligation, no less, to publish them (sec. 15(2) of the Defamation Law). Has freedom of journalistic expression attained the level of an obligation that permits untruth and defamation? In my view, it has not. Before explaining why, in my opinion, a journalistic obligation should not be read into sec. 15(2), I will present the Jewish law approach to constructive lashon hara (which, in some cases, may attain the level of an obligation).

 

Constructive Lashon Hara

41.       Indeed, there are possible situations in Jewish law in which refraining from lashon hara may cause harm, and the prohibition upon lashon hara is overridden in such situations due to the attendant benefit: “And know that in interpersonal matters, such as gezel [theft], oshek [exploitation], nezek [damage], tza’ar [suffering], and boshet [shame], and ona’at devarim [verbal deception], one may inform others, and even a pious individual will tell, in order to help the guilty party, and from a devotion to truth” (Sha’arei Teshuva by R. Jonah b. Abraham Gerondi (Spain, 13^th cent.) 3:221); “Along with His [God – E.R.] command against gossip, came the proviso that you shall not stand against your neighbor’s blood, so that if one see that a group wishes to commit murder, he must inform the interested party in order to save his life, and should not think that this is gossip, as if he does not tell his fellow and he is killed, the warning of you shall not stand is abrogated, etc. We can learn from the story of Gedaliah ben Ahikam (Jeremiah 40) who was told, but when he did not heed, what happened (that is, Gedaliah ben Ahikam was warned that he was in danger, but he did not believe the warning, and was ultimately murdered – E.R)]” (and see: Or HaHayim (R. Haim ibn Atar,  a.k.a. Or HaHayim HaKadosh, 17^th-18^th cent.) Vayikra, Kedoshim 19:16 (Hebrew)). It would seem that in such circumstances, the case of Gedaliah ben Ahikam raises the matter to the level of a duty.

42.       The Hafetz Hayim ruled that “if someone witnessed another person harming his fellow, by theft or exploitation, or injury – whether or not the victim of the theft or the harmed person is aware of the damage or theft or not – or by shaming, or causing him suffering, or exploiting him, and the witness knows that the offending party did not return the theft, pay damages, or request forgiveness, etc., even if he was the sole witness, he may discuss the incident with others in order to help the guilty party and also to publicly denounce such evil behavior. However, he must take care that the seven conditions that follow are met” (Hafetz Hayim, Hilkhot Lashon Hara 10:1), that is, conditions were established in order to limit the possibility of unnecessary harm. The Hafetz Hayim warns (ibid., 15): “Now see, my brother, how carefully one must weigh how to relate the matter. For when he speaks he is in grave danger of transgressing the laws of lashon hara, if he is not careful in regard to all the details”. In The Right to Privacy in Jewish Law (p. 244), the learned Dr. Itamar Warhaftig summarizes the Hafetz Hayim’s provisos for permitting lashon hara: the speaker must carefully weigh whether harm may be caused; must not exaggerate, i.e., not make the wrong appear greater than it was; that his intention be only to help; that he must make sure that there is a reasonable possibility that his actions will, indeed, be helpful; that there is no alternative for preventing the harm; that his words will not cause substantive harm to the person about whom he tells lashon hara; and that what he says is in regard to what he has clear knowledge, and not hearsay (in greater detail, see: Hafetz Hayim, Hilkhot Lashon Hara, Principle 10, and Hilkhot Rechilut, Principle 9 (Hebrew)); And see: Rabbi Z. Greenwald, Taharat Halashon – Madrikh Lehilkhot Lashon Hara uRekhilut, 109 (Hebrew) [English: Ze’ev Greenwald, Taharas Halahon – A Guide to the Laws of Lashon Hara and Rechilus (David Landesman, Trans.) (Feldheim, 1994)]. For further reading on the provisos, see N. Sohlberg, A Person’s Right to Good Name, Freedom of Expression and Constructive Lashon Hara, Parashat Hashavua 29 (5761) 29 (Hebrew)). Constructive lashon hara may serve educational purposes, or deterrence from the commission of offenses, under the above conditions (also see: Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information (para. 5, above). For my part, I would stress the proviso that permission is granted in a situation in which lashon hara may be constructive, “but if in his estimation it will certainly not be of benefit … even if all the details are verified, it is still forbidden to say anything” Hafetz Hayim, Hilkhot Lashon Hara, Principle 10:4).

43.       The learned Prof. N. Rakover (On Lashon Hara and its Punishment in Jewish Law (5722) (Hebrew)) gives several examples of exceptions to the prohibition of lashon hara for constructive purposes: telling lashon hara in order to save the victim, and lashon hara out of a commitment to truth; telling lashon hara to prevent damage; telling lashon hara by means of a complaint; telling lashon hara about a recidivist offender. According to him, “There are occasions when a person may relate the matters, and may even be obliged to make them public. Such situations also provide the framework for a legal, moral or social obligation to publish lashon hara”; see additional examples in Warhaftig, pp. 244-258, and see Rabbi M. Bareli, Publishing Lashon Hara about Elected Officials, 33 Tehumin 136 (5773) (Hebrew), according to whom there may even be an assumption of forgiveness for the publication of criticism of elected officials, since there would appear to be implied consent on their part, provided that there is benefit in the publication (and see the conflicting view of Dr. I. Warhaftig, ibid., p. 149); on the problematics, also see Rabbi A. Katz, Lashon Hara in Public Databases and Archives, 27 Tehumin 180 (5767) (Hebrew)).

44.       Thus, there may indeed be cases in which permission to convey lashon hara may become an obligation – an obligations of expression. In general, this is the case in which telling lashon hara is necessary to save another person from harm or injury. Maimonides ruled: “Whenever a person can save another person's life, but he fails to do so, he transgresses ‘Do not stand against the blood of your neighbor’. Similarly, when a person sees another drowning at sea or being attacked by robbers or a wild animal, and he can save him himself or can hire others to save him, but does not save him, or he hears gentiles or informers conspiring to harm him or planning to entrap him, and he does not notify him of the danger, or when a person knows of a gentile or a belligerent man who has a complaint against another, and he can appease the aggressor on his behalf but he fails to do so, and in all similar instances, a person who acts thus transgresses the commandment: ‘Do not stand against the blood of your neighbor’” (Maimonides, Mishneh Torah, Hilkhot Rotze’ah uShemirat Hanefesh 1:14). We are not concerned only with saving lives, but also with preventing damage. Thus, the Hafetz Hayim ruled: “If one knows that his friend wishes to do something with someone else, and he believes that his friend would definitely incur some harm by this bad thing, he must inform his friend in order to save him from that harm” (Hafetz Hayim, Hilkhot Rekhilut 9:1), all subject to the aforementioned conditions.

45.       Dr. M. Vigoda summarized the approach of Jewish law in his aforementioned essay “Privacy and Freedom of Expression,” Parashat Hashavua Bemidbar 208, 214-215 (Hebrew):

The scope of freedom of expression in matters concerning other persons is very limited, and exists only in regard to generic matters the exposure of which would not be likely to cause either emotional or monetary harm to the other. Inasmuch as such matters are very rare, it may be concluded that Jewish law severely restricts permission to reveal matters concerning another. As opposed to this, at times, it requires that a person reveal something whose non-disclosure is likely to cause harm to a third party. In such matters, we are not speaking of freedom of expression, but rather of an obligation of expression, inasmuch as in such situations, silence is wrongful.

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On the Absence of Humility and Modesty

60.       Lashon hara has a sister – arrogance. All the justices of the panel in the judgment that is the subject of this Further Hearing, each in his own way, addressed the message conveyed by the television program, which was presented most forcefully and absent any modicum of modesty. Indisputably, the media, printed, virtual, and particularly electronic – television – has tremendous power. “The medium is the message,” said Marshall McLuhan. It is easy for the media to fall into the trap of “my own power and the might of my own hand” (Deut. 8:17), “I am, and there is none but me” (Isaiah 47:8), and the Bible also states (Psalms 36:12) “Let not the foot of the arrogant tread on me”, and our Sages said (Ethics of the Fathers 4:4) “Be exceedingly lowly of spirit”, and see (TB Sota 4b). Every human being is given to arrogance, particularly those whose words travel from one end of the earth to the other in a matter of seconds (“Sin crouches at the door” (Genesis 4:7). The opposite of this in Jewish morality and law is humility. Our Sages said: “What wisdom makes a crown upon its head, humility makes a heel beneath its sole (TJ Shabbat 1:3). In his book of morality Ma’alot Hamidot, R. Yechiel b. R. Yekutiel b. R. Binyamin Harofeh (Italy, 15^th-16^th cent.) devotes a chapter to humility, and quotes the Sages: “What is the quality of humility? One with whom all are at ease, and anyone who is not arrogant towards others…” In his renowned letter, Nahmanides (R. Moses B. Nachman, Spain, 13^th cent.) writes that humility is “the best of all qualities, as it is written: The effect of humility is fear of the Lord (Proverbs 22:4)”. R. Moshe Chaim Luzzatto (the “Ramhal”, 18^th cent.) devotes two chapters of his Mesilat Yesharim to humility, as the opposite of arrogance, writing (chap. 22): “For it is wisdom that has a greater tendency to bring a person to arrogance and pride … while a person of common sense, even if he is a great genius, will observe and contemplate and realize that there is no place for pride and arrogance … This is the examination and contemplation that is proper for every person of common sense …then he will be called truly humble, when he is humble in his heart and being”. Rabbi Yochanan said of God (TB Megilla 31a) “In every place that you find God’s grandeur, you find His humility”. On humility and arrogance in Judaism, see: Beral Wein & Warren Goldstein, The Legacy, 78-80 (2012). At his swearing in ceremony (Feb. 21, 2012), our colleague Justice Zylbertal said: “As part of our duty to conduct ourselves with humility, we must recognize error as inherent to the act of judging. President Barak addressed this in his speech in a ceremony swearing in new judges: ‘Only a judge who admits that he is not the epitome of perfection, but that like every human being, he too may err, can correct his judgement and thus approach perfection. Opposite the truth stands error – not lies – and recognizing error brings one closer to the truth’ (A. Barak, On Law, Judging and Truth, 27 Mishpatim 11 (5756)”.

61.       What is good for judges is also appropriate for the media. Of what relevance is this for the matter before us? I, too, am not of the opinion that the story reflected a lack of good faith. But it did reflect an exaggerated self-confidence that resulted in a lack of appropriate sensitivity for the Petitioner. “What is hateful unto you, do not do to your neighbor,” said Hillel the Elder (TB Shabbat 31a). Respondent 1 should ponder how she would like to be treated herself. And the absence of amends for lashon hara, even after-the-fact, makes the problem worse. The words of the Deputy President in para. 123 of the judgment that is the subject of this Further Hearing are appropriate here, as well: “Indeed, some of Dayan’s statements in the course of the broadcast were gratuitous, to say the least. It would have been better had she adopted a greater degree of self-restraint and modesty in view of the inherent problem in seeing the whole picture prior to the broadcast of the story”. Modesty and humility are appropriate for us all.

62.       In my article Stains in the Press (p. 204) I quoted Walter Cronkite, one of the greatest American television journalists of the last generation, who wrote in A Reporter’s Life (p. 289): “Press freedom is essential to our democracy, but the press must not abuse this license. We must be careful with our power. We must avoid, where possible, publicity circuses that make the right of fair trial a right difficult to uphold … Liberty and, no less, one’s reputation in the community are terribly precious things, and they must not be dealt with lightly or endangered by capricious claims of special privilege.” To which I added (ibid.): “Moderation is a good quality indeed, and it is also good for the press. I believe that there is nothing wrong if, a moment before publishing a story, the reporter and editor take a timeout to consider: Is the report sufficiently grounded to risk the harm that its publication may cause this person?” And further on I wrote (pp. 206-207): “… the duty to report on the basis of reliable, verified information, to report the truth, is a basic requirement that every journalist must observe. The public’s right to know is not the end all, nor unrestricted. Trial by the press can lead to tragedy. This raises the issue of the responsible use of the nearly limitless power of the media. At times, one may observe this in terms of ‘judge not others until you have stood in their place’ (Ethics of the Fathers 2:4), when a journalist or editor is the victim of press reports, and his reaction reflects frustration just like that of any other person, as has happened”.

…

64.       I, of course, do not deny that there are also many responsible journalists, and I would not cast aspersions on the media in their entirety, which would, itself constitute avak lashon hara if not more than that. However, I am sure that when some members of the media read the majority opinion in this case, they will smile with relief, and express wonder at judicial naiveté.

65.       My colleague Justice Hendel notes in regard to establishing a duty under sec. 15(2), that “if the journalist sets lying or deceiving as an objective, then clearly the good-faith defense will not serve him”(para. 6). Of course, and I too am of the opinion that the press must not be deterred from criticizing the government. But the question arises in those gray areas in which you – the reader – do not know the true story, while the journalist is aware of background that he does not publish, such that the product presented to the public is nothing but a half truth, which is worse than a lie. We should remember the “coddling” of a particular politician – a tactic that a well-known media personality openly recommended – that is, the “obligation” and the attendant truth are set aside in favor of a political interest, such that certain facts may intentionally be blurred so as not to harm a political objective. Are we acting responsibly when we make many presumptions to the benefit of the media, even to the point of an “obligation”, when they are accompanied by an inadequate ability to protect a person’s good name, and it is swept under the rug? Does the life’s breath of democracy justify that the individual, at times, be “knocked to the canvas”?

66.       My colleague Justice Hendel (paras. 2 and 8) calls for developing an independent “Israeli approach”. He does not explain what that might be. I would like to join him, but explain that, in my humble opinion, the ethos and culture of Jewish law argue for greater sensitivity to a good name than that resulting from this decision. Perhaps we should create a “good name à la Israel”, a Jewish and democratic state. At this point, I will briefly state that I was glad to learn from my colleague of additional Jewish law sources in regard to constructive lashon hara, from which he attempts to show that even when journalistic publications comprise lashon hara, they may be beneficial in certain cases. The sources are alluring, but I fear that they are peripheral to the subject, and my colleague is aware that he raises questions that await answers, and in my opinion it would be difficult to attribute what may derive from his arguments to the core of Jewish law. The sources he presents are fascinating, but are peripheral, and I am very fearful of a slippery slope in the overall context. I would add that pursuant to reading my colleague’s opinion, I read Rabbi Ari Shevet’s interesting article Newspapers and News – Obligation or Prohibition (Hebrew), and I very much appreciated the many sources included there, and the lovely breeze – mixed with a positive innocence and “happy are those whose way is blameless” (Psalms 119:1) – that wafts from it in regard to the positive potential of journalism (as in the words of Rabbi Isaac HaKohen Kook that he quotes), and clearly, wise contemporary Torah scholars cannot ignore the media and their importance in our daily lives, although the Hafetz Hayim (in his book Zechor LeMiriam) warned not to waste time reading newspapers (in their then limited form, so what might we say nowadays). But when the author moves from the light to the shadows, his solutions – imposing a duty of care upon journalists – ultimately lead to the statement (para. 5 of the conclusion): “In the current format, it may be that journalists are to be ‘deemed bearers of lashon hara’,  and it is therefore better to listen to the news over the radio”. And further: “Our suggestion is not, by any means, intended to detract from the severity of the prohibition upon gossip, lashon hara, and bearers of lashon hara. We must remember the words of the Pele Yoetz (R. Eliezer Papo, Greece-Bulgaria, 19^th cent. – E.R.) (Pele Yoetz, s.v. Lashon Hara) that it is better to “flee through one hundred gates of permission so as to avoid entering one gate of prohibition”. I am not naïve, and I am well aware of the power and ability of the media, but I do not believe that opening the gate of “obligation” that arises from the majority decision will benefit reputation and basic human dignity, inasmuch as it comprises too many assumptions, as already detailed. It is easy to foresee the dangers, but will we merit “responsible journalism”?

67.       Finally, my colleague Justice Danziger (para. 5) explains the need for distinguishing the expression of opinion and facts in the media. I agree with that distinction, even if our era is characterized by post-modern “narratives” that combine the two, such that it is sometimes difficult to distinguish.

 

 

Justice N. Hendel

…

            An article published several months ago by the Columbia University School of Law addressed the relationship between freedom of speech and the state of mind or intent of the publisher. The question was raised as to the relevance of these to defamation. The author’s answer was that the prohibition of defamatory speech is not meant to be absolute. Therefore, the system does not suffice in examining only the publication, but also examines various subjective aspects of the publisher. Moreover, and this is the important point for our discussion, emphasis was placed upon the chilling effect of over extending the prohibition of defamation. From this perspective, it is not enough to examine what was published, but also what would not be published if the law were more strict with the publisher – including the journalist (Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev. 1255 (2014); for an example that examines the matter empirically, see Eric Barendt, Laurence Lustgarten, Kenneth Norrie & Hugh Stephenson, Libel and the Media: The Chilling Effect (1997)).

            The position according to which the press would be endowed with the crown of a “social obligation” also imposes a duty upon the journalist. It is not a one-way street that benefits only the journalist at the expense of another publisher. A note must be paid on demand. And what is the demand? First, as my colleagues held, that the obligation relates to a publication that is of significant public interest, and not merely any public interest. In addition, legitimacy was given to the demand that a journalist act responsibly – “responsible journalism” in the words of my colleagues. I will address these matters below.

            In this context, I will briefly address the approach of Justice Rubinstein in regard to the relationship between the right to one’s good name and freedom of expression. According to his approach, despite the importance of the latter, it is a lower level on the constitutional scale than the right to one’s good name. For my part, I would add my voice to that of President Shamgar (FH 9/77 Israel Electric Corp. Ltd. v. Ha’aretz Daily Newspaper Ltd., IsrSC 32 (3) 337 (1978) [http://versa.cardozo.yu.edu/opinions/israel-electric-corp-v-haaretz]), and to that of Justice Rivlin in the appeal (para. 77), according to which, despite the importance of the two values, freedom of expression is principal. Both according to the approach of Justice Rubinstein and the opposing view, that does not mean that one of the rights “subsumes” the other in every collision. But the argument is of importance in borderline cases. My colleague is of the opinion that in a borderline case, the scales should tip in favor of protecting reputation. I disagree, and thus join the opinion of Justice Rivlin in the appeal, that “to the extent that there may be doubt in regard to whether disputed speech is protected, it is better to err on the side of freedom of expression and freedom of the press” (para. 79, citing Justice Harlan F. Stone).

            I will permit myself to add that this argument is somewhat abstract. But the matter is neither abstract nor theoretical. Following the enactment of Basic Law: Human Dignity and Liberty over twenty years ago, it is, in my opinion, appropriate both for the development of Israeli constitutional law and practically, that such issues as these be considered. Moreover, as I explained in detail in the judgment in the matter of the Nationality Law, in the United States constitutional rights are categorized into three levels for the purpose of establishing the strictness of the required judicial review (HCJ 466/07 Galon v. Attorney General, para 4 (Jan. 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). Lastly, the case before us comprises liminal elements, as the President pointed out in his opinion. The general view in regard to the proper balance between freedom of the press and the right to one’s good name may, in my opinion, explain the different positions adopted in this Court and in the District Court. To illustrate the matter, even justice Rubinstein noted in his opinion that “I, too, am not of the opinion that the story reflected a lack of good faith”. Thus, the dispute concerns the legal test – the existence or non-existence of a social obligation – and not the professionalism of the publication.

            As for my position in all that regards the constitutional hierarchy between the right to reputation and freedom of the press, I will suffice with a few comments. Indeed, “a good name is better than fragrant oil” (Ecclesiastes 7:1). But I would not go so far as to say that a good name and human dignity are one and indivisible (paras. 35-36 of the opinion of Justice Rubinstein). We are not speaking of alternative terms, despite the strong bond between them. That is not the main thing. As my colleague pointed out, the two competitors – good name and freedom of expression – do not expressly appear in Basic law: Human Dignity and Liberty. But they may be said to derive from human dignity (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 616, 708 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]. I would go one step further and say that freedom of expression – especially journalistic – has been recognized as a supra-legal basic right from the earliest days of our legal system. It was held that this right constitutes the source of other rights (the Kol Ha’am case, ibid.).

…

            In Ireland, as opposed to Israel, freedom of expression appears in a somewhat circumscribed form. Thus, article 40.6.1 of the constitution establishes: “the State shall endeavour to ensure that organs of public opinion shall not be used to undermine public order or morality or the authority of the State”. In Australia, there is no constitutional or statutory provision protecting freedom of expression, and it was the case law that developed the subject was (see, for example, in regard to freedom of political speech: Australian Capital Television v. Commonwealth (1992) 177 CLR 106; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520). As opposed to this, in Canada freedom of expression expressly appears in sec. 2(b) of the Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms: […] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. This freedom is, of course, subject to the Reasonable Limits Clause (sec. 1). Canadian case law in this regard is most varied. Thus, I would note the Zundel case, which voided sec. 181 of the Canadian Criminal Code that prohibited knowingly publishing a false statement – e.g., denying the Holocaust – because the criminal prohibition improperly violated freedom of speech (R. v. Zundel [1992] 2 S.C.R. 731). Lastly, in South Africa, freedom of expression is expressly anchored in sec. 16 of the constitution. The right is broad. Interestingly, one exception is incitement to imminent violence, and another is advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

            I have presented the matter in a nutshell only to illustrate my view that we must act in accordance with an internal Israeli system, although I agree that examining the situation in foreign legal systems would enrich the discussion. I would add my personal view that much can be learned from the American legal system’s approach to freedom of speech – which is very developed – and the relationship between it and the strength of democracy there is worthy of thought and admiration.

9.         I would make two points in concluding my remarks on the term good faith. The President is of the opinion that in examining a journalist’s good-faith defense, weight should also be given to the motivation for publication – for example, was the motive a desire for increased ratings or to publish a ringing scoop. The President is correct in that it is good that every professional examine his motives so that the desire for success not clash with the sanctity of the work. However, in my opinion, there is a long way between that and finding that considerations of ratings and scoops constitute a legal accessory for ascertaining good faith.

            There is nothing new in saying that a person is a complex being. Often, a person’s motives are mixed: they comprise both the desire to realize some proper, external objective, and the desire for personal success and advancement. The Sages of Jewish law were also aware of this, and observed that “the jealousy of scribes increases wisdom” (TB Bava Batra 22a). “The jealousy of scribes” and the natural desire to succeed more than others were deemed as means or catalysts for increasing Torah scholarship. In that context, Rabbi Mosheh Lichtenstein, Head of the Har Etzion Yeshiva, noted that King Solomon learned how to properly direct his personal ambitions, and devoted his exceptional talent to the building of the Temple (Mosheh Lichtenstein, The Mishkan of God and the Mikdash of Shelomo (http://ftp.vbm-torah.org/en/teruma-mishkan-god-and-mikdash-shelomo).

            Against this background, I am of the opinion that the desire for personal advancement does not, in and of itself, testify to an absence of good faith. However, such an “egotistical interest” may compromise the principle of good faith if expressed in other forms of conduct, for example, not properly checking sources of information. Only then will those other omissions catch the judge’s eye in reaching a decision.

            The other point concerns the disagreement between the President and Justice Vogelman in regard to the “geometric location” of the responsible journalism requirement. I will briefly state that I concur with the approach of the President that it would be better to examine this requirement in the framework of the good faith element, rather than in the framework of the obligation. That is primarily so as not to blur the difference between fulfilling the obligation and the manner of its fulfillment (and see para. 79 of his opinion).

…

E. Jewish Law

11.       A unique characteristic of the Israeli Defamation Law is that it is rooted in Jewish law. Even the name of the tort [lashon hara] reflects this. But we should not suffice with that. Basic Law: Human Dignity and Liberty has achieved primacy in examining basic rights and conflicts between them. It defines Israel as a Jewish and democratic state. My colleague Justice Rubinstein, as is his practice, provided a fine, broad survey of the laws of lashon hara. I can only add my admiration for the range of sources and their clear presentation. For my part, I would like to emphasize a particular aspect of the Jewish law approach: the application of the laws of lashon hara to the press in a democratic society. In my opinion, this aspect requires a broader view for three reasons. First, the precedents of the Torah and the oral law. Second, the exceptions to the prohibition upon lashon hara arising from halakha, including the writings of the Hafetz Hayim. Third, the laws pertaining to the public in general (as opposed to halakhic decisions concerning individuals), and the State of Israel, in particular.

12.       On the basis of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16), Maimonides distinguishes three prohibitions. The first – “Who is a talebearer? One who collects information and goes from person to person, saying: This is what so and so said, and this is what I heard about so and so. Even if he tells the truth, it destroys the world” (Mishne Torah, Sefer Hamada, Hilkhot Deot 7:2). A talebearer is, therefore, one who trades in information, even though it is not disparaging (see the commentary of the Kesef Mishne, a scholar of the Land of Israel of the 15^th cent. [sic] [R. Joseph Karo, 1488-1575 — trans.] ad. loc.), and even of no benefit. The second – lashon hara: “and he speaks deprecatingly of his fellow, even though he speaks the truth” (ibid., 7:2). And third: “but one who tells a lie is called a defamer of his fellow’s good name” (ibid.).  It should be emphasized that gossip [tale bearing] and lashon hara concern “telling the truth”.

            Nahmanides disagrees as to the source of the prohibition. According to him, the prohibition is based upon the conduct of Miriam, and the Torah’s injunction: “Remember what the Lord your God did to Miriam on the journey” (Deut. 24:9). That refers to the story in Numbers: “Miriam and Aaron spoke against Moses because of the Cushite woman he had married” (Numbers 12:1). Miriam challenged her brother Moses as to why he did not maintain family relations with his wife as Aaron did with his wife, and Miriam with her husband.

            Nahmanides’ approach includes two interesting points. One:

In my opinion, this is actually a positive commandment, like “remember the Sabbath day to sanctify it”, “remember this day, on which you went free from Egypt” … which are all commandments. If so, this verse, too, is like those, it being an admonition against speaking lashon hara. He commanded by way of a positive commandment that we remember the great punishment that God imposed upon the righteous prophetess who spoke only about her brother for whom she showed mercy and loved as herself. She said nothing to his face that would shame him, nor in front of others, but only in private, between herself and her holy brother. Yet all her good deeds were of no avail to her. And you, too, if “you are busy maligning your brother, defaming the son of your mother” (Psalms 50:20) you will not be saved… And how is it possible that there is no explicit negative commandment against lashon hara in the Torah, nor even a negative commandment derived from a positive commandment, when it is equated to bloodshed? But this verse comprises a great warning to refrain from it both in public and in private, whether or not to cause harm and shame. And this is one of the 613 commandments (Nahmanides’ commentary on Deuteronomy. 24:9).

Like Maimonides, Nahmanides deems the prohibition upon lashon hara as particularly severe. But he wonders why the matter is related in a story rather than as an explicit command. It should be noted that even according to Maimonides, the explicit Torah prohibition is of gossip, whereas lashon hara is a type of subcategory. One might say that the prohibition is introduced by appending it to a story, contrary to the usual biblical practice, in order to emphasize the uniqueness of the prohibition upon lashon hara as one that arises in the context of social interaction. Moreover, the matter is dependent upon circumstances. From the Bible, it appears that Miriam’s intention was constructive – to help her sister-in-law. She raised the matter, together with Aaron, only before Moses. However, in view of Moses’ humility, as is related further on, she should have been less hasty in judging as she did in presenting the matter to Moses.

            Whatever the case may be, the second point is the one relevant to the matter before us, and is expressed in another of Nahmanides’ insights:

In the matter of Miriam, we were commanded to inform our children and tell it for the generations. And even though it would have been proper to conceal it so as not to deprecate the righteous, Scripture commanded that we make it known and reveal it so that the warning against lashon hara will be in their mouths, because it is a great sin and causes many evils, and people always stumble in its regard (Nahmanides’ commentary to Deuteronomy 25:17).

 

            In other words, if the prohibition is so severe, and those involved were only these three sibling prophets, is not the injunction to remember the incident not itself a form of lashon hara? Is this not something of a contradiction? Nahmanides’ answer is that it is important from an educational perspective to present the matter so that we may learn the about the nature of the prohibition, and that is the source for permitting its publication for posterity. The Bible provides many examples of this approach of not refraining from criticizing the nation’s great leaders – even Abraham, David and Solomon.

            An example of the application of this approach can be found in the Talmud. In the parashat Balak [sic][1] in Numbers, we are told of the gatherer of sticks on the Sabbath who was put to death [Numbers 15:32-36]. His name does not appear in the Bible. Rabbi Akiva teaches us that the man was non other than the father of the five women who requested an inheritance, and their request for non-discrimination against women was accepted. The Talmudic sages were not pleased with Rabbi Akiva’s novel idea. As the Talmud states:

Our Rabbis taught: The gatherer was Zelophehad, and it is said (Numbers 15:32): and while the children of Israel were in the wilderness, they found a man [gathering sticks, etc.], while later it is said (Numbers 27:3): our father died in the wilderness, etc. Just as there it is Zelophehad, so here it is Zelophehad. This is R. Akiva's view. R. Judah b. Batera said to him: Akiva, in either case you will have to give an account. If you are right, the Torah hid him, while you reveal him. And if not, you denigrate a righteous man (TB Shabbat 96b).

            Rabbi Judah b. Batera’s claim is that Rabbi Akiva’s statement is merely a conjecture, and the claim that Zelophehad died in the desert as a result of his sin is not necessarily true. In either case, if Rabbi Akiva told the truth, why did he reveal what the Torah had hidden, and if it was not the truth, why impugn Zelophehad? Nevertheless, and even though neither Rabbi Akiva nor any other rabbis reply to Rabbi Judah b. Batera, the view according to which Zelophehad had sinned has been preserved over the generations. This is not unique to that story. Many midrashic narratives and Torah commentaries are not complimentary to a particular person, and are not necessarily based upon some objective, verifiable truth.

13.       As noted, not only biblical precedent, but the laws of lashon hara, as well, open the door for qualifying the prohibition upon lashon hara.

            The first rule is that of “publicly known”. As stated in the Be’er Mayim Hayim: “No proof can be brought … from what is written in Arvei Pesahim … since this may be publicly known, and lashon hara is not applicable” (commentary of the Hafetz Hayim on his book, Hilkhot Lashon Hara 4:41). In other words: “In any case, everyone saw” (ibid. 5:8). This principle is expressed in a situation of “before three”, regarding which Maimonides ruled: “If such statements were made in the presence of three people, it has already become public knowledge. Thus, if one of the three relates the matter a second time, it is not considered lashon hara” (Mishne Torah, Hilkhot De’ot 7:5). According to this exemption, a private discussion differs from a one that has been made public, even if only partly (three people). This exemption is subject to conditions, but it may be relevant to information that, in any case, is in the public domain.

            To this we can add the exemption in regard to preventing harm, and even more so, to prevent harm to many, on the basis of the commandment “you shall not stand against your neighbor’s blood” that is the continuation of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16). As the author of Arukh HaShulhan who lived at the beginning of the 20^th cent. [Rabbi Yechiel Michel Epstein, 1829-1908.—trans.] wrote: “When a person sees another drowning at sea or being attacked by robbers or a wild animal, or other types of evil, and he can save him himself or can hire others to save him, but does not save him, or he hears haters conspiring to harm him, and he does not notify him, or when a person knows of a harmful man who wishes harm his fellow, and he can appease him but he fails to do so, and in all similar instances, transgresses the commandment: ‘Do not stand against the blood of your neighbor’ … and all the more so he is obliged to rescue his fellow from any harm or damage that other seek to cause him, and all the more so he is obliged to prevent harm to the many, and must prevent it if he is able to prevent it” (Hoshen Mishpat 426:1) (emphasis added).

            It should be noted that the prohibition upon telling lashon hara, despite its severity, may retreat before another commandment – “Do not stand against the blood of your neighbor”. Last in this context is lashon hara for a constructive purpose, which I will address below. I would note at this stage that none of the four parts of the Shulhan Arukh – one of the primary legal codices – treats of the laws of lashon hara. This can be explained. Although lashon hara constitutes a legal obligation, it is also viewed in terms of a virtue. That would, therefore, appear to be why Maimonides classified lashon hara under the category of hilkhot de’ot [laws concerning matters of personal development – trans.], and the great moral scholars addressed this in their works (see, e.g., chap. 11, “Details of the Virtue of Cleanliness”, in Mesilat Yesharim  by Rabbi Moshe Chaim Luzzatto (the Ramhal, Italy, 18^th cent.)). The merger between halakha and the duty to distance oneself from vices lead to the situation wherein when the two are in conflict, for example, a negative statement for constructive purpose, the prohibition upon lashon hara may be altered and become permissible and even a mitzvah in the framework of a desire to repair.

14.       Notwithstanding the possibility of developing the laws of defamation on the basis of the halakhic tools cited in the previous section, that it not the heart of the matter. In law, including Jewish law and halakha, a precise definition of the question is essential for an appropriate resolution. The Hazon Ish [Rabbi Abraham Yeshayahu Karelitz, 1878-1953 – trans.] stressed that often the main problem in legal decision making is not knowing the law, but rather recognizing the reality and factual aspect of the decision (Iggerot HaHazon Ish 31 (Bnei Brak, 5737) (Hebrew)); and see Rabbi Yehudah Amital, Not Everything is Halakha, 13 Alon Shevut Bogrim 97-98 (5759) (Hebrew)). The laws of lashon hara are well and good, and they can change the social fabric and the relations among the people living in it. Is suffices to recall the statement that because of baseless hatred and lashon hara “the Temple was destroyed [the Second Temple] and we were exiled from our land” (from the preface to Hafetz Hayim). Still, the question before us does not concern the obligations of individuals, although that is the primary halakhic concern and focus of Hafetz Hayim – Shemirat HaLashon.

            The issue before is different. We are concerned with the halakhic limits upon the free press in a democratic society. This is not a question concerning the individual, but the public. In fact, not only the public, but the state. And not just the state, but the State of Israel. The consideration of preventing damage is known to all, and the halakhic considerations are given to change. Halakha recognized the status of the public as a factor in various connections. This would appear to be particularly true when halakhic scholars address the challenges presented by the State of Israel for the law applicable to the public. The religious view is that halakha has the power to adapt itself to changing realities.

            We will suffice with a few examples. Rabbi Shaul Yisraeli – a member of the Supreme Rabbinical Court in Jerusalem, rabbi of Kfar Haroeh, and Head of the Mercaz HaRav Yeshiva, who died some 20 years ago – addressed the issue of police activities of the Sabbath. In the course of raising several authorizations, including several types of ongoing activities, Rabbi Yisraeli emphasized the principle that “it would not be at all unreasonable to say that all agree with the basic principle that the harm of many is equivalent to saving the life of an individual … saving the public from harm … is a consideration of saving life” (Amud HaYemini 17).

            Rabbi Yechiel Weinberg – author of Seridei Eish, who died in Switzerland some 50 years ago – was asked by the Chief Rabbi of Israel, Rabbi Yehuda Unterman, for his opinion on performing autopsies for medical purposes in Israel. Rabbi Weinberg stressed the general prohibition, but wrote that he did not think it proper that a rabbi who did not live in Israel should decide the matter for the Chief Rabbi of Israel. Nevertheless, he was willing to state his personal opinion, adding:

In out day, the question of autopsies is a state question, and a question for those living in that state. This question was addressed by the great Noda BiYehuda [Rabbi Yechezkel ben Yehuda Landau, 1713-1793 – trans.] as a private question, and he was thus correct in his instruction. Today, it is a question for the entire nation, and a question of the state and for its status in the greater world that listens attentively to everything that occurs in the Land [of Israel]. Needless to say that the way the civilized word relates to our new state is one of the important factors that preserve our country, and one of the most important conditions for the security of the state and the people who reside in it (published in 12 Tehumin 382, 384 (5752) (Hebrew)).

            Another aspect of the health system in halakha was addressed in a book published this year by Rabbi Re’em HaCohen, Head of the Otniel Yeshiva and community rabbi of Otniel. The book treats entirely of the issue of pikuah nefesh [saving life]. It explains that pikuah nefesh must be addressed in the context of the public – whether in regard to public systems, the removal of corpses on the Sabbath, and in regard to desecrating the Sabbath for the purpose of treating mental health issues in an emergency situation (Responsa Badei Ha’Aron: Responsa on Contemporary Issues – Pikuah Nefesh) (Hebrew)).

            On the basis of the halakha of the public and the state, Rabbi Ben-Zion Meir Hai Uziel, the first Sephardi Chief Rabbi of Israel, was willing to be lenient in regard to the admissibility of the testimony of a person who was not halakhically Jewish.  Chief Rabbi Isaac Halevi Herzog ruled similarly in regard to the halakha if the Pope were to contact the Ministry of Foreign Affairs requesting to join with leaders of other religions in the war declared against communism. The responsum was published in 1950, in answer to a question posed by the rabbi’s son Ya’akov, who then served in the Ministry of Foreign Affairs (Decisions and Writings, vol. 2, Responsa on the Laws of Orah Hayim, 112) (Hebrew)). These examples demonstrate that, in appropriate cases, the question of the law applicable to the public or the state may be addressed differently, with the decisor taking account of broader considerations. The difference is not in the halakha, but rather in a question that may lead to a different answer.

            Can a similar argument not be made in regard to the rules of lashon hara and the press? Would the definition of benefit necessarily be the same from the perspective of the state as opposed to an individual? Let us not forget that the rabbis throughout of each generation recognized the uniqueness of the press. Rabbi Jacob Reischer, who lived in Prague in the 17^th century, noted that the desire to know what is happening in the state and the world is a human need (Responsa Shevut Yaakov, III:23) (Hebrew)). Rabbi Jacob Emden, who lived in Germany in the 18^th century, permitted reading newspapers on the Sabbath both because prohibiting it would cause suffering, and because there is enjoyment in reading them (Reponsa Yaavetz, I:162) (Hebrew)). Rabbi Isaac HaKohen Kook, the first Chief Rabbi of Israel, encouraged the establishing of a daily newspaper, but turned down an offer to serve as editor in chief due to his many responsibilities (Iggerot HaRav Kook, I:185) (Hebrew). As for the appropriate content of newspapers, Rabbi Kook was of the opinion that it should treat of a variety of matters, “and clearly such an organ should not ignore any aspect of life in its entirety, even those that do not directly concern religion” Iggerot, I:277).  Moreover, like the popular Talmudic expression: “Go forth and see how the public are accustomed to act” – nowadays, even hareidi journalism is thriving, and it is not limited to matters of Torah, but deals with “matters of the world” and “matters of the country”. Is it even imaginable that an investigative report about a public figure would receive no coverage until after the conclusion of his trial? Is such a report, which may uncover wrongs and injustice in regard to some group, not of great benefit?

            This may be of consequence for the boundaries of constructive lashon hara. Some of the rules that have been established may be relevant, including the requirement not to increase the wrong beyond what it is, and that the publisher intend benefit (Hafetz Hayim, Hilkhot Lashon Hara, 10:2) (Hebrew). We should note in this regard a ruling by Rabbi Ovadia Yosef according to which a person who knows that an applicant for a driver’s license suffers from some hidden, undisclosed condition, he must inform the Licensing Bureau of what he knows (Yeheve Daat, IV:60). We would similarly recall the ruling of Rabbi Chaim Halevi, Chief Rabbi of Tel Aviv, who died some 15 years ago, that it is not prohibited to work as an informant for the tax authorities, even for pay (Aseh Lekha Rav, I:70). These questions also relate to public aspects of lashon hara.

            I admit that the matters are very complex. At most, I have indicated different directions for questioning, rather than answers. Much has been written of the subject from the halakhic perspective. See, for example, the article published about a year ago by Rabbi Meir Bareli in 33 Tehumin on the subject of publishing lashon hara about elected officials (p. 136). In the author’s opinion, an exemption can be found in certain situations on the basis of the principle that entering the public arena constitutes implied consent – consensual lashon hara in certain circumstances. And see additional halakhic articles (ibid., fn 2; and see the article by Ari Yitzhak Shevet, which I found very helpful both conceptually and for its extensive bibliography – Newspapers and News: Obligation or Prohibition (Hebrew); Steven Oppenheimer, Journalism, Controversy, and Responsibility: Halachic Analysis, 41 Journal of Halakha & Contemporary Society (2001); Rabbi Alfred Cohen, Privacy: A Jewish Perspective, 1 Journal of Halakha & Contemporary Society 53 (1981). However, it would appear that none of these provide a halakhic ruling. It is not my intention to innovate in this decision, but rather to ask whether it may be possible to consider the issue in broader terms from the perspective of Jewish law. As for the answer, I can only but make recourse to the approach of the Head of the Har Etzion Yeshiva, Rabbi Aharon Lichtenstein, which I have cited in the past in the context of internet theft (CA 9183/09 The Football Association Premier League v. Anonymous (May 13, 2012)). I will state it mutatis mutandis: In the changing technological and social reality in which the press achieves growing influence, and bearing in mind the potential advantages of this tool, its importance and contribution to democratic life, and its broad readership, on the one hand, and the unquestionable prohibition upon lashon hara, on the other, what is the proper halakhic balance? “The question is posed, the authority exists, and eyes are uplifted. If the great halakhic decisors will succeed in making a decision on the matter”, they will make a real social contribution, “and if they succeed, they will simultaneously contribute to admiration of Torah” (A. Lichtenstein, Lectures of Rabbi Aharon Lichtenstein: Dinei DeGarmei, 200 (5760) (Hebrew)).

            In conclusion, I do not believe that the approach of a good-faith defense for responsible journalism in matters of significant public interest contradicts the principles of Jewish law. In my humble opinion, there is a positive aspect to such an approach.

After these Things

15.       After writing my opinion, I had the opportunity to read the comments of my colleague Justice Rubinstein. I will address them in brief.

            My colleague is of the opinion that the Jewish law sources that I cited are peripheral. I would respond that I am not concerned with the margins but with the core. We are concerned with freedom of journalistic expression on subjects of significant public interest. The issue does not concern a question of private halakha. It is part of state halakha, or more precisely, the halakha of the State of Israel. This is a public issue. I pointed out several examples in areas of importance in Jewish law in which the rabbis of the time found that this is a consideration that defines the answer, and that may lead to different results than those concerning individuals. Can the importance of investigative journalism in a democratic society be denied? I also pointed out that in the framework of the question I present, religious society in all its variety, and with the consent of its rabbis, does not reject reading newspapers, and is even involved in journalism from its own perspectives. That journalism comprises not only Torah subjects, but also news and subjects that have not as yet been resolved and are still under investigation. The solutions for discourse among individuals on the private level are not necessarily identical to those applicable to public discourse. It would seem to me, for example, that the approach cited, inter alia, by my colleague, according to which journalists are deemed bearers of lashon hara, and that it is better to listen to the news on the radio, does not reflect the practice of the religious world, does not express the advantages presented by a free, investigating press, and most of all, does not adequately contend with full variety and complexity of the subject.

            Lastly, my colleague referred to my call for the development of an independent Israeli legal approach to the subject, and notes that I do not explain what it might be. I can only refer to what I wrote in my opinion, above. In my view, an independent Israeli legal approach would recognize the necessity of a responsible press, and that we are concerned with a public duty that grants protection to a journalist, subject to an examination of his good faith. Such a development, proposed by my colleague Justice Vogelman in the judgment under appeal, is appropriate to the present. As for the future, this field is dynamic. It is my hope that the Israeli system will succeed in adopting the positive aspects of the American approach, which has proved its ability to integrate a very robust democratic society and freedom of expression, combined with the approach of Jewish law, along with a serious, thoughtful consideration of the halakha applicable to the state, and its influence upon the laws of defamation. There is much to be done. But that is the present reality, and this is the hope for the future, as is appropriate for the State of Israel as a Jewish and democratic state, in accordance with the Basic Law.

 

 

 

LAA 7216/18

           

                                               

Petitioner:                  Lara Alqasem

                                                                                               

                                                v.

 

Respondents:             1. Ministry of Interior – Population and Immigration Authority

                                    2. The Hebrew University

Request to Join:        Im Tirtzu

                                               

 

Attorney for the Petitioner:     Adv. Yotam Ben Hillel; Adv. Leora Bechor

Attorney for Respondent 1:    Adv. Yonatan Berman

Attorneys for Respondent 2:   Adv. Pepi Yakirevich (Traub); Adv. Anat Tal

Attorney in the Request

to Join:                                    Adv. Yaakov Cohen

 

 

The Supreme Court sitting as the High Court of Justice

(Before: Justice N. Hendel, Justice U. Vogelman, Justice A. Baron)

 

Israeli Supreme Court cases cited:

[1]       HCJ 7803/06 Abu Arafeh v. Minister of Interior, (Sept. 13, 2017)

[2]       HCJ 8093/03 Artmiev v. Ministry of Interior, 59(4) IsrSC 577 (2004)

[3]       HCJ 758/88 Kendel v. Minister of Interior, 46(4) IsrSC 505 (1992)

[4]       HCJ 1031/93 Pessaro (Goldstein) v. Minister of Interior, 49(4) IsrSC 661, 705 (1995)

[5]       HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) [https://versa.cardozo.yu.edu/opinions/avneri-v-knesset]

[6]       CA 6407/14 Carmiel Local Planning and Building Committee v. Masri, (May 24, 2018)

[7]       CA 8622/07 Rothman v. P.W.D. - National Roads Company of Israel Ltd., (May 14, 2012)

[8]       HCJ 1905/03 Akal v. Minister of Interior, (Dec. 5, 2010)

 

 

Judgment

(Oct. 18, 2018)

 

Justice N. Hendel:

1. The request before me is for leave to appeal the judgment of the Tel Aviv-Jaffa District Court, sitting as an Administrative Court, of Oct. 12, 2018 (AA11002-10-18, Judge Erez Yakuel) (hereinafter: the judgment). The District Court denied the Petitioner’s appeal of the decision by the Tel Aviv Appeals Tribunal of Oct. 4, 2018 (App (Tel Aviv) 5604-18, Judge D. Bergman), denying the Petitioner’s appeal, and upholding the decision by Respondent 1 (hereinafter: the Ministry of Interior) to revoke the visa that was issued her, and to deny her entrance into Israel because of her activity in promoting the imposition of a boycott on the State of Israel.

 

Background and the Parties’ Arguments

2. The Petitioner – a U.S. citizen, born in 1996 – recently completed her undergraduate studies at the University of Florida, and decided to continue to graduate studies at the Hebrew University in Jerusalem. On April 24, 2018, she was accepted to the Human Rights and Transitional Justice Program at the Hebrew University’s Faculty of Law, and she was later informed that she was awarded a scholarship for the period of her studies. The Petitioner then set about arranging her entry into the State of Israel, which she had already visited on a B/2 tourist visa. On Aug. 3, 2018, at the Israeli consulate in Miami, she received an entry visa and A/2 temporary residence permit (student) for a period of one year. Just before the academic year began, the Petitioner landed at Ben Gurion Airport, with the intention of entering the State of Israel. However, after questioning, and after representatives of the Ministry of Strategic Affairs and Public Diplomacy found that the Petitioner had been involved in activity to promote the imposition of a boycott of the State of Israel, the Minister of Interior decided to deny her entry. A document entitled “Decision on Refusing Entry under the Entry into Israel Law, 5712-1952,” cited the reason for the refusal as “considerations of preventing unlawful immigration” and also “considerations of public security or public safety or public order”.

As noted, the Petitioner appealed the Minister’s decision before the Appeals Tribunal, arguing that she has not been a member of the SJP (Students for Justice in Palestine) organization since April 2017, and that even during her tenure as president of the organization, she was not really involved in BDS (Boycott Divestment and Sanctions Movement) activity. Furthermore, the Petitioner declared that she currently does not support the boycott movement, and she committed not to call for a boycott of Israel during her stay in Israel, or to participate in BDS activity. In light of those statements, the Appeals Tribunal ordered the Ministry of Interior to reconsider its decision, and to consider a letter from the Rector of the Hebrew University, Prof. Barak Medina, which noted that the decision risked seriously undermining the efforts of Israeli academia to promote Israel’s academic image throughout the world. However, after the Ministry of Interior stood by its decision, the Appeals Tribunal denied the Petitioner’s appeal, holding that the decision had not been shown to deviate from the margin of reasonableness to an extent that would justify intervention. That holding was justified in light of the broad discretion granted to the Minister of Interior on the question of entry into Israel, and because no arguments were raised against the validity of sec. 2(d) of the Entry into Israel Law, 5712-1952 (hereinafter: the Entry Law) itself, or against the criteria established under it.

The Petitioner appealed the decision of the Appeals Tribunal, but her appeal was denied. The District Court found that there is a fear that the Petitioner would exploit her stay in Israel in order to promote the imposition of a boycott on it, and therefore: “The Minister of Interior’s discretion, as exercised, is compatible with the purpose grounding sec. 2(d) of the Entry into Israel Law.”

3. Hence the current request for leave to appeal, in which the Petitioner raises a number of challenges to the lower court’s ruling and to the Minister of Interior’s decision. On the issue of authority, the Petitioner alleges that the authority that sec. 2(d) of the Entry Law grants the Minister of Interior is limited to preventing the entry of a person who acts in the present on behalf of an organization or entity that calls for imposing a boycott on the State of Israel. In any event, it was wrong to prevent her entry because she has not been a member of an organization of that kind since April 2017, at the latest. The Petitioner emphasizes that the Ministry of Interior did not present any evidence of her involvement in activities by boycott organizations during later periods of time, and that its allegations on the issue, which were first raised at the stage of the appeal, lacked detail and documentation. The Petitioner also argues that, given the infringement of fundamental rights, including the right to freedom of political expression, sec. 2(d) of the Entry Law should be interpreted narrowly, and it certainly should not be broadened beyond the criteria that the Minister of Interior and the Minister of Strategic Affairs approved. Because the student organization SJP is not one of the “prominent” boycott organizations, and the Petitioner herself never engaged in “substantial, consistent and uninterrupted” activity “to promote boycotts,” she does not come within the purview of the aforementioned criteria, and the Ministry of Interior’s decision in her case was ultra vires.

Regarding the issue of reasonableness – the Petitioner repeatedly stresses that there is no basis to the fear that she will exploit her stay in Israel to promote a boycott of the state. In addition to the commitment she made before the Appeals Tribunal not to act in that manner, her determination to participate in Israeli academia constitutes the antithesis of boycott activity, and casts serious doubt upon the fear that she will call for such a boycott in the future. The Petitioner argues that, in responding to questions from the authorities, she has never hidden information, and she believes that, considering her practical actions – meaning her aspiration to study in an Israeli academic institution – the attempt to present the deleting of her social media accounts as testimony to her support of a boycott of Israel is utterly unpersuasive. The Petitioner also presents letters from professors and lecturers at the University of Florida that testify to her interest in Israel and the significant and respectful dialogue she has had with Israeli actors. Under these circumstances, she argues that her reliance on the visa lawfully issued to her two months before her landing in Israel should tip the scales, inasmuch as the Petitioner currently has no apartment or workplace in the United States, and the current academic year has already begun.

4. In its response, the Hebrew University agreed with the Petitioner’s position, and focused on the principled aspects that the request for leave to appeal raises. In its view, opening the gates of Israeli academia to foreign students and scholars is “the best way to strengthen the global image of the university and of the State of Israel as a democratic, enlightened and egalitarian state”, while preventing their entry causes “irreversible damage to the international relations that the university is cultivating.” From an academic perspective, as well, there is great value to the diversity and multiplicity of opinions created by having students of different cultural, linguistic and national backgrounds in the classrooms. From a legal perspective, the university believes that, given sec. 2(d) of the Entry Law’s infringement of freedom of expression, it should be interpreted narrowly, to allow preventing entry into Israel only “in special and exceptional circumstances […] for example when there is a clear security fear.” The university concludes by saying that the Petitioner’s willingness to study in Israel is “the best response to those who support boycotting the State of Israel”, and it emphasizes that, in any event, the Petitioner’s permit could be revoked if it were to emerge that she engaged in boycott activity. For these reasons, the university believes that the Petitioner should be allowed to join her classmates in the lecture halls of Mount Scopus.
5. As opposed to this, the Ministry of Interior believes that there are no grounds for intervening in the ruling of the lower court and the tribunal – certainly not in the framework of a third round of litigation. That position is based on the broad discretion granted to the Minister of Interior to control the entry of foreigners into Israel; because we are dealing with “a clear question of government policy that was also even expressed in primary legislation”, and because the request for leave to appeal addresses factual issues, and it has no broad implications.

On the merits, the State believes that sec. 2(d) of the Entry Law should not be viewed as a comprehensive arrangement, and that the Minister of Interior may also act pursuant to his general authority under sec. 2(a) of the Entry Law in cases that do not come within the purview of the concrete arrangement. In its opinion, “the legislature only limited the possibility of giving a permit to someone connected to the boycott movement”, but did not seek to limit the Minister’s existing discretion to revoke a permit. The State said that the Minister of Interior himself made the decision in the Petitioner’s case, after he consulted with the Minister of Strategic Affairs and considered the entirety of relevant considerations, such that there should be no intervention in his exercise of discretion.

In any event, the State believes that the Petitioner’s case also comes within the purview of the specific arrangement in sec. 2(d) of the Entry Law. That is both because of the organizational affiliation of SJP – which the Ministry of Interior believes is “an integral part of the NSJP organization,” which is one of the prominent boycott organizations – and also because of actions in which the organization directly engaged during the time period when the Petitioner was “an activist, a vice-president and the president of the branch.” Under those circumstances, the short period of time during which the Petitioner claims to have refrained from boycott activity, or her commitment not to engage in similar activity during her stay in Israeli, is insufficient to assuage the fear that she will exploit her entry into the country. Furthermore, the Minister of Interior believes that there is substantial evidence that the Petitioner has continued her boycott activity: deleting her social media accounts – a practice common among boycott activists – as well as her choice to refrain from proactively disclosing her activities prior to being questioned about them.Therefore, even if the Minister’s authority were confined to the arrangement in sec. 2(d) of the Entry Law – an assumption that the State, as aforesaid, refutes – there would still be no grounds to intervene in his decision regarding the Petitioner.

Finally, the Ministry of Interior argues that the issue of the Petitioner’s reliance does not alter the overall picture. Section 11(a) of the Entry Law explicitly authorizes the Minister of Interior to revoke a visa “upon the arrival” to Israel of its bearer, and considering that the Petitioner is the one who chose to refrain from disclosing the entirety of relevant information at the time she applied for the visa, the Minister’s authority was lawfully exercised.

6. It should be noted that the “Im Tirtzu Movement” asked to join the proceeding as a party. In its request – and we decided to suffice with just the request – it argued that allowing the Petitioner to join the Hebrew University would create tensions among the institution’s students, and might  lead to their physical harm, which is a right that trumps academic freedom and freedom of expression. In contrast, the Movement argues that deporting the Petitioner would have great effect on both “the State of Israel’s deterrence, as well as restoring the State of Israel’s sovereignty over its borders.”

 

Discussion and Ruling

7. The request for leave to appeal raises principled questions regarding the content and scope of the Minister of Interior’s authority to prevent entry into Israel of a person who knowingly published a public call to impose a boycott on the State of Israel, or who acts on behalf of an organization or entity that did so. Thus, for example, it puts at issue the question of the relationship between the Minister of Interior’s general authority under sec. 2(a) of the Entry Law and the specific arrangement outlined in sec. 2(d) of the law. Similarly, it raises the question whether the Minister’s authority is limited to people acting in the present to impose a boycott on the State of Israel, or whether sins of the past can also lead to the shuttering of the country’s gates. As I will clarify below, these principled questions have consequences for the analysis of the existing evidence and its relevance to our case. Therefore – and in light of the groundbreaking character of the issue – we decided to hear the request for leave to appeal as if leave to appeal had been granted, and an appeal had been filed pursuant to the leave granted.

 

Normative Background

8. Section 2(a) of the Entry Law states:

The Minister of the Interior may grant –

1. a visa and transitory resident permit– up to five days;
2. a visa and visitor’s residence permit – up to three months;
3. a visa and temporary residence permit – up to three years;
4. a visa and permanent residence permit;
5. a temporary residence permit for a person present in Israel without a residence permit who has been issued a deportation order – until his exit from Israel or his deportation therefrom.

 

As noted in another case, in general, “the Entry Law and the regulations enacted pursuant to it […] do not set criteria for granting the permit, and they leave the Minister with broad discretion” (HCJ 7803/06 Abu Arafeh v. Minister of Interior [1], para. 7 (hereinafter: the Abu Arafeh case)). Indeed, “The Minister of Interior is the country’s ‘gatekeeper’. He has the authority to grant visas and Israeli residence permits” and to determine who will enter Israel’s borders (HCJ 8093/03 Artmiev v. Ministry of Interior [2],  584). However, the rule is that the Minister may only weigh considerations that are consistent with one of the purposes of the Entry Law (HCJ 758/88 Kendel v. Minister of the Interior [3], 527-528); hereinafter: the Kendel case) – meaning:

On one hand, the state’s sovereignty, which imparts it with a “natural right” to control the identity of those entering its gates and the conditions for their residence within it […] limiting entry into Israel – not to mention restrictions related to granting citizenship or residence status – serve a list of goals, including preserving “the special culture of the state’s residents, the identity […] their economic interests and public order and morality” (HCJ 1031/93 Pessaro (Goldstein) v. Minister of Interior [4],  705). In addition to the purpose of protecting sovereignty, there is also great importance to protecting the security of the state and the safety of its citizens – a purpose that may justify adjustments and changes in immigration law, commensurate with security needs [..] on the other hand, there is a valid additional –and sometimes contradictory – purpose, which is the need to protect the rights of those who hold residence permits (the Abu Arafeh case, para. 16 of my opinion).

 

Furthermore, the exercise of authority is subject to the grounds for judicial review customary in administrative law – including that of reasonableness (the Kendel case, ibid.).

9. In addition to the broad discretion given to the Minister of Interior regarding the granting of visas and permits pursuant to sec. 2(a) of the Entry Law, the legislature drafted a concrete arrangement for people involved in the movement to boycott the State of Israel. Sections 2(d) and (e) of the Entry Law, which are the focus of the current appeal, state:

(d) A visa or residence permit of any kind will not be granted to a person who does not hold Israeli citizenship or a permit for permanent residence in Israel if he, or the organization or body on behalf of which he acts, knowingly published a public call for imposing a boycott on the State of Israel, as defined in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, or has undertaken to participate in a boycott as aforesaid.

(e) Notwithstanding the aforesaid in subsection (d), the Minister of Interior may grant a visa and residence permit as stated in that subsection for special reasons stated in writing.

 

The parties agree that the arrangement is of a deterrent, not a punitive, character. In other words, it seeks to equip the State of Israel with an effective tool to combat the boycott movement, but it does not presume to settle accounts with the movement’s activists and punish them for their actions. According to the Explanatory Notes of the  Entry into Israel (Amendment No. 27) (Not Granting a Visa or Residence Permit to a Person calling for Boycotting Israel) Bill, 5777-2016:

In recent years, calls to boycott the State of Israel have amplified. As part of the State’s battle against this difficult phenomenon, and in order to prevent representatives of organizations and entities that call for boycotting Israel from acting within the territory of the State of Israel to promote their ideas, it is proposed to establish that, as a rule, a person who is not a citizen or permanent resident of Israel will not be given a visa or residence permit of any kind if he, the organization or the entity on whose behalf he acts, calls for a boycott of the State of Israel or committed to participate in such boycott (emphasis added).

 

Similar statements were made in advance of the bill’s passage in the second and third reading. Thus, it was clarified that the purpose of the law is to combat the new phenomenon in which different organizations act against the State of Israel by promoting boycotts – cultural, economic and academic. Similarly, it was emphasized that a non-citizen has no vested right to enter the State of Israel, and that the law is intended to prevent people seeking to engage in unlawful actions or to call for a boycott of the State of Israel from entering the country and turning it into a base for their activities (Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 2 (January 11, 2017)).

The aforementioned rationale – which emphasizes the battle against the boycott movement and the desire to prevent its members from exploiting their stay in the State of Israel – also led to a change in the original version of the bill. Initially, it contemplated denying entry to a person “if he, the organization or the entity which he represents” calls for a boycott of Israel. However, during the legislative process, the version “if he, the organization or the entity on whose behalf he acts” was adopted. That was done in order to “more correctly” define “the connection between the visit of the person whose entrance to Israel we want to allow the Minister of Interior to prevent, and that activity against the State of Israel” (ibid.), and to ensure that the authority would be exercised only against someone “who acts on their behalf now, in this context” (ibid., p. 16).

10. In the context of this case, it has been said that there is no need to rule on whether the interpretation of the section, in all its aspects, should be narrow or broad, but rather, according to the rules of our system, purposive interpretation is required. The section, as arises also from its language, was intended to prevent public calls to impose a boycott on the State of Israel. It applies to a person who published such a call or who acts on behalf of an organization or entity that did so. The definition of boycott is its definition in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law), a fact that indicates the connection between the two pieces of legislation.

In other words, the concrete purpose of sec. 2(d) of the Entry Law is promoting the just battle that the State of Israel is waging against the boycott movement – based on the doctrine of defensive democracy and the state’s right to protect itself and its citizens against discrimination (See, for example, HCJ 5239/11 Avneri v. Knesset [5], paras. 29-34 of the opinion of Deputy President H. Melcer). As stated in the Avneri case regarding the Boycott Law, “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” (ibid., para. 30). Just as a person has a right to self-defense, so the state has a right to defend itself and its public and citizens.

In addition to this concrete purpose – which is also reflected in the language of sec. 2(d) of the Entry Law – we should also recall the objective, subjective and general purposes of the Entry Law: protecting the sovereignty of the state and public safety and security.These purposes, as well as the section’s concrete purpose, do not include an element of punishment or vengeance for past illegitimate acts, and they therefore support preventing entry when doing so has value from the perspective of protecting sovereignty or public safety. In other words, where a boycott activist’s entry into the State of Israel risks serving as a platform for promoting boycott activity that has damaging implications.

The legislature believed that it would be appropriate to equip the state with an additional tool in its battle against boycott – in the form of authority to prevent the entry of activists seeking to exploit their stay in the State of Israel in order to act against it. However, in light of the purposes presented, it is understood that such authority is limited to people who threaten Israeli democracy and seek to bring it to its knees by imposing a violent, aggressive boycott. In contrast, it does not justify punishing, for the sake of punishing, actors who no longer engage in such activity or contribute to strengthening it.

11. The criteria that the Minister of Interior and the Minister of Strategic Affairs approved (Population and Immigration Authority, “Criteria for Preventing Entry into Israel of Boycott Activists” (July 24, 2017) reflect a similar perspective. They clarify that the authority established in sec. 2(d) of the Entry Law should be applied only to activists of organizations that “actively, uninterruptedly and continuously” support boycotts of Israel or against “independent” activists who act continuously and prominently to promote boycotts and meet one of the following criteria:

Holders of senior or significant positions in organizations – serving senior, official positions in prominent organizations (such as, chair or board members). The definition of positions is subject to change in accordance with the character of each organization.

 

Central activists – persons involved in real, consistent and continuing activity to promote boycotts in the framework of prominent delegitimization organizations or independently.

 

Institutional actors (such as mayors) who promote boycotts actively and continuingly.

 

Actors on behalf – activists who arrive in Israel on behalf of one of the prominent delegitimization organizations. For example, an activist who arrives as a participant in a delegation of a prominent delegitimization organization [emphasis original].

 

These criteria indicate that even the ministers responsible for implementing the arrangement established in secs. 2(d) and (e) of the Entry Law thought that it should be applied only against boycott movement activists who consistently, systematically and continuously promote the imposition of a boycott on the State of Israel. Consequently, the existence of a rift between the activist and his organization, or between the activist and his activity, may remove him from the purview of this arrangement. The tool of evaluating the actor and the act can help here. The act taints the actor and paints him as a target for applying sec. 2(d). Of course, that tool doesn’t set rigid rules. There are levels of seniority and activity, and different information about each actor. For example, we would exercise more caution in evaluating a person who has held a senior position in BDS for decades than we would for a person who, even if he comes within the bounds of sec. 2(d), acted only for a relatively short period of time, at a relatively junior level. The burden on the former to prove disengagement from the boycott activity is heavier than that borne by the latter. The evaluation should be individualized, pursuant to the purpose of the law.

12. It should be emphasized that activists coming within the purview of sec. 2(d) of the Entry Law are subject to a relatively rigid arrangement that sec. 2(e) of the law creates. The latter structures the Minister of Interior’s discretion and states that, as a default, he should prevent entry into Israel of prominent leaders who are presently active in the boycott movement, and that he may deviate from the rule only “for special reasons stated in writing.”

The concrete arrangement adopted by the legislature regarding boycott activists instructs the Minister of Interior to close the gates of the State of Israel to prominent activists seeking to use the state as a base for their activities in the present – barring the existence of special reasons to open these gates. However, this arrangement does not apply to people who took actions in the past in the framework of boycott organizations, but proved, clearly and convincingly – pursuant to the burden imposed on them, according to the test of the act and the actor, as noted – that they have abandoned such activity, and they no longer pose a risk of exploiting their stay in the State of Israel in order to undermine it.

13. Given this interpretation, we should evaluate whether the Minister of Interior’s general authority under sec. 2(a) of the law allows him to take measures against boycott activists who do not come within the purview of the concrete arrangement.

In this context, I am prepared to assume that the legislature made do with structuring the Minister’s authority regarding boycott activists who come within the purview of sec. 2(d) of the Entry Law, without revoking his general authority regarding such activists (see Transcript of Meeting No. 276 of the Interior and Environmental Protection Committee, 20th Knesset, 5-19, and Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 2-4 (January 11, 2017)). However, as clarified above, this general authority is not unlimited. It is subject to the purposes of the Entry Law – including those reflected in secs. 2(d) and (e) – and to the customary grounds for judicial review in administrative law. Furthermore, especially given the general character of the Minister’s authority, which is characterized by an absence of statutory criteria, the standards established in the framework of the concrete arrangement in secs. 2(d) and (e) of the Entry Law also affect the Minister’s discretion to act pursuant to his general authority regarding boycott activists. Again, we stress that the objective, specific and general purposes of the law are concerned with protecting the state, its sovereignty and the rights of its citizens, but they do not authorize purely punitive measures. Thus, even when the Minister of Interior acts in the framework of his general authority, the factual question – whether there is a fear that the applicant will exploit his stay in the State of Israel in order to promote imposing a boycott on it – is of great significance. As noted above, the answer to that question is not limited to evaluating a person’s activity at the moment of his entry into Israel. A relatively short “cooling-off period” from intensive and continuous boycott does not always testify to successful “weaning,” and factors such as the quality, character and duration of the actor’s boycott activity over time should be evaluated.

With this normative picture as background, I will now analyze the case before us.

 

From the General to the Specific

14. As a preliminary matter, it should be noted that in the current proceeding, no arguments were raised against the constitutionality of the Minister of Interior’s authority to prevent boycott activists from receiving visas – an issue that is pending in HCJ 3965/17 [Prof. Alon Harel v. Knesset].[1] . The point of departure is, therefore, that both the Entry Law itself, as well as the criteria established pursuant to it, are valid and binding. Thus, the question we must address is whether the evidentiary basis set before the Minister of Interior was sufficient to validate his decision. The answer to that question is in the negative. We will avail ourselves of the test of the act and the actor.

In our case, the salient fact is the Petitioner’s aspiration to find a place in Israeli academia and begin advanced studies at the Hebrew University. This was not a hasty decision made lightly, but rather the culmination of a lengthy process that the Petitioner initiated, which took months. As will be explained, it began with seminars in which the Petitioner studied at the Center for Jewish Studies at the University of Florida, including on the subject of the Holocaust of the Jewish People, and with her getting to know professors who studied at the Hebrew University and recommended it to her. The Petitioner indeed applied to study at the Hebrew University, and on April 14, 2018, she was informed of her acceptance to the “M.A. in Human Rights and Transitional Justice” program of the Faculty of Law. At the beginning of July 2018, the Faculty informed the Petitioner that she had been awarded a scholarship, and on August 3, 2018, she went to the Israeli consulate in Miami in order to get her entry visa and residence permit. As the opening of the academic year approached, the Petitioner landed in Israel, and despite the obstacles she has faced since then, she insists on her right to study at the Hebrew University. Such conduct is inconsistent, to say the least, with the theory that the Petitioner is an undercover boycott activist likely to exploit her stay in the State of Israel to promote the BDS movement. The term “boycott” is defined in sec. 1 of the Boycott Law as “deliberate avoidance of economic, cultural or academic ties with a person or other party, solely by reason of his association with the state of Israel” – meaning, conduct that is the opposite of that of the Petitioner, who is working to address and strengthen her connection with Israeli academia.

The Ministry of Interior admits that it has no evidence of any boycott activity whatsoever by the Petitioner since April 2017 – except for mysterious “indications” whose quality has yet to be explained, and no evidence about them was presented. The Ministry thinks that the act of deleting the Petitioner’s social media accounts, as well as her decision not to initiate disclosure of her past involvement in boycott activity, have evidentiary value. However, even if we accord some weight to those things, they would appear insufficient to blur the fact that is our starting point: the Petitioner’s insistence on joining Israeli academia as an enrolled student, not boycotting it. To that we add a lack of evidence of activity for the past year and half. Those facts make it easy to accept the Petitioner’s reasonable explanation that her conduct stemmed from a fear that disclosing her past activities would place obstacles in her path – as was indeed the case – despite the change in her positions, or at the very least in her actions. And we should not expect the Petitioner to initiate sharing the entirety of her life story with the staff of the Israeli consulate in Miami without being asked to do so. Furthermore, it does not seem as if the State had difficulty finding electronic traces of the Petitioner’s past activity, despite the deletion of her accounts – such that the absence of such traces at a later period of time casts doubt on whatever suspicion the deletion raises.

15. It is true that, in principle, the absence of BDS activity in the present does not completely negate the Minister of Interior’s authority to prevent the entry of boycott activists. However, given the prolonged period of time that passed since the Petitioner participated in such illegitimate activity, and her relatively minor involvement, her decision to study in Israel suffices to tip the scales and to eliminate the fear that she would exploit her stay in Israel.

Indeed, the material presented regarding the period of time in which the Petitioner was active in the SJP organization – prior to April 2017 – indicates that even at that stage, the boycott activity was minor and limited. The “letter of recommendation” in which the Ministry of Strategic Affairs outlined the findings it obtained from open Internet sources lists three actions that the organization undertook – all in the months of March-April 2016. The documentary evidence attached to the letter indicates just one instance in which the organization itself called for boycott measures, while the other two instances were limited to “sharing” information about activities that others undertook. That was true for the case of the cultural center, Pen American Center, and also for the G4S company. It is true that, at a later stage of the proceeding before the Appeals Tribunal, the Ministry of Interior raised a claim, supported by a letter from a “pro-Israel” student at the University of Florida, that SJP was involved in an additional BDS event – putting pressure on other student organizations to try to prevent an Israeli from giving a lecture at the University in April 2017. In any event, even if we assume that the letter is reliable (despite the fact that its contents make clear that it was sent after its author became aware of the Petitioner’s wish to study in Israel, rather than in real time), it still does not change the broader picture. There is no doubt that the SJP organization does indeed support boycotting Israel – and such a position is worthy of condemnation. We can also assume that the Petitioner, who held positions in the organization and was, for three years, one of its few members, took part in that illegitimate activity. However, we cannot ignore the relatively sporadic and minor character of the organization’s activity. At the least, the organization is not one of the prominent boycott organizations, and it is doubtful that the Petitioner would have met the criteria even during the time she was an office-holder in it. I note that even if we assume there is an affiliation between the student organization at the University of Florida and the NSJP organization, which appears on the list of significant boycott organizations compiled by the Ministry of Strategic Affairs and Public Diplomacy, that does not mean that the concrete activity of the organization – which at its peak had 8 members – or the Petitioner’s tenure as its president, has any real meaning, given the relatively meager scope of its activity, as noted above. It is worth noting that the Ministry of Strategic Affair’s appendix mentions dozens of universities in which the NSJP worked to promote BDS decisions. The University of Florida, where the Petitioner studied, is not among them.

Furthermore, in addition to chance indications of the Petitioner’s involvement in BDS activity during her studies, we cannot ignore the testimony of her professors regarding her complex position, the curiosity she displayed regarding Israel and Judaism, and her willingness to engage in open, respectful dialogue, which are completely at odds with the idea of boycott. Thus, for example, Prof. Eric Kligerman of the Center for Jewish Studies at the University of Florida notes that the Petitioner participated in two seminars that addressed various aspects of Jewish history and their link to law – including in the context of the Holocaust of the Jewish People. According to him: “Far from being an advocate of BDS or a proponent of suppressing dialogue and the intellectual exchange between peoples, Lara is one of the most engaging and thoughtful students I have had in my seminars on Jewish culture and thought.” That testimony, from someone who knows the Petitioner well, would appear to add an additional – more complex – dimension to the Petitioner’s activity. In this context, it is also worth mentioning the letter by Dr. Yael Shenkar, who moderated an event held at the University of Florida to commemorate 100 years to the Balfour Declaration, in which she praises the respectful dialogue that developed between the Petitioner and participants in the event.

We will focus a bit on evaluating the actor. The Petitioner is currently 22 years old. Her activity in the SJP organization ended a year and a half ago, at the latest. Her activity in the organization at the university took place when she was younger. Understood in the context of her actions and the individualized information about her, the disconnect that has lasted a year and a half would appear significant. That is especially true because this period of time was not just characterized by the absence of activity against Israel, but also by steps that indicate a genuine desire to get to know Israeli society, culture and history.

16. Given these data, taken as a whole, we cannot accept the argument that preventing the Petitioner’s entry serves the purposes of the Entry Law. The negligible activity in which she was involved as a young student at the start of her career cannot negate the change that she says she has undergone,   and her desire to exchange the path of boycott for a path of dialogue and direct exposure to Israeli society and academia. The statute seeks to encourage changes of this kind, not to suppress them (See Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 18 (Jan. 11, 2017)).
17. We should add that we are dealing with a decision by the Minister to revoke a visa given to the Petitioner, as opposed to refusing to grant one at the outset. The Petitioner argues that there is a substantial difference between refusing to grant a visa at the outset and revoking it retroactively. Counsel for the State correctly responded that the difference is not that significant, given sec. 11(a)(1) of the Entry Law, which states that the Minister is authorized “to revoke a visa given according to this law, whether prior to the arrival of the visa-holder in Israel or at the moment of his arrival.” However, the Petitioner’s actual reliance on the visa given her is still a significant consideration. By itself, it would be an insufficient reason, were it not for the Petitioner’s conduct in the period since April 2017. Given that conduct, however, her reliance is a meaningful consideration, under the circumstances of this case. 

 

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18. In any event, it would seem that, regarding the case before us, we can say, paraphrasing the Angel to the King of Khazaria, “Your intention is worthy – but some of your deeds are not.” The battle against the BDS movement and its kind furthers a purpose that could not be worthier. The state is entitled, if not obligated, to protect itself from discrimination and from the violent silencing of political discourse. It is entitled to take measures against boycott organizations and their activists (without, at this point, addressing the question of the constitutionality of the concrete arrangements before us, which are to be reviewed, as noted, in separate litigation). Defending democracy is part of democracy. Just as a person is entitled to defend himself, a state is entitled to defend itself and its citizens. That, of course, is subject to the existing legal constraints.

In our case, preventing the Petitioner’s entry does not promote the purpose of the statute, and the Hebrew University has even argued, for example, that doing so would harm Israeli academia. The battle against the boycott is appropriate and essential, as are the activities that the State of Israel undertakes to do so. However, the concrete action at issue before us clearly deviates from the margin of reasonableness, and it should not be upheld.

Regarding the Petitioner, recall that the Minister of Interior is authorized to revoke a residence permit given pursuant to the Entry Law, as noted in sec. 11(a)(2) of the law. Invalidating his current decision does not, therefore, give the Petitioner a carte blanche – because if she reverts to her old ways and exploits her stay in Israel to promote boycott activity, the Minister will have the means to revoke her permit and deport her from the country immediately.

19. I therefore recommend to my colleagues that we grant the appeal to overturn the District Court’s judgment, and to order the Ministry of Interior’s decision in the Petitioner’s case void. The entry visa and temporary residence permit issued to the Petitioner at the Israeli consulate in Miami are therefore in force. Given the novel nature of the issues that arose in this proceeding, I recommend that each party bear its own costs.

 

Justice A. Baron:                                       

1. Since its inception, the State of Israel has had to fight for its very right to exist and for the legitimacy of its existence against those seeking to boycott it, its institutions and its residents, because they are Israeli. The boycott phenomenon is serious. It manufactures global public opinion based on a warped, demonic picture of the State of Israel, and risks harming the Israeli economy and Israeli society. Obviously, we should not accept this phenomenon.

In recent years, the Knesset has used legislation as part of the battle against the boycott phenomenon. The first statute it enacted in this context was the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (known as the Boycott Law, as it will be referred to hereinafter). That law imposes tort liability and administrative restrictions on those who call for imposing a boycott on the State of Israel. At the time it was enacted, the Boycott Law created a public furor, revolving around the argument that it disproportionally infringes various constitutional rights, primarily freedom of expression. The Boycott Law underwent judicial review by an expanded panel of the High Court of Justice, and most of its provisions were upheld – except for the section that imposed damages without proof of harm on those calling for a boycott. The justices unanimously invalidated that section. In addition, the Court narrowly construed the sections of the law that established a civil wrong (see HCJ 5239/11 Avneri v. Knesset [5] (hereinafter: the Avneri case).

2. Following this trend, in 2017, the Entry into Israel Law, 5712-1952 was amended, and, inter alia, sec. 2(d) was added:

(d) No visa or residence permit of any kind will be issued to a person who is not a citizen of Israel or a holder of permanent residence in the State of Israel if he, the organization or the entity on whose behalf he acts, knowingly published a public call to impose a boycott on the State of Israel, as defined in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, or committed to participate in such boycott (emphasis added – A.B.) (hereinafter: sec. 2(d)).

 

That provision is at the heart of the current proceeding, as the Minister of Interior used it to revoke the Petitioner’s student visa. Our role is to exercise judicial review over the way in which sec. 2(d) was applied in the Petitioner’s case, and not to evaluate the constitutionality of that provision. However, in order to do so, we cannot avoid devoting a few words to the purpose of sec. 2(d) and the way in which it balances the various conflicting interests.

3. The point of departure is that the State of Israel has a right to take proportional measures in order to protect itself from opponents who call for boycotting it. The law’s explanatory notes indicate that sec. 2(d) came about “as part of the state’s battle against this difficult phenomenon, and in order to prevent representatives of organizations and entities that call for boycotting Israel from acting within the territory of the State of Israel to promote their ideas”. The text of sec. 2(d) is clear and explicit. It requires barring someone who publicly calls for boycotting Israel or commits to participating in such a boycott from entering Israel. In contrast to other cases in which a person is refused entry into Israel, in this case the refusal also involves an infringement of freedom of expression. Like the Boycott Law, sec. 2(d) mandates imposing a sanction for the act of publicly calling for a boycott, or committing to participate in the boycott.

I do not intend here to address the question of whether or not calling for a boycott of the State of Israel comes within the purview of the “classic” purpose of freedom of expression (in the Avneri case, there were diverging opinions on the subject. See, for example, Justice H. Melcer in para. 30 of his opinion, and in contrast, Justice Y. Danziger in para. 7 of his opinion), or whether or not the extent of the infringement of freedom of expression inherent in sec. 2(d) falls within the “hard core” of the right. For us, first principles suffice. Freedom of expression is the life blood of democracy.When a person’s right to freedom of expression is infringed pursuant to sec. 2(d), even if that person is not a citizen or resident of Israel, the arrow also pierces the heart of Israeli society as a democratic society. Freedom of expression is critical to the existence of a lively, free marketplace of ideas and opinions, public debate over important issues, and clarifying positions and world views. In the context of the boycott phenomenon, infringing freedom of expression thwarts the possibility of addressing ideas that we, as a society, wish to refute – something that, of course, we do not want. On this issue, the words quoted by my colleague, Justice Vogelman, in the Avneri case are apt:

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. 22 (para. 6 of Justice Vogelman’s opinion).

 

4. Yet it is clear that freedom of expression, like any constitutional right, is not absolute and may be restricted. In sec. 2(d), the legislature established a balancing point between the State of Israel’s right to defend itself against boycotts and the principle of freedom of expression. While, as a rule, the Minister of Interior’s authority on the issue of entry into Israel is broad, sec. 2(d) outlines standards for exercising the minister’s discretion in preventing someone’s entry because of a call to boycott Israel or commitment to participate in the boycott. These standards, in turn, serve us in judicial review of the Minister’s exercise of that authority.

We are thus within the purview of sec. 2(d), whose text is clear and in the present tense. The plain meaning of that section is that the prohibition upon entry into Israel applies to someone who (currently) acts to impose a boycott on Israel; belongs (currently) to an entity or organization that calls for imposing a boycott on Israel; or committed to participate in such boycott. This line of interpretation is also indicated from the list of criteria that the Respondent published in July 2017 for preventing boycott activists from entering Israel. That list stated that sec. 2(d) should be implemented against organizations that support boycotts and promote them “actively, uninterruptedly and continuously,” and against central activists who engage in “substantive, consistent and uninterrupted” activity to promote boycotts. Criteria were also established to permit the entry of activists in exceptional cases, even if they met the aforementioned criteria. There is, therefore, no basis for banning entry into Israel based merely on “fear” of engaging in boycott, or even because of the possibility that a person “may” act to promote a boycott during his stay in Israel – and it was inappropriate to expand the application of the section to cases of this kind, as expressed in the District Court’s judgment.

5. And now to the case at hand. The Petitioner is a young, 22-year old student, a U.S. citizen, who was granted a visa to enter Israel for academic studies. In the past, the Petitioner was a member of an organization that, according to the Respondent, promotes boycotting Israel, and she even held key offices in it. However, since April 2017, for the past year and a half, the Petitioner has not been a member of that organization, and there is no allegation that during this period of time she acted in any way to boycott Israel or belonged to an organization that opposed Israel in any way. Considering the Petitioner’s young age, this seems to me to be a significant period of time. In addition, the Petitioner committed not to engage in calling for a boycott of Israel during the entirety of her stay here, and her attorney repeated that commitment in the hearing. My opinion is that, under these circumstances, and according to the standards established in sec. 2(d), there was no basis for revoking the Petitioner’s entry visa, because it is clear that the Petitioner does not currently engage in boycotting Israel and has not done so for some time, not to mention her failure to meet the criteria of “active”, “uninterrupted” and “substantial” in this context. Given the aforesaid, the decision to revoke the Petitioner’s entry visa was sufficiently unreasonable to justify intervention.

Here I should note that, because the Petitioner’s actions do not give rise to sufficient cause to ban her entry into Israel, the unavoidable impression is that the visa she was given was revoked because of the political opinions she holds. If that is indeed the situation, this is an extreme and dangerous step, which risks causing the pillars of Israeli democracy to crumble. That is not the purpose of sec. 2(d), which is rather, as aforementioned, to take proportional measures to defend Israel from the boycott phenomenon.

Furthermore, the Petitioner’s very desire to take part in academic studies in Israel appears to stand in contrast to the idea of imposing a boycott on Israel, especially an academic boycott: “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.” (emphasis added – A.B.) ( per Justice H. Melcer in the Avneri case, para. 30). However, under the circumstances of our case, it is not the Petitioner’s activity that is boycotting “intellectualism itself” – but rather, it seems, the decision to revoke the Petitioner’s visa, preventing her from participating in academic studies here in Israel. Such decision also risks causing harm to the reputation of Israel, thus achieving the opposite result of the legislative intent in enacting sec. 2(d).

6. Without detracting from the aforesaid, the onus is on the Petitioner to be aware of her responsibility to uphold her commitment and not to exploit her stay in Israel to promote a boycott of Israel. If she acts in violation of her declaration on this point – the Minister of Interior would be free to initiate appropriate proceedings against her, and even to order her deported from Israel, should that be justified. We do not know the secrets of another’s heart, including the secrets of the Petitioner’s heart, or how she will conduct herself in the future, after she returns to her country. However, these considerations are irrelevant to our case, because, pursuant to sec. 2(d) of the law, we must focus on the Petitioner’s actions in the present – and not on her opinions, her thoughts, or speculations about her future.

In conclusion, for the reasons outlined above, I concur in the result that my colleague Justice N. Hendel reached, namely that the appeal should be granted, we should overturn the District Court’s judgment and declare the Ministry of Interior’s decision in the Petitioner’s case void.

                                                                                               

Justice U. Vogelman:

I concur with the decision of my colleague Justice N. Hendel. I also think the decision that is the subject of this appeal does not fall within the statutory framework established in sec. 2(d) of the Entry into Israel Law, whose interpretation I will address below.

 

Purposive Interpretation of Section 2(d)

1. Again we are asked to tread the well-worn path of purposive interpretation. The first station of our journey is, of course, the text of the statute, within whose bounds we will locate the meanings that are within “the zone of textual possibilities” that the legislative text can bear. An interpretation that lacks textual grounding cannot be upheld. Should we discover more than one textual possibility, at the next phase we must locate the one that best realizes the purpose of the legislation, which we discern by integrating the subjective purpose – the objective that the legislature sought to achieve by means of the statute – and the objective purpose, which expresses “the intention of the legal system”, meaning the values, principles and objectives that a piece of legislation is intended to achieve in a democratic society. We can learn these purposes from any reliable source, including the text of the statute, the legislative history, the general background, and the legal system’s fundamental principles. Where a contradiction emerges among the various purposes, the interpreter should balance them by exercising judicial discretion, such that at the conclusion of the process, we determine the final purpose of the piece of legislation (See, inter alia, CA 6407/14 Carmiel Local Planning and Building Committee v. Masri [6], para. 48; CA 8622/07 Rothman v. P.W.D. - National Roads Company of Israel Ltd. [7], para. 34 and references there).

 

The Text of the Section

2. Section 2(d) authorizes the Respondent to refrain from granting a visa to someone who is not an Israeli citizen or a holder of a permanent residence permit “if he, or the organization or body on behalf of which he acts, knowingly published a public call for imposing a boycott on the State of Israel, as defined in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, or has undertaken to participate in a boycott as aforesaid”. The Respondent is thus authorized to act pursuant to the section if the visa applicant himself, or the organization or entity on whose behalf he acts, committed one of the following acts: knowingly published a public call for imposing a boycott on the State of Israel or committed to participate in a boycott as aforesaid.
3. In our case, there is no dispute that the relevant alternative is knowingly publishing a call for imposing a boycott on the State of Israel, and that such publication was done by the SJP organization, of which the Appellant was a member, and not by the Appellant herself. The dispute, which was also crystallized in the District Court’s judgment, therefore focuses solely on the interpretation of the word “acts”. The Appellant argues that the use of the present tense indicates that the authority pursuant to sec. 2(d) can be used only against those who, at the time of the visa application, act on behalf of an organization or entity that calls for imposing a boycott on the State of Israel. As opposed to this, the Respondent thinks that the text of the section also bears a broader meaning that includes someone who acted on behalf of such an organization in the past, even if he no longer does so at the time of the visa application. The Respondent supports the District Court’s interpretation, namely that a substantial fear that the visa applicant will exploit his stay in Israel in order to promote calls for imposing a boycott on Israel suffices.
4. In this dispute, I accept the Appellant’s position. First, I note that the Respondent did not present linguistic support for its interpretation that the section applies to past activity. Second, and this is the main point, the language of the section indicates that it establishes two alternatives for what might constitute the framework for publishing a public call for boycott. First, an independent call made by the applicant himself. Second, a call by an entity or organization on whose behalf the visa applicant is acting, even if the visa applicant himself did not publish such a call. If we view these two alternatives together, we see that the legislature thought that in each one of these scenarios, the applicant for a visa or permit would be sufficiently associated with a call for boycott to justify denying his application. While for the first alternative, the association arises from the applicant’s direct actions, for the second alternative, it arises from calls published by the entity or organization on whose behalf the applicant acts. That is due to the assumption that if a person acts on behalf of a particular organization or entity, he presumably identifies with its ideas and values.
5. Furthermore, the word “acts” has the function of testifying not only to the association between the individual and the organization, but also to the quality of the involvement of the applicant for a visa or permit in an organization that supports boycott. Section 2(d) does not, for example, use the word “member” of the organization, even though membership would also support a claim of intellectual, ideological affiliation between the individual and the organization. The section requires the applicant to “act on behalf of” the organization, meaning to engage in active deeds that serve the organization and its objectives.
6. The other side of the coin is clear. Once a person ceases to act on behalf of an entity or organization that publicly called for boycott, we can no longer continue to assume – certainly not as a non-rebuttable presumption – that there is an intellectual and ideological association between the individual and the organization. In addition, once the activity ceases, the applicant for entry no longer meets the criterion of activeness, which requires the applicant to take substantial actions intended to promote support for the idea of boycott within the framework of the organization.
7. Given the aforesaid, it seems we should read the word “acts” in the present tense, such that the section only applies if, at the time the application for the permit or visa is submitted, the applicant is acting on behalf of an organization that supports boycott. Past activity that has been discontinued by the time the application is submitted does not come within the purview of the section. Note that the “present criterion” should be applied logically and reasonably. If, under the entirety of circumstances, it becomes apparent that the visa applicant ceased his activity in the organization or entity that supports boycott just before submitting his application, or a short time prior to doing so (even if it was a few months prior), and it also becomes apparent that the cessation is artificial or for the sake of appearance, then he should continue to be viewed as coming within the purview of the section. That is especially true if the circumstances indicate that the cessation of activity was designed to “bypass” the provisions of sec. 2(d). However, in general, a person who did not himself publish a public call for boycott, and at the time he applies for a visa or permit is no longer active in an organization or entity that publishes such a call – even if he acted as such in the past – does not come within the purview of the section.

As we shall see, this conclusion is consistent with the purpose of the section.

 

The Subjective Purpose

8. We can easily discern the legislature’s intention in enacting Amendment 28 of the Entry into Israel Law from the brief explanatory notes that accompanied it, which my colleague Justice N. Hendel addressed (emphases added – U.V.):

 

In recent years, calls to boycott the State of Israel have amplified. As part of the state’s battle against this difficult phenomenon, and in order to prevent representatives of organizations and entities that call for boycotting Israel from acting within the territory of the State of Israel to promote their ideas, it is proposed to determine that, as a rule, a person who is not a citizen or permanent resident of Israel will not be given a visa or residence permit of any kind if he, the organization or the entity on whose behalf he acts, calls for a boycott of the State of Israel or committed to participate in such boycott.

 

That being said, it is proposed to allow the Minister of Interior to grant such a person a visa or residence permit for special reasons stated in writing (Entry into Israel (Amendment No. 27) (Not Granting a Visa or Residence Permit to a Person Calling for Boycotting Israel) Bill, 5777-2016).

 

Thus, as part of the battle against the boycott phenomenon, the legislature sought to prevent “representatives” of organizations and entities that call for boycotting Israel to operate within the State of Israel to disseminate the idea of supporting the boycott. It did so while still leaving discretion to allow the entry of such a person where there are special reasons to do so.

 

9. Furthermore, if we review the debates within the Knesset Interior and Environmental Protection Committee (hereinafter: the Committee) over the bill, we clearly discern the deterrent purpose. The debates indicate that the legislature intended to prevent someone who authentically represents the viewpoints of an organization that supports boycott from entering the State of Israel, and disseminating these ideas here during his stay in Israel. We see this in the exchange between the Committee’s legal advisor, Advocate Rosner, and Member of Knesset Bezalel Smotrich, one of the drafters of the bill:

 

Advocate Rosner: Your second comment is more substantial. It addresses the question of a representative of an organization […] It is not clear what a representative of an organization is. In other words, a person who is a member of a certain academic institution that made a decision to boycott, but he personally does not identify with that decision, but he is a member of the organization, right? He is a member of a certain university, but he actually opposes this agenda. We would have a problem with that issue. We need to define more precisely, in my opinion, the term representative of a company or organization.

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Member of Knesset Smotrich: What we mean is that if there’s an organization that is an organization that leads BDS, OK? An organization whose agenda is currently: to lead […] to boycott. The representative of such an organization doesn’t come, as part of this story. Now, he himself, there’s no evidence now, because he’s a new representative […] he started working for the organization yesterday. But his agenda: he came here in order to promote this boycott.

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I will not allow anyone who is part of an entity whose agenda is to act against the State of Israel, and that person is part of this entity – I will not allow him to enter the State of Israel in order to hurt me.

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I agree that if a lecturer comes here to give a lecture on medicine, and his university […]; By the way, such a person is generally not defined as its representative. But be more precise about that.

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You need to understand that BDS as a system, part of it is built on individuals, and part of it is built on organizations […] of course, we meant that if an authentic representative of an organization, one that has that agenda, comes here as part of promoting this process – we will not allow that to happen (Transcript of Meeting No. 276 of the Interior and Environmental Protection Committee, the 20th Knesset, 45-47 (November 7, 2016)).

 

And similarly, during the Committee’s debate on January 11, 2017, Member of Knesset Smotrich noted that:

 

There is no reason in the world for the State of Israel to allow someone who wants to come to the State of Israel and use being here as a base for his activity against the State of Israel, whether for provocations and unlawful activities or calling for a boycott of the State of Israel – there is no reason to let him enter (Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 2 (January 11, 2017)).

 

It should be noted that the exchange noted in the first Committee debate is, inter alia, what led to the transition from the language of “representative” that appeared in the bill to the language of a person “who acts on behalf of” an organization that appears in the law (ibid.).

To summarize the point, the legislature’s intention was to establish a deterrent arrangement that would close the gates of the country to “authentic representatives” of boycott organizations, such as the BDS organization, who represent the ideas of these organizations. That is to deny them the opportunity to disseminate their doctrine within the State of Israel, while they are present here pursuant to a permit or visa that the State of Israel issued them.

10. We can understand the objective purpose of Amendment 28 by examining the general context of its enactment: the battle against the phenomenon of boycott and de-legitimization of Israel, which was recognized as a valid purpose in the Avneri case. As Justice Y. Amit noted in that case, the boycott has substantial influence at the international level:

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.

 

11. The boycott also has serious ramifications at the Israeli domestic level, and the battle against it is intended, inter alia, “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 […] Indeed, the damage caused by the boycott phenomenon is not inconsiderable […] Mitigating the damage of this phenomenon is a proper and important purpose” (ibid., para. 34 of Justice Y. Danziger’s opinion). As the Respondent explained at length in its position, those who call for boycott seek to encourage practical actions intended to significantly disrupt daily life in Israel in a variety of areas. Thus, inter alia, those who call for economic boycott focus on cutting off commercial and service relations with Israel, refraining from buying Israeli products and boycotting Israeli banks. At the academic level, calls for boycott seek to end collaborations and to boycott academic institutions, as well as to divest university funds from Israeli entities. At the cultural level, boycott activists demand that academics, musicians and artists refrain from appearing in Israel or collaborating with Israeli institutions. Obviously, these activities, as well as the boycott movement’s activities in additional areas such as security and law, can have a destructive influence on the Israeli economy, on Israeli cultural and intellectual life, and on a variety of additional areas.
12.  Against this complex reality, the legislature sought to adopt statutory measures, primarily the enactment of the Boycott Law itself. That law establishes a series of restrictions and obstacles intended to prevent and limit Israeli citizens and residents from calling for a boycott. As a reminder, that law’s provisions were reviewed – and mostly upheld as constitutional – in the Avneri case.
13. The Boycott Law, as an Israeli law, operates domestically, and as such, primarily targets internal Israeli discourse:

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 [...] 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 (ibid, para. 35 of Justice Y. Danziger’s opinion).

 

14. Amendment 28 should therefore be viewed as a supplementary arrangement intended to be added to the basket of statutory tools made available by the legislature to battle the boycott. While its “older sibling”, the Boycott Law, generally focuses on domestic Israeli discourse, Amendment 28 aspires – to the extent possible, within the limitations of the Israeli legislature – to look outward, to the international discourse of boycott and the BDS movement. At the same time, consistent with the Boycott Law’s orientation to limit discourse in support of boycott within the State of Israel, the legislature sought to use Amendment 28 to prevent foreign “interlocutors” who support boycott from entering the State of Israel, in order to prevent them from disseminating their positions within Israel, thus influencing both the Israeli domestic as well as the external discourse from within Israel.

My view is, therefore, that the objective purpose of Amendment 28 is to protect Israel from harm inflicted by boycotts. For that reason, the legislature chose to guide the Minister of Interior’s broad discretion in a specific way, to order him to prohibit boycott-supporting activists from entering Israel, and to permit their entrance only if there are special reasons stated in writing.

 

The Interpretation of Section 2(d) and its Application in the Appellant’s Case

15. To summarize, the textual and purposive interpretation of sec. 2(d) indicates that it was intended to prevent entry into Israel of those who would be expected to disseminate the doctrine of boycott during their stay in Israel. For that reason, the section bans the entry of someone who himself knowingly published a call for boycott or who acts – at the time of his application for the permit or visa – on behalf of an entity or organization that published such a call. That is due to the assumption that a person’s action on behalf of such an organization testifies to the applicant’s affiliation and identification with the organization’s ideas, and the assumption that he will act to disseminate those ideas if allowed to enter Israel. If so, it is clear that the Petitioner’s case does not come within the purview of the section, because there is no dispute that she ceased her activity in the SJP organization in April 2017, while her application for a visa was made in advance of her receiving it in August 2018. My colleague’s opinion makes that clear.

 

The Minister of Interior’s General Authority

16. The Respondent believes that the provisions of sec. 2(d) do not detract from its general authority under the Entry into Israel Law, disconnected from the special statutory arrangement regarding applicants seeking to enter Israel who support boycott, and therefore, even if we were to conclude that it was inappropriate to revoke the visa and residence permit pursuant to that section, the Respondent was authorized to do so within the bounds of the broad discretion it enjoys in that special area. Even if, like my colleague Justice N. Hendel, I assume, for purposes of argument, and without ruling on the issue, that there is substance to the claim that sec. 2(d) did not limit the Respondent’s general authority to prevent the entrance of boycott activists, it would still be insufficient to alter the conclusion that the decision in question cannot be upheld. As has been held:

The Minister of Interior is thus granted broad discretion regarding the entry of foreigners into Israel and their living in the country. Such discretion derives from a principle customary in modern democratic countries, namely that the state has broad discretion regarding the entry of foreigners into its territory, and that no foreigner has a right to enter a country in which he has no status, either as a tourist or as a resident. Having said that, we should recall that such discretion is subject to the Court’s review, as is the discretion of every other administrative agency, in the framework of the “regular”’ grounds for review that apply to every exercise of administrative discretion […]. The Minister of Interior must, therefore, exercise his discretion in good faith, based on relevant considerations, equally, proportionately and reasonably […] As we know, exercising judicial review does not mean substituting the Court’s discretion for that of the administrative agency, nor does it mean evaluating whether the administrative agency could have made a wiser decision. Judicial review is limited to the question whether the discretion was exercised according to the rules of administrative law, which we enumerated (HCJ 1905/03 Akal v. Minister of Interior [8], para. 11).

 

17. On this issue, too, I agree with the conclusion of my colleague Justice N. Hendel. My view is also that the Respondent did not accord sufficient weight to the various considerations that he was required to balance. First and foremost, revoking the visa and residence permit does not serve the purpose of combatting the boycott, which is the basis for the exercise of authority in this case. In this context, we should again recall the Hebrew University’s position, namely that preventing the entrance of foreign students accepted for international programs, especially when done at the airport, “seriously harms relations between the university and other universities in the world and causes irreversible damage to the international relations that the university is cultivating”. It would therefore seem, under the circumstances of this concrete case, that the Appellant’s studies at the Hebrew University would serve as an additional layer in the Israeli academy’s battle against the boycott phenomenon.

Given that, the decision that is the subject of the petition is not within the margin of reasonableness, and it should be declared void.

 

 

            Decided in accordance with the opinion of Justice N. Hendel.

            Given this day, 9 Heshvan 5779 (Oct. 18, 2018)

 

 

H.C.J  153/83

 

 

ALAN LEVI AND YAHELI AMIT

v.

SOUTHERN DISTRICT POLICE COMMANDER

 

 

In the Supreme Court sitting as the High Court of Justice

[May 13, 1984]

Before: Barak J., D. Levin J. and Netanyahu J.

 

 

Police Ordinance (New Version), 1971, sections 83, 84

Press Ordinance, Laws of Palestine (Drayton), vol. II, p. 1214

 

 

            The Petition centred on the Respondent's refusal to permit the Petitioners - who petitioned the Court on behalf of the "Committee Against the War in Lebanon" - to hold a demonstration and procession to mark the thirtieth day of the death of the late Emil Greenzweig, who had been killed in the course of a demonstration held by the "Peace Now" movement. The Police Commissioner's reasons for his refusal were his apprehension, that what had happened before in the demonstration held by "Peace Now" was likely to happen again, and that if it did, the police would be unable to provide the demonstrators with absolute protection against a hostile crowd.

           

Held by the court:

A (1) The right of demonstration and procession is a fundamental human right in Israel. It is recognized along with free speech, or emanating therefrom - as belonging to the freedoms that characterize Israel as a democratic state.

(2) The basic freedoms - among them assembly and procession - constitute rules of law which, on the one hand, serve to guide us in the absence of statutory law, and, on the other hand, rules of interpretation according to which every statutory provision is to be construed. The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

 

B (1) The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private ownership of property and freedom of movement. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights.

(2) The balancing process must find expression on two levels: One is the concrete level, where the actual circumstances of the controversial event are taken into account; the other is the level of principle, where the typical interests are taken into account and general criteria are determined for balancing conflicting interests and rights.

(3) The need for a principled balancing calls for a judicial determination which in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement is required as to "the limits of sufferance" of the various rights.

(4) In seeking the point of equilibrium, there is, on the one hand, the consideration that a situation should not be allowed to arise in which hostile bystanders would be able to prevent people from demonstrating, and it is the task of the police, in this situation, to keep the crowd from disturbing the demonstrators rather than prevent the demonstrators from exercising their right. At the other hand of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life.

(5) Both considerations are worthy of protection, but they cannot both be upheld at one and the same time. The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), 1971, to safeguard the public security or the public order. The balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in the demonstration and procession. At the second level the concern is with the normative measures to be adopted by the police with respect to the grant or denial of a permit for holding the demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt.

 

C (1) At the first level of balancing it will be the duty of the police to take all reasonable steps towards preventing any threats to or disturbance of the procession or demonstration. Enjoinder of the demonstration or procession is to be imposed as the last, not the first step. Only after the police have exhausted all the physical means at their disposal, consonantly with the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with.

(2) The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police. Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and their forces have to be allocated in a manner that will ensure reasonable discharge of all police duties.

 

D (1) At the second level of balancing the "rational principle" by which to balance between free speech and the public security, is the "probability" test. This test or formula is applicable also in construing the District Commander's authority under sections 83 and 84 of the police Ordinance (New Version).

(2) The "probability" test does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. Substantial evidence is required. Conjectures, speculations and apprehensions are not enough.

(3) The ideology which the demonstration or procession seeks to express, is not per se of concern to the authorities, but how the message is conveyed, the possibilities of it influencing the spectators, and the measure of hostility it is calculated to arouse in the crowd, are all considerations to be duly weighed, for they have a direct bearing on the probability that public security will be breached.

 

E (1) If, after the adoption of all reasonable police measures, there is still a substantial probability of harm to public security, the District Commander has the power to forbid the demonstration or procession. Before this power is exercised, the use of less drastic measures must be considered. These may enable the procession or demonstration to be held, even if not as originally planned, but with changes as regards its place, time and scope.

 

F (1) When exercising judicial review the court will not assume the role of a super police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevance of considerations and the like factors.

(2) The court will ask itself whether the facts as known to the District police Commander, would entitle a reasonable police commander to infer the existence of a probable danger to public security. This examination is no different from any other made by the court using the test of reasonableness.

(3) In the present case the only facts advanced by the respondent as a reason for not permitting the demonstration, were the events of the past. These create an apprehension, but no more; they do not establish any probability. Upon a reasonable evaluation made with prudent foresight those facts cannot be said to establish any substantial likelihood of danger, and they do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred on the facts as they were known to him, that there existed any substantial possibility or probability of harm to public security.

 

            Petition for an order nisi. The petition, which was heard as if the order had already been given, was granted and the order made absolute.

 

 

Israel cases referred to:

                           

[1]   H. C. 148/79, Sa'ar et al. v. Minister of interior and police, 34(2) P.D. 169.

[2]   H. C. 243/62, Israel Film Studios Ltd. v. Levi Geri et al., 16(4) P.D. 2407; S.J. vol. IV, 208.

[3]   H. C. - 73,87/53, "Kol Ha'am" Co. Ltd. v. Minister of Interior, 7 P.D. 871; 13 P.E. 422; S.J. vol. I, 90.

[4]   F.H. 9/77, Israel Electric Corporation Ltd. et al. v. Ha'aretz Newspaper Ltd., 32(3) P.D. 337.

[5]   Cr.A. 126/62, Dissenchick et al. v. Attorney-General, 17 P.D. 169; S.J. vol. V, 152.

[6]   Cr.A. 696/81, Azulai v. State of Israel, 37(2) P.D. 565.

[7]   Cr.A. 100/51, Dershovitz v. Attorney-General, 6 P.D. 278.

[8]   Cr.A. 255/68, State of Israel v. Ben-Moshe, 22(2) P.D. 427.

[9]   H. C. 253/64, Jeris v. Haifa District Officer, 18(4) P. D. 673.

[10] Election Appeal 1/65, Yeridor v. Chairman of Central Committee for Elections to the Sixth Knesset, 19(3) P.D. 365.

[11] H. C. 243/82, Zichroni v. Broadcast Authority Managing Committee, 37(1) P.D. 757.

[12] H. C. 166/71, Helon v. Usefiah Local Council, 25(2) P. D. 591.

[13] H. C. 230/73, S.Z.M. Ltd. v. Mayor of Jerusalem, 28(2) P. D. 113.

[14] H.C. 155/60, Elazar v. Mayor of Bat Yam, 14 P.D. 1511.

[15] H. C. 531/77, Baruch et al. v. Tel Aviv Traffic Superintendent, 32(2) P.D. 160.

[16] H. C. 222/68, Hugim Leumiyim et al. v. Minister of Police, 24(2) P.D. 141.

[17] H. C. 807/78, Ein Gal v. Film and Theatre Censorship Board, 33(1) P.D. 274.

[18] H.C. 644/81, Omar International Inc. New York v. Minister of Interior et al., 36(1) P.D. 227.

[19] H.C. 329/81, (S.P. 217/82; 376,670/83) Nof v. Attorney-General et al., 37(4) P.D. 326.

[20] H. C. 389/80, Golden Pages Ltd. v. Broadcast Authority, 35(1) P.D. 421.

[21] H. C. 1/81, Shiran v. Broadcast Authority, 35(3) P.D. 365.

 

English cases referred to:

 

[22] Harrison v. Duke of Ruthland (1893) 1 Q.B. 142; 68 L.T. 35.

[23] Hubbard v. Pitt (1975) 3 W.L.R. 201 (C.A.).

[24] Beatty v. Gillbanks (1882) 9 Q.B. 308.

 

Irish case referred to:

 

[25]      R. v. Londonderry (1891) 28 L.R. Ir. 440.

 

American cases referred to:

 

[26]      De Jonge v. State of Oregon 299 U.S. 353; 57 S.Ct. 255 (1937).

[27]      Bachellar v. Maryland 397 U.S. 564; 90 S.Ct. 1312 (1970).

[28]      Watson v. City of Memphis, Tenn. 373 U.S. 526; 83 S.Ct. 1314 (1963).

[29]      Hague v. Committee for Industrial Organization 307 U. S. 496; 59 S.Ct. 954 (1939).

[30]      Feiner v. People of the State of New York 340 U.S. 315; 71 S.Ct. 303 (1950).

[31]      Schenck v. United States 249 U.S. 47; 39 S.Ct. 247 (1919).

[32]      Whitney v. People of the State of California 274 U.S. 357; 47 S.Ct. 641 (1927).

[33]      Dennis v. United States 341 U. S. 494; 71 S.Ct. 857 (1951).

[34]      Terminiello v. City of Chicago 337 U.S. 1; 69 S.Ct. 894 (1949).

 

D. Cheshin for the Petitioners.

R. Jarach, Director of High Court Matters, State Attorney's Office, for the Respondent.

 

Barak J., giving the judgment of the Court.

 

The Facts:

1. On 10.2.83, in the afternoon, the "Peace Now" movement held a demonstration and procession in Jerusalem. Starting at Zion Square, the procession passed along the Ben Yehuda Mall, Bezalel Street, Ben Zvi Boulevard and Ruppin Street to Kiryat Ben Gurion. In the course of the procession the demonstrators encountered hostility. The procession ended with a demonstration at the square facing the Prime Minister's office. The end was a bitter one, since a hand-grenade was thrown which led to the injury and subsequent death of a demonstrator, Emil Greenzweig.

 

To mark the thirtieth day of the death of the late Emil Greenzweig, the "Committee Against the War in Lebanon" sought to hold a procession on 10.3.83. This procession was scheduled to follow the very same route taken on the previous occasion, at the end of which Emil Greenzweig met his death. The purpose of the procession was to protest against "the violence and the lack of freedom of expression." On 2.3.83, the petitioners applied on behalf of the "Committee Against the War in Lebanon" for a licence to hold the procession and demonstration, but the application was refused by the respondent on 6.3.83. Giving reasons for his refusal, the respondent wrote: "The proximity of the events to each other and the atmosphere created after the holding of Peace Now's demonstration, give rise to serious apprehension that the holding of the demonstration which forms the subject of this application, its projected timing, routing and size will create a grave threat to the public order and security." The respondent noted that he was prepared to approve a meeting at the Rose Garden opposite the Prime Minister's office. On 7.3.83 the petition was lodged against the respondent, calling upon the latter to show cause why he should not accede to the application. On 9.3.83 we convened to hear arguments, Mr. Jarach having been invited to appear as a representative of the Attorney-General. Due to the urgency of the matter, Mr. Jarach had insufficient time to prepare a written reply, but it was agreed that he should put forward verbally representations of the respondent as to the facts, and that we would treat the petition as if an order nisi had already been issued in the matter. It was further agreed that we should accept Mr. Jarach's representations as a substitute for a replying affidavit. In his reply Mr. Jarach noted the respondent's awareness of the symbolism attaching to the date of the proposed procession and its route. Nevertheless, the respondent also had to reckon with the public safety; and while he agreed that the demonstrators themselves would not jeopardize the public safety, it was to be feared that members of the crowd might do the demonstrators violent injury. The respondent hardly advocated a reward for hooliganism, but feared the recurrence, in the course of the procession and demonstration, of incidents of violence similar to or even graver than those that had taken place thirty days earlier. We inquired of Mr. Jarach as to the grounds for the fear, and whether it was founded on any specific information about what was likely to transpire. He replied that the respondent had no special information and that his apprehension was founded on the belief that the events of the past were likely to repeat themselves at this time as well. We went on to inquire whether, having regard to the general duties of the police, they had at their disposal sufficient manpower to safeguard the demonstration and procession. Mr. Jarach's reply was that, despite the difficulties involved, the police would be able to muster the required forces, that the respondent was motivated not by the lack of man-power but by his inability to afford the demonstrators "hermetical protection" - hence his apprehension. Much of our time was devoted to seeking a compromise acceptable to the parties, but to no avail. At the conclusion of the hearing we decided to make the order nisi absolute. Our reasons for so doing are given below.

 

The Right of Assembly and Demonstration

 

2. The right of assembly and demonstration is a fundamental human right in Israel (H.C. 148/77[1]). It is recognized - along with free speech, or emanating therefrom - as belonging to the freedoms that shape the democratic character of Israel. Some hold the ideological basis for this freedom to be the wish to ensure freedom of expression, which for its part contributes to the discovery of truth. Others believe that underlying the stated right is the maintenance and proper functioning of democratic government, which for its part is founded on freedom of information and freedom of protest. A further opinion is that the freedom to demonstrate and form a procession is a vital component in man's general right of self-expression and autonomous thought (See F. Schauer, Free Speech: A Philosophical Enquiry (Cambridge, 1982) 3). It seems that the right of demonstration and assembly has a broad ideological foundation, at the centre of which is a recognition of the value and dignity of man, of the freedom granted him to develop his personality, and of the wish to maintain a democratic form of government. By virtue of this freedom, means of expression are afforded to those to whom the national and commercial media of expression are not available. Hence it is accepted in our law, as in the law of other enlightened democratic countries, that the right of demonstration and assembly be ensured a place of honour in the citadel of fundamental human rights. In the words of Hughes J. in De Jonge v. State of Oregon (1937) [26], at 364:

 

"The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."

 

            (See also: V. Blasi, "Prior Restraints on Demonstrations,"68 Mich. L. Rev. 1969-70 (1481) 1483; D.G. Barnum, "Freedom of Assembly and Hostile Audience in Anglo-American Law,"29 Am. J. Comp. L. (1981) 59).

           

3. In Israel this right has yet to find formal expression in a Basic Law. Yet the decisions of this court have effectively transformed it into one of those fundamental but unwritten rights which derive directly from the democratic, freedom-loving character of our State (per Landau J. in H.C. 243/62 [2], at 2415). The result is that "in its decisions these fundamental rights serve this court as a guiding light in construing the law and reviewing the acts of the state authorities. Clearly the Executive too must conduct itself with a proper concern for these rights" (ibid., based on H.C. 73,87/53, [3], at p. 884). "The recognition of the fundamental freedoms as a substantive part of the law in Israel also entails the conclusion that these freedoms form a part of the law, in word and in deed, i.e., as basic rules serving to guide and fashion patterns of legal thinking and interpretation, which these freedoms influence by their spirit and their goal" (per Shamgar J. in F.H. 9/77 [4], at 359). We find that the basic freedoms - among them assembly and procession - constitute on the one hand rules of law which serve as guidelines in the absence of statutory law, and on the other hand, rules of interpretation according to which every statutory provision is to be construed.

The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

 

The Balance between the Right to Demonstrate and Conflicting Rights and Interests.

4. The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private property and freedom of movement or passage. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights. Thus Lord Scarman remarked in his Report on the Red Lion Square Disorders (Cmnd. 5919), 1-2:

 

"Amongst our fundamental human rights there are, without doubt, the rights of peaceful assembly and public protest, and the right to public order and tranquillity... but the problem is more complex than a choice between the two extremes - one, a right to protest whenever and wherever you will and the other, a right to continuous calm upon our streets unruffled by the noise and obstructive pressure of protesting procession. A balance has to be struck, a compromise to be found that will accommodate the exercise of the right to protest within a framework of public order which enables ordinary citizens who are not protesting, to go about their business and pleasure without obstruction or inconvenience."

 

            In discussing the need to create a balance between the various rights, we stated as follows in H.C. 148/79 [1] at 172, 178:

           

"The freedoms of assembly and procession are not unlimited. They are relative and not absolute freedoms. My right to hold an assembly and procession does not mean that I have the right to enter my neighbor's property without his consent, or that I may cause violence and a disturbance of the public peace. As with other freedoms, here too it is necessary to balance the desire of the individual - and the desires of individuals - to express their views by way of an assembly and procession, against the desire of the individual to protect his welfare and property and the desire of the public to preserve public order and security. Without order, there is no liberty. The freedom of assembly does not mean a throwing-off of all public order, nor does the freedom of procession mean freedom to riot... In organized social life, there is no 'all or nothing,' but there is 'give and take,' and a balancing of the different interests."

 

            It is necessary that this balancing process find expression on two levels: one is the concrete level, where the actual circumstances of the controversial event are taken into account, the other is the level of principle, where the typical interests are taken into account, and general criteria are determined for balancing conflicting interests and rights. The concrete examination is essential, but is not sufficient in itself. It is not enough for the courts to state that the various interests must be balanced against each other. But the court - in the absence of statutory guidance - has to determine the balancing formula, the relative weight to be attached to the conflicting interests, and the criteria for ascertaining the point of equilibrium. This aspect was touched upon by Agranat J. in the Kol Ha'am case [3], in the following terms (at p. 881):

 

"... The question must necessarily arise - particularly because that approach does not embody any precise and narrow formula - as to what is the rational principle that must serve the executive authority when it is engaged in the stated process, in order to determine the issue in favor of one or the other of the two stated interests."

 

            This "rational principle" is needed in order to guide the public as to what is permitted and what is forbidden. Its existence is vital in order that the governmental authority be armed with the criteria and yardsticks necessary for its decision-making. This "rational principle" serves as an important guide for the judiciary, which ought not to give expression to its subjective perception but should fashion its interpretation according to objective criteria. The significance of this "rational principle" was elucidated by Shamgar J. in A.H. 9/77 [4], (at 361):

           

"The process of weighing competing values denotes the interpretative starting point, but it cannot act to establish standards or a graded value scale according to which the interpretative function is to be discharged. I suspect, moreover, that the result of setting up values one alongside the other, without at the same time formulating also guidelines for assessment of their relative weight, can only be that for lack of legal criteria the court will in each case employ according to its best understanding of what is most expedient - whatever criterion seems proper to it in the circumstances. In other words a criterion embodying a guiding value standard, and tending towards the upholding of a fundamental freedom, is converted into and exchanged for a casual paternalistic criterion, the direction and nature of which will be incapable of advance assessment. With all due respect, this is quite unsatisfactory and it will not, I am sure, contribute to the clarity of the law or to its uniformity."

 

            This need for a principled balancing calls for a judicial determination which, in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement has to be made with respect to the "limits of sufferance" of the various rights - if I may borrow a term employed by Mr. Justice Witkon [see A. Witkon, "Reflection and some Youthful Memories of Freedom of the Press," Human Rights in Israel (Human Rights Association in Israel, ed. R. Gabison, 1942, in Hebrew), 153, 160].

 

5. The right of demonstration and procession may clash with other rights and interests of various kinds. It may clash, for instance, with an individual's proprietary right, as may happen when it is sought to hold a demonstration and procession on his property. Exercise of the right of demonstration and procession may likewise conflict with a public property right, as when the procession is sought to be held in a city street. Public and private property alike have a vested ownership, yet a desirable balance between the right of demonstration and procession and a private proprietary right is by no means the same as the desirable balance when a "public" ownership right is at stake. The right of demonstration and procession may clash with the freedom of movement, since my neighbour's right to demonstrate in a city main street inhibits my right to use this street for my own purposes. These two interests have to be balanced against each other in a manner giving recognition to one without negating the other. The right of demonstration may clash with a person's right to personal security and bodily integrity, and also with the public interest in maintaining security and democratic administrative procedures. This clash may well occur since demonstration may bring with it violence, whether on the part of the demonstrators or on the part of a hostile crowd, and a balance must be struck between the right to demonstrate and the public security. The right of demonstration and procession may conflict with the public interest in the integrity of the judicial process, as may happen when a demonstration or procession is likely to influence the outcome of a judicial matter which is pending - and a balance has to be found between these two conflicting interests.

 

The Need for Diverse Criteria

6. The centrality of the right of demonstration and procession inevitably brings it into conflict with various other rights and interests, and this renders imperative a determination of standards wherewith to gauge the desirable point of balance in each case. The diversity of the different possible situations requires a matching diversity of points of balance. No single criterion will avail to solve all the problems, since the conflicting interests are not always on the same normative level, while the problematics of the conflict may be of different kinds. For instance, in case of conflict between the right of demonstration and a property right, the conflict when the latter is that of an individual is not the same as when it vests in the public. When vested in an individual the property right takes precedence, and an act of trespass cannot be justified by the right of demonstration (see Harrison v. Duke of Ruthland (1893) [22]). In the second case the property right takes no precedence, since public property - and I refer here to highways, squares and streets (and not, for example, to government offices) - is meant also for processions, parades and funerals (H. C. 148/79 [1], at 178; Lord Denning, in Hubbard v. Pitt [23]; see also S.A. de Smith, Constitutional and Administrative Law, (London, 4th ed. by Street and R. Brazaier, 1981) 497). Here, unlike the private property situation, the right has to be balanced against other interests, in a process of reciprocal waiver and tolerance. As we have seen, the possibility of conflict may arise also between the right of demonstration and procession and the freedom of movement or, between the former and maintaining the integrity of the judicial process. These conflicts may raise problems of a varying character. The conflict between the freedom of demonstration and procession and the freedom of movement is between two rights of equal normative value, and what is needed, therefore, is to balance them in a manner enabling substantial realization of the one without substantial infringement of the other: "The inhabitants of a city ... have to take upon themselves the inconvenience resulting from national and public events, and these cannot serve to restrict the citizen's right to demonstrate. In organized social life there is no 'all or nothing' " (H.C. 148/79 [1], 178), and once the desirable point of equilibrium has been established, it will regulate the conduct of the public and of the authorities. The apprehension, or possibility or even certainty of impairment of one interest or another may not be relevant at all. On the contrary: the envisaged equilibrium entails the certainty of an impairment of some kind, yet the entailed risk has to be undertaken for the sake of maintaining a desirable balance between the competing interests. The second conflict, between the freedom of demonstration and procession and the integrity of the judicial process, raises a different problem. Here the question generally is the degree of likelihood that the exercise of the one right (demonstration and procession) will prejudice the other interest (integrity of the judicial process). If this likelihood is high, the interest of the integrity of the judicial process will have the upper hand, whereas the freedom of demonstration and procession will prevail when there is little such likelihood. The purpose of a principled balance in this type of situation is to establish guidelines for evaluating the prejudicial likelihood. Thus, for instance, it has been laid down in our case law that the desirable guideline is neither a "probable" nor a "remote" danger, but one of "a reasonable possibility." "The risk of a remote effect on the judicial process will not suffice, but a possible effect will, since it is much the same whether the publication did in fact operate to influence the trial, or it merely was capable of so doing. This possibility of influencing the outcome of the trial suffices if it be a reasonable possibility, and there is no need that it be probable or imminent" (per Sussman J. in Cr.A. 126/62 [5] at 181).

 

7. As we have seen, the desirable point of equilibrium is sometimes found in a determination of the demarcation line between two rights pressing for recognition on the same normative level (the right of demonstration and procession as opposed to the right of passage). At other times, finding the point of equilibrium entails the establishment of a criterion for evaluating the likelihood of a breach of right. Just as the point of balance in the first case varies according to the substance of the rights concerned, so by the same token will it vary in the latter case. In neither case is a general and universal standard to be established. This question arose in connection with the relationship between the freedom of expression and the integrity of the judicial process. The argument that the proper point of balance between the two interests coincided with the point where the interests of free expression and public security were properly balanced against each other (i. e., a situation of "clear and present danger"), was rejected by the Supreme Court, Sussman J. holding as follows:

 

"I am of the opinion that this test is inappropriate in the instant case. There the question was the restriction of a right in deference to the public need, here the issue is the reconciliation with each other of two worthy but conflicting public interests. An encroachment upon the freedom of speech because of the danger of a breach of the public peace - a sore evil, for the prevention of which the freedom of speech should be curtailed only as far as essential - is not the same as delimiting that freedom for the sake of doing justice. For the public interest in the doing of justice is no less a value than the public interest in the maintenance of free speech, and in balancing the two against each other it would be as wrong to neglect the one as it would the other." (Cr.A. 126/62 [5], at 177).

 

Accordingly, we held that

 

"The Supreme Court was not prepared to follow the American case law, nor to adopt the test of a clear and imminent danger. It was also not ready to adhere to the 'probability' test laid down by the Supreme Court in the Kol Haam case (H.C. 73/53 [3], 87). In rejecting these tests Sussman J. noted that 'the doing of justice is of no less importance than the freedom of expression...' In place of these tests the Supreme Court established another, putting the point of balance elsewhere on the spectrum of possibilities, namely, the test of a 'reasonable possibility' of a forbidden influence." (Cr.A. 696/81 [6], at 575).

 

8. In the petition before us no question of the freedom of movement or of the integrity of the judicial process was at stake. The consideration by which the District Commander was guided was "a serious apprehension of a grave threat to the public order and safety." The issue was deliberated by this Court in H. C. 148/ 79 [1], where it was held that the right of assembly, procession and demonstration was not an absolute but a relative one, which could be restricted because of considerations of public safety. In the above case danger to the public safety was feared because of violent behaviour on the part of the demonstrators themselves, whereas in the case before us the apprehension was linked to possible violence coming from a hostile crowd. The Police Ordinance (New Version), 1971, provides for denial or restriction of the right of demonstration and procession on grounds of public security (sec. 84). Hence, if the risk of harm to life or body threatened by a hostile crowd is a matter of certainty, there is no doubt that the right of demonstration and procession must bow to these individual and public interests. However, does the occurrence of the harm have to be an absolute certainty for the instant purpose? To answer, it is necessary to establish a standard for gauging the likelihood that a disturbance of the public security as a result of the reaction of a hostile crowd to the demonstrators will erupt. What is the appropriate point of balance?

 

The Freedom of Demonstration and Procession and the need for Public Security in the Face of a Hostile Crowd.

9. This question requires us to analyze the different considerations that have to be taken into account. One is that a situation should not be allowed to arise in which hostile bystanders will be able to prevent people from demonstrating. It was so held by the U.S. Supreme Court in Bachellar v. Maryland (1970) [27], at 567:

 

" 'The public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers'... or simply because bystanders object to peaceful and orderly demonstrations."

 

            A person's freedom is not to be infringed merely because of violent objection to its exercise (see Watson v. City of Memphis, Tenn. (1963) [28]). It is the task of the police, in this situation, to keep the crowd from disturbing demonstrators, and not to prevent the demonstrators from exercising their right (Cr.A. 100/51 [7], at 280; see also E. C. S. Wade, "The Law of Public Meeting," 2 Modern L. Rev. (1938), 177). This was clearly stated by the court in R. v. Londonderry (1891) [25] as follows (at 449):

           

"If danger arises from the exercise of lawful rights resulting in the breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who exercise those rights."

 

            Showing deference to crowd hostility is like entrusting the key to exercise of the right of demonstration and procession to those who oppose it. This has to be avoided and the mob is not to be given a power of veto, nor violence a reward. The danger of such deference is noted by Kalvin:

           

"If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve" (Kalvin, The Negro and the First Amendment (1965) 140).

 

            Indeed, we should be careful not to convert the mob's power of veto into a constitutional principle that would permit denial of the right of demonstration and procession. "Every act done outside the framework of law and calculated to prejudice another's freedom of expression - an act of violence all the more so - strikes at the very heart of democracy" (Agranat J., in Cr.A. 255/68 [8], at 435). The heart of democracy has to be protected by all the means at democracy's disposal.

 

10. At the other end of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life. The supreme value we attach to human life compels us to reckon with its endangerment, from whatever quarter the threat may come. The freedom of demonstration must not be permitted to degenerate into a blood-bath. Moreover, a violent disruption of the public order may unravel the social fabric and the very institutions of democratic government. It is not unknown for the enemies of democracy to have availed themselves of its legal processes in order to bring about its downfall. "More than once in the history of democratic countries has it happened that an orderly democratic administration was overcome by fascist and totalitarian movements of one kind or another, these making use of all the rights of free speech, freedom of association and of a free press, accorded them by the state, in order to conduct their destructive activities. Those who saw this happen at the time of the Weimar Republic will not forget the lesson" (Witkon J. , in H.C. 253/ 64 [9], at 679; see also E.A. 1/65 [10]), nor, indeed, will those who lived through the events of the Third Reich (see Witkon's above-mentioned article, at p. 161). The freedom of procession must not be allowed to escort the state to the "abyss" (a phrase used by my learned brother, Levin J., in H.C. 243/82 [11], at 770).

 

 

11. These, then, are the two considerations to be taken into account and to be balanced against each other. Both are worthy of protection, but they cannot both be upheld at one and the same time. Mr. Justice Fortas depicted the situation thus:

 

"The Constitution seems to accommodate two conflicting values, each of which is fundamental; the need for freedom to speak freely, to protest effectively, to organize, and to demonstrate, and the necessity of maintaining order so that other people's rights and the peace and security of the State, will not be impaired" (A. Fortas, Concerning Dissent and Civil Disobedience (New York, 1968) 30).

 

            The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), to safeguard the public security or the public order. It seems to me that the balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in demonstrations and processions. At the second level, the concern is with the normative measures to be adopted by the police with respect to the grant or denial of permission for the holding of a demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt. I shall deal with each of these levels in turn.

 

 

Balance Level One: Police Action to Prevent a Disturbance.

12. We have seen that our point of departure is the principle that an individual has a recognized right to take part in a demonstration or procession. Anyone threatening the exercise of this right and forcefully interfering with its enjoyment is acting unlawfully. There is a constitutional right to demonstrate and a constitutional duty to refrain from disturbing the demonstration by the use of threats and violence (see "Protecting Demonstrators from Hostile Audiences," 19 Kan. L. Rev. 524). Hence, the police must use all reasonable means at their disposal in order to prevent these threats and to protect the demonstrators from harm. This duty of protection is stated by Professor Chafee thus:

 

"The sound constitutional doctrine is that the public authorities have the obligation to provide police protection against threatened disorder at lawful public meetings in all reasonable circumstances" (Z. Chafee, Free Speech in the United States (New York, 1969) 245).

 

            The initial police action should be directed not against the demonstrators , but those threatening them with acts of violence. In the words of U.S. Supreme Court Justice Roberts:

           

"Uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right" (Hague v. Committee for Industrial Organization (1939) [29], at 516).

 

            This principle has been adopted in our law too. For instance, the Supreme Court has held as follows:

           

"The maintenance of order does not mean surrendering to those who threaten its disturbance, but the contrary: giving shelter and protection to the victims of such" (per Berinson J. in H.C. 166/71 [12], at 594; see also H.C. 230/73 [13]; H.C. 155/60 [14], at 1512).

 

            In the same spirit it was held that "the response to the unlawful resort to violence must be firm initial police action and subsequent enforcement of the criminal law" (Landau J. in H.C. 531/77 [15], at 165). It is therefore the duty of the police to take all reasonable steps towards preventing any threats to, or disturbance of, the procession or demonstration (Cf. H.C. 222/68 [16], at 166). The enjoinder of the demonstration or the procession is to be imposed as the last, not the first step. Only after exhausting all the physical means at the disposal of the police, in whatever manner required to meet the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with. If, in the name of preserving order, the police "ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him" (Black J., in Feiner v. People of the State of New York, (1950) [30], at 326).

            The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police (see H.C. 222/68, [15], at 167). Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and they have to allocate their forces in a manner that will ensure reasonable discharge of all their duties (see Note, "Hostile Audience Confrontations: Police Conduct and First Amendment Rights," 5 Mich. L. Rev. (1976-77), 180)

           

Balance Level Two: Police Action to Prevent a Demonstration.

13. It is possible that the reasonable efforts made by the police to prevent interference with a demonstration will succeed in eliminating the danger threatened by a hostile crowd, but it may also happen that the danger remains. The police may not have sufficient forces available, or those available may not be adequately trained or equipped, or the surrounding physical circumstances may perhaps preclude effective control of the situation. For these and other reasons, a threat to public safety may persist even after the envisaged police action. In this predicament the second question poses itself, namely: does the risk of harm to body and life justify repression of the right of demonstration and procession? Should the police efforts be directed solely against the hostile crowd, or are there also circumstances which justify police action against the demonstrators themselves? Shall the procession march at any price? We have already discussed the relevant considerations at this level of inquiry, noting that here too a balance must be struck. An infringement of the right of demonstration and procession has to be justified when its exercise entails a risk of bodily injury and loss of life. A democratic society which is anxious to preserve human dignity, life and bodily integrity, which is concerned with maintaining democratic government procedures, must sometimes deny or curtail the freedom of expression and the freedom of demonstration and procession, even if the practical implication of so doing is to grant a hostile audience de facto veto power. In this connection Professor Barnum writes as follows:

 

"It is doubtful that constitutional policy can prevent a hostile audience from abridging the freedom of speech when public disorder is either so unexpected or so persistent that it threatens to overwhelm the law enforcement resources of the society... when violent clashes between opposing groups become a regular occurrence, the law enforcement capacity of the society may be worn so thin that general restrictions on the right to demonstrate will have to be imposed. Under these circumstances, the constitutional right of freedom of speech may have to be subordinated, at least temporarily, to the imperatives of law enforcement and the need to restore public order" (Barnum, supra, at 94).

 

            But the real question that underlies this petition is this: what is the measure of likelihood of loss of life or bodily harm resulting from the holding of a demonstration that would justify the ultimate step of enjoining exercise of the stated right. This is a matter for prior and not retrospective assessment. The procession has yet to march, the demonstration yet to be held and the events yet to unfold. But the danger exists, the threat is there. By what standard shall the situation be gauged? As we have seen, certainty is by no means to be required. One does not await the patient's death before calling the doctor. What then is the requisite degree of likelihood - short of certainty - in this context? Does apprehension suffice? Is reasonable apprehension required, or perhaps a possibility, proximate or remote, suffices? Perhaps a substantial danger has to be shown, or shall the test be one of probability or of a clear and present danger? These and other tests we shall now examine in seeking the proper criterion to be applied when balancing the right of procession and demonstration against individual and public safety.

 

The Proper Standard: The "Probability" Test.

14. Determination of the proper standard was the central issue in the Kol Ha'am case ([3] 87). Charged with determining the "rational principle" by which to find the balance between free speech and the public security, the Court decided on "probability" of danger as the balancing formula or "test." This test will ensure that:

 

"On the one hand the viewpoints of others are not suppressed merely because they are opposed to those held by the people in authority and, on the other hand, that there is also attained the legislator's objective of preventing danger to the public peace" (ibid. at 888).

 

            Justice Agranat arrived at this test on the basis of the fundamental perception of the State of Israel as a country built on democratic foundations, within which prior restraints on the freedom of expression ought not to be imposed save in situations where the occurrence of a harmful result is a "substantial probability." It seems to me that the stated test is appropriate also in the matter now before us. We might also therefore properly apply the "probability" test in construing the District Commander's authority under sections 83 and 84 of the Police Ordinance (New Version). This can be justified on four grounds: First, the issues in this case and in Kol Ha'am [3] are very closely related. In both cases the principle of free speech (in its wide sense) clashes with the public security interest, and the need arises for a standard by which to gauge the likelihood of harm occurring. The general considerations pertaining to the democratic nature of the state and the need to confine "preventive measures" to situations in which there is a substantial probability that danger will erupt, apply in both cases. Second, the decision in Kol Ha'am has come to be accepted by the courts as establishing a general guideline for the balancing of freedom of speech with public safety. The ruling in Kol Ha'am is not limited in application to the specific provision of the Press Ordinance in issue there, but "was formulated on a broad theoretical basis" (per Landau J. in H.C. 243/62 [2] at 2411).

            The ruling in Kol Ha'am "has become a cornerstone in our legal edifice, and the principles embodied in it have been accepted by all and are beyond challenge today" (Levin J., in H.C. 243/82 [11], at 765). Our courts have in the past applied the stated test in all situations requiring a balance of freedom of speech with public safety (see e.g. H.C. 243/63 [2]; H.C. 807/78 [17] at 278; H.C. 148/79 [1]; H.C. 644/81 [18]; H.C. 243/82 [11]; see also P. Lahav, "Freedom of Expression in the Decisions of the Supreme Court, " 7 Mishpatim (1977) p. 375). It is fitting that we continue following this route, along which processions and demonstrations shall be free to march as long as there is no probability of prejudice to public security.

            A third reason for following the Kol Ha'am guideline is that it puts us in the company of modern democratic states which also face similar predicaments and, despite differences in constitutional structure, arrive at solutions similar to our own (see D. G. Barnum, The Constitutional Status of Public Protest Activity in Britain and the United States (1977) Pub. L. 310). Thus, a similar approach is taken in the United States (see L. H. Tribe, American Constitutional Law (Mineola, New York)), and likewise in West Germany. The latter country's constitution ensures freedom of assembly, with provision made for lawful restriction of the same. A special law empowers the police to prohibit demonstrations, provided that the circumstances known at the time of the decision constitute "an immediate danger to public order or public security" (see Gesetz uber Versammlungen und Aufzuge (Versammlungsgesetz) of 24 July, [Dietel and Kintzel, Demonstrations und Versammlungsfreiheit (1935), 120]).

            Fourth, the stated test strikes a proper balance among the various considerations which are competing for primacy. The test, on the one side, pays full regard to the need to ensure freedom of demonstration and procession, and also fully recognizes that only exceptional circumstances indicating a causal connection which is clear and manifest, justifies the infringement of this freedom. On the other side, the test pays full regard to the need for protecting life and limb, acknowledging that the maintenance of democratic administrative procedures and the public safety justify infringement of the freedom of demonstration and procession. It is accordingly a rational and principled test, and provides a proper and flexible guideline for the resolution of difficult and exceptional situations.

           

15. Already in Kol Ha'am Agranat J. pointed out ([3] at p. 888) that the "probability" test was "not a precise formula that could be adapted easily or certainly to every single case." The use of kindred expressions, such as "a proximate possibility" (Agranat J., ibid.), "a tangible danger" (Sa'ar decision [1]), "a natural consequence" (see Beatty v. Gillibanks [24]), throw little additional light on the content of this elusive test. It may be noted that in the United States the standard of a "clear and a present danger" is sometimes applied in the present context. This test was enunciated by Justice Holmes in Schenck v. United States [31]:

 

"The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (at p. 52).

 

            It was further shaped by Justice Brandeis, with the concurrence of Justice Holmes, in Whitney v. People of the State of California [32]:

           

"... no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression" (at p. 377).

 

            Some reservations about the test were expressed in later decisions (see Strong, "Fifty Years of 'CIear and Present Danger': From Schenck to Brandenbrug and Beyond," Free Speech and Association (ed. Kurland, 1975) 302; Dennis v. United States [33]).

            Justice Agranat himself rejected this test in Kol Ha'am ([3] at 891), mainly because the element of immediacy demands proximity in time. In later Supreme Court decisions no clear distinction was maintained between the "probability" test enunciated by Justice Agranat and the "clear and present danger" test rejected by him, the two being treated as identical (see e.g. Sussman J. in Cr.A. 126/62 [5] at 171; Cohn J. in E.A. 1/61 [10] and Bach J. in H.C. 243/82 [11], at 779). Indeed, there appears to be no great difference between these two tests (see Lahav's above-mentioned article at 420), and some regard them as being but different versions of one and the same test (see T. L. Emerson, The System of Freedom of Expression (N.Y.. 1970) 113). In the Dennis case [33], in which the American Supreme Court expressed reservations concerning the "clear and present danger" test, Jackson J. nevertheless felt that there was room for its continued use in procession and demonstration cases (ibid. at 568).

           

16. The test of "probability" does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. What is required is "substantial" evidence (D. Libai, "The Right to Assemble and Demonstrate in Israel, "Iyunei Mishpat. Vol. B (1972/73) 54, 65). The estimation must be based on known facts, including past experience. Conjectures, speculations and apprehensions are not enough, nor is a plea of a substantial possibility of harm to public security. The actual circumstances must point to a substantial likelihood of danger, leaving a possibility of "setting off" the degree of likelihood against the measure of gravity of the apprehended harm. In this respect one should not seek to be wise after the event and judge according to ex post facto knowledge of the facts and events, but rather according to the reality confronting the authority at the time of making its decision. Nevertheless, not to be wise after the event is no justification for folly before the event. Since we are concerned here with the evaluation of a future happening, relevance attaches to the circumstances surrounding the holding of the demonstration and procession, to the message it is intended to convey, the manner of its conveyance, and to the possible reaction of the crowd. A demonstration is not something detached from reality, it is rather a phenomenon of life taking place at a particular place and time. It is true that the ideology which the demonstration or procession seeks to express is not per se of concern to the authorities "the police are not in charge of ideology" (H.C. 148/79 (1) at 179). But how the message is conveyed, the possibilities of its influencing the spectators and the measure of hostility it is calculated to arouse in the crowd are all considerations to be duly weighed, for they have a direct bearing on the threat to public-security. Accordingly, the views of the demonstrators are not in themselves of interest to the authorities, but are important only for estimating the probability of the danger erupting.

            Freedom of expression or demonstration does not mean freedom merely to say only what others want to hear. Freedom of procession is not the preserve of flower-garlanded children marching along a city street, but it also confers the right on people who do not hold the accepted views to march, and whose very marching arouses irritation and anger (see Terminiello v. City of Chicago (1949) [34], at 4). The right is available to marchers in both categories, and is not tied to the measure of approval or anger aroused. Yet importance does attach to such responses when one is evaluating the likelihood that the procession and demonstration will result in a breach of the public security.

           

17. If, despite the adoption of all reasonable police measures, there is still a "probability" of harm to public security, the District Commander has the authority to forbid the demonstration or procession. It is to be noted, however, that the enjoinder of a demonstration or procession is a measure of last resort, to be adopted in the face of anticipated danger. Before its adoption, the use of less drastic measures has to be considered. These may enable the demonstration or procession to be held, even if not as originally planned but with changes as regards its place, time and scope. In this manner it will be possible to maintain, if only in limited measure, the freedom of demonstration and procession, while at the same time protecting the public security interest. Indeed, when the lawful denial or curtailment of a basic human right is at stake, it is incumbent on the Executive to choose - from the range of means available for the protection of public security - such restrictive measures that least impair the basic right. Among the drastic measures, that which is the least drastic should be chosen. (See note: "Less Drastic Means and the First Amendment, "78 Yale L.J. (1969) 464). It is possible, of course, that any measure less than a total enjoinder may be ineffective in the face of a probable threat to public security. In such event there is no alternative but to adopt this stringent measure. But where other means may prove effective, they must be employed.

 

Judicial Review

18. I have so far confined myself to the normative framework within which the District Commander's discretion may be exercised. It is now necessary to examine the normative discretionary framework for the exercise of judicial review. This framework is not peculiar to the law of demonstration and procession, but is rather the regular framework set by the doctrine of judicial review. This doctrine holds that "the court, when exercising judicial review, does not assume the identity of the functionary the lawfulness of whose conduct is being challenged, but each retains its own identity, and the court examines whether the functionary acted as one in his position should properly have done." (H.C. 329/81 [19], at 334). Accordingly, the court will not assume the role of a super-police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevancy of considerations and the like. Thus we have ruled as follows in the context of the Police Commander's discretion under sections 83 and 84 of the Police Ordinance (New Version): "If the second respondent's considerations are affected by lack of good faith, by arbitrariness, discrimination or unreasonableness - we shall not hesitate to intervene" (H.C. 148/79 [1], at 178).

 

19. In exercising judicial review, the court will examine the lawfulness of the police commander's decision in relation to the existence of a "probable" danger to the public security (see Kol Ha'am [3] at 823). The court will ask itself - as it has in other similar cases (cf. H.C. 389/80 [20]; H.C. 1/81 [21]; H.C. 243/82 [11] - whether the facts as known to the District Police Commander, would entitle a reasonable police commander to infer the existence of a "probable danger" to public security. This examination is no different from any other made by the court using the test of reasonableness. In this way, for instance in H.C. 644/81 [18], this court examined whether various articles published in a daily newspaper posed a probable danger to public security. A similar examination was made by this court in H.C. 243/82 [11], in the context of prohibiting the telecasting of certain material. The same test has to be used when ascertaining the "probability" of harm to public security in the context of the police commander's exercise of his discretion.

 

From the General to the Specific

20. The District Police Commander concluded, in the matter before us, that there was "serious apprehension over a grave threat to public order and security." This threat, in his opinion, would continue to exist even after allocation of the forces necessary for safeguarding the demonstration and procession.

            We enquired as to the grounds for such concern, and were informed that it resulted from an evaluation of the events that had transpired on the occasion of the first demonstration and procession, held a month earlier. Here the District Commander erred, in our opinion. Apprehension and estimations are not enough - unless they are founded on facts and point to a "probability." In the matter before us the only facts adduced were the events of the past. These create an apprehension, but no more, and do not establish any probability. Upon a reasonable evaluation made with prudent foresight, the above facts cannot be said to establish any substantial likelihood of danger, and do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred, on the factual constellation known to him, that there existed any probability or substantial likelihood of harm to public security. Once we have reached this conclusion there is no longer need for us to consider whether the police commander had properly discharged his duty when he offered to licence a meeting at the Rose Garden, opposite the Prime Minister's office. That inquiry would only have been necessary had we thought that holding the procession along the original route entailed a probability of harm to public security. In any event, the need to consider alternative routes of procession falls away, once we have concluded that the planned procession poses no danger warranting its enjoinder. Yet I must add with regret that a number of suggestions which we made in the course of the hearing - relating to alternative routes promising a more effective deployment of the public forces and thus reducing the fear of possible violence on the part of the crowd - were not acceptable to the Respondent, despite the willingness of the Petitioners to accept them. It is difficult to fathom the Respondent's rejection of these alternative proposals, which could have reduced the risk of possible danger significantly, even on the premises and assumptions of the police themselves.

            For the above reasons we have decided to make the order absolute in the sense that the Respondent is to give the Petitioners a licence to hold a demonstration as requested by them.

           

Judgment given on May 13, 1984.

LCrimA 7669/15

 

 

Applicant:                               Ra’ed Salah Mahajna

 

v.

 

 Respondent:                          State of Israel

 

 

Attorneys for the Applicant:  Avigdor Feldman, Adv., Omar Khamaisi, Adv., Khaled Azbarga, Adv., Ariel Piechotka, Adv.

Attorneys for the Respondent: Dafna Finkelstein, Adv., Shlomi Abramson, Adv.

 

 

                                                              

 

 

 

The Supreme Court

 

 

Application for leave to appeal the judgment of the Jerusalem District Court of November 10, 2015, in CrimA 30980-04-14 delivered by Judges A. Romanoff, D. Mintz and E. Nachlieli-Khayat

 

16  Shvat 5776 (January 26, 2016)

 

Before Deputy President E. Rubenstein, Justice S. Joubran, and Justice A. Baron

 

 

J U D G M E N T

 

Deputy President E. Rubinstein:

 

1.         This case concerns the interpretation of the offenses of inciting racism and inciting violence. It is an application for leave to appeal the judgment of the Jerusalem District Court (Judges Romanoff, Mintz and Nachlieli- Khayat) in CrimA 30980-04-14 and CrimA 31172-04-14, delivered on November 10, 2014, which granted the Respondent's appeal of the judgment of the Jerusalem Magistrates Court (Judge Lomp) in CrimC 5425/08, delivered on March 4, 2014. The application for leave to appeal is also directed at the judgment of the Jerusalem District Court (Judges Carmel, Mossek and Renner) in Criminal Sentencing Appeal 15799-05-15 and in Criminal Sentencing Appeal 16604-05-15, delivered on October 27, 2015, which denied the Respondent's appeal and the Applicant's appeal as to the leniency of the sentence and the severity of the sentence, respectively, in the judgment of the Jerusalem Magistrates Court (Judge Lomp) issued on March 26, 2015, which sentenced the Applicant to 11 months imprisonment and an eight-month suspended sentence. The application for leave to appeal focuses on the conviction of the Applicant, born in 1958, who is the leader of the Northern Faction of the Islamic Movement in Israel, of the offense of inciting racism, pursuant to sec. 144B(a) of the Penal Law, 5737-1977 (hereinafter: the offense of inciting racism), and of the offense of inciting violence or terror, pursuant to sec. 144D2(a) of the Penal Law (hereinafter: the offense of inciting violence).

 

Background

 

2.         In February 2007, Israeli authorities carried out archeological work in the area of the Mughrabi Ascent, at the entrance to the Temple Mount (the Mughrabi Ascent is a dirt berm that leads to the Mughrabi Gate, a gate to the Temple Mount complex, which is located on the south side of the Western Wall), prior to construction work on the berm. These actions were met by riots among the Arab public that falsely claimed that the Israeli authorities were attempting to sabotage the holy sites.

 

3.         As alleged in the indictment, on Friday, February 16, 2007, at around 10:00 AM, the Applicant arrived in Jerusalem, along with hundreds of supporters from the Northern region. Due to police instructions which restricted the worshipers' entrance to the Temple Mount, and in light of a restraining order issued in the framework of MApp 2181/07, which barred the Applicant from entering or approaching within 150 meters of the Old City for 60 days, the Applicant and his supporters congregated in the Wadi al-Joz neighborhood to hear a sermon delivered by the Applicant, and for Friday prayers. A makeshift stage was set up from which the Applicant, using loudspeakers, spoke to approximately one thousand people who had congregated, and to a number of media outlets. It is undisputed that among other things, the Applicant said the following:

 

Now we are in this blessed, pure place, a place of blessing and purity, if not for the disturbances and obstructions that have befallen us by the Israeli occupation, which will be removed, please God, just as other like it were removed in the past.

 

Following the Rafah camp crime, you are being told that the Israeli establishment wants to build a temple that shall serve as a house of worship to God. How impertinent and dishonest, it is inconceivable that one who wants to build a house for God would build a house for God while our blood is still on its clothes, our blood is still on its doors and our blood is in its food, and our blood is in its drink, and our blood moves from one terrorist general to another terrorist general.

 

Thus we continue on our path and fear none but God, praised his name. We fear none but God. This is why I say that those who think that they have a bleeding history, they have generals of killing and of massacres. They who think that by inciting against us on Channel One, and on Channel Two, those who thought that they were inciting against us on Channel Ten or on the Army Radio, we  fear none but God. The most beautiful moments in our destiny are when we will meet God as martyrs [shahids] in the area of the Al Aqsa mosque.

 

This is why I say this clearly and without hesitation: You who incite against us, do not be lured by the ranks on your shoulders. Those ranks and stars placed on your shoulders were made of the skulls of our martyrs. These are ranks of shame and not ranks of splendor. These are ranks of disgrace and not ranks of honor. You surprise me. Those of you who kill more of us, get promoted to higher ranks.

 

While we are here, preparing for prayer in the area of the blessed Al Aqsa mosque. Here is where all of the clouds of deprivation shall be removed from the skies of holy Jerusalem. On that day, all of the streets of holy Jerusalem will be cleansed of the blood of the innocents whose blood and souls were taken by the soldiers of the Israeli occupation, who are occupying the blessed Al Aqsa mosque. Indeed, that is when the Jerusalem almond trees will renew their blossom and the leaves of the olive trees will be green again, and dignity shall be returned to the Church of the Holy Sepulchre, and dignity shall be returned to all of the mosques and churches. Furthermore, we are not malicious and we shall not be malicious, and we shall also preserve the dignity of the synagogues of the Jews. We are not a nation that is based on values of jealousy. We are not a nation that is based on values of revenge. We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God, is that religion? Is that what God wants? God will yet deal with you for what you do…"

 

We are not alone in this struggle. It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa, and they are coming and telling me you are inciting. So, my brothers, I am telling you, and I am saying that we are not alone in this struggle. I want to tell every sane person. I want to say this to every sane person, that the battle that the forces of the Israeli occupation started against holy Jerusalem and against the blessed Al Aqsa mosque, is not over yet. Indeed, the sights of this campaign officially started in 1948 CE. Since that year, the Israeli establishment continues in its war against holy Jerusalem and in the blessed Al Aqsa mosque. During the years that have passed there was a bloody scene there, in 1967 CE. There was a battle that the Israeli occupation establishment, which is occupying holy Jerusalem and the blessed Al Aqsa mosque, is still continuing. It is still continuing the battle. The battle is still continuing... but we are emphasizing that, God willing, we are not alone in this battle. We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now (sic.– E.R.), it is now their duty to assist the Palestinian nation. It is now their duty to instigate an Islamic Arab Intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa' mosque (emphasis added; the parts that were emphasized are those on which the charges focused, the first in the matter of racism and the second in the matter of vinolence).

 

As alleged, the Applicant's sermon was interrupted from time to time by the audience, that called out "God is great" and "In blood and fire we shall redeem you, Al Aqsa". As alleged, at the end of the sermon and the prayers, the audience present began to riot and hurl rocks at the police forces that were nearby. During the riots, three Border Policemen were injured.

 

4.         Following the above, the Applicant, as noted, was charged with the offense of inciting racism and the offense of inciting violence.

 

The Magistrates Court's Judgment

 

5.         The Respondent sought to establish the Applicant's conviction of the offense of inciting racism on the Applicant's following words, alleging that these words referred to the famous blood libels that led to antisemitism throughout history: "We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God. Is that religion? Is that what God wants? God will yet deal with you for what you do…". The Magistrates Court did not accept the State's position, ruling that the Applicant's words regarding the blood libels are not sufficiently clear, and that there is confusion between two different terms, and between different religions – and this is what happened when the Applicant stated that children's blood is mixed with holy bread, and not with Passover matzah. It was noted that the Applicant's explanations and the lack of clarity of his words left doubt whether he was aware of the nature of the act and of the possibility that his words would lead to inciting racism. The Applicant was acquitted of committing this offense.

 

6.         However, the Magistrates Court did convict the Applicant of the offense of inciting violence. It ruled that his words: "It is now your duty to instigate an Islamic Arab intifada from ocean to ocean", constituted a call for a violent uprising. It was noted that given the general context of the Applicant's sermon, the repeated use of the word "blood" and the words "we will meet God as martyrs [shahids] in the area of the Al Aqsa mosque", the call for an Intifada cannot be understood other than as a violent civil uprising. The "circumstances of time and place" were emphasized in this context: these were tense times, the streets of Jerusalem were roiled and stormy, the Applicant is a well-known, influential figure in the Arab public and he spoke before an angry, frustrated crowd that had, under the circumstances, been prevented from entering the Temple Mount for Friday prayers. It was finally explained that in order to fulfill the elements of the offense it is not necessary that the incitement actually lead to violence, and it is sufficient that there be a real possibility that the publication will lead to an act of violence being committed. However, the court examined the causal connection between the incitement and the actual violence as an aggravating circumstance, and after reviewing the testimony of the policemen who were on the scene and the defense testimony, it ruled that there was no causal connection between the Applicant's sermon and the riot that occurred shortly thereafter.

 

The Original Sentence (original – since a more severe sentence was subsequently imposed on appeal)

 

7.         The court discussed the social value embedded in the offense of inciting violence – maintaining public safety and protecting against its potential endangerment – as well as the prevailing punitive policy. The court further expressed its opinion regarding the circumstances related to committing the offense and the extent of the Applicant's guilt. It was noted that the Applicant is a respected public figure, that his speech was delivered to a large audience and was broadcasted by the media. It was also emphasized that the Applicant spoke in the framework of Friday prayers before a "charged" audience that had come from afar, and that had been prevented from entering the Al Aqsa mosque to pray. The court added that this case is at the more severe end of the scale compared to other incitement cases decided by the Israeli courts, in light of the speaker's prominent status, his audience, the circumstances in which the speech was delivered, the severity of the expressions and the infinite potential damage  they posed. On the other hand, the court took into consideration the fact that no direct damage was caused by the Applicant's speech.

 

8.         In light of the above, the range of punishment was set at 3-18 months of imprisonment. In determining the punishment from within that range, the court considered the Applicant's criminal record, which includes security offenses, considerations of deterrence, and the fact that the Applicant did not take responsibility for his actions, while also considering the fact that – at the time – he had not committed additional offenses since perpetrating the offenses that are the subject of the Application. It was also noted that the conduct of the trial and the Applicant's multiple absences led to a prolonging of the proceedings, and that the Applicant's personal circumstances, other than his age and status, had not been presented to the court. The Applicant was thus sentenced to eight months of custodial imprisonment and an eight-month suspended sentence for a period of three years.

 

The District Court's Judgment

 

9.         Both the Respondent and the Applicant filed appeals on the judgment. The District Court (Judges Romanoff, Mintz and Nachlieli-Khayat) granted the Respondent's appeal, ruling that the Applicant should also be convicted of the offense of inciting racism. It was noted that the Applicant's speech was not delivered in a void, but rather in the clear context of the protest that arose among parts of the Muslim public following works that were performed by Israeli authorities in the area of the Mughrabi Ascent. The court noted that this protest did not arise in a vacuum but rather was an outgrowth of the conflict that has existed in our region for many years, and that "this is not a detached, intellectual, theological discussion, but rather a statement in which the ‘blood motif’ is repeatedly emphasized, in a clear context concerning an identifiable entity…". The court added that "resurrecting a blood libel accusing Jews of murdering children in order to use their blood to bake special food for their holidays is not legitimate, even where there are deep disputes, profound differences, anger and hatred… it is intended to intensify hate, deepen the chasm, increase the gaps and trigger conflicts.". In response to the defense’s argument that the Applicant's use of the expression "holy bread", which in Christianity is known as "sacramental bread", and not the expression "Passover matzah", testifies that he did not direct his words at the Jewish public, the court explained that what emerges from the Applicant's words is that he wanted to state that the bread referred to is special bread that is eaten on a holiday, and that the sermon he delivered did not address the relationship between Islam and Christianity, but rather the relationship between Muslims and Jews. The court thus ruled that given what was said, its context, the Applicant's status, and the identity of his audience, there can be no doubt that what was said was intended to incite racism.

 

10.       The court was divided as to convicting the Applicant of the offense of inciting violence. Judge Romanoff was of the opinion that the Applicant should be acquitted of this offense. In his opinion, one could not dismiss the Applicant's explanation that his words did not incite to violent action or acts of terror, but rather constituted a call for a general, not necessarily violent, recruitment to protect against what appeared to him to be a violation of a holy site. It was emphasized that, in his sermon, the Applicant transcended the limits of time and place, and therefore one cannot dismiss his explanation that he was asking all Muslims to do their part, to the best of their abilities and expertise, to protect the Al Aqsa mosque. Judges Mintz and Nachlieli-Khayat, on the other hand, were of the opinion that the Applicant's words could not be understood in any manner other than as a call for violence. This was particularly the case when, a number of sentences earlier, in the context of protecting the Al Aqsa mosque, the Applicant praised martyrs. It was further noted that even if the call for an intifada was directed to the entire Muslim world, this does not mitigate the severity of what was said, since it is clear that to the extent the Applicant's words were directed to an audience in Israel, they constituted a call for violence, nor does it dismiss a similar call to those who are elsewhere. It was explained that the circumstances – primarily the Applicant's identity, the atmosphere among the Arab public at the time, the scope of the publication and the group that was exposed thereto, the location of the sermon, and the fact that it was a Friday sermon -- also support the conclusion that this was an act of encouraging, supporting and identifying with acts of violence. It was further noted with respect to the literal meaning of the term "intifada", that the Applicant's explanations that all he wanted was to call for an awakening and protest, but not for violence, cannot be reconciled with the content of the sermon, the repeated use of the word "blood" and the context.

 

The Magistrate Court's Supplemental Sentence

 

11.       Following the Applicant’s conviction of the offense of inciting racism, the case was remanded to the Magistrates Court for sentencing. The court noted that in addition to the protected values regarding maintaining public safety and protecting against its potential violation, the offense of inciting racism also comprises an additional objective of protecting human dignity. The court again emphasized that the Applicant is a respected, well-known public figure, and that his words were spoken at a time when the atmosphere on the streets of Jerusalem was tense. The court also elaborated on the severity of the expressions, while also taking note of the fact that no direct damage was actually caused by the Applicant's actions. The updated range of punishment was set at 5-20 months of imprisonment "in order to express society's revulsion at racist statements and calls for violence, and due to the need to condemn those who employ such rhetoric…". The mitigating and aggravating considerations listed by the court in the original sentencing – as well as a conviction, after the original sentencing, of assaulting a policemen in order to prevent him from performing his duty while he was conducting a security check of the Applicant's wife, which did not receive significant consideration since it had a "personal background" – led the Magistrates Court to sentence the Applicant to eleven months imprisonment, as well as an eight-month suspended sentence for three years.

 

The Appeal on the Supplemental Sentence

 

12.       The Respondent filed an appeal with the District Court on the leniency of the sentence, and the Applicant filed an appeal on its severity. The appeals were denied. The court explained that the Applicant did not take responsibility for his actions, did not admit to them, and did not express remorse. The court (Judges Carmel, Mossek and Renner) emphasized the severity of the offenses and the aggravating circumstances of their commission. It noted that the Applicant, under a pretense of a lesson on religion, abused his status, knowing that it grants him influence among his audience, in order to deliver his messages, and that it was not a short, spontaneous statement, but rather a planned and organized sermon in the presence of a large public that had not been allowed to enter the Temple Mount. The argument that both of the offenses of which the Applicant was convicted stem from one event, are overlapping, if not identical, was also rejected. The court explained that each offense relates to a different, significant and separate part of the sermon. Finally, with respect to the argument that this was the first time that a custodial sentence was imposed for offenses that are merely expressions, the court noted that "there is no comparison between the status, influence, prestige, public weight and significance attributed to the words of the Appellant before a large audience, and those defendants who, although they said severe words of incitement, did not have influential public significance or weight, and certainly not such a broad and significant influence as that of the Appellant" (emphases removed – E.R.). The court also considered the Applicant's criminal record, as well as the fact that from the time the offenses were committed and until the date of sentencing, approximately eight years had passed during which he had not been involved in criminal activity (other than the said conviction of assaulting a policeman after the original sentence had been issued). The court noted that the severe offenses and the circumstances in which they were committed require substantial punishment that realizes the deterrence interest. The court concluded that, in light of the above, it would be inappropriate to intervene in the severity of the punishment. The Respondent's appeal as to the leniency of the sentence was also denied. The court also took notice of the many delays in the proceedings, which were attributable to the Applicant, as well as the fact that the Applicant did not repeat his actions.

 

Application for Leave to Appeal

 

13.       According to the Applicant, the application raises serious questions, among them the questions of where to draw the the line between freedom of expression and incitement, and what is the appropriate range of punishment for such offenses. As to the offense of inciting racism, the Applicant argues that his statements were not explicit, and in light of his impressive rhetorical ability, had he intended to incite racism, it is doubtful whether he would have crafted his words in such a manner. It was emphasized that there was no mention of the Jewish people or the State of Israel in his words. As to the offense of inciting violence, it was argued that in offenses of expression, the importance of examining the version of the accused party is acknowledged, yet, in the case at hand, little weight was attributed to his explanations. It was noted that the term "intifada" means awakening, and that the Applicant's intention was that of a global awakening of awareness and protest, but not of violent action. The universal aspect of the call was also emphasized. It was further argued that the use of the word "martyrs" [shahids] was not made in the context to which the majority judges referred, and that it referred to innocent people who were victims and lost their lives due to the conflict. It was explained that the use of the blood motif was merely metaphoric, and that neither it nor the other expressions used can  imbue the Applicant's words with the power to incite. As for the sentence imposed, it was argued that the penalty imposed on the Applicant set new precedent  in its severity, and that this will be the first time in Israel that a person will serve an extended prison term for offenses that entirely consist of expression. The Applicant cited a number of cases that support his argument, in which the accused were convicted of offenses of incitement, and emphasized that such cases also involved known, influential figures, as in the case at hand (for example, LCrimA 9066/08 Ben Gvir v. State of Israel (2008) (hereinafter: the Ben Gvir case); CrimA (Jerusalem) 4856/09  State of Israel v. Federman (2010) (hereinafter: the Federman case)). It was further argued that the offenses of which the Applicant was convicted overlap.

 

14.       Justice Joubran referred the application for leave to appeal for hearing by a three-judge panel, and the Applicant’s sentence was ordered in abeyance until the rendering of a decision upon the application for leave to appeal (decision of Nov. 29, 2015).

 

The Respondent's Arguments

 

15.       The Respondent argues that leave to appeal should not be granted since the application concerns the way that current case-law rules were applied in the matter of a specific applicant. Furthermore, the Applicant's primary arguments are directed at findings of fact of the lower courts, and the interpretation of the information filed against the Applicant, and for this reason, as well, the application raises no issue that justifies granting leave. On the merits, it was argued with respect to the offense of inciting racism, that the Applicant's words fulfill the criteria of the near-certainty test of causing a risk. The Applicant's conscious choice to intentionally mention one of the most blatant symbols of hatred of Jews in such a charged situation, and intentionally tie it to a call to protect the Al Aqsa mosque, leads to the conclusion that the purpose of his words was to incite racism. As to the offense of inciting violence, it was argued that one cannot accept the Applicant's argument that his call for an intifada was a call for a global, non-violent, awakening, and that the assumption that the audience understood the speech in an abstract manner, and not literally, stretches the imagination. Furthermore, the context, taken together with statements relating to terrorism and murder committed by the Israeli government, while highlighting the "Al Aqsa", creates, under the circumstances, incitement to violence. It was further noted that the combination of the content along with the circumstances fulfill the offense's probability element that there be a real possibility that the words will lead to violence or terrorism. This is, inter alia, in light of the speaker's prominent status, the audience, the scope of the publicity, the public atmosphere, and the location and subject of the sermon.

 

16.       As to the sentence, it was argued that the Applicant's punishment directly derives from the extraordinary combination of aggravating circumstances in which his actions were committed, and from the blatant violation of the protected values for which the incitement offenses were enacted. It was further argued that the claim of selective enforcement is unbefitting, since the Applicant's matter was treated severely due to his status and the other circumstances of the matter. It was further noted that this is not a precedent-setting punishment, and even if it were, it would not constitute grounds for granting leave to appeal. The Applicant's sentence is measured and precise given the circumstances, and the punishment imposed is very far from the maximum punishment prescribed for each of the offenses of which he was convicted.

 

As to the argument that the offenses, in their essence, overlap and justify one penalty, it was noted that each offense relates to a different part of the sermon and violates a different protected value.

 

The Hearing before the Court

 

17.       In the hearing on January 26, 2016, the Applicant's attorney referred to HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General (2015) (hereinafter:  the Torat Hamelech case), and emphasized that in that matter it was ruled that in order to  maintain a conviction for inciting racism, the  racist statements must be clear, unequivocal and easily understood by those hearing them, which is not so in the case at bar. It was emphasized that the blood-libel narrative is not known to everyone, and that we must ask ourselves whether we are dealing only with a racist opinion or with inciting racism. It is to be noted that, as argued, the law does not prohibit maintaining a racist opinion, but rather prohibits racist practices. As to the offense of inciting violence, it was argued that, in the matter at hand, there was no real possibility of violence. Furthermore, the meaning of the term "intifada" – as noted – is the transfer from a state of passiveness to a state of awakening. Additionally, it was argued that the Applicant's call was addressed to the entire Arab nation and to a non-specific public, and therefore, it is certainly not a call that could lead to a real possibility of violence. As to the matter of punishment, it was noted that the Applicant was judged more severely than a Jewish person accused of committing similar offenses.

 

18.       The attorneys for the Respondent replied that the test in the offenses of inciting racism and inciting violence is always an integrated  test of content and circumstances. They explained that we are concerned with a respected leader who, just the day before, was prohibited from entering the Temple Mount, who stood before a frustrated audience that was not permitted, under the circumstances, to enter the Al Aqsa mosque for Friday prayers, and who delivered a carefully planned sermon. His words fired the unrest and included motifs of blood, war, and battles. He called for praising martyrs, and at the end of the sermon, he made a clear call for an intifada. If that were not enough, the Applicant himself stated, in real time, that he knows that he is inciting. As for the Torat Hamelech case, it was argued that that case addressed a religious text as opposed to a political one, and that in the case at hand there is no value that the text wishes to protect, and that understanding the text and drawing proper conclusions do not demand extraordinary sophistication from the reader. As to the punishment, it was argued that it is not unduly severe and that we are currently witnessing the devastating force of incitement more than ever. Therefore, the court's clear voice should be heard not only on a punitive level, but also as a deterrent, both for the masses and for individuals.

 

Discussion and Decision

 

19.       In light of the  questions of interpretation raised by the case, and especially the broad implications of the matter, we have decided to grant leave to appeal and to hear the application as though an appeal was filed pursuant to the leave granted. I shall recommend to my colleagues that we not grant the appeal on the decision, and that we grant the appeal, in part, in regard to the sentence, as shall be explained.

 

The Offense of Inciting Racism

 

20.       The offense of inciting racism is to be found in sec. 144B of the Penal Law:

 

(a) If a person publishes anything in order to incite racism, he is liable to five years imprisonment.

(b) For the purposes of this section, it does not matter whether the publication did cause racism, and whether or not it is true.

 

Racism is defined in Section 144A of the law:

 

In this Article, “racism" – persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin.

 

An extensive discussion of the elements of the offense of inciting racism was presented in CrimA 2831/95 Rabbi Ido Elba v. State of Israel, IsrSC 50 (5), 221 (1996) (hereinafter: the Elba case). The case was heard by a bench of seven justices, and the majority was divided on a number of matters (see Y. Nehushtan "Finding the Ratio Decidendi in Cases of Plurality Decision," 50 (2) HaPraklit 631, 638(5770)). In the Torat Hamelech case, it was explained that in the Elba case the Court was required to first address the question whether the "anything" published pursuant to the language of Section 144B must be inherently racist in order for the offense to materialize. Second, there was a disagreement regarding the need for a near certainty of actual incitement in order for the offense to materialize. According to President Barak's opinion, near certainty is necessary; according to Justice  Mazza, it is not necessary. A third disagreement that arose in the Elba case related to the “foreseeability rule” [dolus indirectus] under sec. 20(b) of the Penal Law – whether the rule applies only to result crimes, or also to conduct crimes that comprise an element of purpose. In the Torat Hamelech case, we did not find those questions relevant to the matter (it should be noted that Justice Joubran, dissenting, discussed the matter of the “foreseeability rule” at length, due to the importance he attributed to applying the rule in offenses of inciting racism), and it appears that these questions are not germane to this application either, since the racist nature of the words or the degree of certainty that the Applicant's words would indeed incite are not at issue, but rather proving the element of a purpose of inciting. There is also no need to rule on the matter of the “foreseeability rule”, in light of the Applicant's clear intention, which emerges from his words, as shall be explained below.

 

21.       I will first briefly address the historical aspect of the "blood libel" narrative. Unfortunately, since the dawn of history, since the days of Haman in the Book of Esther (3:8), Jews have been, and continue to be, the subject of racial persecution all over the world, culminating in the Holocaust of our people in Europe (see my articles: "The State of Israel, the Memory of the Holocaust and the Battle against Antisemitism," in my book Paths of Government and Law: Issues in Israeli Public Law  (5736) 463 (Hebrew); and "Remember what Amalek did unto Thee," ibid., 471 (Hebrew); "On Antisemitism, and the Place and Role of the State of Israel in the War against Antisemitism," 31 Mesua 55-65  (5763) (Hebrew); as well as the pamphlet On Antisemitism (Israel Information Center, 5748) (Hebrew)). The various stories regarding Jews that were disseminated around the world and throughout history are too numerous to count. The best known and prominent is the story of using the blood of Christian children in order to bake Passover matzah. This led to all of the libelous stories about Jews being named "blood libels", an expression that, even today, is used when a person wishes to express strong offense at an accusation. The essence of the matter, obviously without a pretense of exhausting or presenting it as historical research, is presented below.

 

22.       The libel began in England. In 1144, the Jews were accused of killing a Christian child who was thereafter acclaimed as St. William of Norwich. A converted Jew named Theobald of Cambridge testified before the monk Thomas of Monmouth, who had examined the case, that the Jews of Europe conspired to draw a lot each year to determine where a Christian boy would be sacrificed for Passover. Not even one Jew was tried for the accusation, and no one was punished for the murder, but the convert's testimony was perceived as convincing by the masses, and it became the basis for libels in other cities in the decades that followed, which were used to transform those "murdered by the Jews" into saints, to increase the number of churchgoers, and to increase the churches' revenues. The libels moved from England to Germany, to France, and so on, and from the seventeenth century, also to Eastern Europe – Poland and Lithuania -- to Russia, to Muslim countries, and of course, to Nazi propaganda, and was a tool in the hands of antisemites; also see Prof. I. Gutman, “Antisemitism,” The Holocaust Encyclopedia, vol. 1, 98, 104-105 (5750) (Hebrew).  As Prof. Gutman writes, even when a blood libeler such as August Rolling in Prague withdraws "as happens in the cases of libel, the sensational rumor is stronger than the truth that denies it"; see , “Blood Libel,” HaEncyclopea HaIvrit, vol. 26 (5734), 857 (Hebrew) written in part by Prof. Y. Slutsky. Prof. Slutsky also contributed the article on the "Blood Libel" in Encyclopedia Judaica, vol. 4, 1120 (1972); Prof. S. Simonson, "Blood Libel," 17 (2) Etmol 100 (1991) (Matach Technological Educational Center website). This may have been the beginning, but it was not the end, and blood libels spread across Europe and eventually also to Muslim countries. A blood libel that occurred in Damascus in 1840, following the disappearance of a Christian priest and his Muslim servant, achieved special notoriety. Central figures in the Jewish community in Damascus were accused of abducting and murdering the two in order to use their blood to bake matzah. In an investigation that was conducted by the Governor of Syria, and that was exacerbated by the French Consul, the persons investigated were jailed and tortured, and one of them admitted to the act. Bloody riots broke out in Damascus, which only eventually ended thanks to the intervention of politicians and Jewish public figures from Western Europe. Indeed, blood libels did not cease even in modern times. Even in the last century, Jewish communities were horrified by blood libels in various countries – the Tisza-Eslar blood libel in Hungary and the Mendel Beilis trial in Russia (see in this regard, Dr. M. Kutik, The Beilis Trial: A Blood Libel in the Twentieth Century (5739) (Hebrew)); the Beilis trial was so shocking to Russian Jewry that in a greeting sent by a yeshiva student (N.Z Getzel) to his friend Y.E. Botschko, in honor of the latter's wedding, the writer dates the letter as in the "year of the Menachem Beilis Trial", which, in Hebrew gematriya (numerology), adds up to 5674 (the end of 1913); a letter dated 10^th of Cheshvan 5764, in H. Shalem, From Novardok Through Montreux to Jerusalem, about the life of Rabbi Y.E. Botschko, page 33 (5776) (Hebrew)). The blood libel in Nazi Nuremberg also merits mention, and in the early 1950's the Jewish world was shaken by information from the former Soviet Union regarding the dissemination of blood libels.

 

23.       Renowned author Ahad Ha'am (Asher Zvi Ginsberg) (19^th-20^th centuries), addressed the blood libels in his article "Some Consolation," HaMelitz 14 Tishrei 5653 (1892), reproduced in Complete Writings of Ahad Ha’am (5719) (Hebrew), writing that it "is the solitary case among all cases in which the acceptance [the general acceptance with respect to the characteristics of the Jewish people – E.R] does not make us also doubt… it is completely based on an absolute lie… Every Jew who has been brought up among Jews knows unambiguously that throughout the entire Jewish people there is not even a single individual who eats human blood for heavenly purposes" (p. 71, emphasis original). According to him there is “some consolation” in the lesson that the renewal of the blood libel allows the Jews not to surrender to the allegations and to the "general consensus" regarding the characteristics of Judaism "…and the blood libel shall prove. Here, you see, the Jews are right and perfectly innocent. A Jew and blood – could there be two things more completely opposite? ..."

 

24.       My former teacher General (res.) Prof. Yehoshafat Harkabi, in his important book The Arab Position in the Israeli-Arab Conflict (5728) (Hebrew), addressed the matter of the blood libel and describes (p. 250) – among seven reviewed books – a book published under official Egyptian auspices in 1962, titled Talmudic Human Sacrifices, a reprint of a book from 1890, which speaks of "… an indictment … relying on clear-cut evidence … that this nation allows bloodshed and makes this a religious obligation which was prescribed by the Talmud …". That same book addressed the Damascus Libel of 1890 (preceded by the more famous libel of 1840), regarding a young man "who was slaughtered by the Jews in Damascus and whose blood was sucked to be mixed in the Passover matzah dough". Harkabi presents additional books that were published in Egypt during the 1950's and 1960's, and one of which states (1964 – official publication): "The God of the Jews does not suffice with animal sacrifices, but rather it is necessary to appease him with human sacrifices. Thus the Jewish custom of slaughtering children and sucking their blood to mix it in the Passover matzah" (ibid., p. 252). Harkabi ends on an optimistic note (254): "The blood libel as presented in these seven books is terrifying, but the blood libel is not common in the literature regarding the conflict, and it should not be assumed that it was assimilated by the Arab public. It is also possible that it is foreign to the Arabs’ basic attitude towards the Jews, since in the Muslim countries the Jews were not accused of atrocities such as blood libels, poisoning wells and dispersing plagues, as in Christian Europe, and therefore, perhaps one can hope that these ideas will not be accepted. The value of this story is as a symptom, as to what lengths hatred towards Israel can go"; see also note 31 on p. 455 on the historical dimension; and additionally, in another place the Jews are described in Arab literature regarding the conflict, inter alia, as "blood suckers" (p. 315).

 

25.       Some researchers have theorized that the blood libels developed in light of the Christians' erroneous understanding of Jewish customs. Thus, contrary to the customary approach, it has been suggested that the blood libels flourished during the period of the Crusades, based on the Jews' choice to commit suicide and kill their children and their loved ones "for the sake of sanctifying God" so that they would not be forced to convert to Christianity. An event in which dozens of Jews died "for the sake of sanctifying God" occurred in York, England, on March 16, 1190 (I. Yuval "Vengeance and Damnation, Blood and Defamation: From Jewish Martyrdom to Blood Libel Accusation," 58 Zion 33 (5753) (Hebrew)). According to Prof. Yuval, the Christians interpreted the parents' sacrifice of their children for the sake of sanctifying God as lust for murder that was also directed towards Christian children. There were also writings about the connection between the customs of the Purim holiday, and particularly the hanging or burning of Haman and the drawing of lots, and the stories of blood libels (these led to serious controversy; see E. Fleischer's incisive critique "Christian-Jewish Relations in the Middle Ages – Distorted," 59 Zion 267 (5754) (Hebrew), and Yuval's response ibid., and in Yuval's book Two Nations in Your Womb: Jews and Christians – Mutual Perceptions (5760); G. Mentgen "The Creation of the Fiction of the Blood Libel," 59 Zion 343  (5754) (Hebrew); Cecil Roth "The Feast of Purim and the Origins of the Blood Accusation: 8.04 Speculum 520-526 (1933).)

 

26.       In this context, it is difficult not to mention a later incarnation of blood libels – the Protocols of the Elders of Zion. This publication included alleged discussions from confidential meetings held by the elders of the Jewish people during the First Zionist Congress in 1897 conspiring to constitute a world Jewish kingdom that would control the gentiles. The version that was common around the world was written by a Russian priest, Sergei Nilus, and first appeared in 1905 in his book "The Great within the Small". After the Russian revolution and Germany's defeat in the First World War, this essay was distributed widely and translated into many languages (see the article by S. Laskov, "Who Wrote the Protocols of the Elders of Zion," in 18 (6) Et Mol: Iton Letoldot Eretz Yisrael Ve'am Yisrael  110 (1993) (Hebrew)). See also N. Cohn, Warrant for Genocide, The History of the "Protocols of the Elders of Zion" (1971) (Hebrew); see also Judge H. Ben-Itto's important book The Lie that Wouldn't Die: The Protocols of the Elders of Zion (5758) (Hebrew) (English edition: 2005); my essay "'The Protocols of the Elders of Zion' in the Arab-Israeli Conflict in the Land of Israel in the 1920's," 25 Hamizrach Hachadash 37-42 (5737) (Hebrew), reprinted in 3 Biruach Mizrachit 54-58 (Israel Oriental Society, 2006); and Harkabi, ibid., 212-219).

 

27.       Returning to the case at hand: There is little doubt as to the  racist views of the Applicant himself, and upon reading the entire sermon that is the subject of the case, it cannot be viewed as other than racist. However, as was noted in the Torat Hamelech case (para. 32), and as the Applicant's attorney repeatedly emphasized, the question is not the racism of the speaker, but whether the elements of the offense were fulfilled. Before us is a text that the Applicant tried to paint in subdued colors, and that the Respondent tried to paint in vibrant colors, and we must examine its contents and circumstances as a whole. In the case before us, I am of the opinion, like the District Court, that an examination of the statement, and particularly the part upon which the Respondent grounds its arguments, indicates that it is directed at the State of Israel and the Jewish public per se, and that it is extremely difficult to perceive it as directed at another public – Crusaders, Bosnians, Chechens – as the Applicant argues. It appears to me that the matters are as clear as the noon-day sun, and the Applicant's intention comes through loud and clear. A straightforward reading of the part to which the Respondent referred, along with the Applicant's other statements in the sermon, does not leave room for doubt that the intention was not criticism or aspirations regarding the "Israeli occupation" in Jerusalem. In one breath, the sermon includes statements regarding the Israeli establishment, according to which "our blood is in its food, our blood is in its drink, and our blood moves from one terrorist general to another terrorist general". This was the preface, and then it continues with a description of the blood of children mixing in the dough of the holy bread, stated as an antithesis to the behavior of the Muslim public which will preserve the "honor of the synagogues of the Jews". The reference to the kneading of the dough of the holy bread was mentioned in the same breath, as stated by the District Court, with the "children of Europe", in a sermon that in its entirety referred to the relationship between Muslims and Jews. To this one must add the circumstances of the sermon, and not ignore common sense. "We (the Muslims whom the Applicant leads – E.R.) have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children (we don't – but who does? Here is the answer – E.R.) "and those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough (meaning – there are European children whose blood was used to knead the holy bread – E.R.). And now come the rhetorical questions, "Good God. Is that religion? Is that what God wants?" The Applicant is a well-known figure in the Arab world and in Israel. He is one of the religious leaders of the Muslims in Israel. He was tried for security offenses and harming security forces, and was imprisoned therefor. His speech was delivered before a large, angry, emotional crowd near the Temple Mount. It is clear that the sermon was organized and planned, and that the public atmosphere was explosive in light of a claim of harming the Al Aqsa mosque. There is no need for sophistry to understand the essence of the matter. Furthermore, it is clear that one cannot view what was said in a manner that is detached from the broad context – the Israeli-Palestinian conflict, in general, and the Temple Mount conflict, in particular. As the Respondent well stated, the Applicant's choice to mention one of the most blatant symbols of hatred of Jews, in that charged situation, and to tie it to the call to protect the Al Aqsa mosque, leads to the inevitable conclusion that the purpose of his words was to incite racism. I listened carefully to the words of the learned defense counsel, who in his interpretation attempted to present the story differently. Unfortunately, however, a proper look at what was said, in the entire context, does not support that attempt.

 

28.       As to the argument that the Applicant did not intend to refer to the famous blood libels, and that this is evidenced by the fact that he referred to the "holy bread" which is attributed to Christianity, and not to Passover matzah – we should clarify that the holy bread is part of the Christian Eucharistic ceremony called the "liturgy" (the meaning of the word "liturgy" in Greek" is "public worship"). In this ceremony, the priest breaks the bread and pours the wine, symbolizing the body and blood of Jesus, and according to Christian tradition, while their appearance does not change, their substance changes in a process referred to as transubstantiation. The ceremony mentions the last supper of Jesus and his disciples, those who spread his Gospel. In Arabic, the holy bread of the Christian ceremony is called خبز القربان or القربان (Khubz al-Qurban or Al-Qurban) – the bread of the sacrifice, while the Applicant employed the term الخبز المقدس (Al Khubz al-Muqaddas) – the holy bread. This distinction reinforces, but does not in and of itself determine, the position that the Applicant did not refer to the Christian holy bread, but rather to special bread eaten on a Jewish holiday. As mentioned, the Applicant stated, while contrasting to Jews, that "We have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children". We learn from these words, as well, that his intention was to compare the Ramadan holiday to another holiday (the Passover holiday), and not to a routinely occurring ceremony (the Liturgy ceremony). Ultimately, there is nothing else left to be said, and it is clear to me that anyone who showers a riled up audience with strong words to the effect that the Jews knead dough with children's blood – and this doesn't require much sophistication – is simply inciting racism.

 

29.       As noted, the Applicant relies on the Torat Hamelech case, which addressed a petition against the Attorney General's decision not to lay charges, inter alia, for inciting racism and inciting violence against the authors of the Torat Hamelech book due to insufficient evidence;. It would not be superfluous to note that the Torat Hamelech case concerned administrative review of the Attorney General's decision. The Court's role in such a case, and the scope of its intervention, are materially different than those in criminal law, after an information was filed and evidentiary proceedings were held.

 

30.       Moreover, in the Torat Hamelech case the reader of the essay which was the subject of that case must apply punctilious Talmudic logic to a religious-halachic text in order to understand its intention. It is not clear whether the book specifically incites against the Arab public; whether the violent norms described therein apply exclusively to the State and the security forces, or to private people as well; or whether or not it constitutes a "halachic examination" that is relevant primarily to times of war. In the case at hand, there is no need to be an especially "learned scholar" to understand what the Applicant meant. The issues were placed "on the table", and do not require discussion. It should be added that in the Torat Hamelech case, my colleague Justice Joubran was of the minority opinion that in light of the reality of our times and the social climate upon which he elaborated, it is necessary to lower the bar for filing charges in regard to the offense of inciting racism, which, in his opinion, was too high. In his view, the excessively high bar that the Attorney General set was expressed in a number of points in his decision in that case, including narrowly interpreting the element of the purpose element in the offense of inciting racism, and the lack of reference to the “foreseeability rule”; analyzing content in a manner that was lenient with the authors; and a faulty comparison to the Elba case. Examining the Applicant's words in accordance with the criteria upon which my colleague Justice Joubran elaborated in the Torat Hamelech case would, a fortiori, indicate that the Applicant's words, which, as mentioned, do not require deep interpretation as was necessary in regard to the "Torat Hamelech" halakhic text, amount to incitement.

 

31.       In summary, we do not grant the appeal on the conviction of the offense of inciting racism.

 

The Offense of Inciting Violence

 

32.       I am of the opinion that it is also inappropriate to grant the appeal with respect to the conviction for inciting violence. This offense is grounded in Section 144D2 of the Penal Law:

 

(a) If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence or terror (in this section: an inciting publication) and if – 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, he is liable to five years imprisonment.

(b) In this section, "act of violence or terror" – an offense that causes a person bodily injury or places a person in danger of death or of severe injury.

(c) The publication of a true and fair report about the publication prohibited under subsections (a) and (b) does not constitute an offense under this section.

 

As noted, the Respondent wished to ground the Applicant's conviction of this offense on his words: "It is now your duty to instigate an Islamic Arab intifada from ocean to ocean".

 

According to the Applicant, the term "intifada" means awakening, and his entire intention was a global awakening of awareness and protest, but not of violent acts. It is very difficult to accept this argument. This term, which has become as customary and common as if it has been here forever, referred, in day-to-day discourse at the relevant time, to two periods of uprisings that were characterized by acts of terror – 1987-1991 and 2000-2005. The first period was particularly, but not only, characterized by rock throwing; the second period was particularly, but not only, characterized by suicide bombers and numerous casualties. This term became a "generic name" for a violent Palestinian uprising. To clarify, see the definition of the term "Intifada" in the Even Shoshan Dictionary (Updated and Revised for the Millennium) (2007)): "The name of the uprising of the Arab population in the areas of Judea, Samaria and the Gaza Strip, against the Israeli control thereof". It is easy to understand that this is how the term is perceived by all, and perhaps a fortiori, by those listening to the words of the well-known Applicant from whom there is no reason to understand them other than literally. It is inappropriate to be disingenuous and to use "classical dictionary" terminology, i.e., intifada in the basic dictionary sense of "awakening". Furthermore, the argument that the sermon was aimed at a universal and not a particular audience does not change the state of affairs. Nor does it transform the Applicant's words into a theoretical, abstract approach, lacking any practical content in Israel or abroad.

 

33.       Indeed the Applicant's learned counsel claimed that mentioning a "judge or a scientist" as the audience of the call indicates that it was not violent by its nature. This argument is captivating, but given the meaning of the term that has already been established and is deemed a matter of judicial notice, it is difficult to accept.

 

34.       In LCrimA 2533/10 State of Israel et. al. v. Michael Ben Horin (2011) (hereinafter: the Ben Horin case), upon which the parties and the lower courts elaborated, it was ruled that the offense of inciting violence is conditioned upon the fact that the publication, by its contents and circumstances, shall, with a probability of a real possibility, cause an act of violence to be committed. It was explained that it is necessary for there to be a linkage between the publication and the actual outcome in accordance with the real possibility criterion "not more than that but not less than that" (para. 6, per Hendel J.), and that the Court must examine the case in its entirety, without determining primary criteria in advance. It was ruled that, inter alia, consideration shall be given to the identity of the publisher and to the public atmosphere, to the type of violence at hand, to the scope of the group exposed to such violence, to the scope of the publication and its target audience, to the context, the location and the media of the publication: "One must ask, inter alia, who said, what was said, where it was said, in what manner it was said, to whom it was said and in what framework it was said" (para. 7). The Combating Terrorism Bill, 5775-2015 (Government Bills 5775, 1067), is interesting in this context, as it draws a distinction between "calling to commit an act of terror", for which it is not necessary that the call result in an act of terror being committed in order for the elements of the offense to be fulfilled, as opposed to the alternative of "publishing words of praise, identification, support, approval or encouragement, with respect to an act of terror", which includes a probability criterion, which is different than the existing one ("reasonable possibility… of committing an act of terror or committing an offense of violence") (sec. 27). It was noted in the Explanatory Notes of the bill that the "proposed probability criterion strikes a proper balance between the need to prevent an infringement of the values protected by the prohibition, and the protection of the principle of freedom of expression, as opposed to the real possibility criterion, which is difficult to assess and prove, and therefore, does not allow sufficient protection of the values that are protected by the prohibition, considering the anticipated damage from the mere inciting publication" (p. 1096); regarding the matter of the legislative chain of events that led to the current draft of the law, see also the Torat Hamelech case, paras 75-77.

 

35.       As noted, the Applicant is a well-known, influential figure among the Arab public, who delivered a speech to an angry crowd, near the Temple Mount at Friday prayers, the Muslim's holy prayers, during a period in which the streets of Jerusalem, and particularly in the areas populated by Arabs, were roiled. As was also explained by the lower courts, the general context of the sermon delivered by the Applicant, the repeated use of the word "blood" and his words "we will meet God as martyrs in the area of the Al Aqsa mosque", make it difficult to err as to the meaning of his words. It appears to me that it is evident to any reasonable person that we are not dealing with a theoretical discussion, but rather with a practical call. And in order to remove any doubt, the Applicant's words in real time testify as to his intentions: "It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa and they are coming and telling me you are inciting. So, my brothers, I am telling you, and I am saying that we are not alone in this struggle." The combination of the content of the words and the circumstances indeed fulfills the requirement of a real possibility that the Applicant's words would lead to violence, sufficient to ground the elements of the offense. The conviction of the offense of inciting violence is upheld.

 

36.       Last, but not of least importance, I would note that we are cognizant of the status of freedom of expression in our system, the importance of its reinforcement, and the restraint required in applying criminal law in such contexts. However, as has also been emphasized on more than one occasion, freedom of expression does not stand alone (LCA 10520/03 Ben Gvir v. Dankner (2006); and see my dissenting opinion in CFH 2121/12 Anonymous v. Dr. Ilana Dayan, (2014), paras. 27-40), and there are exceptions that are worthy of criminal investigation. In the Torat Hamelech case, I referred (para. 58) to the caution of the Attorney Generals in exercising their authority to approve an information in the matter of inciting racism and inciting violence. I shall stress that in making such a decision there is even some room for consideration of the possibility that filing an information actually affords exposure and publicity to deviant, hateful expressions, and thus somewhat rewards the person wishing to incite. I am of the opinion that the case at bar clearly crossed the limits of legitimate, even if harsh and outrageous, freedom of expression. The Applicant's words went far too far.

 

37.       Having said that, it is important to emphasize loudly and clearly, one cannot but be outraged by expressions of hatred that are directed towards any person or public whose only sin is their religious affiliation, their national origin, race or color, and we must all, and certainly the courts, take a stand against such expressions of hate, and must unequivocally denounce them. This is the long and short of the matter. Our ruling does not derogate in any manner from the obligation to act for equality for Arabs in Israel (and see my article "On Equality for Arabs in Israel," in my book Paths of Government and Law: Issues in Israeli Public Law, 276 (5763) (Hebrew)), since "I have had the opportunity on more than one occasion to repeat such words regarding equality for Arabs… out of deep conviction – that it can be different – in a state that not only by its definition is Jewish and democratic, and  whose the Declaration of Independence speaks of equality, but which has a historical ethos of the persecution of our people throughout its history as victims of racism, we are commanded to treat minorities equally" (the Torat Hamelech case, para. 37), and nothing more need be said.

 

38.       In conclusion:  the appeal of the decision is denied.

 

The Sentence

 

39.       As to the punishment, both parties addressed the forces pulling in each direction – the extraordinary severity of the words that were spoken by the Applicant, on the one hand, and the fact that he was not convicted of other offenses, as well as the prevailing punitive policy, on the other hand. The normative issue in the case at hand concerns the severity of the act, and it is here that I agree with the position of the Respondent, in principle. I am of the opinion that the range of punishment that the Magistrates Court proposed is appropriate, considering the interests and values concerned. As for the punishment itself, the case law varies; see the Ben Gvir case, which imposed community service and a suspended sentence for offenses of inciting racism and supporting a terrorist organization, and the Federman case, which imposed community service and a suspended sentence for offenses of inciting racism, inciting violence and criminal attempt; as opposed to CrimC (Jerusalem) 44725-12-14 State of Israel v. Shalabi (2015) which imposed a nine-month custodial sentence, as well as a suspended sentence for offenses of inciting violence and supporting a terrorist organization, and CrimC (Jerusalem) 44930-21-14 State of Israel v. Aabdin (2015), which, inter alia, imposed a ten-month custodial sentence and a suspended sentence for offenses of inciting violence and supporting a terrorist organization. However, no single case is similar to another. Indeed, in the Federman and Ben Gvir cases, in 2008 and 2010, respectively, actual imprisonment was not imposed, as it was in other cases (see for example CrimA 71624/04 Paniri v. The State of Israel (2007), in which the defendants were convicted of offenses of defacing real estate and inciting racism), but given the increasingly widespread expressions of ideologically-based violence and hatred, the case-law trend has been increasingly strict, both to deter and as an expression of deep contempt for and revulsion at such statements and actions (see the recent decision in CrimA 5794/15 State of Israel v. Tuito (January 31, 2016), in which the punishment of the perpetrators of the arson of the Bilingual School in Jerusalem was increased). Additionally, the Applicant's attorney argued that the cases he cited, like the case at hand, concerned influential personages, and as noted, custodial sentences were not imposed. However, the cases would not appear comparable. In the case at bar we are faced with a person who is a very influential religious and spiritual leader, as opposed to the figures the Applicant's attorney mentioned who are not clergymen, and whose influence extends only to limited publics.

 

40.       Lastly, I am not persuaded by the argument that since we are addressing two offenses that relate to the same act, and in light of their nature, it was inappropriate to increase the Applicant's punishment following his conviction for the offense of inciting racism. Section 186 of the Criminal Procedure (Consolidated Version) Law, 5742-1982, prescribes: "The court may convict a defendant for each of the offenses for which his guilt is supported by the facts proven before it, but it will not punish him more than once for the same act." In CrimA 9826/05 Jamal Mahajna v. State of Israel (2008), this Court addressed the interpretation of the phrase "the same act" and the criteria therefor, stating that "the factual-typological test analyzes the entire set of facts composing the criminal event, and examines whether the defendant's criminal conduct constitutes a single, indivisible physical act, or a series of acts that can be divided and distinguished. The substantive-moral test examines the nature of the harm the specific offense caused, the nature of the interests protected by the offense, the importance of the value that was infringed, and the nature of the moral considerations that underlie the protection of the victim of the offense. In the said framework, considerations of deterrence are also taken into consideration, which concern granting due weight to the severity of the offense in the framework of punishing the offender, in order to send a deterrent message to potential criminals" (para. 18, per Beinisch P.). It is only natural that there is a partial overlap of the protected values that underlie each of the offenses that are the subject of the application, such as protecting public safety – and this is true with respect to many other offenses that are not related to expression and incitement – however each of them comprises additional protected values. Moreover, and of no less importance, as has already been noted, we are addressing different and separate parts of the Applicant's sermon, each of which, in and of itself, fulfills the elements of the relevant offense.

 

41.       Nevertheless, and not without some hesitation, I am of the opinion that a degree of leniency would be in order. The lower courts gave appropriate thought to the various considerations and concrete circumstances, however in light of the fact that in the nine years that have passed since the event, the Applicant has not committed additional, similar offenses, and in light of the punitive policy that prevailed at the time, it would appear just to show some leniency. The Applicant's sentence shall, thus, be set at nine months of imprisonment, and the suspended sentence shall remain unchanged.

 

42.       Conclusion and summary: I propose that we deny the appeal of the District Court judgment, and uphold that decision. As for the sentence, I propose that the Applicant's sentence be reduced as stated in paragraph 41. The Applicant shall report to the Nitsan Detention Center on May 8, 2016 by 10:00, to begin serving his sentence. The terms of release shall remain unchanged until that time.

 

Deputy President

 

Justice S. Joubran:

 

I have read the opinion of my colleague Deputy President E. Rubinstein, and while I concur with the conclusion that the Applicant's conviction of the offense of inciting racism should be upheld, I am not of the opinion that it was appropriate to convict him of the offense of inciting violence. Were my opinion heard, I would recommend acquitting the Applicant of that offense, and accordingly reducing his punishment such that he would serve his sentence by way of community service.

 

The District Court unanimously convicted the Applicant of the offense of inciting racism, and convicted him of the offense of inciting violence by a majority opinion of Judges D. Mintz and E. Nachlieli-Khayat, with Judge A. Romanoff dissenting. My opinion is as that of the dissenting Judge Romanoff, as I shall explain below.

 

As noted in my colleague's opinion, the Applicant’s conviction on the offense of inciting violence is based on the following words in the sermon he delivered in Jerusalem:

 

We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now, it is now their duty to assist the Palestinian nation. It is now their duty instigate an Islamic Arab intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa mosque.

 

As opposed to the offense of inciting racism, in order to convict of the offense of inciting violence it is not sufficient to say things of an inciting content. Rather, one must examine whether the content and the circumstances of the publication present a real possibility of resulting in terror or a violent act (HCJ 2684/12 The 12^th of Cheshvan, The Movement for the Strengthening of Tolerance in Religious Education v. Attorney General, para. 9 of my opinion (December 9, 2015); LCrimA 2533/10 State of Israel v. Ben Horin (December 26, 2011)).

 

The Applicant argues that he did not mean to arouse a violent intifada, and during his interrogation by the police, he explained his intentions as follows:

 

I said that we covet all of the elements of the Arab and Islamic heritage – its leaders, clergymen, media, parties and family and non-family institutions and nations to instigate an intifada that supports holy Jerusalem and the blessed Al Aqsa mosque. And the meaning is completely clear – it is an invitation to devote our best efforts in order to preserve their duty to protect holy Jerusalem and the blessed Al Aqsa mosque. And this is the leaders' role, which is expressed in a political role, and this is also the same role of clergymen to make people fond of the Al Aqsa mosque. And this also relates to the media that need to emphasize the problem in Jerusalem and at the blessed Al Aqsa mosque. This is also expressed in the parties and the family institutions and the nations that need to emphasize and apply pressure on their leaders to take a political initiative to support holy Jerusalem and the blessed Al Aqsa mosque (ibid., lines 86-95; emphasis added – S.J.).

 

In his testimony before the Magistrates Court, the Applicant testified as follows:

 

I am not exaggerating that the specific word intifada is an international word, and the Jews also use this word. Shulamit Aloni also used this word, and it is also in all languages.

[…]

Its origin is awakening. Intifada means that a person was sleeping and suddenly awoke, and its meaning is that I want to do something, meaning that I am giving all I have to this thing, and therefore now they say an economic or political or educational intifada, today the whole world uses this word. While I say we are calling the governor, the scientist, the parties, the media or the nation to do an intifada, before that I say to them, before I spoke about intifada, I say they should help. After that I say that there will be an intifada. I am calling on them to help the Palestinian people as much as they can, certainly, while I am speaking these words, I certainly, I am not waiting for the governor to do an intifada or how the media will do an intifada, I certainly mean a cultural, political and media intifada" (protocol of the hearing, pp. 26-17; emphasis added – S.J.).

 

I reread both the Applicant's words and the opinion of my colleague the Deputy President over and over again, and I still have doubt whether the content and circumstances of the words amount to a real possibility of leading to an act of violence.

 

My colleague is of the opinion that the combination of the words' content and circumstances fulfills the requirement of a real possibility that the Applicant's words would lead to violence (see para. 35 of his opinion). However, my opinion is different. Indeed the term "intifada" (انتفاضة) generally refers to violent action, but I am of the opinion that in the context in which the words were spoken – upon which I shall immediately elaborate – we cannot dismiss the Applicant's explanation that it was not incitement to violent action, but rather a call for a general, not necessarily violent, recruitment to protect what appeared to the Applicant as a violation of a holy site.

 

We should bear in mind that the sermon that was delivered by the Applicant was made against the background of a claim raised among some of the Muslim public regarding the Israeli authorities' intention to harm one of the holy sites of the Muslim religion – the Al Aqsa mosque. This is evident from the Applicant's repeated emphasis in his sermon that the matter at hand is not a local matter that relates only to local residents, but rather a matter that concerns  all the members of the Islamic faith per se.

 

This background must be considered in the framework of examining the circumstances of the publication, in order to reach a conclusion regarding the real possibility of matters leading to violence. In my opinion, there is signal importance to the universality of the audience addressed in the sermon in understanding the meaning of all of the words stated above. It is my opinion that the fact that the Applicant was not speaking to a specific, energized, political audience, but rather to a general audience all around the world, reduces the specificity of the call, and consequently reduces the possibility that such a call would, as a real possibility, lead to committing an act of violence. By a gross analogy – just as the universality of the common calls for "world peace" reduce the probable  influence of the call on bringing peace, I am also of the opinion that general calls for a "world intifada" do not have a real potential of resulting in violence.

 

Under these circumstances, I doubt whether the Applicant's sermon could create such "real possibility" of the commission of a violent act, as required by the law,  and therefore, it is my view, as noted at the outset, that the Applicant should be acquitted of the offense of inciting violence.

 

As for the punishment, since I believe that the Applicant should be acquitted of the offense of inciting violence, and since a considerable period of time has elapsed since the event which is the subject of this case, during which time he did not commit additional, similar offenses, I recommend to my colleagues that the Applicant's punishment be set at six months of imprisonment to be served by community service.

 

                                                                                                JUSTICE

 

Justice A. Baron:

 

1.The principle of freedom of expression is one of the cornerstones of a democratic regime. Infringing freedom of expression "is like harming the soul of democracy" (CrimA 255/68 State of Israel v. Moshe IsrSC 22 (2) 427, 435 (1968)). In the words of Justice N. Hendel, "The test of freedom of expression is not when its content is on the straight and narrow, but rather when it is on the margins of its margins. As has been held: Freedom of expression is not only the freedom to express or to hear things that are acceptable by all. Freedom of expression is also the freedom to express dangerous, infuriating and deviant opinions that disgust the public and that it hates' (HCJ 399/85 Kahane v. Managing Board of the Israeli Broadcasting Authority, IsrSC 41(3) 255) " (LCrimA 2533/10 State of Israel v. Ben Horin, para. 5 (December 26, 2011); hereinafter: the Ben Horin case). However, as any other constitutional right in Israeli law, the right to freedom of expression is not absolute, and it may retreat before other important interests and principles. The criminal prohibitions of inciting racism and violence were meant to protect the existence of the State of Israel as a Jewish and democratic state, human dignity and equality among people, social order and public safety (see: the opinion of President A. Barak in CrimA 2831/95 Elba v. State of Israel IsrSC 50 (5) 221, 285-286 (1996); hereinafter: the Elba case). Indeed, these offenses naturally infringe freedom of expression to a certain degree. However, there is no doubt that such infringement serves a proper purpose. The proportionality of the infringement depends upon the interpretation given to the offenses of inciting racism and violence.

 

In all that regards Ra’ed Salah's sermon, the essentials of which were cited by my colleague Deputy President E. Rubinstein, I am of the opinion that there is no difficulty drawing the line between words that are protected by the principle of freedom of expression and statements that amount to a call for racism, violence and even terror, and which constitute a real danger to public safety and are therefore prohibited. The speaker's words shout. The speech was charged and provocative, it was delivered during tense times and in a tempestuous atmosphere as a result of the prohibition of prayers at the Al Aqsa mosque, and the speaker explicitly calls for violent action against the State of Israel and the Jewish people. Therefore, I concur in the opinion of my colleague the Deputy President that the appeal on the ruling should be denied and that the District Court's judgment should be upheld.

 

2.The Applicant, Sheikh Ra’ed Salah, is a public and religious leader, a person of standing among Muslim Israeli Arabs. He served in the past as the mayor of Umm-Al-Fahm (1989-2001), and since his retirement from that position, has served as the head of the Northern Faction of the Islamic Movement in Israel – the same faction that was recently designated by the Government as an "unlawful association" (Decision of the Political-Security Cabinet of November 17, 2015). The event being addressed occurred in 2007, and the background was archeological digs that the State was conducting near the Temple Mount, in preparation for restoring the bridge at the Mughrabi Gate in the Old City of Jerusalem. Severe accusations against the State of Israel began to be heard on the Arab street – that it is intentionally destroying archeological findings from various Islamic periods that were found in the area of the dig. Concurrently, prayers at the Al Aqsa mosque were also prohibited. At that point in time, the relationship between Israeli Arabs and the Israeli establishment were particularly charged, and even explosive. This is the setting of the event that is the subject of the appeal, in which Ra’ed Salah was a main actor.

 

On Friday, February 16, 2007, Ra’ed Salah stood on a stage that was set up in the Wadi al-Joz neighborhood in Jerusalem, and delivered a speech. In front of him was a large audience of approximately 1,000 people, including hundreds of Ra’ed Salah's supporters who had arrived from the Northern region, as well as many media outlets. As mentioned, the crowds gathered there after they were prohibited entry to the Al Aqsa Mosque for the purpose of Friday prayers and a sermon by Ra’ed Salah. The sermon that he delivered was tempestuous, full of expressions of hatred towards Israel and the Jewish people, and its clear message was that they should be expelled from Jerusalem and from the Al Aqsa mosque. In his speech, Ra’ed Salah repeatedly presented the State of Israel as conducting a bloody battle against the Palestinian people over holy Jerusalem and the Al Aqsa mosque. The speech repeatedly used the words "blood" and "martyrs", and inter alia, Ra’ed Salah accused the Israeli establishment of wanting to build the Temple in Jerusalem "while our blood (the blood of the Palestinian people - A.B.) is still on its clothes, our blood is still on its doors and our blood is in its food, and our blood in its drink and our blood moves from one terrorist general to another terrorist general". It was also stated that the ranks of such Israeli "generals" "were made of the skulls of our martyrs". Ra’ed Salah repeatedly emphasized that the battle for Jerusalem is a bloody battle that is still continuing, and that "We (the Palestinian people – A.B) do not fear other than God. The most beautiful moments in our destiny are when we will meet God as martyrs  in the area of the Al Aqsa mosque". Ra’ed Salah was charged with the offenses of inciting racism and violence for these two specific expressions in the sermon, which I shall now address.

 

3.While describing the day after Jerusalem shall be freed from the yoke of the Jewish occupation, Ra’ed Salah explains to his listeners that the Palestinian people will not take revenge on the Jews, since Palestinians are not child murderers like the Jews, as is told in the famous blood libel:

 

We are not malicious and we shall not be malicious, and we shall also preserve the dignity of the synagogues of the Jews. We are not a nation that is based on values of revenge. We have never allowed ourselves, and listen well, we have never allowed ourselves to knead the bread of the meal that breaks the blessed Ramadan fast with the blood of children. And those of you who want a more detailed explanation, ask what happened to some of Europe's children whose blood was mixed in the holy bread's dough. Good God, is that religion? Is that what God wants? God will yet deal with you for what you do…

 

For these words, Ra’ed Salah was charged and convicted of inciting racism. Further on in his sermon, Ra’ed Salah called upon his listeners to instigate an intifada to free Jerusalem and the Al Aqsa mosque.

 

We are asking each Muslim and Arab in the Islamic and Arab present, be it a judge or a scientist or a party or a public institution or factions or nations, we aspire from them now, it is now their duty to assist the Palestinian nation. It is now their duty to instigate an Islamic Arab Intifada from ocean to ocean, in support of holy Jerusalem and the blessed Al Aqsa' mosque.

 

For this call for an intifada, Ra’ed Salah was charged and convicted of inciting violence.

 

4.Section 144B(a) of the Penal Law, which addresses the prohibition of inciting racism, instructs that "If a person publishes anything in order to incite racism, he is liable to five years imprisonment". This is a conduct crime: the "publication" is the actus reus; the "anything" is the circumstance; and "in order to incite" is the mens rea. A number of questions have arisen in case law regarding the manner of proving these elements, and inter alia, there is a view that the "anything" that is published must comprise a racist message which could, with near certainty, harm public safety (see: the Elba case, pp. 290-291, per Barak P.; and HCJ 2684/12 The 12^th of Cheshvan the Movement for the Strengthening of Tolerance in Religious Education v. Attorney General, para. 9, per S. Joubran J. (December 9, 2015); hereinafter: the Torat Hamelech case). In the Torat Hamelech case, my colleagues Justice E. Rubinstein and Justice S. Joubran disagreed on the question whether one can use the “foreseeability rule” to prove the "purpose" in the offense of inciting racism. However, the case at hand does require that we rule on these weighty questions, since the fulfillment of the actus reus, mens rea ("purpose") and even the probability test ("near certainty") is entirely clear from the sermon itself and the circumstances in which it was delivered.

 

Section 144D2(a) of the Penal Law, which addresses the prohibition of inciting violence or terror, provides that "If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence (in this section: an inciting publication) and if – 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, he is liable to five years imprisonment." The level of proof prescribed for this offense, which is also a conduct crime, is lower than the level of proof for the offense of inciting racism. While the offense of inciting racism requires a special mental element of "purpose", the mental element required for the offense of inciting violence is only awareness. The bar of the probability element in the offense of inciting violence ("real possibility") was also explicitly set lower than the probability criterion set by case law for the offense of inciting racism ("near certainty") (see: the Torat Hamelech case, paras. 75-76, per Rubinstein J. (December 9, 2015)). The elements of the offense of inciting violence are also entirely met by Ra’ed Salah's sermon, as I shall explain:

 

The incitement offenses are based on expressions –  on words. As such, the fulfillment of the elements of the offenses – including the meaning of the words, the extent of the attendant damage, and the intention of the speaker – are deduced from the content of the inciting publication and the entirety of the circumstances:

 

Of course, the identity of the publication, the publisher and the public atmosphere are important facts, as noted, but they do not stand alone. Additional considerations should also be considered, such as the type of violence concerned, the scope of the group exposed to such violence, the scope of the publication and its target audience, the context, the location and the media used for the publication. One must ask, inter alia – who said, what was said, where it was said, in what manner it was said, to whom it was said and in what framework it was said" (the Ben Horin case, para. 7).

 

It should be noted that this was stated in the context of the offense of inciting violence, however it applies, mutatis mutandis, to the offense of inciting racism (see: the Torat Hamelech case, para. 77).

 

5.Ra’ed Salah argued before us that his words should not be interpreted literally – but rather the sermon should be "read sensitively", and his calls should be heard through a "constitutional ear". In brief, according to Ra’ed Salah, when he called for an intifada he meant the literal meaning of the word – i.e., an awakening, and the message he wished to deliver was a call for a global awakening in the Arab world, for awareness, for protest, and by no means for violent action. With respect to the mentioning of the blood libel in his sermon – Ra’ed Salah denies that his intention was the libel that Jews use the blood of Christian children to prepare Passover matzah. According to him, it was a general reference to crimes committed in the name of religion all over the world, including Crusades in the past, and crimes in Bosnia and Kosovo, for example, in the present. Given the above, according to Ra’ed Salah, the sermon that he delivered is protected by the constitutional protection that is granted to political expression, as part of freedom of expression, even if only by the benefit of doubt.

 

As has already been stated, the words of incitement in Raed Salah's sermon shout out from the page. They cannot be misunderstood. He is indeed attempting now to present the words he spoke as being ambiguous, as such that can be interpreted in a softer manner than that which is attributed to the sermon. However this is nothing more than impossible sophistry and retrospective justification. The meaning of the text is examined as it is heard in real time, by the inflamed audience – and not in "laboratory conditions" and while turning to dictionary definitions. I would reiterate that the same sermon with which we are dealing was heard against the background of a tempestuous, impassioned public atmosphere, which was created when the Al Aqsa mosque was closed to worshipers. Ra’ed Salah, who has a reputation of denying the legitimacy of the State of Israel, added fuel to the fire with his speech. He delivered a sermon full of expressions of hatred and violence against the Jewish people, woven with repeated motifs of "blood" and "martyrs". The well-known blood libel, which is mentioned in Ra’ed Salah's sermon, is a symbol of hatred of Jews. Tying it with the call for an intifada clarifies that the speaker is not calling for an "awakening" as he retroactively claimed – but rather for a violent uprising. It is not superfluous to state in this context that Ra’ed Salah's sermon was delivered by him after he had already been warned by the Orr Commission (Commission of Inquiry into the Clashes Between Security Forces and Israeli Citizens in October 2000), due to his responsibility for the riots that broke out. The Commission, inter alia, found as follows:

 

As the head of the Northern branch of the Islamic Movement, the Mayor of Umm al-Fahm and a public personage, he was responsible during the period preceding the events of October 2000, including the years 1998-2000, for transmitting repeated messages encouraging the use of violence and threatening violence as a means of achieving objectives of the Arab sector in the State of Israel. These messages referred also to the purpose that was defined as freeing the Al Aqsa mosque. Additionally, he held mass meetings and employed tempestuous propaganda methods to arouse an inflamed public atmosphere around this sensitive issue. By all that is stated above, he made a substantial contribution to inflaming the atmosphere and to the violent, widespread outbreak that occurred in the Arab sector at the beginning of October 2000.

 

Moreover, at the time Ra’ed Salah delivered the sermon, there was a restraining order prohibiting him from being in the Old City of Jerusalem or within 150 meters therefrom – after having led an unlawful gathering of approximately 30 people at Dung Gate in Jerusalem, also related to the performance of works at the Mughrabi Gate. Ra’ed Salah was charged with having assaulted one of the policemen that had been stationed there to block the rioters from moving towards the area of the works, having spat at his face, and having muttered to him "you are racists and murderers, you have no honor". For these actions, he was convicted of offenses of participating in a riot and assaulting a police officer in order to prevent him from performing his duty, and was sentenced to imprisonment and monetary damages to the policeman.

 

6.Hence, the contents of the sermon and the entirety of the circumstances surrounding the situation in which it was delivered, clearly testify to the existence of the actus reus and the mens rea required for the offenses of inciting racism and inciting violence. Using words carries great, and even, at times, destructive, power; therefore it has been said: "Death and life are in the power of the tongue" {Proverbs 18:21]. Leaders and public figures have a heightened duty in this regard, and particularly in the charged climate of the Israeli-Palestinian conflict. The words of my colleague Justice S. Joubran are particularly apt:

 

Ill winds of racism and hatred of the other which are blowing in our country are leading to more frequent, racist and religious-based violent outbursts. Racist expressions are expressed not only on street corners, or by speakers who represent "extreme margins", but also by public figures and politicians who are considered part of the mainstream of Israeli society (Yuval Karniel ”Racism, Media and Defamation – Can a Racist be Called is a 'Nazi'?" 11 Hamishpat 409, 434 (5767) (hereinafter: Karniel) (Hebrew)). In the current climate – in which inciting racism and violence has become a common sight – there is a clear need for the authorities responsible for the enforcement and implementation of the law to stand strong and assist in eradicating the phenomenon.

…

I am of the opinion that in this reality in which words of incitement written with a sharp pen lead, on more than one occasion, to lethal use of a sharp knife, we are obligated to consider cases such as the one before us with greater diligence, including charging and convicting in appropriate cases. (the Torat Hamelech case, paras. 12-13).

 

7.Now to the sentence. As is well known, it is not customary for an appeal instance to intervene in sentencing, except in extraordinary cases of significant deviation from proper punitive policy or a material error in the sentence. This is all the more relevant when we are concerned with a third incarnation of proceedings. I would not have intervened in the sentence imposed upon Ra’ed Salah for the offenses of which he was convicted – even though it was at the high end in comparison to other cases addressed in the case law. However, in the disagreement between my colleagues, I find it appropriate to join the position of the Deputy President that the custodial sentence be reduced from 11 to 9 months.

 

                                                                                                JUSTICE

 

Decided by a majority of opinions as stated in the judgment of Deputy President, E. Rubinstein.

 

Given today, the 10^th of Nissan 5776 (April 18, 2016).

 

 

Deputy President                                Justice                                     Justice

 

 

 

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 6706/14

 

 

Before: The Honorable President M. Naor

The Honorable Deputy President E. Rubinstein The Honorable Justice S. Joubran

The Honorable Justice E. Hayut The Honorable Justice H. Melcer

 

The Petitioners:                1.            MK Hanin Zoabi

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

3.            The Association of Civil Rights in Israel

 

v e r s u s

 

The Respondents:           1.            The Knesset's Ethics Committee

                2.            The Chairperson of the Knesset

                3.            The Knesset

 

Petition to Grant an Order Nisi

 

Date of Session:               17th of Kislev, 5775 (December 9, 2014)

 

On behalf of the Petitioners:      Adv. Hassan Jabarin; Adv. Dan Yakir;

Adv. Maisana Morani

 

On behalf of the Respondents: Adv. Eyal Yinnon; Adv. Dr. Gur Bligh

 

 

J U D G M E N T (R E A S O N S)

 

 

President M. Naor:

 

1.            On December 10, 2014, we issued  a judgment without reasons in which the Petition was denied by a majority opinion (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer, against the dissenting opinion of Justice S. Joubran). In the judgement we ruled that:

 

"1. The Petition before us addresses the decision of Respondent 1, the Knesset's Ethics Committee, which determines that Petitioner 1 violated Rule 1A of the Rules of Ethics for Members of Knesset, and instructs that she be removed from sittings of the Knesset's plenum and committees, other than participating in votes, for a period of six months, commencing on July 30, 2014, and ending on January  29,  2015.  Approximately  half  of  the  period  of

 

 

 

removal was during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014.

 

2.            In the Petition, the Court was requested to intervene in and cancel the  Ethics Committee's decision  regarding the Petitioner. Alternatively, the Court was requested to intervene in the removal sanction that was imposed upon the Petitioner.

 

3.            On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

4.            On December 9, 2014, we heard the Parties' oral arguments.

 

5.            The six month period is meant to end on January 29, 2015. Therefore we have found it to be appropriate to give our ruling now, without reasons. The reasons shall be given separately.

 

6.            By a majority of opinions (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer) and against the dissenting opinion of Justice S. Joubran, we rule as follows: There is no place to intervene in the Ethics Committee's decision that the Petitioner violated Rule 1A of the Rules of Ethics for Members of Knesset. As for the sanction: the sanction that was imposed is indeed unusual in its severity compared to sanctions imposed in the past. However, in the circumstances at hand and in light of the Petitioner's harsh words and the timing in which they were spoken, and considering that a significant part of the period of the sanction was during times of recess, we have not found it appropriate to intervene in the broad discretion that is granted to the Ethics Committee. Inter alia, we have taken into consideration the fact that two days ago the Dispersal of the 19th Knesset Law, 5775-2014 was legislated. In light of this law, the practical significance of intervening in the sanction is miniscule, if at all existent.

 

7.            Therefore, the Petition is denied. There shall be no order for expenses".

 

We shall now elaborate on our reasons.

 

 

 

Background

 

The Complaints Against the Petitioner and Her Responses Thereto

 

2.            The Petitioner is a member of the 19th Knesset on behalf of the Balad party. On June 17, 2014, the Petitioner interviewed on a morning program on Radio Tel Aviv (hereinafter: the "Interview"). The Interview primarily addressed the abduction of the three teenagers: the late Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, which occurred on June 12, 2014, in the area of Gush  Etzion.  The Interview was held approximately five days after the abduction, at a time when the teenagers' fate was not yet known. During the Interview the Petitioner said the following:

 

"Look, look… I, let's ask a question like this, ah, naively, is it strange that people who are under occupation, who live lives that are not normal, and who live in a reality in which Israel abducts detainees every day, is it strange to you that they abduct? […] They are not terrorists […] Even if I do not agree with them, they are people who do not see any opening […] They are people who do not see any opening to change their reality, and they are forced to use these means, until Israel shall sober up a little, until the citizens of Israel, the Israeli society shall sober up a little and shall see the suffering, feel the other's suffering"

 

3.            On July 13, 2014, in the midst of operation "Protective Edge", the  www.felesteen.ps website published an article that the Petitioner wrote, and which had been previously published on the www.arab48.co.il website (hereinafter: the "Article"). Inter alia, the following, was written in the Article:

 

"In order for Israel to be convinced that it is not possible to maintain and deepen the occupation, and for it to declare the end of the achievements of the detestable trinity: the fence, the siege and coordination, which it believed turned the occupation into a no-cost occupation absent from the Israeli reality – the Palestinians must declare the end of their own lethal trinity: coordination, negotiations and the internal dispute. We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith, and unity instead of the internal dispute" (a copy of the Article in Arabic and its translation to Hebrew were attached as Exhibit P/5 of the Petition).

 

4.            Following these  remarks, a number of complaints were filed with the  Ethics Committee against the Petitioner. The main complaint was filed on July 22, 2014, by the Chairperson of the Knesset. In this complaint the Chairperson  of  the Knesset stated that while he is aware of the Ethics Committee's position that the members of Knesset's freedom of political expression must be protected, he is of the opinion that the Petitioner "has long since crossed any line with respect to the

 

 

 

conduct that is expected of the MKs" and that the many approaches that are directed to him from the public in this matter "indicate that this is not an 'ordinary' case of a harsh or outrageous remark […], but rather continuous provocative conduct, which could materially erode the status of the Knesset in the eyes of the public." The Chairperson of the Knesset's complaint also mentioned a video clip that documents a confrontation between the Petitioner and policemen during a protest. The Ethics Committee decided not to refer to this video clip in its decision, and therefore I shall not address it.

 

5.            The Petitioner filed a response to the complaint. In her response the Petitioner stated that she "completely rejects the vexatious complaint that is indicative of a dominating culture of racism and a need to rule others and oppress their political opinions". The Petitioner added that the complaints against her were filed on political grounds and that "one must not surrender to those who disagree with me and want to silence me and punish me and even retaliate against me." With regard to the things she said in relation to the abduction of the teenagers, the Petitioner stated laconically that "I referred to the context of the sentence in a series of media interviews and I shall not reiterate it again, and I shall ask that the Ethics Committee review them to receive a complete picture". It is not superfluous to note that the Petitioner did not attach the said interviews to her response. Based on her said statement, the Petitioner asked that the Ethics Committee reject the complaint.

 

The Decision which is the Subject of the Petition

 

6.            On July 29, 2014, the Ethics Committee convened to discuss the said complaints against the Petitioner. The committee decided by a majority of opinions that the two remarks specified above constitute a violation of Rule 1A of the Rules of Ethics (Decision 16/19 of the Knesset's Ethics Committee "In the matter of Complaints against Knesset Member Zoabi" (July 29, 2014)). The  committee indeed emphasized that its consistent position is that to the extent possible, the limitation of freedom of political expression of members of Knesset should be avoided; that the members of Knesset's right to express public criticism of the government is maintained also during times of war; and that the mere voicing of harsh criticism on military moves or on government policy during times of war, should not be viewed as a violation of the Rules of Ethics. However, the committee ruled that one must distinguish between legitimate protest – harsh as it may be – and encouraging the enemies of the State and legitimizing acts of terror against its citizens. The committee added that the public in Israel, like in any state, "expects that members of Parliament, who declare allegiance to the State, shall not encourage those who act against it and those who wish to kill its soldiers and citizens and shall not support them […]" (paragraphs 8-9 of the decision).

 

7.            As for the Interview, the Ethics Committee ruled that even though the Petitioner clarified that she does not agree with the abductors, her statement that they are not terrorists and her justification of their actions – especially when the abducted teenagers' fate was yet unknown – constitutes "identifying with enemies of the State" (paragraph 9 of the decision). Regarding the Article, the committee ruled that it is not possible to interpret its content as anything other than "statements which intend to harm  the State  of Israel,  its security and its basic  interests" (paragraph 10 of the decision).

 

 

 

 

8.            The Ethics Committee ruled that the Petitioner's words do not coincide with the State's best interest and prejudice the public's trust in the Knesset and the Knesset's image. Therefore, it was ruled that the Petitioner violated Rule 1A of the Rules of Ethics and imposed a sanction of her removal from the sessions of the Knesset plenum and its committees, other than participating in votes, for a period of six months, beginning from July 30, 2014, and ending on January 29, 2015. Approximately three months of the removal period were during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014. On December 9, 2014, the Dispersal of the 19th Knesset Law, 5775-2014, was published in the Official Gazette (Reshumot). This law provides that the 19th Knesset shall disperse before the end of its term and that the elections for the 20th Knesset shall take place on March 17, 2015. Consequently, the Knesset Committee decided that an elections recess shall begin on December 11, 2014, lasting until the 20th Knesset convenes (see: Knesset Committee Decision "In the Matter of the Dates of the Elections  Recess and the Knesset's Activity During the Recess" (December 10, 2014)). Therefore, the remaining part of the period of removal – over a month and a half – also falls during recess.

 

9.            To complete the picture, it shall be noted that on August 3, 2014, the Petitioner's attorneys requested, "in order to file a petition to the High Court of Justice" against the decision, to review the minutes of the Petitioner's matter and the materials presented to the committee in the process of reaching its decision. On August 7, 2014, the Knesset's legal counsel replied to the request and informed the Petitioner that pursuant to Rule 21 of the Rules of Ethics, the ethics proceedings, including the documents and the minutes in the matter thereof, are privileged. The Knesset's legal counsel explained in his response that the committee recognizes that there are exceptional situations in which public interest requires disclosure of material from its sessions, such as a situation in which the use of the material is required for the purpose of legal proceedings. However, he stated, the exception relates to the circumstances in which the material from the committee's sessions is required for other legal proceedings and not for the purpose of challenging the decision of the Ethics Committee itself. It was elucidated that the committee is concerned about creating a precedent which will adversely affect the ability of committee members to properly fulfill their duties. Therefore, he informed that the committee unanimously rejected the petition to lift the privilege from the minutes of the session, but decided that if indeed a petition shall be filed, it shall provide the minutes of the session in the Petitioner's matter, for the Court's eyes only.

 

The Petitioner's Appeal of the Decision

 

10.          On August 13, 2014, the Petitioner appealed the Ethics Committee's decision before the plenum of the Knesset. The Petitioner's appeal was filed pursuant to Section 43 of the Knesset's By-Laws, which provides that a member of Knesset may appeal a decision of the Ethics Committee before the plenum, if it decided, inter alia, to remove him from Knesset sessions for the duration of four days of sessions, or more.

 

11.          In her appeal, the Petitioner argued that the Ethics Committee acted ultra vires and in a manner that is contrary to the principle of freedom of political expression. She

 

 

 

further argued that it emerges from the reasoning of the decision that it is not based on a proper evidentiary foundation, and that the sanction imposed is "as far as is known, the most severe sanction that was ever imposed upon a member of Knesset", due to irrelevant considerations and is disproportionate. The Petitioner requested that the Chairperson of the Knesset schedule an urgent session before the plenum of the Knesset to hear the appeal, and on August 20, 2014, she also sent a reminder letter regarding this matter. On August 25, 2014, the Knesset's legal counsel replied to the Petitioner's letter claiming that the Chairperson of  the Knesset does not have authority to convene the plenum of the Knesset during the recess (other than pursuant to Section 9(b) of the Knesset Law, 5754-1994, which empowers him to convene the plenum of the Knesset during recess, in accordance with the demand of 25 members of Knesset or of the Government). Therefore, he informed that it will not be possible to hear the appeal before the beginning of the winter session.

 

12.          The Knesset plenum held a discussion regarding the Petitioner's appeal on October 29, 2014. The Petitioner argued before the plenum, inter alia, that the Ethics Committee's decision is unprecedented in its nature and severity and that this is a vindictive and disproportionate decision. The chairperson of the Ethics Committee, Knesset Member Yitzchak Cohen, responded to the Petitioner's statements. In his response, the chairperson of the Ethics Committee reiterated the committee's main reasons, as were expressed in its decision. In the vote that took place thereafter, 16 members of Knesset voted in favor of accepting the Petitioner's appeal, 68 members of Knesset objected and one member of Knesset abstained. Thus, the petition was denied.

 

The Petition before Us

 

13.          The Petition before us was filed on October 7, 2014, approximately two and half months after the Ethics Committee's decision in the Petitioner's matter and before her appeal had been heard by the Knesset plenum. Therefore, and in light of the Respondents' notice dated October 20, 2014, that the appeal will be heard on October 28, 2014, the Court ruled that it is inappropriate to address the Petition before the Knesset rules on the Petitioner's appeal (Justice Y. Danziger, decision dated October 22, 2014). After the Knesset plenum denied the Petitioner's appeal, the discussion regarding the Petition was renewed. On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

On December 9, 2014, we heard the Parties' oral arguments.

 

The Petitioners' Arguments

 

14.          According to the Petitioners, the Ethics Committee acted ultra vires deciding as it did. The Petitioners claimed that the Petitioner's remarks are political remarks, which are protected by the material immunity granted to a member of Knesset under Section 1(a) of the Knesset Members Immunity, Rights and Duties Law,

 

 

 

5711-1951 (hereinafter: the "Immunity Law"). The Petitioners claimed that, following the Interview, the Petitioner explained in the media that she objects to causing harm to civilians, and to abduction of civilians in particular. The Petitioners further argued that the Attorney General examined complaints that were filed against the Petitioner following the Interview and deemed it inappropriate to open a criminal investigation into her remarks. To this regard, the Petitioners filed the State's response to the petition in HCJ 5716/14 which was directed against the Attorney General's decision in this matter (the hearing in said petition is scheduled to take place on June 10, 2015). In the aforementioned response it was noted that even though the Petitioner identified with the actions of the abductors, her statements did not amount to incitement to violence. Therefore, the Petitioners argued that the Petitioner's remarks which are the subject of the Petition are part of her freedom of political expression, and as such the Ethics Committee did not have any authority to intervene therein.

 

15.          The Petitioners further argued that while this Court has reiterated in its rulings that the material immunity of members of Knesset does not serve as a defense against sanctions at the ethical level, that case law applies only to inappropriate conduct within the house, or to slanderous remarks against another member of Knesset, an individual or a certain public. Such remarks, so it is argued, relate to managing the internal affairs of the Knesset and the relationship between its members and therefore fall within the authority of the Ethics Committee. The Petitioners draw this argument, inter alia, from a principle decision of the Ethics Committee (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013) (hereinafter: "Decision 2/19")), which states that, as a rule, complaints regarding political remarks by members of Knesset should not be discussed.

 

16.          The Petitioners argued that the Ethics Committee acted ultra vires also by basing its decision on Rule 1A of the Rules of Ethics, which "prescribes general values and principles and is not an operative provision" (paragraph 37 of the Petition). This rule, they claimed, has only a declaratory status and thus it is impossible to impose a sanction due to a violation thereof. The Petitioners claimed that the Ethics Committee is only authorized to impose sanctions in consequence of a violation of Rules of Ethics that anchor specific norms relating to  morality, conflict of interest, proper activity of the Knesset and proper conduct in the house. The Petitioners further argued that this is also customary in England. Finally, it was argued that the Ethics Committee is not authorized to determine which remarks are for the benefit of, or contrary to, the State's best interest. In light of all of the reasons specified above, the Petitioners argued that the committee's decision was ultra vires.

 

17.          Alternatively the Petitioners argued that the sanction imposed upon the Petitioner is "discriminatory and exceedingly severe" (paragraph 51 of the Petition). The Ethics Committee imposed its most severe sanction and for the longest possible period of time  and  therefore the  Petitioners  argued that its decision is disproportionate. According to the Petitioners this can also be deduced from a comparison to the committee's previous decisions which were quoted in the Petition itself, and namely the principle decision in the matter of remarks by members  of  Knesset  (Decision  2/19).  It  shall  be  noted  that  the  Petitioners

 

 

 

complained inter alia, about the Ethics Committee's refusal to provide them with the minutes of the Committee's session regarding the Petitioner's matter and requested that we instruct that they be delivered thereto. However, in the oral hearing, and due to the need for a quick ruling, the Petitioners' attorney did not insist on this, while reserving all of his arguments.

 

The Respondents' Arguments

 

18.          The Respondents argued that according to case law, the material immunity does not preclude the Ethics Committee from taking disciplinary actions against a member of Knesset. According to them, particularly in light of the existence of the material immunity, which does not allow for criminal or civil action to be taken against a member of Knesset due to his remarks, it is important to allow the Knesset to deal with such remarks at the ethical level. It was argued that the case law took a principle approach and did not support the argument that the imposition of sanctions for remarks that are covered by material immunity should only be possible in cases where the remarks are harming to collegial relationships between members of Knesset or disrupt the Knesset's proper conduct. The Respondents further argued that the fact that in a long list of decisions, the Ethics Committee recognized the importance of the freedom of political expression granted to members of Knesset, and that it is necessary, to the extent possible, to refrain from limiting it, does not mean that the Committee does not have the authority to impose sanctions for political remarks. This is not a matter of authority, so it is argued, but rather a matter of discretion.

 

19.          The Respondents further claimed that Rule 1A of the Rules of Ethics is not a declaratory rule but rather an operative provision, the violation of which can carry the imposition of sanctions. According to them, the Rules of Ethics include a variety of norms, part of which are designed as rules and part of which are designed as principles (standards) – but all of which are operative. To illustrate their argument, the Respondents stated that Rule 1A was used in the past as a basis for imposing sanctions at an ethical level in a series of cases, both as a single normative source and alongside other rules of ethics.

 

20.          As to the exercise of discretion, the Respondents argued there was no flaw in the conclusion that the Petitioner violated the Rules of Ethics. Especially taking into consideration the broad discretion that is granted to the Ethics Committee in such matters. According to the Respondents, the sanction that was imposed upon the Petitioner is proportionate. The main reason indicated by the Respondents was that the severity of the sanction is commensurate with the severity of the violation for which it was imposed – a severity that stems from the content of the Petitioner's statements and the timing thereof, and which justifies deviating from the lenient policy which the Ethics Committee has exercised with respect to political remarks. The Respondents further argued that the Petitioner's remarks during the Interview "can be perceived as legitimization of and identification with the State's enemies who are carrying out acts of terror against the citizens of the State" (paragraph 70 of the Respondents' response), at a sensitive time – approximately five days after the abduction of the teenagers and at a time when their fate was unknown. The statement that the Petitioner does not agree with the abductors does not diminish the severity of her remarks. It is further argued that the Petitioner's remarks in the

 

 

 

Article can be deemed as a call to harm the State of Israel, in the midst of the fighting in the Gaza strip during the "Protective Edge" operation. The Respondents also claimed that the time the sanction came into effect, which was at the beginning of the Knesset's summer recess, should also be considered. According to the Respondents, practically speaking this was a removal that, when decided, was for approximately three months, since during the recess the Knesset plenum only assembles in rare cases and the majority of the Knesset committees convene relatively infrequently.

 

Discussion and Ruling

 

21.          The main questions that are presented in this case are whether the Ethics Committee is authorized to impose sanctions against the Petitioner because of her remarks, which in and of themselves are protected by material immunity and which are not among those remarks that are defined as remarks that disrupt the Knesset's work or the internal relationships between its members; and whether there are provisions in the Rules of Ethics that authorize the Ethics Committee to impose sanctions in consequence of such remarks. If such authority exists, this shall lead to an additional question – whether such authority, in the circumstances at hand, was exercised lawfully. I shall discuss the questions in the order of their appearance.

 

Was the Ethics Committee Authorized to Make the Decision?

 

22.          Section 17 of the Basic Law: The Knesset prescribes that "The  members  of Knesset shall have immunity; details shall be determined in the law". The details of the immunity were determined in the Immunity Law. Sections 1(a) – 1(A1) of the Immunity Law, provide:

 

 

Immunity in the Framework of Fulfilling a Position

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal actions, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

[…]

 

(a1) To avoid doubt, an act, including, a remark, that are not random, by a member of Knesset, which constitutes any of the following, for the purpose of this section is not deemed an expression of an opinion or an act that are made in the framework of fulfilling his position or for the sake of fulfilling his position as a member of Knesset:

 

 

 

(1)          Denial of the existence of the State of Israel as the state of the Jewish people;

(2)          Denial of the democratic character of the State;

(3)          Incitement to racism due to color or racial belonging or ethnical-national original.

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad.

 

Section 1(a) of the Immunity Law grants a member of Knesset protection against criminal or civil liability and against any other legal action which could be taken, inter alia, due to expression of opinion in the framework of fulfilling his position. Section 1(a1) sets limits to this immunity.

 

23.          Alongside the material immunity, Section 13E(a) of the Immunity Law authorizes the Knesset Committee to promulgate Rules of Ethics for Members of Knesset. Additionally, Section 13D of the Immunity Law grants the Ethics Committee of the Members of Knesset the authority to judge a member of Knesset, inter alia, in matters involving the violation of the Rules of Ethics. These authorities derive from the Knesset's constitutional authority to determine its working procedures (Section 19 of the Basic Law: The Knesset). In the matter at hand, the Committee ruled that the Petitioner violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. These rules provide as follows:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

24.          The sanctions that the Ethics Committee may impose upon a member of Knesset are set in Section 13D:

 

The Ethics            13D. (a) The member of Knesset who committed

 

 

 

Committee    one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated a rule of the Rules of Ethics. […]

(d)          If the Ethics Committee ruled, by a majority of the votes of all of its members, that the member of Knesset violated the provisions of sub-section (a)(1), (1A) or (2), it may impose one of the following thereon:

(1)          A comment;

(2)          A warning;

(3)          A reprimand;

(3A) A severe reprimand;

(3B) Denial of the right to receipt the right to speak in all or some of the Knesset committees of the plenum, for a period that shall not exceed ten days of sessions;

(3C) Limitations of his activity as a member of Knesset, including prohibiting filing bills, agenda proposals, parliamentary questions, etc. except limitations regarding the right to vote, all as the committee shall decide and for a period that it shall decide and provided that the said period shall not exceed the period that remains until the end of such Knesset's session;

(4)          Removal from the sessions of the Knesset plenum and its committees for a period that shall not exceed six months, provided that the member of Knesset shall be entitled to enter the session solely for the purpose of voting;

(5)          Denial of salary and Other Payments for the period of the absence as stated in Section 2(a) or denial of salary and Other Payments for a period which shall not exceed one year due to any violation of any other provision of Section 13A.

For this purpose, "Other Payments" – payment pursuant to Chapter 9 of the Knesset Law, 5754-1994, and payments by virtue of the Retirement of Office Holders in Government Authorities Law, 5729-1969.

 

(d1) If the Ethics Committee has ruled by a majority of votes of all of its members that a

 

 

 

member of Knesset violated the provisions of sub-section (a)(3), it may exercise its authority pursuant to the provisions of sub-section (d), other than the authority under sub-section d(5).

 

25.          From the above citations, one can conclude that the Ethics Committee may impose any sanction provided in Section 13D(d) of the Immunity Law, other than the sanction provided in Section 13D(d)(5), which addresses the denial of salary or Other Payments, upon a member of Knesset who violated any of the Rules of Ethics. In the case at hand, the Ethics Committee imposed a sanction upon the Petitioner pursuant to Section 13D(d)(4) of the Immunity Law, i.e., a sanction of removal from the sessions of the Knesset plenum and its committee for six months. Prima facie, it is the maximum sanction that could be imposed due to violation of any of the Rules of Ethics. It shall be noted that the option of imposing such a sanction was added in the amendment to the Immunity Law from 2002 (Knesset Members Immunity, Rights and Duties Law (Amendment no. 28), 5762-2002). I shall return to the matter of the sanction further on.

 

26.          The parties to the Petition before us assumed that the above-quoted remarks by the Petitioner are covered by the material immunity that is granted to her as a member of Knesset, under Section 1(a) of the Immunity Law. This leads to the question whether or not said immunity prevents the Ethics Committee from addressing these remarks. In my opinion, the answer should be negative. In HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) (hereinafter: the "Makhoul Case"), this Court (President A. Barak, with the consent of Justices A. Procaccia and S. Joubran) ruled that the material immunity of a member of Knesset does not extend to the actions of the Ethics Committee against any of the members of Knesset. There it was ruled as follows:

 

"It has been found that the Immunity Law, in that part that relates to the immunity of a member of Knesset, was primarily meant to allow the member of Knesset to perform his work as required and to protect him against being harassed by the executive authority. The Immunity Law was not meant to prevent the Knesset from dealing with conduct occurring within itself that violate its own Rules of Ethics. Indeed, actions and remarks that fall within the framework of material immunity benefit from broad protection. As such, a member of Knesset's immunity cannot be lifted in consequence thereof. The member of Knesset is not exposed to criminal proceedings or civil actions in consequence thereof. However, such rule does not mean that such actions cannot be the subject of other internal proceedings of the Knesset, in general, and of the proceeding pursuant to Section 13D of the Immunity Law [a proceeding before the Ethics Committee – M.N], in particular. This does not mean that the Ethics Committee is prevented from handling them […]. Indeed, the material immunity protects the member of Knesset against legal actions being taken against him. However, such legal action

 

 

 

does not include actions which the Knesset takes vis-à-vis itself, when at hand are internal Knesset matters […]" (on page 388; emphases added – M.N).

 

Similarly, in the Miari Case, the justices were of the opinion that the material immunity does not apply to sanctions which the Knesset imposes upon its members, pursuant to its By-Laws, which also incorporate the Rules of Ethics (HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 218-219, 234 (1987) (hereinafter: the "Miari Case")). Therefore, according to case law, material immunity does not shield members of Knesset from the authority of the Ethics Committee (compare: Bar Association Appeal 8/79 Sufrin v. The Tel Aviv District Committee of the Bar Association, PD 34(4) 185, 188 (1980) (hereinafter: the "Sufrin Case")). The Petitioners are not asking that we deviate from this case law, but rather that we interpret it narrowly. According to them the Makhoul rule applies only to circumstances relating to remarks that were made within the Knesset building or to slanderous remarks which can disrupt the Knesset's proper work or can harm the internal relationships between its members. Whereas in the case at hand, we are dealing with, what the Petitioners refer to as "pure" political remarks made in the media. I do not accept this distinction proposed by the Petitioners. Indeed the circumstances of the Makhoul Case were different from those at hand, since that case regarded a sanction that the Ethics Committee imposed due to prejudicial remarks against the government, which were made during a speech in the Knesset plenum. Notwithstanding, the main question that was raised and discussed in the Makhoul Case was a question of principle, and it addressed the relation between the Rules of Ethics and  the material immunity granted to members of Knesset. The Court ruled on this question, and  determined  that imposing sanctions  due  to  unethical  actions or remarks does not constitute a circumvention of the material immunity:

 

"Section 13D, which anchors the authorities of the Ethics Committee, does not prejudice the material immunity that is prescribed in Section 1 [of the Immunity Law – M.N.]. In fact, this section, which provides for an internal judgment mechanism, an ethical-disciplinary judgment, is meant to complement and realize the Immunity Law's underlying objectives. Actions taken at an ethical level do not circumvent the protection that is granted to the member of Knesset in the Immunity Law. It is not for no reason that the Ethics Committee's authorities are anchored in the Immunity Law which determines the members of Knesset's immunity. Section 13D complements that which is stated in Section 1. Thus, while Section 1 exempts the member of Knesset from civil or criminal liability due to unethical remarks said in the framework of fulfilling his position (or for the sake of fulfilling his position), Section 13D, which is of the same normative standing, clarifies that the member of Knesset is not absolutely exempt. Indeed, Section 13D of the Immunity Law reflects the 'interest of the Knesset itself to denunciate negative conduct among its member, and the public importance this must be granted'[…]"

 

 

 

(on page 339; emphases added – M.N).

 

These statements are also relevant to the remarks which are the subject of our discussion, even though they were made outside of the house and not in connection with a specific organization or person. The material immunity was meant to ensure that a member of Knesset would have freedom of expression and opinion, without being concerned that this could cost him in a criminal conviction or a personal monetary charge in a civil proceeding (see: HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 300 (2006) (hereinafter: the "Bishara Case");

HCJ 1843/93 Pinchasi v. The Israel Knesset, PD 49(1) 661, 682 (1995); Criminal Appeal 255/68 The State of Israel v. Ben Moshe PD 22(2) 427, 439 (1968)). Additionally, the material immunity was meant to promote parliamentary supervision of the executive authority, without being concerned of being harassed thereby. However, the material immunity was not meant to protect a member of Knesset against internal criticism applied by the Ethics Committee. As has been ruled "The purpose of the Immunity Law was not to grant the legislative authority a mechanism that would prevent it from critiquing the actions of its members, while frustrating its constitutional authority to determine its own procedures […]" (the Makhoul Case, on page 337; emphasis added – M.N). The objective of the Immunity Law is not to prevent the Knesset from taking actions at the internal-ethical level, pursuant to the Rules of Ethics that were determined. Such conclusion is also supported by the material differences between these arrangements: a ruling that a certain act by a member of Knesset is not covered by the material immunity or that immunity should be lifted also has implications towards entities outside of the Knesset. In contrast, the ethics proceedings are internal proceedings (see and compare: the Miari Case, on page 196; compare: HCJ 306/81 Flatto Sharon v. The Knesset Committee, PD 35(4) 118, 126 (1981) (hereinafter: the "Flatto Sharon Case")). Determining that a member of Knesset's remark is not covered by the material immunity could result in criminal charges, with all that that entails. In contrast, the ruling that a member of Knesset violated one of the Rules of Ethics could at most result in a partial interruption of his parliamentary activity, for a limited period of time (see and compare: Permission for Civil Appeal  7504/95  Yassin  v. The Registrar of  Parties,  PD 50(2)  45 (1996); the Bishara Case, on pages 313-314, 318; compare: Permission for Civil Appeal 2316/96 Isaacson v. The Registrar of Parties, PD 50(2) 529 (1996); see also in  the  judgment of the  European Court  of Human Rights, in  which the majority opinion addressed the distinction between immunity that is granted to a member of parliament and internal parliamentary critique of his conduct; A. v. United Kingdom, 2002-X Eur. Ct. H. R. 917, para 86). The harm caused by determining that a member of Knesset violated one of the Rules of Ethics is less intense than in the case of determining that material immunity does not apply to his actions. The applicability of the material immunity and its objectives can be a consideration in the framework of the Ethics Committee's decisions, but they do not undermine its authority. In light of that stated, even assuming that the Petitioner's remarks are covered by the material immunity, there was nothing preventing the Ethics Committee from addressing them pursuant to the existing Rules of Ethics.

 

27.          As mentioned, the Petitioners further argued in a general and sweeping manner that  the  Ethics  Committee  has  no  authority  to  address  political  remarks  by

 

 

 

members of Knesset and that its authority is limited to inappropriate conduct of members of Knesset within the house or to the internal relationships between the members. I do not accept these arguments. Indeed, freedom of political expression is of special importance for a member of Knesset, since it is by such means that the member of Knesset expresses the positions of the public that elected him. This is particularly true when a member of Knesset who represents a minority group is concerned (see also, in a context similar to the matter at hand, the position of the European Court of Human Rights in this matter: Szel v. Hungary, App. no. 44357/13 (Sep. 16, 2014) (hereinafter: the "Szel Case"); Karacsony v. Hungary, App. no. 42461/13 (Sep. 16, 2014) (hereinafter: the "Karacsony Case")), "The political expression – the speech, the article, the interview – are the primary workings tools of the member of Knesset" (the Bishara Case, on page 325; see also, ibid, on page 317). The freedom of expression also affects the disciplinary rules that apply to members of Knesset (compare: Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel (January 1, 2002) (hereinafter: the "Sheftel Case"); Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227, 237 (1986)). Due to freedom of expression, the ethical review of remarks by a member of Knesset must be as limited as possible. Indeed, the Ethics Committee instructed itself – and justifiably so – to refrain, to the extent possible, from limiting the members of Knesset's freedom of political expression. In Decision 2/19, the committee decided as follows:

 

"[…] If, in all that relates to political remarks, the committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing,  slandering, mudslinging and humiliating of individuals and publics, the committee's position is materially different. The committee is of the opinion that such remarks materially harm the status of the Knesset and its dignity […]" (emphasis omitted – M.N).

 

28.          The Ethics Committee expressed a similar position in additional principle decisions (see: Decision 83/18 of the Knesset's Ethics Committee "In the Matter of Complaints regarding Remarks by Members of Knesset Against Persons and Organizations" (December 31, 2012); Decision 7/18 of the Knesset's Ethics Committee "In the Matter of Ethics and Freedom of Expression – the Committee's Decisions regarding Remarks by Members of Knesset" (October 12, 2009)). However, this does not mean that the committee is not authorized to address extreme expressions that amount to supporting acts of terror against the citizens of the State or identifying with such actions. The purpose of the Rules of Ethics for Members of Knesset is to maintain proper conduct by members of Knesset in order to foster the public's trust in the Knesset, preserve the dignity of the Knesset and its integrity (see and compare: the Sheftel Case, paragraph 22 of my judgment, Bar Association Appeal 2579/90 Bar Association District  Committee  v. Anonymous, PD 45(4) 729, 733 (1991); see also: the Report of the Committee for Preparing the Rules of Ethics for Members of Knesset, December 2006, on pages 43-45 (hereinafter: the "Rules of Ethics Preparation Committee Report")). The public's trust in the Knesset may also be prejudiced by remarks made by a member

 

 

 

of Knesset outside of the Knesset, which are not necessarily related to inappropriate conduct within the Knesset or to the internal relationships between its members. This is the case, for example, when an act or remark that is interpreted as supporting violence against citizens is concerned. A member of Knesset carries the Rules of Ethics with him wherever he goes (compare: the Sheftel Case, paragraphs 13-16 of my judgment). Their applicability is not limited to his relationship with other members of Knesset or internal parliamentary conduct. It is possible that the applicability of the Rules of Ethics on remarks outside of the Knesset is narrower. However, the circumstances of the case at hand are extreme. It is worth noting that the code of ethics for members of Parliament in Britain, to which the Petitioners referred, provides that the Rules of Ethics are not intended to regulate a member of Parliament's conduct in his personal life, outside the walls of the parliament. However, conduct by a member of Parliament that significantly damages the reputation or the integrity of the parliament or its members is excluded from that rule (U.K Code of Conduct for Members of Parliament (passed pursuant to the Resolution of the House of Jul. 19, 1995) § 2-3 (hereinafter: "U.K. Code of Conduct for Members of Parliament").

 

29.          The Petitioners further argued that the Ethics Committee's decision in the case at hand does not coincide with its above-mentioned principle decisions which reject intervening in the members of Knesset's freedom of political expression. However, these decisions do not constitute a precedent that denies the committee of its authority to address extraordinary remarks which in its opinion constitute a violation of the Rules of Ethics. The Ethics Committee elaborated on this matter in its decision that addressed harsh remarks by a member of Knesset during the "Pillar of Defense" operation, against those he referred to as "leftists":

 

"The majority of the complaints that have been filed to the Ethics Committee in the 18th Knesset were related to remarks by members of Knesset. The Ethics Committee, despite repeatedly being of the opinion that harsh and outrageous remarks were at issue, decided, in the majority of cases, not to exercise its  authorities, based on an orientation  of not narrowing the members of Knesset's freedom of expression […] however the fundamental principle of freedom of expression cannot protect anything a member of  Knesset says, and the committee is of the opinion that this is one of the cases in which it must intervene and express its opinion that a line has been crossed between a legitimate, albeit harsh and outrageous, statement and words of incitement. Statements in the form of 'Leftists Out', 'Leftist to Gaza' and 'Leftist Traitors' are not statements in the framework of the broad freedom of political expression which is granted to members of Knesset and do not coincide with the proper and expected conduct of a member of Knesset […]" (Decision 85/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Michael Ben Ari regarding Remarks" (December 31, 2012)) (emphasis added – M.N.)

 

 

 

30.          The Ethics Committee also found it to be justified in other cases to exercise its authority with regard to remarks by members of Knesset which encouraged acts of terror or violence. For example, the committee decided to apply sanctions for statements praising Shahids (martyrs) (Decision 73/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Ahmad Tibi due to a Speech on Martyrs Day'" (March 5, 2012) (hereinafter: the "Decision regarding the "Martyrs Day"")); for public support of the Intifada (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Uri Yehuda Ariel against Knesset Member Ahmad Tibi" (June 24, 2003) (hereinafter: the "Decision regarding Supporting the Intifada")); and for the statement "Whoever removed sovereign land from the State of Israel – is to be sentenced to death" (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Colette Avital against Knesset Member Arie Eldad" (June 24, 2008) (hereinafter: the "Decision in the Matter of Knesset Member Eldad"). Therefore, the Ethics Committee's principle decisions do not prevent its intervention in the current case and exercising the committee's authority with respect to remarks of the kind addressed in the Petition is not unprecedented.

 

31.          An additional argument by the Petitioners regarding the Committee's authority is that there is no explicit provision in the Knesset's By-Laws or in the Rules of Ethics that authorizes the Ethics Committee to impose sanctions against the Petitioner's remarks. The Petitioners argued that Rule 1A of the Rules of Ethics – upon which the Ethics Committee's decision in the Petitioner's matter relied – is a "declaratory section that includes abstract principles and values and therefore has only an interpretational declaratory status" (paragraph 39 of the Petition), and does not have operative status. This argument, too, is to be denied. The provision of Rule 1A of the Rules of Ethics for Member of Knesset, as was presented above, prescribes fundamental values which bind the member of Knesset, such as promoting society and the best interest of the State and preserving the dignity of the Knesset and its members. Other Rules of Ethics regulate a series of specific matters, such as additional occupation of a member of Knesset (Chapter E of the Rules of Ethics) or provisions that relate to a declaration of capital (Chapter F of the Rules of Ethics).

 

32.          The fundamental values that were prescribed in Rule 1A of the Rules of Ethics outline general criteria for the members of Knesset's conduct (compare: Bar Association Appeal 7892/04 The Tel Aviv District Committee of the Bar Association v. Boteach, paragraph 14 of Deputy President M. Cheshin's judgment (May 10, 2005) (hereinafter: the "Boteach Case")), and express the need to preserve the public's trust in the Knesset. I am of the opinion that they should be considered as having an independent status, which allows imposing ethical sanctions in consequence of the violation thereof. This is necessary since naturally, specific rules of ethics do not cover all the issues that could arise at an ethical level. In the absence of a specific rule that regulates a specific situation, the member of Knesset can  find guidance in  advance in the  general values; and retroactively, the Ethics Committee can decide that a member of Knesset violated the Rules of Ethics, by violating one of the general values (see also: the Rules of Ethics Preparation Committee Report on pages 45-46; Proposal for Code of Ethics that was Submitted by the Knesset Committee's Rules of Ethics Preparation Sub-Committee,  2011;  Assaf  Shapira  "Ethics  in  the  Knesset"  Parliament  70

 

 

 

(2011). This illustrates the advantage of normative arrangements that are formatted as principles, which allow them to be applied in dynamic circumstances (for the distinction between rules and principles see, for example: Aharon Barak Purposive Interpretation in Law 248-249 (2003)).

 

33.          My conclusion also coincides with this Court's judgment in the Makhoul Case, where the Court did not find cause to intervene in the ethical sanctions that were imposed upon a member of Knesset in consequence of violating Rule 1A of the Rules of Ethics. It shall be noted that Rule 1A, as well as Rule 2 of the Rules of Ethics, which also outlines general criteria for the conduct of the members of Knesset, has served in various cases as the basis for imposing ethical sanctions on members of Knesset (see, for example: Decision 30/17 of the Knesset's Ethics Committee "In the Matter of Mutual Complaints of Knesset Member Effi Eitam and Knesset Member Ahmad Tibi" (May 27, 2008); Decision 2/17 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Ruhama Avraham against Knesset Member Sofa Landver" (July 11, 2006)). Furthermore, general principles exist in various systems of disciplinary rules. The violation of these principles could justify imposing a disciplinary sanction upon the violating party. For example, the Rules of Ethics for Lawyers include general principles, the violation of which could raise cause for being found guilty of a disciplinary offense (see: Rules 2, 23, 32-33 of the Bar Association (Professional Ethics) Rules, 5746-1986); the Boteach Case, paragraph 14 of Deputy President M. Cheshin's judgment; Bar Association Appeal 736/04 District Committee of the Bar Association v. Mizrachi PD 58(6) 200 (2004); Bar Association Appeal 2379/07 Tel Aviv – Jaffa District Committee of the Bar Association v. Rosenzweig (February 12, 2008); also see and compare: Section 61(3) of the Bar Association Law, 5721-1961, which prescribes that any act or omission that do not befit the legal profession are, inter alia, a disciplinary offense; Bar Association Appeal 15/88 Anonymous v. The  State's Attorney, PD 43(1) 584. 588 (1989); Bar Association Appeal 17/79 Tel Aviv Jaffa District Committee of the Bar Association v. Anonymous, PD 34(3) 756, 660-661 (1980); also see: Gabriel Kling Ethics For Lawyers 489-494 (2001)).

 

34.          Similarly, the Rules of Ethics for judges include general principles, the violation of which has operative implications (see: Rules 1-7, and particularly Rule 2(b) of the Rules of Ethics for Judges, 5767-2007; see also: Gabriel Kling Ethics for Judges 15-16 (2014)). Accordingly, the judges' ethics committee has refrained from approving certain actions in advance, based on general principles, such as the principle that a judge must refrain from actions which do not befit his status (see: Decision A/13/17 (February 25, 2013), which did not permit judges to participate in a personal mentoring venture of the Executives Program in the School of Public Policy; Decision A/11/53 (July 27, 2011), that it would not be appropriate to allow charging the parties to a legal proceeding a judge's travel expenses; see also Section 18(a) of the Courts [Consolidated Version] Law, 5744-1984, which prescribes that the Minister of Justice may file a complaint to the disciplinary court against a judge who behaved in a manner that does not befit the status of a judge in Israel). Thus, applying such a rule with respect to the Rules of Ethics for Members of Knesset is not unusual compared to other systems of disciplinary rules. In any event, the Ethics Committee has broad authority to address matters that relate to the ethics of the members of Knesset, including a matter that does not have a

 

 

 

provision in the Rules of Ethics (Rule 24 of the Rules of Ethics). It follows, a fortiori, that the committee is authorized to address the violation of the general values which are anchored in the rules themselves.

 

35.          Among the general principles that are set in Rule 1A are the member of Knesset's obligations to act to advance the best interest of the State and preserve the dignity of the Knesset. The decision at hand is based on these obligations. Once I have reached the conclusion that the committee is authorized to address the violation of the general principles, it follows that it is, inter alia, authorized to address the duty to act for the benefit of the best interest of the State. As such, the Petitioners' argument that the Ethics Committee cannot decide who is acting for the benefit of the State, since such a decision is reserved for the voting public or that such a decision opens "a dangerous opening for political persecution" (paragraph 34 of the Petition), is in fact directed against the Rules of Ethics themselves and not towards the decision which is the subject of the Petition. In comparison, the Rules of Ethics in Britain include similar principles, including the duty of the members of Parliament to act in the interests of the nation as a whole (U.K. Code of Conduct for Members of Parliament § 4-7).

 

36.          In light of that stated above, the decision of the Ethics Committee was given within its authority. The question that remains is whether it is appropriate to intervene on the merits of the decision. On this level, the question that arises is whether the Petitioner's remarks constitute a violation of the Rules of Ethics, and if so – whether the sanction that was imposed due to such violation befits the severity of the offense. It shall already be clarified here that the Petitioners' arguments focused on the question of the Ethics Committee's authority to address the Petitioner's remarks, and not on the question of whether the committee was correct in its conclusion that ethical obligations were violated (compare: the Sheftel Case, paragraph 11 of my judgment). As mentioned, the Petitioners also argued that it is appropriate to intervene in the sanction that was imposed upon the Petitioner. However, in order to present a complete picture, I shall address the question of whether or not the Rules of Ethics were violated.

 

The Discretionary Level: Was the Ethics Committee's Decision that is the subject of the Petition Adopted Lawfully?

 

37.          The examination of the Ethics Committee's decision in the case at hand derives from the scope of the judicial review of the Ethics Committee's decisions (see: the Makhoul Case, on page 340). The scope of the judicial review of the Knesset's decisions changes in accordance with the essence of the decision under review: Legislative acts that were completed, internal parliamentary proceedings and quasi-judicial decisions (see: HCJ 652/81 Sarid v. The Chairperson of the Knesset, PD 36(2) 197 (1982); the Flatto Sharon Case, on pages 124-126)). When the Ethics Committee addresses complaints against members of Knesset, it is fulfilling a quasi-judicial duty (the Makhoul Case, on page 340; HCJ 7993/07 Legal Forum for Israel v. The Knesset's Ethics Committee, paragraph 6 of my judgment (April 30, 2009) (hereinafter: the "Legal Forum A Case"); HCJ 6280/07 Legal Forum for Israel v. The President of the State, paragraph 22 of Justice A. Procaccia's judgment (December 14, 2009) (hereinafter: the "Legal Forum B Case")).

 

 

 

 

In principle, the judicial review that is applied to the Knesset's quasi-judicial decisions is the same as the judicial review that is directed towards quasi-judicial authorities (see: ibid). However, in contrast to other quasi-judicial authorities, the Ethics Committee of the Members of Knesset, mainly addresses internal Knesset matters that relate to discipline and the ethics of its members. "[…] the essence of the activity of the Ethics Committee, in contrast, for example, from the removal of immunity which is performed by the Knesset Committee, is directed internally towards the Knesset, and in fact, in general its actions do not have any implications outside of the house of legislators" (the Makhoul Case, on page 343). Therefore, it was ruled that this Court's intervention in the decisions of the Ethics Committee should be in a more limited scope than the scope of intervention in the activity of other quasi-judicial entities in the Knesset (see: ibid). This reflects the Ethics Committee's broad scope of discretion, when handling matters of ethics and discipline of members of Knesset. The Court may intervene when the Ethics Committee's decision was reached in violation of law, or when at hand are material matters such as a violation of basic constitutional rights, the right to due process or violation of the  principles of natural  justice (see: the Legal Forum A Case, paragraph 6 of my judgment; the Legal Forum B Case, paragraph 22 of Justice A. Procaccia's judgment). In general, "[…] the more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the  actions deviates from the proper extent, this more this Court will be willing to intervene" (the Makhoul Case, on page 344).

 

38.          As mentioned above, the Ethics Committee ruled that the Petitioner's remarks, in light of their content and sensitive timing, do not coincide with the best interest of the State and severely prejudice the public's trust in the Knesset and its image. Hence, the Ethics Committee ruled that the Petitioner's remarks violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. For the sake of clarity, I shall requote these Rules verbatim:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4)          Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

The language of Rules 1A(2) and 1A(4) is broad and leaves room for the Ethics

 

 

 

Committee's discretion regarding the manner of their application in specific cases. Such application must be in accordance with the objectives underlying these Rules. The Rules of Ethics reflect the principle that a member of Knesset, as an elected official, is also a trustee of the public. As such, he must make the public interest a higher priority compared to his personal matters. This also leads to the need to preserve the public's trust in the Knesset, and the Rules of Ethics are a means to realize this trust (On the importance of public trust in governmental authorities in general, see HCJ 6163/92 Eisenberg v. The Minister of Construction and Housing, PD 47(2), 229 (1993); and also see: HCJ 4921/13 OMETZ – Citizens for Good Governance and Social Justice v. The Mayor of Ramat Hasharon (October 14, 2013)).

 

39.          It is, therefore, my opinion that the committee's conclusions did not deviate from the broad range of discretion granted to it. The Petitioner's statements in the Interview and the Article were interpreted as a support of terror and the killing of civilians. In the case at hand it is not criticism of the government's policy during wartimes that is at issue and not even criticism of legislation in the Knesset or of other political maneuvers of the majority. The severity of the matter is enhanced considering the timing of the Petitioner's remarks, just a few days after the abduction of the teenagers, at a time when their fate was unknown, and in the midst of the "Protective Edge" operation. Additionally, the cumulative effect of the Petitioner's remarks, which were published in proximity to each other, must also be taken into consideration. Considering all of the circumstances of the current case – the Petitioner has gone too far. The Ethics Committee ruled that the Petitioner's statements amount to "legitimizing acts of terror against the citizens of the State", and that this is a violation of the Rules of Ethics. Indeed, words of support of terror of any kind, from either side, could severely prejudice the public's trust in the Knesset and its image. Therefore, and taking into consideration the nature of the Petitioner's remarks and their timing, it is inappropriate to intervene in the committee's conclusions that the Petitioner's statements severely harm the public's trust in the Knesset and its image, and violate Rule 1A(4) of the Rules of Ethics. The committee further ruled that the Petitioner's remarks violate rule 1A(2) of the Rules of Ethics that, inter alia, provides that a member of Knesset shall act to advance the State's best interest. It appears that the main objective of this rule is to guarantee that members of Knesset will act for the sake of the public interest, and shall not take advantage of their status and authorities for the sake of personal matters. In the case at hand, prima facie, the Petitioner's remarks were not intended to promote her personal affairs. Notwithstanding, it appears that both extreme remarks and actions which legitimize acts of terror against the citizens of the State do not coincide with the State's best interest (compare: the Miari Case, on pages 226-227). The Petitioners themselves agreed that statements that encourage and support violence are not legitimate. In support thereof, both in the Petition and in the hearing before us, the Petitioners provided a series of "explanations" of the Petitioner's remarks, and asked that we not perceive them as supporting terror. With respect to the Petitioner's statements regarding the abductors of the teenagers

– "they are not terrorists" – it was explained that the Petitioner's principle position is not to use the term "terror" in Israeli media. Since, according to her, the term "terror" is used in Israeli media only to describe Palestinian violence and not to describe Israeli violence against the Palestinian population. As to the Petitioner's Article, the Petitioner's intention when calling upon the Palestinians to turn to

 

 

 

"popular resistance" and to impose a "siege" on Israel, which was interpreted by the Ethics Committee as supporting a violent uprising against the State of Israel, was not explained in the Petition. In his oral arguments before us, the Petitioner's attorney explained that the Petitioner's intention in her Article was to encourage non-violent civil Palestinian resistance, and to express support for a "political siege" on Israel. In response to our questions, the Petitioner's attorney even stated that if the Petitioner's intention was to support a military siege, this would be problematic. However, these explanations were given retroactively, by the Petitioner's attorney, and not by the Petitioner herself. The Petitioner did not provide them to the Ethics Committee in her filed response and not even to the Knesset plenum in her appeal. It would have been appropriate for the Petitioner's explanations to be given in the framework of her response to the complaint that was filed to the Ethics Committee, and at least in the framework of her appeal of the committee's decision (compare: the Makhoul Case, on page 344). In any event, these explanations – which as mentioned were only given retroactively – are not sufficient to justify our intervention in the Ethics Committee's decision. The Petitioner's remarks were not published in the media with explanatory notes. The spirit of the statements, despite the Petitioner's later reservations, is that of identification with acts of terror and support of violence, as a means of attaining political objectives. In my opinion, in these circumstances it is inappropriate to rule that the Ethics Committee's decision that the Petitioner violated the Rules of Ethics was flawed in a manner that justifies our intervention. I shall clarify that this judgment only addresses the violation of the Rules of Ethics by the Petitioner, and no other matter.

 

40.          The Petitioners requested that we intervene in the sanction that was imposed upon the Petitioner, due to it being, according to them, discriminatory and disproportionate. We have ruled, by a majority of opinions, that such intervention is inappropriate in the circumstances at hand. I elaborated above on the fact that the Ethics Committee has broad discretion, and this is true also with regard to prescribing the sanction. However, the committee's broad authority is not to be interpreted as a permit to impose arbitrary sanctions. When imposing a sanction due to the violation of the Rules of Ethics, the Ethics Committee must take a variety of considerations into consideration. In general, the sanction imposed must be proportionate to the severity of the ethical offense committed by the member of Knesset (see: the Makhoul Case, on page 344). Subsequently, the committee must take the severity of the offense and the circumstances in which it was committed into consideration. As to remarks by members of Knesset, their content, subject matter and timing must, inter alia, be taken into consideration. A remark that slanders or humiliates individuals and publics does not carry  the  same consequence as another extraordinary and extreme remark (see also in this matter: the Ethics Committee's Decision "In the Matter of the Amendment of the Knesset Members Immunity, Rights and Duties Law, 5711-1951" (June 24, 2002)). Among all of its considerations, the Ethics Committee must also include the circumstances of the concrete member of Knesset who is being judged thereby, including the question whether he expressed remorse for his actions and his entire disciplinary past (for Ethics Committee decisions in which such considerations were considered, see, for example: The Knesset's Ethics Committee's Decision "In the Matter of Ziv Price, Eliezer Dvir and Pinchas Wolf against Knesset Members Ahmad Tibi, Taleb el-Sana and Jamal Zahalka" (June 22, 2004) (hereinafter: the

 

 

 

"Decision in the Matter of Knesset Members Tibi, el-Sana and Zahalka"); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Limor Livnat, Minister of Education, Culture and Sport against Knesset Member Issam Makhoul" (December 21, 2004); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 19, 2005); the Knesset's Ethics Committee's Decision "In the Matter of the Complaints of Knesset Member Arie Eldad and Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 26, 2005); the Makhoul Case, on page 344; and compare to Decision 64/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Danny Danon against Knesset Member Hanin Zoabi" (January 3, 2012) (hereinafter: "Decision 64/18")). It must also take the punishing standard in similar cases into consideration.

 

And From These General Principles – To the Case at Hand.

 

41.          In the circumstances at hand, we have not found it appropriate to intervene in the sanction that was imposed upon the Petitioner. The Ethics Committee has a broad range of proportionality and the Petitioner's remarks are especially severe, particularly – considering their timing. The severity of the statements is also reflected in the Attorney General's decision in the Petitioner's matter. While the Attorney General did not find justification to open a criminal investigation in this case, he did find it appropriate to state that his decision does not prevent taking actions against the Petitioner at an administrative or ethical level (also compare with: the Sufrin Case, on page 188). The Ethics Committee also took the impact of the decision and its accompanying sanction on the Petitioner's freedom of expression into consideration among the entire considerations, and emphasized the importance of the right to publicly criticize the government during times of war. The Ethics Committee indeed weighed relevant considerations from every direction, which were reflected in the reasoned decision. The Petitioner was given the right to be heard both before the committee and before the Knesset plenum, in the framework of her appeal. In addition, according to the data on the Knesset's website, the decision to reject the Petitioner's appeal was adopted by a significant majority, which also included members of Knesset from the opposition, and on the other hand, one of the members of Knesset from the coalition voted in favor of accepting the Petitioner's appeal. The proceeding in the case at hand was conducted while maintaining the Petitioner's procedural rights. The Petitioner's conduct during the procedure created the impression that she did not take it seriously. As mentioned, some of her explanations were first presented during oral arguments before us, by her attorney and not by her.

 

42.          Indeed the sanction that was imposed upon the Petitioner – being removed from sessions of the Knesset's plenum and its committees for the maximum possible period of time – is the most severe sanction in the existing scale of penalties. There was no dispute that this sanction had never in the past been imposed for the maximum period of time prescribed in the Immunity Law. However, in the circumstances of the case, the Petitioners' argument of discrimination and lack of proportionality, cannot be accepted. This is not the first time that the committee attributes significant severity to such remarks, remarks that encourage acts of terror or violence (see: the Decision regarding the "Martyrs Day", the Decision

 

 

 

regarding Supporting the Intifada). At the ethical level – which is meant, inter alia, to preserve the public's trust in the Knesset – remarks that express support of terror or violence against citizens, are no less serious than threats or slander that are directed at a specific sector or person. In this context it shall be noted that the majority of the decisions that were quoted in the Petition do not address remarks of this kind, and in any event not remarks during times of war or terror events. I have not ignored the judgments in the above-mentioned Szel Case and Karacsony Case, in which the European Court of Human Rights addressed fines that were imposed on opposition members of Parliament in Hungary, due to unethical conduct during sessions in parliament. At issue there, were acts of protest against a controversial bill (in the Szel Case) and acts of protest against the conduct of the majority party (in the Karacsony Case). These acts of protest included, inter alia, waving signs. The European Court ruled that indeed the fines that were imposed infringed the members of Parliament's right to freedom of expression in a disproportionate manner and ordered that they be cancelled; however the remarks in these cases are less severe than in the case before us. The Ethics Committee indeed has never before imposed a penalty of removal for the duration of six months, but penalties of this kind had been imposed for shorter periods of time – both for remarks and for actions (see, for example: Decision 7/19 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Meir Porush" (November 13, 2013) (removal from Knesset plenum sessions for two weeks); Decision 66/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Anastasia Michaeli" (January 10, 2012) (removal from sessions of the Knesset plenum and its committees for a month); The Decision in the Matter of Knesset Member Eldad (removal from sessions of the Knesset plenum and its committees for one day); The Decision in the Matter of Knesset Member Tibi, el-Sana and Zahalka (removal from sessions of the Knesset plenum and its committees for two days)). An examination of the Petitioner's entire disciplinary past indicates that her remarks have been discussed by the Ethics Committee many times. In some of the cases it was found that she did not violate the Rules of Ethics or that it is inappropriate to impose a sanction for her remarks, and in some of the cases various penalties were imposed upon her (see, for example: Decision 64/18; Decision 55/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Hanin Zoabi due to her Participation in the Flotilla to Gaza in May, 2010" (July 18, 2011); Decision 52/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Legal Forum for Israel against Knesset Members Hanin Zoabi and Jamal Zahalka" (July 5, 2011)). I shall at this point note that in my opinion no weight should be attributed to the mere filing of complaints against a member of Knesset, as in the case at hand. According to the law, any person may file a complaint against a member of Knesset (Section 1of the Knesset Members Ethics Procedure (Complaints)). Many complaints are not accepted and many are dismissed in limine. Granting weight to complaints that were filed – even if they were not found to have any substance – could lead to abuse of this tool and to unjustified harm to members of Knesset. However, this consideration did not receive significant weight in the decision which is the subject of our discussion.

 

43.          I shall not deny that I was concerned by the "quantum leap" in the sanction that was imposed in this case. As may be recalled, the sanction of removal was added

 

 

 

to the Immunity Law in 2002, and as such, in general, should be imposed gradually (see and compare: Criminal Appeal 1042/03 Meretzplas Limited Partnership Ltd. (1974) v. The State of Israel PD 58(1) 721, 731-732 (2003); Criminal Appeal 7936/13 Levy v. The State of Israel, paragraph 46 of Justice N. Solberg's judgment, paragraph 2 of my judgment (December 16, 2014)). However, from a practical perspective, we are not dealing in this case with the Petitioner's complete removal from the Knesset's activity for six months. The summer recess, during which the Knesset operates in a limited format, took place during the first half of the removal. During the recess the Knesset plenum convenes only in extraordinary cases and Knesset committees also convene less frequently. As such, during the recess the two committees in which the Petitioner is a member convened only five times (but it shall be noted that meetings of other committees were also held), while according to the Knesset's website, during the month of November, these committees held more than twenty meetings. Furthermore, there was an elections recess during the seven weeks that remained of the period of removal, from the time of the hearing before us that was held on December 9, 2014, and the judgment that was given the following day. Therefore, the practical significance of intervening in the sanction in these circumstances is miniscule, if at all existent. I shall emphasize that in any event, the Petitioner's right to vote was not denied, and furthermore, that the sanction does not prevent the Petitioner from using parliamentary tools, such as filing bills, proposals or questions. At issue also is not a suspension from the Knesset (compare: the Flatto Sharon Case, on page 126). Considering all of the reasons mentioned above, I have not found justification for our intervention in the broad discretion granted to the Ethics Committee.

 

44.          Epilogue: The Petition is denied without an order for expenses, as stated in our judgment dated December 10, 2014.

 

The President

 

Justice E. Hayut

 

1.            I concur with the opinion of my colleague the President, both with regard to the question of the Ethics Committee's authority to impose sanctions against the Petitioner for the remarks which are the subject of the Petition and with regard to the conclusion that the authority in the circumstances at hand was exercised lawfully. I also share my colleague's remarks (paragraph 43 of her opinion) regarding the excessive severity of the sanction that was exercised in the case at hand. However, like my colleague, I am of the opinion that it is inappropriate to intervene since in the case at hand the severity of the sanction has de facto been mitigated to a considerable degree, given the fact that the majority thereof occurred during the summer recess – and this was taken into consideration by the committee – and during the election recess – even though this was not known at the time the sanction was imposed.

 

Due to the matters that emerged in this Petition, the importance of which cannot be overstated, I have found it appropriate to add two short comments: one – relates to not exposing the minutes of the Ethics Committee and the material presented thereto to be reviewed by the Petitioner despite her request in this

 

 

 

matter, and the second – relates to limiting the freedom of political expression of an elected official who represents a minority group in society.

 

The  Refusal  to  Deliver  the  Minutes  of  the  Committee  and  the  Material Presented thereto to the Petitioner's Review

 

2.            My colleague elaborated in her opinion on the fact that the Petitioner approached the Ethics Committee and requested, "in order to file a petition to the High Court of Justice", to review the minutes of its meetings and the material presented thereto in preparation for it reaching a decision, but was refused. The Knesset's legal counsel reasoned the refusal by referring to Rule 21 of the Rules of Ethics for Members of Knesset, which provides that the ethics proceedings, including the documents and the minutes, are privileged, and are not to be published except with the committee's written permission, and subject to the terms it shall prescribe. The legal counsel further stated in his response to the Petitioner that while the use of material and minutes of the committee's meetings for the purpose of legal proceedings is one of the exceptions the committee recognizes in this context, it is his position that this should not include a legal proceeding that is meant to challenge the decision of the Ethics Committee itself, due to the concern that this could adversely affect the committee members' ability to properly fulfill their duties. Finally, the legal counsel stated in his response to the Petitioner that if the Petition shall be filed, the minutes of the committee's session shall be delivered for the Court's review only. And indeed, immediately following the filing of the Petition, the Respondents delivered the minutes of the committee's session, in a sealed envelope to be reviewed only by the members of the bench.

 

During the hearing that was held before us on December 9, 2014, the Petitioners' attorney informed us that in order to make the hearing more efficient and to move it forward, he does not insist on the arguments he raised in the Petition regarding the refusal to provide him with the minutes of the committee's session and the material that had been presented thereto, while reserving his arguments in this matter. As such, my colleague did not find it necessary to refer to this matter in her opinion. Without setting rules in the matter, I find it appropriate to note that in my opinion the Knesset legal counsel's  reasons for refusing to make the minutes of the committee's session and the material that had been presented thereto available to the Petitioner, create non-negligible difficulties, in light of the distinction he made between general legal proceedings and legal proceedings that are intended to challenge the disciplinary decision that was adopted by the committee. It appears to me that not making the minutes and the material available to the Petitioner in these circumstances significantly impairs her ability to effectively challenge the decision and therefore it appears to me that the position presented by the Knesset's legal counsel in this context should be reexamined. This Court has elaborated in the past on the intensity of an individual's interest to receive detailed information  regarding a proceeding – disciplinary or other – in which a decision regarding him has been reached, especially in the context of a judicial proceeding against which he wishes to take action, so as to allow him to exercise his right to due process. In HCJ 844/06 Haifa University v. Oz (May 14, 2008) it was ruled in this context as follows:

 

"Whatever the extent of concern that the functioning of the

 

 

 

university examination committees will be impaired, that concern is subordinated to the need to allow the employees who were harmed by the conclusions of these committees to defend themselves against that which was attributed to them and to prove their argument that the decision regarding them was not lawfully adopted… The underlying rationale of this approach is that there is a significant social interest in giving the employees the possibility of exhausting their rights, and the interest of the efficient functionality and existence of such examination committees, however important it may be, does not in and of itself justify recognizing the material as privileged. This is certainly relevant when, as in the case at hand, there was a proceeding before a judicial instance which is addressing a question of the legal validity of the petitioner's decisions regarding changing the terms of employment of respondent 1 and terminating the employment of respondents 2 and 3. In this context, the interest that exists that the said examination committees be efficiently functional is subordinated to the respondents' right to due legal process, in the framework of which they shall be granted the possibility of reviewing all of the material relevant to establishing the arguments against terminating their employment in the School of Theatre" (the Oz Case, paragraph 18, see also: Permission for Civil Appeal 7568/00 The State of Israel – Civil Aviation Administration v. Aharoni, PD 55(5) 561, 565

(2001)).

 

It is my position that the intensity of this interest is certainly not weakened when at hand is a disciplinary proceeding that is being taken against a member of Knesset, and in this context it is not superfluous to add that the proper balance between the need to preserve the proper functionality of the Ethics Committee – the importance of which was elaborated upon in the Knesset's legal counsel's response – and the Petitioner's right to due process, can be obtained by way of stipulating terms and preventing the exposure of certain details, for example with regard to the identity of the speakers in appropriate cases, as per the committee's authority pursuant to the end of Rule 21 (see and compare: HCJ 7793/05 Bar- Ilan University v. The National Labor Court in Jerusalem, paragraph 20 (January 31, 2011); Administrative Petition Appeal 6013/04 The State of Israel

– Ministry of Transportation v. The Israel News Company Ltd. PD 60(4) 60, 96 (2006)). In any event, once the Petitioners did not insist on their argument in this matter, then, as my colleague chose, the ruling on this matter can be left for another time.

 

 

 

Limiting  the  Freedom  of  Political  Expression  of  an  Elected  Official  who Represents a Minority Group in Society

 

3.            In her opinion, my colleague elaborated on the distinguished and special status of the freedom of political expression in the order of constitutional rights, particularly when at hand is a member of Knesset who represents a minority group. This position is grounded in the past rulings of this Court, in HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336-338 (2006), and in the ruling of the European Court of Human Rights (Szel v. Hungary, 44357/13 (2014) at para 69; Karacsony v. Hungary, 42461/13 (2014) at para 72) to which my colleague referred. See also Tarlach Eoghan McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (PhD Thesis, University of Amsterdam, 2008) for the special importance of protecting the freedom of expression of minority groups, in general, and the duty imposed on the state to restrain the infringement of this freedom of expression and to take measures to allow it to be realized.

 

However, the attempt to define what a "minority group" is, is not always an easy task (see and compare for example: Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel 1, 42 (January 12, 2015). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2548548; Civil Appeal 466/83 Shahe Ajemian, Archbishop in the Armenian Church in Jerusalem v. Archbishop Yeghishe Derderian, PD 39(4) 737, 747 (1986)), and it should also be noted that at times there can be situations in which it appears that it is actually the freedom of expression or other freedoms of the majority that are at risk and need steadfast protection against being infringed upon by certain minority groups. In any event, the freedom of political expression of an elected official, as well as an elected official who represents a minority group, is not absolute, but rather, as any other constitutional right, is relative, and it is not a freedom that is free of any limitations whatsoever. Like my colleague, I am of the opinion that in the case at hand, the Petitioner's remarks crossed the line and exited the zone worthy of protection in the name of freedom of political expression, even considering the fact that she represents a minority group in Israeli society. The Petitioner's statements in the Interview, regarding the abduction of the teenagers, reflect understanding and legitimization of the atrocious act of abduction, and identify with those who committed the act, whom, according to her, should not be referred to as "terrorists". The words the Petitioner wrote in the Article that was published on various websites are no less severe from the perspective of the Rules of Ethics that apply to someone who serves as a member of the Israeli Knesset. In that same Article, the Petitioner went so far as to hand out advice as to the effective ways in which it is possible to fight the State and to harm it. Inter alia, it was written in said Article: "We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith". These words, when voiced by a person who is a member of the Israeli Knesset, justify the steps taken by the Ethics Committee, because they illustrate that what the Petitioner had in mind when writing that Article was neither "the advancement of society and the best interest of the State" nor "fostering public trust in the Knesset". The Petitioner advocates to cease the coordination and the

 

 

 

negotiations between Israel and the Palestinians, which according to her are nothing but part of what she refers to as the "lethal trinity" and instead of negotiations and coordination she calls for popular resistance and imposing a siege on Israel. The Petitioner's attorney's attempt to retroactively argue that this is not a call for violence, is perplexing, inter alia, given the manner the term "popular resistance" is de facto implemented in the reality of our lives.

 

It is important to emphasize that remarks, and particularly remarks by elected officials, which constitute criticism and even extremely harsh criticism, of government policy are completely legitimate, and this is true with respect to remarks that emphasize the suffering of the other party to a conflict and which exhibit empathy towards and understanding of such suffering. This Court elaborated on this in the early days of the State, when stating that the difference between an autocratic regime and a democratic regime is marked by the possibility that is granted to the representatives chosen by the people to scrutinize the acts of government at any time "Whether to cause such acts to be rectified and create new arrangements in the State, or to bring about the immediate termination of those 'governing' or their replacement by others when comes the elections" (HCJ 73/53 'Kol Ha'am' Company Ltd. v. The Minister of Interior PD 7(1) 871, 876 (1953)). However, as mentioned, the Petitioner's remarks, for which the Ethics Committee deemed it appropriate to apply sanctions against her, completely deviated from this legitimate category, even if one takes into consideration the special caution that must be  applied  when dealing with the freedom of political expression of an elected official who represents a minority group.

 

4.            My colleagues emphasized the excessive severity that accompanies  the Petitioner's remarks given that they were made during times of war and crisis. I am of the opinion that it is inappropriate to set different criteria for the protection of the freedom of expression during times of crisis compared to those that should be applied during times of calm. However, it is clear that the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis. President A. Barak elaborated on this in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), when he stated that:

 

"Indeed, Israeli constitutional law has a uniform approach to human rights during times of relative calm and during times of enhanced war. We do not recognize a sharp distinction between the two. We do not have special balancing laws for times of war. Of course, human rights are not absolute. They can be limited during times of calm and times of war… During times of war the likelihood that damage to a public interest shall occur is greater, and the harm to the public interest is more intense, and as such it is possible to limit rights in the framework of the existing criteria… Indeed we do not maintain two systems of rules or balances, one for times of calm and other for times of terror. There is a uniform set of laws and balances, which applied both during times of calm and times of terror (the Adalah Case, paragraph 20; see

 

 

 

also: Abrams v. United States 250 U.S. 616, 627-628 (1919)).

 

Based on the grounds listed by my colleague the President, to which I added a few comments, I am of the opinion that the Petition is to be denied.

 

Justice

 

Deputy President E. Rubinstein

 

A.            I concur with the comprehensive reasons written by my colleague, the President.

 

B.            I shall add some brief remarks: Section 1(A1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 is somewhat of a mirror image of Section 7A of the Basic Law: The Knesset which was adopted a short while earlier and defines when a list or a candidate shall be prevented from participating in the elections to the Knesset.

 

C.            Section 7A of the Basic Law: The Knesset, which was adopted on the 4th of Iyar, 5762 (May 15, 2002) (Sefer Hachukim 5762, 410) prevents a party or a candidate from participating if their goals or actions "explicitly or implicitly include one of the following: (1) denial of the existence of the State of Israel as a Jewish and democratic state; (2) incitement to racism; (3) support of an armed struggle by an enemy state or of a terrorist organization against the State of Israel".

 

D.            Section 1(A1) of the Immunity Law which was adopted on the 13th of Av, 5762 (July 22, 2002) (Sefer Hachukim 5762, 504) excludes that which is listed below from the material immunity of Section 1(A1) of the law which addresses a vote, an expression of opinion or an act while fulfilling the position or for the sake thereof – and we shall already take note of the similarity to Section 7A of the Basic Law:

"(1) Denial of the existence of the State of Israel as the state of the Jewish people.

(2)          Denial of the democratic nature of the State;

(3)          Incitement to racism due to color or belonging to a race or ethnic national origin;

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs due to their being Jewish or Arab, in Israel or abroad."

 

E.            It is not necessary to conduct a meticulous comparison between Sections 1(A1) of the Immunity Law and 7A of the Basic Law in order to receive the impression that we are dealing with provisions that are comparable and correspond to each other. The legislators of Section 1(A1) had the model of the Basic Law before them; see the bill that was filed by Knesset Members Eliezer Cohen, Zvi Hendel, Michael Nudelman and Nissim Ze'ev, Hatzaot Chok 5762, 210, which explicitly addresses this. I shall note that I reviewed the discussions in the plenum in the first reading on January 29, 2002 (in the second and third readings on May 27, 2002, no real discussion was held) and the matters discussed were split between left and right; there was also a reservation to the bill by Minister Dan Meridor. In

 

 

 

any event, the amendment was legislated.

 

F.            In light of the above, it is clear that we are dealing with the core of the Israeli parliamentary duty to which the members of Knesset pledge allegiance pursuant to Section 15(a) of the Basic Law, as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to fulfill my mandate in the Knesset"; Knesset Member Zoabi also pledged this when declaring "I Pledge" (Section 1(c) of the Knesset Law, 5754-1994). We are not dealing with a marginal matter, but rather one which is undoubtedly at the root of being a member of Knesset; the legislators of Section 1(A1) of the Immunity Law – as mentioned – viewed the matters therein as drawing sustenance from Section 1A of the Basic Law. This Court applied a very restrained approach in the context of Knesset Member Zoabi's candidacy to the Knesset with regard to her compliance with the terms of Section 7A of the Basic Law: The Knesset. Until now an extremely lenient approach was preferred with respect to her, and I shall only mention Election Approval 9255/12 The Central Election Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment dated December 12, 2012, reasons dated August 30, 2013); where President Grunis spoke (in paragraph 34) of Knesset Member Zoabi's activity which "comes very close to the grey area of which Section 7A warns and which it is meant to prevent", and of evidence that came close "to that 'critical mass' of evidence that justifies disqualification" – but the line was not crossed. Additional justices on the bench in that judgment expressed a similar spirit, but the judicial policy of narrowly and stringently interpreting the causes in Section 7A of the Basic Law as being designated for "most extreme cases which cannot possibly be dealt with using ordinary democratic tools" (paragraph 35), was upheld. In the context of the elections, a non-excluding approach was preferred, and subsequently the judicial and democratic tolerance was flexed to its limits. I mention this because ultimately the legal significance is that once Knesset Member Zoabi was elected to the Knesset and pledged allegiance to the State, she is in her position by right and not by grace; see Nathan Alterman's unforgettable poem "The Rebuke to Tawfik Toubi" (The Seventh Column A 276) of the 1950's (also quoted in my article "On Equality for Arabs in Israel" in my Netivei Mimshal UMishpat book (5763- 2003), 278), in which, inter alia, it was said "Such is the nature of democracy: Her servants owe gratitude to no person; In part it may not be easy, but if it shall not go without saying, it shall not be understood by us at all". Often the things that Knesset Member Zoabi says and does are not easy for many Israelis, but they are to be considered "the choosing of the lesser of two evils" (as the words of the Mecelle), and her parliamentary right is in place.

 

G.           We now approach the Rules of Ethics, which are an internal parliamentary layer, and in my opinion should be interpreted both based on their content and taking into consideration the general background of a member of Knesset's obligations, on the one hand, and his or her immunity and the exceptions thereto, on the other hand. Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, "a pressure release valve" to maintain a framework of parliamentary norms. My colleague listed the general values underlying the Rules of Ethics (in paragraph 23), and in the matter at hand, we are dealing with Rule 1A(2) which designates the member of Knesset as "a trustee of the public and it is his duty to represent the public that voted for

 

 

 

him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;" and with Rule 1A(4) pursuant to which the member of Knesset shall "preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset". Indeed, these rules address  fundamental values, but, similarly to my colleague (paragraph 32), I do not accept the argument that they do not have an independent standing; in my opinion they are the soul of the Rules of Ethics, they are what gives them their real essence and their proper application.

 

H.            As my colleague mentioned (paragraph 26), the parties to this Petition assumed that the Petitioner's remarks which are the subject of the complaints are covered by the material immunity by virtue of Section 1(a) of the Immunity Law, which – as mentioned – grants immunity "due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset". I shall take the liberty to doubt whether Knesset Member Zoabi's words which we are addressing meet the criteria of Section 1(A1)(4) which excludes "support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad." However, even with the lenient assumption that my colleague described, it is clear that there is nothing preventing discussing Knesset Member Zoabi's remarks at an ethical level.

 

I.             We shall briefly review the actual remarks.

 

J.             First of all, the interview on June 17, 2014, five days after the abduction of the three teenagers Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may G-d avenge their deaths. According to Knesset Member Zoabi, the abductors, the abductors of innocent teenagers, "are not terrorists… even if I do not agree with them, they are people who do not see any opening…, and they are forced to use these means". It is known that throughout the world and in international law there are disputes as to the definition of terror, and it has already been said that a freedom fighter for one is a terrorist for the other. But is there a humane human in their right mind who would not deem the abduction of the teenagers and their cold blooded killing anything other than terror? Must the national liberation for the Palestinians, for which Knesset Member Zoabi is wishing, pass through despicable crimes of terror? And the stretched explanation that was voiced, that her statements were said because terror is only attributed to Arabs and not to Jews cannot hold water, inter alia, because acts of terror by Jews are on more than one occasion referred to as "Jewish Terror", and an simple surfing on the internet with such headline will prove this. Terror is terror is terror, regardless of who performs it, Jews, Arabs or others. Hence, can it be said, in this case, that the value of a member of Knesset's duty to serve human dignity, as appears in Rule 1A(2), was not violated? – There is no greater human dignity than the sanctity of life itself; "There shall be no violation of the life, body or dignity of any person as such." (Section 2 of the Basic Law: Human Dignity and Liberty, and see also Section 4 of the Basic Law).

 

 

 

 

K.            Secondly, the call in the article dated July 13, 2014, to the Palestinians "… to impose a siege on Israel instead of negotiating therewith". These words should not be read as a sacred text with multiple interpretations, but given the context of the matters which is "(Israel's – E.R.) detestable trinity: the fence, the siege and the coordination", it is extremely difficult to interpret the call to "impose a siege on Israel" as only a "political siege" (not that such a call in and of itself would be permitted and legitimate), but rather as an armed siege. If we shall read these statements in light of the "State's best interest" chapter in Rule 1A(2) of the Rules of Ethics, we shall ask ourselves whether a call to impose a siege on the State can be in the "State's best interest" – and this is not a political slogan of "saving Israel from itself", which some of Israel's "friends" raised in the past, but, as my colleague stated, rather an unexplained statement – which simply means joining forces with the State's enemies. The answer cannot be positive; and the forced interpretation that was given, even though it was not from the member of Knesset but rather from those supporting her, is not convincing. In light of all of that stated above, one cannot cast a doubt regarding the violation of the Rule of Ethics.

 

L.             Indeed, Knesset Member Zoabi is from a minority in Israel – and it is appropriate to apply interpretation that takes this into consideration and expands the limits of patience and tolerance; but in the case at hand, as my colleague also stated (paragraph 39) it simply went too far. Of course, this is enhanced by the timing, during the search for the teenagers, while the sounds of the cries of the mothers and fathers were heard, and during severe combat – the member of Knesset was undermining any common ground that exists and should exist among the entire Israeli public, without any explanation which could, even at a stretch, be acceptable.

 

M.          One must not criticize the members of the Central Ethics Committee, who, when dealing with the ethical level, did not take the approach of those three monkeys who do not hear, do not see and do not speak, since at hand are the core and essence of principle, central ethical obligations. Therefore, I agree with  the rulings of my colleague, the Deputy President, for example in paragraphs 31-32, 35, 39, in the principle questions that were addressed here. At issue is not the matter of the limits of the freedom of expression, which the State of Israel maintains on a very high level, as emerges from the rulings of this Court – and I personally doubt whether the type of statements that underlie this case would even be acceptable in a country that maintains ultimate freedom of expression such as the United States, pursuant to the First Amendment of its constitution. The matter at hand is the ideological base that is – or should be – shared by all members of Knesset, and which in the absence thereof – there is no survivability. I shall re-emphasize that in my opinion one of the more burdening parts of the story, as also emerges from the words of my colleague, in addition to the statements themselves, is the explanations – or the lack thereof – with respect to the remarks; it is clear that Knesset Member Zoabi's explanations are extremely stretched, and her attorney had to, skillfully, try to fill voids, at times in an impossible manner, as is stated in the Bible: "Wilt thou put out the eyes of these men?" (Numbers, 16, 14).

 

 

 

N.           Finally, as to the sanction, which ultimately ended up being more in the symbolic dimension than one of essence or substance, since, as my colleague described, it was eroded between a recess and elections, and therefore it clearly had a weak impact.

 

O.           Upon reading the opinion of my colleague, Justice Hayut, in paragraph 2, regarding the delivery of the minutes of the Ethics Committee's session to the Petitioner, I shall request only to state that we are dealing with a very delicate balance, which is intended to protect the committee members' freedom to express themselves freely on the one hand, and fairness towards the injured member of Knesset, on the other hand. As my colleague mentioned, this matter has emerged in other contexts as well. The difficulty is that even when the exposure of certain details, such as the identity of the speakers, is prevented, it is easy to comprehend that the matter still remains complex, since in a small committee (as opposed, for example, to the other Knesset committees which are large), anyone who is able to figure things out will not have difficulty identifying the speakers. Since the matter remains to be further addressed, it does not have to be ruled upon now.

 

P.            Further to the remarks of my colleague, Justice Melcer, I shall concur with his statements regarding the relationship between law and ethics. It is known that ethical duties also apply to us as judges. The Jewish Law also addresses the distinction between ethics and the letter of the law, and as we – Judge Eran Shilo and myself – wrote in an article that is scheduled to be published in the Zvi Tal Book, "Judicial Ethics in Jewish Law", "The rules of ethics are rules that professionals took upon themselves, as opposed to the law – which is externally imposed upon them, as upon the entire public"; Furthermore – "The distinction between ethics and law is what allows the judge, in circumstances that justify it – to exercise discretion with respect to the norms that are prescribed, knowing that the letter of the law that guarantees a just trial shall not be prejudiced". In the case at hand, we are dealing with the legislator itself, who also prescribes the law and not only the rules of ethics, and therefore we can adjust that which is stated and say that the Rules of Ethics are directed internally, towards the sphere of parliamentary conduct, while the law that is legislated by the Knesset is directed externally, towards everyone. However the ethical matters in the Knesset are obviously uniquely public due to the institution's status and importance, and they are meant to draw behavioral lines so that the legislator shall know its own limits, not only through constitutional review but also within the boundaries of conduct that befits those who represent the entire Israeli public.

 

Q.           My colleague, Justice Melcer, addressed the pledge of allegiance, similarly to my words in paragraph F above. It is known that the wording of this declaration is defined and a member of Knesset is not permitted to add anything thereto (HCJ 400/87 Kahane v. The Chairperson of the Knesset PD 41(2) 729); The declaration (Section 15(a) of the Basic Law: The Knesset) addresses "Bearing allegiance to the State of Israel and faithfully fulfilling my mandate in the Knesset"; similarly, the President of the State is also required to "bear allegiance" (Section 9 of the Basic Law: The President), as are the Prime Minister and ministers (Section 14 of the Basic Law: The Government), judges (Section 6 of the Basic Law: The Judiciary – which was applied as early as in 5708 (my book The Judges of the Land (5741-1980), 79); religious judges (Section 10 of the

 

 

 

Religious Judges law, 5715-1955); Qadis (Section 7 of the Qadis Law, 5721- 1961), and Madhhab Qadis (Section 13 of the Druze Religious Courts Law, 5722-1963), as well as the State Comptroller, pursuant to Section 9 of the Basic Law: State Comptroller. In my opinion, by pledging this allegiance those filling these positions express the expectation of an extra degree of loyalty by any personality filling a governmental position, beyond the basic loyalty imposed by citizenship (see Section 5(c) of the Citizenship Law, 5712-1952, in which a person being naturalized pledges to be a "loyal citizen". The pledge of allegiance is a deep moral instrument, and as stated, is at the root of being a member of Knesset, and is a common thread that connects all holders of senior positions in the government system, in the framework of their mandate. One must either be a great believer or greatly naïve, to be of the opinion that Knesset Member Zoabi's statements which we are addressing here, constitute bearing allegiance.

 

R.            As to the position of my colleague, Justice Joubran: There is no dispute regarding the centrality of freedom of political expression  and the significance of the material parliamentary immunity, even what at issue is the expression of outrageous opinions. This is true for all and especially in the case of minorities from various sectors. This stems from us being a Jewish and democratic state, and from the legacy of the prophets of Israel, and as prophet Isaiah said (58, 1) "Cry aloud, spare not, lift up thy voice like a horn, and declare unto my people their transgression, and to the house of Jacob their sins."; see also the principle paragraph in the Declaration of Independence which establishes the State of Israel on "the foundations of freedom, justice and peace as envisaged by the prophets of Israel"; and Section 1 of The Foundations of Law Law, 5740-1980. My colleague is of the opinion (paragraph 17) that also when dealing with ethics it is necessary to apply restraint, and I especially agree when dealing with "politicians who are judging politicians", in the Knesset's Ethics Committee, when – without heaven forbid insulting anyone – there is an inherent concern regarding political considerations being involved in the material considerations. However, we are dealing with ethics in which severity of sanctions do not get to the root of the matter (and in the matter at hand has been wondrously eroded), and with a message which has already been described in the various opinions here.

 

S.            Where do I disagree with my close colleague Justice Joubran? In laying down the line. For example, my colleague (paragraph 19) distinguishes between one who "acted not for the advancement of the best interest of the State" and one who "did not act to advance the best interest of the State", and he is of the opinion that "neutral actions by members of Knesset which on the one hand do not advance the best interest of the State and on the other hand do not harm it, shall not be included in the prohibition". Even if such distinction is appropriate, and I shall not address this (but see the words of our colleague Justice Melcer, in paragraph 7), this is not what is at issue, since the words of Knesset Member Zoabi which we are addressing are blatantly not in the best interest of the State. According to Justice Joubran (paragraph 20), Section 1A(2) of the Rules of Ethics, which imposes upon a member of Knesset to act "in a manner that shall serve human dignity, the advancement of society and the best interest of the State", should be interpreted in a liberal manner, and its sanctions shall be limited to extreme cases. In my opinion, even in the most far reaching liberal interpretation, calling for the

 

 

 

imposition of a siege on your own state and supporting terror cannot – with all due respect – be interpreted with common sense and in the eyes of an ordinary person – as neutral, certainly not as an act "in the State's best interest". I am sorry, but this is nothing other than a blatant an act against the State's best interest. There are ethical boundaries and I shall not address the question of the boundaries of freedom of expression, and the manner of dealing with expressions that are not only provocative but tap existential roots.

 

T.            In summation: The (Middle) Eastern culture to which all of us, each sector, person and style, belong, attaches great importance to honor. Ethics is part of the values and manners between people. In the Jewish world this shall be referred to in various contexts as the theory of values (ethics). I shall quote statements that I had the opportunity to write in my article "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (5773-2013), 140. It is said there (on page 142) that "Mutual respect between Jews and Arabs in Israel is necessary. This is emphasized due to the importance that the culture surrounding us, the culture of the (Middle) East, attributes to the matter of honor, a culture that is expressed in words such as 'Sharaf (honor) and 'Kilmat Sharaf' (word of honor)" and hereinbelow (pages 143-144) "I myself perceive honoring my fellow-person, first and foremost as something natural that stems from within oneself, … this is also the case, mutatis mutandis, of course, with respect to matters related to the relations with Israeli Arabs within" and further on (page 145) "the principle prescription for relationships between the majority and minority in the State of Israel is complex – it is a matter of awareness and insights, which call for reciprocity. It includes Jewish insight as to the need for respect towards the Arabs and an ongoing, relentless, effort, to amend the gaps in equality in all spheres – as mentioned, I see myself as one of the first who was willing to stand up for the task of amending and bridging the gaps. However, awareness and insights are also necessary from the other side, among some of the Arab leadership  in Israel… it must recognize and understand that the objective of the struggle must be equality, and the Jewish population cannot be concerned that at hand is a struggle against the essence of the State of Israel as a Jewish and democratic state". Indeed, this was said in the context of the state being Jewish and democratic, but they  are  relevant also  when referring to terror.  When  three families and an entire country were worried about the fate of teenagers who had been abducted (and murdered) by evils, according to Knesset Member Zoabi, they are not terrorists, an ordinary person shall then ponder whether to accept her stretched explanations, and in my opinion the answer is crystal clear. This is also true with respect to the "siege sophistry", and no more words are needed.

 

Deputy President

 

Justice H. Melcer

 

1.            I concur with the exhaustive and measured judgment by my colleague, President

M. Naor.

 

However, due to the importance of the matters, I take the liberty to add a few words regarding the distinction between the prohibition of law and the prohibitions of ethics, since in the case before us the matter that emerged was

 

 

 

whether Knesset Member Hanin Zoabi violated the Rules of Ethics for Members of Knesset (hereinafter, also: the "Rules of Ethics") and whether judicial intervention in the sanctions that were imposed thereupon by the Knesset's Ethics Committee, is appropriate. I shall briefly address below the said distinction, and its derivatives and implications.

 

2.            Prof. Asa Kasher, in his article Professional Ethics (published in Ethical Issues for Professionals in Counseling and Psychotherapy, ed. Gaby Shefler, Yehudit Achmon, Gabriel Weil, pages 15-29 (Y"L Magnes – 5763-1993)) distinguishes between ethics and law using the terms of shelf and threshold, and clarifies that along the range of possible courses of actions:

 

"There appear to be two lines, one at the top of the ladder… even if not at its very top, and one at the bottom of the ladder… even if not at its very bottom. The top line shall be called the 'shelf'. In this picture it represents ethics. The bottom line shall be called the 'threshold'. In the current picture it represents the law.

These lines, the 'shelf' and the 'threshold' divide the entire range into three natural parts: the segment from the 'shelf' and upwards, the segment between the 'shelf' and the 'threshold' and the segment below the 'threshold'. It is important to understand the essence of each of these three segments, in order to properly understand the relationship between the world of ethics… and the world of law…

The 'shelf' represents the professional ethics, the practical ideal of professional conduct. It is the 'shelf' of proper conduct… an action at the height of the 'shelf' or above it is proper conduct, as it is conduct that is in accordance with the practical ideal of professional conduct. The segment from the 'shelf' upwards, within the range of possible courses of actions, is the proper sphere of conduct…

The 'threshold' represents the law…, the binding approach of legal conduct, the 'threshold' of permitted conduct pursuant to the law, from a legal perspective. An action at the height of the 'threshold' or beneath it constitutes… conduct that is contrary to the binding approach of legal conduct…

For the sake of accuracy, we shall mention a simple aspect of the relationship between the 'shelf' and the 'threshold', in this picture, which is not at all obvious in any context. In the picture proposed here, the 'shelf' is always higher than the 'threshold'. In reality, the relationship between a certain 'shelf' and a certain 'threshold' could, at times, be more complex… Between the 'shelf and the 'threshold' is the interim sphere. An action in this sphere constitutes improper conduct, from an ethical perspective, since it is under the said 'shelf', but it is  concurrently  deemed  a  permitted  action,  from  a  legal perspective, since it is above the said 'threshold'…"

(Ibid, on pages 23-24, original emphases – H.M)

 

 

 

Justice Yitzhak Zamir, who also dealt extensively with the distinction between law and ethics – added as follows in HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel PD 51(3) 46, on page 61 (1997):

 

"It is the law that determines the limit between law  and ethics. Furthermore, the law nibbles away at ethics. Rules of ethics can become rules of law. From time to time the legislator will prescribe this, and from time to time the courts will rule this, when it turns out that the power of ethics, in and of itself, does not prevent wrong behavior or severe consequences. In such an event, the law, on more than one occasion, will step in and help the ethics. See: Y. Zamir "Ethics in Politics" Mishpatim 14 (5747-5748) 250".

 

See also the opinion by Justice M. Cheshin in HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, PD 57(6) 817, on pages 917-918 (2003).

 

3.            In the Petition before us – we are not dealing with the legal sphere which, for example, prescribes in Section 7A of the Basic Law: The Knesset terms and conditions that allow preventing a list of candidates from participating in, or a person from being a candidate for, elections to the Knesset. This is the threshold and as such, its interpretation and application are exercised narrowly and its judicial review is meticulous.

 

See: Election Approval 9255/12 The Central Elections Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment from December 30, 2012; reasons from August 30, 2013, and review the references mentioned therein).

 

4.            The Petition here addresses a different matter, since it focusses on the rules of conduct that apply to a person who was elected to serve as a member of Knesset. These bind the member of Knesset by virtue of Sections 13D and E of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Knesset Members Immunity Law"). These Rules of Ethics demand that a member of Knesset behave as expected of an elected official presiding in the Knesset, which is the "State's House of Representatives" (Section 1 of the Basic Law: The Knesset). This is the threshold. The said threshold leans on two supporting beams:

 

(a)          The pledge of allegiance, which the member of Knesset declares by virtue of Sections 15 of the Basic Law: The Knesset and Section 1(c) of the Knesset Law, 5754-1994, and on this matter I concur with the position of my colleague, the Deputy President, Justice E. Rubinstein.

 

(b) The Rules of Ethics of the "House of Representatives"

 

I shall address each of the two said sources separately below:

 

 

 

 

Pledge of Allegiance

 

5.            Since the dawn of political thought and democratic history the pledge of allegiance has had more than just ceremonial meaning, but also deep substantial relevance. Indeed, as early as in ancient Greece, the governors in the Police were required to swear their allegiance to the unification of the state, and Plato, the reputed jurist of such time, in his book: Laws (Volumes III 685 and XII 960) wrote that the pledge of allegiance has both legal significance and political importance. Aristotle, in his book: Politics (Volume III, 1285) analyzed the meaning of the pledge of allegiance as a means of securing the rule of law. See: Matthew A. Paully, I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (1999) ibid, on pages 45-52. See also: Suzie Navot "The Knesset Chapter on the Constitution Draft: Three Remarks" Mishpat U'mimshal 10 593, 624-633 (the chapter on the status of the pledge of allegiance) (5767) (hereinafter: "Navot on the Status of Pledge of Allegiance"); Yigal Marzel "On a Judge's Pledge of Allegiance" Orr Book 647 (5773-2013; hereinafter: "Marzel on the Pledge of Allegiance").

 

Therefore, anyone who crossed the threshold and his/her candidacy was approved and he/she was elected to the Knesset, must still declare allegiance in order to actually take the position, This is the significance of the pledge of allegiance, in the framework of which the member of Knesset undertakes:

 

"To bear allegiance to the State of Israel and to faithfully fulfill his mandate in the Knesset".

 

It indeed turns out that while candidates to the Knesset must first cross the threshold and after they are elected they must represent their voters – those who sent them and their party – still the common denominator for all members of Knesset is the pledge of allegiance from which the shelf is derived. If the pledge, which has a uniform wording for all members of Knesset, and which cannot be deviated from in any way – is not made, the members of Knesset cannot function in the Knesset (see: Section 16 of the Basic Law: The Knesset; HCJ 400/87 Kahane v. The Chairperson of the Knesset, PD 41(2) 929 (1987); see also: Marzel on the Pledge of Allegiance page 651 and 664-665).

 

Comparative law further demonstrates that not only is a person who is not willing to pledge allegiance not entitled to benefit from his rights in parliament, but that the "house" may deny, or de facto limit the rights and actions in parliament of a person who violates his said pledge. Compare: McGuinness v. The United Kingdom, case no. 39511/98 ECHR (1999); Spanish Constitutional Court decisions: number 101 dated November 18, 1983; number 122 dated December

16, 1983, number 8 dated January 25, 1985; number 119 dated June 21, 1990, and number 74 dated April 8, 1991. See: Navot on the Status of the Pledge of Allegiance, on pages 628-631 and see Prof. Aparicio Perez' article that is mentioned in Prof. Suzie Navot's said article, in the framework of which the following was written (free translation from Spanish by Prof. Navot):

 

"The member of parliament benefits from a dual status: the

 

 

 

one which derives from his status as an elected person and a representative, since his status stems from the fact that he was elected by the public in the framework of his party: and that of a member in a representative organ. The fact that a member of parliament is "elected" does not automatically grant him the rights in the representative organ, meaning, the parliament… This duality is possible. In certain cases, the parliament may, by virtue of its internal arrangements, even take away the mandate a member of parliament received and remove him. The fact that a person was elected as a member of parliament is a condition for him to participate in the common organ referred to as the parliament. However, in order to be included in this organ, the elected person must fulfill the material conditions to be included in this organ. Only after the member of Parliament has fulfilled these terms, can he be considered a 'parliamentarian'…"

 

It is appropriate to add here that both the European Court of Human Rights and the Spanish Constitutional Court denied judicial intervention in decisions that limited parliamentary participation from those who refused to pledge allegiance, and ruled that even the right to vote in parliament (which was not denied from Knesset Member Zoabi in this case) may be limited, provided that the prevention is meant to attain a proper goal and is proportionate. See: Navot on the Status of the Pledge of Allegiance, on page 630. With respect to the applicability of the proportionality criteria in the context of immunity and the denial thereof – also compare with that stated in the judgment in Cordova v. Italy (No. 1 and No. 2), Application no. 40877/98 and Application no. 45649/99, which was given by the European Court of Human Rights (dated April 30, 2003).

 

Rules of Ethics for Members of Knesset

 

6.            These are relevant to the matter at hand, since in the framework of Section 1A thereof they further anchored general values that apply to the member of Knesset. In the framework of these rules – the member of Knesset must (inter alia):

 

(1)          Fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic State;

(2)          Act as a trustee of the public, and fulfill his duty to represent the public that voted for him in a manner that will serve human dignity, the advancement of society and the best interest of the State;

(3)          Diligently uphold the laws of the State of Israel and act to advance the principle of the rule of law;

(4)          Preserve the dignity of the Knesset and the dignity of its members, be devoted to fulfilling his duties in the Knesset, conduct himself in a manner that befits his status as a member of Knesset, and act to foster public trust in the Knesset;

(5)          Fulfill his mandate in the Knesset responsibly, honestly and fairly, out of dedication to his status as a leader in society, and strive to serve as a personal example for proper behavior;

 

 

 

(My emphases – H.M.)

 

As to the "dignity of the Knesset", Section 2 of the Rules of Ethics provides that: "The member of Knesset shall uphold the dignity of the Knesset and the dignity of its members, shall act in a manner befitting his status and duties as a member of Knesset, and shall avoid using his immunities and rights as a member of Knesset in an improper manner" (My emphases – H.M.)

 

7.            In light of Knesset Member Zoabi's conduct which was the subject of the complaints that were filed against her – it can certainly be said, as was ruled in the decisions which are the subject of the Petition, that she violated Section 1A of the Rules of Ethics for Members of Knesset, and particularly the provisions of the above sub-sections (2) and (4) of the said Rules, since, according to my position, she was not diligent about maintaining allegiance to the State (see: Yaffa Zilbershats, Loyalty to the State, Zamir Book, 491 (2005); Marzel on the Pledge of Allegiance 669-673). These violations were reflected in the "understanding" Knesset Member Zoabi exhibited towards the acts of the abductors of the teenagers: Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may their memories be blessed, and in her calls to impose a siege upon Israel. In doing so she not only ethically violated her fiduciary duty towards the State of Israel, but also prejudiced her status as a trustee of the public, who is meant to act in a manner that shall serve the advancement of the best interest of the State (sub-section 1A(2) above). She also deviated from her obligation as one who is required to uphold the dignity of the Knesset and act in a manner that befits her status as a member of Knesset, and to act to foster the public's trust in the Knesset (above sub-section 1A(4)). See: Suzie Navot "The Member of Knesset as a 'Trustee of the Public'" Mishpatim 31(2) 433 (particularly ibid, on pages 518-

520) (5761). In this context my colleague, Justice S. Joubran states that in his opinion an ethics violation is possible "when a member of Knesset acts not for the advancement of the best interest of the State, as opposed to a situation in which he did not act to advance its best interest" (original emphases – H.M.) I am willing to accept this interpretation, however, even according thereto – Knesset Member Zoabi's conviction of an ethical offense is not to be cancelled. Calling for a siege on the State of Israel is explicitly an act not for the advancement of the best interest of the State and here we must clarify that for this purpose it makes no difference whether at hand is a "military siege" or a "political siege", as Knesset Member Zoabi's attorney retroactively argued before us.

 

8.            Here one should note that it is possible that MK Zoabi also violated additional Rules of Ethics however since this was not reflected in the decisions which are the subject of the Petition – I shall refrain from addressing this, just as I shall also presume (although this presumption could be disputed, in light of the provision of Section 1(A1)(4) of the Knesset Members Immunity Law) that the material immunity applies with respect to her actions, which are the subject of the complaints, in all that relates to criminal, or civil, liability (as opposed to ethical liability – see: HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) and see Barak Medina and Ilan Saban, "Expanding the Gap?" on the Scope of a Member of Knesset's Right to Support Resistance to the Occupation, Following HCJ 11225/03 Bishara v. The Attorney General, Mishpatim 37 219, on page

 

 

 

236, footnote 42 (5767)).

 

9.            Before ending I shall add and emphasize that I concur with the words of my colleague, Justice E. Hayut, with respect to the right to review the minutes of the Ethics Committee when at issue is a disciplinary proceeding that is being held against the member of Knesset. This is warranted by the principle of "proper process".

 

10.          In summary: All that is stated above leads to the conclusion that in the circumstances of the matter (including the actual duration of the sanctions that were imposed upon the Petitioner) – it is inappropriate to intervene in the ethical decisions that were issued in the matter of the Knesset Member Zoabi, which are the subject of the Petition.

 

I shall end with a note, as I also remarked in the hearing, that it is not for no reason that the Petitioners and their educated attorneys did not find even one case in comparative law in which a member of parliament called for a siege against his state, and was absolved.

 

Justice

 

Justice S. Joubran

 

1.            Is the Knesset's Ethics Committee (hereinafter: the "Ethics Committee" or the "Committee") authorized to apply sanctions of one kind or another due to political remarks that one of its members said or wrote outside of the Knesset, when such remarks are covered by the material immunity granted to a member of Knesset? If so, did the Ethics Committee exercise its authority lawfully? These are the two questions we are to rule on in this Petition.

 

2.            After hearing the Petition, this Court, by a majority of opinions, decided to deny it. My opinion was different, and had it been heard, we would have ruled that the Ethics Committee exercised its authority unlawfully, and we would have cancelled its decision. At the end of our judgment, we ruled that our reasons would be given separately, and now the time for the reasons has come.

 

3.            As mentioned, the Petitioner argued that the Ethics Committee lacks the authority to impose a sanction upon her for remarks that are covered by the material immunity that is granted to a member of Knesset. She also argued that the things that she said and wrote do not constitute a violation of the Rules of Ethics. My colleague, President M. Naor, is of the opinion that the Ethics Committee was authorized to address the Petitioner's remarks and that in the current case it exercised its authority lawfully. I agree with my colleague the President on the matter of the authority. I am also of the opinion that the Committee is authorized to address the Petitioner's remarks. The scope of disagreement between me and my colleague relates to the discretionary level. I am of the opinion that the Petitioner did not violate the Rules of Ethics, and therefore, the Committee's authority was exercised unlawfully. I shall add a few words on the authority level, and thereafter shall discuss the discretionary level.

 

 

 

 

The Authority Level

 

4.            The Ethics Committee operates by virtue of Section 19 of the Basic Law: The Knesset, which constitutes authorization for regulating the Knesset's work proceedings in By-Laws, and by virtue of the Knesset Members  Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Immunity Law"). The two main provisions which are relevant to the case at hand are:

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal action, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

 

13D. (a) The member of Knesset who committed one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated any of the Rules of Ethics.

 

5.            The Rules of Ethics appear in the Knesset's By-Laws and their power is vested by virtue of Section 13E(1) of the Immunity Law. In the matter at hand, the Ethics Committee ruled that the Petitioner violated Section 1A of the Rules of Ethics which prescribes, in the relevant parts, that:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

6.            The Petitioner's approach is that there is no place for the Ethics Committee to act if the member of Knesset's action is protected by material immunity. According to this approach, Section 1(a) of the Immunity Law requested to exclude  these matters from the Committee's authority. This approach was denied in HCJ 12002/04 Makhoul v. The Knesset PD 60(2) 325 (2005) (hereinafter: the "Makhoul" Case). In that matter, it was ruled that the Ethics Committee's decision is not a "legal action" which is included in Section 1(a) of the Immunity Law, and therefore a member of Knesset is not immune from facing it. This ruling coincides with the purpose of Section 13D of the Immunity Law, which anchors the Ethics

 

 

 

Committee's authority to address the violation of the Rules of Ethics and to apply sanctions on members of Knesset for such violations. This ruling also coincides with the interpretive proceeding which should be applied to Sections 1 and 13D of the Immunity Law. Thus, it was ruled in the Makhoul Case that normative harmony requires the interpretation that at hand are two provisions which complement each other, rather than there being a contradiction between two provisions that are mutually exclusive (ibid, on pages 334-335). Therefore, I am of the opinion that that stated in Section 13D complements that stated in Section 1 and does not contradict it.

 

7.            The Petitioner raised an additional argument on the authority level, that the Ethics Committee is not authorized to discuss political remarks by members of Knesset and that its authority is limited to remarks that substantially disturb the work of the Knesset and relate to the social relationship within the Knesset. Indeed, the position of the Ethics Committee in its decisions is that "in all that relates to political remarks, the Committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks". However, I am of the opinion, as is my colleague, the President, that this does not mean that the Ethics Committee lacks authority to discuss these remarks (see paragraphs 27-28 of her opinion). Indeed, my opinion is that one must distinguish between remarks that are only political, and remarks that constitute bad-mouthing and slandering of individuals and publics. However, I am of the opinion that the distinction does not have to be made at the authority level, but rather at the discretionary level. Meaning, in the scope of judicial review which should be applied on decisions that discuss these remarks and the scope of protection that should be given to remarks of such nature, as I shall elaborate below.

 

The Discretionary Level

Limiting the Freedom of Political Expression of an Elected Official

 

8.            At the discretionary level, the Court examines the merits of the Ethics Committee's decision. In the case at hand, whether the Petitioner, through her remarks, violated the Rules of Ethics by virtue of which she was convicted. This matter is directly related to the question of members of Knesset's freedom of political expression and the question of the limitation thereof. I am of the opinion that the point  of reference in this matter lies in the recognition of the importance of guaranteeing the existence of elected official's freedom of political expression and of striving to promote it.

 

9.            "The political expression – the speech, the article, the interview – are the member of Knesset's primary working tools" – so wrote President A. Barak in HCJ 11225/03 Knesset Member Dr. Azmi Bishara v. The Attorney General PD 60(4) 287, 326 (hereinafter: the "Bishara" Case). Political expression is the core of parliamentary activity and constitutes a primary tool for the member of Knesset to perform his main duty – expressing his position and the positions of the public that voted for him on public matters.

 

10.          In order to guarantee that the member of Knesset shall be able to faithfully fulfill his position and represent the public that voted for him while giving free and full expression of his opinions and perspectives, without fear or concern, the legislator

 

 

 

chose to grant the members of Knesset material immunity against being criminally charged or against a civil law obligation, for remarks that were expressed in the framework or for the sake of fulfilling their position. This immunity is essential to guarantee the democratic character of the ruling government. In the Bishara Case it was ruled as follows:

 

"The purposes underlying the material immunity are varied. They are meant to protect the fundamental political freedoms. They are meant to allow proper activity of the legislative authority. They reflect a desire to guarantee the member of Knesset's independence and freedom of action. They are meant to strengthen the democratic rule. On the other hand, one must not ignore the other (general) purposes of the Immunity Law" (ibid, on page 323)

 

One can learn of the importance of protecting the members of Knesset's freedom of political expression, which is reflected in the material immunity granted to them, and of the tight linkage between it and the proper activity of the democratic process, from the spirit of the words of President S. Agranat in Criminal Appeal 255/68 The State of Israel v. Avraham Ben Moshe, PD 22(2) 427, 435 (1968), when he examined the actions of a person who was harassing a member of Knesset due to words spoken by such elected official:

 

"The right of a member of a house of representatives, in this forum or elsewhere, to voice his views on the "cutting-edge" political questions, without fear and concern that he will be harmed by anyone who does not support such perspectives or who is convinced that they are dangerous for the nation – such right is but only a tangible reflection of the tight linkage that exists between the principle of freedom of expression and dispute and the proper activity of the democratic process. Moreover, due to the significant importance we attribute to the later aspect of the discussed principle, the legislator deemed it fit to grant the members of Knesset an  entire system of privileges, which are meant to guarantee that each of them shall be able to express their opinion and formulate their positions, regarding the political issues that require solution and decision, in an open and free manner and without them having to be accountable for them to any person or authority. I mean the various immunity rights… one of which is that which is prescribed in Section 1(a)…"

 

11.          The Israeli legislator even adopted a rather broad model of material immunity in Section 1(a) of the Immunity Law. This immunity applies also to actions and not only to voting or expressing an opinion and spans over the activity of the member of Knesset within the walls of the Knesset and outside thereof, and applies also after he ceased being a member of Knesset (see: HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 204 (1987) (hereinafter: the "Miari" Case); the Bishara Case, on page 301). The broad scope of the material immunity indicates the great importance the legislator attributes to protecting the

 

 

 

members of Knesset's freedom of expression. This protection is not meant to serve the member of Knesset's personal well-being, but rather is meant to guarantee the right of all of the citizens to full and effective political representation – that their opinions be heard, through their elected representatives, in the public discourse, in general, and in the house of legislators, in particular.

 

12.          It shall be noted that guaranteeing the existence of freedom of political expression is also important when at hand are aggravating and outrageous remarks and ideas, and it is especially important for members of Knesset who express ideas that are perceived as such by the majority of the public. Indeed "Freedom of expression is also the freedom to express dangerous, aggravating and deviant opinions, which disgust the public and which it hates (HCJ 399/85 Kahane v. The Executive Committee of the Broadcast Authority, PD 41(3) 255, 279 (1987)). The essence of the importance of this right is granting protection to words that are not popular and not in consensus and which can even grate on the ears.

 

13.          There is no denying that guaranteeing the existence of freedom of free political expression and minimizing the limitation thereof is especially critical for members of Knesset who belong to minority groups in the population. My colleague, Justice E. Hayut, elaborated in her opinion on the special importance of protecting the freedom of expression of minority groups in general. I am of the opinion that when members of Knesset are at issue, this is all the more relevant. There is great significance to protecting the freedom of expression of minority groups in the parliament and restraining the infringement thereof. So as to guarantee effective and egalitarian representation of the minority groups in the parliament, in a manner in which their voice shall be heard and not excluded. This approach is grounded in the rulings of this Court. For example, in the Bishara Case, President A. Barak stated, in the context of the members of Knesset's material immunity, that protecting freedom of expression is "vital particularly for citizens who are members of minority groups in the population. In this sense the material immunity also advances civil equality by also protecting the right of the members of the minority groups in the population to full and effective political representation, and protects them by protecting the member of Knesset who is representing their affairs and their  perspectives against the power of the majority" (ibid, on page 323).

 

14.          This approach was also recognized in the judgment of the European Court of Human Rights (Szel v. Hungary, 44357/13 (sep. 16, 2014) at para 69; Karacsony

v. Hungary 42461/13 (sep. 16, 2014) at para 72), to which my colleagues also referenced. As mentioned, the European Court cancelled the conviction of an ethical offense of four opposition members of Parliament in Hungary, due to their remarks in the framework of acts of protest. In that matter, it was ruled that in a democratic society, freedom of expression is a tool of supreme importance for members of Parliament. It was also ruled that this freedom of expression is particularly necessary for members of Parliament who belong to minority groups, in order to guarantee their right to express their positions and the right of the public to hear these positions.

 

 

 

 

One can also learn of the importance of protecting freedom of expression of minority groups from the spirit of the judgment of the European Court of Human Rights in Jerusalem v. Austria ECHR 26958/95. In that case it was ruled that interfering with an opposition member of parliament's freedom of expression calls for broader scrutiny by the Court:

 

"Interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for closest scrutiny on the part of the Court" (at para 36)."

 

The Ethics Rules

 

15.          As to the ethics rules. As mentioned, the point of reference in any legal examination of the matter being discussed – including the examination of the ethics rules - is the recognition of the supreme status of freedom of expression in our legal system and the importance of minimizing interference therewith. I agree with my colleague, the President, that freedom of expression also projects onto the laws of ethics that apply to members of Knesset (see paragraph 27 of her opinion). This Court has ruled in the past that "Freedom of expression projects onto and has implications for all the other branches in our legal system, including disciplinary rules" (Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel, paragraph 25 of the judgment of (then) Justice M. Naor (January 1, 2002)). This Court applied a similar approach with respect to the disciplinary rules that apply to civil servants (Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227 (1986) (hereinafter: the "Sapiro" Case)). In that case it was ruled that:

 

"We must be diligent about the promotion and existence of freedom of expression, even in light of the reasonable assumption that there is a difference, in terms of the range of permitted actions, between an ordinary citizen and a civil servant, and consequently there are certain limitations on the public remarks by a civil servant […], the qualifications that are imposed upon civil servants, should, to the extent possible, be minimized. Additionally, general and unspecified reservations should not be imposed upon the civil servants, but rather their classification should be limited to those circumstances in which there is near certainty of damage or harm to the public service or to the interests it serves (ibid, on pages 236-237)

 

I am of the opinion that this is all the more relevant when at issue is the limitation of members of Knesset's freedom of political expression, since their political expression is the main tool for them to perform their duty. Therefore,  the question is what are the criteria for ruling that a member of Knesset violated the ethics rules? I am of the opinion that one can learn of the proper criteria from looking at the laws of the members of Knesset's material immunity. As mentioned, the broad scope of material immunity that is granted to the members of  Knesset  embodies  the  supreme  importance  the  legislator  attributed  to

 

 

 

protecting their freedom of expression. I have listed the reasons for this in the paragraphs above, and, as I have demonstrated, previous rulings of this Court have also done this well. It appears that these reasons are relevant also when at issue are the ethics rules. My colleague, Deputy President E. Rubinstein is of the opinion that "Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, 'a pressure release valve', to maintain a framework of parliamentary norms" (paragraph G of his opinion). Indeed, a conviction of an ethical offense is generally considered less severe than a civil or criminal conviction against which the material immunity protects, and generally the sanctions accompanying it are less severe. It appears that this also justifies distinguishing between the extent of the democratic tolerance which applies in each set of rules. Thus, there can be remarks that do not cross the red lines that are defined by the material immunity and are covered thereby, while they do constitute ethical violations. However, a conviction of an ethical offense is also not a trivial matter, and the sanctions accompanying it can be especially severe, as in the current case – removal from the sessions of the Knesset's plenum and its committees for a period of six months. This can create a chilling effect for members of Knesset. In my opinion, this approach requires the Ethics Committee to apply restraint when limiting members of Knesset's freedom of expression and convicting them under the laws of ethics, for political remarks.

 

16.          It is important to note in this context that that which is stated above is relevant when at issue is the violation of an ethical provision in the matter of a member of Knesset's purely political remark - as in the case at hand – and not when dealing with remarks that constitute slander or bad-mouthing. The reason for this is the degree of importance that should be attributed to political expression, since it promotes a free market of opinions and reflects the perspectives of the voting public. This is in contrast with the second type of expressions which do not promote these values, but rather harm the status and dignity of the Knesset and deteriorate the public discourse in Israel. This also coincides with the approach of the Ethics Committee itself, as it emerges from its decisions:

 

"To the extent possible, the limitation of the members of Knesset's freedom of political and ideological expression should be avoided, even when the words they say are harsh and outrageous. The right of freedom of expression constitutes a tool of supreme importance for members of Knesset, within the Knesset and outside thereof, the essence of the importance of this right is granting protection to words that are not popular and which can even grate on many ears. However, if, in all that relates to political remarks the position of the committee is that that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing, slandering, mudslinging and humiliating individuals and publics, the committee's position is materially different. (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013)).

 

 

 

17.          In the case before us the Ethics Committee decided that the Petitioner violated both of the values prescribed in Sections 1A(2) and 1A(4) of the Rules of the Ethics, which read as follows:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

The Ethics Committee ruled that "The Member of Knesset's words that were written and spoken in sensitives times do not coincide with the best interest of the State, even if we grant this term an expansive interpretation, and they constitute a violation of the duty of allegiance that applies to members of Knesset". It was further ruled that "The words severely prejudice the public's trust in the Knesset and its image, which is also reflected in the large number of complaints that were filed with the Committee".

 

18.          The above-mentioned Section 1A prescribes basic values which outline general criteria for the conduct of members of Knesset. As my colleagues, I am of the opinion that even though at hand are basic values that do not delineate a sanction alongside them, they benefit from an independent status and members of Knesset who act in contradiction to that stated therein, can be convicted by virtue thereof. Thus, a conviction of an ethical offense based on Section 1A(4) would be appropriate when a member of Knesset prejudices the harms the Knesset or the members thereof (the Makhoul Case; Rules of Ethics Preparation Committee Report, December 2006, on page 46), or when a member of Knesset acts in a manner that prejudices the public trust. In my opinion, it appears that a conviction of an ethical offense based on Section 1A(2) would be appropriate when a member of Knesset acted not for the advancement of the best interest of the State as opposed to a situation in which he did not act to advance its best interest. Such interpretation takes into account that neutral actions by members of Knesset which on the one hand do not advance the best interest of the State, and on the other hand do not harm it, shall not be included in the prohibition.

 

19.          According to my position, an interpretation that expands the limits of patience and tolerance is appropriate in this matter as well. In my opinion, one must act with a strict and stringent criterion when determining that a member of Knesset violated the values of "advancing the best interest of the State" and "fostering the public's trust". General and unspecified limitations should not be imposed upon a member of Knesset, but rather the classification should be limited to those extreme cases. Consequently, the member of Knesset should be granted broad freedom of action and his actions and words should be interpreted liberally,

 

 

 

such that only the extreme and clear substance of the contents of his words can be the basis for his conviction (compare: the Miari Case, on page 212). There are a number of reasons for my said position. Firstly, the specific provision deals with political remarks, which by their nature are intertwined with the member of Knesset's duties. As such, members of Knesset who engage in political expression as a main part of their position, are at a high risk of committing this ethical prohibition (compare: the Bishara Case, on page 326); Secondly, in light of the broad language in which the values of "advancing the best interest of the State" and "fostering the public's trust" are drafted, there is a concern that if members of Knesset shall be exposed to severe sanctions, which can reach six months of being removed from the sessions of the Knesset's plenum and its committees (Section 13D(d)(4) of the Immunity Law), this could chill their ability to express themselves without fear also in cases in which what they are saying does not constitute an ethical offense. Thirdly, members of Knesset often express themselves in controversial matters in a manner which could appear to be callous and outrageous to part of society. This is especially true in the divided Israeli society (see: E. Benvenisti "Regulating Freedom of Expression in a Divided Society" Mishpatim 30 29 (1999)). Hence, it is natural that in light of the Petitioner's perspectives and the platform of her party, she will find herself expressing positions regarding the Israeli-Arab conflict, and the risk that her statements shall be interpreted by a large part of society, as statements that harm the State's best interest, is great. (Compare: the Bishara Case, on page 327).

 

20.          Given the above, one must examine whether the Petitioner, through her remarks, violated the Rules of Ethics. Meaning, is the Ethics Committee's decision which is the subject of the Petition, lawful. Examining the merits of the Committee's decision raises a question of the scope of judicial review of the Ethics Committee's decisions. I shall now address the examination of this scope and thereafter examine, in the form of applying the general rule to the specific case, whether the current case justifies our intervention.

 

The Scope of Judicial Review of the Ethics Committee's Decisions

 

21.          Case law prescribes that the scope of judicial review is impacted by the type of decision which is the subject of the review (see: HCJ 652/81 Knesset Member Yossi Sarid v. The Chairperson of the Knesset PD 36(2) 197 (1982)). As my colleague, the President, elaborated, it was ruled in the Makhoul Case that in general the Ethics Committee has broad room for maneuver and consequently the room for judicial review is relatively narrow (ibid, on page 343). I agree with this position, however, each case is examined on its own merits and the scope of the judicial review is determined in accordance with the circumstances of each case. In the Makhoul Case, the main reasons for determining the relatively narrow scope of judicial review were that the Ethics Committee's decisions are closer to the sphere of the Knesset's internal matters; that its decisions harm the member of Knesset in a relatively mitigated manner; and that at issue are matters which generally have a small impact outside of the Knesset. Therefore, it was ruled that the extent of this Court's intervention shall be less than that which is exercised with respect to other quasi-judicial decisions that are in the framework of the Knesset's authority. However, these reasons are not relevant in the current case. Since at hand are political remarks that were said outside of the Knesset and

 

 

 

which do not relate to its internal affairs or its conduct or to the conduct of any of its members. The Ethics Committee's decision in the current case harms the core of the freedom of political expression, and as such its impact outside of the Knesset is not small. In my opinion in such cases, when the Committee examines purely political remarks, there is no justification for the judicial review to be narrower that the judicial review of other quasi-judicial decisions.

 

22.          This ruling coincides with the ruling in the Makhoul Case, that when examining the Ethics Committee's decision, the Court shall take into consideration those consideration that relate to the severity of the infringement of the basic rights and the proportionality of the sanction that is imposed by the Ethics Committee. Indeed, ethics rules are not a cover for infringing basic rights that are granted to a member of  Knesset. When the Knesset wishes to exercise its authority  and qualify the rights granted to a member of Knesset by law, it must comply with the legal criteria that are required for exercising this authority (see: the Miari Case, on page 196). The more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the act deviates from the proper extent, the more this Court will be willing to intervene (see: the Makhoul Case, on page 344). In the case before us the member of Knesset's freedom of expression was infringed. The fact that at hand is a member of Knesset from a minority group exacerbates the infringement and justifies broader judicial review. In this matter, the words of Justice E. Rivlin in the Bishara Case, are relevant:

 

"In any event the special significance of judicial review in those cases in which basic human rights are at issue, should be recognized. It is here that it is important that the judicial review exhaust its full power and ability. This ability shall serve it if it shall succeed in refraining from scattering its legal and social resources which are nurtured by the public's trust, when the scope of deference expands. This is true in general, and particularly when immunity relating to freedom of expression is at issue, and in the case at hand – not just expression, but political expression, and not just political expression, but political expression of a member of Knesset, and not just a member of Knesset, but a representative of a minority group" (ibid, on page 337) [emphases added – S.J.]

 

From the General Rule to the Specific Case

 

23.          I shall now examine the Petitioner's remarks in light of that stated. I shall state at the outset that in my opinion the Petitioner did not violate the Rules of Ethics. I did not reach this conclusion easily, and it is not obvious. Indeed, in my opinion this is quite a borderline case. The Petitioner's statements, at the timing in which they were said, are harsh and in my opinion near the line beyond which it could not be said that they comply with the Rules of Ethics. However, in my opinion, given the circumstances of the matter, and considering the entire considerations, the proper conclusion is that ultimately the Petitioner did not violate the Rules of Ethics. The main reason for this is that one cannot extract any clear and unequivocal content, that amount to a violation of the ethical values, from her

 

 

 

remarks, but rather her remarks were vague, some had reservations attached and some had explanations that were later attached, as I shall immediately describe in detail.

 

24.          As for the call in the article dated July 13, 2014, to impose a siege on the State of Israel, the Petitioner did not state what type of siege she is calling for – whether a political siege or a military siege. The Petitioner's attorney claimed in the hearing before us that the Petitioner meant the imposition of a political siege and not the imposition of a military siege. I agree with my colleague the President that the words of the Petitioner's attorney were stated retroactively and that the Petitioner should have presented this explanation to the Ethics Committee. However, I am of the opinion that this interpretation that was suggested by the Petitioner's attorney – that the call is for a political and not a military siege – is at least possible, and could be implied from the words the Petitioner wrote. In this context, I do not agree with my colleague, the Deputy President, that it is very difficult to interpret the call "to impose a siege on the State of Israel" as only a political siege, but rather as a military siege.

 

25.          As to the Petitioner's statements in the interview dated June 17, 2014, that the abductors of the teenagers "Are not terrorists", these statements were accompanied at the time they were said, by a reservation from the act of abduction, as it was said "even if I do not agree with them". Following the said interview, the Petitioner explained in the media that she objects to the abduction, that she does not agree with this act and that she objects in principle to harming civilian population, Israeli and Palestinian. As to her remark "They are not terrorists", she explained that it is her principle position not to use the term "terror" in the Hebrew press. I am of the opinion that in the circumstances of the matter, these words by the Petitioner somewhat soften her remarks in the interview. There are two reasons for this. Firstly, the statement "They are not terrorists" was made orally, in an interview, as a response to the interviewer's question. Meaning, the Petitioner did not have time to redraft or refine her statements, or retract them before they were made public. A similar position was expressed in the European Court of Human Rights in Mondragon v. Spain 2034/07, where it was ruled that the Court must take into account the fact that the statements were made orally during a press conference so that it was not possible to redraft or retract the statements before they were made public:

 

"The Court further takes account of the fact that the remarks were made orally during press conference' so that the applicant had no possibility of reformulating' refining or retracting them before they were made public (at para 45)".

 

Secondly, the Petitioner provided explanations in the media to the meaning of her remarks with regard to the teenagers' abductors, in order to convince the public that she objects to the act of abduction and to harming civilian population. The Petitioner explained that the statement "They are not terrorists" stems from her principle position against using the term "terror" in Israeli media, and not from her identifying with the act of abduction. Even if these explanations which the Petitioner provided to the media, do not reflect her inner feelings, the fact that they are possible explanations, is sufficient to somewhat soften her remarks. I

 

 

 

agree with the position of my colleague, the President, that extreme acts or expressions which legitimize acts of terror and which encourage and support violence against civilian population, cannot overcome the ethical prohibitions. However, as I explained above, this is not exclusively and unequivocally implied from the Petitioner's statements, in light of her reservations when they were said and in light of her later explanations. One must also add that the Attorney General ruled on July 24, 2014, that a criminal investigation shall not be opened against the Petitioner for her remarks regarding the teenagers' abductors. The explanation given to this by the deputy Attorney General is that the Petitioner's reservation from the act of abduction "creates difficulty in perceiving the statements as inciting abduction". It appears, from all of that stated above, that one cannot extract clear and unequivocal content from the Petitioner's remarks that amount to a violation of the ethical prohibitions.

 

26.          As for the timing in which the statements were said, I concur with the remark by my colleague, Justice E. Hayut, that one must set uniform criteria for the protection of freedom of expression during times of war and times of calm (see paragraph 4 of her opinion). In my opinion, the supreme status of the freedom of expression is also reserved during times of war. The Ethics Committee also ruled in its decision which is the subject of the Petition that "The right of members of Knesset to express positions that are not in consensus and to express public criticism on the government, is reserved also during times of war". It shall also be noted that the distinction between times of calm and times of crisis is not always sharp and clear, particularly in the Israeli reality. In this context the words of President A. Barak in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), to which my colleague referred, are relevant:

 

"Furthermore, it is not possible to make a sharp distinction between the status of human rights during times of war and their status during times of peace. The line between terror and calm is thin. This is true everywhere and certainly in Israel. It is not possible to sustain this over time. We must treat human rights seriously both during times of war and times of calm" (ibid, in paragraphs 20-21).

 

However, as my colleague, Justice E. Hayut, stated "the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis."

 

27.          In summary, in light of the great value of granting members of Knesset free political expression and minimizing the limitation thereof as much as possible, particularly when at issue are members of Knesset who belong to  minority groups, and in light of the broad language of the ethical provisions by virtue of which the Petitioner was convicted, the conviction of members of Knesset by virtue of these provisions should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the case before us, I am of the opinion  that one  cannot extract clear and unequivocal content from the Petitioner's statements, both in light of her reservations from the act of abduction while making the remarks and in light of her later explanations in the media.

 

 

 

Therefore,  it is my position that  the  decision of the  Ethics  Committee  was reached unlawfully.

 

28.          In light of all that stated, if my opinion were to have been heard, we would have accepted the Petition and cancelled the Ethics Committee's decision in the Petitioner's matter.

Justice

 

It was decided by a majority of opinions as stated in the judgment of President M. Naor.

 

Given today, the 21st of Shvat, 5775 (February 10, 2015).

 

President            Deputy President            Justice

Justice  Justice 

 

 

 

 

 

 

 

 

 

 

 

 

to apply a test that checks the probability of injury (almost certain) and its seriousness (severe, serious and grave). This test examines the tolerance level of offensive statements in a democratic society. My colleague  rightly suggests that the Bylaw limiting free speech because of the concern that the sign contains criminal content must be narrowly interpreted. We must distinguish between preventing [speech] from the onset and punishing [an offender] after the fact. Thus, in a case where permitting a sign may predispose someone to criminal liability, one has the option of refusing to allow such a sign to be posted. See HCJ 399/85 Kahana, at 297. However, so long as there is no such danger, as a general rule, it is preferable to sanction the advertiser after the fact if it is indeed proven that he broke the law. We must also consider that the limitation is set within a Bylaw and that it gives administrative authority over to a single individual (see Bendor, at 177). Therefore, a mayor may, in my opinion, deny a request to post a sign only where the sign is definitely a criminal act which will almost certainly bring actual harm to public order. See also, HCJ 399/85 Kahana, at 298 – 300.

I agree with the decision of my colleague, Justice Dorner, that when applying the balancing test to this case there is no reason to disqualify the sign that the Petitioner wishes to post. Therefore, I also hold that the conditional order be made permanent.

 

 

The decision of Justice Dorner is accepted. Decided today, 30 Shevat 5763 (February 2, 2003).

 

 

HCJ 5304/15

                                                                                                                        HCJ 5441/15

HCJ 5994/15

 

           

 

Petitioner in HCJ 5304/15:        Israel Medical Association

 

 

 

Petitioners in HCJ 5441/15:    1. Al Mezan Center for Human Rights

2. Yusuf Al-Siddiq Organization for Prisoner Support

 

 

 

Petitioners in HCJ 5994/15:    1. Physicians for Human Rights Israel

                                                2. The Public Committee Against Torture in Israel

3. HaMoked: Center for the Defence of the Individual founded by Dr. Lotte Salzberger

                                                4. Yesh Din Volunteers for Human Rights

 

 

                                                            v.

 

Respondents in HCJ 5304/15

and HCJ 5441/15:                               1. Israel Knesset

                                                            2. Minister of Public Security

                                                            3. Commissioner of the Israel Prison Service

                                                            4. Attorney General

                                                            5. General Security Service

 

 

Respondent 3 in HCJ 5441/15:           General Security Service

 

Respondent in HCJ 5994/15:              State of Israel

                       

                                   

 

 

Attorneys for the Petitioners in HCJ 5304/15: Orna Lin, Adv., Tamar Winter-Kamar, Adv.,Yael Stamati, Adv.,  Moria Glick, Adv., Tamar Halevi, Adv.

Attorneys for the Petitioners in HCJ 5441/15: Durgam Saif, Adv., Omar Khamaisi, Adv.,

Attorney for the Petitioners in HCJ 5994/15: Tamir Blank, Adv.

Attorney for Respondent 1 in HCJ 5304/15 and HCJ 5441/15: Gur Bligh, Adv.

Attorney for Petitioners 2-4 Petitioners in HCJ 5304/15, Respondent 3 in HCJ 5541/15, and the Respondent in HCJ 5994/15: Areen Sfadi-Attila, Adv.

 

 

Dates of sessions:        4th Tishrey 5776 (Sep. 17, 2015), 12th Adar 5776 (Feb. 21, 2016)

 

The Supreme Court sitting as a High Court of Justice

 

Petitions for an order nisi

 

Before:            Deputy President E. Rubinstein, Justice N. Sohlberg, Justice M. Mazuz

 

Abstract

 

 

Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Law), which addresses “preventing harm to the health of a prisoner on a hunger strike”, and permits, in some instances, coercive medical treatment of hunger striking prisoners despite their refusal. The Petitions addressed, inter alia, the constitutionality of section 19N(e) of the Law, which instructs that in addressing a request for authorizing medical treatment, the court shall take into account “considerations of risk to human life or a real risk of serious harm to national security, to the extent that evidence to this effect is presented to the court”. The Petitioners were the Israel Medical Association and human rights organizations.

 

The High Court of Justice (per Deputy President E. Rubinstein, and Justices M. Mazuz and N. Sohlberg) denied the Petitions for the following reasons:

 

The Law meets the constitutional tests. Ultimately the Law comprises an element of saving a life and prioritizing the principle of the sanctity of life. It is where it begins and where it ends. This is reinforced by the fact that the person concerned is in the custody of the State, which is duty-bound to provide him with proper medical treatment.

 

The Deputy President addressed the different components of the constitutionality tests and the Limitations Clause in detail, and reached the conclusion that the Law, including section 19N(e), passes the constitutionality tests by delicately balancing the sanctity of life, the State’s responsibility toward prisoners in its custody, and national security,  against the right of the individual to dignity, including autonomy and freedom of expression. This is the case given the graduated procedure established by the Law, which includes several medical, judicial and legal mechanisms of supervision.

 

Inter alia, it was held that the dominant purpose of the Law is protecting the life of a hunger striking prisoner, subject to the exceptions designed to ensure protecting the dignity of the prisoner, with close supervision and monitoring by medical and judicial bodies. This is an indisputably proper purpose. The secondary purpose is security based. Its concern is preventing risk to the lives of others aside from the hunger striking prisoner, or preventing serious harm to national security. This purpose is expressed in section 19N(e) of the Law, under which the court may consider non-medical considerations in making its decision whether to permit involuntary medical treatment. Had the security purpose been an exclusive or primary purpose, there may have been doubt as to whether it would be proper for the purpose of permitting forcible feeding. However, this secondary purpose, too, is largely grounded upon the principle of the sanctity of the life of the innocent who may be harmed as a result of the consequences of a hunger strike by prisoners or detainees. Given that the former is the dominant purpose and that the latter is secondary to it, Justice Rubinstein held that both purposes are proper.

 

It was also noted, inter alia, that the arrangement in section 15 of the Patient Rights Law, addressing a situation of a patient who refuses to accept treatment, does not sufficiently and fully respond to situations of hunger strikes in general, and to such strikes by prisoners or detainees in particular, in terms of the State’s responsibility for them, the complexities of autonomous will in cases of hunger strikes by prisoners who are willing to die, or in regard to such cases where the group circumstances of those on strike prevents them from ending the strike, as well as in terms of the consequences of the hunger strike for national security. Therefore, this is a specific, supplementary arrangement for the purpose of addressing situations where the arrangement established in the Patient Rights Law is to no avail.

 

In terms of the proportionality stricto sensu test, it was found that the amendment provides a graduated, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life through mechanisms of close supervision and monitoring – both medical and legal – of the proceedings and its employment as a last resort. This arrangement represents a proper relationship between the benefit which may derive from the Law and the potential harm to constitutional rights due to its implementation.

 

In this context, it was noted that the procedure commences with the medical opinion of the treating physician. The request is to be submitted by the Prisons Commissioner with the approval of the Attorney General or an appointee on his behalf – as a last resort meant to prevent risk to the life of the of a prisoner on hunger strike, or the risk of severe, irreversible disability – and only after the procedural process has been exhausted. As a general rule, the ethics committee will provide its opinion on the matter, the President of the District Court or his Deputy will determine the request, and the decision is subject to appeal to the Supreme Court. The treatment provided shall be the minimal treatment required. The caregiver is not required to provide the treatment permitted by the court. The Law presents a structured, organized arrangement that involves – alongside doctors – very high levels of the legal and judicial system, and is constructed in strict stages, and as a last resort. It was also emphasized that before the court may be approached, the treating physician must make “significant efforts” to persuade the prisoner to give his consent to treatment. Thus, the doctor must explain the legal process and its possible implications to the prisoner. The court must hear the prisoner, and it is authorized to hold the hearing on the request at the hospital. Even when permission for involuntary treatment is granted, the caregiver must again attempt to persuade the prisoner to consent to treatment, and as noted, the treatment to be provided must be the minimal required, and must be provided in a manner that would ensure the greatest protection of the prisoner’s dignity, while preventing, to the extent possible, causing pain or suffering.

 

Section 19N(e), which focuses on the security purpose, also meets constitutional requirements. Moreover, it must be employed extremely sparingly and in extreme cases, given the proper evidentiary foundation. The security consideration itself cannot justify commencing proceedings under the Law, and certainly cannot itself enable authorization for treating a prisoner against his will. The security considerations according to the Law can be considered only when the treating physician has determined that the prisoner’s medical condition is extremely severe and that there is real risk to his life, or that he will suffer severe, irreversible disability, and for the purpose of saving his life, which is the main purpose of the Law. In any event, the treatment that is provided in practice, if and to the extent it is provided, in accordance with the physician’s discretion, will be a result of medical considerations alone. Implementing section 19N(e) must be extremely sparing and  exceptional, where the State provides evidence pointing to a near certainty of serious harm to security, and all this following the medical journey, which is primary.

 

Justice M. Mazuz concurred in the result as to the constitutionality of the Law. He reiterated, inter alia, that the employment of the procedure was designed for extreme cases where other means were not successful, and it is restricted to the necessary minimum required in order to save the life of a prisoner at mortal risk due to a hunger strike, or to prevent severe, irreversible harm. Nevertheless, Justice Mazuz expressed concern that too great a weight might be given to considerations of security and public order at the expense of the medical considerations and the right to autonomy. Therefore, he proposed establishing guidelines and restrictions for the implementation of the provisions in section 19N(e), which would address the security consideration, in the form of a “procedural separation” between the examination of the medical and  security considerations.

 

Pursuant to the opinion of Justice Mazuz, the Deputy President clarified that the best approach is one of first things first – first the medical issue, and  a discussion of the security issue only thereafter. In order not to tie the hands of the trial court completely, the Deputy President suggested a formula whereby the court would begin by examining the medical issue as the basis of determining the matter, while the security issue – to the extent it may be necessary – would be left to be addressed last.

 

Justice Sohlberg concurred in the opinion of the Deputy President and added, inter alia, a few comments on the question of the proper place and role of the security considerations under section 19N(e) of the amendment.

 

 

Judgment

 

Deputy President A. Rubinstein:

 

1.         Before us are Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: “the Law”), which concerns “preventing harm to the health of a hunger striking prisoner”, and which, under certain circumstances, permits involuntary medical care for hunger striking prisoners despite their refusal. The Petitions address, inter alia, the constitutionality of sec. 19N(e) of the Law, which provides that in addressing a request to permit medical care, the court will take account of “considerations regarding concern for human life, or a real concern for serious harm to national security, to the extent that evidence to this effect is presented to the court.”

 

Background

 

2.         The right to informed consent for medical care was recognized over the years as one of a person’s fundamental rights under the right to liberty. Therefore, as a general rule, one may refuse medical treatment, including feeding (CA 506/88 Sheffer v.  State of Israel, IsrSC 48(1) 87 (1993) [English: http://versa.cardozo.yu.edu/opinions/yael-shefer-minor-her-mother-and-na...).

 

3.         The Patient Rights Law, 5756-1996 (hereinafter: the Patient Rights Law) was designed to “establish the rights of every person who requests medical care or who is in receipt of medical care, and to protect his dignity and privacy” (sec. 1 of the Law). According to sec. 13(a) of the Patient Rights Law: “No medical care shall be given unless and until the patient has given his informed consent to it, in accordance with the provisions of this chapter”, and this subject to the exceptions listed in sec. 15 of the Patient Rights Law, which permit – under certain circumstances – forcible feeding. Ethics committees that were established under the Patient Rights Law operate within the hospitals (see sec. 24 of the Patient Rights Law, as well as the Patient Rights (Manner of Appointments, Terms of Office, and Operating Procedures of Ethics Committees) Regulations, 5757-1996). Their role is to permit a caregiver to provide treatment to a patient against the patient’s will, under certain circumstances. The ethics committee is chaired by a jurist eligible to be appointed as a district court judge, and comprises two specialist physicians from different areas of medical specialization, a social worker or a psychologist, and a public representative or a clergyman. Under the Patient Rights (Amendment No. 6) Law, 5774-2014, the composition of the ethics committee was expanded to include a certified nurse. It was determined that where the opinions of the committee are evenly split for purposes of a request under sec. 15(2) of the Patient Rights Law, the committee’s decision should be viewed as a decision not to permit the caregiver to provide the patient with care against his will.

 

4.         A hunger strike is a means of protest by which the hunger striker seeks to achieve a defined goal. Hunger strikes by prisoners occur from time to time in Israel. In recent years, this phenomenon has been recurrent among security prisoners and detainees who are members of terrorist organizations – be it as a group or as individuals. It occurs, albeit on a smaller scale, among non-security prisoners and detainees, as well. Although a hunger strike is not itself a medical problem or an illness, its continuation inevitably leads to severe, at times irreversible, medical problems for the hunger striker, and may even lead to death if medical care not be given. There is some scientific uncertainty in the medical community as to the medical aspects of a hunger strike, as well as to its treatment. There are no scientific tools or scientific experience that may serve as a foundation for medical opinions as to the life expectancy of a hunger striker. As the explanatory notes to the Bill reveal, a prisoner is at real risk of death after 55-75 days of absolute hunger strike. The Bill also notes that there is no evidence from around the world of a full, ongoing hunger strike of 75 days after which the hunger striker remained alive (see the Explanatory Notes to the Bill, Government Bills (5774-2014) 763, 870). By their nature, hunger strikes require medical monitoring and treatment.

 

5.         Prior to the Law’s enactment, the law did not include provisions regulating the possibility of the involuntary artificial feeding of hunger striking prisoners, and consequently, Israeli law did not define the terms “hunger strike” of “hunger striker”. Until the Law was enacted, and in practice, even after its enactment, as we will see in the examples below, treatment for hunger striking prisoners or detainees was provided in accordance with the Patient Rights Law, similarly to medical treatment for patients who, being informed, refuse necessary treatment, including hunger strikers who are not prisoners. However, in situations of extended hunger strikes, particularly when they are partial, there is medical difficulty in determining the point in time where the hunger striker enters a state of “severe danger,” which is a prerequisite to convening the ethics committee under sec. 15(2) of the Patient Rights Law. In an attempt to confront the above challenge, in April 2012, in the midst of a wave of hunger strikes by prisoners and administrative detainees, Guidelines for the Medical Treatment of a Hunger Striker (Including Detainees and Prisoners) were published by the Ministry of Health. The Guidelines set a rule of thumb according to which after 26 to 30 days of hunger strike, full or partial, there may be risk to the life of the hunger striker, or a risk of severe, irreversible impairment.

 

6.         The Patient Rights Law includes a possibility of coercive medical treatment of a person only after approval by the ethics committee. In recent years, ethics committees convened according to the Patient Rights Law have considered requests to treat hunger striking prisoners. In all these cases, the striking prisoners consented to medical care without coercion. Ultimately, not a single prisoner died due to a hunger strike. This was the result of a dialogue between the members of the ethics committee and the hunger strikers, which was based on the close trust relationship between the caregiver and the patient. On February 24, 2013, Dr. Michael Dor, then the head of the General Medicine Department in the Ministry of Health, published a directive to the administrators of general hospitals, according to which security prisoners who have been on a hunger strike for over 28 days were to be admitted even if they objected to receiving medical treatment, and that a prisoner on a hunger strike for less than 28 days was to be admitted if his medical condition posed a life-threatening risk. As will be explained, several cases were recently brought before this Court (HCJ 5580/15 Alan v. General Security Service (Aug. 15, 2015) (hereinafter: the Alan case); HCJ 452/16 Al-Qiq v. IDF Commander in Judea and Samaria (Feb. 2, 16) (hereinafter: the Al-Qiq case)). They all concluded, one way or another, with an agreed arrangement that ended the hunger strike (also see HCJ 3267/12 Halahla v.  Military Commander of Judea and Samaria, para. 25 (2012)).

 

7.         Before we address the details of the Law, and in order to clarify the issue, we will explain what forcible feeding is. It is a medical treatment wherein nutrition and fluids are artificially introduced into the patient’s body against his will. Such feeding includes a range of possible medical procedures, beginning with intravenously providing fluids and supplements, performing blood tests for evaluation, and providing medications. In extreme cases, which we will address below, nutrition or fluids are introduced into the body of a hunger striker through a nasogastric tube inserted through the nose and throat into the stomach, or through a tube inserted through an opening in the abdomen and into the stomach.

 

The Course of the Law’s Enactment

 

8.         Following a mass hunger strike among security prisoners and administrative detainees in 2012, which lasted – in part – for an extended period of time, and to the point that it posed real risk to the health and life of strikers, an inter-ministerial taskforce – headed by the Deputy Attorney General (Criminal), and with the participation of representatives of the Minister of Justice, the Ministry of Public Security, the Ministry of Health, the Prisons Service and the Security Service – was convened in order to establish appropriate guidelines to address the phenomenon. The team also included the Deputy Attorney General (Special Projects), the Deputy Attorney General (Legislation) and the Director of the High Court of Justice Department of the State’s Attorney’s Office. The team held a series of meetings at the Deputy Attorney General’s office, conducted in-depth research into the provisions of international law on the matter, and examined the challenges unique to addressing hunger strikes in Israeli prisons. On August 7, 2013, a draft memorandum of the Law was distributed to the Israel Medical Association (hereinafter: IMA), the National Council for Bioethics, and the Public Defender’s Office (see below in regard to the differences between the Memorandum and the Bill). IMA strongly objected to the proposal in the Memorandum. On May 18, 2014, the Knesset Ministerial Committee for Legislation approved the Bill in resolution HK/869, and it was referred for a first reading by the 19th Knesset. The Bill was submitted to the Knesset for first reading on June 9, 2014. At the end of the debate, it was decided to refer the Bill to the House Committee, which decided to pass the Bill on to the Knesset Internal Affairs and Environment Committee. This Committee convened nine times in order to discuss the Bill. During its discussions, a fruitful deliberation was held with diverse opinions and positions presented by different professional entities from government ministries, the Courts Administration, the Public Defender, IMA and other organizations. Following these discussions, the language of the Bill was revised on certain issues. The Bill was intended to come to a vote in second and third readings by the Knesset on June 30, 2014, but the Knesset hearings for that day were canceled and the Bill was not presented again by the time the Knesset dispersed on December 8, 2014. On July 6, 2015, the Government gave notice as to its desire to apply the continuity rule to the Bill. The Internal Affairs and Environment Committee of the 20th Knesset convened four times to discuss the Bill. Several entities from government ministries and representatives of organizations participated in the discussions. The Committee considered 90 objections that were submitted, and those brought about significant changes in the Bill. The Bill was submitted to the Knesset for second and third readings on July 29, 2015. After a lengthy debate, the Law was passed by a majority of 46 Knesset Members with 40 opposed (see below as to the differences between the Bill and the Law as enacted).

 

The Legal Framework

 

9.         The Law was passed by the Knesset in second and third readings on July 30, 3014, and entered into force upon its publication in the Official Gazette on August 5, 2015. The Law amends the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance) by adding article B2: “Preventing Health Damage to a Hunger Striking Prisoner.”

 

10.       According to the Law, which is detailed and precise, the process for requesting permission to provide medical treatment to a hunger striking prisoner commences with the opinion of the prisoner’s treating physician (or a physician who has recently treated the prisoner), whereby “there is a real possibility that within a short period of time there will be a risk to the prisoner’s life or risk of a severe, irreversible disability, without receiving medical treatment or treatments detailed in the medical opinion” (sec. 19M(a) of the Law). Along with submitting the medical opinion, the Prison Service Commissioner may, with the consent of the Attorney General or a person appointed for such purposes by the Attorney General, approach the President of the District Court or his deputy with a request to provide medical treatment to a prisoner. Such a request will be submitted only after he is persuaded that “a significant effort was made to secure the prisoner’s consent to such treatment, inter alia, by a doctor’s discussion with the prisoner, and after the prisoner received an explanation as to the request to the court and its potential consequences” (sec. 19M(d) of the Law.) A copy of the request for medical treatment shall be submitted by the Prisons Service to the ethics committee, which shall give its opinion on the relevant medical matters after hearing the prisoner (sec. 19M(c) of the Law). The ethics committee’s opinion must be presented to the court, except for cases where “for urgent and exceptional medical reasons resulting from the prisoner’s medical condition” it is not possible to wait for the opinion or to hear the prisoner or his attorney (section 19N(c)(2) of the Law).

 

11.       Before rendering its decision, the court must be persuaded that “a significant effort was made in order to secure the prisoner’s consent for treatment, and in the course of such effort he was informed about his medical condition and the consequences of continuing the hunger strike for his condition in detail, in a manner that is understandable to him under the circumstances, and that he was also given medical information as stated in section 13(b) of the Patient Rights Law, and that the prisoner continued to refuse medical treatment” (sec. 19N(b) of the Law). The Law mandates that the prisoner be represented by an attorney in the court proceedings, and if he is not represented, a public defender will be appointed (sec. 19O(d) of the Law). The court will hear the prisoner or his attorney, and may order that the hearing on the request for medical treatment be conducted in the hospital in which the prisoner is hospitalized (sec. 19O(a) of the Law. The court may conduct the hearing in camera, if  it  is of the opinion that a public hearing may deter the prisoner from freely expressing his position or expressing it at all, or for the purpose of protecting the prisoner’s privacy (sec. 19O(d) of the Law). The court may admit evidence in the absence of the prisoner or his attorney if it is of the opinion that disclosing the evidence may compromise national security, and that its concealment is preferable to its disclosure for the purposes of justice (sec. 19O(e)(1) of the Law).

 

12.       On the merits, before making a decision, the President of the District Court or his Deputy must consider the prisoner’s medical and psychological condition, the consequences of failing to provide treatment, the prospects and risks of the requested treatment and of alternative treatments, the level of the requested treatment’s invasiveness and its impact on the prisoner’s dignity, the prisoner’s position and his reasons, including the reasons for which the prisoner chose to initiate a hunger strike, as well as the outcomes of previous coerced medical treatment, had there been any (sec. 19N(d) of the Law). The court must also take into account considerations of concern for human life or a real concern for serious harm to national security, when evidence is presented to that effect (sec. 19N(e) of the Law).

 

13.       Should the court be persuaded that there is a “real possibility that there will be a risk to the prisoner’s life, or risk of a severe, irreversible disability within a short period of time, and that the medical treatment is expected to benefit the prisoner” (sec. 19N(a)(1) of the Law), it may permit providing medical treatment to a hunger striking prisoner against his will. The medical treatment must be provided “in a way and a place that would ensure maximum protection for the prisoner’s dignity, while avoiding as much as possible causing pain or suffering to the prisoner” (sec. 19P(c) of the Law).

 

14.       In its opinion, the court must detail the type of treatment or treatments that it permits (sec. 19N(6) of the Law). The treatment must be provided to the prisoner by a caregiver in accordance with his area of practice, and in the presence of a physician (sec. 19P(a) of the Law). If the prisoner refuses the necessary treatment, a warden may – at the caregiver’s request – “use reasonable force in order to allow the caregiver to provide the treatment, as long as the use of force is only to the degree necessary to provide the treatment” (sec. 19P(d) of the Law). The treatment is to be “the minimal medical treatment necessary, according to the professional discretion of the treating physician, in order to protect the prisoner’s life or to prevent a serious, irreversible disability” (sec. 19P(a) of the Law). Section 19Q of the Law exempts the caregiver and the medical institution from liability in tort as a result of providing coerced medical treatment.

 

15.       The decision of the court is subject to appeal to the Supreme Court (sec.19S(b) of the Law). The Supreme Court will hear the appeal within 48 hours of its submission (sec. 19S(b) of the Law). It is also possible to ask the court that made the decision to reconsider the request if new facts are discovered, or if the circumstances have changed in a way that could influence the decision (sec. 19R of the Law).

 

16.       To complete the picture, it should be noted that the main points of the Memorandum circulated as described above were similar to the Bill with one notable exception. The Bill added a provision that a copy of the request for permission to provide treatment to the prisoner be delivered to the ethics committee where the prisoner is hospitalized, and that the court’s decision on the request be given after it has received the opinion of the ethics committee (unless the court is of the opinion that, under the circumstances, the request should be denied in limine).

 

17.       The language of the Law, as enacted, was ultimately similar to the Bill, with certain changes. The Law added the requirement, not included in the Bill, for the Attorney General’s consent to submitting a request for permission to provide medical treatment (sec. 19M(a)), and submission of the request was made contingent upon making a significant effort to secure the prisoner’s consent to treatment, and only after the procedure for submitting a request to the court and its consequences were explained to the patient (sec. 19M(d)). Another central difference, which we shall discuss below, is that the Bill placed the security considerations in the primary section that outlines the judicial discretion, and they were included among the factors the court must take into account, such as  the Prisons Service’s responsibility to safeguard the health and life of the prisoner, and the impact of the decision on the ability to maintain security and order in prisons. However, ultimately, the role of the security considerations was reduced in the Law, such that the court may consider factors of “concern for human life or a real concern of serious harm to national security, to the extent it was presented with evidence to this effect”.

 

18.       The constitutionality of Article B2, including sec. 19N(e) of the Law in regard to the considerations for deciding upon the request, is now the subject that requires our decision.

 

The Petitioners’ Arguments

 

The Israel Medical Association’s Arguments

 

19.       IMA, the Petitioner in HCJ 5304/15, is the representative union of physicians in the State of Israel. IMA argues that the Law is not proportionate, is not ethical, is not equal, and undermines the internationally accepted rules of medical ethics, which it has adopted and ratified. IMA claims that force-feeding persons on a hunger strike despite their refusal poses a real risk to their health, and is inconsistent with the overarching principles of preventing harm and protecting the patient’s autonomy over his body, which are the basis for the medical code of ethics. Under international ethics codes, force-feeding is considered torture. Therefore, IMA is obligated to do all it can in order in order to repeal the Law.

 

20.       According to IMA, the Bill was greeted by the absolute, across-the-board objection of the entire medical-scientific community, including the World Medical Association, the National Association of Nurses, the IMA’s Hospital Managers’ Association, as well as the National Council for Bioethics, which was created in accordance with Government Decision no. 1219 of January 31, 2002, in order to provide recommendations to decision makers within the executive, legislative and judiciary branches on ethical issues deriving from developments in research, and in order to form positions for ministers and the Government of Israel in regard to matters that have yet to be regulated in legislation, or whose legislative arrangement required re-examination.

 

21.       IMA maintains that the Law makes an exception of the population of hunger striking prisoners in terms of the general arrangement established in the Patient Rights Law, while seriously infringing the principle of equality, although there is no relevant difference between a hunger striking prisoner and any other patient that would justify making them exceptions to the general arrangement. IMA argues that the difference between hunger striking prisoners and non-prisoners refusing medical treatment concerns non-medical purposes. In IMA’s view, these purposes cannot constitute a relevant difference even if there is greater concern that a prisoner’s hunger strike would lead to a violation of public order.

 

22.       IMA refers to specific arrangements that are exceptions to the general rule established by the Patient Rights Law, such as sec. 68(b) of the Legal Competency and Guardianship Law, 5722-1962 (hereinafter: the Legal Competency Law), according to which a court may assume the role of guardian in extreme cases where medical treatment is necessary for the physical or emotional wellbeing of a ward. According to IMA, the Law in our matter concerns those who are competent to give informed consent but chose knowingly to withhold it. Additionally, the Legal Competency Law requires that the court obtain a medical opinion and weigh medical considerations in regard to protecting the physical or mental health of the minor, the incompetent or the ward, and the court may not consider non-medical considerations. Similarly, in the Treatment of the Mentally Ill Law, 5751-1991 (hereinafter: Treatment of the Mentally Ill Law) was designed to protect the right of the mentally ill to autonomy and to set limits upon the possibility of imposing treatment upon them. This is in contrast of the Law at hand, which reduces the weight given to the patient’s autonomy under the Patient Rights Law. IMA also refers to the Terminally Ill Patient Law, 5766-2005 (hereinafter: the Terminally Ill Patient Law), which establishes a specific arrangement for treating patients whose impending death is certain and unpreventable. According to IMA, the arrangement in the Terminally Ill Patient Law explicitly prioritizes the rights of the patient and his autonomy. Under the Terminally Ill Patient Law, the exclusive considerations in determining medical treatment are the medical condition, the patient’s will, and the level of his suffering. IMA notes that according to the case law, patients with anorexia are not subject to the Treatment of the Mentally Ill Law, but rather to the general arrangement in the Patient Rights Law. Therefore, IMA claims that by extension, there is no justification for a specific arrangement for hunger striking prisoners who are competent, sane and have functional discretion and judgment.

 

23.       According to IMA, the Law creates clear statutory disharmony because its purposes and provisions are inconsistent with, and sometimes stand in obvious opposition to, the purposes and provisions of the general and related arrangements that concern the right to autonomy, the right to refuse medical treatment, and forced medical treatment.

 

24.       Additionally, the Law has two explicit purposes: the first – to protect the life of a hunger striking prisoner (hereinafter: the humanitarian purpose), and the second – to preserve public order and national security within and without the prison walls (hereinafter: the non-medical purpose). IMA argues that the humanitarian purpose was not the primary purpose for which the Law was enacted, but rather it was the non-medical purpose. It claims that the Law was designed to make it possible for the State of Israel to compel a hunger striking prisoner to receive medical treatment contrary to his will. IMA maintains that forcing treatment upon a hunger striking person through force-feeding is a violent and humiliating act that amounts to torture under international standards, and that may irreversibly harm health and even lead to death. As a result, the Law severely infringes the prisoners’ constitutional right to dignity, as well as their right to life and to physical integrity, from which the right to autonomy and the right to refuse medical treatment derive. In IMA’s opinion, the right to refuse force-feeding is part of the general right each person, as such, holds to refuse medical treatment. This right is not denied to those inside prison walls.

 

25.       IMA reminds us that hunger striking has been recognized as a means of expression and protest. It argues that the Law seriously infringes the prisoners’ freedom of expression by denying them, in effect, what is practically their sole legitimate means of protest.

 

26.       IMA maintains that the Law is not befitting the values of the State of Israel as a Jewish and democratic state, and that, inter alia, coercive use of medical means in order to achieve goals that are not medical is inconsistent with the principles of democracy.

 

27.       In IMA’s opinion, the Law’s purpose is  improper: the dominant purpose of the Law is not a humanitarian purpose. Protecting the lives of prisoners is secondary and is but an intermediate goal that was meant to serve the non-medical purpose of the Law. The non-medical purpose does not meet the test of a real public interest, neither under the necessity test – the existing statutory arrangement in the Patient Rights Law allows treating hunger striking persons, including prisoners, without coercive and harmful medical intervention – nor under the test of sensitivity for the right. Therefore, the serious harm to human dignity and a person’s autonomy over his body, while humiliating him and performing invasive medical procedures without consent, and the infringement of his right to equality and freedom of expression, cannot be justified by the need to achieve non-medical purposes, even due to a concern for compromising public order.

 

28.       In IMA’s opinion, the Law does not meet the proportionality tests either. The rational connection test – the arrangement established in the Law is not at all necessary, and may even undermine the chances for successful treatment of hunger strikers and irreversibly damage their health. Currently, the manner of treating hunger strikers is based on close monitoring by a doctor of the hunger striker’s statements of his wishes to receive or refuse treatment, and attempts to persuade the hunger striker to receive full or partial feeding with consent, and with a commitment that he will not be fed against his will. According to IMA, the procedure described is the best way to address hunger strikes – building a relationship of trust between treating physicians and the hunger striking prisoner leads to a negotiation that facilitates arriving at agreements. The ethics committee is viewed as a neutral body that aims to benefit the hunger striking person and to seek his best interest, rather than acting on anyone’s “behalf” or as a “threatening” institutional arm. In the IMA’s view, the small number of cases in which the matter of hunger striking prisoners were brought before the ethics committee is worth noting, and is a result of the trust relationship formed between the doctor and the hunger striking prisoner – a relationship that directly affects the scope of the cooperation between them, and the hunger striker’s consent  to undergo examinations  and to receive vitamins and nutrition intravenously.

 

29.       On the other hand, the arrangement established in the Law significantly alters the system of checks and balances established under sec. 15(2) of the Patient Rights Law. The Law shifts the decision to force medical treatment onto the President of the District Court or to his Deputy – who is not effectively involved in the medical procedure, is not familiar with the professional details and does not have the necessary tools to make an educated decision. In IMA’s opinion, this change may cause irreparable harm to the delicate trust relationship between hunger striking prisoners and the medical system, and may increase resistance to medical care. Additionally, although the Law requires presenting the court with the opinion of the ethics committee, there is no obligation to consider its opinion in cases of urgency. The patient does not even have the right to submit an opposing medical opinion, and the court has no authority to appoint another expert on its behalf. Furthermore, the Law requires only that the benefits and risks of providing forced treatment be considered, whereas the Patient Rights Law requires an expectation that the treatment will significantly improve the patient’s medical condition. And while the Law requires considering the position of the prisoner and his reasons among the considerations for coercing medical treatment, the Patient Rights Law requires a reasonable basis for assuming that the patient would retroactively consent. Moreover, the Law makes it possible to order coercive treatment in reliance upon privileged evidence, as opposed to the arrangement in the Patient Rights Law, which does not involve a judicial procedure. The Law even explicitly permits the use of force against a hunger striking prisoner in order to facilitate the  coerced treatment, whereas the Patient Rights Law does not explicitly permit this.

 

30.       IMA further maintains that it is doubtful whether forced-feeding can  save the life of a hunger striking prisoner. Rather, force-feeding that may bring about precisely the result about which the State is concerned –  disturbance of the peace, additional acts of protest and significant national and international reactions, as well as health risks and even the death of the hunger striking prisoner.

 

31.       IMA adds that there is a less harmful means for achieving the purpose of protecting the lives of prisoners, under sec. 15(2) of the Patient Rights Law and in accordance with the rules of medical ethics and the physician’s independent discretion. As for the proportionality stricto sensu test – IMA believes that the very assumption that some benefit may be derived as a result of implementing the Law is in doubt. On the contrary, the Law may cause extremely severe harm to prisoners, as well as to doctors and medicine in Israel.

 

32.       IMA maintains that the Law is inconsistent with the fundamental principles of medical ethics in Israel and around the world: autonomy, preventing harm to a patient, benefiting the patient, equality and distributive justice. According to IMA, the Law would compromise the doctor-patient relationship because a constant threat will hang over the heads of hunger striking prisoners that would lead to irreversible harm to the fragile trust prisoners place in prison doctors, as well as hospital doctors. IMA believes that it is not a hospital doctor’s role to  participate in implementing governmental decisions that serve non-medical purposes against the will of the patient, and to prefer non-medical considerations over medical considerations. IMA maintains that as a result of implementing the Law, a doctor may find himself in a conflict between his ethical duties and his duties as an employee required to provide a medical opinion to the Prisons Service Commissioner, or to administer forced treatment. In IMA’s opinion, issuing a judicial order by the President of a District Court or by his Deputy compelling medical treatment would lead to a situation in which no doctor would agree to execute the order, or that a doctor who would execute it would be committing an ethical violation that would expose him to disciplinary action by the IMA’s ethics board.

 

33.       IMA presented an enlightening survey of how different countries around the world contend with hunger strikes by detainees, prisoners, or those seeking asylum within their borders (Appendix P/38). The remaining Petitioners, as well as the Respondents, have also shed light on this issue. I will discuss their survey in depth, below.

 

The Petitioners Arguments in HCJ 5441/15: Al Mezan Center for Human Rights and

the Yusuf Al-Siddiq Institute for Prisoner Support

 

34.       The Petitioners in HCJ 5441/15 – organizations active in the field of human rights and social change, including protecting the rights of Palestinian prisoners – also contend that the Law is unconstitutional. It blatantly contradicts the fundamental right to dignity as it violates one’s right to autonomy over one’s body, as well freedom of expression and protest in a manner that negates a prisoner’s effective ability to express his position in an attempt to influence prison and state authorities. According to the Petitioners, a hunger strike is a legitimate course of protest, it is non-violent, and its importance grows when prisoners, whose forms of protest are limited due to their incarceration, are concerned. According to the Petitioners, force-feeding, which is designed to end the prisoner’s protest, gravely infringes his humanity. They argue that the Law was designed to provide the Prisons Service and the General Security Service with a tool to “break” a hunger strike, on the basis of considerations of public safety and breach of public order. The Petitioners believe that these considerations are irrelevant to the purpose of a decision regarding  the compelling of medical treatment that is intended to save lives. Therefore, the purpose of the Law is improper because the hunger striking prisoner becomes an instrument in the hands of the authorities for the purpose of implementing policy, and the claim as to protecting the life of the prisoner is merely a fig leaf. In this context, the Petitioners refer to sec. 19O(e) of the Law, which permits the use of privileged evidence in the proceedings, while limiting the prisoner’s ability to mount a defense. In the Petitioners’ view, the extent of the benefit deriving from the Law is also limited because the publicity and public outcry following the forced feeding of a hunger striking person would create animosity and inspire an uprising which may be “life threatening” or compromise prison order. The Petitioners argue that the arrangement in sec. 15 of the Patient Rights Law balances the need to care for the individual’s welfare, and his will and dignity.

 

35.       The Petitioners are of the view that, considering past experience, the security system has a wide range of capabilities for controlling a hunger strikes by prisoners. They maintain that the number of prisoners on hunger strikes decreases from year to year. In this regard, they rely on the response of the Prisons Service, dated July 12, 2015 (Appendix H to their Petition. In their Petition, they note the hunger strike by administrative detainee Muhammad Alan, which was discussed in the Alan case that we mentioned above, and to which we will return.

 

The Petitioners’ Arguments in HCJ 5994/15: Physicians for Human Rights, The Public Committee Against Torture in Israel, HaMoked: Center for the Defence of the Individual founded by Dr. Lotte Salzberger, Yesh Din Volunteers for Human Rights

 

36.       The Petitioners in HCJ 5994/15 are organizations whose mission is to promote and protect human rights in relation to health, to act against torture, and to protect the rights of residents of the West Bank – including Palestinians under arrest or investigation. They join the arguments by the Petitioners as presented above, including the argument whereby force-feeding constitutes torture that is prohibited under Israeli law and under international law. They, too, are of the opinion that the purpose of the Law is “breaking a hunger strike by prisoners, and silencing their protest”.  In their opinion, as well, a hunger strike is a last resort that is taken up in protest over arbitrary and harmful policy and conduct towards Palestinian prisoners and detainees in recent years; in protest against a policy of administrative detention and a policy of solitary confinement; and in order to secure basic human rights such as family visitations, medical care and proper living conditions. The Petitioners review hunger striking in Israel, including the mass hunger strike by Palestinian prisoners in 2012, following which the process of enacting the Law was accelerated. In 2014, there was another mass hunger strike by administrative detainees. According to the Petitioners, a hunger strike is considered a disciplinary offense under the Prisons Ordinance. A Special Commissioner Order (Commissioner Order 04.16.00) grants the Prisons Service tools to address hunger striking prisoners, including revoking of benefits. They maintain that the tools that existed before the Law was passed succeeded in bringing an end to strikes by security prisoners without coercive treatment and without any instance of death as a result of a hunger strike. The Petitioners argue – without any documented substantiation – that it was precisely in cases in which coercive treatment was employed, before the enactment of the Patient Rights Law, that several cases of death occurred (para. 16 of their Petition).

 

37.       These Petitioners, as well, believe that coercive treatment infringes the hard core of human dignity, autonomy, free will, equality and freedom of expression. The Petitioners argue that there is a real possibility for harming human life in cases of force-feeding. In their opinion, the blanket immunity granted by the Law to entities that would provide coercive medical treatment directly violates the right to property of whomever was force-fed, constitutes another form of humiliation, and is not intended for a proper purpose. The Petitioners argue that the cumulative violation of human rights, including the possibility of relying upon privileged evidence in the proceedings, should be considered. They believe that ending a hunger strike by using force will guarantees further protests.

 

38.       In the Petitioners’ view, the Law contradicts the ethics rules of the World Medical Association, as well as the provisions of international law – which we shall address below – contrary to the presumption of compatibility [the Charming Betsy canon – ed.], which presumes that the purpose of a law is, inter alia, to realize the principles of international law and not to violate them. The Petitioners emphasize the prohibition on medical professionals to perform force-feeding of prisoners, and refer, inter alia, to the position of the Red Cross, the United Nations’ Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The Petitioners argue that the Law, which they claim effectively targets only the Palestinian population, is wrongfully discriminatory. In light of all this, the Petitioners believe that the Law must be struck down even before it is implemented, as it is a stain upon the law.,

 

The Response of the Knesset

 

39.       The Knesset believes the Petitions should be denied. In its opinion, the Law creates a supplemental arrangement to the existing arrangement in the Patient Rights Law, which responds to the special complexity that arises when the patient refusing medical treatment is a prisoner in the charge of the State, and whose medical condition is a product of a deliberate decision to undertake a hunger strike. According to the Knesset, the Law strikes a delicate balance between the State’s responsibility for the welfare of the prisoner and the sanctity of his life, and respecting the prisoner’s autonomy and wishes not to receive medical treatment. The Law was designed to allow a treating physician to care for the welfare of a hunger striking prisoner, subject to the exceptions that are meant to protect the prisoner’s dignity, under the strict supervision and monitoring of various judicial and medical entities.

 

40.       The Knesset emphasizes that the President of the District Court or his Deputy may permit providing medical treatment to a hunger striking prisoner despite the prisoner’s refusal, but they cannot order providing such treatment, and the matter remains in the discretion of the treatment provider (sec. 19P(a) of the Law). If the treatment provider chooses to treat the prisoner against his will, in accordance with the permission granted, he is required to provide “the minimum treatment necessary in the caregiver’s professional discretion to maintain the prisoner’s life or prevent severe, irreversible disability” (sec. 19P(a) of the Law). In light of this, the Knesset believes this is a balanced procedure that is meant to provide the most minimal treatment, in the most extreme cases, where treatment is required in order to save the life of the prisoner, or in order to prevent his severe, irreversible disability.

 

41.       The Knesset argues that although the Law permits the infringement of certain constitutional rights of prisoners – the right to autonomy and dignity – this infringement is intended for proper purposes and passes the proportionality tests established in the Limitations Clause of Basic Law: Human Dignity and Liberty. The Knesset finds evidence for this in the thorough legislative process that brought about significant changes in the Law’s language, whereby balances and mitigating elements were added. According to the Knesset, the alleged infringements of certain constitutional rights enable protection of other constitutional rights, first and foremost the prisoners’ right to life. The Knesset emphasizes that a prisoner has no constitutional right to hunger strike. A hunger strike in itself cannot be considered part of the freedom of political expression granted to a prisoner. In the Knesset’s opinion, preventing a hunger strike does not itself infringe the prisoner’s constitutional rights.

 

42.       The Knesset maintains that the Law meets the requirements of the Limitations Clause, as it is intended for a proper purpose and its infringement of the constitutional rights of prisoners passes the proportionality tests. The Knesset argues that the purposes grounding the Law are most proper, and befit the values of the State of Israel as a Jewish and democratic State. The Law is founded upon two intertwined purposes: the first, and primary one, which derives from the central value of the sanctity of life, concerns saving the life of a hunger striking prisoner and protecting his health and welfare. The second is protecting national security and the lives of others who may be at risk as a result of the hunger strike. As noted, a conditio sine qua non for initiating the procedure under the Law is the prisoner’s serious medical condition. The forced medical treatment that can be provided under the Law is “the minimal necessary medical treatment.” Thus, it is clear that the central purpose of the arrangement is to protect the life and health of the prisoner. According to the Knesset, it cannot be disputed that persevering a person’s life and health is a proper purpose.

 

43.       According to the Knesset, even the secondary purpose – the security purpose – is a proper purpose. Security considerations would only be taken into account when a treating physician finds that the prisoner’s medical condition is most serious and that there is real risk to his life, or that he would sustain severe, irreversible disability. In such circumstances, the court may consider “considerations of risk to human life or a real concern of serious harm to national security, to the extent that evidence to this effect is presented to the court” (sec. 19N(e) of the Law). In the Knesset’s opinion, it is clear that a purpose that concerns preventing risk to “human life” or “serious harm to national security” is a proper purpose. The Knesset argues that the combination of medical purposes and “non-medical” purposes is not unusual in Israeli legislation. It refers, for example, to the Treatment of the Mentally Ill Law. According to the Knesset, there is no contradiction between the security purpose and the humanitarian purpose: the death of a prisoner as a result of a hunger strike is a dire, undesirable outcome, both from the standpoint of the sanctity of life and in terms of the consequences for security that may follow his death. In effect, it is precisely the approach that argues for preventing medical treatment of a hunger striking prisoner who is in grave danger that gives priority to non-medical purposes over purely medical considerations. The Knesset also argues that even were there a distinction between the two said purposes, according to the case law of the Supreme Court, when the dominant purpose of a statutory arrangement is a proper and legitimate one, it may “cure” an additional purpose that cannot stand on its own.

 

44.       In the Knesset’s view, the two purposes befit the values of the State of Israel as a Jewish and democratic state, and the Law realizes the values of Israel both as a Jewish state and as a democratic state. It maintains that the Law also meets the proportionality tests: the Law inherently realizes the rational connection test because there is a sufficient likelihood that the procedure will reasonably contribute to achieving the purposes of the arrangement: the entities taking part in the procedure are required to examine the potential that the forced medical treatment would improve the prisoner’s condition; the treatment provided would only be the minimum required to protect the prisoner’s life or to prevent a serious disability. In the Knesset’s opinion, the claim that in the past there were cases where forced medical treatment of prisoners led to irreversible harm and even death is insufficient to disprove the existence of a rational connection between providing treatment without consent and saving the life of a prisoner. The Knesset argues that the claim according to which the Law would compromise the trust relationship between the doctor and patient is unfounded. This is because even under the Law, the doctor must invest significant effort into securing the consent of the prisoner to receive medical treatment. The Law meets the less harmful means test because sec. 15(2) of the Patient Rights Law does not realize the purpose of saving the life (or preventing serious disability) of a hunger striking prisoner to a similar extent. The Law also meets the proportionality stricto sensu test: the Law creates an arrangement that is proportionate and balanced, which seeks only to minimally infringe the prisoner’s autonomy, while protecting his life and ensuring close supervision and monitoring of the entire process. The process begins with a medical opinion by the treating physician. Treatment may be provided only by a professional caregiver, in the presence of a physician, and it is the minimal treatment necessary in order to prevent death or a severe, irreversible disability. Even in such circumstances, the caregiver still has discretion not to provide the treatment that the court permitted. The Law includes different supervision mechanisms that are meant to ensure that permission will be granted only in instances where there is a real need for it. Emphasis has been placed on the prisoner’s participation and on attempts to persuade him to receive the necessary treatment.

 

45.       In the Knesset’s opinion, the argument as to the legislative disharmony, as well as the ethics argument that IMA made, cannot be independent grounds for striking down primary legislation by the Knesset. Instead, constitutional grounds are necessary, that is, only if a statute is inconsistent with the Basic Laws, and as explained above, according to the Knesset this is not the case. As for the rules of medical ethics – without diminishing their importance – such rules cannot detract from primary legislation by the Knesset or override it. This is especially true when, even in other democratic states, arrangements exist which permit providing medical treatment without the consent of a hunger striking prisoner under certain circumstances. As to the argument of legislative disharmony, in the Knesset’s opinion this argument must be rejected as the differences between the Law and the existing arrangement in the Patient Rights Law are  not significant. The Law is a supplemental one that expands the arrangement established by the Patient Rights Law. The Law’s unique elements are grounded upon the relevant difference between the issue of a hunger striking prisoner who is in State custody, and a different patient who is not a prisoner, and therefore there is no disharmony.

 

46.       Finally, the Knesset reminds us that the Court must act with caution and restraint in exercising its power of judicial review over the Knesset’s legislation, because setting social policy is within the authority of the legislature. In its view, under the circumstances there are no grounds for the Court’s intervention in the value-based determination of the legislature.

 

The Response of the State Respondents: The Government of Israel, the Minister of Public Security, the Attorney General, the Prisons Service and the Prisons Service Commissioner

 

47.       The position of the State Respondents (hereinafter: the Respondents) is also that the Petitions must be denied in the absence of grounds for judicial intervention in primary legislation. According to them, the Law was enacted in a comprehensive, thorough, professional legislative process that was exceptional in its scope. This is a constitutional statute that serves important, proper purposes, and appropriately balances the State’s duty to protect the sanctity of life, in general, and the life of a prisoner who is in its charge, in particular, and the value of the prisoner’s autonomy to make decisions over his body and use it as a tool for expressing protest. According to the Respondents, sec. 15(2) of the Patient Rights Law does not provide a satisfactory response for the State to handle the recurring phenomenon of extended hunger strikes by prisoners in all its aspects. The Law is a supplementary arrangement to the Patient Rights Law that will be implemented only after all attempts at negotiation with the hunger striking prisoner have been exhausted.

 

48.       The Respondents claim that past experience shows that the ethics committee has difficulty in “predicting” the future will of a hunger striking person and determining the chance that he would give his consent to treatment retroactively, along with its understandable inclination to consider the autonomy and will of the patient as much as possible. This has led to the outcome that in recent years, medical treatment has rarely been provided to a hunger striking prisoner against his will, even when there was serious risk to his life. Medical intervention mostly occurred only when the hunger striker reached a state of medical emergency. In addition, the ethics committee is not authorized to consider other factors inherent to the very fact that the hunger striking person is a prisoner who is in the custody of the State.

 

49.       In the Respondents’ opinion, a hunger striking prisoner does not wish to die, and he does not see death as a desirable result of his struggle, but rather – at most – a price that he is willing to pay in the name of the struggle. In their opinion, the struggle of a hunger striking prisoner does not always reflect an autonomous decision by the prisoner. At times, his decision is influenced by external pressures, in accordance with an organizational decision by the terrorist organization to which he belongs, for the purpose of improving the image or status of the prisoner within the organization or a different population. In addition, when the basis for the hunger strike is an issue that has political aspects, the hunger strike becomes a tool in a struggle that is essentially political, which involves those who support the hunger striker and influence him, on one hand, while influencing those who oppose his political demands or who consider themselves harmed by them, on the other. This political struggle may escalate as the hunger striker’s condition progresses to a risk of death. Therefore, the hunger strike may cause a real risk to national security.

 

50.       The Respondents argue that there is no dispute that the Law infringes the autonomy of a hunger striking prisoner and his freedom of expression, but they believe that the Law serves a proper purpose, befits the values of the State of Israel as a Jewish and democratic State, and meets the proportionality tests established in the Limitations Clause. The Respondents explain that the treatment given to a hunger striker may include a wide range of treatments and tests, which may change according to the condition of each patient, and that are provided based on medical need. The Law permits a range of discretion in the selection of the treatment that would most improve the condition of the hunger striker. The Respondents deny that the Law violates equality. In their view, there is a relevant difference between patients who are hunger striking prisoners and other patients, which justifies special treatment for them.

 

51.       According to the Respondents, the purpose grounding the Law is that of expanding the means at the State’s disposal for the purpose of protecting the life, physical integrity, and health of a hunger striking prisoner who is under the direct charge of the State, while minimizing the harm that may be caused to his quality of life as a result of the medical harm that may suffer. Another purpose is to protect the security of the public and of the State from the consequences of the hunger strike itself, and from its possible consequences for the entire public – consequences that may very likely harm public safety and the rule of law.

 

52.       According to the Respondents, the purpose of preserving the life, health and physical integrity of the prisoner is consistent with the Commissioner’s Order “Preventing Losses – Treatment and Monitoring” (Order no. 04.54.01 dated October 13, 2004), and is also consistent with the provisions of sec. 15(2) of the Patient Rights Law. In the Respondents’ opinion, the fact that the obligation to protect the life of the prisoner, his physical integrity and his health is not solely an independent purpose, but one that also serves the goals of protecting the security of the state and its residents does not detract from the legitimacy of this obligation. At the basis of the Law is the purpose of protecting the life of a hunger striking prisoner. We are concerned with a proper purpose – protecting the right to life and its sanctity, which justifies infringing the autonomy of the prisoner. According to the Respondents, the right to autonomy is not absolute even in the fields of medicine and ethics. Thus, for example, the Terminally Ill Patient Law establishes the sanctity of life as a fundamental principle, and the Patient Rights Law permits violating the autonomy of a patient in medical emergencies. Another purpose of the Law is to protect the safety and wellbeing of the public from the consequences of a hunger strike, which is used as a tool to bring about the release of hunger striking prisoners despite the danger they pose to the public and to national security.

 

53.       In the Respondents’ opinion, the Law does not infringe the constitutional right to an extent beyond what is necessary. There is a rational connection between the purpose and the arrangements established in the Law. Addressing the issue solely through the Patient Rights Law posed significant difficulties, and even resulted in medical treatment being provided to hunger striking prisoners only after loss of consciousness and in a state of medical emergency, in accordance with sec. 15(3) of the Patient Rights Law. The balanced arrangement established in the Law responds to the unique aspects of the issue, and makes it possible to extend the life of a hunger striking prisoner and protect his health, as much as possible. According to the Respondents, in any case, if no caregiver would agree to act upon the permission granted under the Law, the Law would not be implemented and, in any event, no harm would be caused. The Law also meets the condition of the less harmful means, as it establishes a number of restrictions that limit the infringement of rights by establishing strict tests for implementing the Law’s arrangement, as well as by the demand for exhausting the possible ways to secure the prisoner’s consent, and by the decision procedure – the considerations that the President of the District Court is instructed to take into account, and the authority to grant a proportionate permit that is tailored to the type of treatment necessary.

 

54.       According to the Respondents, the State of Israel respects and complies with its obligations under international law, including the prohibition on torture and cruel, inhumane and humiliating treatment under the U.N. Convention against Torture and other conventions. However, according to them, international law does not comprise any specific rule prohibiting the providing of treatment in general, or artificially feeding a hunger striking prisoner against this will, as a matter of principle. According to the jurisprudence of the various international tribunals, forcible feeding does not necessarily amount to torture or cruel treatment prohibited under international law, which we will address further, below.

 

55.       The Respondents note that the IMA’s position has opponents even in the medical community. They refer to a position paper they have attached, dated August 23, 2015, whose signatories include leading Israeli doctors, jurists, ethics and bioethics experts and philosophers (Appendix R/3), according to which, in extreme circumstances, the value of protecting human life and the ethical professional obligation of the doctor to save his life outweighs the infringement of a hunger striker’s autonomous will.

 

56.       In light of all this, the Respondents argue that given the clear public interest in protecting the prisoner’s life, on one hand, and protecting public safety, on the other hand, as well as considering that the infringement is limited and proportionate, the Law is constitutional and does not raise legal grounds for intervention.

 

The Hearings before the Court

 

57.       We held two hearings on the Petitions. During the hearing on September 17, 2015, we raised the question of whether the fact that a hunger striking prisoner is concerned may influence the balance between the considerations. Advocate Orna Lin, representing IMA, reiterated the position of the professional bodies that the preferable practice in treating a hunger striker is the procedural process, which has proven itself,  inasmuch as no hunger striking prisoner has ever died in Israel. She claimed that the number of hunger strikers decreases continually. Advocate Durgam Saif, representing the Petitioners in HCJ 5441/15, reiterated his argument that the true purpose of the Law is to protect national security and the concern for disruptions, which constitutes an irrelevant consideration, and the Law therefore lacks a proper purpose. According to him, the European Court and other countries that have permitted force-feeding have considered only medical factors and not security considerations. Advocate Saif noted that according to the Law it is also possible to permit forced treatment following presenting the judge  privileged evidence. This, too, he argues, renders the procedure unconstitutional. Advocate Tamir Blank argued on behalf of the Petitioners in HCJ 5994/15 that this is a statute that permits carrying out torture in the State of Israel. He also challenged the impossibility for a prisoner harmed as a result of forced treatment to recover damages.

 

58.       We also permitted Dr. Leonid Eidelman, the Chairman of IMA, whose affidavit was attached to IMA’s Petition, to express his objection to the Law. According to Dr. Eidelman, the Law would compromise the ability of doctors to treat patients.

 

59.       As opposed to this, Advocate Dr. Gur Bligh, representing the Knesset’s Legal Adviser, argued that the Petitioners’ approach respects the prisoner’s autonomy to the point of death – an approach that the legislature did not choose. According to him, there are two purposes to the Law: the dominant purpose is that of the sanctity of life, while the secondary purpose is that of security. In the opinion of the Knesset, the Patient Rights Law does not sufficiently respond to the problem because the presumption is that an unconscious hunger striking prisoner would not wish to be fed. Advocate Areen Sfadi-Attila, on behalf of the Respondents, also argued that the Patient Rights Law does not provide tools for addressing a hunger striking prisoner. She explained that the relevant law serves as a last resort, designed to prevent irreversible harm to the hunger striking prisoner, and to permit intervention at the point where risk to life or serious disability may be prevented. This is, inter alia, due of the state’s duty to save the prisoner’s life, as well as to protect the lives of others who may be harmed as a result of the hunger strike. According to her, the purposes of protecting the prisoner’s safety and state security  coexist harmoniously with the purpose of protecting human life, and she is of the opinion that the Law adopted the jurisprudence of the European Court on this issue.

 

60.       On December 10, 2015, the following decision was handed down:

 

A follow-up hearing is to be scheduled before the Panel on one issue alone: the question of the constitutionality of section 19N(e) of the Prisons Ordinance (Amendment No. 48) Law, 2015, which states: “The court shall take into account considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court”. The hearing shall be held in three months. The Respondents shall submit a supplementary position on this issue up to two weeks prior to the hearing, and the Petitioners may respond up to five days prior to the hearing.

 

Accordingly, the parties submitted their supplementary positions as follows:

 

The Knesset’s Supplementary Position

 

61.       The Knesset argues that sec. 19N(e) is constitutional and there are no grounds for judicial intervention. According to the Knesset, in the course of the legislative process a significant change was made in the Law to the effect that security considerations were removed from the primary section that guides the discretion of the court (sec. 19N(d) of the Law). They were included in a separate section and significantly reduced, so that only if the court is presented with evidence in this regard, the court shall consider security factors. According to the Knesset, including sec. 19N(e) of the Law was designed to achieve the second, and secondary purpose of the Law. In the Knesset’s view, this is a proper purpose. The Knesset emphasizes that security considerations may not, in and of themselves, lead to providing coercive treatment to a prisoner on a hunger strike. Such factors would be considered only where a treating physician found that the prisoner’s medical condition was extremely serious, and that there was a real risk to his life, or that he would suffer a severe, irreversible disability. Only then would the court take into account “considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court”. According to the Knesset, the integration of these purposes is not unusual in Israeli legislation. In its view, there is no contradiction between the security purpose and the humanitarian purpose, which is founded upon the sanctity of life, to the extent that it is possible to say that in the typical situation, the security purpose is “subsumed” by the humanitarian purpose. The Knesset is of the opinion that, in practice, it is precisely the approach that advocates preventing medical treatment to a hunger striking prisoner in grave danger that prioritizes the non-medical purposes over the pure medical considerations. The Knesset reiterates its argument that even were there a distinction between the two purposes, and even were it argued that the security purpose cannot stand independently, this Court has ruled in the past that when the dominant purpose of a legislative arrangement is proper and legitimate, this may “cure” an additional purpose that cannot stand on its own.

 

62.       In the Knesset’s opinion, sec. 19N(e) of the Law is proportionate. The section meets the rational connection test – allowing the court the possibility to factor in security considerations once evidence in this regard has been presented, would best contribute to realizing the security purpose of the arrangement, and certainly establishes the potential for realizing it. The section meets the less restrictive means test – it is hard to see how it would be possible to realize the security purpose without permitting, when appropriate, that the court take security considerations into account once evidence to this effect has been brought before it. The alternative means proposed by the Petitioners – the arrangement established by sec. 15(2) of the Patient Rights Law, cannot be deemed capable of achieving the purposes of the Law to the same extent, while limiting infringement of the prisoner’s rights. The section also meets the test of proportionality in the “narrow” sense: it is proportional and balanced, and ensures that the infringement of the prisoner’s autonomy is minimal. The security factors listed in the section could never, in and of themselves, lead to initiating a procedure according to the Law. Once the case has been brought before the court on pure medical grounds, and to the extent that such evidence to this effect has been presented, the court may also take into account the security considerations alongside the entirety of other considerations and the opinion of the ethics committee. Additionally, according to the language of the Law as enacted, there must be concrete evidence that substantiates a “concern for human life” or a “real concern for serious harm to national security.” This is a relatively high threshold, which requires substantial evidence. Furthermore, even where the court permits coercive treatment of a prisoner, that does not require the caregiver to provide such treatment (sec. 19P(e) of the Law.) In any case, the treatment actually provided would be the product of only medical considerations (end of sec. 19P(a) of the Law).

 

63.       In effect, the Knesset argues that the court’s authority to factor in security considerations was not meant to outweigh the medical considerations, but to balance other non-medical considerations that may lead the prisoner to put his health, and as a result the entire public, at risk.

 

The State Respondents’ Supplementary Position

 

64.       According to the Respondents, as well, sec. 19N(e) of the Law is constitutional. It was argued that it is impossible to commence a proceeding on a request to permit medical treatment, and such permission cannot be granted, based solely upon security considerations, but only in order to realize the objective of protecting the life of a prisoner, which is the original purpose for recourse to the Law. The position of the Respondents is that in instances where there is real possibility that the prisoner would be at risk of death or of a severe, irreversible disability within a short period of time, and that the medical treatment is expected to improve his condition, the sanctity of life outweighs the prisoner’s autonomy, and the District Court will have no need to address security considerations. However, if, and to the extent that it is found that there is a range of judicial discretion for determining the issue of the relation between the sanctity of life and the prisoner’s autonomy, the legislature instructs that in the scope of that discretion, weight should also be given to the real concern for serious harm to state security, to the extent that evidence to such effect has been presented to it. The Law does not establish the relative weight of the various considerations, and the determination in this regard is given to the discretion of the court.

 

65.       The Respondents argue that once the conditions for submitting a request under the Law have been met, maximum weight should properly be attributed to the value of the sanctity of life, and in such a case there should be no need for recourse to sec. 19N(e) of the Law. Even if their position is rejected, there is no constitutional flaw in taking the security considerations into account when balancing other considerations under the Law. According to the Respondents, a hunger strike may become a tool in what is essentially a political struggle, which involves the group of those supporting the hunger striking person, on one hand, and the group of those who oppose his political demands, or who see themselves as harmed by them, on the other hand, and influences them. Such a political struggle may escalate the condition of the hunger striker. Therefore, the need arose for a supplementary legal arrangement to be implemented only once the Patient Rights Law is no longer effective. According to the Respondents, the change that was made to the language of the Law led to limiting the security consideration, for the purpose of reducing the infringement of the prisoner’s right to autonomy. The Respondents say that there is no dispute that granting permission to treat a hunger striking prisoner against his will involves infringing the prisoner’s right to autonomy, including the prisoner’s right to free expression. However, preventing harm to the prisoner’s life is a purpose worthy of protection, just as protecting other human life is a protected fundamental right and one of the duties of the state. Additionally, protecting national security constitutes a real, and even essential, public need in an ongoing security situation that has the potential of harming innocent citizens and residents. Thus, the security purpose of the Law may justify, in appropriate cases, infringing the right to autonomy. The Respondents emphasize that the severe medical condition of a hunger striking prisoner is always the basic premise for adjudicating the request. In their opinion, in terms of the outcome, as well, the security consideration will not stand on its own (sec. 19N(a)(1) of the Law.)

 

66.       The Respondents also believe that the Law is proportionate. Following the procedure in accordance with the requirements of the Law can ensure the realization of the purpose of protecting the lives of others and protecting national security, alongside protecting the life of a prisoner on a hunger strike. The decision of the court is a suitable means for preventing the security risk caused by failing to provide medical treatment to a hunger striking prisoner and the deterioration of his condition as a result of the hunger strike. In their opinion, the balanced arrangement established by the Law meets the second proportionality test, and there is also a reasonable relationship between the right to autonomy and the public benefit deriving from it for the purpose of realizing the legislative purpose. In their opinion, the components of the Law create a proportional and balanced arrangement that minimally infringes the prisoner’s right to autonomy, while protecting his life and ensuring measured, supervised use of the entire process, and the implementation of sec. 19N(e) of the Law in particular. Recourse to the Law would serve as a last resort, after exhausting all efforts under the Patient Rights Law. We are concerned with a strict supervision procedure, and permission for treatment cannot be granted on the basis of the security consideration alone. Therefore, as argued, the Law passes the tests for constitutionality, and does not provide legal grounds for intervention.

 

IMA’s Response to the Supplemental Responses

 

67.       IMA maintains that a constitutional discussion in terms of sec. 19N(e) of the Law as disconnected from the Law as a whole would be incomplete. IMA disputes that the humanitarian purpose is the primary purpose of the Law, whereas the security purpose is secondary to it. According to IMA,  refraining from discussing the ethical issue brought before it is tantamount to the Court’s approval of future judicial orders to violate ethical duties, with all this may imply. IMA referred us to the case of the administrative detainee Muhammad al-Qiq, mentioned above and to which we shall return to below. According to IMA, in that case the hospital doctors refrained from treating Al-Qiq despite the decision of the ethics committee. According to IMA, had the Law implemented in the Al-Qiq case, clearly its goal would have been to put pressure on the doctors to treat Al-Qiq solely for security considerations, in violation of professional ethics. IMA argues that moving the security considerations from the scope of the general section to a separate section in the Law is a technical revision rather than a substantive one. This is because the Law mandates that the security considerations will be considered whenever the state may present the court with such evidence. According to IMA, under the circumstances, a serious concern arises that the state would use the security considerations to lead the court to a wrong determination on a medical matter that is not within its expertise. It argues that the security considerations are not secondary but a primary, central and inseparable part of the considerations that the court must take into account in deciding upon the request under the Law (it refers to the words of Advocate Yoel Hadar, the Legal Adviser of the Ministry of Public Safety, minutes of meeting no. 312 of the Internal Affairs and Environment Committee, the 19th Knesset, p. 23 (June 17, 2014)). According to IMA, the state’s custody over the prisoner and the existence of a security purpose cannot justify violating the fundamental rights of a prisoner. Therefore, the argument that the state is absolutely responsible for the welfare of a hunger striking prisoner such that it may severely infringe his autonomy and personal will must be rejected. According to IMA, violating human rights in order to protect against an abstract danger or “collateral consequences” for public safety that are not connected to the specific prisoner, does not meet the requirements of reasonableness and proportionality and is unconstitutional. The IMA argues that the security purpose is not “subsumed” by the proper medical purpose – the proper dominant purpose cannot cure an improper secondary purpose. In its opinion, the humanitarian purpose is designed to serve the primary purpose – the possibility of imposing medical treatment upon the prisoner. Even were the primary purpose humanitarian, this purpose exists in the Patient Rights Law, and it is doubtful that it is present at all in the Law at hand. Its realization in our case is in doubt. The considerations that led a prisoner to undertake a hunger strike, and the state’s attempt to prevent protest of this type in the future, cannot and should not be part of the judicial decision in regard to his medical condition, and certainly not in regard to forcing medical treatment of questionable medical benefit for the hunger striking prisoner. Non-medical considerations that led the prisoner to go on a hunger strike do not justify considering non-medical factors in order to end it. According to IMA, even if the Law may be viewed as a supplementary arrangement, the concern arises whether its entire purpose is putting additional pressure on physicians through the granting or judicial orders.

 

The Response of the Petitioners in HCJ 5441/15 to the Supplementary Responses

 

68.       According to these Petitioners, as well, the Law as a whole violates individual rights, and sec. 19N(e) cannot be disconnected from the entirety of the Law. In any event, considerations of public safety are irrelevant to the purpose of saving the life of a prisoner on a hunger strike, because they were designed to prevent the possible outcomes resulting from the death of the prisoner rather than the death itself. This removes the section from the scope of the Law’s purported goal: protecting human life. According to the Petitioners, most hunger strikes are by administrative detainees. They argue that distinguishing between detainees or prisoners on hunger strikes according to the impact their death may have upon the public violates equality. Moreover, according to the position of the Respondents, a severe infringement of individual rights is justified in order to prevent the administrative detainee from achieving a “public-opinion victory” over the State of Israel. The Petitioners find support for this in the words of the Deputy Attorney General, Advocate Raz Nizri, in the  debate of the Internal Affairs and Environment Committee: “The Law is intended to provide an additional tool in exceptional situations in order to prevent resolving it by releasing that person about whom there is information that he is involved in terrorism” (minutes of meeting no. 26 of the Internal Affairs and Environment Committee, the 20th Knesset, p. 12 (July 14, 2015)). In the opinion of the Respondents, there is no necessary rational connection between saving the prisoner’s life and the security consideration that is intended to advance other goals. Furthermore, not even one alternative to forced feeding was considered. The Petitioners again challenge the possibility of using privileged evidence during the proceedings under sec. 19O(e) of the Law. They maintain that there is no choice but to discuss this section as well. They argue that they have met their burden to prove infringement of constitutional rights, and thus the burden shifts to the State to show the justification for the infringement, but that the State has not met this burden.

 

The Response of Petitioners in HCJ 5994/15 to the Supplementary Responses

 

69.       In the Petitioners’ opinion, the responses reveal that the purpose of the Law is ending the hunger strike of Palestinian prisoners and silencing their protest. In their opinion, physicians would find themselves in an impossible situation in which they may become torturers against their will. According to the Petitioners, the position of the Respondents means that in any case where the matter of a hunger striking prisoner would reach the court, the conditions listed in sec. 19N(3) of the Law would effectively be met, and security considerations are supposed to, or may be considered. In the Petitioners’ opinion, because of the language chosen -- “a real concern for serious harm to national security” – it is likely that security considerations would be attributed greater weight, and the chance that the court would reject the request to permit forced medical treatment is negligible. In their view, considering non-medical factors in the course of a request to permit forced medical treatment constitutes sanctioning torture through legislation, despite the absolute prohibition on torture. The Petitioners reiterate that the purpose of the legislation is political, and it is not preventing risk to the life of a prisoner on a hunger strike. They believe that even if according to the Respondents it were possible to strike a balance between life and autonomous will, it is not at all clear why it is necessary to insert a non-medical security consideration, and how such a consideration would serve the balance between the two values. The Petitioners argue that it cannot be claimed that, on one hand, sec. 19N(e) of the Law is unnecessary, while on the other hand holding on to it for dear life. In the Petitioners’ opinion, there is no link between protecting the prisoner’s life and his autonomy, and considerations of public safety – these are contradictory factors. The Respondents also fail to explain why forced feeding would not bring about the severe outcome of harming security and human life. According to Petitioners, the Respondent’s argument that implementing the Patient Rights Law alone may cause a prisoner on a hunger strike serious and irreversible harm – and may even lead to death – is an empty claim  inasmuch as over decades of implementing that law, not one person on a hunger strike had died. The Petitioners argue that the Respondents do not explain  how taking national security considerations into account would reduce the potential for medical harm to a hunger striking prisoner. According to the Petitioners, when “a concern for human life and a real concern for serious harm to national security” hang in the balance, the individual becomes a means to an end, and the road to torture, and to violent and humiliating procedures is short and inevitable.

 

The Follow-up Hearing

70.       On February 21, 2016, we held a follow-up hearing on the question of the constitutionality of sec. 19N(e) of the Law. Advocate Lin repeated the position of IMA, whereby even where the conditions of sec. 19N(d) of the Law are not met, the Law authorizes the court to permit providing medical treatment in a manner that may put the life of a hunger striking prisoner at risk. In IMA’s opinion, once security considerations are put in the mix, a “danger to life” is created. Advocate Saif addressed the issue of the privileged evidence in sec. 19O(e)(1). In his view, this further supports the Law’s unconstitutionality. According to him, the security consideration, which serves as a “back door” to facilitate the forced feeding of a prisoner on a hunger strike, must be struck down. Advocate Blank believed that once a partial medical opinion is submitted, the security considerations would “initiate themselves”. In his view, including security considerations in regard to a medical procedure may lead to painful, invasive and severe treatment that would amount to torture or humiliation. On the other hand, Advocate Dr. Bligh commented on behalf of the Knesset that inasmuch as the prisoner’s public and political considerations are at the basis of his hunger strike, the State, too, should be permitted to take security considerations into account in certain circumstances, however only when necessary to protect the welfare of others. Advocate Sfadi-Attila explained on behalf of the State Respondents that the purpose of the section comprising the security considerations is to equip the District Court with additional  balancing considerations. This section instructs the court to weigh the prisoner’s right to autonomy  against the consequences that a risk to his life, or  his death, may pose for other people, on the basis of evidence presented to it. Advocate Sfadi-Attila further explained that under the amendment, should the court conclude that it is concerned with a prisoner who is at mortal risk and that the treatment may save his life, that would be sufficient for permitting forced medical treatment. However, the court can consider the security issue only if the court is undecided. That is, the security factor always accompanies the consideration of the sanctity of life and does not stand on its own as an independent consideration.

 

 71.      Advocate Sfadi-Attila submitted to us a secret opinion prepared by the research unit of the General Security Service. We would note that the Petitioners in HCJ 5994/15 asked to review the opinion. On March 21, 2016, we ruled that “under the circumstances, the Petitioners will only be provided with the paraphrase at the end of the Respondents’ response” whereby “the opinion points to a potential risk of a deterioration of security in and outside the prison as a result of the death of a security prisoner on a hunger strike, and as a result, to a loss of human life.”

 

Decision

72.       We are confronted with an issue that is legally, ethically, publicly, and humanly complex. These Petitions were submitted before the Law had been tested in practice and implemented. We are, therefore, concerned with a principled debate of an issue that is not – or in any event, is not yet – actual. Although, as a rule, the Court does not address theoretical issues, it has been held that there are cases in which petitions must be considered because of the importance of a question that concerns the fundamental principles of the rule of law, inter alia, in light of its “short lifespan” in the circumstances of its implementation. The issue before us is among those due to the real possibility that within a short period of time there may be a threat to the life of a prisoner on a hunger strike, or a possibility of severe, irreversible disability. Naturally, in this state of affairs, the decision on the matter must be handed down within several hours or days, given the prisoner’s severe medical condition (compare: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53 (5) 241, 250 (1999) [English:  http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense] (hereinafter: the Tzemach case,)) and therefore we must address the theoretical interpretive question at the outset.

 

73.       It is, therefore, appropriate that we examine the constitutionality of the Law now – and not under the strict time frame established in the Law itself, when the severe medical condition of a hunger striking prisoner would complicate the performing of a thorough judicial examination. I state at the outset that after considering the arguments of the parties, I have reached the conclusion that there are no grounds for granting the Petitions, and that the Law passes the tests of constitutionality. Ultimately, the Law comprises an element of saving lives, and privileging the principle of the sanctity of life is first and last. This is reinforced by the fact that the person concerned is in the custody of the state, which is obligated to provide him with proper medical treatment. I shall explain.

 

74.       It is decided law, anchored in the democratic structure, in respect for the separation of powers, and in common sense that the Court must act with restraint when reviewing statutes enacted by the Knesset, which express the will of the people (see for example: HCJ 8665/14 Desete v. Knesset, para. 22 of the opinion of President M. Naor (August 11, 2015) (hereinafter: the Desete case); HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (February 23, 2012) (hereinafter: the Nir case)). Special caution is warranted when examining the constitutionality of a law (HCJ 7385/13 Eitan – Israeli Immigration Policy v. Government of Israel, para. 23 (September 22, 2014) (hereinafter: the Eitan case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). The point of departure for examining the constitutionality of a law is, therefore, that it is a statute of the Knesset that expresses the will of the public’s representatives, and as such, the Court must respect it. Thus, the Court will not easily determine that a particular law is unconstitutional (HCJ 3434/96 Hoffnung v. Speaker of the Knesset, IsrSC 50 (3) 57, 67 (1996) (hereinafter: the Hoffnung case); HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 263-64 (2002) (hereinafter: the Menachem case)). It must be born in mind that a statute enacted by the Knesset enjoys a presumption of constitutionality which places upon those who challenge that constitutionality the burden to show, at least prima facie, that the statute is unconstitutional, before the burden may be shifted to the State and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the Court to assume that the law was not intended to undermine constitutional principles (the Hoffnung case, p. 68), and in any event, places upon it a special responsibility.

 

75.       Nevertheless, this does not mean that the law is immune to judicial review. The Court must fulfil its duty under our constitutional regime, certainly since the Basic Laws concerning rights were enacted, and even prior to this (CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1993) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... A. Barak, Interpretation in Law – Constitutional Interpretation (2005) (pp. 105-118) (Hebrew); HCJ 98/69 Bergman v. Minister of Finance and State Comptroller, IsrSC 23(1) 693 (1969) [http://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance]). The Court must then examine the constitutionality of the legislation enacted by the legislature in order to ascertain whether it is flawed, for example, by violating different types of rights. This examination must be carried out with strict care for the delicate balance between the principles of majority rule and separation of powers, and the protection of human rights and the fundamental principles that ground the Israeli political system. At times, immediate political needs may overly tip the scale in one direction in legislation, and the Court must balance, with institutional respect for the Knesset. Therefore, the constitutional review will, indeed, be carried out, but with proper caution and while avoiding reformulating the policy chosen by the legislature (CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, 372-73 (2008) [http://versa.cardozo.yu.edu/opinions/v-state-israel-1]). As has been stated:

 

                        … this Court cannot ignore a violation of fundamental rights that does not meet the requirements of the Limitations Clause as explicitly established in the Basic Laws. The Court is charged with the duty to ensure that the legislative work of the Knesset does not infringe human rights established under the Basic Laws to a greater extent than is necessary, and it may not abdicate this duty. This examination should be made by striking a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the protection of human rights and the basic values underlying the system of government in Israel, on the other (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, para. 14 of President Beinisch’s opinion (November 19, 2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: The Human Rights Division case); CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, para. 29 (2008) (hereinafter: the Anonymous case)); (HCJ 7146/12 Adam v. Knesset, para. 67 (September 16, 2013) (hereinafter: the Adam case)).

 

76.       We are, therefore faced with a sensitive, delicate pendulum, and certainly this is the case in the State of Israel in light of the mosaic of its reality and the complexity of its life. As is well known, judicial review is not performed in a vacuum – it is done against the background of the reality with which the law was designed to contend. As described above in detail, the provisions of the Law that are challenged by the Petitions include means that the State selected as part of an attempt to address the phenomenon of hunger strikes by prisoners and detainees, including administrative detainees. The scope of this phenomenon, according to the data we have, is on the decline (Appendix H to Petition 5441/15.) We pray that this Law will never be utilized, and turns out to be unnecessary, and as is known – “it is not for us to judge the wisdom of the legislature and the need for some particular legislation or another, whatever our position as citizens may be. Before us is a legislative product whose constitutional status we must evaluate according to its content – first and foremost – and according to its history, and we will not lock the door to legal developments following its implementation” (from my opinion in HCJ 2311/11 Sabah v. Knesset, para. 3 (2014)). But for the time being, the need to address the challenges arising from the hunger strike phenomenon still stand, and none of us can predict what tomorrow may bring. Against this background, I shall turn to examining the constitutionality of the Law. In my view, the sanctity of life is overarching, as a fundamental tenet of Judaism as well as of every proper human society.

 

The Constitutionality of the Law

77.       As we know, constitutional review is carried out in stages. First, we must examine whether the Law infringes a protected human right. If the answer to this is in the negative – this ends the constitutional review. If the answer is in the affirmative, we must examine if the infringement is lawful, according to the conditions of the Limitations Clause (see for example: HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 595 (2009) (hereinafter: the Prisons Privatization case)). These rules are based on the constitutional approach whereby constitutional rights are relative rights, and  they must be balanced against other rights and interests.

 

78.       The Limitations Clause in Basic Law: Human Dignity and Liberty (sec. 8) establishes four cumulative requirements that the offending Law must meet in order for the infringement to come within the scope of legality. First, constitutional rights cannot be infringed except by a law that befits that values of the State of Israel as a Jewish and democratic state. Additionally, the law must be for a proper purpose. The purpose is proper if it was designed to realize important public interests (see for example HJC 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2005); HJC 6784/06 Shlitner v. Director of Payment of Pensions, para. 78 of Justice A. Procaccia’s opinion (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of the statute is tested through three subtests.

 

79.       The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... (hereinafter: the Adalah case); HCJ 6133/14 Abu Baker v. Knesset of Israel, para 54 of my opinion (March 26, 2015); Aharon Barak Proportionality in Law – The Infringement of the Constitutional Right and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality).

 

80.       The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. And note: the legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 192; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of Justice E. Arbel’s opinion (September 17, 2014); the Tzemach case, p. 269-70.)

 

81.       The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit deriving from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based on a balance between rights and interests. It calculates the social importance of the infringed right, and the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of Justice A. Procaccia’s opinion (September 2, 2010)).

 

82.       If the Court concludes that the reviewed statute does not meet the conditions of the Limitations Clause, then the statute is unconstitutional. In such a case, the Court must determine the consequences of the unconstitutionality in terms of a remedy (see for example: HCJ 2334/02 Stanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792 (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

 

A Prisoner’s Human Rights

83.       As stated above, the Petitioners argue that the Law does not comply with Basic Law: Human Dignity and Liberty because forcible feeding violates the right to dignity, the right to physical integrity, and the right to personal autonomy. It was further argued that a prisoner’s freedom of expression and his ability to protest as he wishes are also violated.

 

84.       Needless to say, the right to dignity  achieved supra-legal status with the enactment of Basic Law: Human Dignity and Liberty, and that “human dignity relies on the recognition of a person’s physical and spiritual integrity, his humanity and his dignity as a person” (the Eitan case, para. 14, per Justice Vogelman). Much has been written on the scope of this right, but there is no dispute that the right to autonomy derives from the right to dignity and constitutes part of the “hard core” of this right. At the base of the right to autonomy stands the recognition of one’s right to self-fulfillment and of one’s right to act according to his will and his choices (the Eitan case, para. 17):

 

           

A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto himself or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life. …The individual’s right to autonomy is not expressed only in the narrow sense of the ability to choose. It also includes another – physical – dimension of the right to autonomy, relating to a person’s right to be left alone ... The import of the right is, inter alia, that every person has freedom from unsolicited non-consensual interference with his or her body … The recognition of a person’s right to autonomy is a basic component of our legal system, as a legal system in a democratic state. … It constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, a right anchored in Basic Law: Human Dignity and Liberty. 

(CA 2781/93 Ali Daaka v. Carmel Hospital, Haifa, IsrSC 53(4) 526, 570-71 (1999) [http://versa.cardozo.yu.edu/opinions/daaka-v-carmel-hospital]  paras. 15-17 of the opinion of Justice Orr)).

 

85.       We hold it as fundamental that  every right granted to a person as such, is granted to a person even when incarcerated or detained, and that the fact of incarceration or detention alone cannot revoke any of his rights, unless it is required as a result of the denial of his freedom of movement, or where there is an explicit statutory provision to such effect (HCJ 337/84 Hukma v. Minister of Interior, IsrSC 38(2) 826, 832 (1984)). This Court has been called upon repeatedly to consider the rights of prisoners, and has held that a prisoner does not lose the human rights and liberties granted to any person, unless it is necessary for the purposes of the incarceration:

 

                        …the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law  (the Prisons Privatization case, p. 595 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 17 of the opinion of President D. Beinisch]).

 

And it should be emphasized:

                        The necessary violation of a prisoner’s human rights is rooted primarily in the restriction of his personal liberty, which stems from the incarceration. Restricting a prisoner’s movement in prison necessarily leads to a violation of those incidental human rights whose realization is contingent upon the existence of human liberty, such as the right to an occupation, the right to privacy, and to some extent, even the right to freedom expression. Additional violation of a prisoner’s human right may be required in order to achieve the purpose of maintaining order, safety and discipline in prison for purposes of protecting the security of its inmates. Limitations may also derive from other needs grounded in important public interests, such as general considerations of national security (the Dobrin case, para. 14). However, the purpose of violating the prisoner’s human rights is never to add to the penalty imposed upon him by the court. Its legitimacy relies on the fact that it is a necessary result of the denial of liberty due to incarceration, or that it is required in order to achieve an essential, legally recognized public interest (APA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, 154-56; HCJ 221/80 Darwish v. Prisons Service, IsrSC 35(1) 536, 546; HCJ 540/04 Yousef v. Director of the Judea and Samaria Central Prison, IsrSC 40(1) 567, 572-73). (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security, IsrSC 62(1) 762, 773, per Justice Procaccia (2007) (hereinafter: the Physicians for Human Rights case)).

 

And indeed:

It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell (APA4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, per Justice Mazza (1996) [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service, para. 12]).

 

This is also the case in regard to the constitutional rights of a prisoner who is in the custody of the state:

                        A prison sentence imposed upon a person does not itself revoke the constitutional human rights he is granted by virtue of the principles of the Israeli constitutional system. Such rights are denied to the prisoner only when their restriction is necessarily required due to the fact that his liberty was revoked because of incarceration, and to an extent that the violation of a protected right is in accordance with the principles of the Limitations Clause in the Basic Law (the Physicians for Human Rights case, p. 773).

 

In practice, it was held that the right to freedom of expression is not denied to a person upon incarceration, however it is substantially reduced:

 

                        It is the decided law of this Court that when entering prison one loses one’s liberty but one does not lose one’s dignity (APA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, 152-53; HCJ 355/79 Katalan v. Prisons Service, IsrSC 34(3) 294, 298). Although the prisoner’s right to freedom of movement is denied, he still holds fundamental rights “whose infringement violates a person’s minimal, fundamental needs” (HCJ 114/86 Weil v. State of Israel, IsrSC 41(3) 477, 492). Freedom of expression is among the fundamental rights granted to a prisoner even when he is incarcerated. It is not denied to a person upon his incarceration and is granted to the prisoner even within his cell (APA 4463/94 above, p. 157). Nevertheless, “incarceration severely limits the prisoner’s ability to realize his freedom of expression, and his freedom of expression is, in practice, much more limited than the freedom of expression of a free citizen” (loc..cit.). Thus, restrictions are imposed upon the right of freedom of expression within the prison walls,  the purpose of which is, inter alia,  to promote unique interests “… which are required for the orderly administration and function of prisons: realizing the goals of incarceration, maintaining security, order and discipline in prison, protecting the welfare of prisoners, protecting the welfare of staff and wardens, and so forth” (loc.cit.). (HCJ 7837/04 Borgal v. Prisons Service, IsrSC 59(3) 97, 101 per Justice Y. Adiel (September 14, 2004) (hereinafter: the Borgal case).

 

Restrictions are imposed upon the right of a prisoner to freedom of expression, inter alia, in order to serve the unique interests related to the orderly operation of prisons. In the Borgal case, it was held that a hunger strike is not included among the rights granted to a prisoner:

 

                        Against this background, even if we were to assume that a hunger strike may be considered a legitimate means to express opinions and to realize the right to freedom of expression, taking part in such a strike is not among the rights granted to a person while incarcerated in a prison. A hunger strike, in both its elements, the hunger and the strike, undermine the orderly operation of the prison. As for its first element, the refusal to eat itself is a prison offence under sec. 56(8) of the Prisons Ordinance. In our case this is not a “plain” refusal to eat, but a refusal which expresses organized protest in the form of a strike. An organized strike is also inconsistent with maintaining order and discipline in a prison. In this regard it has already been held: “Taking matters to the extreme, we can say that an everyday demonstration — in a town or village — is not like a demonstration of prisoners inside a prison. Is there anyone who would conceive it possible to allow a demonstration of prisoners in a prison?” (PPA 4463/94 above, p. 180 [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service], para. 11 of the opinion of M. Cheshin, J.). Therefore, we cannot accept the Petitioners’ argument as to a violation of their right to freedom of expression (emphasis added – E.R) (the Borgal case, p. 101).

 

86.       I shall now turn from general principles to the constitutional analysis of the Law. I will first note that examining the section and its legislative history reveals that the State wished to formulate a unique model, a comprehensive arrangement by primary legislation, in order to address the phenomenon of hunger strikes by prisoners and detainees, which is recurrent in the Israeli reality (see the Explanatory Notes to the Bill – Government Bills, 5774-2014, 762, 870). Those proposing the bill were not unaware of the fact that providing involuntary treatment to a person on a hunger strike raises significant ethical questions for the treating physician (ibid., p. 764). They considered the current arrangement in section 15(2) of the Patient Rights Law, and in their view, as noted in the Explanatory Notes, the existing arrangement in the Patient Rights Law does not “express the unique aspects that characterize the medical condition of the person on a hunger strike, generally – and those of a prisoner on a hunger strike, in particular; the complexity of the question of autonomy of will in circumstances of a prisoner hunger strike, and the broader range of the considerations and circumstances relevant to such a situation that must be weighed in making a decision on providing necessary medical treatment” (ibid., p. 772). Indeed, there can be no dispute that when the person on a hunger strike is a prisoner or a detainee, there is a different set of considerations and balances, and the weight given to the autonomous will of a prisoner or detainee on a hunger strike is not the same as in regard to a person on a hunger strike who is not a prisoner or a detainee. This is because he is in the custody of the state, with all that this may imply.

 

87.       We should already explain that in addressing hunger strikes we must consider another factor, which is also an important part of examining the right to human dignity. A hunger strike, if prolonged, may lead to a loss of life. In the absence of life – where is the person and what is the source of human dignity? The State of Israel is a Jewish and democratic state, and thus we must consider the Jewish ethos of the sanctity of life – any human life – as well. In addition, the jewel in the crown of Basic Law: Human Dignity and Liberty is the statement (in sec. 1):“Fundamental human rights in Israel are founded upon the recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free …” This must not be taken lightly. These are not merely words. They are constitutional norms. This raises the question whether a prisoner, who is in the custody of the public, may decide as he wishes upon ending his life, or whether the sanctity of his life while in custody outweighs his will, also given that realizing his will carries serious potential consequences that go beyond him alone (and see, for example, on this issue the Commissioner’s Order “Preventing Losses – Treatment and Monitoring” (Order no. 04.54.01 of October 13, 2004)), which states that “the Prisons Service sees guarding human life and physical integrity as a value of paramount importance, and is committed to protect the life of a prisoner to the best of its ability”). Perhaps we have here – in the words of our Sages – a case of “he is subjected to pressure until he says I am willing” (TB Yevamot 106a).  That is, at the end of the day, he will be reconciled (and compare section 15(2)(c) of the Patient Rights Law).

 

88.       Before we move on to a thorough examination of the concrete arrangement that is the subject at hand, we will examine the relevant provisions of international law and of the domestic law of other countries.

 

Comparative Law and International Law

 

89.       A review of the relevant legislative provisions and case law from abroad reveals that countries of the western world, as well as international tribunals, are divided on the question of the legitimacy of artificially feeding a prisoner on a hunger strike. Despite the position of the World Medical Association on the matter, it seems that a significant number of western countries permit the artificial feeding of a prisoner in extreme circumstances that present a real danger to his life.

 

90.       We shall start with those who prohibit it. It seems the strongest prohibition on coercive feeding exists in England. There, legislation and case law mandate that life extending treatment – including artificial feeding – should not be provided to a prisoner, regardless of the medical harm, when the person is competent to make decisions regarding his medical condition. See: the Mental Health Act 1983 (hereinafter: MHA) and the Mental Capacity Act 2005 (hereinafter: the MCA), which were amended in 2007 by the Mental Health Act 2007, and see the 2002 guidelines of the English Department of Health to those tasked with prison medical treatment: “Seeking Consent: Working with People in Prison”, as well as the rulings of British courts in the Robb case (R. v. Home Secretary, ex parte Robb [1995] 1 All ER 677); and the Collins case (R. v Collins, ex parte Brady [2000] Lloyd’s Rep Med 355 58) that are consistent with the aforesaid approach. Also see on this issue P. Jacobs, Force Feeding of Prisoners and Detainees on Hunger Strike, 303, 306 (2012) (hereinafter: Jacobs.)

 

91.       It would appear that Canadian law, too, prohibits the artificial feeding of prisoners, in principle. This is because sec. 89 of the Corrections and Conditional Release Act of 1992 stipulates that a medical team is prohibited from force-feeding an inmate by any method, as long as the prisoner has the capacity to understand the consequences of the fast he has undertaken. However, it should be noted that on April 27, 2015, the Canadian Prisons Commissioner published a concrete instruction as to handling prisoners on hunger strikes (“Hunger Strike: Managing an Inmate’s Health”). Under section 2 of this instruction, in light of the risk posed by an extended hunger strike which may cause medical harm or even death, the medical team must intervene for the purposes of saving a prisoner’s life at the stage where the prisoner is unconscious or lacks the ability to make an informed decision as to wanting medical treatment.

 

92.       On the other hand, in France, the United States, Australia, Germany, and Austria, the law permits artificial feeding of a prisoner against his will in extreme cases, which change from state to state.

 

93.       In France, as the Petitioners note, regulation D.364 of the Criminal Procedure Regulations establishes a specific arrangement for treating prisoners on a hunger strike, which permits treating a hunger striking prisoner against his will, but only when the prisoner is in immediate, serious danger. In 2012, the French ministries of justice and health issued instructions for treating prisoners. The instructions state that once it becomes known that a prisoner is on a hunger strike or refuses to drink, the medical unit must be updated as soon as possible, and that the health of the prisoner must be monitored according to the Public Health Law. It is also stipulated that, under section R4127-36, medical treatment will not be given to a prisoner without his consent except in cases of an extended hunger strike leading to immediate and serious risk to his life, and only upon medical request.

 

In the United States and Australia, the situation is somewhat more complex, inter alia, because of the differences between the federal and state laws on the matter. However, there, too, there are arrangements that permit coercive feeding of a hunger striking prisoner under certain circumstances (and see for example: Mara Silver, Note: Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation, 58 Stan L. Rev. 631 (2005);, Barry K. Tagawa, Prisoner Hunger Strikes: Constitutional Protection for a Fundamental Right, 20 Am. Crim. L. Rev. 569 (1982-83); M. Kenny, and L. Fiske, Regulation 5.35: Coerced Treatment of Detained Asylum Seekers on Hunger Strike. Legal, Ethical and Human Rights Implications, in The Ashgate Research Companion to Migration Law Theory and Policy, (S. Juss, ed.) (Ashgate, 2013).

 

94.       In Germany, section 101 of the Act Concerning the Execution of Prison Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (1976), which concerns “Coercive Measures in the Field of Medical Care”, states as follows:

 

                        (1) Medical examinations and treatment under coercion, as well as forced feeding, shall be permissible only in case of danger to life, in case of serious danger to the prisoner’s health, or in case of danger to other persons’ health; such measures must be reasonable for the persons concerned and may not entail a serious danger to the prisoner’s life or health. The prison authority shall not be obliged to execute such measures as long as it can be assumed that the prisoner acts upon his own free will.

(2) For the purposes of health protection and hygiene, a coercive physical examination shall be permissible in addition to that in subsection (1) if it does not involve an operation.

(3) The measures shall be carried out only upon orders from, and under the supervision of a medical officer, except where first aid is rendered in case a medical officer cannot be reached in time and any delay would mean danger to the prisoner’s life.

 

Thus, under German law, involuntary medical treatment of a prisoner, including forced feeding, is possible when there is a significant risk to the health or life of the prisoner or the life of another. Such treatment is permitted only at the instruction of a medical officer and under his supervision, unless urgent intervention is necessary, the medical officer is unavailable and any delay may cause harm to the prisoners’ life. Still, it should be noted that German law empowers the authorities to provide such treatment, but does not require doing so as long as it may be assumed that the prisoner is acting of his own free will.

 

95.       In Austria, section 69(1) of the Prisons Law of 1969 – Strafvollzugsgesetz (StVG) – mandates that in a case where a prisoner refuses to cooperate with a medical examination or with medical treatment, force may be employed in order to compel treatment, provided that the treatment is reasonable and does not pose a risk to life. It also states that the advance approval of the Minister of Justice must be secured, except in urgent cases. Section 69(2) of the statute states that a prisoner on a hunger strike shall be under medical supervision, and should it become necessary, it is permitted to force-feed the prisoner in accordance with the instructions and under the supervision of a doctor.

 

96.       As for international law, according to the Petitioners, artificial feeding against the patient’s will amounts to torture or cruel and inhumane treatment in a manner that violates the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, dated December 10, 1984, which was ratified by Israel on August 4, 1991 (hereinafter: the Convention against Torture), and is inconsistent with article 7 of the International Covenant on Civil and Political Rights of December 16, 1966, which was ratified by Israel on January 3, 1992, and which establishes a similar prohibition. However, the standards established by the Committee for the Prevention of Torture state as follows in regard to contending with hunger strikes by the various states:

 

                        Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole.

 

A classically difficult situation arises when the patient's decision conflicts with the general duty of care incumbent on the doctor. This might happen when the patient is influenced by personal beliefs (eg. refusal of a blood transfusion) or when he is intent on using his body, or even mutilating himself, in order to press his demands, protest against an authority or demonstrate his support for a cause.

 

In the event of a hunger strike, public authorities or professional organizations in some countries will require the doctor to intervene to prevent death as soon as the patient's consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts” (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) CPT Standards p. 42 (2002-2015)).

           

Thus, it is clear that the Committee did not a priori rule out forced feeding, but rather leaves a degree of discretion to states in handling hunger strikes between prison walls, while noting that to the extent that a state may elect to employ this measure, it must be established by law, and be limited to extreme and exceptional circumstances (see also: P. Jacobs, Food for Thought: the CPT and Force-Feeding of Prisoners on Hunger Strike, in Fervet Opus: Liber Amicorum – Anton van Kalmthout, 103, 106-07 (M.S. Groenhuijsen, T. de Roos & T. Kooijmans, eds.) (2010) (hereinafter: Food for Thought).

 

97.       The jurisprudence of the European Court for Human Rights on the issue is also of interest. Article 3 of the European Convention on Human Rights prohibits torture and humiliating penalties and treatment, similar to the prohibition established under article 7 of the International Covenant on Civil and Political Rights, and the Convention against Torture. The question raised before the European Court was whether forced feeding is inconsistent with the above prohibition. In a number of decisions, the European Court acknowledged that the issue creates a conflict between two paramount rights: the first, the individual right to autonomy; the second, the individual right to life. In the matter of Nevmerzhitsky v. Ukraine, the Court established the following balancing formula:

 

                        The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 26, § 83). Furthermore, the Court must ascertain that the procedural guarantees for the decisions to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court’s case law under Article 3 of the Convention (Nevmerzhitsky v. Ukraine, application number 54825/00, §94 (2005)).

 

In that case, the Court adopted a test comprising three cumulative conditions under which forced feeding would not be considered a violation of the European Convention. First, there must be medical necessity for the forced feeding. Second, the decision must be made in a proper procedure and according to the procedural framework established in state law. Third, the method of forced feeding must not exceed the minimal extent of severity permitted by the Convention, that is – does not amount to humiliating or degrading treatment or penalty. That case involved a prisoner who was force-fed through a tube, while restrained to a chair, with a mouth widener attached to his mouth. The Court held that using such means, while the patient resists and through the use of force, may amount to a violation of the Article when it is not medically justified. Further on, the court found that the said treatment was provided without medical justification and without due process, and therefore constituted a violation of Article 3 of the Convention.

 

98.       On the basis of those tests, the Court similarly found in Ciorap v. Moldova that forced feeding in that case amounted to a violation of Article 3. First, it found that there was no medical justification for the treatment. Second, it found that the procedure by which forced feeding was decided upon was improper because the physician who performed the forced feeding did not explain why he did so. It was held that the one purpose of the forced feeding in that case was to limit the prisoner’s right to protest through a hunger strike. Because the treatment caused him great physical pain and humiliation, it was held that this was prohibited torture under the Convention (Ciorap v. Moldova, Application no. 12066/02, §89 (2007)).

 

99.       Similarly, in Rappaz v. Switzerland, the Court dismissed the complaint in limine, once it was found that the decision to force-feed the prisoner against his explicit will – that ultimately was not implemented as he ended the hunger strike – was made according to the above three-pronged test: the decision was made out of medical necessity; it was made through a proper process – in accordance with the limits established in law, by a judge, and only after it was found that the complainant’s condition was serious and it was determined that the treatment would be provided by a professional medical team; and there was no reason to assume that even were the decision implemented, the manner of its implementation would have amounted to humiliating treatment or penalty. Therefore the complaint was dismissed.

 

100.     The conclusion from the above jurisprudence is that the European Court does not prohibit forced feeding as long as it meets the three standards described above: necessity, due process, and that the concrete method of forced feeding does not exceed the minimal severity possible (see also Food for Thought, p. 106). And as noted, even the Committee for the Prevention of Torture is not categorically opposed to employing such means.

 

Now that we have reviewed the comparative law and the provisions of international law, we will return to our own legal system, and examine whether the arrangement established in the amendment to the Law that is the subject of this Petition passes the Israeli tests of constitutionality.

 

Violation of Constitutional Rights

101.     Providing forced medical treatment against the will of a hunger striking prisoner or detainee prima facie violates his constitutional rights, primarily his right to autonomy, and to a certain extent, his freedom of expression as well, even if the latter is generally limited, by its nature, behind prison walls (see the Borgal case, p. 101). I shall reserve the matter of whether the right to life itself can be compelled for another time, and I will assume that there is an infringement of the aforementioned constitutional rights. Thus, we must examine if this infringement is lawful. This examination will proceed in accordance with sec. 8 of Basic Law: Human Dignity and Liberty, whereby:

 

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, or by regulation enacted by virtue of express authorization in such law.

 

102.     Assuming that the first condition – that the violation is by virtue of law – is met, I shall proceed to consider whether the provisions of the Law are consistent with the values of the State of Israel, whether the provisions of the infringing Law are intended for a proper purpose, and whether the infringement is not greater than necessary.

 

Does the Law befit the Values of the State of Israel

 

103.     The second condition of the Limitation Clause demands that the Law befits the values of the State of Israel. This Clause refers to the values of the State of Israel as a Jewish and democratic state, and reflects the tension between the values presented by this case.

 

104.     There is no denying that “giving concrete expression to the idea of a ‘Jewish and democratic state’ is no simple task, as is testified by the extensive legal and other literature that has attempted to do so, as well as most of the important verbiage dedicated to this phrase. Each of the terms – ‘state’, ‘Jewish’ and ‘democratic’ – encompasses a long line of constitutive values that are of its foundations. ‘Each is a fathomless ocean’” (Haim Cohn The Values of a Jewish and Democratic State, Selected Writings 45, 47 (2001) (Hebrew)). “Occasionally they contradict and compete with each other.” (HCJ 466/07 Galon v. Minister of Interior (2012), para. 14, per Justice E. E. Levy). The term “Jewish” primarily refers to “the right of the Jewish people to self-determination, as well as to its ability to defend itself against external threats” (ibid.), and in the framework of democratic existence, the state is committed to the individual rights of those coming within its borders, including the values of liberty, equality, dignity and autonomy (see Asher Maoz, The Values of a Jewish and Democratic State, 19 Iyuney Mishpat  547 (1995) (Hebrew)).

 

105.     As described above, the Law came into being against the background of hunger strikes among security prisoners and administrative detainees, undertaken as a means of protest, and to the point of posing a real risk to their health and lives. As was explained, the Law seeks to realize two interrelated purposes. The primary purpose is saving the life and protecting the health of a hunger striking prisoner. The secondary purpose is protecting State security and the lives of others who may be at risk as a result of the hunger strike.

 

106.     In seeking to realize these purposes, the Law permits the infringement of the hunger striking prisoner’s right to dignity, as well as autonomy over his body, and to make decisions in regard to his life. As opposed to this stands the full force of the value of the sanctity of life – first and foremost of all values, because in the absence of life there can also be no human dignity or sanctity of life – and the need and duty of the State to protect itself and others who may be harmed. These values is not merely those of a Jewish state or of a democracy, but rather they are intertwined – like Siamese twins – in a Jewish and democratic state that seeks to find a proper, sensitive balance of these values. Sanctity of life is not a value exclusive to a Jewish state alone, it is at the heart of a democratic state. A state that values life must, first and foremost, protect the lives of its residents, and certainly the lives of those in its direct charge, such as prisoners and detainees, and this is not only its right but also its duty (HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza, IsrSC 58(5) 385, 406 (2004) [http://versa.cardozo.yu.edu/opinions/physicians-human-rights-v-idf-comma... HCJ 7957/04 Mara’abe v. Prime Minister of Israel, IsrSC 60(2) 477, 500 (2005) [http://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-i...). The State is required to protect itself and meet the security needs of its residents. On the other hand, not only are an individual’s right to autonomy, freedom of expression, and dignity not foreign to the values of Judaism, they are among its core values (see: Nahum Rakover, Human Dignity in Jewish Law, pp. 13-32 (1998) (Hebrew)). Does the Law before us befit the purpose of the State of Israel as Jewish and democratic state? It would seem that the answer to this is in the affirmative. The sanctity of life and the protection of the security of the State and of others are the values underlying the Law, which recognizes the infringement of the autonomy, and possibly the dignity of a person on a hunger strike, and attempts to ensure that this harm be proportionate, as described below. The Law seeks a proper balance between these values, and in this sense, it would therefore appear that our primary task in the next step of the constitutional review is to examine the proper purpose.

 

The Purpose of the Law

107.     Constitutional review of the proper purpose seeks to answer the question whether the purpose of the legislation provides sufficient justification for the infringement of the human right. This examination considers, inter alia, two subsidiary questions: the first relates to the characteristics of the purpose; the second relates to the need for its realization, and whether that sufficiently justifies the infringement of the human right (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619, para. 50 of the opinion of President A. Barak (November 5, 2006)). According to Professor Barak’s general approach, “if the purpose of the infringing law is improper, the infringement is unconstitutional, regardless of whether it is proportionate” (Barak, Proportionality, p. 297). And also: “in examining the threshold question of whether the purpose of the infringing norm is proper, a proper content of the norm is insufficient. Some or other level of necessity or essentialness for realizing that purpose is also required” (ibid., p. 344-45). In other words, the appropriateness of the purpose must be examined separately and independently of the extent of the infringement of the constitutional right, as there is no reason to delay such discussion until the later balancing stage (loc. cit.). According to B. Medina, examining the proper purpose must be strict, and must establish that the purpose of the law is proper only when the expected benefit is relevant to the concrete means taken, considering the infringed right. In his opinion, this is crucial primarily concerning laws that seek to protect national security, which is itself a proper purpose at a high level of abstraction, but not necessarily in light of the concrete means adopted by a particular statute in order to realize it (B. Medina, On “Infringements” of Human Rights and the “Proper Purpose” Requirement (following Aharon Barak, Proportionality—Constitutional Rights and their Limitations), 15 IDC Law Review 281, 311 (2012) (Hebrew)). I will already state that in my opinion, subject to what follows below, the Law at hand meets the tests of both approaches because it stands under the canopy of the sanctity of life, and as noted above, in the absence of life, all the rest – both autonomy and freedom of expression -- is irrelevant..

 

The Dominant Purpose versus the Secondary Purpose

108.     In their responses, and in the hearings before us, the Respondents stated that the Law has two interrelated purposes. The primary purpose of the Law, which derives from the central value of the sanctity of life, concerns protecting the life, health and wellbeing of the prisoner on a hunger strike. This is expressed in sec. 11(1) of the Prisons Ordinance, which mandates that a “prisoner incarcerated in a prison shall be deemed subject to the lawful custody of the prison director” (see, for example, the statement of the Minister for Public Security Gilad Erdan, minutes of meeting no. 26 of the Internal Affairs and Environment Committee, 20th Knesset, pp. 3-4 (July 14, 2015) as well as that of Deputy Attorney General, Advocate Raz Nizri, ibid., pp. 4-5).

 

109.     The Law also has a security purpose, which is preserving the security of the State and protecting the lives of others who may be at risk as a result of the hunger strike. The Respondents maintain that this purpose is secondary to the primary purpose of protecting human life, whereas the Petitioners contend that this is the primary and real purpose for which the Law was intended. Thus, according to the Explanatory Notes to the Bill: “First and foremost, the court must consider the prisoner’s medical condition and the danger posed to his health should he not receive the desired treatment… this is in order to ensure that no decision as to providing forced medical treatment shall be made unless in very serious circumstances, and not as a tool for forcing an end to the hunger strike when only at its outset” (Government Bills, 5774- 2014, 771, 870, emphasis added – E.R.; see also the statement of Knesset Member David Amsalem, Chair of the Internal Affairs and Environment Committee, in presenting the Bill to the Knesset plenum  for second and third readings, pp. 641-43 (July 29, 2015)).

 

110.     It should be noted that ascertaining the dominant purpose is not exhausted by reviewing the legislative history of the Law, which was presented above. The question whether a particular purpose is the dominant purpose of the statute is also examined in light of the specific arrangements it establishes. I shall now turn to this.

 

111.     As noted at the outset, the procedure for requesting permission to provide forced medical treatment to a hunger striking prisoner comprises several steps, as well as the supervision of different bodies, and this should not be taken lightly in the constitutional review, as the legislature went to great lengths to create mechanisms of persuasion and supervision for informed consent. First, a medical opinion by the treating physician is submitted, the Attorney General is approached, and upon obtaining his consent, a request may be submitted to the President of the District Court or his Deputy, and this only after efforts have been made to secure the consent of the prisoner (or the detainee). A copy of the request is forwarded to the ethics committee, as well, which shall give its opinion after hearing the prisoner. The District Court is also required to ensure that efforts have been made to secure the consent of the prisoner. The court hears arguments by the prisoner and examines the range of possible treatments, the benefits and risks of the proposed treatment, the level of its invasiveness, and other considerations. This, in my opinion, supports a conclusion that the dominant purpose of the Law is indeed protecting the life of a prisoner on a hunger strike, subject to exceptions designed to ensure protecting his dignity, along with the close supervision and monitoring of different medical and judicial entities.

 

112.     The secondary purpose of the Law, the security one, is expressed in sec. 19N(e) of the Law, under which the court may consider non-medical factors in making its decision to permit forced medical treatment. We shall address the details of this below.

 

The Purposes of the Law – Proper Purposes?

113.     In my view, it is hard to dispute that saving lives – the said dominant purpose of the Law – is a proper purpose. The right to life is a constitutional right enshrined in Basic Law: Human Dignity and Liberty. Section 1 of Basic Law: Human Dignity and Liberty states, as we recall, that: “Fundamental human rights in Israel are founded upon  recognition of the value of the human being, the sanctity of human life…” and sec. 2 states that: “There shall be no violation of the life, body or dignity of any person as such” (emphases added – E.R.; see also, in another context, my opinion in CA 1326/07 Hammer v. Amit (2012) para. 12 [http://versa.cardozo.yu.edu/opinions/hammer-v-amit]). The sanctity of life constitutes a paramount value in Judaism: “For your own sake, therefore, be most careful” (Deuteronomy 4:15), and only in extreme case will the value of life yield to other values (Yisrael Katz, Force-feeding Hunger Strikers in Jewish Law, in 6 Medical Law and Bioethics 227 (2015) (Hebrew) (hereinafter: Katz), as whoever destroys a soul (of Israel), it is considered as if he destroyed an entire world. And whoever saves a life (of Israel), it is considered as if he saved an entire world. (Maimonides, Mishneh Torah, Hilchot Sanhedrin 12:3); and as Professor E.E.. Orbach showed in his article Whoever Sustains a Single Life…Textual Vicissitudes, the Impact of Censors, and the Matter of Printing, 40 Tarbitz 208ff. (5731) (Hebrew), the correct version does not include the words “of Israel” but refers to the loss of any life and the saving of any life. One is required to be careful and to protect one’s life. A person is prohibited from harming himself, and certainly is not permitted to end his own life (Maimonides, Mishneh Torah, Hilchot Avel 1:11).

 

114.     Jewish law recognized the importance of this value to the extent that it established that saving a life suspends all the prohibitions of the Torah, except for the three heinous offenses of idolatry, bloodshed, and incest (TB Sanhedrin, 74a). Jewish law also establishes that, aside from these three offenses, one must not sacrifice his life even if he so desires, and some have deemed a person who does so as having shed blood (Novellae Ritva [Rabbi Yom Tov Ibn Asevilli (ca. 1260-1320)], Pesachim. 25a (Hebrew)). Maimonides ruled: “… should a gentile attempt to force a Jew to violate one of the Torah's commandments at the pain of death, he should violate the commandment rather than be killed, because [the Torah] states concerning the mitzvot [Lev. 18:5]: ‘by the pursuit of which man shall live’, and not that he should die by them. And if he died rather than transgress, he is held accountable for his life” (Mishneh Torah, Hilchot Yesodei HaTorah 5:1. The three exceptions are enumerated in 5:3).

 

115.     According to Basic Law: Human Dignity and Liberty, the State is obligated to protect the right to life in an effective manner (sec. 4 of the Basic Law). Even under the strict scrutiny of the proper purpose that we addressed above, I believe that the benefit of saving a life is relevant to the means adopted, that is, artificial feeding, and certainly when the prisoner or the detainee is in the custody of the State, and under the circumstances, does not enjoy the same autonomy  as a person who is free, as we have shown above.

 

116.     In this context, we should more carefully examine the position of Jewish law. It would seem that Jewish law prohibits one from hunger striking as part of the general prohibition against self-harm (see Michael Wigoda, Forced Feeding of a Hunger Striker, The Jewish Law Department of the Ministry of Justice (2013) (Hebrew); the following is based in part upon his opinion). Some halakhic decisors derive this prohibition from the verse: “Only take heed, and keep your soul diligently” (Deut. 4:9), whereas others refer to the prohibition “bal tashhit” [“do not destroy/waste”] which prohibits the destruction of things that produce benefit, and derives from the verse “When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down.” (Deut. 20:19). The Babylonian Talmud notes that “he who harms himself, although not permitted – is exempt” from punishment by a court (Mishna, Bava Kama 8:6). Over the years, halakhic decisors have ruled that the sources mentioned prohibit a hunger strike (see Responsa Yad Ephraim (Rabbi Ephraim Fischel Weinberger, 19th century, Poland and Israel,) chap. 14; and Rabbi Yehuda Zoldan, Hunger Strike, 15 Tehumin  273 (5766) (Hebrew); but cf. Menachem Felix, And Nevertheless: A Hunger Strike, 15 Tehumin 291 (5766) (Hebrew)). We would also briefly note the words of Rabbi Abraham Isaac HaKohen Kook (19th-20th centuries, Latvia and Palestine), in his letter to Zeev Jabotinsky who went on a hunger strike while held under arrest by forces of the British Mandate: “I am obligated to declare to you, my beloved sons, that this is absolutely and strictly prohibited by our holy, pure religion, the philosophy of life and the light of the world” (Hazon HaGeula, p. 273 (Hebrew)). The prohibition upon an individual’s hunger strike constitutes a source for the State’s authority to act toward ending the strike. Additionally, Maimonides (Rabbi Moses ben Maimon, 12th century, Spain and Egypt) notes that “Our Sages forbade many matters because they involve a threat to life. Whenever a person transgresses these guidelines, saying: ‘I will risk my life, what does this matter to others,’ or ‘I am not careful about these things,’ he should be punished by stripes for rebelliousness.” (Hilkhot Rotzeach uShmirat HaNefesh 11:5).

 

117.     Indeed, the fact that there are those who are willing to end their lives for an idea is no simple matter, and it may be a part of the question of when “death shall be chosen rather than life” (Jeremiah 8:3); see M. Greenberg,  The Worth of Life in the Bible, in Sanctity of Life and Martyrdom: Studies in Memory of Amir Yekutiel,  I. Gafni and A. Ravitzki, eds. (1992) 35 (Hebrew); in the Bible, God calls for us to “choose life” (Deut. 30:19). In regard to suicide, Professor Greenberg writes (ibid., p. 51) “Choosing death over a life of degradation is heroism worthy of note and respect. This appreciation is not a legal ruling, but the Bible is not only a source of law but also a reflection of Israelite values that were not concretized in law.” He further writes (p. 53):

 

Life as depicted by the Bible is, therefore, multicolored and reflects a spectrum of value judgments. For the most part, these judgments are positive: choosing life and hope prevail over despondence and despair. The positive approach is based on a conception of life as the beneficent gift of a Creator who desires life, who shows humans  the path that brings life, and maintains the world that sustains them.

 

These words speak for themselves.

 

118.     Another source considers the general duty to rescue, which is established in the verse: “Do not stand upon the blood of your fellow” (Lev. 19:16). This duty to rescue is anchored in the Talmud: “Where do we learn that he who sees his fellow drowning in a river, or dragged by a beast… that he must save him – the verse states  ‘do not stand upon the blood of your fellow” (TB Sanhedrin 73a) Thus, Maimonides, in his Sefer HaMitzvot,  ruled that the general duty of rescue is a biblical commandment: “The 297^th [negative] commandment  is that we are warned in regard to not saving a Jew's life in a case where we see that his life is in danger and we have the ability to save him. For example, when someone is drowning in the sea and we can swim and able to save him” (Maimonides, Sefer HaMitzvot, Negative Commandments, 297). The rulings of Jewish law over the years have established that the duty to rescue applies even when the person at risk asks not to be saved. See, for example, Responsa Melamed LeHoil (Rabbi David Zvi Hoffmann, 19th-20th centuries, Germany) Yoreh Deah 104, where it was held that in a case where parents object to performing surgery upon a sick baby, “the doctor is under a duty to heal, and if he refrains, it is as if he shed blood, and we have not found in the entire Torah that a father and a mother are permitted to risk the lives of their children and prevent the doctor from healing them”. To complete the picture, see also the Do Not Stand on Your Neighbor's Blood Law, 5758-1998, whose explanatory notes state that “this Bill is intended to give  statutory expression in Israeli law to the moral and social value rooted in the Torah (Leviticus 19:16) whereby a person is obligated to assist in saving the life of another person” (Penal Law (Amendment no. 47)  (Do Not Stand on Your Neighbor's Blood) Bill,  5755-1995 (Bills 5755, 456) which was ultimately enacted as an independent law) (Nahum Rakover, “Do Not Stand on Your Neighbor's Blood Law” – Indeed? 17 Mekhkarei Mishpat (2002) (Hebrew)). See also the opinion of Justice Bejski in CrimA 480/85 Kurtam v. State of Israel, IsrSC 40(4) 673, 696-698 (1986), in regard to a drug offender who was operated on against his will in order to save his life after he swallowed bags of heroin, which Dr. Wigoda also cites:

As for me, I do not believe that we must necessarily adopt the principles developed in the United States and in England in regard to this difficult, complex issue -- neither the general principle that prohibits physical treatment by a physician in the absence of the patient’s consent, nor the few exceptions to this principle. I do not underestimate the value of the sources in this regard to which my colleague refers, but I am not persuaded that this approach is consistent with the approach of Jewish philosophy to the sanctity of life as a paramount value, or with  the Jewish tradition as to rescue wherever possible. In this regard, the learned trial judge cited Rabbi Jacob Emden’s Mor uKetziah as follows:

 

“In cases of visible sickness and injury of which a doctor has certain, clear knowledge and understanding, and applies a tested, certain cure, a refusing patient at risk is certainly compelled in any way and form that permits the doctor to heal him, such as cutting the flesh of the injury, or widening an opening, or draining an abscess, or binding a broken bone, and even amputation (in order to save him from death…). In all such cases, he must surely be treated and compelled against his will for the purpose of saving his life, and he must not be listened to if he does not wish for pain and prefers death over life, but instead even a whole limb must be amputated if this is necessary to save him from death, and all that that is required to save the life of the patient must be done even against his will. And each person must be warned of this due to  ‘you shall not stand upon the blood of your fellow’, and this is not dependent upon the consent of the patient, as he is not permitted to commit suicide.”

 

I believe that the principle of the sanctity of life and saving it, as a paramount value, justifies not following those rules that support, almost rigidly but for particular exceptions, the prohibition against intervening in a person’s body without his consent, without regard for the consequences.

 

I believe that the approach deriving from CA 322/63 and CA 461/62, above, represents and complies with the proper approach in Israel, as it is the closest to the Jewish tradition that supports the sanctity of life. Thus, when one is at immediate, certain risk of death, or foreseeable, certain, severe harm to his health, it is indeed permitted to perform surgery or any other intervention in his body even without his consent. This is all the more permitted and even required when such intervention itself does not pose special risks beyond the common risks of surgery or intervention of that kind, and where there is no risk of significant disability.

 

119.     Finally, forced feeding may be justified – from the perspective of Jewish Law -- where a hunger strike poses a threat to others. We learn the primary rule in this regard from the verse: “You shall keep My laws and My rules, by the pursuit of which man shall live: I am the Lord” (Lev. 18:5). And the Talmud states: “Nothing shall stand in the way of saving a life other than idolatry, forbidden sexual relations and bloodshed” (TB Yoma, 82a); and see also Maimonides, Hilkhot Yesodei HaTorah 5:6. The priority that is given to the value of life permits infringing other values to some extent. Thus, the position of Jewish law is that a woman may be compelled to nurse a child – for pay – where that child is at risk (Shulhan Aruch, Even HaEzer, Hilkhot Ketubot 82:5; see also Michael Wigoda, GSS Interrogation in light of the Sources of Jewish Law, The Jewish Law Department of the Ministry of Justice (2000)).

 

120.     This is all consistent with the principles at the foundation of the Terminally Ill Patient Law, 5766-2005. This statute seeks to “regulate the medical treatment provided to a terminally ill patient while properly balancing the value of the sanctity of life and the value of one’s autonomous will and the importance of quality of life” (sec. 1(a)), and it is “based on the values of the State of Israel as a Jewish and democratic state and the fundamental principles of morality, ethics and religion” (sec. 1(b)). According to this statute, the terminally ill patient, as defined there, has the right to ask not to be provided medical treatment for the purposes of extending his life, however, no action designed to cause the death of the patient may be taken, assistance will not be provided for committing suicide, nor shall continuous medical treatment be terminated when its termination may cause the death of the patient, regardless of his will.

 

121.     As for the secondary security purpose, which is concerned with preventing harm to human life other than the hunger striking person, or preventing serious harm to national security, it seems the issue here is somewhat more complex. In the Bill, this purpose is explained as follows:

 

A hunger strike by prisoners is not generally a private act for the purpose of achieving personal gains. Rather, it is part of a public struggle of a political character. Therefore, when deciding how to handle a hunger strike, this aspect, too, must not be ignored. Therefore, for example, at times the increased severity of the hunger strike and the deterioration in the condition of the person on the hunger strike may lead to heated emotions in communities outside of the prison, and in some situations may even result in harm to public safety due to widespread disturbances or the eruption of violent conduct as a sign of solidarity with the hunger striking person and his struggle (ibid., p. 772).

 

122.     As said above, at a high level of abstraction, it cannot be disputed that national security amounts to a proper purpose, even at the cost of some – proportional, as will be discussed below – infringement of human rights. As President Barak simply put it at the time “just as without rights there is no security, so too without security there are no rights.” (the Adalah case, para. 82), and more need not be said. When security is of no concern, life is  of no concern, and where shall that lead us? However, in my view, assuming there is a prima facie infringement of the prisoner’s basic right to autonomy, and the manner in which this harm is caused – and as noted, according to the positions of both the learned Barak and the learned Medina,  when examining the proper purpose, one must consider the necessity of the harm in accordance with the importance of the infringed right and the extent of that infringement – we must ask whether the security purpose is relevant to this means of artificial feeding, subject to the limitations established by the Law. My view is that the answer is in the affirmative, here as well, in the broader context of the sanctity of life. However, the matter must be examined with caution, as we do not live in an ideal world or in a vacuum, and there may be countries that would abuse forced feeding for purposes of oppression. Nevertheless, I believe that we may assume that in the Israeli legal system this risk is not high, and in any event the adjudicating panel of judges will be vigilant in this regard. As for the status of the security consideration, I have noted in the past as follows:

 

                        The security challenges the State has faced – and sadly, still faces – present the Court with legal questions that our forebears had not imagined, but times are changing. Israeli society today is not like that of the founding generation, and this change can also be seen in the area reserved for security considerations… this change has also left its mark in regard to the scope of judicial review over security policy. Thus, Justice Strasberg-Cohen wrote that “national security is not a magic word; it does not have preference in every case and in all circumstances, nor is it equal for every level of security and for every harm thereto (HCJ 4541/94 Alice Miller v. Minister of Defense, IsrSC 49(4) 94, 124 (1995) [http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]; see also ADA 10/94 Anonymous v. Minister of Defense, IsrSC 53(1) 97, 106 (1997)). Thus, President Barak noted that “human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State” (HCJ 7015/02 Ajuri v.  IDF Commander in the West Bank, IsrSC 56(6) 356, 383 (2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]. Therefore, the current approach as to security considerations can be summed up as cautious respect. The caution results from historical situations and different affairs that have cast a shadow over security considerations in the past (the surprise of the Yom Kippur War, the Bus 300 affair, and others.) Respect is warranted since no sensible person does not see that Israel has complex security problems from different directions. (HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, paras. 39-40 of my opinion (March 27, 2016); see also my article Security and Law: Trends, 44 HaPraklit 409, 410 (5758-60) (Hebrew); my book Paths of Government and Law 265 (5763-2003) (Hebrew); Israel, Security and Law: A Personal Perspective, Mazza Volume (5775) 99).

 

123.     Indeed, in my opinion, were the security purpose the only or primary purpose, it would have been possible to doubt whether it could properly justify forced feeding. As noted, whatever the means of treatment may be – and I will address this below, when considering proportionality – the mere fact that the medical treatment is given against the will of the prisoner means an infringement of autonomy, and although that is necessarily limited behind prison walls, as noted, it still has the power to prevent its violation for a purpose that is external to its core.

 

124.     This infringement of rights that are at the core of human dignity must  be offset by the protection of very important rights (such as the right to life, as noted). As important as national security and public safety may be, and they are very important indeed, they would not alone or primarily be sufficient under the circumstances of this matter to justify an infringement of a prisoner’s right such as forced feeding. The element of caution noted above sets off a red light. Reviewing comparative law supports this conclusion, because as described above, it seems that explicitly employing the security consideration to justify coercive medical treatment of a prisoner is quite unique for the statutory framework chosen by the Israeli legislature, and foreign legal systems, as well as international law, mainly grant exclusivity to medical considerations and the health of the prisoner they wish to feed coercively. In our case, in the Jewish ethos as well, this consideration cannot be seen as exclusive.

 

125.     However, I believe that this is not sufficient to show that the inclusion of security consideration as secondary to the dominant consideration of saving a life amounts to an improper purpose, also bearing in mind that this consideration itself comprises a significant possibility of saving lives – the life of the prisoner, as will be explained – and also the lives of many others. As noted above, despite changes and transformations of different types in the security situation of the State of Israel over the years, the security consideration still exists, clearly and in great force. This requires no evidence. The State of Israel daily faces complex, continually changing security threats that require an appropriate response. Obviously, as noted, even the security consideration concerns protecting human life, and just as protecting a prisoner’s life is, as noted, a proper purpose in itself, the attendant public interest in protecting the safety and the life of others is proper as well (see and compare HCJ 6288/03 Saadeh v. General of the Homefront Command, para. 3 of the opinion of Justice Turkel (2003); HCJ 8567/15 Halabi v. IDF Commander in the West Bank, para. 13 (Dec. 28, 2015)). In light of this, I believe we cannot wholly rule out addressing security considerations to some extent within the Law under review, even if – as we shall address below – this response be limited and, as noted, absolutely secondary to the primary purpose of the Law, which is saving the life of the prisoner for whom treatment is sought, and the response is implemented by the legal and medical mechanisms with strict regard for preventing a “slippery slope”.

 

126.     The combination of purposes is not exceptional in our legislation. Thus, for example, the Eitan case considered the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014. The State argued that the primary purpose of the law was identification and removal. That was found to be a proper purpose. As for the additional purpose – general deterrence – it was held that “general deterrence in-and-of-itself is not a proper purpose” (the Eitan case, para. 2 of (then) Deputy President M. Naor’s opinion). Still, it was held that there is nothing wrong with a purpose of deterrence when it accompanies another legitimate purpose (ibid., para. 52 of the opinion of Justice U. Vogleman; see and compare HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (2002)). Moreover, this Court has already held that where a statute combines several interrelated purposes, greatest weight will be attributed to the dominant purpose, which will be the focus of the constitutional review. However, it was held that the statute’s secondary purposes must not be overlooked, as their implications for human rights must also be examined (the Menachem case, p. 264 and references there.) In my view, it seems that in the present case, both the humanitarian and the security purposes – the latter also based to great extent upon the principle of the sanctity of the life of the innocent who may be harmed because of the consequences of hunger strikes by prisoners or detainees, and despite the change occurring in Israeli society as to the place reserved for security considerations in terms of transparency – are proper. This, given that the first purpose is, as noted, the dominant purpose and the other is secondary to it.

 

The Proportionality Tests

 

127.     In my humble opinion, under the interpretation I propose, the Law – including sec. 19N(e) – meets the requirements of the proportionality tests under the Limitations Clause of Basic Law: Human Dignity and Liberty. The Law meets the rational connection test – correspondence between the legislative means that infringe the constitutional right and the purpose that the statute was designed to achieve. According to President A. Barak in the Movement for Quality Government case (para. 58), it is sufficient that there be a suitable likelihood that the action that infringes the protected right or interest will reasonably contribute to achieving the purpose (see also the Nir case, para. 23). Thus, a proceeding under the Law may be commenced only if the physician treating the prisoner, or whoever had recently treated him, is of the view that without the specified medical treatment  “there is real possibility that within a short period of time the life of the prisoner will be at risk or he may suffer severe, irreversible disability” (sec. 19N(a)(1) of the Law). The list of considerations the court must take into account emphasizes medical aspects, including the condition of the prisoner, the benefits and risks posed by the requested medical treatment and by alternative medical treatments, the level of invasiveness of the requested treatment and its implications for the prisoner’s dignity, as well as the results of the requested treatment (sec. 19N(d)(1)-(3) of the Law). In addition, the coercive medical treatment that may be provided under the Law must be “the minimally necessary medical treatment, according to the professional discretion of the caregiver, in order to protect the life of the prisoner or to prevent serious, irreversible disability” (section 19P(a) of the Law). Moreover, the physician must make  a significant effort to secure the prisoner’s consent to medical treatment (section 19N and section 19P(b) of the Law). Additionally, providing coercive medical care is always subject  to the discretion of the caregiver (sec. 19O(e) of the Law). In other words, under the Law, the District Court must evaluate the potential of the coercive medical treatment to improve the medical condition of the hunger striking prisoner, and ensure that if such treatment be permitted, it will be the minimal required. The court must go to the heart of the matter, demand clarifying medical documentation, and  hear physicians and caregivers. See, in regard to hunger strikes, the Alan case and the Al-Qiq case. Therefore, we can conclude that the means selected by the Law, and the Law’s primary purpose – protecting the life of the hunger striking prisoner or detainee – correspond.

 

128.     The Law also passes the second proportionality test – the less harmful means test. This test, as we know, does not necessarily require choosing the means that is least harmful. It is sufficient to demonstrate that, in terms of the right and the extent of its violation, the means chosen from among the relevant options presents a lesser infringement (see, for example, the Nir case, para. 24). In the matter before us, while it might appear that there is a possible alternative for handling a prisoner on hunger strike – sec. 15(2) of the Patient Rights Law – given the purposes of the statute and the complexity of the situation, it seems this alternative does not achieve the purpose of the Law with comparable efficacy (compare the Eitan case, paras. 60-66). Section 15(2) of the Patient Rights Law instructs:

 

                        15(2)    Should the patient be deemed to be in grave danger but reject medical treatment, which in the circumstances must be given soon, the clinician may perform the treatment against the patient’s will, if an Ethics Committee has confirmed that all the following conditions obtain:

(a) The patient has received information as required to make an informed choice;

(b) The treatment is anticipated to significantly improve the patient’s medical condition;

(c) There are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.

 

129.     The arrangement established in sec. 15(2)(c) of the Patient Rights Law permits providing medical treatment without the consent of the prisoner only when “there are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.” However, in most cases, a prisoner on a hunger strike who clearly and consistently expresses his ideological objection to receiving medical treatment cannot be provided with medical treatment within the confines of section 15(2)(c) of the Patient Rights Law, even if there is a real risk to his life. This is because the Patient Rights Law requires reasonable grounds to assume that the patient would give his consent retroactively, whereas in our case, often the hunger striking prisoner has no interest in being fed should he lose consciousness, nor as long as he or she is conscious. On an ethical level, the doctor would not always assume that retroactive consent would ultimately be given. Under these circumstances, a hunger strike may end with the death of the prisoner – with all of its consequences. The arrangement established in section 15(2) of the Patient Rights Law is limited to the relationship between the caregiver and the patient, and places maximum weight upon the patient’s autonomy to the very end. This arrangement does not take into account the unique aspects of a hunger strike in general, and a hunger strike by a prisoner or detainee in particular, in terms of the State’s responsibility for him,  the complexity of autonomous will in cases of hunger strikes by prisoners who are willing to die, and where, in any event, the group context may, in some cases, prevent them from ending the hunger strike -- and after all, the purpose is saving their lives – and in terms of the consequences of the hunger strike for national security. Therefore, the arrangement in section 15(2) of the Patient Rights Law does not achieve the purposes of the Law to the same extent, both factually and ethically.

 

130.     And note, as clarified in the Bill’s explanatory notes, it cannot be inferred that one may “skip” attempting to gain the patient’s trust and consent and move straight to forced feeding. Similar to the procedure in the Patient Rights Law, the emphasis is on the attempt to achieve the cooperation of the person on a hunger strike, even for minimal treatment that would only slightly improve his condition. This attempt is based on building a trust relationship between the hunger striking person and the treating doctor. As noted in the Bill:

 

Achieving such cooperation is, of course, the most desirable practice in terms of respecting the prisoner’s autonomy and preserving his liberty, and it is also the most appropriate method of operation from the perspectives of medical ethics (ibid., p. 767).

 

131.     In other words, aside from the general examination of the Law’s provisions, the less harmful means will be examined in the implementation of each case, and to the extent that there is a less harmful means than artificial feeding, and such means may save the life of the hunger striker, the court will refrain from granting an order to provide coercive medical treatment to the prisoner. In addition, even among the options for artificial feeding, the court must explore alternatives according to the level of intrusiveness of the requested procedure and the extent of harm to the dignity of the prisoner (sec. 19N(d)(2) of the Law). Therefore, for example, it is clear that the court will not order intubation when there is a more proportional means for saving that person’s life. As a general rule, as noted in the State’s response, intubation is most exceptional, and the primary means of treating a hunger striker would be providing fluids and nutrients intravenously, as well as providing medication as needed (para. 82 of the response dated Sep. 9, 2015). I would add in this regard that the State notes that in the course of debating and drafting the Bill, the possibility of excluding force-feeding by intubation from the possible medical procedures was considered, but due to the position of the Ministry of Health, which found  the exclusion of a medical procedure in primary legislation to be problematic, it was decided not to do so.

 

132.     In this context, we should address the two cases mentioned above concerning two administrative detainees – Alan and Al-Qiq –which were recently decided by this Court. In those cases, recourse was not made to the Law, although it had already come into force, and the authorities acted in accordance with the Patient Rights Law, with the supervision of this Court, under the circumstances surrounding those cases, regarding which the Court held several hearings (also see and compare HCJ 5464/13 Al-Aziz v. IDF Commander (2013)).

 

Alan, an operative of the  Islamic Jihad terror organization, was placed in administrative detention based on reliable intelligence that linked him to other operatives whose goal was to promote terror in the framework of widespread activity against the security in the area. Alan commenced a hunger strike, due to which he was under medical supervision, first in the Soroka Medical Center in Be’er Sheva, and afterward in the Barzilai Medical Center in Ashkelon. In his petition, he argued that administrative detention is a preventative tool rather than a punitive one and that it was intended to prevent activity against national security. His medical condition due to the hunger strike, albeit self-inflicted, is such that it renders him unable to compromise security, and thus he must be released. We held two hearings on that petition, both in order to evaluate Alan’s medical condition and in order to facilitate negotiations with his attorneys. Prior to the second hearing, we were informed that Alan was experiencing cognitive deterioration. The State’s attorneys declared before us that if Alan’s condition was irreversible, the administrative detention order would be rescinded. The decision handed down on August 19, 2015 stated, inter alia: “It is clear that the petitioner brought his condition upon himself, but this does not preclude making every effort to save his life.” Inasmuch as it was clear that,  due to his medical condition,  Alan no longer presented a security risk, we suspended the administrative detention order that had been issued against him (it later turned out that Alan had not suffered permanent brain damage, thank God) and the hunger strike came to an end.

 

134.     Al-Qiq, a categorical Hamas operative involved in military terrorism, was also placed under an administrative detention order. Shortly thereafter, Al-Qiq went on a hunger strike and refused any treatment. He also petitioned this Court to reverse the administrative detention order issued against him, due to his condition. We held several hearings on this petition, while receiving daily medical briefings as to Al-Qiq’s condition, including the decision of the ethics committee at the HaEmek Medical Center where he was hospitalized, which stated that “due to deterioration in the condition of the petitioner, the medical team should be permitted to provide the patient with treatment without his consent, in order to improve his condition”. On February 4, 2016, we addressed the petition as if an order nisi had been granted, and we ordered the suspension of the administrative detention order, as we found that the petitioner no longer posed a risk that required administrative detention.

 

135.     Thus, in both cases a solution was found that did not require recourse to the Law under review, but remained within the framework of the Patient Rights Law. There is no guarantee, and no one can provide such assurances, that this would be the case in every instance, and we must take into consideration instances of mass strikes as well. In any event, it is presumed that in considering requests submitted under the relevant Law, the courts will bear in mind the possibility for achieving, as far as possible, a balanced, proportional solution that will respond both to the prisoner’s autonomy and to the sanctity of life, and also – as was the case in the matters of Alan and Al-Qiq – to the need to preserve national security. Implementing the Law is, of course, a last resort -- a “doom’s day weapon” of sorts.

 

136.     As for the third test -- the proportionality test stricto sensu -- as noted and as is generally known, this is a value-based test that examines whether there is a proper relationship between the public benefit deriving from the law under review, and the infringement of the constitutional right that will be caused by its implementation (see the Prisons Privatization case, p. 626). It seems that the Law passes this test as well. The Law creates a proportional, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life, through close supervision and monitoring of the process and employing it as a last resort. Let us again recall that the procedure commences with a medical opinion by the treating doctor. The request is then submitted by the Prisons Commissioner, with the approval of the Attorney General or whomever he has appointed on his behalf – as a last resort designed to prevent a risk to the life of a hunger striking prisoner, or the risk that he may suffer severe, irreversible disability – and only after the procedural route is exhausted. Generally, the ethics committee will render its opinion on the matter, the President of the District Court or his Deputy will decide upon the request, and that decision is subject to appeal to this Court. The treatment to be provided would be the minimum required, and the caregiver is not obliged to provide the treatment permitted by the court. As we see – and this should be emphasized – we are concerned with a structured arrangement that involves, alongside the doctors of course, very senior levels of the legal system and judiciary, built in careful stages, and as noted, as a last resort. Based on my great familiarity with these systems, I can confidently say that the determinations in this area will be appropriately thorough. It should also be emphasized that before approaching the court, the treating physician must make a “significant effort” to attempt to persuade the prisoner to grant his consent to treatment. Thus, the physician must explain the legal process and its potential consequences to the prisoner. The court must hear the prisoner, and it is permitted to hold the hearing at the hospital in order to do so. Even when permission is granted for coercive treatment, the caregiver must again attempt to persuade the prisoner to consent to the treatment, and as noted, the treatment provided must be kept to the absolute minimum, and must be done in a manner that will ensure the greatest protection of the prisoner’s dignity, while avoiding, as much as possible, causing pain or suffering. It seems, then, that the gradual, balanced procedure, which is accompanied by medical and legal monitoring and supervision, achieves a proper relationship between the benefit that may derive from the Law, and the potential infringement of the constitutional right due to its implementation.

 

137.     As for the security consideration (sec. 19N(e)), there is no denying that it raises apparent discomfort in regard to the relationship between individual autonomy and broader considerations as specified above. However, as we have explained and again emphasize, since the dominant purpose is saving a life and preserving its sanctity, as part of that universal and especially Jewish ethos in a Jewish and democratic state, we are satisfied that everything possible has been done in order to reduce infringement, and that the presiding judge will ensure this under the concrete circumstances. In the past, I had the opportunity to address the tension between the security needs and human rights:

 

                        The relationship between questions of human rights and the needs and challenges of security will remain on the agenda of Israeli society and Israeli courts for years to come. The peace negotiations that Israel is conducting are ongoing, but even the greatest optimists do not expect that the country will arrive at its safe haven in the foreseeable future. The inherent tension between security and issues of rights will therefore continue, and will find its central legal expression in the interpretation of Basic Law: Human Dignity and Liberty. The discussion of questions such as when rights give way to security, and of the proper balance between protecting existence and preserving humaneness – a sharp contrast that fully reflects the dilemma – will go on. We will continue to deliberate the question of the relationship between the command “For your own sake, therefore, be most careful” (Deut. 4:15) in its collective sense, and “For in His image did God make  man’ (Gen. 9:6) and “Great is human dignity, since it overrides a negative precept of the Torah” (Berachot, 19b). The Court will seek the balance between security and rights so that the name “security” shall not be taken in vain, but neither will security be abandoned (from my article On Basic Law: Human Dignity and Liberty and the Security System,  21 Iyunei Mishpat 21, 22 (5758) (Hebrew) 21, 22; my book Paths of Governance and Law (2003) 226).

 

These words seem as apt today as when they were written eighteen years ago..

 

138.     As noted by the State, the security consideration itself cannot justify commencing a procedure under the Law, and certainly cannot, in and of itself, ground permission to treat a prisoner against his will. The security considerations under the Law can be taken into account only when a treating physician has found that the medical condition of the prisoner is extremely serious and that there is a real risk to his life, or that he may suffer serious, irreversible disability, and that it is for the purposes of saving his life – which is the main purpose of the Law. In any event, the treatment that will actually be provided – if and to the extent provided, according to the caregiver’s discretion (sec. 19P(e) of the Law) – shall be determined according to medical considerations alone (the end of sec. 19P(a) of the Law). I would add, not insignificantly, that the security considerations were originally included in the main provision of the Law, which addresses judicial discretion and the considerations that the court must address (sec. 19N(e) of the Law), as has also been noted. However, ultimately, the role of these considerations was limited such that the court may weigh considerations of national security only when evidence to that effect has been presented, and when there is real concern for serious harm to national security, but all this only after the medical journey, which is primary.

 

139.     We would emphasize that sec. 19N(e) is exceptional, and will  be implemented only very sparingly, in extreme cases in which the State presents evidence indicating a near certainty of serious harm to its security (see and compare other cases where individual rights were weighed against security considerations,  HCJ 9349/10 Anonymous v. Minister of Defense (2011); HCJ 1514/01 Yaakov Gur Aryeh et al. v. Second Television and Radio Authority (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r...). Even in such cases, as noted, this consideration will be an attendant, secondary consideration to the primary purpose of the Law – saving the life of the prisoner for whom treatment is sought, even if against his will.

 

140.     It should further be noted in this context that while raised in our case explicitly, it cannot be ignored that in many instances in which the question of treating a hunger striking prisoner arises, it is in regard to an administrative detainee. These cases raise additional challenges, that, by nature, involve different legal aspects than those arising in the case of a prisoner on hunger strike after conviction and sentencing, because being targeted at prevention, they inherently involve the question of the security risk posed by the detainee, to the extent that he is physically and mentally competent. Under such circumstances, the security considerations may tip the scale toward a solution that obviates the need to force-feed the hunger striking prisoner, which will, as noted, remain a last resort (and see the above cases of Alan and Al-Qiq).

 

141.     Before concluding, I would emphasize that we do not, God forbid, seek to minimize the value and importance of IMA and the moral position it wishes to express in this matter. IMA’s moral objection to the Law that is the subject of these proceedings relies primarily upon the Tokyo Declaration of the World Medical Association (hereinafter: WMA) of 1975, updated in 2006, which provides physicians with guidelines prohibiting their involvement in torture or other cruel, inhuman or degrading punishment in relation to detention and imprisonment. Section 6 of the Tokyo Declaration prohibits the forcible feeding of prisoners on a hunger strike. In December 2007, IMA adopted the Tokyo Declaration and endorsed its latest version in a position paper. IMA also refers to the WMA’s Declaration of Malta of 1991, also updated in 2006, which comprehensively focuses on voluntary hunger strikes, not only by prisoners, and defines principles and guidelines designed to assist physicians in handling the dilemmas that arise when treating those on hunger strikes. The Declaration establishes that forcible nutrition despite informed refusal is unethical, unjustifiable and constitutes degrading, inhuman treatment. The Declaration includes detailed instructions as to how to treat those on hunger strike. The principal parts of the Declaration were endorsed by IMA in 2005, while defining the rules for treating those on hunger strike, including: “a physician will not take part in the forcible feeding of a person on a hunger strike.” The IMA rules were ratified several times, most recently in a hearing of the ethics board in September 2013.

 

142.     However, and without taking these positions lightly -- even if I asked myself where the sanctity of life is in these – they do not represent the current legal state, in Israel or abroad, but rather particular ethical positions. They may derive form cruel practices of countries among which, thank God, we are not counted. Moreover, as the State presented, there are doctors and ethics experts who hold a different position. Thus, the position paper that was presented to this Court (Appendix 9 to the Knesset response of Sept. 9, 2015) states as follows:

 

In extreme situations – when all else has failed, and after every possible effort has been made to secure the consent of the person on hunger strike to end his strike, and when there is real, tangible risk to his life should he continue his hunger strike – the moral value of protecting human life and the ethical-professional duty of the doctor to save his life outweigh the infringement of his autonomous will (ibid., para. 3, emphasis original.)

 

The Law that is the subject of these proceedings is aware of the ethical dispute, and thus explicitly states that it does not “require the caregiver to provide medical treatment to the prisoner on hunger strike” (sec. 19N(e)). As the discussions of the Internal Affairs and Environment Committee on this issue reveal, this subsection was inserted into the final draft, although it was not included in the Government Bill, due to the desire to emphasize  that no doctor is obligated to provide treatment, and this despite the fact that the original language of the Law – in sec. 19N(a) – stated that upon the decision of the District Court, “the physician may provide the prisoner with the above medical treatment…” (minutes of meeting no. 312 of the Internal Affairs and Environment Committee, the 19th Knesset, p. 47-51 (June 17, 2014)). Clearly, the additional emphasis in sec. 19N(e) was designed to give real expression to the above position of some doctors, and to the ethical complexity of the issue.

 

143.     Nevertheless, given our constitutional legal system, and given the state of the law in various countries, as noted, I believe that the position of the World Medical Association, or the position of the Israeli Medical Association, cannot, itself, lead to the striking down of the Law that is the subject of these proceedings, which was enacted by the Israeli Knesset. As then Deputy President Sussman wrote:

 

                        The Petitioner’s argument that he is subject to a moral or medical-ethical obligation under his physician’s oath, or according to the ethics rules of the medical profession, or his medical conscience is irrelevant, with all due respect to those ethical duties – and one who strives to go beyond the letter of the law is praiseworthy. However, we are not concerned here with ethical duties, but rather with legal ones (HCJ 447/72 Dr. Bernardo Yismachovitz v. Aharon Baruch, Income Tax Assessor for Investigations, Tel-Aviv and Center, IsrSC 27(2) 253, 266-67 (1973)).

 

            These words are also apt to the matter before us, mutatis mutandis. Of course, each doctor may look to his conscience and to the physician’s oath and decide as he may.

 

Conclusion

 

144.     Ultimately, the Law passes the constitutionality tests in striking a delicate balance among the different values we have discussed. This is said given the graduated procedure that the Law sets out, which includes several mechanisms for medical, legal and judicial checks. Section 19N(e), whose primary concern is the security purpose, meets the constitutional tests as well, however recourse to it must be very sparing and limited to extreme circumstances, and proper evidentiary foundation. By nature of the issue, this Law is not a source of comfort. There are those who might say that it is possible to “live without it”, assuming other solutions may be found within the existing statutory framework. In any event, having been enacted, we have examined its constitutionality and have reached the above conclusion, being convinced that there may be instances where saving lives demands this, and that the sanctity of life is our highest priority as human beings and as a court.

 

145.     Following the above, I had the opportunity to read the opinion of my colleague Justice Mazuz. His proposal in paragraph 20, in the substantive sense – that is, that the security  issue be considered after the medical deliberation – is not far different from what was stated in my opinion (for example, in para. 138, and particularly at the end). This is also consistent with the order set out in section 19N of the Law, in that subsection (d), which appears first and is dedicated to the medical condition, while and subsection (e), which follows, concerns the security consideration. The best practice is, therefore, discussion of the main issue – the medical one – and only afterward the security issue, as I have written. However, I would clarify that in order not to completely tie the hands of the trial court, I would propose that we establish that the court should begin its deliberation with the medical issue as a basis for determining the case, and that the security issue be addressed last. The court has discretion whether to make an interim decision on the medical issues, which may be appropriate as a general rule, or whether to combine all aspects of the decision together, according to the circumstances of the case, as long as the order detailed above, and the dominance of the medical issue are observed.

 

We therefore do not grant the Petition. There is no order as to costs.

 

 

 

 

Justice M. Mazuz:

1.         I concur with the outcome reached by my colleague Deputy President E. Rubinstein as to the constitutionality of the Amendment to the Prisons Ordinance (Amendment No. 48) Law, 5775-2015, whereby sections 19L-19S were added to the Prisons Ordinance [New Version], 5731-1971 (hereinafter: the “Ordinance Amendment” and “Ordinance”). Still, I am not at ease in regard to section 19N(e) of the Ordinance, which concerns considerations of public peace and safety (hereinafter: the security consideration), and in my opinion it requires clarification and the establishment of boundaries. My colleague discussed the facts, the parties’ arguments, the reasoning and the constitutional argument in detail, and therefore I can present my position briefly.

 

2.         I accept the position of the Knesset and the State authorities that the Patient Rights Law, 5756-1996 (hereinafter: the “Patient Rights Law” or the “Law”) does not fully respond to the complex situations of prisoners on hunger strike who reach a stage where their lives or health are at risk, and that the balance of values and interests established by the Law for the purposes of “providing medical treatment without consent” (sec. 15 of the Law) in regard to an “ordinary” patient” does not exhaust the range of complexities in the circumstances of prisoners on a hunger strike.

 

3.         Section 13 of the Patient Rights Law establishes the general principle, which reflects the right of the individual to personal autonomy, whereby “no medical care shall be given unless and until the patient has given his informed consent to it”.

 

Naturally, a sick person seeks to be cured, and in any event, as a general rule, he is presumed to give consent to medical treatment that may cure him or improve his condition. Cases where the patient refuses treatment are unusual, such as instances where a patient is dying, is experiencing unbearable pain and suffering, and refuses to accept medical treatment that could prolong his life (an issue that is primarily regulated in the Terminally Ill Patient Law, 5766-2005), or other instances where, due to religious or other beliefs, a sick person or patient refuses particular medical treatments (such as amputation of limbs or receiving vaccinations). Therefore, in such circumstances, the Patient Rights Law strikes a delicate balance between the individual’s right to autonomy and the value of the sanctity of life, when the assumption is, as noted, that as a general rule, these two values are not in conflict (this is also the root of the presumption established in sec. 15(2)(c) in regard to retroactive consent, which I will address below).

 

This is not the case for a prisoner on a hunger strike. The hunger striker is not “sick” in the ordinary sense. He is a person who voluntarily and knowingly puts himself in a position where his health is compromised in order to express protest or to exert pressure in order to advance a personal goal or public cause. The hunger striker is not interested, of course, in endangering his health or dying, but he is willing to put his health, and at times even his life, at risk in order to advance his goals. In this sense, he is substantially different from an ordinary patient. The refusal of a hunger striker to receive medical treatment is at the core of his activity, and it is not an unusual or rare situation. In addition, in a case of a hunger strike that is part of a group hunger strike, primarily by prisoners or detainees, it is not always clear whether it indeed reflects the autonomous personal choice of each person on strike, or whether it is a result of  group pressure, or possibly, even coercion. Furthermore, a hunger strike by prisoners and its outcomes have consequences that go beyond the personal matter of the person on a hunger strike.

 

In light of all the above, the complex of considerations and balances in regard to a person on a hunger strike is substantially and substantively different from that which concerns an “ordinary” patient as addressed by the Patient Rights Law.

 

4.         Section 15 of the Patient Rights Law focuses on the exceptions to the general principle that medical care requires informed consent. In this section, the Law permits providing medical treatment in the absence of consent, under particular conditions, in two basic situations: the first concerns cases where it is impossible to secure the patient’s consent because of his medical condition (physical or mental), or because of a medical emergency (paras. (1) and (3)), and the second, which is more relevant to our case, addresses situations where the patient is at serious risk but still “refuses medical treatment”. In cases of refusal of treatment, sec. 15(2) stipulates that a caregiver may provide the medical treatment even against the patient’s will, where the ethics committee – after hearing the patient – authorizes providing the treatment, once it is persuaded that all the following conditions have been met”

 

                        (a) The patient has received information as required to make an informed choice;

(b) The treatment is anticipated to significantly improve the patient’smedical condition;

(c) There are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.

 

The condition in paragraph (c) is not simple or obvious. It is an attempt to bridge between the right to personal autonomy and the value of the sanctity of life. Arguably, it is a somewhat artificial bridge, but it is still based, as noted, upon the natural presumption that a sick person wishes to be healed.

 

The provision of sec. 15(2) may then provide a solution in cases where there is no objective, rational reason for the patient’s refusal to accept life-saving treatment, or treatment that may significantly improve his condition, and therefore it may be assumed that, in retrospect, he may come around and give his consent. However, there would appear to be some difficulty in meeting the requirement of paragraph (c) in the case of a hunger striker, whose clear, manifest refusal to accept treatment is at the core of the act of hunger striking, and is designed to prevent frustration of the hunger strike and its purposes.

 

5.         In addition, when a prisoner (including detainee) in State custody is concerned, the State has direct responsibility for protecting his life and health (beginning of sec. 19N(4) of the Ordinance, and see further, section 11 of the Ordinance and section 322 of the Penal Law, 5737-1977). Thus, inter alia, the State provides food and health services to prisoners, and is even obligated to take active steps to prevent suicidal acts by prisoners, or prevent harm to them even against their will (see, for example, Article B.1 of Chapter B of the Ordinance in regard to holding a prisoner in segregation). As we know, Basic Law: Human Dignity and Liberty not only establishes the sanctity of life as one of the basic principles of the Basic Law (sec. 1), but also imposes an active duty upon State authorities to protect the life and body of each person (sect.4). This active duty is of particular weight when a prisoner in State custody is concerned, and the State is directly responsible for his life and his health. Moreover, the State also has a responsibility to protect the security of the prison and to protect the wellbeing of other inmates in the prison, and of course, also has the duty and responsibility to protect the safety and security of the general public, which may be affected by events involving hunger strikes by one group of prisoners or another. The State’s general obligation to preserve public welfare and safety is, of course, heightened when the source of the risk are those who are held in State custody, and are in the State’s charge. As we know, strikes by political prisoners in general, and security prisoners in particular, may also lead to events outside of the prison gates – which are often the purpose of the strike – that could pose a threat to public welfare and safety.

 

All of these considerations distinguish the issue of coercive treatment of a prisoner on hunger strike from the issue of treatment provided to an “ordinary” patient in the absence of consent, and they may justify limiting the prisoner’s right to autonomy in this regard.

 

6.         In light of the above, the arrangement established in sec. 15 of the Patient Rights Law for handling a situation of a patient who refuses treatment, clearly does not adequately address the circumstances of a hunger strike, nor exhaust the complexity of the situation of a hunger strike by prisoners. The constitutional balance underlying the arrangement established by the Patient Rights Law, which attributes dominant weight to individual autonomy, is not necessarily appropriate to the balance required in addressing prisoners in general, or the situation of prisoners on a hunger strike in particular. When we are concerned with a prisoner held in State custody, the element of personal autonomy is weakened (although not negated). On the other side of the equation, alongside the value of the sanctity of life, stand elements of the State’s responsibility for the life and health of the prisoner, as noted, as well as its responsibility for the consequences of the hunger strike for the immediate environment  of the prisoners on hunger strike, and beyond.

 

7.         Moreover, even from the perspective of the infringement on autonomy, when a prisoner on hunger strike is concerned, this is effectively a different type of infringement than in regard to a patient refusing treatment, as the person on hunger strike is not interested, as noted, in dying (even if he may be prepared for this), and in any event the infringement of his autonomy is not in the denial of his ability to exercise his will over his body, but rather is actually focused upon denying him the possibility to go on hunger strike. That is an infringement of his freedom of expression and right to protest, which in any event are limited in regard to prisoners. This Court has already held that a hunger strike:

 

… is not among the rights granted to a person while he is incarcerated in prison. Both elements of a hunger strike – the hunger and the strike – compromise the proper administration  of the prison. As for the first element, the refusal to eat in itself constitutes a prison offense under section 56(8) of the Prisons Ordinance [New Version]. In our case, this is not any ”ordinary” refusal to eat, but rather  a refusal that expresses organized protest in the form of a strike. An organized strike is also inconsistent with maintaining order discipline in prison (HCJ 7837/04 Borgal v. Prison Service, IsrSC 59(3) 97, 102.)

 

I would parenthetically note, that I believe that there is a measure of exaggeration in the general statements (to which my colleague referred to in para. 85 of his opinion) that a prisoner retains all human rights but for the right to freedom of movement and those that derive from it. This is not the place to elaborate, but it seems to me that this is inaccurate both on the abstract level, and certainly on the practical level. The deprivation of freedom of movement is not the purpose of imprisonment, but rather a means for punishing the prisoner. Imprisonment is a penalty imposed upon those convicted, which is generally intended to reflect the principle of retribution (the proportionality principle) for their criminal conduct. Infringing the freedom of movement of a prisoner is, indeed, a result of his sentence and a central characteristic of it, but limiting his freedom of movement does not exhaust the range of penal elements inherent to incarceration, as if it were, house arrest could suffice. A prisoner is subject to no small number of additional restrictions that are not necessarily required by the restriction of his freedom of movement. Indeed, a prison sentence does not itself automatically void the constitutional human rights granted to each person, and certainly not the right to human dignity, with its derivative rights, and the above statements should be seen to some extent as a methodological rule that establishes the point of departure for review (in the absence of explicit legal provisions), whereby a prisoner retains human and civil rights except to the extent that their limitation is a result and necessary consequence of the nature of the prison sentence imposed upon him, and of his status as an inmate in a prison facility run according to necessary disciplinary rules.

 

8.         Under these circumstances, it is easy to understand why the State wishes not to be dependent in realizing its said responsibility – to the life and health of the prisoner, as well as the welfare of the public and its safety – only upon the mechanism of sec. 15(2) of the Patient Rights Law, which was not intended, as noted, to respond to the complex dilemma of treating prisoners on a hunger strike, and cannot always provide a suitable solution. Therefore, there is need for a specific, supplementary arrangement in order to cope with situations for which the mechanism established in the Patient Rights Law falls short. I cannot accept, as noted above, the Petitioners’ argument that the Patient Rights Law fully responds to the relevant situations, nor can I accept their argument that considerations of public safety and welfare are irrelevant to the matter at hand. A central role of the governing authorities, as such, is to protect public safety and welfare, and in this regard we should bear in mind that we are concerned with prisoners whose incarceration is premised upon the purpose of protecting public safety and welfare from them.

 

9.         This, in short, is the general theoretical basis that justifies establishing the supplementary arrangement in the Ordinance Amendment. Moving forward, an examination of the details of the arrangement, and whether and to what extent they meet the constitutionality tests (the Limitations Clause) is required. My colleague the Deputy President discussed the different components of the constitutionality tests and the Limitations Clause in detail, and in general, I concur and see no need for repetition. It should be emphasized that the statutory arrangement that was established was achieved after a long, thorough legislative effort, and it includes a long list of supervisory mechanisms and strict safeguards as prerequisites to granting permission to provide medical treatment (including nutrition) without the consent of the prisoner, and these are their main aspects:

 

a. As a condition for commencing proceedings, a medical opinion as to an immediate risk to the life of the prisoner, or severe, irreversible disability is required, as well as an opinion as to the necessary treatments for preventing such risk.

b. A decision by the Prison Commissioner, with the approval of the Attorney General, as to the need to approach the President of the District Court for permission to provide medical treatment without the prisoner’s consent, is required.

c. A copy of the request to the court, along with the medical opinion, must be submitted to the ethics committee, which is to give its opinion as to the medical issues concerning the prisoner after hearing the prisoner.

d.         The court’s authority to grant permission for providing medical treatment without consent is limited to circumstances where the court finds that without the treatment “there is real possibility that within a short time the prisoner’s life would be at risk, or that he would suffer severe, irreversible disability, and that the medical treatment is expected to improve his condition”.

e. The provisions of the Patient Rights Law continue to apply to the prisoner as long as a decision has not been handed down by the court.

f. The court may grant permission for such treatment only when it is satisfied that significant efforts have been made to secure the prisoner’s consent for treatment, after being given a detailed explanation of his medical condition and consequences of a continued hunger strike for his condition, as well as all the relevant medical information, and the prisoner continued to refuse treatment. And in addition, after receiving the opinion of the ethics committee in the matter, and hearing the prisoner, to the extent it is possible considering his medical condition, or his attorney.

g. The court’s authority is to “permit” medical treatment without the consent of the prisoner, but not to order such treatment.

h. The medical treatment to be provided to the prisoner without his consent must be limited to the necessary minimum for protecting the life of the prisoner or for preventing severe, irreversible disability.

i. Treatment shall be provided “in the manner and location that would ensure maximum protection of the prisoner’s dignity, while avoiding, as much as possible, causing pain or suffering to the prisoner.”

j. The decision of the court is subject to appeal to the Supreme Court, which will consider the appeal within 48 hours of its submission.

 

To these we should add – as noted by my colleague the Deputy President, and as was also made clear by the representatives of the State authorities and the Knesset, in writing and orally – that the arrangement established in the Ordinance Amendment does not replace the Patient Rights Law, but it is a residual, supplementary arrangement, that is, an arrangement that may be implemented only after procedures under the Patient Rights Law have been exhausted, and only where such procedures cannot prevent the risk to a prisoner’s life or health.

 

10.       We thus find that this is a complex procedure, full of strict medical and legal monitoring mechanisms, alongside strict substantive tests. Implementing the established procedure is reserved for extreme cases where other tools have failed, and it is limited to the minimum necessary to save the life of a prisoner at risk due to a hunger strike, or to prevent a severe, irreversible disability.

 

The Security Consideration

11.       As noted, I concur, in general, with the conclusions of my colleague the Deputy President as to the issue of the constitutional analysis of the Ordinance Amendment. As for the security consideration established in section 19N(e), I see some difficulties that must be addressed and clarified,  as explained below.

 

12.       The Ordinance Amendment details, inter alia, the considerations that the court must take into account in granting permission for medical treatment without the consent of the prisoner, all of which concern the medical-health aspect (sec. 19N(d)). Section 19N(e) of the Ordinance adds an additional, optional consideration, as follows:

 

                        (e) The court shall take into account considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court.

 

13.       The legislative history of the Amendment clearly shows – and this is not in dispute – that the consideration in regard to the consequences of a prisoners’ hunger strike, primarily security prisoners, for public welfare and safety (the security consideration) was one of the primary considerations that led to initiating the Ordinance Amendment. As I noted above, I accept that the arrangement established in sec. 15 of the Patient Rights Law does not always fully respond to the need for providing treatment without consent in the circumstances of a hunger strike by prisoners, with all its implications, first and foremost in regard to the responsibility and duty to protect the life and physical integrity of a prisoner. Thus, I do not find any flaw in the fact that the security consideration was of the factors that motivated the legislative process of the Ordinance Amendment (and as such I see no reason to refrain from expressing this even in the “purpose clause”).

 

14.       However, once the purpose of creating a legal means for preventing the death or severe, irreversible disability of a prisoner on a hunger strike has been accomplished, there might seem to be no further need for establishing the security consideration as an additional factor for the discretionary stage of the court’s decision as to whether to permit coercive treatment, since the “security” purpose is already achieved as an inevitable secondary result of preventing harm to the health of the prisoner. The purposes of protecting the sanctity of life and guarding public welfare and safety are not contradictory, but rather complimentary in the area with which we are concerned. Since the potential harm to public welfare is a product of the harm to the life of a prisoner on strike, saving the life of the hunger striking prisoner by providing proper care (even coercively) itself responds to the interest of protecting public welfare and safety. Therefore, it might appear that we have no need whatsoever for this consideration as a separate consideration at the stage of the court’s decision as to whether to grant permission for treating a prisoner without his consent.

 

15.       While a “redundant provision” is not constitutional grounds for striking down a statute, it seems that in our case this is not merely a matter of “esthetics”. Including sec. 19N(e) in the manner in which it was included in the statute’s final version, at the stage of the court’s discretion and decision in deciding a request to grant permission to provide medical treatment without consent, may cause the confusion of different issues. It raises questions as to the place and role of this consideration in the court’s decision, and raises concerns as to deviating the decision-making process from the necessary focus on health and medicine to considerations of national security and public order.

 

It should also be noted that although comparative and international law provide support for the approach that permits medical treatment without consent, including forced feeding of prisoners on hunger strike for medical considerations, as detailed by my colleague the Deputy President, there is no precedent, to the best of our knowledge, for including considerations of security and public order as component factor in the discretion for such a decision.

 

16.       According to the early versions of the Bill, as published in the memorandum that was submitted to the Knesset, the security consideration was one among various factors of medicine and of public safety and welfare that the court must take into account before making its decision. Removing the security consideration, in the final version approved by the Knesset, from the general discretion provision (sec. 19N(d)), and placing it in a separate, optional provision (sec. 19N(e)), emphasizes that the court’s decision must be rooted in the medical considerations, whereas the security consideration is but an additional, optional consideration, that should be taken into account only where all the medical-health factors have been met.

 

And indeed, the Respondents accept that under the statute as ultimately enacted by the Knesset, commencing a proceeding of approaching the court in order to obtain permission for treatment without consent must be based solely on medical factors, and that the security factor may never, itself, justify commencing a proceeding. The Respondents also accept that a conditio sine qua non for the court to grant permission is meeting all the health-medical conditions. Thus, the question arises – what, therefore, is the need for the security consideration, and primarily, what role may it fill in the court’s decision?

 

17.       The Petitioners’ attorneys argued that the security consideration is, in effect, the “end all, be all”, and that in practice this consideration is that which tilts the scales, and will come at the expense of the medical considerations, and that the security consideration “will always satisfy the doubt” in the court’s discretion.

 

As opposed to this, the Respondents’ attorneys argued that the security consideration was never designed to outweigh the medical considerations or replace them, and that it may come to the fore “only when all the medical conditions have been met”. But once the court finds that the medical conditions have been met, it may, if evidence to this effect be presented to it, give weight to the security consideration, as a balancing factor to the non-medical considerations grounding the hunger strike, in order to determine the request to grant permission for coercive treatment.

 

18.       It is easy to see that the concern raised by the Petitioners is not enirely unfounded. Establishing the security considerations as a separate consideration that the court must address (“the court shall consider…”), to the extent that relevant evidence has been produced, indeed raises a concern as to the attribution of weight, and perhaps even determinative weight, to considerations of security and public order at the expense of the medical considerations and the right to autonomy, at least in cases where there is doubt or deficiency as to the existence of the medical-health conditions such that they alone do not justify granting permission for coercive treatment.

 

Indeed, the test that was established for taking security considerations into account, according to which it is limited only to cases where evidence was brought before the court as to a “concern from human life or a real concern for serious harm to national security” is a strict test. Yet, there is still the concern that the security consideration may fill the gap where there is doubt or deficiency as to the fulfillment of the medical-health considerations as noted.

 

19.       Under these circumstances, the question arises as to whether these difficulties may compromise the constitutionality of sec. 19N(e) of the Ordinance.

 

After examining the issues, I do not believe that these concerns are sufficient to justify striking down the provision itself. However, such difficulties do, in my opinion, warrant establishing guidelines and restrictions as to the manner of implementation of the provision in regard to the security consideration. This, considering, inter alia, the restraint and caution necessary in judicial review, and in light of the rule that when a statute has several intermingled purposes, judicial review shall focus upon the dominant purpose of the statute, without disregarding the secondary purpose (CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221, 342 (1995) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 (2002)). This is especially so when in our case the security purpose, with its different aspects, is also a legitimate purpose, and when this purpose in itself is not sufficient for commencing proceedings and cannot satisfy granting permission.

 

20.       As noted above, the Respondents also accept that the security consideration, in and of itself, does not justify commencing proceedings for permission, and is certainly not sufficient for granting permission for coercive treatment. This holding – along with the holding, which is also acceptable to the Respondents – that the court may not permit coercive treatment unless the medical and health conditions have been fully met, requires preventing circumstances of conflation and confusion that might color a decision made on the basis of the security consideration, without the medical and health conditions having fully been met.

 

21.       This difficulty, and the concerns that accompany it, which as noted, are not entirely without foundation, may be resolved by a procedural separation between the examination and decision phases as to the fulfillment of the medical and health requirement, and the phase of examining the security consideration, to the extent it may be raised. Accordingly, at the first stage, the court should conduct a hearing on the medical and health conditions – the substantive conditions – that are a conditio sine qua non, and decide whether these are indeed fully met in the case before it. Only having so found, will the court proceed to the second stage, and address the security consideration, to the extent that evidence to this effect has been presented in accordance with the provisions of sec. 19N(e) of the Ordinance. After exhausting both stages, the court will make its final, comprehensive determination upon the request for granting permission for treatment in the absence of consent. In this framework, and on the basis of the above finding that all the medical and health conditions have been met, the court must strike a balance among all of the relevant considerations: on the one hand – the position of the prisoner as to the relevant medical treatment, and as to the purpose of the hunger strike, that is, the right to personal autonomy and to freedom of expression (sec. 19D(d) of the Ordinance); and on the other hand – considerations of protecting the life and health of the prisoner (sec. 19D(d)), as well as the public interest reflected in the security consideration, to the extent evidence to this effect was presented (sec. 19D(e)).

 

At this point, is appropriate that we emphasize that a broad view of the arrangement established in the Ordinance Amendment clearly reveals that the legislature intended to give primary weight to considerations relating to the prisoner – balancing protecting his life and health against his right to personal autonomy and self-expression. Most of the provisions in the arrangement concern these, both in its substantive and procedural aspects, while the security consideration is included solely as a supplementary, optional consideration, strictly limited to cases, backed by evidence, of “concern for human life or a real concern for serious harm to national security”. This approach by the legislature should guide the court in determining a request to grant permission under the Ordinance Amendment.

 

The said a procedural separation, which is designed to ensure the full meeting of the medical and health conditions, and to prevent conflation and confusion between the medical and health conditions and the security condition, is important for purposes of the appeal process as well. Section 19R of the Ordinance establishes that the decision of the court on the request to grant permission is subject to appeal to the Supreme Court, and that this Court “shall hold a hearing in the appeal within 48 hours from the time of its submission”. The need for swift determination is clear, and is required by the nature of the matter. The transparency of the proceedings and the decision that would be achieved by the above procedural separation would also facilitate an expedited decision by the Supreme Court on the appeal.

 

22.       Indeed, it is still possible to wonder if “a trifle is worthy of the King’s trouble” [Esther 7:4], and whether the harm posed by the security section is greater than the benefit derived from it, when the purposes grounding the Ordinance Amendment can seemingly be achieved without it, whereas its existence raises concerns and arguments. However, we are not concerned with review of the wisdom of the legislature, and in light of and subject to the above, it cannot be said that we are concerned with unconstitutionality. However, I believe the relevant State organs would do well to revisit and consider the repeal of sec. 19N(e).

 

23.       In conclusion, subject to my above comments, particularly as stated in para. 21 above, I concur with the conclusion of my colleague the Deputy President that we must deny the Petitions.

 

 

 

 

 

Justice N. Sohlberg:

1.         I concur with my colleague Deputy President, E. Rubinstein’s comprehensive opinion, and my conclusion as to the constitutionality of the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Amendment) is as his.

 

A complex – human, moral and legal – issue was brought before us: the sanctity of life, national security, the right to autonomy, the right to equality, freedom of expression, the State’s responsibility for prisoners in its custody – these are all combined in our issue. As usual, the Deputy President addressed the issue with knowledge, wisdom and reason – considering the importance of each of these considerations for our matter, as well as the delicate balance among them, in accordance with the stages of constitutional review, in a logical, orderly manner. Most of this is  academic rather than practical. In light of our experience with the petitions of hunger striking prisoners and detainees so far, and in view of the monitoring mechanisms, the stages of the procedure and the strict conditions established in the framework of the Amendment, it is both my hope and expectation that we will not reach the stage of forcible feeding in its extreme form, and even the need to address coercive medical treatment of hunger striking prisoners will be  rare, if at all. The primary effect of the Amendment is its clear expression of a value judgment of intrinsic practical benefit.

 

3.         I shall very briefly add a few words as to the proper place and role of the security considerations in sec. 19N(e) of the Amendment. As noted by my colleague Justice M. Mazuz (para. 13 of his opinion), the security consideration was among the primary motives for the enactment of the Amendment. Review of the Bill’s explanatory notes and the minutes of the various discussions along the legislative process leaves no room for doubt in this regard. However, and most importantly, the constitutionality of the Amendment must be reviewed, first and foremost, in light of the specific arrangements it establishes, as they were written into the law books, and these  – as  the Deputy President demonstrated – give priority to the medical considerations. These considerations “overtook” the security considerations along the legislative “journey” and outweighed them. As emphasized by the Respondents, while the medical considerations may justify providing medical treatment to a hunger striking prisoner against his will, even without security considerations, the security considerations, in and of themselves, can never justify granting permission for such medical treatment (para. 138 of the opinion of the Deputy President). This position may lead one to wonder: if the security purpose is indeed secondary to the medical purpose, and is but another layer placed upon it, what then is the benefit that derives from the provision of section 19N(e) of the Amendment? Is “a trifle worthy of the King’s trouble”, as my colleague Justice Mazuz wonders (para. 22 of his opinion)?

 

4.         It is true that, in many instances, protecting a prisoner’s life and realizing the medical purpose would entirely achieve the security purpose, as well. In the matter at hand, the medical purpose and the security purpose are not at odds – indeed, they are sisters and they complement one another (see para. 14 of the opinion of Justice Mazuz). However, there are still situations where the security considerations may be of some significance for the determination of the court. As we may recall, under sec. 19N of the Amendment, the court may permit providing medical treatment. May – but is not obliged. This means that in certain circumstances, in striking the balance between the sanctity of life on one hand, and the right to autonomy on the other, the scales may remain balanced. In other words – even if the State succeeds in showing that without receiving medical treatment there is a real possibility that within a short period of time the prisoner’s life would be at risk, or that he may suffer a severe, irreversible disability, the court still holds a certain margin of discretion in balancing the sanctity of life and the right to autonomy, and determining as its wisdom dictates. Within that margin of discretion, there is also room for considerations of concern for human lives, or a real concern for serious harm to national security, to the extent such evidence has been presented. And note: this does not in any way detract from the State’s duty to withstand the “trials” of the “medical journey” (as the Deputy President described it in para. 138 of his opinion). Only if the state has met its burden to show that the medical considerations have been satisfied, and if the court is still in doubt whether there is justification to permit medical treatment, is there room to consider the security considerations as well.

 

5.         My colleague Justice Mazuz, following the reasoning of the Petitioners, is concerned about attributing excessive weight to the considerations of security and public order at the expense of the medical considerations and the right to autonomy (para. 18 of his opinion). Therefore, he proposes to set restrictions upon the implementation of sec. 19N(e), in the form of a “procedural separation” between the examination of the medical considerations and the examination of the security considerations. I do not share his opinion in this regard, and I concur with the view of the Deputy President that we must take care not to tie the hands of the trail court. Aside from the question of our authority to do this in the framework of these proceedings, I believe that there is no substantive justification for doing so. Once this judgment has made it absolutely clear that the medical considerations are a sine qua non threshold condition without which coercive medical treatment cannot be provided, and that the security consideration is merely an additional layer that may be given expression in a limited spectrum of cases, I see no further need for concern about attributing excessive weight to the security considerations to an extent that would require creating a “procedural separation”. Therefore, I agree with the formula proposed by the Deputy President, whereby the court will begin by examining the medical issue as a basis for its determination, while the security issue will be reserved – if required – as a last issue for examination.

 

Therefore, I concur in the conclusion of the Deputy President that the Petitions must be denied, and with the formula he proposed in paragraph 146 of his opinion.

 

 

 

 

Decided in accordance with the opinion of Deputy President E. Rubinstein.

 

Given this 8^th day of Elul 5776 (Sept. 11, 2016).

 

 

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).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Decided in the majority opinion of President Barak, against the opinion of Justice

 

M. Cheshin.

 

Today, 16 Av 5762 (July 25, 2002)