Attorney General Yehuda Weinstein thinks the anti-Boycott Law passed by the Knesset on Monday comes very near the "red line" of unconstitutionality, but he is still willing to defend it in the High Court of Justice.
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He added, however, that the Knesset would do well to amend the law to reduce the degree to which it infringes on important constitutional values.
Last night, after the first petition against the law had already been submitted to the High Court, Weinstein issued a statement saying that the law raises significant constitutional problems. That was also true of previous versions of the bill, he noted, and the Justice Ministry consequently proposed several changes to the Knesset Constitution, Law and Justice Committee that in its view would make the bill more proportionate.
The committee, which prepared the final version of the bill, accepted some of these changes and rejected others.
For instance, the ministry was adamantly opposed to an earlier draft that would have imposed criminal liability on people and organizations that advocate boycotts, saying this would never withstand a court challenge - especially given the ministry's long-standing policy of prosecuting existing speech crimes such as incitement to violence or racism only rarely. This provision was ultimately removed from the bill.
The ministry also warned that a provision barring boycott advocates from obtaining government licenses or franchises would not withstand a court challenge because it would disproportionately violate the constitutional right to freedom of occupation, which is enshrined in a Basic Law. This provision, too, was softened, and now boycott advocates can only be deprived of government funding.
Nevertheless, the final law still infringes substantially on freedom of expression, and consequently, ministry sources said, there is no guarantee that the court will not declare it unconstitutional.
Last month, Deputy Attorney General Ran Nizri presented Weinstein's views on the bill to the Knesset Constitution Committee. He said Weinstein viewed the version finally brought to a vote as being on the "red line," meaning that anything even slightly more stringent was liable to be unconstitutional.
Senior jurists who were asked yesterday whether they thought the High Court would uphold the law said they found it hard to predict. But all were highly critical of the law.
"It sneers at basic constitutional ideas," said Prof. Uriel Reichman, president of the Interdisciplinary Center in Herzliya. "The law contradicts political freedom and the freedom to express an opinion."
Nevertheless, he added, "You can't throw everything on the High Court's doorstep. Those in power must act with sensitivity. They must understand that anyone who crudely tramples on any group's freedom of expression and sense of belonging undermines the regime's legitimacy."
Former Deputy Attorney General Yehudit Karp said the law was another step on the road to destroying Israel's democracy. Still, she said, it is not clear how the court will rule. On the one hand, she noted, court rulings in recent years have laid down several important constitutional principles, but on the other, the court has thus far refrained from applying them to specific laws.