Israel's Top Court: Scientist's Appointment Can't Be Blocked Over Anti-occupation Protest

Justices ordered science minister to reconsider Prof. Yael Amitai's appointment to binational committee, but said that in theory, refusing appointments for ethical reasons is legitimate

File photo: Prof. Yael Amitai speaks after a High Court discussion on her appointment to a German-Israeli scientific panel, Jerusalem, January 21, 2019.
Olivier Fitoussi

Israel's High Court of Justice revoked on Monday a decision by Science Minister Ofir Akunis to veto the appointment to an Israeli-German scientific panel of a prominent brain researcher who in 2005 signed a petition supporting Israeli soldiers who refuse to serve in the West Bank. However, in one of the court's key petitions on free speech in Israel in recent years, the three-justice panel didn't instruct Akunis to appoint Prof. Yael Amitai, but ordered him to reconsider his decision by late March.

Justices Neal Hendel, Alex Stein and George Karra unanimously ruled that Akunis' claim that he didn't approve the appointment because signing such a petition in protest of the occupation is a crime, was unfounded, but Hendel and Stein noted in their ruling that not approving a professional appointment by a minister for ethical reasons is legitimate.

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The Association for Civil Rights in Israel said the ruling was a serious blow to the freedom of political expression in Israel and the court in practice allowed a minister to examine the worldview of a candidate for the position and reject her if she does not toe the line with the minister’s position. ACRI called this unprecedented.

Hendel and Stein agreed in their ruling that a call for refusing orders could be a moral consideration for blocking an appointment, but were not convinced that the present case, as Akunis presented it, justifies banning Amitai form serving on the commission. "The minister considered a mistaken, foreign and illegitimate consideration – the criminal consideration – alongside the legitimate and appropriate consideration of moral suitability," Stein wrote.

Under normal circumstances, Akunis was required to prove that the appropriate consideration was the main factor in his decision, said Stein, but in this case, in light of what Akunis presented to the court, he was unable to prove this. Hendel said the signing of the petition was an isolated event from a time when Amitai did not hold any public position, adding it was impossible to conclude that she also calls to disobey orders today.

File photo: Science Minister Ofir Akiunis speaks after a High Court discussion on Prof. Yael Amitai's appointment to a German-Israeli scientific panel, Jerusalem, January 31, 2019.
Olivier Fitoussi

The Committee of University Heads in Israel said that Amitai, who heads the Interfaculty Brain Sciences School at Ben-Gurion University, was an appropriate and justified appointment recommended by the deputy chief scientist and the legal adviser of the Science Ministry based on her scientific and professional achievements and her academic expertise.

Representatives of Israeli academia working for international research foundations, such as Prof. Amitai, “strengthen Israel’s image around the world as a country that leads in scientific breakthroughs and free of all politicization – and that is in the interest of all of us,” said the Committee of University Heads.

Justice Karra was in the minority in saying that Amitai should be appointed to the commission and the decision should not be sent back to Akunis for reconsideration, after he blocked her appointment to the grant approval committee of the German-Israeli Foundation for Scientific Research and Development, which decides on tens of millions of shekels in scientific grants every year for Israeli research, in July.

Later that month, only a short time after Akunis announced his decision, Attorney General Avichai Mendelblit has called on him to reverse it, saying it was unreasonable. The official government opinion, as represented by Mendelblit and not Akunis, was that Amitai’s appointment is a professional-scientific one and that the petition was signed 13 years ago, making such a consideration unjustifiable.

Stein criticized Mendelblit’s decision to prevent Akunis from receiving legal representation, after the attorney general decided last year that the government’s position in favor of the appointment would be the only one presented to the High Court. Stein said that if Akunis had received proper legal representation it is possible he would have been able to convince the court of his claims.

Akunis' office said they are studying the ruling before commenting on it.