(Aug. 27, 2020) On August 19, 2020, Israel’s Supreme Court, sitting as a High Court of Justice, rejected a petition filed by 60 Jerusalem residents to relocate or place limitations on protests taking place near the official residence of Prime Minister Benjamin Netanyahu in Jerusalem. Protests against the prime minister, who has been indicted on integrity offenses, and against the way the government has handled the COVID-19 pandemic, have been regularly occurring for over a month. The petitioners alleged that the demonstrations severely harmed their freedom of movement, posed a danger to their health during a pandemic, and subjected them to noise nuisance and acts of property vandalism. (HC 5078/20 Fadida v. Israel Police (decision by Justice Uzi Fogelman with justices Yael Willner and Alex Stein concurring).
Decision of the Court
According to Justice Fogelman, the right to demonstrate and hold assemblies or processions is one of the fundamental human rights in Israel and is vital to maintaining the democratic system of government. (Decision para. 19.) A restriction on the right to demonstrate, however, may be imposed when there exists a near certainty of substantial and serious harm to public order or public safety, and only to the extent necessary to prevent such a violation. (Paras. 17–22.)
Considering the special public character of the official residence of the prime minister, as opposed to his private residence, Fogelman opined that there was no justification for “a drastic violation of freedom of expression and freedom of demonstration by way of relocating the demonstration … and in this regard the other restrictions imposed by the police on the duration and frequency of the demonstrations are sufficient.” (Para. 25.)
Fogelman held that restrictions previously imposed by the police regarding the frequency, timing, and level of noise permitted during the demonstrations adequately balanced the right of the demonstrators to hold demonstrations and disseminate their messages with the right of the area’s residents to maintain their normal routines. (Para. 26.)
In Fogelman’s opinion, the roadblocks established by the police to ensure public order and the demonstrators’ safety inevitably disrupted the petitioners’ normal lives. The specific location and time-based restrictions imposed by the police on access to the demonstration area, however, were reasonable and proportional under the circumstances. These restrictions, in his view, were “part of the burden” to be carried by those who live near a government symbol such as the prime minister’s residence. (Para. 29.)
Fogelman rejected the petitioners’ claim that the police must limit the number of protesters due to the pandemic. Such a limitation in his view would constitute a severe restriction on a person’s right to demonstrate. Citing a previous decision, Fogelman clarified that judicial and parliamentary review should not be silenced during a pandemic, and any violation of fundamental constitutional rights should be narrowly constructed and proportionately tailored. (Para. 31.)