Case Number
HCJ 153/83
Date Decided
5-13-1984
Decision Type
Original
Document Type
Full Opinion
Abstract
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.
Keywords
Constitutional Law -- Freedom of assembly, Constitutional Law -- Freedom of Expression
Recommended Citation
Barak, Aharon; Levin, Dov; and Netanyahu, Shoshana, "Levi v. Commander of the Southern District of the Israeli Police" (1984). Translated Opinions. 235.
https://larc.cardozo.yu.edu/iscp-opinions/235
