A panel of judges of the National Labor Court, headed by President Varda Wirt Livneh, Vice President Justice Ilan Itach and Justice Leah Glicksman, rejected the appeal of attorney Shaul Cohen, a civil service attorney, and the Israeli Democracy Watch association, and ruled that employees of the legal service in the civil service are prohibited from participating in demonstrations protesting government policies and programs of a "political nature."
Adv. Cohen has been employed as an attorney in the Haifa District Attorney's Office for 28 years and represents the State in various courts. Against the backdrop of the protest demonstrations taking place throughout the country against the government's plan for changes in legislation, the lawyer asked for permission to participate in the demonstrations. After an examination by the legal bureau of the Civil Service Commission, he was told that his request could not be accepted because, according to the regulations of the Civil Service Commission, he was forbidden to demonstrate. Adv. Cohen filed a request with the Haifa Regional Labor Court for an "injunction" and for temporary relief, but his request was rejected. The regional court accepted the state's position and ruled that this was an administrative decision that did not deviate from the realm of reasonableness and justified its intervention. He also ruled that the provisions of the law and the PRC explicitly state that employees of the legal service are prohibited from participating in demonstrations of a "political nature," and that demonstrations against the government's plan are demonstrations of a "political nature."
Determine that freedom of expression is not absolute, National Labor Court,
As part of the appeal, the National Court dealt for the first time with the question of what constitutes a demonstration of a "political nature" within the meaning of the Civil Service Law (Classification of Party Activities and Fundraising), 1959-<>, and what are the limits of freedom of expression of civil servants in general and employees of the legal service in particular. The appellants argued that the demonstrations against the government's plan are not of a "political nature," since they concern the preservation of the rule of law and democracy. On the other hand, the state argued that the demonstrations against the government's plan are clearly "political in nature" and therefore the appeal should be rejected.
In its ruling, the National Court clarified that unlike the regional court's ruling, the decision not to allow Adv. Cohen to participate in the demonstration does not constitute an administrative decision – but rather a decision by the state in its capacity as an employer. The National Court reasoned that the question before it is an interpretive one and that in the framework of the judgment it will examine whether the State, as its employer, gave a correct interpretation to the provisions of the Law and the Civil Service when it prohibited Adv. Cohen from participating in the demonstrations.
Political in nature, demonstrations against the legal reform, photo: AP
Regarding the guiding principles in examining the interpretive question before it, the National Court emphasized that "the right to freedom of expression is an overriding right in our system" and that "the protection of freedom of expression stems from the recognition of the importance of expressing an opinion for a person's self-realization." The National Court added that "freedom of political expression in particular will be given very broad protection, for the reason that it constitutes a necessary condition for the existence of the democratic process." However, the National Court noted that the right to freedom of expression is not absolute and there will be times when it will be withdrawn from other fundamental rights and protected social interests. In this context, the tests set forth in the Supreme Court's ruling were noted, according to which freedom of expression will be limited when the anticipated harm to the interest or right of those who conflict with it will be "severe and substantial" and its probability at the level of "near certainty."
Regarding the status of legal service employees, the National Court ruled that the prohibition on their participation in a demonstration of a "political nature" is unreserved, and that it is a prohibition that applies to all employees of the legal service, "regardless of their seniority, rank and authority." The National Court argued that the legal service in the civil service is "part of the law enforcement system. As such, he must be impartial and must not be identified with one political position or another... The sweeping prohibition on legal service employees is intended to strengthen the status of the legal service as one of the pillars of the rule of law in Israel and to preserve public trust in the law enforcement system. Legal service employees must be "blind" to political or sectoral considerations. Their role is to serve the interest of the public as a whole.
At the end of the protest in Tel Aviv: Demonstrators descend on Ayalon Highway - which was blocked to traffic || Credit: Gil Levine
Therefore, the participation of a legal service employee in a demonstration of a political nature constitutes a statement of opinion and indicates political affiliation. This means, in practice, that the employee is not impartial in representing the broad public interest."
On the question of whether the demonstrations against the government's plan fall within the scope of the term "political character," the National Court ruled that "it cannot be said that the demonstrations against the government's plan are not of a 'political nature,' since these demonstrations stem from a political dispute concerning legislative changes promoted by the government. Therefore, the regional court rightly ruled that "the mass protest has a political flavor" and that "the matters that the demonstrations seek to promote, or some of them, are matters of a clear political nature, since they inherently involve issues of political controversy."
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In relation to Adv. Cohen, the National Court ruled that in light of the purpose of the Classification Law, the sweeping prohibition it imposes on employees of the legal service from participating in demonstrations of a "political nature," and the fact that the demonstrations against the government's plan are of a "political nature," there was nothing wrong with the regional court's decision not to allow him to participate in demonstrations. The National Court added that Adv. Cohen, who has been employed as a prosecutor for almost three decades, is affiliated with the State Prosecutor's Office and that his participation in the demonstrations "may impair, with near certainty, the neutral appearance of the legal service. This is also true of the very participation of legal service workers in demonstrations, even anonymously."
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