A Canadian’s take on the Alqasem decision

According to the published facts, commentaries and opinions, the decision of the “Supremes” (judges of the Supreme Court sitting as the Superior Court) unanimous 3-0 decision in the Lara Alqasem case, to allow her appeal against her deportation has been praised by some for saving democracy and democratic values from the alleged fascistic government and damned by others for acting against democracy and usurping the governments powers..

Yet, judging from the substance of the opinions expressed to date neither camp seems to have bothered to address the legal merits-soundness of the decision as distinct from to political merits and wisdom, or lack of one or both, of the decision.

The case

The case deals with the application of the 2017 amendment no 28 of Article 4 of the Law for [the] Prevention of Damage to [the] State of Israel thought Boycott,” of 2011 commonly referred to as the Boycott Law “to be read in conjunction with the 2017 Ministerial policy directive that somewhat narrowed the grounds on which a foreigner banned and deported.

The case turned on whether

  1. The Minister of Public Security and Strategic Affairs (“The Minister”) responsible for the administration of the law in question, breached the legal provisions in issue by
  2. a) banning Alqasem, a 22 year old American citizen, from entering Israel to continue her  university studies at the Hebrew University of Jerusalem  (“HUJ”) complied with the provisions of the law, and
  3. b) Ordering her deportation;
  4. The Tel-Aviv District Court (TDC) erred in law to uphold the decisions of the Minister, by adopting, as the Supremes put it, a “far too broad interpretation of the object and scope of the law”;
  5. The Tel-Aviv District Court (TDC) erred in law in the manner it assessed the evidence before the Court, or to put it another way, made erroneous findings (determinations) of fact

By way of preliminary observations,

I think that out of respect for the Supremes and the judicial branch of governance, and as a matter of maintaining civil relations between the government and the judiciary, individual cabinet Ministers ought to stop freelancing criticism of the Court’s decisions in their own names or in the name of their respective political parties to which they belong and let the Cabinet speak with one voice.

In Canada, the best practice in situations where the government disagrees with the decision of  a High, Appellate  and  Supreme Court is to speak with one voice confining itself to platitudes like,” we are disappointed by the outcome of the case and/or we will analyse the decision carefully and proceed from there.”

It works very well, and I strongly recommend it.

Point of departure: The sovereign right of Israel to control the entry of foreign nationals

The Supremes reiterated the principle of law that the State has the sovereign authority to

  1. Control the borders of the country,
  2. Determine who will be permitted or refused to enter the country;
  3. Stipulate the terms and conditions under which a person may enter and remain in the country, and
  4. Expel those who lose the rights to remain in the country.

The judgment asserts that “the struggle against BDS and others like it is a worthy cause”. Mr. Justice Hendel further wrote:

“The state is permitted, not to say obliged, to protect itself from discrimination and the violent silencing of the political discourse. It may take steps against the boycott organizations and their activities.”

The corollary of this principle of law is that no one has the legal right to enter a country on his or her own will,  unless such a right is granted  by national and international laws, treaties or conventions as the case may be.

                    The decision of the Tel-Aviv District Court (TDC)

The Court upheld the Minister’s decision to ban and deport Alqasem.

The Judge in reaching his decision,

  1. Relied on the evidence concerning her incontrovertible record of membership of and executive position in the Florida chapter of the Students for Justice in Palestine (SJP) prior to April 17, 2018 which strongly supports and promotes the BDS campaign across the United States; and on the nature and scope of her involvement in and support of the BDS campaign.
  2. Noted and, presumably drew adverse inferences from the contradictions in her testimony.
  3. Drew an adverse inference as he was entitled to do, from her decision to wipe out her social media history.
  4. Interpreted the law in question in a manner consistent with the State’s sovereign rights listed above, and re-affirmed that
  5. a) “The state has the right bar someone who sought to harm the country’s economy and image and acting legitimately to protect itself”; and
  6. b) “…any self-respecting state defends its own interests and those of its citizens, and has the right to fight against the actions of a boycott…as well as any attack on its image.”

                           The decision of the Supremes

The Supremes granted the appeal of Alqasem against the decision of the TDC on the following grounds:

  1. The Tel-Aviv District Court (TDC) erred in law to uphold the decisions of the Minister, by adopting, as the Supremes put it, a “far too broad interpretation of the object and scope of the law”.

The history, nature and extent of Alqasem’s involvement in BDS fail to meet the criteria prescribed by law and policy directive. Her actions do not sufficiently warrant banning her from entering Israel

  1. The serious deficiencies in the evidence per se on which TDC relied and the assessment of this evidence cannot reasonably justify that Court’s decision.

                    The evidentiary aspects of the decision of the Supremes

As a general rule, in the absence of statutory provisions to the contrary, appellate courts defer to the lower court judges’ findings of fact, on the basis that the trial judges are in the best position to assess and weigh the evidence presented by all the parties to the case during the hearing and the court’s assessment of the evidence tendered by the parties, and more particularly, of the testimonies of witnesses whose credibility is in contention between two or among many parties.

As a general rule, where a piece of evidence can be reasonably interpreted in two or more different ways, the appellate court cannot substitute its interpretation to that of the lower court judge.

Hence, appellate courts may only ignore or reject the lower courts’ interpretation and application of the evidence, in whole or in part, where it is plainly clear that   the trial judge’s findings (determination) of facts cannot be reasonably supported by the evidence before him and his findings of fact are insufficient to warrant his decision.

What complicates the evidentiary issues in this case is that the Supremes sitting as the High Court (H.C.) appear to have the power to hear witnesses and judging by the reports of the appeal, to consider the evidence of a witness, in this the appellant, whose testimony before the Supremes appear to be at variance with her testimony before the TDC. In this regard, I am referring to Alqasem’s promise to the court not to engage in BDS activities in the future, and not just in Israel. An undertaking she refused to give the Minister when the Minister considered the possibility of letting her in to pursue her studies on specific conditions, including the promise made to the Supremes.

Judging from the tenor of the judgment, the Supremes appear to have given some weight to this promise, although for all practical purposes, the breach of such a promise would hardly have any adverse consequences for Alqasem upon leaving Israel.

At all events, in his reasons for judgment, Mr. Justice Neal Hendel, inter-alia, wrote:

“ The Interior Ministry has openly admitted that it does not have any evidence of the appellant’s  engaging  in boycott activity since April [14] 2017, except for “mysterious “indications, whose essence  has not been clarified and regarding which no evidence has been submitted… The material submitted regarding the appellant’s activity in the SJP organisation [ one that actively promotes and  pursues BDS activities] shows that even at that stage the boycott activity was and limited in character…alongside the random indications of the appellant’s involvement in BDS activity during her studies, it is impossible to ignore the testimony of her [Jewish] lecturers about her complex approach, the curiosity  she displayed toward Israel and Judaism and her readiness to conduct an open, respectful dialogue-which is in stark contrast to the boycott idea.”

                     Revisiting the evidentiary conclusions of the Supremes

The unseemly eagerness of the Supremes to accept exculpatory evidence at face value.

Alqasem’s evidence

The Supremes failed to give enough credit to Alqasem’s intelligence while, by predisposition, design or otherwise while giving too much credit for truthfulness and sincerity.

For example, would anyone in her position, even if endowed with an average  intelligence  be foolish enough to disclose her ideology political affiliation and values and her related actions to the professors on whom she depended for her grades, future letters of reference and thus  possibly jeopardise her academic standing and reputation?

Do intellectual intelligence, curiosity and interest in the subject matters taught by these professors necessarily justify the inferences made and conclusions drawn by Mr. Justice Hendel?

Isn’t equally plausible to interpret her academic performance and her extra-curricular readings on the Holocaust upon her alleged disengagement from the BDS movement and her decision to study her chosen subject at an Israeli university, as her means to get to know her enemies better?

She certainly would not be the first person to put the benefits of his or her studies in an Israeli university to fight Israel as for example, by launching the BDS movement?

Curiously enough, the Supremes ignored the fact that the provision of the “Boycott Act” pursuant to which she was banned and ordered deported was enacted at the very beginning of March of 2017.

Even more curiously, they failed to note the chronological sequence of Alqasem’s decision to drop out on April 14, 2017 and the date when of the enactment.  More specifically, she dropped out about 47 days after the enactment of the amendment.

The Court also ignored the fact that Alqasem never repudiated the BDS movement. She refused to do so, even when offered the opportunity to do so by the Minister, and thereby, offer him a face saving formula which I think he was looking for. to reverse his decisions.

Alqasem’s refusal to repudiate in order to get herself out of jam she was stuck in and to preserve her opportunity to carry on with her studies at a world renowned university, may well be indicative of

a)her attachment to  and continuing support for the BDS movement; and/ or                       b) her belief, based on her reading of or knowledge about the past judgments issued by the Supremes, that they are going to fall for her line.

And fall they did. For example, on the issue as to whether and when she made a clean break with the BDS movement, Alqasem does not appear to have clearly and unequivocally that she did. Instead, she told the Court that her desire to spend a year in a master’s degree program at Hebrew University shows a clear break with the past, leaving to the judges  to make the same inference.

The Supremes bought into this inference and concluded,  as a given, that “This conduct is not in keeping…with the thesis that she is an undercover boycott activist” instead of recognising the reality on the ground that such conduct may or may not be in keeping with the enumerated facts.”

Nor did the Court bother to inquire why she felt compelled  to wipe out her social media history., when did she decide to do so, and did she actually carried out her decision.    In the light of the adverse inference drawn from the wipe out by the TDC judge, I would have thought that she would seek to white out this stain of consideration.

Certainly, if I was hearing this appeal, I would have been duty bound, compelled to inquire into the foregoing matters and minimally, address them in my decision.

Caveat

Based on my understanding of the proceedings, in fairness to the Court, if I was defending the decisions of the government to ban and expel and that of the TDC to uphold them, I would have certainly raised and argued the foregoing evidentiary matters, rather than delegating these tasks to the Supreme in the hope that they might.

As a matter of fact, I would say: show me a judgment deficient in its analysis and treatment of the evidence and I will show you, most of the time, a lawyer who fails to present the evidence clearly and properly and make sure to argue the key points in    forcefully to make it difficult for the judges to ignore it.

I cannot tell since I do not possess all the pertinent facts.

Admittedly such a task is a very difficult one to perform before a Court predisposed to go short on the evidence and long on the Court’s pet preoccupation.

The exercise of Ministerial discretionary practices  

As a general rule of law, the Courts are not permitted to interfere with the manner in which a Minister exercises his discretionary powers and to substitute their preferred way of exercising them or take it upon themselves to exercise them instead of the Minister  unless specifically provided by law or where the evidence on which the Minister relies in exercising these powers is, among other things, inadmissible in law on a number of grounds or otherwise the evidence is beset by  intractable problems

This certainly was not the case here.

In the premises, the Supremes committed an error of law by                                                             a) substituting their discretion for that of the Minister by ignoring and/or downgrading the weight of the evidence  on which the TDC judge relied, and                                                       b) introducing  a  an arbitrary and unwarranted  for the determination of the merits of the appeal.

More specifically, the Supremes having held that Alqasem ceased to engage in the BDS activities in April 2017 and carried on with her studies they went on, in effect ,to read into law, a requirement  that  would preclude  the authorities from  making a decision  to ban  the person and/or order his or her expulsion.

The requirement in question appears to be that where  the  person in question ceases to engage in BDS  related  actions for some time  prior to  date  when the authorities decide to issue the ban and  order  her deportation she acquires immunity from being subjected  to such decisions and orders, provided -all  the facts concerning the person since the cessation of the activities, are  neutral and/or in  her favour.

In the present case, the Supremes   seem to think that since the proscribed activities of Alqasem ceased in April 2017- about 17 months prior to the time she was banned and ordered to be deported which the court characterised “as a very long time” and that since then she has carried on with her scholarly pursuits and interests, the law ought not to penalise her for “previous bad behaviour.”

In this regard the Court approached  to the case as if is  it were just another civil, and to a lesser extent, criminal matter rather  than  a case   that , as they put it  broadly, ,involves  legislation intended  to protect the state’s  sovereignty  and the  public’s  safety and security” to which I would add, inter –alia, the State’s and its citizen’s economic interests.

In so doing, the Supremes usurped the discretionary powers of the Minister.

Independently of the preceding problem, the allegation that Alqasem’s visa was revoked on the strength of her political opinions is unwarranted.

The Minister determined the existence of such a valid cause by focusing on the evidence concerning Alqasem’s actions and activities prior to April 2017 which disclose her involvement in the BDS activities and drawing legitimate inferences from them.

The TDC in turn upheld the Ministerial decisions having regard to Alqasem’s pre-April 14,, 2017 activities, the inconsistencies in her testimony and her failure to explain here decision to. wipe out her social media history.

I am not aware of   the existence of verifiable indications from which one could fairly draw the inference that the Minister was concerned with her political opinions per se and that his decisions focused on those opinions.

Supremes’ unwarranted speculation as to the real reason for barring Alqasem’s entry by revoking her visa

At the end of the day, the Supremes summed up their take of the government’s case as follows:

“Since the appellant’s actions do not raise satisfactory cause to bar her entry to Israel the  inevitable  impression is that  invalidating the visa given to [Alqasem] was due to the political opinions she holds”.,

My problem with this speculation is that having already decided on the merits of the case, the Supremes had no valid or useful reason to engage in this kind of speculation which is of absolutely no use to the proceedings and to its outcome.

The Supremes’ speculative prophecy

Having speculated about the real reason for the revocation of Alqasem’s visa, the Supremes then proceeded to prophesise that”If this is truly the case, then we are talking about an extreme and dangerous step which could lead to the crumbling of the pillars”.

I venture to say that this rather bombastic and hysterical prophecy based on an impression which in turn is based on a premise the truth of which is unascertained is both immaterial to the merits of the appeal and most unwise.

It is unbecoming and, not to say intolerable, unacceptable for the Supremes to engage in this kind of behaviour. It is certainly not part of the task for which they have been appointed.

I cannot ever imagine the judges of the Canadian Supreme Court engaging in this kind of nonsense.

The Supremes then gratuitously characterised the government’s decision as a “penalty or revenge for “previous bad behaviour.”

Having regard, to their characterisation of the Minister’s deportation order as being  one tantamount  to “a penalty or revenge” for past “bad behaviour” and the manner in which they dealt with the evidence,  I think it is fair to say, to borrow the words of the Supremes that the judgment as a whole leaves the writer with the inevitable impression   that  the manner in which  the Court  disposed of the appeal is due to their  result-oriented approach to the and their  benevolent view that Alqasem ought to be given a break, albeit based on what the Supremes consider to be  the supreme values of Israel.

The freedoms of thought and speech

I verily believe that is not a case that raises the issue of freedom of thought.

It is said that “No one knows what is in the mind and heart of a person, except the butcher”.

Nor is this case one about freedom of speech.

The case is simply about whether on the evidence the Minister was justified to issue the ban and to order the deportation of Alqasem.

Alqasem’s freedoms

The State of Israel is not concerned with her exercise of these freedoms but with the substance and consequences of the kinds and consequences of her speech and of the activities in which she engages.

Nor does the State have the duty to protect her freedoms while she is in the United States or for that matter anywhere outside Israel.

In this regard, I believe that the Minister took the correct approach to her rights and the exercise thereof when he declared something to the effect that

  1. a) Thoughts translated into words and/or actions have meanings;
  2. b) These meanings have consequences when they are uttered and/or acted upon with the specific purpose of harming Israel, in this instance, through BDS, and
  3. c) One of these consequences is to be banned from entering Israel, or having somehow entered it, to be deported.

The Supremes’ unwarranted new rule of evidence

The Court prescribed that  there should be a higher standard of evidence for revoking a visa that has already been granted than for denying  a student visa to begin with, without explaining why that should be so and  what this higher .standard would entail.

Surely, evidence that the person issuing the visa did not have; or as it happened in this case, either failed to obtain all the material background information before deciding on the merits of the visa application and/or where there was a screw-up in the communication between the appropriate ministry in Israel and the official issuing the visa.

These are hardly dramatic scenarios to warrant the imposition of a heavier burden of proof on the government.

The Supremes’ erred by usurping the government prerogatives

In this case, the Supremes also usurped the government’s exclusive prerogatives to formulate its anti-BDS policy and strategy and, it goes without saying, drafting and introducing in the Knesset the legislative bills designed to implement these policies and strategies as well as to formulate and implement the political means through which   the policy and strategy will be implemented domestically and on the international stage.

The Court wrote:

“In this case, preventing the appellant’s entry does not advance the law’s purpose and clearly deviates from the bounds of reasonability.”

The questioning the wisdom of the way in which the government choses to handle cases like that of Alqasem is a clear case of the Court’s unlawful interference with the government’s exclusive prerogative to determine government policy.

And I strongly suspect that the ultimate outcome of the case was influenced   by the some of the foregoing unwarranted considerations.

HUJ sought to intervene in Alqasem’s appeal, to support her case and ask the Court to let her stay in and pursue her academic studies.

The HUJ has been arguing that the kinds  of Ministerial decisions and orders involved in this case are hurting the international image of the university and  that barring the entry at the airport of a foreign student accepted into one of the university’s international program damaged the university’s international ties.

The irony

It has been shown that the BDS movements that  focus on  Jewish enterprises in  Israel and more particularly  in Judea and Samaria, where Palestinians workers enjoy higher and  all the rights, privileges and other benefits accorded to Israeli workers under various pieces of labour and labour related legislation, inflict far more economic hardship to the Palestinian and to the Palestinian businesses that benefit from the presence of these  enterprises than that sustained by the enterprises themselves.

In the light of these adverse impacts and the fact that many Palestinians are demanding the E.U ,and various countries to stop financing the BDS movements directly or indirectly and better still to ban these movements altogether.

At the end of the day

I am inclined to conclude that the Supremes could have done much better than the way they handled the appeal .

The Court’s decision is fraught with many problems, a significant number of which  were of the Court’s own making.

Lara Alqasem at HUJ

Notwithstanding the contentions of HUJ,  according to the news report filed by the United with Israel staff, dozens of anti-BDS and anti-terror posters, as well as some personally attacking Lara Alqasem  have been  displayed on HUJ’s Mount Scopus campus ahead of the arrival of Alqasem on campus,.

Some of these posters read:

-“Welcome Lara Alqasem: We don’t want you here”                                                                     -“Lara, if you despise Israel so much, you are welcome to go to Gaza, Syria, Iran. They will welcome BDS and terrorist supporters like you with open arms.”                                       -“Keep your BDS off my campus.”                                                                                           -“Lara, have you no shame”                                                                                                          -“You support a terrorist [Rasmea Odeh] who murdered to HUJ students and now you want to study here? We don’t want you here.”

It remains to be seen in the long run, which of the two courses of action chosen by the TDC and the Supremes,respectively, will turn out to be the wiser one.

About the Author
Doğan Akman was born and schooled in Istanbul, Turkey. Upon his graduation from Lycee St. Michel, he immigrated to Canada with his family. In Canada, he taught university in sociology-criminology and social welfare policy and published some articles in criminology journals After a stint as a Judge of the Provincial Court (criminal and family divisions) of the Province of Newfoundland and Labrador, he joined the Federal Department of Justice working first as a Crown prosecutor, and then switching to civil litigation and specialising in aboriginal law. Since his retirement he has published articles in Sephardic Horizons and e-Sefarad and in an anthology edited by Rifat Bali titled This is My New Homeland and published in Istanbul.
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