CAIN: Democratic Dialogue: Politics in Public - Freedom of Assembly and the right to Protest (Report No. 8)

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Politics in Public

Freedom of Assembly and the Right to Protest


Parades, demonstrations, protests and other forms of public assembly are a vibrant part of Israeli social, religious and political life. The state itself and the civil authorities organise a variety of such events to commemorate and celebrate key anniversaries related to its foundation in 1949. Holocaust Day, Independence Day and Remembrance Day which fall in late April or May are among the most prominent (Handelman 1990). Similarly both supporters and opponents of the government, whether zionist or non-zionist, right or left-wing, religious and secular, Jewish and Palestinian all use a range of public assemblies to mobilise opinion in support of their own arguments (Kaminer 1996; Nunn 1993).

The right of assembly is regarded as a basic right by the Israeli government. This has not always been unproblematic. The right of assembly has been refined and consolidated over recent decades through the practice of demonstrating and by a willingness to challenge the state definition of the limits to such rights through the courts. Even now it is not a right that is extended equally to all members of Israeli society. Israel is an ethnically divided society, the majority (82%) of the citizens of the State of Israel are Jewish, while a minority (18%) are Palestinian. It is widely accepted that the right to freedom of assembly has not been extended equally to Palestinian Israelis. This is beginning to be challenged by some groups.

The issue of the right to demonstrate is further complicated with regard to the West Bank and the Gaza Strip which have been occupied by Israeli forces since 1967. The Occupied Territories are subject to military rather than civilian law, and under this system there is no legal right to freedom of assembly. Nevertheless, demonstrating remains an important part of political practice, for both Jews and Palestinians, but a practice that is continually subject to the dictates of power rather than principles of respect for human rights (B’Tselem 1992).

Finally, one should note that since 1994, a number of urban areas within the West Bank and Gaza Strip have come under the control of the Palestinian Authority. In theory the PA has guaranteed freedom of assembly to the Palestinian population, but in practice this has been a problematic area. The right to demonstrate for opponents of the PA regime or of PA policy has become increasingly subject to police control and restriction and is a source of concern for human rights groups (Man 1997; LAW 1996).

While noting the importance of the freedom of assembly as a political and human rights issue within the West Bank and Gaza Strip, we feel that it is more useful to focus on the rights to assembly within the civil state of Israel, rather than areas of military control.

Freedom of Assembly

In Israel the right to demonstrate is regarded as a fundamental right of any democratic society. Until 1979 the police had considerable power to decide how such rights should be exercised and whether demonstrations should be allowed or banned. The courts had been unwilling to question police decisions and any requests for a judicial review ‘met with a cool reception. The Court simply bowed to police discretion in matters of public order’, the implications of the impact of such decisions for civil rights nor being taken into consideration (Kretzmer 1984:65). This changed in 1980 when the Supreme Court made a substantive review of the issue in the process of overturning a police decision to refuse a permit for a demonstration. The limits to the right to demonstrate and the power to constrain freedom of assembly have subsequently been defined through key legal judgements and these have in turn been clarified in a series of directives issued by the Attorney General.


The basic requirements for those organising a demonstration, set down in the Police Ordinance, 1971 and the Penal Law of 1977, are simple. No prior notification is required for demonstrations that do not involve speeches or a march, nor are permits required for marches involving less than fifty people. But any demonstration that includes speeches or marches and is likely to attract more than fifty people requires a permit. Organisers of demonstrations must apply for a permit five days in advance to the District Commander of Police.

The police can refuse a permit on grounds of concern for public order, or they can place restrictions on the ‘time, place and manner’ of a demonstration. Often such constraints on the route, the time or the style of the event are imposed following discussions and agreement with the organisers.

If an event is held, even though no permit has been applied for, or after a permit had been refused, or if the conditions that have been imposed are ignored, then the demonstration is regarded as illegal. In such a case all those participating, not just the organisers, are breaking the law. The police can either arrest people or simply try to disperse the gathering.

If the police refuse to issue a permit, then the organisers can appeal to the Supreme Court to have the decision overturned. For such an appeal system to be operable, it requires the police to make their decision in advance of the day of the demonstration, however this is not specified anywhere.

Judicial Reviews

As Israel has no Bill of Rights, nor any law which clearly states that there is a Constitutional right to demonstrate, it has been left to the Supreme Court to establish the legal principle and limits of such rights (Kretzmer 1984). The most significant case has been Sa’ar v Minister of Interior arid Police (1980). In the judgement Justice Barak confirmed that the ‘freedom of assembly and procession’ was a fundamental right which was recognised by Israeli law. But the judgement also went further by situating the right to demonstrate within the context of the rights of the wider community when the judge declared that people had a right to use the public streets for parades and demonstrations as much as for traffic and passage.

Just as my right to demonstrate in the street of a city is restricted by the right of my fellow to free passage in that same street, his right of passage in the street of a city is restricted by my right to hold a meeting or procession. The highways and streets were meant for walking and driving, but this is not their only purpose. They were also meant for processions, parades, funerals and such events (Quoted in Kretzmer 1984:66).

Parading and demonstrating were not therefore to be seen as something divorced or separate from the routines of daily social life, but were to be regarded as an integral part of them. Justice Barak asserted that granting a permit was not giving a favour but allowing someone to exercise a basic right. The judgement went on the make it clear that it was the duty of the police to enable people to exercise the right to demonstrate as much as it was their responsibility to facilitate other urban activities. The disruption caused by a demonstration was as much a factor of modern life as the disruption caused by traffic or by people shopping. It was the responsibility of the police to balance the competing demands on urban space.


As a result of another legal challenge to restrictions that the police had imposed on a demonstration (Levi v Southern District Police Commander, 1984), the Attorney General issued the Directives on the Matter of the Freedom to Demonstrate. These re-affirmed the state’s acceptance of the basic tight to demonstrate and clarified the nature and range of police powers to intercede in such cases (Heymann 1992:78-91).

The Directives state that the police should take into consideration concerns for public order, but noted that ‘mere apprehension that a demonstration might lead to participants rioting or to actual harm to public safety or public order is not in itself sufficient to deny a licence’. Instead they asserted that mote concrete evidence is required to justify such concerns, such as information of plans to violate public order or to incite violence, before the police can stop a demonstration.

The Directives also state that the police can not refuse a permit simply because of undue demands being made on police resources; nor because of disruption to urban routines that a demonstration might cause; nor because of an objection to the ideology of the demonstrators or the views that might be expressed. Furthermore, the Directives state that the police have a duty to protect people’s tight to demonstrate in the face of a hostile audience, regardless of the message that is being conveyed or of the demands that might be made on police resources.

Any assault directed at a demonstration by persons opposed to it, whether an assault based on political or social outlook, or an act of mere hooliganism, injures freedom of expression, which is one of the foundations of a democratic regime ... In so far as possible, the police must prevent such disturbances, and where they have occurred, must bring the suspects to trial (Heymann: 1992 85)

The right to demonstrate therefore extends to the right to protest at another demonstration, but it does not include the right to restrict other people’s rights by breaking up or blocking the route of a legal demonstration. In such cases the police are expected to protect the legal demonstration.

While the police must facilitate the freedom of expression, they can still impose a range of constraints on a legal demonstration in order to reoluce tension or if there is a fear of violence. Again there isa need to retain some degree of balance between protecting the right to freedom of expression and restricting that right if it might provoke or be designed to ptovoke violence. In such cases discretion is left with the police. The directives give the example of an assembly whose putpose is to demonstrate against religious values that could give fear of a breach of the peace if it was held in a ‘clearly religious neighbourhood’. In such cases the right to demonstrate is not without limits and the police can impose specific restrictions.


For instance, if the fear of the disturbance of the peace stems mainly from a specific placarol, the police can demand that the placard not be olseol. If the fear stems from holding the demonstration at a certain place, the police can olemand that the demonstrations move to a different place, as close as possible, in order to prevent the fear of disturbing the peace (Heymann 1992: 88).

While there is an opportunity to appeal the refusal of a permit, the imposition of restrictions based on concerns for public safety can be imposed at the time of the demonstration anol in tesponse to the actual conditions 01 the streets. Consequently when such decisions are made by the poliee there is no chance of an indepenolent review of their judgement.

However, one shoulol note that this directive focuses on those cases where the demonstration is deliberately provocative and likely to cause a disturbance, it oloes not mean that the police should necessarily restrict rights of assembly in response to a hostile audience. There is therefore a balance that needs to be maintained between demonstrations which aim to provoke a violent response, anol which can be eontrolled, and those in which the violent tesponse is disproportionate, and where the hostile audience should be controlled.

The types of constraint that can be imposed are similar to the testtictions that the American police can impose on the ‘time, place and manner’ in which a demonstration is held. The location or route can be restricted, banners or placarols can be subject to control, the numbers participating can be limited and the timing can be changed or tightly defined. These indicate that despite its importance for a democratic society, the right to freedom of assembly and expression is never unlimited. It is always in some way balanced by the rights

of other members of society and a need to acknowledge some responsibility to that wider society. One might therefore be expected to restrict (or have restricted) one’s rights in some circumstances. The problem is to decide when testtictions ate reasonable and when they are too great an infringement on one’s liberty.

The aims of the directives and the attitudes of the courts appear to aim to consolidate and underpin the right of people to demonstrate and to engage in peaceful assembly. To an extent this was born out by the experience of people who organised or took part in these events. However it was also felt that these rights were not readily extended equally to all Israeli citizens, in particular Palestinian Israelis do not have the same opportunities to engage in freedom of assembly as do Jewish Israelis.

Demonstrating in Israel


In general people felt that the right of assembly was more clearly defined than it had been in the 1970s. This had been achieved by a combination of factors. Members of some of the more radical groups insisted that it had been important that they had set the agenda for the debate by constantly challenging the limits to civil rights as they had been defineol by the state. This had been an important factor in extending people’s right to demonstrate. It was seen as necessary that people had been willing to be arrested and go to coutt to demand their rights and to clarify the legal position. This had been supported by the work of Association for Civil Rights in Israel (ACRI) in challenging police constraints and in the willingness of the Supreme Court to overtutn police decisions. The coutt had come to be regarded as a positive bulwark to any police tendency to restrict civil rights for fear of disturbance or disruption and it was also seen as an effective appeal mechanism.

Each of the Jewish groups said that they always applied for permits and always got them. However they accepted that some resttictions were liable to be imposed on soich issues as the ‘time, place or manner’ of the demonstration, but that this was a matter for negotiation. There were no significant or ‘traditional’ routes for parades or demonstrations and therefore the route to be taken and the timing of a parade were obvious subjects for restrictions. Nevertheless such restrictions were not always passively accepted: in 1983 a court case had confirmed that it was acceptable to demonstrate near the Prime Minister’s residence despite initial police attempts to restrict such activities.

It was also acknowledged that the police had accepted the court’s rulings and worked within them to ensure that people’s rights were upheld. However it was also noted that it was often mote problematic when dealing with junior officers who were not 50 familiar with the law regarding civil rights. In contrast more senior officers were regaroled as more liberal in their interpretations and it was often possible to reach an accommodation with them over controversial issues in situ.

It was also acknowledged that the police were now more aware of their responsibility to defend the rights of demonstrators, even if this required large numbers of officers and even

if the demonstration was liable to offend people. Most left wing or peace demonstrations would expect to attract opposition from right-wing groups. But most groups stated that they would expect the police to protect their events from such opposing protests whereas in the past a hostile audience might have been used as an excuse to ban or restrict a demonstration. This was even the case when the olemonstration was deliberately provocative: at least two demonstrations organiseol by the radical Hebton Solidarity Committee deliberately utilised Jewish religious symbols in a mock wedding and a mock funeral in a way that was expected to anger many passers-by. Nevertheless the police protected the demonstration and then provided a safe escort away from the area at the end for the demonstrators.

It was felt that right wing and religious groups were more assertive in demanding their rights, regardless of the legality, the disruption that might be caused or how this might impinge on the rights of other. However constraints were still placed on soich demonstrations. Attempts by right-wing groups, soich as Kach, to parade through predominately Palestinian areas had been stopped because they were seen as too provocative and liable to lead to a breach of the peace. Similarly, attempts by Jewish religious groups to gain access to the courtyard of the Temple Mount Mosque in order to pray have been stopped by police and the court has upheld their decision.

It was claimed that right-wing groups were less concerned about applying for permits, were more violent and aggressive in their demonsttations and that the police would allow such groups to cause more disruption than was justifiable rather than confront them. For instance, on May 6 1997 right-wing demonsttators blocked the main Jerusalem to Tel Aviv road as part of a protest. The police were eventually able to persuade them to move on but took no other action. It was felt that they would not have leen 50 tolerant with a left-wing group. However it was acknowledgeol that if such groups became openly confrontational then the police would physically confront the demonstrators, anol often in a very aggressive manner.

In fact the issue of police violence at demonstrations wasa mote general cause for concern. Police violence became a factor if the law was broken, if resttictions were ignored, when the police were trying to disperse or conttol demonstrators and when trying to control violent protesters. A representative of ACRI noted that they had received a number of complaints about police violence by demonstrators who opposed the Oslo Agreement, which framed the peace process between Israel and the Palestinians. The police have access to a variety of weapons ranging from batons to water hoses and teargas. In the West Bank they also used rubber bullets and live ammunition, but these were never used when dealing with Jewish demonstrators.

Palestinian Demonstrations


While acknowledging all these factors, it was also widely agreed that these applied principally to Jewish demonstrations and that other factors came into play if Palestinians

were involved. One also needs to differentiate between joint Israeli-Palestinian demonstrations in Jerusalem and demonstrations by Palestinians elsewhere in the country.

The capital city Jerusalem is a divided and segregated city; East Jerusalem was part of the West Bank and Palestinian, while West Jerusalem is Israeli. Most Palestinians in Jerusalem are not citizens of Israel. In contrast Palestinians in the north of Israel, in the Galilee, and in the south, in the Negev, are Israeli citizens. Theoretically they have the same tights as Jewish Israelis, but in practice they are treated differently.

In most cases demonstrations in Jerusalem which involve Palestinians are organised in conjunction with Jewish left-wing groups. The Jewish group would ‘organise’ the event and apply for the permit that would probably be refused for a Palestinian demonstration, particularly if it wanted to enter West Jerusalem. Even 50 the police response to the demonstration on the day would depend on the proportion of Palestinians present. It was accepted that the police treated Palestinian demonstrations, or demonstrations with a large number of Palestinians harder than Jewish ones, while a higher proportion of Jews would temper police behaviour. In 1993 a demonstration protesting the mass deportation of Palestinians was given a permit, but when the police saw that the demonstration was largely Palestinian, and mainly Islamicists, their attitudes changed. They imposed a number of minor restrictions and reacted harshly to minor infractions and any unexpected events. At other demonstrations problems have arisen whenever Palestinian flags ate carried 0t unfurled. If the police attempt to remove them, then violence is likely to break out and this can then lead to more widespread trouble and rioting. This is one area where being deliberately provocative is not accepted within the framework of civil rights in Israel.

There have also been problems over the location and route of joint demonstrations. Non-Israeli Palestinians do not have right of entry into Israel and public order problems would be likely to arise at such demonstrations within West Jerusalem. Joint demonstrations therefore usually begin in East Jerusalem but this can create problems for police security. In June 1997 a plan by Bat Shalom, a women’s group, to assemble a joint demonstration at the Damascus Gate, on the boundary of East and West Jerusalem, was refused by the police because they feared that they might be attacked. Although it was felt that it had become easier for Palestinians to demonstrate in Jerusalem since the late 1970s, it was claimed that this has only been achieved by constant challenges to police restrictions.

A similar argument was made over the tights of Palestinian Israeli groups to demonstrate elsewhere in Israel. It was felt that the attitude of the police would depend on the nature of the demonstration and the demands that were being made. Many protests and assemblies focus on the issue of land rights and confiscations by the state, or on the building of new settlements. In the past if there was only a small number of people involved then land rights demonstrations were simply stopped or confronted by the security forces. Recently more restraint has been shown towards demonstrations in the Galilee and a greater willingness to allow them to take place, however less tolerance is shown to protests by the Bedouin in the Negev where demonstrations are quickly broken up.

The main Palestinian commemorative event has been Land Day (March 30) which marks the anniversary of land confiscations in 1948 and 1967. The day is usually marked by a general strike, and by marches, rallies and meetings. These have often ended in violence when the security forces try to disperse people at the end of the day. In recent years Land Day demonstrations have become more widespread. They are now held in both Israel and on the West Bank and have also been used to protest at opposition to expansion of Jewish settlements on the West Bank. More recently Palestinians have also begun to hold their own demonstrations to mark Israeli Independence Day. This is done by returning to their native villages, which are often now deserted, for a reunion and more informal gathering. Whereas people would usually comply with the law and apply for permits for Land Day demonstrations, this is rarely done for Independence Day gatherings. To date the police have not interpreted these as illegal assemblies.

So far Palestinian Israeli groups have not sought to challenge police restrictions through legal means not tried to establish the limits of their own tights to demonstrate in the Supreme Court. The system is regarded as a Jewish system and therefore not responsive to the demands of Palestinians. However, at least one Palestinian human tights group is looking to push the case for Palestinian rights through the legal system and thereby extend those rights.


The right to freedom of assembly is regarded as a fundamental democratic tight in Israel. The principle has been upheld by the Supreme Court, which has also elaborated on the balance that should be maintained between competing interests and rights. Directives issued by the Attorney General have clarified many of the practical matters arising from the landmark judgements. The police still have the power to refuse permits for demonstrations, but there is also an effective appeals mechanism through the Supreme Court against any restraints that they might impose. This mechanism is recognised by organisers of public events as being both fair and accessible and not a process that need delay a planned demonstration.

These processes are not static but have evolved over the past two decades, often as a result of pressure from the organisers of political events who have sought to take the initiative in extending the limits of civil liberties. However, such rights are still applied unequally within Israel. Palestinian Arab citizens of the state do not have the same right in practice to freedom of assembly as do Jewish Israelis. This is widely acknowledged among Jewish political activists and civil libertarians as well as by Palestinians.

In Jerusalem many Jewish groups have sought to facilitate Palestinian rights by organising joint demonstrations, and in the predominately Palestinian area of the Galilee local groups have become more assertive of their right to demonstrate. Although the two communities still do not have equal rights in this area it is felt that here too the Israeli State has become more responsive to the demands of Palestinians. The police and security forces have been less insistent on stopping or breaking up demonstrations in recent years. The next stage would be to take a case through the legal system and clarify whether the general principles and directives should apply to all Israeli citizens, of all ethnic groups and all political opinions.

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