Sa'ar v. Minister of the Interior

The Petitioners applied to Respondent 2 for a permit to hold a procession in Jerusalem that would culminate in a demonstration in front of the Knesset. Respondent 2 denied the request. The Petitioners therefore petitioned the High Court of Justice. Prior to the hearing, the Respondents informed the Court that the permit was denied due to the fear that the procession would result in a breach of public order, violence, breach of the peace and unlawful action, but that the Respondents were willing to allow the Petitioners to hold a public assembly, without a procession, and not in the Knesset precincts. This offer was refused by the Petitioners. The Court then issued an order nisi directing the Respondents to show cause why they would not grant the Petitioners the requested permit. After the issuance of that order, and prior to the hearing, the Knesset Speaker offered to allow a demonstration opposite the Knesset. The Respondents then offered to reconsider a request by the Petitioners for an alternative “short and reasonable route” for the procession that would not pass through built-up areas. The proposal was rejected by the Petitioners. The Court (per Justice Barak, Deputy President Landau and Justice Shamgar concurring) granted the petition. In making the order absolute, the Court held:

1.         The State of Israel recognizes fundamental civil liberties, which include freedom of assembly and procession. Holding an assembly and procession is one of the means at the disposal of the public to express opinions on affairs of state.

2.         The freedoms of assembly and procession are not absolute but relative. The desire of an individual or individuals to express opinions by means of assembly and procession must be balanced against the desire of others to protect their wellbeing and property, and the public interest in maintaining public order and security. The law imposes various restrictions upon the exercise of these recognized, fundamental civil liberties, such as the requirement to obtain a permit.

3.         Despite the absence of statutory guidelines in sec. 85 of the Police Ordinance, the Commissioner may not take into account any and all considerations that occur to him. The exercise of discretion is subject to the substantive and procedural rules that apply to the exercise of administrative discretion, and must be exercised within the limits of the purpose for which it was granted.

4.         (a) Granting a permit to demonstrate is not an act of grace. A citizen has a fundamental right to assemble and demonstrate. That right may be restricted or denied if the Police Commissioner is of the opinion that the assembly would be detrimental to public security or order.

            (b) Traffic considerations may properly be taken into account in the scope of “public order”, however, while the right to demonstrate on a city street is limited by the right of others to pass freely on that street, the right to pass freely on the street is limited by the right to hold an assembly or procession. Roads and streets are designed for walking and driving, but are also intended for processions, marches, funerals and other events. The residents of a city – particularly of the capital – must assume the inconvenience caused by public and official events. An organized society cannot accommodate a rule of all or nothing, but is based upon give and take and the balancing of interests.

            (c) Holding a procession on the requested route would cause a certain disturbance to traffic, but disallowing the use of that route would frustrate one of the main purposes of the procession – calling the attention of passersby to the subject of the demonstration. A procession on the proposed alternative route would mean marching through an unbuilt area and would not provide a proper substitute.

            (d) The forces available to the police are limited, and must be utilized according to an order of preferences, but the determination of that order may not be arbitrary, discriminatory or unreasonable, and room must be made for the right to demonstrate. Preference cannot be shown on the basis of ideological differences between demonstrations. The police has no authority over ideology. It must allocate its forces according to need and not opinion.

            (e) The claim that holding the procession along the desired route “would impose a heavy burden on the police, which, in turn, would require special preparations” is not a proper argument. It is the duty of the police to allocate manpower to maintain the democratic order, which includes the right to demonstrate.