The High Court of Justice on Monday rejected a petition by right-wing activists Michael Ben-Ari and Itamar Ben-Gvir to compel the state to indict MK Haneen Zoabi (Balad) for her involvement in the May 2010 Mavi Marmara flotilla.
The petition was filed after the state announced that it had closed the investigation against Zoabi and decided not to indict her.
The three justice panel presided over by Supreme Court President Asher D. Grunis said that additional information which it had ordered the state to produce about its decision had convinced it that the state was correct that there would be significant difficulties in justifying an indictment and in obtaining a conviction.
As such, the court said that without making a judgment about the merits of the case or specific legal issues involved, it could not say that the state's decision not to indict Zoabi was unreasonable.
Without being able to say the decision was unreasonable, there was no basis for the High Court to intervene as a "more supreme attorney-general" to second-guess the state's decision.
Ben-Gvir said that he was "very disappointed," that the court was "giving immunity to terrorists" and that the court had refused to even review all of the evidence in the case.
He complained that in a famous old and parallel decision regarding right-wing activist Meir Kahane that the court had insisted on reviewing all of the evidence, but that here it was letting the prosecution "hide something" and operating on a double-standard for Zoabi.
He added that the petitioners were considering asking for a rare "diyun nosaf," or a special procedure where a petitioner can ask a nine justice panel of the High Court to reconsider the ruling of a three justice panel.
Because of Zoabi's involvement as a passenger in the flotilla, the Central Election's Commission even tried to disqualify her from running in recent Knesset elections.
However, in a major ruling, the High Court, 9-0, overruled the Commission and reinstated Zoabi as a candidate for the Knesset, stating that there was no evidence that she had known anything about the violent militants in the flotilla.
The High Court's premise was that most of the flotilla passengers, while violating Israel's blockade of Hamas, had not taken any formal violent action, leaving it no basis to second-guess the state as to whether to prosecute Zoabi or any other passengers.
An October hearing on the issue started with aggressive debate between Ben-Gvir and the court over the impact of its prior Zoabi ruling.
Ben-Gvir said that the court's decision "stoked public criticism which I assume you heard."
Grunis responded that, "Sir, you assume that we read the newspapers."
Ben-Gvir said, "I heard the public, I assume that you heard them, I am ready to speak on behalf of the nation of Israel."
Justice Neal Hendel retorted, "if you, sir, want to speak on behalf of the nation of Israel, you need to speak to many more parts of it in order to cover its scope."
During the hearing, Ben-Gvir complained that the state and the court were ignoring key evidence which proved Zoabi's guilt.
The state responded that the evidence was weak and that it would have been better if there was not a public inquiry into the specifics of the state decision, but that the state had produced its reasons for viewing the evidence as weak per an earlier court order and that its production should end the matter.
Hassan Jabareen, director of Adalah – the Legal Center for Arab Minority Rights in Israel and representing Zoabi, told the court that the petition must be dismissed because the High Court itself had already basically decided that Zoabi had committed no crime when it allowed her to run for reelection.
After the hearing, Zoabi sent out a press release that the right-wing activists verbally and physically accosted her and her supporters, the second time such an incident occurred after a High Court hearing involving Zoabi.
She responded by saying that the right-wing activists "should be in jail" for their incitement, "and not me."
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