Legal Affairs: Forgive and forget?

The Disengagement Pardons Law is being challenged in the High Court. Is it discriminatory, or a necessary part of Gaza trauma ‘closure’?

disengagement 298.88 (photo credit: Ariel Jerozolimski [archive])
disengagement 298.88
(photo credit: Ariel Jerozolimski [archive])
In an effort to heal the rifts caused by the 2005 Gaza disengagement, the Knesset a year ago passed a law granting pardons and erasing criminal records of people who were charged for offenses relating to resistance to the evacuation of Jewish settlements in the Gaza Strip. Shortly afterward, 12 left-wing activists, many of whom have been arrested during protests against the evictions of Palestinians from their homes in east Jerusalem, filed a petition with the High Court claiming the law was unconstitutional because it discriminated between offenders on the basis of their political leanings. They asked that it either be revoked or expanded to include all offenders who were indicted for the same offenses regardless of their political orientation.
Last week the government and the Knesset submitted their responses to the petition. This week, the court received responses from new parties who requested to be added on as respondents – those who were indicted for their protest actions before and during the evacuation.
The respondents all spoke of the significance of the law in healing the wounds of disengagement, but the petitioners argued that it is impossible to heal one societal wound by opening up another.
THE DISENGAGEMENT Pardons Law was first proposed to the previous Knesset by current Knesset Speaker Reuven Rivlin. At the time, the Kadima-led government rejected the bill, but once the new Knesset was elected, the bill sailed through the legislation process and was passed 51 to 9.
“There are days on which democracy must be forgiving and leave the burdens of the past behind,” said Rivlin. “Disengagement was a national trauma, and it is impossible to compare it to any other social crisis. I believe that passing the law will help to correct the injustice that was dealt the evacuees, who paid the price of democracy in the heaviest manner possible.”
The law determined that disengagement opponents would be pardoned for all but the most severe offenses, and it would apply to all those who didn’t have prior criminal records.
In their petition, the left-wing activists said that the new law discriminated against people suspected of or indicted for the same offenses as those committed by the anti-disengagement protesters and that it created an antidemocratic form of selective enforcement.
“It turns out that as far as the legislature is concerned, the opponents of disengagement receive preference over the petitioners simply because the political content of their protest was on the opposite side of the political map. The disengagement opponents demonstrated against the evacuation of residents from Gaza and their transfer to alternative housing receiving monetary compensation, while the petitioners demonstrated against the evacuation of the residents of Sheikh Jarrah to the cold asphalt street outside their houses,” read the petition.
“Such politicization of the law enforcement system, made possible by primary legislation, harms the principle of separation of powers – practically enabling political intervention in criminal procedures.”
The petitioners claimed the law also infringed on the authority of the president, who alone has the power to grant pardons.
IN ITS response, the state explained that while the Justice Ministry had initially opposed the law, for many of the same reasons the petitioners oppose it and primarily because there were other, less drastic ways to reach the same end, once passed into law, the state was committed to defending it.
The state argued that the law was not, as the petitioners claimed, a form of selective enforcement, but rather, “a case of different treatment for different people in the framework of a special arrangement approved by law in light of the clear uniqueness of the disengagement.”
“The law reflects the state’s desire to reach closure on all matters relating to disengagement,” read the response. “It seeks to make peace between the different parts of Israeli society who found themselves on opposite sides of the divide at a moment that was historical and traumatic. This desire may be controversial, but once passed into law with the widespread support of MKs, there is no room for judicial intervention.”
The state said part of the decision to pass a pardon law rested on two similar laws passed by the Knesset.
Both in 1949, after the War of Independence, and in 1967, after the victory in the Six Day War, the Knesset passed general pardon laws granting clemency to most non-dangerous criminals.
“The general pardon is part of an overall national effort to deal with a certain incident, the disengagement, which in the legislature’s opinion was a social rift,” the response read. “In most cases it accompanies a desire to ’open a new page’ in the social structure and the relations between the population and the ruling authorities.”
In a second response, the state provided statistics on the number of people the law would actually affect.
After removing 37 percent of the people, who were excluded from the pardon for various reasons, the state said it would affect 1,483 people, roughly 300 of them minors. It added that of those, in only 80 cases had requests been made to apply the law.
“The presented figures can confirm two conclusions: the first, that so far the law was enacted for a relatively small group of people, and the second, the fact that so far the law has been used sparingly strengthens the feeling that from the start, the law’s goals were mostly political and declarative,” read the response.
The state asked the court to consider the unique nature of the law and reject the petition.
A similar bottom line was given in the Knesset’s response to the petition.
The Knesset’s lawyers argued that the law was not discriminatory against the petitioners because they weren’t a relevant equal reference group to the aim for which the law was passed.
The Knesset argued that the petitioners were not equal to the anti-disengagement opponents in this case because the pardons were being given in virtue of the context of the offense and not its severity.
“The law deals with offenses committed during the tumultuous period of disengagement, from February to August 2005. What do these have to do with offenses committed years later by the petitioners?” asked the Knesset. “The petitioners are asking to completely cease criminal enforcement against protest actions, as long as the motive for the offenses is in opposition to government policy.
Therefore it is not clear to which reference group under the law they are referring when they say they are being discriminated against.”
The Knesset concluded by arguing that any intervention by the court against the law would be considered judicial activism and subject to judicial restraint.
IN AUGUST 2010, Moshe Leshem, a 67-year-old businessman and retired IDF colonel, asked to be added as a respondent to the case.
Leshem was arrested in August 2005 and charged with conspiracy to commit a crime, participating in a riot and attacking soldiers and policemen performing their duty. He was remanded for six days and has yet to stand trial for his alleged offenses.
Leshem claimed his sole action during disengagement was standing on a Kfar Darom rooftop, along with 50 other people holding up an Israeli flag and making speeches against expulsion.
He argued that, rather than harm the constitutional right of equality, the law was meant to rectify, even if only partially, the severe injury committed against him and other citizens who opposed disengagement.
His lawyers claimed that the law that authorized disengagement in the first place discriminated against Leshem and the other opponents by setting up unjustifiable temporary enforcement measures and putting them to use in an extreme and aggressive manner.
“The various legal agencies, including the Knesset, discriminated against the evacuees and the opponents of the disengagement in such a severe and thorough manner that it created substantial and comprehensive inequality against them. This injustice is what brought about the circumstances that necessitated the judicial and legislative remedy proposed by the pardon law,” read Leshem’s response.
Leshem charged that members of Knesset were aware of, and in some cases authorized, what he called “extreme measures” taken by the enforcement authorities.
He argued that had he taken the same actions in a different context, say a student protest or a consumer demonstration, he would not have been arrested and indicted. He added that the remedy sought by the petitioners indicated bad faith and that the petition was nothing but a provocation.
“The petitioners asked the court to rule that the public protest over the deprivation of rights and severe discrimination conducted against the Gush Katif residents and the disengagement opponents and the attempt to prevent law enforcement against house invaders [in Sheikh Jarrah] are the same thing,” read Leshem’s response.
A FINAL response by a group of five other disengagement opponents, who were charged with various offenses in the context of the disengagement, spoke to the importance of the Pardon Law in getting their life back on track.
“Following the disengagement period, in which the respondents, as well as hundreds of thousands of others, experienced a earthshattering event, they now seek to attempt to heal the personal and national rifts, overcome the anger, the stress and the dispute and attempt to return to a joint life uniting Israeli society, unity which is the foundation of the state.
“In this attitude, the respondents have each tried to rehabilitate their lives and return them to a normal and ordinary track.
However, a criminal conviction, or even the opening of a criminal file against someone, casts a long shadow on a person and in many cases prevent him or her from practicing certain professions (like teaching, adjudication and jobs that require legal authorizations) as well as harming one’s reputation.
“The passing of the law opened the ‘gates of repentance’ for the respondents. If the petition is granted, the rights of the respondents, and the wider public they represent, may be severely harmed,” read the response.
The final ruling on the Disengagement Pardon Law is not expected any time soon.
By the time a decision is reached, it may no longer carry much practical importance, but the arguments for and against teach a great deal about the relative powers of the different branches of government and also about the levels of compassion that exist in society today.