Analysis: Anti-Schalit deals law - Will judges tie president's hands or ignore new power?

If the judges decline to use the power, then the law achieved nothing.

By YONAH JEREMY BOB
Gilad Schalit released by Hamas captors as part of prisoner swap in 2011. (photo credit: REUTERS)
Gilad Schalit released by Hamas captors as part of prisoner swap in 2011.
(photo credit: REUTERS)
How things can change so completely practically overnight.
Though at the time it occurred in 2011 the Gilad Schalit deal was possibly the most popular government decision in years with incredible approval ratings in the 80 percent range, on a wave of anger at released prisoners returning to terror, the Knesset on Monday tied its hands somewhat from committing to future deals.
The idea of a government tying its hands in the future always entails controversy, as a simpler solution is for the government just not to do anything it opposes and as anticipating what the future might demand is a tricky business.
But the hand-tying is not a done deal.
The complex law that was passed largely relies on judges to take on new powers by issuing in their convictions a ruling that certain arch murderers (read: arch terrorists) are beyond the president's power to pardon – at least on a large scale for exchange or political purposes.
But if the judges decline to use the power, then the law achieved nothing.
So will judges use this new power?
Hebrew University Professor Barak Medina said that it is "hard to know, there could be judges who will use" the new power in "grave murder" cases.
He added that some judges may unhesitatingly use the power "because they also will not really believe that it will completely stop the government from letting" prisoners go again if it really wants to in a future deal."
Pressed to come up with some analogous situations, Medina discussed judicial findings of "moral turpitude" which are forward looking and block politicians convicted of corruption related crimes from returning to public service even for years after they are released from prison.
Medina said that judges do not always issue a finding of moral turpitude in corruption cases when they could, but that they often do – while also noting that the situations were far from entirely analogous.
While some commentators have made much of different trends of rulings of judges in different regions, such as contrasting Tel Aviv and Jerusalem judges, Medina did not think it would be easy to see such trends on the pardon ban issue.
Next, medina was asked if the IDF West Bank Court judges might issue pardon bans (in this case banning the IDF Home Front Commander from issuing pardons) against Palestinians more often than civilian judges.
He said that while it was still hard to say, that theoretically such judges have a "tougher approach" on issues of punishment, are not dealing with their fellow citizens and are less independent (being part of the IDF) – all trends which could be fertile ground for issuing more pardon-bans.
IDC Law School Professor Adam Shinar said that while "there is no empirical certainty" (the issue being uncharted territory), one should note that "most judges are reluctant and very careful about dealing with the future."
In contrast, "judges can declare someone committed a crime" and are "institutionally" comfortable making findings about "things that happened in the past."
Shinar discussed moral turpitude as well, but was even less excited about using it as an analogy, noting that with moral turpitude, politicians can eventually return to politics, get released from prison and can work.
From that perspective, the perpetual aspect of the pardon ban makes it "qualitatively and quantitatively" unique.
He also said that the regional trends comparisons between Tel Aviv, Jerusalem and others were hard to make since different cases can have such particular circumstances, but that individual judge's ideology and approaches to law and order could certainly influence them differently on the issue.
Regarding the IDF West Bank Courts, Shinar also said nothing was certain, but commented that the courts "afford fewer safeguards" to Palestinians in general as do "military courts everywhere around the world."
Separately, Shinar noted that the pardon ban was a particular anomaly in Israel since Israeli "life sentences are" often "not viewed as final" with so many being commuted.
He contrasted this to the US where actual "life without parole" happens more frequently.
Both Medina and Shinar said that any future government could likely easily overcome the law if needed since it was not entrenched as a Basic Law and no special majority was put in place to prevent it being repealed.
The two academics also questioned the wisdom of a law that could limit the state's options, for example to finish off a future peace deal.
One option that they wrote off was appealing a pardon ban by a lower court to the Supreme Court, noting that appeals must be filed in a short period of time and that usually pardons are issued years after a conviction is already history.
Finally, Medina raised the possibility that judges would not formally bind the president from issuing a pardon, but would recommend to the president not to pardon certain prisoners – which would be consistent with the law's "declarative" character of granting courts a new power, but not binding them to use it.


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Gilad Schalit