Analysis: Simply a coincidence?

If the government decides to release Hamas defendants, it does not need the court's consent or cooperation.

By DAN IZENBERG
The Ofer Military Court's rejection of a request by the army prosecutor to keep 18 Hamas legislators in jail until the end of proceedings has highly embarrassed the government, even though the decision may not ultimately have practical repercussions. There has been speculation that the ruling was part of a process by the government to release Palestinian prisoners, including the Hamas legislators arrested shortly after the kidnapping of Gilad Shalit, as part of a package deal for Shalit's release. However, it is extremely unlikely that this is the case, because, for one thing, the courts enjoy a certain amount of autonomy, and - although they are not independent like the civil courts - they are not at the government's beck and call. More important is the fact that, should the government decide to release the Hamas defendants, it does not need the court's consent or cooperation. According to Haifa University law professor Emmanuel Gross, the state can decide to drop charges at any time during the judicial procedures. Gross explained that, until the army files charges against a defendant, it can withdraw the indictment without any legal repercussions. Even once it has filed charges, the army can inform the court that it will not bring witnesses to testify on its behalf. In such a case, the court will acquit the defendants and they will go free. The timings of Tuesday's court decision not to extend the remand, the announced agreement of a national unity government in the Palestinian Authority, and the reports that in that context Hamas had agreed to free Shalit in return for the release of Palestinian prisoners - including the Hamas legislators - seem coincidental. If further proof were necessary, it came in the request by army prosecutors to delay the release of the 18 suspects for 48 hours so that they could have time to appeal the decision. In other words, for the time being, the government apparently still wants the Hamas legislators in jail. The decision was embarrassing to the government, however - not so much because the prisoners were due to be released on bail, but because of the court's reasoning behind the decision. The court questioned the logic of the original arrests themselves by asking why the government was now prosecuting the defendants for being members of a terrorist organization when, only a few months earlier, it had allowed Palestinian residents in east Jerusalem to vote for them in the elections for the Palestine National Council. This argument was an indication that the court might eventually throw out the army's case altogether and acquit the defendants outright. It may not come to that. If the news reports are accurate, Shalit will soon be released in return for Palestinian prisoners. If the exchange takes place soon enough, the Hamas legislators will also be set free and the trial will be halted. On the other hand, Hamas may try to up the ante in return for Shalit if it believes that its legislators will go free even without a prisoner exchange. Even if Hamas does not make additional demands, the government already looks bad. It was obvious that, in arresting the Hamas legislators, the government did not want to convict them so much as it wanted to hold them as bargaining chips for Shalit's release. Tuesday's decision indicates that the military court recognizes what was behind the arrests and might not be prepared to legitimize it by convicting the defendants.