Court demands A-G explain MK Zoabi decision

High Court orders Weinstein to give explanation why he did not prosecute Balad MK Zoabi for participation in 2010 flotilla.

Mavi Marmara welcome back 260 (photo credit: REUTERS/Stringer)
Mavi Marmara welcome back 260
(photo credit: REUTERS/Stringer)
In an atypical rebuke, the High Court of Justice on Tuesday ordered Attorney-General Yehuda Weinstein to present the court with a more extensive explanation of the reasons the state did not prosecute Balad MK Haneen Zoabi and Islamic Movement leader Sheikh Raed Salah, for their participation in the May 2010 Mavi Marmara flotilla.
The decision was made following Monday’s hearing on a petition filed by MK Michael Ben-Ari (National Union), activist Itamar Ben-Gvir and the Movement for Our Land of Israel.
The petition had demanded a full accounting of the state’s decision to close the case against Zoabi and Salah, as a first step toward compelling the state to file the case.
The petitioners had that hoped that once a more complete version of the state’s reasons was put forward, they would be able to point out defects in the decision. Previously, the state had only released a brief press release regarding the decision to close the case.
In the separation of powers scheme between the executive and judicial branches, the court mostly defers to the state prosecutor when it comes to closing cases, reasoning that as the official body which litigates criminal cases for the state, its professional judgment about how good a case it has should not be second-guessed. Most cases that are closed do not even merit a press release, let alone a public explanation.
The fact that the courts do not normally interfere with the state’s decisions to close cases makes its ruling all the more surprising. Moreover, the court wrote an extremely short twopage opinion, citing no legal precedents for its decision.
Even though the petitioners have won an initial victory in that the state must produce a more detailed explanation within 30 days, their battle is far from over.
The court gave general guidelines about what needed to be revealed, but was pointedly vague, giving the state discretion to provide a more extensive response, but still one which censors certain issues that the state may not want to be public.
The state may also take the step of producing certain material for the court only, without giving the petitioners a chance to see it – unless the court rules otherwise.
Finally, it is still unlikely, although not impossible, that the court would ultimately second- guess the state’s decision to close the case.
Most likely, this was the only battle the petitioners will win, and the court will defer to the state’s judgment on closing the case.
The extraordinary nature of the case was immediately apparent even on Monday in that Adalah – a human rights organization that usually sues the state for alleged human rights violations – was on the same side as the state attorney, united against a common foe.
In his opening statement, Adalah attorney Hassan Jabareen even remarked how lucky he was to be on the same side as the state attorney during the hearing.
At Monday’s hearing, the petitioners had argued that there were strong court precedents for revealing the state’s considerations and evidence in cases of public interest.
The petitioners had also noted court precedents in which the mere presence of certain defendants in an area where a public disturbance was occurring was held to be enough to convict them.
The state had put forth additional reasons objecting to the requested disclosure. It noted that revealing the internal information could include exposure of operational details as to how Israel handled the flotilla, thus undermining its capability of handling future flotillas.
The state also said that publishing the problems it found with prosecuting the current defendants might teach future flotilla participants about ways to avoid prosecution.
Jabareen, agreeing with the state’s conclusion to withhold evidence regarding its decision to close the case, had said that the public knew well why the case was closed and did not need further information.
According to Jabareen, the case was closed because Zoabi and Salah had nothing to do with any of the unlawful attacks on IDF soldiers.