High Court protects disengagement pardons

Eight justices rule that law enacted for a proper purpose – to heal rifts in Israeli society.

opponents of disengagement shout at police_390 (photo credit: Nir Elias/Reuters)
opponents of disengagement shout at police_390
(photo credit: Nir Elias/Reuters)
The High Court of Justice on Thursday rejected a petition to repeal the “Disengagement Pardons Law” on the grounds that it was discriminatory and violates the principle of equality before the law.
According to the law, which was passed in January 2010, those arrested and charged during anti-disengagement protests in 2005 would be pardoned for all but the most severe violent crimes.
The law applies to all those without prior criminal records, but does not apply to those convicted in a military court.
A majority of eight justices, led by Supreme Court President Dorit Beinisch, ruled in favor of rejecting the petition. Justice Salim Joubran took the minority view.
Thirty people filed the petition immediately after the law passed in 2010, among them Dr. Eyal Nir, a left-wing activist who teaches chemistry at Ben-Gurion University. The petitioners – some of whom had been detained during protests against the eviction of Arabs from homes in the Sheikh Jarrah neighborhood of east Jerusalem – said the law discriminated against those arrested on similar offenses in different protests.
The majority opinion held that the law does violate the right to equality before the law, but specifically in relation to a particular group and particular offenses regarding opposition to the disengagement.
The majority ruling found that while the law violates the principle of equality, it nonetheless has a number of unique aspects that minimize the damage caused.
The court said that in the light of data the state presented, the actual outcome of the law is minimal and largely declarative.
The data showed that when the law was passed, most of the legal proceedings against disengagement opponents had been exhausted and there were no more indictments planned.
According to data filed to the court by the State attorney’s office, until June 2011, the law was applicable to around 1,500 people, of which 150 had applied to have their criminal charges deleted.
The court also held that the law passed the test of the limitation clause under the Basic Laws. Though Israel does not have a formal constitution, its Basic Laws are constitutional in nature, and the High Court examined whether the law violated the so-called “limitations clause,” which allows the Human Dignity and Liberty Basic Law to be infringed by new laws “befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than required.”
The majority ruling found the the law had followed an event unique in both scope and magnitude – the disengagement – which was a turning point both ideologically, politically and socially for a large group of Israelis.
The purpose of the law, the court found, was to deal with this event, to heal the rifts created among different parts of Israeli society after the disengagement and to promote reconciliation.
The law allowed opponents of the disengagement, who were mostly law-abiding citizens, to leave behind this chapter of their past.
At the end of the detailed ruling, spanning 76 pages, Beinisch said that she “could only congratulate the Knesset’s efforts to reduce and heal the rifts that divide the Israeli public.”
“Mutual responsibility, and citizens’ ability to feel a sense of shared destiny even in times of acute ideological disputes, are at the very heart of the social contract,” said Beinisch.
Justice Joubran, who took the minority view, wrote that “all men are equal before the law,” including criminal proceedings, which pit the state’s power against that of the individual.
Joubran said that there had been no dispute with Beinisch regarding the social and political implication of the disengagement plan, noting that there was “no doubt that for many the disengagement caused a severe crisis of confidence in their relationship with the state.”
However, Joubran found that the law violated the principle of equality because it distinguished between a group of defendants who committed offenses against the disengagement and those who commit similar crimes for different reasons but under similar circumstances.
“There is no justification to favor the healing of the rift that the disengagement plan created in the public by pardoning crimes relating to that, over healing the rift caused between Arab and Jewish communities caused because of the events of October 2000,” Joubran said, relating to the October 2000 Arab riots in the North, which ended in the deaths of 13 Arabs and one Jew.
Attorney Iftah Cohen, who filed the petition alongside attorney Omer Shatz, said he was disappointed in the ruling.
“Israeli democrats and humanists will not find salvation in the Supreme Court, and with the direction they see this country is taking, in the near future they will ask for refugee status abroad, where they hope they will meet people like Justice Salim Joubran,” Cohen said.
Orit Struck of the Human Rights Group of Judea and Samaria welcomed the verdict as an important victory.
“The High Court justices gained a little respect when they rejected the petition,” said attorney Nachi Eyal, who directs the Legal Forum for the land of Israel.
He added that he found Justice Joubran’s opinion “puzzling” and said it “raised difficult questions as to why he alone of all the justices voted in favor of annulling the law.”
The Disengagement Pardons Law is not the first time the government has declared an amnesty of this kind: both in 1949, after the War of Independence, and in 1967, after the the Six Day War, the Knesset passed general pardon laws that granted clemency to most non-dangerous criminals.
Knesset speaker Reuven Rivlin said that the law helped to close the rift in Israeli society created by disengagement and corrected the injustice done to the evacuees.
“I was clear in advance that the law would stand the test of judicial scrutiny,” he added.
Tovah Lazaroff contributed to this report.