High Court protects disengagement pardons (JERUSALEM POST) By JOANNA PARASZCZUK 02/24/12)
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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
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
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
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
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,”
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-
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. (©
1995-2011, The Jerusalem Post 02/24/12)
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