Inequality before the law

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People who are concerned about maintaining the rule of law in Israel have great reason for worry these days. The sine qua non of a society ruled by law is the principle of equality under the law. In a society governed by the rule of law, individual citizens can trust that the state's law enforcement arms will treat them in the same manner as their fellow citizens.

When instead, a society's law enforcement arms determine how a citizen will be treated on the basis of his or her political convictions, religious orientation or any other extraneous factor, then the rule of law is trampled. The principle of equality before the law is replaced by the tyranny of law enforcement arms.

Disturbingly, both recent events and empirical data indicate strongly that today Israel is not ruled by law. Instead, and to an alarming degree, Israel has become a society ruled by politicized law enforcement bodies that selectively enforce the law based on an individual's political affiliation and ethnic origin.

Last week, a government-appointed committee charged with assessing the phenomenon of massive illegal seizures of state lands in the Negev by Israeli Beduin submitted its recommendations to Housing Minister Zev Boim. The committee, chaired by retired Supreme Court Justice Eliezer Goldberg, recommended "legalizing" 50,000 illegal buildings constructed on state-owned lands and giving legal recognition and state funding to 42 illegal settlements constructed over the past several years by Beduin on state-owned land.

Boim enthusiastically accepted the Goldberg Committee's recommendations and pledged to bring them before the government for a vote before the February 10 elections.

Both the Goldberg Committee's report and Boim's embrace of its findings are stunning. They represent a complete capitulation of state authorities to criminality of unprecedented dimensions. This lawless behavior, in which vast tracts of the Negev have been stolen from the state, has been actively abetted by the state itself – and particularly by its legal bodies.

The Supreme Court, in response to petitions on behalf of the Beduin lawbreakers submitted by far-Left organizations, has repeatedly prohibited the government from taking any action against the land thieves. And the state prosecution has refused consistently to open criminal investigations or file indictments against the Beduin, not only for their illegal seizure of land, but for their massive criminal activity which spans the spectrum from polygamy, to agricultural theft, extortion, racketeering, drug trafficking and treason.

Responding to the Goldberg Committee's report, right-wing members of Knesset called for the government to legalize all the Jewish Israeli settlements in Judea and Samaria that were built without proper authorization over the past decade. Their reasoning is clear and sensible: If the state has decided to ignore the law with relation to the Beduin, then it must also ignore the law as it relates to Jews.

BUT THAT'S the thing of it. The non-enforcement of law towards Israeli Arabs and indeed towards Palestinian Arabs is one side of the coin of the politicization of law enforcement by Israeli legal officials. The other side of the coin is over-enforcement of the law against right-wing Israelis who reside in Judea and Samaria and their political supporters throughout the country.

At Sunday's cabinet meeting, Defense Minister Ehud Barak excoriated the lower courts for what he claimed is unjustified leniency in their treatment of Jewish residents of Judea and Samaria. "We must be more severe in punishments meted out to lawbreakers in Judea and Samaria," he said to his colleagues. He then mapped out how the Defense Ministry, the IDF and the police are working together to clamp down on Jewish residents of the areas.

What apparently got Barak's goat was the decision by Jerusalem Magistrate Court Judge Malka Aviv last week to release Zeev Baroudah from jail. Baroudah was arrested in the wake of the legally questionable and violent expulsion of some 200 Israeli Jews from the Jewish-owned Peace House building in Hebron on December 4.

The police claimed that Baroudah shot two Palestinians without provocation. The police based their contention on a video of his purported crime that was filmed by the pro-Palestinian far-left B'tselem organization. The video, which was shown repeatedly by the local media in prime time news broadcasts, portrayed Baroudah as a cold-blooded, would-be killer. And on the basis of this interpretation of the video, he was remanded to custody for a week.

Yet Aviv noted that the video itself did not show what either the police or B'tselem claimed it showed. Rather, it showed that Baroudah was the victim of an attempted lynch by Palestinians. As she put it in her decision, "From the film I saw, it is clear that the attempt to lynch the suspect [Baroudah] took place while he was lying down helpless on the ground while in the film we see Palestinian residents coming and joining in the attack against him without provocation or justification, simply with the goal of kicking and hitting the suspect."

Aviv accused the police of negligence for not arresting any of the Palestinians filmed attacking Baroudah. Arguing that he shot off his gun in an attempt at self-defense, she released him to his home in Kiryat Arba.

Both the police and the state prosecution immediately tried to force Aviv to cancel her decision. According to a statement she released later that day, both representatives of the State Attorney's office and police commanders paid unsolicited visits to her chambers and demanded that she revise her decision. They argued that her decision contradicted media reports alleging Baroudah's guilt that were published in both Israel and abroad and that as a consequence, she was likely to cause grave damage to Israel's international image if she did not send Baroudah back to jail. In explaining her refusal to back down, Aviv noted that her job is to adjudicate on the basis of facts and not on the basis of media reports.

Later that day, the District Court bowed to massive pressure by the police and the State Attorney office. While agreeing with the Magistrates Court's assertion that Baroudah was the victim of an attempted Palestinian lynch, Judge Orit Efal-Gabbai allowed that he might be a danger to Arabs and so remanded Baroudah to house arrest. Supreme Court Justice Elyakim Rubinstein upheld the District Court's decision, after the State Attorney again appealed the decision not to send him to prison on Sunday.

On the face of it, it seems strange that the police and the State Attorney's office would go to such lengths to remand a suspect to custody in the face of documentary evidence, pointed out by Aviv, showing that there is significant doubt as to both his guilt and the danger he manifests to society. But unfortunately, this is routine practice.

LAST WEEK the right-leaning Organization for Human Rights in Judea and Samaria published a report which demonstrated that Israeli Jewish residents of Judea and Samaria are discriminated against by law enforcement agencies including the police and the state prosecution as a matter of general policy. This is true in comparison to the general population of the country and even more blatant in comparison to the state's treatment of both Palestinian and leftist Israeli lawbreakers in Judea and Samaria.

The report was based entirely on data published by the police and the state prosecution, court records, official state prosecution regulations, and official statements by police commanders and representatives of the State Attorney's office. Among other things, it shows that the number of policemen per Israeli citizen is four times larger in Judea and Samaria than in crime-infested Acre, and five times larger than in equally crime-infested Netanya.

The tendency of police to open criminal investigations against right-wing
Israeli Jewish suspects in Judea and Samaria when no complaint has been filed against them is 80 percent greater than the tendency of police to open such investigations in the rest of the country.

In Judea and Samaria, 38 percent of criminal investigations against right-wing Israeli Jews end in indictments. The national average is 14 percent. On the other hand, the conviction rate for indictments against right-wing Israeli Jews in Judea and Samaria is a mere 54 percent, while the national conviction rate is 97 percent. As the report's authors point out, this finding is particularly devastating as it shows that the first instance where Israeli Jewish suspects are considered innocent until proven guilty is in the courts themselves.

EVERY FRIDAY, leftist activists descend on Judea and Samaria where they conduct violent riots against IDF forces and border guards involved in the construction of the security fence. Yet, of the 400 criminal investigations opened for disturbance of the peace in 2008, only 38, or nine percent, were opened against leftists. And none have led to indictments.

Even more disturbingly, the State Attorney's office operates a special forum, the "Follow-up and Coordination Team," chaired by Deputy State Attorney Shai Nitzan. Team members include representatives of other departments in the state prosecution, the IDF, the Shin Bet and the Civil Administration. Its purpose is to oversee the collection of intelligence against Israeli Jewish residents of the areas, to prepare investigations, open investigations following media reports critical of Israeli residents of the areas, and reopen investigations that were closed.

The team convenes every month in spite of the fact that it was officially disbanded by then attorney general Elyakim Rubinstein in 1998. Rubinstein disbanded the forum following Knesset and government orders declaring the forum, whose existence had been kept secret, a serious abrogation of the principle of equality under the law.

According to the left-leaning Israel Democracy Institute's annual Democracy Index, between 2004 and 2008 the public's trust in the state prosecution has nearly halved descending from 66 percent in 2004 to a mere 35 percent in 2008. Public trust in the Supreme Court has similarly plunged from 79 percent in 2004 to 49 percent in 2008.

In light of all of this, it is disturbing that whenever politicians speak of the necessity of upholding the rule of law in Israel, they state in the same breath that it is vital to uphold the extraordinary powers of the Supreme Court and the state prosecution. Whether these statements – by politicians across the political spectrum – stem from agreement with the legal fraternity's radical political agenda, or fear of its unbridled power and its willingness to undertake politically motivated prosecutions, the fact of the matter is that these statements exacerbate the current, unacceptable situation.

If Israel is to become again an open democracy ruled by law, ahead of the elections, it behooves all citizens to demand that our political leadership rein in our law enforcement arms and require them treat all citizens equally before the law.

Originally published in The Jerusalem Post.

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