Mainstream Israeli jurist: Most Israeli judges helping to create ‘judicial apartheid’ — UPDATED
- November 19 2009 — Jonathan Cook also comments on the ruling.
After Yediot’s legal affairs editor, Judge (ret.) Boaz Okon, dared use the “A” word last week, another mainstream Israeli jurist, Yuval Elbashan, follows suit. Elbashan is a well known name in the mainstream Israeli debate, usually identified with social justice issues. In a Maariv op-ed this morning (November 15, 2009) he praises a rare ruling by an Israeli judge who refused to convict a young Palestinian-Israel rock thrower Based on an argument of “selective law-enforcement” — the fact that Jewish teenagers who commited the same crimes were not convicted. He adds, however, that “until now, however, most of the judges chose to ignore the big picture and practically helped creating judicial apartheid between Jews and Arabs.”
Restoring professional honor
When Justice Shadmi stated that “sectarian discrimination” and “selective law-enforcement” is practiced here, he made the court feel like a hall of justice again. So far, most of the judges chose to ignore the big picture and practically helped creating judicial apartheid between Jews and Arabs.
Op-ed, Yuval Elbashan, Maariv, November 15 2009
Routinely, Israeli courts do not give us too many reasons to be proud of them. The overburdened courts — which often entail intolerable delays of justice, combined with the ill-treatment of the misrepresented poor, and the mediocrity that spread in the system — often leave visitors feeling they are sitting in a Turkish Bazaar, where only the fittest survive, and not in the great halls of justice. Very rarely does a miracle take place in a courtroom that leaves behind a feeling that justice was served, which makes anyone involved in the world of justice feel proud of their profession. This is what happened to me last week, when I read the bold sentence that was handed down by Justice Yuval Shadmi of the Nazareth District Court.
Justice Shadmi rejected the stand of the state, which asked that an Arab minor who threw rocks at a police car be sentenced to time in prison. The parties did not argue about the facts of the case. The minor pelted police vehicles with rocks, protesting the fact that the IDF launched Operation Cast Lead in Gaza. No one disputed the minor’s misdemeanor or the fact that it was perpetrated against an ideological background when he wished to stage a protest against what he called “the killing of children in Gaza.” The prosecution asked the court to issue a guilty sentence and send him to prison. His attorney argued that, in recent years, the Israeli law-enforcement authorities have been employing a “selective enforcement” policy, a discriminating policy that throws the book at Arab minors while showing Jewish minors excessive mercy even when they perpetrate the same crimes, attacking security personnel for ideological reasons.
The state shamelessly argued (as if the lawyers who represented it have never heard that equality before the law is one of the bedrocks of our legal system) that the broad picture should be ignored and that each case should be judged separately because judgment should be “individual” by nature.
Admitting that the state’s argument is tempting for judges because it offers an easy solution, Justice Shadmi stated: “The more I pondered over this, the more I realized that if I accepted that, I would be lying to myself.” He established then that indeed the State of Israel takes different kinds of action when addressing ideologically-based misdemeanors by juveniles. When the accused are Jews — for example, when dealing with national-religious youths who attacked police officers during the disengagement or when buildings in the settlement of Amona were demolished, or when minors of the ultra-Orthodox community attacked policemen during a demonstration against violations of the Sabbath, as they saw it — the cases against them were put on ice or otherwise closed. At the same time, when the accused is an Arab minor who did similar things based on similarly ideological motivations, stay of proceedings, frozen charge sheets, and pardons are tossed out the window and the prosecution shamelessly demands that the court throw the book at them.
Shadmi established that “We should no longer accept the perpetuation of such sectarian discrimination, where the various courts’ verdicts join together to form an ongoing chain of selective law-enforcement.” Therefore, he stated, “If the state believes that ‘ideological’ crimes justify lenient law-enforcement against minors, this should be the practice vis-à-vis all minors, regardless of their national or religious affiliation.”
This was not the first time that Arab defendants raised such claims. Until now, however, most of the judges chose to ignore the big picture and practically helped creating judicial apartheid between Jews and Arabs. The bold verdict of Justice Shadmi no longer allows them and other parties enjoy the privilege of turning a blind eye to such intolerable discrimination which, shamefully enough, was kept alive in institutions that should be the first to defend the persecuted, downtrodden, and suffering.