In an unusual 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 that the state decided not to prosecute Balad MK Haneen Zoabi and Islamic Movement leader Sheikh Raed Salah for their participation in the May 2010 flotilla.

MK Hanin Zoabi – Photo: REUTERS/Ronen Zvulun

The petitioners hoped that once a fuller version of the state’s reasons for closing the case was put forward that 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 with no significant detailed explanation as to why.

However, there was nothing remarkable in and of itself about the fact that the press release was short on details.

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.

Welcoming ceremony for the Mavi Marmara – Photo: REUTERS/Stringe

Most cases which are closed do not even have a press release, let alone a public explanation in detail of the reasons the case was considered weak by the state.

The fact that the courts do not normally interfere with the state’s decisions to close cases makes the court’s decision all the more surprising.

Further, the court wrote an extremely short two page opinion, citing no legal precedents for its decision, also an unusual step.

That said, putting matters in perspective, even as 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 won.

The court gave general guidelines about what needed to be revealed, but was pointedly vague, giving the state discretion to give a more extensive response, but still one which censors certain issues which the state may not want to be public.

The state may also take the step of producing certain material to the court only, without giving the petitioners a chance to see the material, unless the court affirmatively rules that the material should be produced having already reviewed it privately.

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 which usually sues the state for alleged human rights violations ­ was on the same side as the state attorney for a change, united against a common foe.

In his opening statement Adalah’s 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 state¹s 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 Israel’s ability to operationally handle future flotillas.

The state also said that through the publication of the problems it assessed with prosecuting the current defendants, possible future flotilla participants could learn 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.

View original Jerusalem Post publication at: http://www.jpost.com/NationalNews/Article.aspx?id=283755