The High Court of Justice demonstrated something approaching chivalry toward former MK Naomi Blumenthal last week when, on the very day of the hearing and without any of the usual delays, it rejected a petition against President Shimon Peres' commutation of her sentence.
The conversion of Blumenthal's eight-month custodial sentence to six months of community service is not a pardon, which expunges the conviction. Thus Blumenthal's conviction for giving "election bribes," obstruction of justice and suborning witnesses, and its accompanying badge of moral turpitude, still stand. The suspended sentence and fine imposed by the court were also not affected by the presidential clemency.
The president's decision to reduce Blumenthal's sentence was based on circumstances that were not part of the court's considerations in her sentencing - the death of her husband following a serious illness, the "deterioration in her condition" and the regret she expressed in accepting her conviction.
Given the circumstances, it is difficult to find fault with the president's decision. Yet it is equally difficult to find fault with the Movement for Quality Government's decision to petition against this clemency. The essence of the petition is that the decision gave too much weight to the opinions of senior public figures, resulting in preferential treatment of Blumenthal in comparison with convicted criminals who lack connections in "high places."
In light of the campaign by public figures on Blumenthal's behalf, the petition against the commutation was justified. The appearance of a double standard in clemency decisions, which are made behind closed doors, can undermine the principle of equality before the law. The danger posed by giving preferential treatment to a public figure with connections is both real and present.
Justice Miriam Naor, who wrote the High Court ruling, had legal justification for rejecting the petitioner's claims of discrimination against other convicted offenders on the grounds that it did not present similar cases in which criminals were not granted clemency. However, it should be clear that it is impossible to present similar cases when the reasons for the commutation are not made public, and when the standards for granting clemency are similarly not made public, and apparently do not exist.
In the Blumenthal case, the president accepted the recommendation of Justice Minister Daniel Friedmann. The minister's recommendation contradicted the position of both the prosecution and his own ministry's pardons department. The minister of justice is authorized to formulate an opinion different from that of ministry officials, even when the latter's recommendations are well grounded in precedent. However, the fact that the reasons underlying their recommendations were not disclosed in the judgment detracts from the public's ability to have a complete picture of the relevant considerations.
Beyond the specific case of Blumenthal, it would appear that the entire institution of clemency is due for reexamination. The argument that the justice minister's involvement in clemency decisions is inappropriate due to the political nature of his position was raised many years ago. The minister's involvement exists as an unwritten "constitutional tradition" to provide parliamentary authority for the president's decision, but it is a meaningless fiction.
The president's authority to pardon and commute has been ruled "extraordinary" by the High Court, although it is exercised quite often. The standards for exercising it have not been reviewed for many years, if ever. The issues of neutralizing the political component of pardons, transferring the pardons department from the Justice Ministry to the President's Residence, and the need to draft standards for exercising this authority and to publicize the reasons for granting clemency, must all be reexamined. The same is true for the application of the Freedom of Information Law, enacted 10 years ago, which obliges the president to disclose information to the public.
The president should consider appointing a public panel of experts that would examine the experience accumulated over the years and propose standards for exercising an authority that is understandably of great public sensitivity.
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