The Honorable Justice Y. Zamir further discussed the conceptual basis of this argument, which is the violation of equality (the Zakin case, at p. 308, paragraph 18 of his judgment):
A claim of selective enforcement is a claim of a violation of equality. Every administrative authority must act with equality. The same is true of a prosecutor in a criminal trial... Hence, as is customary with regard to a claim of infringement of equality, if there is prima facie evidence for the claim of selective enforcement, the presumption of legality of the administrative decision is undermined. As a result, the burden shifts to the administrative authority to show that the enforcement, although it appears to be selective, is in practice based solely on substantive considerations, which have sufficient weight to base the authority's decision. If the authority does not meet this burden, the court may invalidate the decision on the grounds of extraneous consideration or because of some other defect discovered in it, or give another remedy against the infringement of equality..."
In the Borowitz case, an argument of discrimination was made in the prosecution, and the court discussed the question of whether it is sufficient to prove discrimination for which there are no substantive considerations to justify it, i.e., it is sufficient to prove negligence on the part of the prosecution or whether it is necessary, for the purpose of protection from justice on this ground, to show that the claim acted for improper motives, and in the words of the court (p. 813, paragraph 26): "Is a house liable – The sentence to order the cancellation of an indictment due to discrimination in the prosecution, even if the prosecution's decision to file the indictment‑did not stem from an improper motive, but was made in good faith, albeit due to an error in the exercise of discretion or sheer negligence?".
It was held that, as a rule, it would be difficult to prove selective enforcement, without considering the considerations of the prosecution, as the court held in the Borowitz case (at p. 813, paragraph 26), that: