There was a showdown at Israel’s High Court of Justice yesterday over the continuing saga of Ulpana that promises to thrust the settlement issue front and center in Israel’s upcoming election. This time, the rule of law prevailed and today the High Court rejected the State’s request to cancel its September 2011 ruling in the case. The High Court orders illegal Ulpana outpost homes demolished by July 1.
This is causing a massive freakout.
News of the court’s decision came as parliamentarians had already gathered to debate a bill to dissolve the 18th Knesset, a move that would send it almost immediately into recess until after the September 4th elections.
Unless its dissolution is delayed, it is unlikely that such legislation could be passed in time to prevent the demolitions of the homes, located on the outskirts of the Beit El settlement.
A special session could be called to vote on the legislation, but such an event would be highly unusual.
Right- and left-wing politicians immediately politicized their comments, turning the Ulpana into an election issue with minutes of the court’s announcement.
“It is clear to anyone that the prime minister decisively failed to defend the settlements. It is a Gordian Knot of his own making. He could fix it with legislation whose passage he has physically prevented,” said MK Uri Ariel (National Union).
Yesh Din’s Legal Adviser, Attorney Michael Sfard:
“The moment the State submitted its unprecedented request, this case became a broader struggle than that of the petitioners alone, and became a struggle to preserve the basic norms of a regime based on the rule of law. The Court delivered its verdict, and now the character and the values upon which Israeli society is founded are put to the test. I sincerely hope that this ruling will be implemented immediately and without any further delay.”
Let’s review what went down yesterday. On Friday, we reported the state filed another petition to the High Court to appeal the demolition of Ulpana. The hearing took place Sunday morning.
Yesh Din spokesperson Hila Aloni explains:
The Court heard the State’s unprecedented request to cancel the Court’s September 2011 ruling following the petition filed by Human Rights Organization Yesh Din on behalf of the Palestinian landowners on whose land the illegal structures are built.
During the hearing, harsh words were exchanged between the State Attorney’s representative, Attorney Osnat Mandel, and Justices Fogelman and Jubran, who were joined on the Bench by Chief Justice Gronis in a special composition of this morning’s hearing alone.
Justice Fogelman: “Your request for an extension is vague. I do not understand the legal basis for this request. Is there a legal precedent for such a request, in this legal system or in others elsewhere?”
State Attorney’s representative Mandel: “I am not able to refer you to such a precedent or legal provision”
Justice Jubran: “In the course of the State’s deliberations, did you consult with the landowners? That’s a problem.”
Justice Fogelman: “The State made a commitment after an Order Nisi in this case; it was not a voluntary commitment. The question is, where does this lead us?….. When the State makes a commitment, we do not even contemplate that the commitment will not be honored.”
Attorney Michael Sfard, Legal Advisor to Yesh Din: “To my great dismay, the State Attorney’s Office is fighting here against the public interest; against the rule of law…this is a total breakdown of the legal system and the rule of law. What will the State Attorney’s Office say to a regular citizen who reneges on a plea bargain? What moral high ground will the State have then? … The State should not have submitted this request; the Attorney General should have resigned, and sacrifice himself to protect the rule of law…The State is behaving like a gambler who raises the stakes each time.”
The political echelon wishes to prevent the State from implementing the evacuation orders and returning the land to its lawful owners.
In recent weeks, members of the political echelon have been trying to postpone the fulfillment of the State’s evacuation commitment to the court, and actually to prevent the return of the land to its lawful owners. If such a decision were made by the State, it would amount to a declaration that the Palestinians who have lived under Israeli rule for more than four decades do not have the right to private property. Such a violation of the Court order would encourage further violations of the law and undermine Israel’s moral code. The fact that ministers are competing with each other over who can best trample on the basic principles of the rule of law is very troubling and could deal a fatal blow to Israel’s future as a society based on the principles of the rule of law.
I was one of those people watching out all day for news reports of the court hearing, of which there were few. You may recall the strange wording of the state’s petition claiming Ulpana must be a “test case” due to “broader social implications” regarding “further construction” and that the state was “pursuing new policies, by which decisions regarding structures built on land whose ownership is contested, will be made on a case-by-case merit.”
Needless to say I was curious what kind of new policies? There was a very bizarre article about the court proceedings yesterday, that was quite frankly, hard to believe. Read it for yourself to understand Sfard’s meaning when he says Israel is acting like “a gambler who raises the stakes each time”.
The state’s request to delay the evacuation of the illegal outpost of Ulpana alleged that a military order gave the settlement of Beit El jurisdiction over lands outside its borders.
Section 2A (a ) of the military order relating to local authorities states that “The Israel Defense Forces commander in an area is allowed to announce that the regulations [meaning regulations governing the management of local authorities], in whole or in part, will also be applied in the event that a local authority decides to impose its authority under the regulations to people who are found ‘adjacent to its defining borders.’ This [IDF] order will determine to which kind of people or over which land the regulations will be applied.”
Say what? Allegedly, the announcement applies to “Israeli citizens eligible to immigrate to Israel under the Law of Return … who lives in the adjacent area.”
In 2009, the Supreme Planning Council, the top planning body in Judea and Samaria, in a procedural announcement, further stated that the chairman of the Supreme Planning Council is allowed to determine “that any area will be seen as part of the local authority if he sees it having a close link to the local authority’s jurisdiction.”
The spokesman for the Coordinator of Government Activities in the Territories refused to say which local authorities in the West Bank other than Beit El had been granted authority outside their jurisdictions under these regulations.
In other words, according to the state, the planning council for the settlements gets to decide its own jurisdiction based on a “close link” to the local authority’s jurisdiction?
The court did not agree. Settlements are now going to be front and center in the upcoming election, where they belong.
Today’s full HCJ ruling here: (Hebrew/pdf)
RE: “To my great dismay, the State Attorney’s Office is fighting here against the public interest; against the rule of law…this is a total breakdown of the legal system and the rule of law. What will the State Attorney’s Office say to a regular citizen who reneges on a plea bargain? What moral high ground will the State have then?” ~ Attorney Michael Sfard, Legal Advisor to Yesh Din
MY CONTRIBUTION – Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States (1928):
On the High Court bypass legislation favoured by a number of ministers in Netanyahu’s government (from Haaretz Hebrew edition):
The bill is, of course, as unlawful, immoral and transparent as the government’s appeal on the grounds of “broader social implications”, with the difference that – if passed into law – the court would be forced to uphold it or to rule it unconstitutional, something that Gronis’ High Court is unlikely to do, especially during election season. As the JP points out, it remains to be seen whether there is enough support for the bill to get it passed in special session during the election recess.
“from Haaretz Hebrew edition”
In my view, Hebrew often serves as a secret language. Perhaps USA’s MSM is treating it as such in this matter.
When i see or hear the words “Israeli High Court”, or Israeli “justice” system, I remember a story I heard years back. It was during the South African Apertheid and Archbishop Tutu was a disident meeting officials from the Zimbabwe Government. One of the attendant, a high official from the Zimbabwe Government, reportedly contradicted Archbishop Tutu and angrily yelled at himsaying, “what i say came from the mouth of your own (South African) minister of justice”
Archibishop Tutu, famously replied (and i am paraphrasing here) perhaps we should ask the commander of your Navy for his input. The official replied , Sir we don’t have a Navy, we are land-locked.
It is interesting that the request of the government was basically without ANY legal argument. Israeli Supreme Court was basically insulted:
State Attorney’s representative Mandel: “I am not able to refer you to such a precedent or legal provision” [Sorry, I am just following idiotic instructions.]