Prime Minister Benjamin Netanyahu on Friday will convene a special committee to discuss potential ways to avert the destruction of five homes in Beit El's Ulpana neighborhood.
The committee will include Netanyahu, newly minted Vice Premier and Minister Without Portfolio Shaul Mofaz, Foreign Minister Avigdor Lieberman, Defense Minister Ehud Barak, Justice Minister Yaakov Neeman, Strategic Affairs Minister Moshe "Bogie" Yaalon," and Minister Benny Begin.
Senior officials from the IDF Civil Administration have been asked to attend the meeting as well.
Netanyahu is said to be mulling two options: ordering an administrative seizure of the land the houses sit on by the IDF, or legislation.
Several senior ministers in the coalition have pushed for legislation that would mandate financial compensation or alternative land grants in lieu of eviction and demolition in cases where a court determines a claim to the land is valid.
However, the Supreme Court has ruled Israeli law does not apply in Judea and Samaria, which has never been annexed and remains under military rule.
Problematically, the Supreme Court has also ruled that administrative actions taken by a government are subject to more comprehensive review by the courts than legislation is.
Likud MK Miri Regev has called for Netanyahu to solve the problem by annexing all state lands in Jewish communities in the region, thereby extending Israeli law to all threatened communities in the region.
Netanyahu's race to find a solution comes on the heels of the Supreme Court's rejection of a government petition asking for an additional 90 days in which to explore the matter.
The threatened homes were built on land purchased by Beit El several years ago. However, the seller turned out not to be the real owner and the latter filed suit to get his land back. The court ruled in his favor and the government agreed, without argument, to destroy the houses.
One year later, the government's legal office came to survey the site and realized that the buildings in question were permanent apartment blocks, built in good faith by people who thought they had legal ownership, and that the legal office should have asked the courts to allow them to try and find a way to solve the ownership problem before the court issued a ruling.
The issue has also dredged up an ongoing controversy about the Supreme Court's exercise of judicial review to nullify laws – and in this case, government policies – it deems “unconstitutional” in the absence of a formal Israeli constitution.
Sixteen years ago the Israeli Supreme Court decided in the Mizrahi case that Israel's "Basic Laws" amount to Israel's formal Constitution and it enjoys the power of judicial review.
However, in the absence of a clear separation of powers between branches of government in Israel's Basic Laws – including those of the court itself – the extent of that power, and whether it is exercised prudently, remains deeply connected to the personality of the sitting justices.
The issue has been rendered more accute by the fact that the Supreme Court's ruling - applied in areas deemed 'disputed territories' by Israel - does not merely deal with simple land-ownership issues, but crosses the line into sovereign questions of foreign relations and national security as well.
Critics say that judicial review – as it has been wielded to date – has raised disturbing and difficult questions about the sovereign will of Israel’s voters when government policies concerning diplomatic, political, and security issues are overridden.
As a result, either path – legislation or a seizure order – could place Netanyahu's newly forged 94-seat supermajority on a collision course with the Supreme Court.