Daily Israel Report

Oped: It's Not the Court's Fault, It's the Government's

Hebrew Besheva Weekly's legal reporter lays responsibility for the Beit Ulpana ruling squarely on Netanyahu's government
By Yair Shapiro
First Publish: 5/13/2012, 3:11 PM

 Cabinet Meeting
Cabinet Meeting
Flash 90

(translated from the Hebrew press by Arutz Sheva)

Let me make one thing clear: If, G-d forbid, the homes on the Ulpana hill in Beit El are destroyed, the blame will not fall solely on the shoulders of the Supreme Court Justices.

Chief Supreme Court Justice Asher Grunis' hands are clean on this issue, and Prime Minister Netanyahu bears much greater responsibility for the planned destruction than do the pair of hostile judges, Justices Fogelman and Joubran.

The troubles of the Ulpana hill began, as did those of all the Jewish communities in Judea and Samaria, with the frenzied preparations for carrying out the "disengagement" policy in that fateful summer of 2005. When it became clear that the greatest political patron of the "settlers," Ariel Sharon, had turned his back on them, and had really decided to destroy the communities of the Katif Bloc and Northern Shomron, all the other government echelons and those outside it realized that permission to destroy had been granted.

That summer, the civil administration rushed to issue the writ to destroy the homes in Amona, and Peace Now filed suit in the Supreme Court for the same purpose, claiming that the homes there had been built on private Arab land.

It took the judges only four days to issue a first ruling. It took just two more weeks for the government's legal office to announce that the buildings there would indeed be destroyed. The residents demanded and received a schedule for the destruction.

And from that time onwards, the wheel of destruction seems to be self-propelled.

The Civil Administration (the governing body of Judea and Samaria), which has broadened the concept of private land to the point of absurdity, issues writs of destruction. Palestinian Arabs, or Israeli organizations supporting their national struggle, file suit. The government's legal representatives scurry to agree and fix dates for destroying homes, and the judges rule accordingly.

Had there not been a violent struggle in Amona, rest assured that the Kadima governments would have carried out the death penalty on other neighborhoods and communities.

This wheel of destruction could have been arrested by Netanyahu's right-wing government, which includes the Jewish Home (NRP) Party in its ranks. If Minister Hershkowitz (Jewish Home Party) did not fear Netanyahu and Netanyahu did not fear the media, a simple note to the civil government on a change in policy, a call to order of the government's legal office, or merely a government decision, would have caused even Beinisch's hostile court , and certainly Grunis', to throw out the claims.

The suit for destroying the Ulpana hill was filed during the last days of Olmert's government, but the hearings on it continued deep into Netanyahu's term of office.

It is not the Supreme Court Justices who demanded the destruction of Jewish homes on the Ulpana hill, it is the civil government bureaucrats of Prime Minister Olmert's term who issued the writs; the Arabs who filed suit simply wanted to force the state to act on those writs.

The Supreme Court did not hurry to issue a conditional ruling in this case, as the government, they felt, had returned to the right of the map. If in Amona they took only four days to deal with a suit asking for destruction, on the Ulpana hill they began to discuss the topic only eleven months after it was filed, way after Netanyhau, Leiberman, Yishai and Hershkowitz came into power – and after they gave them sufficient time to tell the cvil administration about any change in government policy.

But the policy simply did not change. Four hearings took place on this issue, and in each and every one of them, the governemnt's own legal office, Netanyahus's representatives, said that the land on which the buildings stood is private Palestinian Arab land.

The residents claimed that the land is not stolen, that it had been bought by them in good faith, but the state insisted that from a procedural point of view, these are private lands, and that there is no standing to claims of purchase as long as the Land Registry has not recorded the purchase and as long as no request for approval of the purchase has been filed with them. (Ed. note: Everyone knows that this would be a death knell for the Arab seller.}

Since there is no license to be produced, even if there was a deal, [the state says] it is not to be recognized.

And lest you suppose that the complicated wording of the definition of private land was written by hostile bureaucrats who kept their dark plots secret from the right wing ministers, note that a year ago the state handed the judges its last response, in which it wrote that just two months earlier,  "the Prime Minister held a meeting with the senior ministers, the attorney general and other relevant figures. At that meeting, the foundation of a policy for destroying unauthorized homes on private land was laid as well as that for legalizing the standing of construction on state land. The policy states that unauthorized building on private land is to be destroyed."

At that meeting, Netanyahu's ministers, not Beinisch's justices, decided to act to remove the buildings of Ulpana hill within a year. That is what the state promised the judges, and they then signed the ruling.

As in the story of Migron,  the government seems to have done everything in its power to ensure that the judges would in the end humiliate the state's legal representatives in court. Perhaps the residents of the Ulpana hill should have sent flowers to the legal office for listening to the government's request insisting that they go to court with a strange and unclear  message a week after the date that the ruling set for destroying the homes.

The state asked to renew the hearings because "the Prime Minister and the ministers' forum wish to  debate anew the way to implement the policy upon which they decided, and  also their opinion on the current issue".

But how can one renew a hearing in a legal case when it is already closed? If the judges would have allowed that, they wrote justifiably, they would have destroyed one of the basic principles of justice with their own hands, the principal that case can be closed, the existence of a moment in time where both sides realize that the decision is final.

Now the government ministers keep coming to visit the Ulpana hill, wringing their hands, and debating the idea of passing a specific law to circumvent the Supreme Court ruling.

But it is not the evil decree of the judges that they must remove; it is the evil decree of destruction that they decided on all by themselves.