One law for terrorists, another for settlers

The author issues a stinging indictment of both the High Court and the Government. The residents of the homes should have been added as parties and the merits of the case should have been argued. The Court merely followed the Government’s lead when it asked for a demolition order. But the government may not have had the right to do so. If the proper law was applied the true owners would only be entitled to compensation and the houses would never be ordered demolished. Ted Belman

Netanyahu, Mofaz to oppose bill that would limit Palestinian claims to land

em>A new High Court precedent gives terrorists a say before their homes are demolished. Settlers don’t get that courtesy.
By Uri Shtruzman (retired judge), HAARETZ

The High Court of Justice’s ruling on demolishing the dwellings in the settlement of Givat Haulpana is shocking. If I had issued rulings like that when I served on the bench, they’d have been overturned on appeal. If this sort of ruling were handed down about the home of somebody who wasn’t a settler, the Association for Civil Rights in Israel would have bent over backwards to get it tossed out.

The ruling, all of five and a half lines long, was issued following the government’s announcement that “[illegally constructed] structures on privately-owned land shall be removed within one year.”

The High Court knew that those buildings were tenanted because from the outset, Judge Hanan Melcer ordered the authorities to list the units that were unoccupied and also to note, to the best of their knowledge, “the number of occupants or squatters in any of the occupied units, and their names.”

Judge Melcer asked for this information so that the residents could be added as respondents to the High Court petition submitted by the three Arabs who claim they own the land. But a glance at the list of respondents shows it wasn’t done: no names of dwellers were added. The only respondents named are the local council and the yeshiva.

A ruling by the Supreme Court sets a binding precedent for all other courts. Its judges’ actions set the standard for the whole legal system. Therefore, it is entirely plausible that tomorrow, John Doe could sue for the demolition of John Q. Public’s home, which Doe maintains was built illegally. The mayor would be the only one summoned to the hearing, and he would confirm the truth of Doe’s claim. The judge, relying on the mayor’s testimony, would issue a demolition order.

Had John Q. Public been summoned to the hearing, he would have produced the permit that he had obtained, which had gone missing somewhere in the municipality offices; or he could mount some other defense. The mayor would then offer the excuse that he had not known about the permit. But the judge could say in his own defense that this was how the Supreme Court had acted toward the people of Givat Haulpana and Migron.

He would then add, self-righteously: John Q. Public should have asked to be named as a litigant in John Doe’s case.

While the Supreme Court does not treat human beings this way, this is how it treats settlers. When a motion was submitted to the High Court of Justice demanding that the city of Jerusalem raze buildings in East Jerusalem, the court ordered the petitioners to add all the owners of the buildings at issue, and the occupants, as litigants in the case. The reason: “They are liable to suffer material harm if the coiurt issues the order.” Further: “The practice is that we do not demolish the home of any person, even the home of a terrorist who committed murder, without giving him the opportunity to state his case.”

So not only did the High Court of Justice notify the public in East Jerusalem of the petition’s existence: it ordered the owners of the buildings and the tenants be added to the petition.

In the ruling on Migron, the High Court of Justice settled for information that the residents of Migron had been informed about the case. It did not demand that they be added as litigants.

In its ruling on Givat Haulpana, the High Court settled for the state’s notice without considering the possible, very material claims the homebuyers could have made. They could have argued that the state had no authority to demolish privately-owned housing. Or, that they bought the homes in good faith, since under law it is their good faith, not the good faith of the one who stole the land (be it the contractor, the state or the movement that sent them there) that overrides in a dispute between them and the landowners.

Or, they could claim that according to the prevailing law (which precedes the State of Israel, as opposed to modern Israeli law), the property’s status (that is, whether it is registered in the Land Registry Books) is irrelevant, since the following applies to all types of land:

“If the value of the buildings and trees standing upon the land exceeds the value of the land itself, then the plaintiff shall receive compensation in the amount of the land’s value, and the land shall remain in the possession of the owner of the buildings and the trees.”

The homeowners might also cite April 2010 ruling of the European Court of Human Rights. Unlike its previous rulings, this one states that the residents of northern (Turkish) Cyprus, who were forced off their property when they fled southward to Greek Cyprus during the Turkish invasion in 1974, may seek remedy by demanding compensation from the special committee established in northern Cyprus, which is run fairly.

I am certain that the proceedings in this case compromised both human dignity and the right of possession of the homeowners in Givat Haulpana and Migron. The homeowners should demand that all relevant courts recognize their right of possession under that old local law. The state, which illegally assumed the authority to allow the demolition of their homes, should admit to the High Court of Justice that it was wrong to agree to the destruction of property that it does not own. It should also pay for the work of the homeowners’ attorneys. (This work should not be done by the state’s legal advisers, who were negligent in not having told the High Court that it was obligated to add the homeowners and residents to the petition.) The Association for Civil Rights in Israel should stand up for the homeowners’ right to have their day in court before the verdict is handed down.

The justices of the High Court, who wish to do justly, would do well to take the initiative and rethink their ruling, and without waiting for the homeowners to ask them, should use their authority to void their own ruling and add the homeowners to the petition, as they did with the demolition orders in East Jerusalem. There must not be one legal system for settlers, and another, better one for terrorists.

The writer is a retired judge.