Lawyer critiques the demolition order

Letter by Menachem Gorman, Attorney

The behavior of Israel’s Attorney General and the Israeli government regarding ownership of the Ulpana Hill land (as well as Migron and other communities) is an outrage which best befits the most vile and despised regimes.

The High Court ruled that the state must demolish the houses at the Ulpana Hill neighborhood in Beit El by July 1, 2012 (by the way, adding an Arab judge to a panel that deals with a political issue such as the Judea and Samaria settlements requires a great deal of malice and hatred).

The High Court had not established that the land belongs to a particular Arab. The High Court could not determine this because the identity of the owner and the matter of the ownership of that land is still in litigation in District Court. The High Court did not hear witnesses nor conduct a trial to determine the facts. The High Court of Justice does not have the authority to determine facts.

In the houses that are slated for demolition live hundreds of men, women and children. The houses belong to them. They purchased the land and invested their own and their parents’ savings in those homes. They received state approval to build those homes. They took out mortgages – which they will have to continue to pay the banks even after the destruction of their homes.

Did the High Court of Justice not consider it a matter of elementary justice to add those homeowners and residents as a party to the court proceedings? Did those homeowners and residents not have the fundamental, human, legal right to present their position before the High Court against the enemies of the state—Arabs and leftists—who did receive from the court the status of a party in a dispute over land and homes they did not possess?

The High Court issued its decision “following the state announcement (that it would destroy the houses which were built on ‘private land’), a ruling was given regarding the petition (the first one, in 2011).

This is what was stated in the High Court ruling: “We have noted the state’s announcement dated May 1, 2011, and the message delivered today to the court that following a resolution adopted at a meeting chaired by the Prime Minister and other government ministers, as well as the Attorney General, that buildings on private land will be removed, as opposed to construction on state land; it has been decided that the construction … be removed within one year of submission of that notification …”

Who decided that the land on which those homes were built was “private land”? The High Court’s response:

“Arguments raised by respondent No. 6, the Beit El Kiryat HaYeshiva, regarding the purchase of land by the ‘Amanah’ settlement movement, were examined by the state and were rejected, as it was presented to the court during deliberations of the petition, because the structures were built on land that was registered by the land registry records (Tabo). There is no valid purchase claim as long as the registry records have not been changed. It was further reported by the state that there was no record of a request for a transaction license for the alleged purchase, and in the absence of such license, the transaction – whatever its nature – is not valid (state message dated Jan. 1, 2010).”

In other words, the High Court accepts, without any discussion or examination of the facts, the state’s position on the ownership of the disputed land.

And why did the state reject the claim that the land was acquired by the people of Beit El? The state’s response, as accepted by the court: the land ownership registration is not complete!

So what? Tens of thousands of homes in the country are in a state of “incomplete registry” – is the state going to destroy those structures, too? Will any person off the street who lays a claim of ownership against any of these homes receive a court order to demolish them?

If the registration has not yet been altered – does that prove that no transaction was in place? Does the High Court even understand how long it takes to complete land registration in Judea and Samaria? Does the High Court not know that political elements within the Defense Ministry and the Civil Administration of Judea and Samaria (staffed by a considerable number of Arabs) deliberately delay registration procedures?
Does the State message that it rejected the Beit El residents’ claim constitute a legal argument in the first place? Is this a logical argument at all? Is the Attorney General’s office the body authorized to determine land ownership in the event of a dispute? Is that not within the purview of the Magistrate Court?

The second reason given by the High Court is no less shocking in its malice than the first. The rationale was that: “No permit was requested for the transaction” and therefore the purchase is not valid.

In other words, it is quite possible that a transaction was in place and the land was paid for; the owners, whoever they are, have received full value for their land and agreed to transfer ownership to the Beit El people. But a terrible thing happened: they did not request a transaction license, and so the homes must be demolished.

What normal person would dare reach such a twisted conclusion?

Wouldn’t the most elementary sense of justice demand that the court order the homeowners and residents to fix the administrative defect and apply for a permit? And, naturally, also order the state to issue the permit without delay?

Is it beneath the dignity of the court to recognize its mistake and change its decision? Is the principle of “the finality of judgment” so important as to justify the destruction of homes, property, and hundreds of lives? Is there even an issue of “finality” when it is obvious that questions as basic as the owner’s identity are yet to be deliberated substantially?

Only a heartless person, bereft of morality, lacking any understanding of the concept of the rule of law, and driven by an intolerable urge for destruction can determine that the Ulpana Hill homes (and Migron and others) must be destroyed. This is an unacceptable outrage in the Jewish state which must show a minimal degree of morality, justice and respect for the law.

The Knesset is well within its right, indeed, it is obliged to abolish this evil decision soon, before an inestimable damage be done to Jewish settlements, and to the status of the Knesset and the government.

Menahem Gurman, Esq is a New York City based attorney, a graduate of the Hebrew University and New York University.