Wednesday, March 28, 2012

A bad ruling that must be honored

A bad ruling that must be honored

Uri Heitner

I will begin with the bottom line: The High Court’s ruling on Migron must be honored. That is the meaning of the supremacy of law, which is the cornerstone of any law-based society. Even when the court is wrong, its rulings are binding.

I hope that the government, with the help of Minister Without Portfolio Binyamin Ze’ev (Benny) Begin, will find a suitable solution to the dilemma of Migron. For example, it could relocate the residents of Migron to an interim neighborhood, while promising to establish greater Migron – double in size of the original Migron – on state-owned land in a vital region like the Jordan Valley.

The court’s decision must be implemented, but we are allowed to criticize it and point out its flaws.
The settlement enterprise is a tool used to fulfill policy and ideology. As such, it is not a legal issue, but rather a political one. The body responsible for the implementation of beliefs, views and political and ideological ideas is the political system – the cabinet and the Knesset. Every government settled the land in accordance with its respective policy. Those who felt, and feel, that Israel should shrink back to 1949 borders oppose the establishment of any kind of settlement. This opposition is just as legitimate as supporting settlement in certain locations, or in every location, but it is ideological and political, not legal.

This is also how the Israeli legal system sees the issue. The fact is that every Supreme Court bench, even at the height of the court’s judicial activism under Aharon Barak and Dorit Beinisch, has rejected outright any attempt to strip the government of its authority to decide on the settlement enterprise by deeming it “illegal.”

Migron is an exception. This case was not a political issue of settlement in Judea and Samaria, but rather a legal dispute over ownership of land (the court decided to evacuate Migron on the grounds that it was built on privately owned Palestinian land). Settling on private land is certainly illegal. However, the issue of whether the land is private property is still under legal debate. Just as the court should refrain from meddling in political issues, so it should be honored as the final arbiter in legal questions.

And indeed, the government is honoring the court’s decision. The compromise agreement that Begin brokered on behalf of the Migron residents aimed to implement the High Court of Justice ruling in a fair and peaceful manner. The fact that the establishment of a community on private land is so rare proves that this was never the policy of Israeli governments. This suggests they didn’t know the land was privately owned – the government didn’t know, and certainly the residents, who had the complete support of the government, didn’t know.

The defamatory remarks, calling Migron residents “outlaw invaders,” are baseless. The government acted responsibly when it worked to find an adequate compromise, and succeeded in doing so. The compromise was based on fairness and commitment to carrying out the court’s ruling.

The court didn’t reject the compromise. It rejected the timeframe of the compromise (requiring evacuation by August 2012, rather than by 2015 as the compromise stipulated). But the timeframe was one of the expressions of fairness toward the residents, who are being forced out of their homes. What is the rush? The demand for immediate evacuation is completely unjustified. It is irresponsible. It is aggressive.

The government, by way of Begin, struck a compromise that would facilitate implementing the court’s decision peacefully, in a manner agreed upon by all sides. The responsible Yesha Council (the umbrella body of the Jewish communities of Judea and Samaria) succeeded in convincing the residents of Migron to sign the agreement. Unfortunately, the court played into the hands of extremists and undermined this responsible leadership.