Story Highlights

  • The High Court and state attorney are usurping the executive branch in their war against the Jewish settlement of Migron.

On Thursday, the state is supposed to give the High Court of Justice its response to a petition by Migron residents. The residents, who recently bought some of the disputed plots of land in the outpost, asked the court to allow them to remain in the houses they built on the purchased lands.

But judging by what happened this week at a meeting of the Ministerial Committee on Settlement Affairs, there's no certainty at all as to what the state's response to the court will be. For, according to the credo of Israel's legal establishment, "L'etat c'est moi."

You might recall that the Ministerial Committee on Settlement Affairs, to whom the issue was delegated by the full cabinet, decided unanimously (with even Defense Minister Ehud Barak agreeing ) that if it could be proven that the land was bought legally, the houses built on the purchased lots would not be destroyed, and the families living in them would not be evicted. But only if it could be proven that the land was bought legally.

Then, along came someone from the Justice Ministry and dictated to the ministers on the panel: The residents must be evicted. Only after plans for the purchased lots are reapproved - and even when there is no ill will and no politically-based opposition, this process often takes years - can the residents return. And thus, the legal establishment embitters the lives of people who have already suffered more than their share of troubles in recent years.

The official pretext for the jurists' war on Migron (and all the other settlement outposts ) is that the settlement was built on privately-owned Palestinian land. And the High Court of Justice, instead of sending this claim to be investigated by the police, or by a court that specializes in examining ownership disputes in depth (in contrast to the High Court, which hears no witnesses and examines no documents ), ordered the demolition of the settlement and the eviction of its residents by the end of this month. Now, when even the Civil Administration's legal experts, who are part of the Justice Ministry and are not exactly fans of Migron or any outpost, have pronounced the purchases legal, it is clear that the demand to evict the residents even from the lots that were purchased is political rather than legal.

The jurists see themselves as representatives of the "forces of light," whose job is to block continued settlement expansion. They therefore permit themselves to act as if they, rather than the government, are the country's decision makers. In short, they have been usurping the powers of the executive branch.

Indeed, if the purchases alone were not sufficient, there are more than a few previous cases in which the court has refused to allow the demolition of houses (usually those belonging to Arabs ) that were built on both private and public land. But this rule was not applied to the permanent homes in the outpost of Amona. Those houses were razed to the ground in 2006, and a vicious pogrom was perpetrated against the residents and their supporters that resulted in hundreds of wounded, including some with head injuries and some who were left permanently disabled. Yet the police, in sharp contrast to the scathing criticism they suffered for evicting demonstrators for social justice, earned only mild rebukes from the media for that conduct.

For the government to be able to fulfill its function as the executive branch, it must take back the governmental powers that bureaucrats have seized for themselves on various legal and other pretexts - and not only in the Justice Ministry. The government can and must put an immediate stop to this scandalous state of affairs, in which a representative of the prosecution presents his personal ideological positions on public and political issues to the court; the High Court, which believes that the attorney truly represents the state - that is, the government's position - then rules in his favor.

Just as a private-sector attorney is obligated to represent his client faithfully, lawyers in the state's service must faithfully represent their "client," the government, without distorting its positions. In the current case, that means the decision of the Ministerial Committee on Settlement Affairs. As long as it doesn't actually violate the law, then on any issue related to implementing the executive branch's policies, "the state" means the government, not the lawyer from the Justice Ministry with an agenda of his own.