Supreme Court justices indicated on Tuesday they want to stop invoking the controversial Absentee Property Law in East Jerusalem, which has been used often to transfer property from the Palestinian owners into the hands of Israeli Jews.
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However, the judges said they were worried about opening a "Pandora's box" of legal problems.
During a hearing before an expanded panel of seven Supreme Court justices, the judges and state prosecutors pressed attorneys for Palestinians whose property had been confiscated to reach a settlement for return of their property or compensation in return for dropping the appeal, which would spare the Supreme Court having to decide if the law applies in East Jerusalem.
Under that law, any person who lived in a hostile country, or in the area of “the Land of Israel” that was not under the State of Israel’s control, and owned property within the state, is considered an absentee owner and his property can be transferred to the state’s Custodian of Absentee Property. The primary purpose of this law was to enable use of lands belonging to Arabs who fled during the War of Independence.
After the Six-Day War, which saw the extension of Jerusalem's municipal boundaries into the West Bank, Palestinians with assets in Jerusalem suddenly found themselves considered “absentee” owners, even though they hadn’t gone anywhere. Sometimes they were living only a few hundred meters away, but outside the Jerusalem city limits and officially in the West Bank, and found their property confiscated only because Israel drew the new municipal border between them and their property, making them no longer residents of Jerusalem.
"If there is a practical solution, the practical solution is preferable," said court President Asher Grunis. But Avigdor Feldman, the lawyer representing two of the Arab families whose property was confiscated, objected to the return of the properties without a decision on the principle of the matter. "There is no reason to release the property except for the desire to dismiss this appeal and to prevent the discussion of the question of the absenteeism,” said Feldman.
In the four cases being heard, the appeal claims the application of the Absentee Property Law inside East Jerusalem contradicts the purpose of the original law: Allowing the use of the property left behind by refugees who fled in the War of Independence. It is no longer possible to classify the territories, which have been controlled by Israel for 45 years, as "enemy territory" any longer, attorneys for the Palestinians argued. Feldman that by the current application of the law, West Bank settlers who leave property behind in Israel are absentees whose property could be - but isn’t - confiscated by the state.
‘Fabric of Jerusalem’s neighborhoods’
Feldman also criticized Attorney General Yehuda Weinstein, whose office recently formulated regulations to ensure that properties seized in East Jerusalem under the Absentee Property Law is not returned to Palestinians with a security record or connection to hostile elements. "What does negative security material have to do with property rights?" asked Feldman, adding that this raises suspicions the law is being abused.
Moreover, such properties would only be returned to Palestinian owners after taking into account “the influence releasing the property would have, given its location in the fabric of Jerusalem’s neighborhoods,” the proposed guidelines state. This would make it difficult for a Palestinian to get back his property if Jews had moved into the adjacent areas.
But representatives of the State Prosecutor's Office at the hearing, attorneys Moshe Golan and Hava Zandberg, tried to avoid discussing the application of the law in East Jerusalem. "I am still optimistic about the possibility of reaching a practical solution. I have a number of possibilities and will be happy to present them," said Zandberg.
Two weeks ago the state told the court that Weinstein had reversed his previous opinion, and now held that there were major legal obstacles - including those posed by international law - to implementing the Absentee Property Law in East Jerusalem. Nonetheless, Weinstein favored applying the law in East Jerusalem in measured fashion. The State Prosecutor's Office said the Custodian for Absentee Property should not use his authority under the law to seize such property "except under special circumstances and subject to the prior approval of the attorney general."
The justices hinted they are considering ruling that the Absentee Property Law does not apply in East Jerusalem, but are worried about the consequences of such a decision. "Assuming the court interprets the law so that it does not apply, then the question as to when the interpretation applies arises. Is it from 1967?" Grunis wondered. Feldman answered that such a decision would be one that does justice.
Grunis then said that if every case since 1967 could be challenged, such a ruling would have far-reaching consequences. Justice Elyakim Rubinstein called it a "Pandora's box" that could cause legal and practical chaos.
Zandberg argued that even if a decision was made not to apply the law in East Jerusalem, it could not be retroactive and should only apply to future cases.