A Jerusalem District Court judge on Tuesday rejected a state request to submit a confidential deposition that would not be revealed to the petitioners, ordering it instead to submit a full response to the petition within a month.
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"I want to see if the response is also secret," Judge Moshe Sobel said. "That's something I've never seen before."
The judge was hearing a petition by residents of the East Jerusalem village of Beit Safafa that the state be ordered to give final approval to a building plan for Palestinians in the Givat Hamatos area. A similar plan for Jewish building has been approved.
In response to the petition, which was submitted six weeks ago, the state argued that the plan could not be approved due to a secret decision by senior policymakers. A state request to submit a confidential deposition that would not be revealed by the petitioners was rejected by the judge.
The Beit Safafa community council and a local building company submitted an administrative appeal against the state and the Jerusalem municipality about half-a-year ago, claiming that a plan to build hundreds of housing units for residents of the village had been frozen, while a building plan for Jewish contractors had been approved.
Both plans went through the same administrative process together and both were approved three years ago. However, only the plan for Jewish construction was published and advanced.
"There is strong reason to believe that the failure to move ahead with both plans was not due to relevant or professional reasons but based on political considerations," said Mohand Jabara, the attorney for the petitioners.
The state requested several deferrals until, the Jerusalem District Prosecutor's office submitted its response six weeks ago. The brief, one-page response made no reference to Jabara's claim of discrimination on the part of the planning authority.
All it said was that the issue had been brought before the country's political leadership, which had ordered that the Palestinian building plan be frozen for reasons that were classified.
The prosecution requested permission to submit a classified deposition and that the hearing be held behind closed doors. It also asked for the deposition be regarded as "Top Secret" and lodged in the court's safe.
The judge refused those requests.
"We have a problem representing the state's position," the prosecutor protested. To which the judge responded: "The accused in criminal cases are sometimes acquitted due to such problems."
"The responsible body approved a building plan. The court has not received an explanation why the petition should be rejected. If it's so important to you to retain the secrecy, then approve the plan," he said.
The judge repeatedly asked the prosecutor if, in his view there was a "presumption of correctness" in the position of the state – i.e. whether the basic assumption was that the state was acting lawfully.
"The politicians ordered that a plan that was approved by the appropriate professional body should not be implemented," the judge said. "Does that meet the definition of presumption of correctness?"
The prosecutor had difficulty responding.
The plan for the construction of Jewish housing on Givat Hamatos is regarded as being particularly sensitive and many countries are following its progress. Its completion will surround Beit Safafa completely with Jewish suburbs, a fact that will complicate division of the city in any future peace agreement.
Private Palestinian construction is not sensitive, however. Observers believe that the state's opposition is due to the concern that moving ahead with the building will increase right-wing pressure to increase Jewish construction.