Mayor Defies Court Order to Evacuate Jews From East Jerusalem Home

Building in question was built without permit more than 5 years ago by Jewish nationalist organization.

Jerusalem Mayor Nir Barkat has gone on the offensive against the municipal legal system, state prosecutor and outgoing Attorney General Menachem Mazuz following Mazuz's order to the police to immediately evict the Jews living in a building in East Jerusalem's predominantly Arab Silwan neighborhood.

Mazuz's order, which follows a court decision, came in a letter directing Police Commissioner David Cohen to evacuate the residents of Beit Yonatan, but Jerusalem city manager Yair Ma'ayan has announced that the municipality does not intend to have the order enforced.

The building in question was built more than five years ago by the Jewish nationalist organization Ateret Cohanim without a permit. Barkat has sought legal approval for four floors of the seven-story building, which is currently home to eight Jewish families.

Three weeks ago, State Prosecutor Moshe Lador reprimanded Barkat on the matter, writing that "all possible lines were already crossed a long time ago with regard to honoring and obeying court orders." Lador noted that any further delay in carrying out the court order, which was issued in July 2008, "constitutes a serious blow to the values of the rule of law, which are above and beyond any specific significance of the continued illegal use of the building."

In a letter to Mazuz obtained by Haaretz, Police Commissioner David Cohen said the police had prepared many times to evacuate the building, "but requests from parties in the Jerusalem municipality made it clear that the municipality was suspending dealing with the order."

Cohen added that "it should not be expected that the police would interfere in considerations of professional parties at the municipality and force them to carry out the order, when they are not seeking to do so." Cohen wrote that the Jerusalem district police commander, Aharon Franco, planned to hold a discussion on the matter with city officials.

At a January 5 meeting at Franco's office, a representative of the municipality's legal department told city legal adviser Yosef Havilio that city manager Ma'ayan had said Jerusalem would not carry out the order. Havilio joined the meeting and said that such a position ran counter to Havilio's position supporting Mazuz and Lador on the matter.

An argument ensued among city officials in which Havilio said Ma'ayan had no right to interfere in matters involving the enforcement of judicial orders. At a meeting at the Knesset two weeks ago, Barkat said he had sent a representative to the January 5 meeting to oppose the execution of the court order.

The clash within the municipality became even more apparent when Ma'ayan wrote to Franco on January 7 that Havilio did not represent the municipality's position at the meeting in Franco's office. Ma'ayan wrote that Havilio "came as a representative of the attorney general, as a representative of the prosecution." He added that "the statement by the attorney general that the city manager should have no involvement in the matter is chutzpah, a serious breach of discipline and an attempt to create anarchy at the administrative level of the municipality."

Haaretz has learned that several days ago Barkat asked the municipal committee on the appointment of outside legal counsel to approve a request for such legal advice. This would help defer the execution of the eviction order at Beit Yonatan.

In response to Ma'ayan's letter, a Justice Ministry spokesman told Haaretz on behalf of Mazuz that "the exclusive authority to carry out orders against illegal construction lies with the professional parties responsible for enforcement who are working according to the directives of the municipal prosecutor."

The spokesman said that "there is no place for interference in this matter from the political level or from other parties." He cited the "principle of the prosecution's independence, which is a fundamental concept designed to ensure public trust in enforcement authorities and equality before the law."

Mazuz rejected Barkat's request to delay enforcement of the court order; a delay would have helped the mayor in his efforts to retroactively approve much of the illegal building in East Jerusalem.

The director of the division for enforcing land cases at the state prosecutor's office, Hovav Artzi, wrote to the Israel Police's legal adviser, Shaul Gordon, that "no party other than the court and the authorized representatives of the attorney general are authorized to order the repeal, delay or deferral of the execution of [court] orders."

As part of efforts to thwart Havilio, Barkat pushed a resolution through the city council last month authorizing the local planning and construction committee to appoint a subcommittee. The subcommittee would give recommendations on the feasibility of enforcing demolition orders. It would also consider recommending changes in enforcement policies. The proposal also called for recommendations for reexamining plans for Silwan's eastern slopes.

Barkat's bypassing of his legal adviser runs counter to a Supreme Court ruling from the 1980s that states that mayors are not authorized to give orders to their legal advisers. The ruling confirms that legal advisers should act independently of the mayor's judgment and function under the attorney general.

At a December 31 council meeting, Barkat announced that following Havilio's objections, "there is nothing more legitimate than for the local [planning] committee to [use] a legal adviser who is not its advocate but its opponent and ... hire someone who does believe in the approach." He added that "if the legal adviser doesn't believe in this direction, we will hire an adviser who does."

In contrast, in 2006, when Barkat headed the opposition at the Jerusalem city council, he supported Havilio against efforts by then-mayor Uri Lupolianski to have Havilio dismissed.

A spokesman for the municipality said the city council had decided to change planning policy based on a detailed legal opinion. It said the municipality was acting according to the legal opinion, reflecting equal and fair treatment of Arabs and Jews alike.

The spokesman added that the city was not trying to refuse to execute demolition orders but rather to suspend all such orders in the area involving Jews and Arabs. This way, city planning would be conducted in accordance with city council decisions that would involve new plans for Silwan.

On Tuesday, Jerusalem Deputy Mayor Yosef Alalu was informed that his fellow deputy mayor, David Harari, who holds the municipal finance portfolio, was withholding his signature on releasing a budget of NIS 2 million for demolishing and sealing off illegal structures. This, therefore, held up funding for the demolition of Beit Yonatan. The municipal spokesman said this was a technical matter that was expected to be resolved shortly.

Barkat and Havilio have also been at loggerheads on an issue involving increased education budgets for the ultra-Orthodox Agudat Yisrael and Shas movements. Following a petition on the matter to the Jerusalem District Court by the Movement for Progressive Judaism, Mazuz expressed support for Havilio's position and asked that funding on this matter be reversed.

A statement from the municipality on the conflict with Havilio said the mayor attaches high importance to the rule of law and will continue to defend the position of the city's legal adviser.

"The law provides that when there is a legitimate legal difference of opinion, the city council has the authority to present an alternative legal opinion," the spokesman said. He added that Havilio has intervened in a policy matter over which he has no authority.

With regard to budgeting for ultra-Orthodox educational institutions, the spokesman said this move was entirely consistent with Education Ministry policy and the case did not involve additional funds from the municipal budget.