By
Tuesday, 50 Israeli families will have been tossed out of their homes
in their village of Migron, which is set for destruction.
They will not be dispossessed because they unlawfully squatted on someone else's property.
The
residents of Migron will be tossed from their homes - on the order of
the Supreme Court - because Attorney-General Yehuda Weinstein and his
associates believe they are above the law. And due to this opinion,
Weinstein and his associates refuse to recognize the sovereign authority
of Israel's government or to act in accordance with its lawful
decisions.
The media have alternatively
presented the story of Migron's imminent destruction as a story about a
power struggle between so-called settlers and the IDF, whose forces will
be called upon to eject them from their homes; or as a struggle between
the Israeli residents of Judea and Samaria and Prime Minister Binyamin
Netanyahu; or as a struggle between the radical leftists from Peace Now
and its fellow foreign government-financed NGOs, and the residents of
Judea and Samaria.
These portrayals are
reasonable on the narrow level of day to day developments in the story
of Migron's struggle. But on a more fundamental level, the story of
Migron and its pending destruction is the story of the power struggle
between Israel's unelected, radical legal fraternity represented by the
attorney-general, the State Prosecution he directs and the Supreme Court
on the one hand, and Israel's elected governments - from the Right and
from the Left - on the other.
Migron is the
latest casualty of this struggle. The legal fraternity's bid to wrest
sovereign power of governance from Israel's elected leadership threatens
our democracy. In its continuous assault on governing authority, the
legal fraternity renders it difficult if not, as a practical matter,
impossible, for the government - any government - to govern.
It
is important at the outset to recognize that there is a world of
difference between the rule of law and the rule of lawyers. The fate of
Migron, which was sealed on Wednesday with the decision of the Supreme
Court, sitting as the High Court of Justice, to remove all 50 families
from their homes, is a legal atrocity.
Migron
was founded in 1999 on 60 plots of land. In 2006, the EU-funded Peace
Now petitioned the High Court claiming to represent Arab owners of five
out of the 60 plots of land. Peace Now asked the court to require the
state to explain why it hadn't destroyed the town, which the group
claimed was built on stolen land. Migron's residents dispute this claim.
In
responding to this petition, the State Attorney's Office could have
asked the court to allow the issue of ownership to be adjudicated by a
lower court. Instead, the State Prosecution accepted as fact Peace Now's
unproven claim of private ownership of the land. And, after numerous
delays, in 2011 the court ruled that the village must be destroyed.
Following
its victory in the Supreme Court, Peace Now sued the state for damages
for the alleged Arab landlords, claiming that the presence of the
community prevented the land's owners from harvesting nonexistent olive
trees. Peace Now abruptly canceled its lawsuit when the court asked for
proof of ownership.
For their part, Migron's
residents went through Jordanian land records and were able to find
owners for only seven of the registered plots. And they managed to buy -
at exorbitant cost - three of those plots. Recognizing that its claim
that Migron was illegally built on private lands could no longer be
justified, Peace Now changed its strategy. In the latest Supreme Court
hearings, brought by Migron's residents, Peace Now claimed that the
reason all the Israelis need to be ejected from their homes, and all the
homes need to be destroyed, is that the village was built without
proper permits.
Ahead of the court hearing last
month, the government's Ministerial Committee on Settlement convened to
determine the government's position on the new Migron petition. Led by
Netanyahu, the ministers decided that the government's position was to
ask for a continuance in order to enable the lower courts to adjudicate
the claims of ownership of the land.
Rather
than follow the law and represent that position to the court, Weinstein
instructed attorney Osnat Mandel from the State Prosecution to inform
the court he did not accept the government's decision, and ask for a
continuance in order to give him time to force the government to change
its position.
Addressing the court, Mandel
said, "The attorney- general believes that the ministerial committee's
position will raise legal difficulties. And since we're requesting a
continuance for undertaking the evacuation anyway [for unrelated
reasons], he requests [time] to hold meetings with the elected
leadership."
On the face of it, Weinstein's
defiance of a legally binding government decision was unlawful.
Certainly it would appear to be grounds for his immediate firing. But
while shocking, Weinstein's rank insubordination was not unique.
As
relates to Israel's legal rights in Judea and Samaria, Weinstein is
guided not by the law but by the ideology of the far Left. This ideology
received formal expression in a 2005 report on unauthorized Israeli
communities in Judea and Samaria authored by former assistant state
attorney Talia Sasson. The Sasson Report represented a wholesale
renunciation of all Israeli claims to legal rights over Judea and
Samaria. It was unhinged from both Israeli and international law.
And it was embraced by the legal fraternity.
After Sasson finished her report, she joined the post-Zionist Meretz Party. In 2009 she ran unsuccessfully for Knesset.
In
an attempt to mitigate the damage Sasson's report caused to Israel's
legal position in Judea and Samaria, in February Netanyahu commissioned
retired Supreme Court justice Edmond Levy to lead a task force of
distinguished jurists and present the government with a report setting
out Israel's legal rights to Judea and Samaria. Netanyahu asked Levy to
also offer recommendations for implementing those rights in relation to
the Jewish communities in Judea and Samaria.
Weinstein
didn't even wait for the Levy Commission to begin its work before he
sent Netanyahu a letter informing him that the commission's report would
have no impact on his handling of issues related to Israel's rights to
the areas. And as his decision to ignore the legally constituted
ministerial committee's position on Migron made clear, Weinstein
continues to behave as though he and his colleagues sit above Israel's
democratically elected representatives.
Many on
the Right are urging Netanyahu to adopt the findings of the Levy
Commission as official government policy. While such a move certainly
can't hurt, it is hard to see what difference it would make in practice.
Weinstein has already pledged to defy the government. So even if the
report is adopted, the government's lawyers will refuse to defend its
positions.
Weinstein is only able to behave as
he does because he operates in an environment where the Supreme Court
has usurped the power of Israel's elected governments to determine state
policy.
At the same time that then-Supreme
Court president Aharon Barak declared that "everything is justiciable,"
the court gutted the requirement for legal standing. It has worked hand
in glove with radical groups like Peace Now to dictate government
policy. Through this collaboration, the court - not the government -
determines Israel's policies on everything from Israel's legal position
in Judea and Samaria to environmental issues, to the nature of Israel's
penal system, to homosexual unions, to education policy, to permissible
military tactics in wartime.
In this
environment of judicial tyranny, Weinstein can freely undercut
governmental authority, because he knows that so long as his breach of
trust pushes government policy to the Left, the Supreme Court will
support his unlawful actions.
Aside from
Migron, the most striking example of the legal fraternity's recent
collaboration to undercut governmental authority was its torpedoing of
the government's February 2011 appointment of Maj.-Gen. Yoav Galant to
serve as the IDF chief of staff. At the time, the court agreed to hear a
petition submitted by the Green Movement demanding the cancellation of
Galant's appointment.
The Green Movement
claimed Galant was unfit to lead the military because in the past he had
committed an administrative infraction by wrongfully using state land
adjacent to his homestead on Moshav Amikam. The Green Movement had no
direct interest in Galant's administrative infraction and therefore, if
the Supreme Court followed even the lowest standards for standing, it
should never have received a hearing.
Even with
the forbearance of the court, the Green Movement's ability to win the
case was dubious at best. The Senior Appointments Committee had already
vetted Galant's candidacy, and approved it despite his misuse of state
lands. But Weinstein had other plans.
Claiming
he had "ethical difficulties" defending Galant's lawful appointment,
Weinstein refused to defend the government before the Supreme Court.
Consequently, Weinstein compelled the government to force Galant to
resign his commission and appoint someone else to serve as the IDF's top
commander.
Netanyahu has come under sharp
criticism, particularly from his voters, for his refusal to stand up to
Weinstein and his band of legal despots. And this makes sense. Netanyahu
should have stood up to Weinstein in defense of Galant. And he should
have denounced Weinstein last month for his unlawful defiance of the
government on Migron. He should also stand up to Weinstein on the Levy
Commission report, and just as a matter of policy, adopt its findings as
the formal position of Israel's government.
But
even if he does these things, all they would serve to do is temporarily
mitigate the frustration of his voters. They wouldn't change the basic
calculus of power. The fact is that today Netanyahu lacks the means to
curb the legal fraternity's abuse of power.
The
media staunchly defend every move the legal fraternity takes to usurp
the powers of the government and the Knesset. Indeed, the media
represents the legal brotherhood's unlawful moves as supreme acts of
selflessness on behalf of Israeli democracy and the rule of law.
Every
potentially powerful critic of their behavior has found himself the
subject of protracted criminal probes. This includes Netanyahu during
his first term, Foreign Minister Avigdor Liberman for the past decade,
former justice ministers Tzachi Hanegbi and Haim Ramon, and Justice
Minister Yaakov Neeman during his first tenure in office.
The
dispossessed residents of Migron are just the latest casualties of the
legal fraternity's campaign to force its radical agenda on an unwilling
electorate. If we wish to save Israel's democratic system, the people of
this country must stand up and demand that our representatives protect
our right to be governed by those whom we elect and not by
self-appointed clerks.
The only suitable response to Migron is a legislative overhaul of Israel's legal system.
Originally published in the Jerusalem Post.
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