Friday, August 23rd | 22 Av 5779

March 27, 2012 2:01 pm

Something is Rotten in the State of Israel: The Strange Case of Migron

avatar by Yedidya Atlas

Nightshot of the Israeli supreme court building in Jerusalem. Photo: wiki commons.

Some years ago, a national-religious organization whose public operations had been authorized by Knesset Law found itself being challenged by the Leftwing MK’s (members of Knesset) who lost the Knesset vote in Israel’s Supreme Court – then at the height of the judicial regime of Chief Justice Aharon Barak. The legislative losers knew that even though they democratically lost the vote by a significant majority in Israel’s legislative body, they could count on the Supreme Court to ultimately cancel democratic Knesset votes if it wasn’t in line with acceptable leftwing politics.

The astounded directors of the aforementioned organization went to a top lawyer in Tel Aviv to represent them in their defense in the Supreme Court case. The lawyer, unlike his clients, was secular and not politically to the right. Nonetheless, as befits a proper lawyer, he took the case and committed himself to present the best defense possible for his clients. In this case one might have thought it an easy task; the Law was clearly on their side. However, this lawyer who had spent two decades in illustrious government service prior to going out to the private sector, warned his clients that while he could produce a 400 page defense which proved their case, he could only buy them time as in the end they would lose irrespective of the fact that legal justice was on their side.

He patiently explained to them that the Supreme Court’s judges do not necessarily issue their ruling based on legal truths, but all too frequently on the basis on what will be acceptable with whom they drank coffee with and socialized Friday nights. Or simply put, politically correct trumped legal justice. This sad state of affairs has apparently not significantly improved since the hyper-activist days of the Aharon Barak legal dictatorship. His judicial acolyte, the now former Chief Justice Dorit Beinish held the torch of leftwing ultra-secular politics high and in the strange case of Migron ruled that the government had to evacuate the decade old community of more than 50 families because it was purportedly built on private Palestinian Arab lands.

Strange, because the Hon. Ms. Beinish who issued her ruling in response to a Peace Now petition never required the purported Arab landowners to prove their ownership before waving away the rights of the Jewish residents of Migron with her legal wand.

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In fact, Migron’s residents begged the Supreme Court to not automatically accept the Peace Now petition unless the basis for its claims against them could be proven. The case was already being heard in the Jerusalem Magistrates Court, which is the place to prove or disprove such ownership claims, as it has the legal tools to examine the purported title deeds et al, and determine their validity. Migron’s request from Ms. Beinisch to wait for the lower court to complete its review and issue a decision was a reasonable approach in a legal system based on law and justice. Unfortunately, our Supreme Court, known as the “High Court of Justice” may be “High” above the simple citizens of the State, but its connection to “Justice” appears illusory.

Despite the fact that Migron’s lawyer made an iron-clad case proving the land in question did not belong to the Palestinian Arab plaintiffs, and the Peace Now lawyers representing them, unable to prove otherwise, simply withdrew their case against Migron. But the damage was already done. Ms. Beinisch, then president of our Supreme Court refused the aforementioned reasonable request and summarily issued her highly questionable precedent creating legal fiat that Jews, unlike Arabs, had to build communities only on State lands. This strange decision not only challenged Migron but a number of other already established communities and fully built permanent neighborhoods in Jewish towns in Judea and Samaria.

Had Ms. Beinisch behaved as if she was an unbiased judge without a political agenda, and waited for the lower magistrate’s court to determine whether there was any legal basis for the Peace Now petition, she could easily have avoided a blatant perversion of justice. But, of course, what does legal proof have to do with leftwing petitions?

In a fair world where the highest court in the land functioned without the open political bias of the judges, the Peace Now petition against Migron would have been dismissed the minute that Peace Now could not produce the alleged private Palestinian Arab owners of the land on which Migron was built. But in the Israeli Supreme Court of today, Peace Now and other radical leftwing organizations, know that their accusations need no proof.

Peace Now it now appears, was unable to find the Palestinian Arabs they claimed owned the land in question. So having no actual evidence to substantiate their claim in the lower court, they withdrew their petition. But it didn’t matter. In the Supreme Court they knew their unproven accusations would be accepted since their politics fit the bill and Ms. Beinisch’s court decided to declare all non-state owned land in Judea and Samaria to be presumptively Arab land. Why? Because……

Migron’s residents publicly offered a one million Shekel reward to anyone – Jew or Arab – who could prove in court that the land on which Migron was built belonged to them. How naïve. Those hardy souls who, at the encouragement of the IDF at the time, went to build a critically important settlement on a barren, rocky hill overlooking the strategic main road, Route 60, at the height of the Palestinian terror war of a decade ago, still believe truth matters. Imagine. But that was put to rest after the Supreme Court rejected the compromise agreement between the Migron residents and the Government of Israel.

Following the aforementioned ruling, Israeli Arab Supreme Court Justice Salim Joubran made what is clearly one of the more ironic statements of the week: “What would the rule of law look like if the ruling wasn’t followed?”

The Hon. Salim Joubran who is so concerned with implementing the rule of law regarding the Jewish homes in Migron, has yet to similarly chime in regarding the estimated more than 30,000 illegally built Arab houses in Judea and Samaria and the estimated 10,000 illegally built Arab houses in municipal Jerusalem.

I have no problem with Justice Joubran, a Christian Arab, not singing the Hatikvah, Israel’s national anthem, at a public gathering a few weeks ago considering the clear Jewish content of the anthem. After all, he doesn’t put on Tefillin either, as one pundit noted at the time. But as a judge, I expect him to be fair and not selective in his judicial opinion. On the other hand, why should he be better than the Jewish Supreme Court justices who are equally biased?

I don’t know what action has to be taken to avoid confrontation on August 1st, the date the Supreme Court ruled the Government of Israel is to carry out the previous strange ruling of Ms. Beinisch’s court, but it behooves the government and Knesset to do something, and fast. Meanwhile, as it stands, to paraphrase the Bard, something is rotten in the State of Israel.

The author is a veteran journalist specializing in geo-political and geo-strategic affairs in the Middle East. His articles have appeared in such publications as The Wall Street Journal, The Washington Times, Insight Magazine, Nativ, The Jerusalem Post and Makor Rishon. His articles have been reprinted by Israel’s Ministry of Foreign Affairs and in the US Congressional Record.

This article first appeared in The Times of Israel.

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