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Ulpana – miscarriage of justice
By MOSHE DANN
18/06/2012
If the rule of law and the reputation of the High Court mean anything, they must be based on justice.
 
Last week’s struggle over the Bet El neighborhood called Ulpana exposed a massive judicial and administrative failure involving the State Prosecutor, the Civil Administration and ultimately the High Court of Justice.

This saga began in 2007 when Harbi (Harvey Ibrahim Mustafa) Hasen, a Ramallahborn US citizen and current resident of the Palestinian Authority-administered town of Dura al-Qara, near Bet El, applied to register land. Assisted by Peace Now and Yesh Din, Hasen claimed that he had inherited property in Bet El from his father. He brought as proof a document from a Shariah court in Ramallah. The Civil Administration accepted Hasen’s claim without the presentation of a will, without verifying who owned the land and without questioning Hasen’s rights of inheritance.

Hasen apparently claimed rights to succession, but the Succession Order could not have settled competing rights to the property, not only between Arabs and Jews, but family members as well, particularly if all of the putative owners did not participate in the proceedings.

Under prevailing land laws based on Ottoman, British and Jordanian procedures, if the original owner was given state land (called Miri) but did not use the land or pay taxes, the land reverts back to the state. Title to such land could not be transferred without approval of the state.

The underlying question is whether the claimant’s father had rights in the property.

What was the basis for the original ownership claim? If the testator/decedent had no rights in the property, or those rights had expired, then his successor could not have had any. These questions were never asked and therefore never decided by state institutions, or courts.

SPOKESPEOPLE FOR Bet El claim that the community bought the land from someone who claimed to be the owner. The question of ownership is currently in the Magistrates Court – the only judicial body mandated to decide such questions. Because of the High Court’s decision, however, that proceeding is now irrelevant.

Assisted again by Peace Now and Yesh Din, Hasen petitioned the High Court for possession.

The State Prosecutor agreed that the land belonged to Hasen and demanded the removal of the buildings. Since the High Court does not deal with questions of evidence and Hasen’s claim was unchallenged, the court ruled in May 2011 that buildings on the disputed land should be demolished.

THE SUPREME Court could have postponed the demolition order on equitable grounds to allow the government and the current occupants time to resolve the matter. There was no need for immediate compliance.

Similar cases in which claims that Jews had built on “private Palestinian land” were resolved when the High Court ruled that compensation be paid to the alleged owner and allowed the buildings to remain.

Lost in debates over Prime Minister Binyamin Netanyahu’s maneuvering around proposed legislation to legalize and protect Jewish neighborhoods slated for destruction is what appears to be essentially a legal and judicial fraud.

Misled by the State Prosecutor, the High Court’s decisions, therefore, in the case of Ulpana and other disputed areas were based on misinformation. Since the court was aware of probable discrepancies, however, and did not seek an opinion from the lower court, or all affected parties, the High Court is also culpable.

When the State Prosecution appealed to the High Court for a re-hearing in May, 2012, they did so on technical grounds, rather than admit that they had misrepresented the interests of the state. A panel of three justices – all of whom oppose Jewish settlement – refused. And there is no procedure to appeal.

This explains why Knesset legislation is needed to provide a legal remedy in such cases.

MK Uri Ariel, head of the Knesset’s State Control Committee, has asked the Comptroller to investigate the Ulpana affair, but it is doubtful that anyone can change the existing judicial system without a thorough investigation and Knesset legislation.

Land disputes must be resolved by courts, not by bureaucrats.

One procedural recommendation might be to restrict the High Court from hearing cases involving land ownership disputes without prior examination and decision regarding evidence by a lower court. Another would be legislation setting strict standing requirements for petitioners to the High Court.

Allowing individuals and NGOs to circumvent judicial procedures by petitioning the High Court abuses the judicial system.

Tighter supervision and accountability from every part of the judicial structure is essential.

If the rule of law and the reputation of the High Court mean anything, they must be based on justice. Unless this criterion is upheld, the High Court’s decisions regarding places like Ulpana, Migron, Givat Assaf and Amona will continue to undermine not only the judicial system, but Israel’s ethos.

Having made a wrong decision, misled by the State Prosecutor, the High Court should have the integrity to admit their mistake, revisit this case and enable a just and humanitarian solution.

The author is a PhD historian, writer and journalist.
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