The High Court of Justice issued a recommendation on Tuesday to the state, and
to lawyers fighting to undo state confiscations of east Jerusalem land, that the
court declare the use of a 1950 law to justify further confiscations
While some of the petitioners, such as top lawyer
Avigdor Feldman, were ready to embrace the recommendation as a long-delayed
righting of what they considered decades of injustice, other petitioners, like
NGO Adalah’s director Hassan Jabareen and lawyer Souhad Bishara, were dismayed,
viewing the suggestion as permanently anchoring in law nearly 50 years of unjust
Responding to the court’s implication that declaring the
law unconstitutional not only going forward, but also retroactively, would open
up an unimaginable “pandora’s box” of litigation over past confiscations, Adalah
asserted that if there had been injustice, it must be undone regardless of the
inconvenience and ensuing litigation.
Feldman explained his support for
the court’s suggestion by saying that although many past confiscations would be
formally legalized and his specific clients might not even win their cases under
the court’s recommendation, the achievement of invalidating the law’s
application to east Jerusalem had been the primary goal of the case.
court, presided over by Supreme Court President Asher D. Grunis, asked all of
the parties to provide legal opinions on its suggestion to declare the law’s
application in east Jerusalem unconstitutional, and to give their own ideas on
whether the declaration should take effect only now, or retroactively from a
Only two weeks ago, Attorney-General Yehuda Weinstein had
announced a major policy reversal in which the government would stop using the
1950 Absentee Property Law to confiscate east Jerusalem properties from Arabs
for the benefit of Jews and the state.
The announcement had been designed
to avoid this exact eventuality of throwing out the law’s application entirely,
but may not have succeeded.
That state announcement followed a May High
Court decision demanding it explain its position in using the 1950 law to
confiscate land in east Jerusalem following the 1967 Six Day
Significantly the High Court had demanded and may still require that
Weinstein make a personal appearance in court to answer the petition against
application of the law.
Feldman had said that the state’s policy reversal
was not nearly enough and that the state must “reject all of its old position,”
since the east Jerusalem Arab lands in question were “not absentee
He said the state must not only stop using the 1950 law, but
declare that it could never apply in east Jerusalem – essentially what the court
has now suggested.
After the War of Independence, the law was used to
take over homes and lands that Arabs had left empty or abandoned during or
following the fighting.
The current controversy concerns to what extent
the state can do the same in east Jerusalem, with all of the legal, political
and international issues involved.
Reportedly the state has had
inconsistent policies on using the law over the years, sometimes invoking it and
Former attorneys-general Menahem Mazuz and Meir Shamgar,
as well as other prominent legal officials, have opposed its use. Before the
court’s suggestion on Tuesday, Weinstein had said he stood with Mazuz and
Shamgar against using the legislation due to international law and
administrative law difficulties it would cause, but defended the idea that the
law could theoretically apply.
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