The affair of Beit Yehonatan, the seven-floor building that settlers constructed without a permit in the heart of Silwan, and that the High Court ordered sealed, is still in the headlines and will probably remain there for some time. The issue entails much more than the fate of one building. It involves far more principled issues – the relationship between law and government, the status of the courts, how deeply the legal establishment can be involved in the decisions of public figures and, more generally, the boundaries of judicial activism.
Last week, the matter made the front pages again when Interior Minister Eli Yishai, in a rapid, dubious move, announced his intention to prepare the building for occupancy. It followed Jerusalem Mayor Nir Barkat’s surrender to pressure from State Attorney Moshe Lador, and his announcement that he would implement what the court has ordered him to do.
As a member of the Jerusalem City Council, for the Meretz faction, it’s tempting for me to support the demand to implement the ruling immediately. This time, though, I’m not backing the attorney-general. My position stems from the continuing erosion of my trust in the rule of law and the judicial system. I’m unwilling to sanctify the law.
Here, though, it’s because of the “package deal” the mayor has given us – if compliance is made with regards to Beit Yehonatan, then the law says that 71 Palestinian homes built without permits on the same hill must be demolished. When I ponder the option of saving 71 families from suffering this fate in exchange for one building for settlers, I would make the humanistic choice instead of the political one.
BUT BEYOND a benefit-based calculation, the Beit Yehonatan affair provides a good opportunity to analyze how the legal establishment relates to east Jerusalem in general, and toward home demolitions particularly.
Two different – even contradictory – approaches can help the attorney-general in examining illegal construction. One is purely professional. It adheres closely to the language of the law, is faithful to professional regulations and the principles of dry administration, maintains that the law is cardinal and all building violations are exactly that, whether committed in west or east Jerusalem, whether a building was constructed out of greed or to provide a modest roof for a poor family.
There is another approach, deriving from the understanding that the situation in east Jerusalem is far more complicated, and does not permit compliance with legal regulations in the very smallest details. It bears in mind that one cannot solve one problem by creating another, especially when it concerns irreversible damage and disproportionate suffering and, of course, when the violation results from a continuing national planning oversight.
The prevailing approach in the State Attorney’s Office belongs to the first category. It adheres to the language and letter of the law, and is inflexible and uncompromising. It insists that there is no difference regarding the reason and how much suffering is inflicted on a family. That approach holds that making concessions to illegal construction is like giving offenders a prize and encouraging future offenses.
In fact, this approach completely disregards not only natural justice but also the spirit of Judaism inherent in the words of the sages: “A compromise is more desirable than a verdict.”
Moreover, it has the potential for encouraging waves of hatred liable to strike at any moment, and incite bloodshed. A child who sees his house demolished will always have an open wound in his heart, a powerful desire to avenge his family’s humiliation. If giving in to illegal construction is a prize to offenders, demolishing an illegal home is a prize to extremists on both sides, seeking a good reason to escalate the dispute.
The legal system, which sees the law’s enforcement as the jewel in the crown of its role, works as though everything outside is functioning smoothly, and it is not surrounded by politics. In fact it is the pillar of right-wing policies that trample and strive to make the lives of Arabs in Jerusalem a misery, until they leave. The judicial system does not engage in politics, heaven forbid. It simply plays into politicians’ hands, and in a clean, elegant manner, under the aegis of the law. These jurists would be outstanding lawyers in a properly functioning government, unmarked by politics, discrimination and racism.
JERUSALEM IS nothing like that. Anyone in Jerusalem who behaves as if he were living in a properly functioning city is detached from reality, building castles in the air, and therefore causing harm. Jurists of this kind trample innocent people’s right to a home underfoot when the state mechanism they represent prevents them from building legally. In fact they are doing exactly what the right-wing expects them to do, and what is needed for the occupation to thrive. Incessant efforts “to enforce the law in east Jerusalem” are in fact a whitewashed method of enforcing Israeli control over east Jerusalem.
Forty-two years of “unification” have not erased the divide between east and west and have not obscured the fact that two societies live alongside each other in Jerusalem: one that controls, and one that’s controlled. Jerusalem’s Arabs live under occupation. For them, the state laws are the occupier’s laws. International law backs them up, and stipulates that Israeli rule in east Jerusalem is patently illegal.
The relations between Arabs and Jews in Jerusalem are those of occupier-occupied, and every act of the government is aimed at intensifying control. There is not a moment in the life of an east Jerusalem Arab when this establishment fails to remind him of his position in the social order.
The conduct of the judicial system as mirrored in the positions of former attorney-general Menahem Mazuz, Lador and Jerusalem municipal attorney Yossi Havilio is only one example of the technocrats who now dominate the Civil Service and particularly Jerusalem city hall.
The municipality’s disregard of the broader political circumstances
makes them into collaborators with political trends, perpetuates the
method and boosts the occupation. This method is kept alive by hundreds
of managers and clerks who are just doing their professional work,
unaware that they have become technocrats of the occupation,
subcontractors of extremist right-wing settlers.The writer is a member of the
Jerusalem City Council for Meretz and a field coordinator for the
Israeli Committee Against House Demolitions (ICAHD).
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