High Court looks set to throw out law used to seize east Jerusalem land

Justices may retroactively legalize post-’67 confiscations, arguing that undoing past actions would open up a “pandora’s box.”

High Court of Justice 370 (photo credit: yonah jeremy bob)
High Court of Justice 370
(photo credit: yonah jeremy bob)
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 unconstitutional.
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 confiscations.
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.
The 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 different date.
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 War.
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 property.”
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 sometimes not.
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.