When the State defends illegal outposts in the HCJ, it tends to mislead – since it prefers the interests of the government over those of the public
Last week, a new low was reached in the relationship between the State and the courts. In a judgment of a High Court of Justice petition filed by Peace Now and dealing with the non-evacuation of six outposts, Deputy Chief Justice Miriam Naor wrote the following: “I am sorry we have reached this point. I am sorry that promises made by the State to the Court via its attorneys cannot be relied on, and ought to be considered as oaths foresworn. I’m afraid we’ll have to consider, in future proper cases, ‘bonding’ such promises with final court orders, which would be a shame.” My emphasis. To use less exalted language, the Chief Justice to-be said that she can no longer trust assurances made by attorneys representing the State. Chief Justice Grunis wrote words to a similar effect, though they were more polite.
Last Wednesday we were once more in the halls of the HCJ for two other related hearings. The first dealt with our appeal demanding evacuation of the land seized in Dura Al-Qara, which had not been used for 35 years. The second was an petition filed by Peace Now demanding the removal two outposts, Ha’harasha and Hayovel; Yesh Din was part of the petition to remove the road leading to Hayovel outpost. Peace Now’s petition has been making its way in the courts for eight years; our petition about the road, more than four years.
To an onlooker, the thing most common to both petitions was how ill-at-ease the attorneys for the state appeared. Their body language, their stutter. In the Dura Al-Qara appeal, the State came up with a new term: “frozen military need.” The lands there (see the link above) were officially seized for military purposes, yet they were never used for such. Now the State wants to use them to compensate the cheated settlers of Ulapna Hill.
There’s no such thing as a “frozen military need.” Either there is a military need, which by its nature is time-limited, or there isn’t. To argue that once, there was such a need; once, a piece of land was seized and left unused; and now we are allowed to use it because once upon a time a military need existed – is an argument that it is hard to believe any court in the world would accept. Why did the State decide to demean itself by making this argument?
In the second hearing, the State claimed that it intends to legalize the outposts at some point in the future, and then it reached an embarrassing moment: when asked what steps it took toward legalization, its representative did not know what the requisite steps were, and suffered sharp-tongued comments from the justices. Again, why demean yourself this way?
In his reply, Adv. Sfard noted that the State was speaking of legalizing the two outposts three years ago, but is yet to take the requisite step – which is a formal declaration by the cabinet of the creation of a new settlement. Why did the government refrain from doing so? Because it had publicly committed itself – in the 1990s – not to create any new settlements. Rolling back this policy would cause a new diplomatic storm. Adv. Sfard went on to say that the State constantly talks both of enforcing demolition orders for some of the structures in the outposts and of legalizing some of them – while having no intention of doing either. It merely wants the Court to get off its back.
Who do the State attorneys represent, then? Their job is not, as is commonly assumed, to represent the government. Their function is to represent the public interest, represent a democratic, law-abiding state. Given the fact that the State admits that we’re dealing with illegal construction, and given that the State accepts the principle of abiding by the laws – officially, at any rate – one wonders: whose interest it the State defending? Certainly not the interests of the public.
In the past, there were several cases where Attorney Generals have simply told their government that it had taken a position they wouldn’t defend in court. Even Yossef Harish, not known as the bravest of the AGs, faced a moment where he couldn’t take it any more, and he told the government he wouldn’t go to the HCJ and defend it. Why does the State defend outposts when even it concedes they are illegal? Why does it, time after time, serve as the de facto representative of felons, postponing year after year the moment when the injustice will be corrected?
Because it holds, particularly under AC Weinstein, a cancerous concept which says it is a private attorney of a private client, which happens to be named the Government of Israel; that it is not accountable to the public; that there is no public interest beyond that of the du jour position of the Minister of Defense and the Prime Ministers.
The State’s attorneys know they come to court selling shoddy goods. They know they will not look back with pride on the day, when they stand up and mumble words they themselves do not believe before the Justices, exposed to their sarcasm. The Justices, on the other hand, are losing patience with nonsense repeated case ater case, year after year. One may still hope that the State will compose itself, will return to representing the public and not the government of the day, and inform the court it will no longer defend the theft of private lands under the guise of future ‘legalization’ or that of demolition orders it has no intention of enforcing.
One may hope – and yet must stay realistic, knowing that when that day comes, we will raise our eyes to the heavens, and behold the spectacular show of the IDF’s Flying Pigs Wing. The occupation and the creeping annexation of the West Bank could not exist without the toil of many jurists, who granted a legal façade to acts of iniquity. Those who stuttered in the HCJ are their third generation.