If I had to choose a musical theme for this High Court of Justice (HCJ) hearing, I’d go with the famous whistle of “The Good, the Bad, and the Ugly.” If I had to choose a movie theme, I think I’d settle on tumbleweed rolling in the wind with the wilderness as a background; something out of a western, in any case.
Two weeks back we went to the HCJ for a hearing in a petition we filed in 2008, and which has basically been waiting for a ruling since. The petition dealt with illegal construction in the flagship settlement, Ofra. That last sentence was somewhat redundant, given that Ofra is essentially a large illegal outpost; but we went to deal with the fate of nine new houses, built in June 2008 and, at the time the petition was written, yet unoccupied.
Once, long ago, it went rather well: the petition so stressed the settlers that the settlement rabbi, Avi Gisser, ruled that construction should go on during the Sabbath so that it could be finished prior to the hearing (Hebrew). Even construction work on the Temple was halted during the Sabbath; it would appear Ofra is holier than the Temple.
Then Justice Edmond Levy – yes, of the Levy Report – issued an interim order, forbidding using or inhabiting the houses. But only days later, State representative Adv. Shai Nitzan – nowadays, you’d be happy to know, he’s the State Attorney – decided that tricks can be played even with HCJ orders (Hebrew). Nitzan pulled one of the most contemptible legal tricks in the history of the country: he ruled that since the interim order was addressed to the respondents – that is, the Minister of Defense and the Commanding General, Central Command – only they (Minister Ehud Barak, General Yair Naveh, and the then Chief of the Civil Administration) are prohibited from inhabiting the houses. The houses were, of course, immediately inhabited by settlers, and now we are left with the unenviable task of pulling Nitzan’s headless nail.
That was in 2008. The State’s position in 2013 is similar yet different: on the one hand it says there is no doubt that these are illegal buildings, but in the same breath it says it has no intention of implementing its own demolition orders. Why? Because, as the State’s attorney told the Court, “political issues are involved in a large part of the construction in the West Bank,” and there is no practical difference between the nine houses whose evacuation we demanded in our petition and the rest of Ofra. In an earlier hearing, the State implied that since Ofra is, in essence, a large illegal outpost, it does not intend to deal with the issue until a final agreement is reached with the Palestinians. The current government, one may remember, is not interested in a final agreement but, at most, with an interim one.
In other words, as our legal counsel, Adv. Michael Sfard, told the Court, Ofra has become a lawless territory. The State says that as far as it is concerned, if an entire town is built contrary to law, it’s good enough reason to avoid enforcing the law there. Don’t you worry, you won’t get the benefits: if a debt collector comes to visit, if you commit an illegal construction offense (not stealing another person’s land, just enlarging your balcony), the State will rise to its hindquarters and speak of “the majesty of the rule of law.”
The situation in which a group with political clout can bend the enforcers of the law to its will is almost as dangerous as the ease with which the enforcers admit they are spineless. It means that the central principle of the rule of law – that it is enforced equally and uniformly across the board, in a way that does not discriminate between the rich and the poor, the connected and the disenfranchised, the Jew and the non-Jew – no longer exists. Officially, for the time being, only in Ofra; but if this dangerous precedent is accepted, history tells us it will be greatly expanded. After all, the State claims that political needs outweigh the constitutional right to property. Why stop there? There are other rights that may inconvenience the State, politically speaking.
The other side of the coin, of course, is that once the rest of the population realizes there is an exalted part of the population, on whom the law is not enforced, they will begin to wonder why they, alone, have to obey it. The rule of law is based on the consent of the ruled; once the State creates classes, some of whom face enforcement of the law and some of whom do not, it undermines this consent. The scary thing is, the State does not understand this simple point; fortunately, the HCJ can still correct it.
Unless, of course, Adv. Shai Nitzan decides once more to play tricks with the decisions of the Supreme Court.