Once again former chief justice Dorit Beinisch and a few of her colleagues have usurped the role and powers of the legislature and sought to create new law.

In a ruling last week, Beinisch and a panel that included Justices Edna Arbel and Miriam Naor, vehement opponents of settlements, held that Michael Lessans, a Jewish plumber who lives in Kedumim, in the Shomron, must evacuate 45 dunams (approx. 11 acres) of land on which he had planted 1,300 trees because Arabs claimed this area belonged to them.

The court ordered Lessans to remove the trees immediately and compensate the Arab claimants and the Civil Administration. The court ruled that Jews, unlike Arabs, could not claim land by chazaka (acquired right of possession) – an Ottoman statute under which working the land for three to 10 years could be a basis for claiming ownership.

Lessans, who immigrated from Baltimore 40 years ago, planted the area with wheat, corn and barley in 1996, and in 2006 planted olive trees. A year later Arabs objected and in 2009 – assisted and represented by Peace Now and Yesh Din – filed a petition against Lessans. The land was never registered in tabu and the Arab claimants offered no proof of ownership.

According to Lessans, a document from the Ottoman period presented by the Arab claimants refers to the right to rent “a place” in the area – but no precise location is specified and the alleged owner is not listed. Therefore, it is impossible to know if Lessans’ orchard is “the place,” or not. Although the lower court rejected Arab claims of ownership, Peace Now and Yesh Din went directly to the Supreme Court, where they knew they could win on politics, rather than law.

In his appearance before the Supreme Court, Lessans offered to give the entire orchard to the Arabs if they could prove ownership. The court refused the deal. If the Arabs can’t prove they own the land, however, why did the court order the trees removed and likely destroyed? These crucial facts were not reported in the media, which accepted the court’s decision without question.

The same tactic of appealing directly to the Supreme Court – which does not examine evidence – was used in legal disputes over contested areas such as Migron. But in Lessans’ case the court went beyond deciding on a specific place and issued a discriminatory edict. The justices did not rule on who owns the land – since the Arab claimants clearly do not. They ruled on who did not own the land – namely Michael Lessans, because, according to the court, the right to acquire land by chazaka does not apply to Jews.

If neither Lessans nor Arab claimants own the land, however, who does? The court was silent.

This ruling should send shivers down the spine of everyone who respects the rule of law. It means that Israel’s Supreme Court has been compromised by a political agenda that discriminates against Jews.

Beinisch’s ruling must also be considered along with her decision a few months ago regarding Migron that all land not certified as belonging to the State should be considered private Palestinian land, regardless of whether currently or in the future claimed or used by non- Arabs (i.e. Jews). Her earlier ruling also erased various categories of public land established under Ottoman rule, much of which is unsurveyed and disputed.

Beinisch’s intent may have been to provide a more orderly system of land ownership than existed previously. But ruling that a law allowing someone to acquire unused and unclaimed land applies to Arabs but not Jews entrenches a system of inequality that legitimizes Arab encroachment and claims, and prevents any meaningful reforms.

Her ruling restricts Jews and encourages Arabs to take over land not claimed by the State of Israel, or by Jews. One would assume, moreover, that her ruling would legitimize Arab-Israeli citizens, or Arab citizens of the PA or Jordan who use the Ottoman law to seize land in Judea and Samaria.

Ever since 1967, the Israeli Civil Administration has consistently applied Jordanian law (i.e. Ottoman land law) on land issues in Judea and Samaria. This practice was what lead the late Plia Albeck to count goat droppings on land designated for possible Jewish civilian use, lest the areas in question infringe Arab possession rights which were recognized under Ottoman law. The late prime minister Menachem Begin was also scrupulous about observing these legal formalities.

By abandoning the Ottoman rules, the High Court may well have undermined the rule of law, by changing the age-old principles of land occupancy in Judea and Samaria by sudden judicial fiat.

Courts are empowered to interpret laws, not to make them. In democratic societies that’s what legislatures are for. Whether judges support or oppose settlements, their opinions should reflect impartial deliberations. Anything less renders the judicial system a farce in black robes.

Manipulating Israel’s judicial system – using the Supreme Court, the State Prosecutor and Civil Administration against the rights of Jews to live in Judea and Samaria – undermines democracy, Zionism and the rule of law. Allowing this pseudo-judicial travesty to continue pollutes our entire system of government.

The writer is a PhD historian, writer and journalist. (© 1995-2011, The Jerusalem Post 03/28/12)