Who makes the law? (JERUSALEM POST OP-ED) By MOSHE DANN 03/28/12)
JERUSALEM POST Articles-Index-Top
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
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
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
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
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)
Return to Top
MATERIAL REPRODUCED FOR EDUCATIONAL PURPOSES ONLY