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Analysis / Mazuz´s strategic decision (HA´ARETZ NEWS) By Ze´ev Segal 02/02/05)Source: http://www.haaretz.com/hasen/spages/534906.html HA'ARETZ} NEWS SERVICE HA'ARETZ} NEWS SERVICE Articles-Index-TopPublishers-Index-Top
Attorney General Menachem Mazuz´s order to Finance Minister Benjamin Netanyahu to cease applying the absentee property law to East Jerusalem properties owned by West Bankers was very belated. The delay, which on its own requires a detailed explanation of its circumstances and reasons beyond that already provided, is nonetheless preferable to the absence of any instructions at all.

The attorney general´s order is obligatory and not merely a guideline. It cancels a decision made by the Ministerial Committee on Jerusalem in June 2004 that subsequently was given the authority of a government decision when no minister challenged the move.

The June 2004 decision said that "to remove all doubt," the Custodian of Absentee Property has the authority to take control over absentee property in East Jerusalem and hand them over to the Jerusalem Development Authority.

The decision was meant to annul limitations imposed in March 2000 by a ministerial forum that said any transfer of property by the custodian to the development authority required approval by the finance minister and the minister for Jerusalem affairs, or whomever they so authorized to rule in their stead.

The June 2004 decision was thus a change in policy regarding the criteria for applying the law. From the formally legal point of view, the decision was legitimate, as was the previous one. However, the attorney general says in his decision that it is not up to the Ministerial Committee on Jerusalem to come up with its own legal interpretations of the authority of the custodian, and "it is not the committee´s job to deal with setting policy for the use of the custodian´s authority."

Since the ministerial committee decision has the power of a decision by the government, the real question is whether the government is authorized to determine the policies of the custodian. Apparently the government has the formal authority to do so. The question is whether the policy is within the framework of an authority that must meet certain demands. Thus, according to High Court of Justice rulings, every application of authority must be applied within the context of "the realm of reasonableness," and "proportionality." Those requirements, in this context, mean that the government and custodian may only use measures that do not result in disproportional harm to constitutional rights, like private property rights.

High Court rulings say that instructions by the attorney general oblige the entire government. And Justice Dalia Dorner emphasized that elected officials and public servants "when applying their authority, must obey the attorney general and their representatives."

The attorney general´s power over the government also covers discretionary policy decisions regarding law enforcement, such as in a case of prosecution for incitement, for example. The attorney general is in a position to decide not to prosecute, even if there is sufficient evidence that there was a crime, on the grounds that some policies can supersede enforcement of the law, such as the importance of freedom of speech, or the wish to avoid sharpening political disputes.

In his ruling yesterday, the attorney general said that applying the custodian´s authority over property in East Jerusalem would create legal difficulties "because of the state´s duty to respect the property rights of the residents" of the West Bank "that were captured in combat." Thus, the attorney general is also protecting the public interest in "avoiding opening new fronts in the international arena, and in the area of international law in particular."

All this does not, in practice, prevent the government and custodian from applying the law to the properties of East Jerusalem, in contravention of the attorney general´s opinion, since it is not the absence of the custodian´s authority to act, but broader considerations of the proportionality and reasonableness of the action on which Mazuz ruled. His authority when the government acts against his opinion is found in his power not to represent and defend the government in petitions that are subsequently brought to the High Court of Justice. (© Copyright 2005 Haaretz. 02/02/05)

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