High Court orders state to explain why outpost law shouldn’t be scrapped

Legislation enabling the legalization of settlement houses built on private Palestinian land has been disavowed by the attorney general

Jacob Magid is The Times of Israel's US bureau chief

New prefabricated homes are seen under construction in the West Bank between the now-evacuated illegal outpost of Amona (background) and the Israeli settlement of Ofra, north of Ramallah, on January 31, 2017. (AFP/ Thomas Coex)
New prefabricated homes are seen under construction in the West Bank between the now-evacuated illegal outpost of Amona (background) and the Israeli settlement of Ofra, north of Ramallah, on January 31, 2017. (AFP/ Thomas Coex)

The High Court of Justice on Monday directed the state to explain why a new law to legalize wildcat West Bank outposts should not be struck down on constitutional grounds, in another blow to supporters of the controversial legislation.

Chief Justice Esther Hayut wrote that the government has until February 25 to put together a response justifying the legality of the law. It will remain unimplemented until then due to an interim injunction issued in August.

Passed last February, the legislation allows the Israeli government to expropriate private Palestinian land ex post facto where illegal outpost homes have been built, provided that the outposts were established “in good faith” or had government support and that the Palestinian owners receive financial compensation for the land.

Given that Monday’s High Court’s directive came after the state had already submitted its initial response in defense of the legislation, Hayut’s order suggests that she has deemed that response insufficient.

Supreme Court Chief Justice Esther Hayut speaks during a ceremony in honor of her predecessor’s retirement in Jerusalem on October 26, 2017.. (Yonatan Sindel/Flash90)

The chief justice also said that a final ruling on the outpost law’s legality would be made by an expanded panel of nine justices.

The left-wing Yesh Din legal rights group praised Monday’s decision, saying that it “testifies to the importance that the court attributes to the petition (against the law).” The group’s statement also pointed out “that the burden of proof” has now been transferred to the state.

The pro-settlement Regavim group said Hayut’s decision “set a dangerous precedent that undermines the authority of the Knesset.” The group’s statement went on to call on lawmakers to pass legislation that would “restore the proper balance between the legislative and judicial branches. ”

Last month, Attorney General Avichai Mandelblit slammed the outpost legalization law as unconstitutional and called for its annulment in his legal response to petitions against the legislation. Although Israel does not have a constitution, it does possess a series of quasi-constitutional basic laws that underpin the court’s perspective on the legality of legislation.

Shortly after it was passed, Mandelblit announced that he would not defend the law on behalf of the state. However, the petitioners — left-wing groups and Palestinian local council leaders — named the attorney general, among others, in their High Court appeal against the legislation, requiring him to respond.

But while Mandelblit, in his response, made clear that he opposed the law itself, he qualified his opposition by adding that the legislation’s goal of regulating illegally built West Bank homes could be realized through already-existing means. Specifically, he wrote that roughly one-third of homes built on private Palestinian land — experts say the figure is nearly 4,000 — could be legalized through “market regulation” and other legal or bureaucratic means.

The attorney general also provided a legal opinion in a separate case last month that rights groups argue may have set an identical precedent to the one that the outpost legalization law had aimed to establish.

Attorney General Avichai Mandelblit speaks at a conference in Tel Aviv, on April 25, 2017. (Roy Alima/Flash90)

The November legal opinion saw Mandelblit approve the expropriation of private Palestinian land for the building of an access road to an illegal West Bank outpost, Haresha.

To green-light the land confiscation, the attorney general used a recent legal opinion given by Supreme Court Justice Salim Joubran, who ruled separately that abandoned private Palestinian land could be seized as long as the original owners are compensated.

Under the military’s jurisdiction, Joubran described settlers as a protected population that the army is expected to care for through the paving of roads, for example.

Beyond objecting to the broader illegality of the land seizure, the Palestinians have argued that the only reason the land is considered “abandoned” is that they are prevented from accessing it.

In his own legal opinion several days later, Mandelblit wrote that given Joubran’s ruling, “there is no longer a legal impediment to advancing the recommendation regarding the construction of the access road to the Haresha outpost through expropriation for the [sake of the] needs of the public.”

Speaking with The Times of Israel, Mandelblit’s adviser Gil Limon said that very specific circumstances allowed for the seizure, suggesting that the implications of the decision might not be as broad as rights groups are cautioning.

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