The High Court of Justice on Monday instructed the state to follow through on its promise to demolish several disputed homes in the Ulpana neighborhood in Beit El Monday, rejecting a motion to reopen the case for further litigation and setting off a political firestorm.
The decision sparked outrage among right-wing politicians, and in the Likud in particular. Prime Minister Benjamin Netanyahu now faces renewed pressure to advance legislation that would retroactively declare the neighborhood legal. One minister was quoted Monday as saying that the court's decision is "directed against the government's polices and constitutes an improper interference by the judiciary in executive branch decisions." Another minister said, "The prime minister has already said the public would not be able to stomach a decision to destroy the homes; the evacuation of people would deal a blow to the Likud during an election campaign."
The court handed down its decision just hours before Netanyahu and Kadima Chairman Shaul Mofaz secretly agreed to form a unity government. The agreement created political upheaval by Tuesday morning, as less than a day before the Knesset was set to dissolve and call early elections. That motion has now been shelved.
The Ulpana controversy began last year, when left-wing groups petitioned the court and challenged the legality of the five three-story apartment blocks on the edge of Beit El (a settlement in the Benjamin region of Judea and Samaria). Netanyahu's government eventually agreed to remove the structures by May 1, 2012. But as the deadline approached, Netanyahu came under intense pressure from within his own Likud party and from other pro-settler coalition allies to delay the demolition and asked the court to reopen the case, which had been shut in light of the state's pledge.
The High Court gave a temporary stay of 60 days in April and this week convened for a second time on the matter to hear the state's request to reopen the case. According to Army Radio, the state asked the court to consider the political ramifications of demolishing the homes and the resources such an endeavor would necessitate, as well the as the effect on the general public. At Monday's hearing the justices lambasted the state for reneging on its initial vow to remove the homes and ordered the demolition to be completed by July 1.
"Accepting the state's position to reopen a case that has been fully deliberated and resolved just because it wants to rethink its policy on the matters at hand may lead to dire consequences," Chief Justice Asher Grunis wrote in his opinion, which was also signed by the other two judges on the panel, Justice Salim Joubran and Justice Uzi Vogelman. "Policy, per definition, is not static. Does the state plan to ask the court to re-litigate shut cases every time it reviews its policies?"
In their unanimous ruling, the three-judge panel said the state's arguments "do not merit a departure from the legal concept known as res judicata [which says that a case cannot be reopened except in special circumstances]," and ordered the state to pay the plaintiffs NIS 15,000 ($3,950) to cover their legal expenses.
Immediately after the court rendered its ruling, legislators on the Right resumed their campaign to have the neighborhood sanctioned, despite court rulings that it is at least partly built on private Palestinian land. If the government sponsors legislation on the matter, it may choose to adopt some of the provisions suggested by MK Zevulun Orlev (New National Religious Party) and coalition chairman Zeev Elkin (Likud). The private legislation they have been pushing, the "legalization bill," stipulates that a Jewish neighborhood cannot be demolished if the property owners fail to seek compensation during the four-year period after construction. The bill also says the courts can compensate property owners for the land to avoid evacuation.
Science and Technology Minister Daniel Hershkowitz (New National Religious Party) held feverish talks to allow the bill to pass before the now-torpedoed election dissolution bill sent lawmakers on a recess Vice Prime Minister and Negev and Galilee Development Minister Silvan Shalom (Likud) supported Hershkowitz's move, saying, "This Knesset must not dissolve before legislating the legalization bill."
Environmental Protection Minister Gilad Erdan (Likud) and Public Diplomacy and Diaspora Affairs Minister Yuli Edelstein (Likud) also expressed their support for quick action on the matter, as did MK Danny Danon (Likud) and Finance Minister Yuval Steinitz (Likud), who went so far as to say that "it would have been unimaginable to have dozens of families in Tel Aviv or Kfar Saba evicted from their homes in their neighborhoods just because someone arrived from no-where and claim ownership of the land on which that neighborhood had been built. The only rational solution in such cases is to hand out generous compensation for those who say the land belongs to them - provided they can prove their claims."
However, Deputy Prime Minister and Intelligence and Atomic Energy Minister Dan Meridor (Likud) took a different view and said lawmakers must honor the court's decision and refrain from passing special legislation to bypass it.
MK Michael Ben Ari (National Union) attacked the justices, saying, "Grunis, Joubran and Vogelman decided to set the election campaign on fire. The High Court of Justice's obsession with destruction and demolition of Jewish homes, and only Jewish homes, will lead to bloodshed."
Meanwhile, the Yesha Council (the council of the Jewish communities of Judea, Samaria and Gaza) planned to convene an emergency meeting in the neighborhood Monday night. "The High Court of Justice's determination to destroy Jewish homes without granting the state a stay to rethink its position is the most egregious form of injustice and indifference," read the council's statement from Monday.
Vice Prime Minister Moshe (Bogie) Ya'alon (Likud) blamed the state prosecution for the outcome in the case. "I have no misgivings about the High Court's decision because it effectively endorses the state's position in favor of demolition from court hearings on the Ulpana neighborhood last year – a position that viewed the neighborhood's construction as wrongheaded at its core. The state prosecution applied a lax interpretation for its policy on illegal outposts, which has nothing to do with the Ulpana neighborhood; it was built with the proper permits and authorizations."
Ulpana residents had a mixed reaction to the court's ruling, ranging from surprise to resignation. The first grouped accused the High Court of Justice of being a proxy for the Left while others lamented that it is not surprising that the High Court would force the state, which sent the residents to Beit El to build the structures, to be the same entity to that would order them to destroy those structures.
A spokesperson for the residents released a statement Monday saying, "Time has come for the government of Israel to exercise its sovereignty and to legalize the 9,000 housing units in Judea and Samaria, and particularly the Ulpana neighborhood structures; the state built them and even granted incentives for would-be buyers."
Meanwhile, most on the Left backing the justices' decision.
Labor party chairwoman MK Shelly Yachimovich (Labor) said, "The High Court of Justice made a clear ruling and it's time to put an end to the government evasive tactics meant at shirking its duties. There is no substitute for the rule of law, and no political maneuver can change that," she said.
Meretz party leader MK Zahava Gal-On (Meretz) spoke out against Netanyahu's decision to seek a last-minute stay on the demolition. "The prime minister has been punished for the devious trick of petitioning the court two days before the evacuation deadline and now he will have to evacuate settlers who built on private land," she said.
Attorney Michael Sfard, the legal adviser to human rights group Yesh Din, represented the Palestinian land owners who petitioned for the removal of the Ulpana structures. "The High Court upheld the principles of justice and the rule of law," he said. "The moment the government filed its unprecedented request, it became a battle over the basic norms in a system of government that is based on the rule of law. I hope the ruling will be enforced without any sleight of hand."
Yariv Oppenheimer, the general director of left-wing Peace Now movement, which petitioned the government on the removal of the homes, called on the Netanyahu to "announce that he will carry out the High Court ruling and that he will evacuate the Ulpana neighborhood and the Migron outpost this summer. The High Court rulings can serve as a watershed moment that could determine whether Israel is a democratic state or the settlers' state."
Harbi Hassan, the Palestinian who claims ownership over the disputed property told Army Radio Tuesday that he is "very happy about the decision, which we expected all along." Praising the court, Hassan said he trusts the court's decision will be implemented. "We have full confidence in the High Court of Justice and in the justices' ability to rule in our favor and to return the land to its rightful owners."