The court’s decision essentially applied Israeli law to non-citizens.
By David Isaac, World Israel News
The 8-to-1 vote on Tuesday of Israel’s High Court to strike down a 2017 law that legalized homes built on “Palestinian land” sparked anger among Israel’s right-wing, which has questioned not only the timing – coming as it does on the eve of annexation – but the legal reasoning behind it.
Attorney Simcha Rothman, legal adviser to Meshilut, a group promoting balance between Israel’s democratic institutions, told Channel 20 on Tuesday that the legal basis of the court’s ruling was “very problematic.”
He said that the judges, “without debate, without even a case,” are extending state laws over non-citizens.
“I discovered for the first time that the right to equality… is also being expanded to Israelis and Palestinians, who are residents of the region, who aren’t citizens of Israel and don’t live in Israeli territory,” he told Channel 20.
“The State of Israel is now obligated to worry about equality between its citizens and a population, part of which is hostile, part of which is an enemy. This is what the decision establishes,” Rothman said.
Rothman told World Israel News that the court’s reasoning, based on the right to equality, is itself a stretch as such a right is nowhere to be found in the text of the Basic Law: Human Dignity and Liberty, on which the court rested its decision.
“The equality portion was specifically taken out in the legislation process of the Basic Law. The court pushed it in through the ‘human dignity’ [portion]. It said when you treat people unequally it’s against their dignity,” he said.
“Now it’s an extra stretch that we’ve never done before that there is a right to equality based on this Basic Law between citizens and residents and people who are non-citizens and non-residents. That’s something that was never decided before. And here they say it and don’t even explain how — how it goes into the meaning of the law, the language of the law, the purpose of the law. They don’t even bother. They just say it,” Rothman said.
The 2017 law which the court struck down had been designed to protect Jewish residents in Judea and Samaria who had inadvertently built homes and apartments on land that they had been told was owned by the State of Israel.
In certain cases it was discovered afterwards that the land didn’t belong to the state. Although it was unclear to whom the land belonged, the Israeli government always made the assumption that it was “private Palestinian land.”
Some 2,000 Jewish homes were found to have been built either wholly or partially on such land. The 2017 law protected those homes from destruction and their residents from eviction by compensating the land’s owner, even when the “owner” claiming the land had no legal proof to support his claim.
The Netanyahu administration said at the time the law was introduced, “The main purpose of the law is, once and for all, to remove the freezing cloud of uncertainty that hovers over entire communities.” The government said it wanted to avoid the “demolition of thousands of buildings in the area and evacuating families.”
With the law now struck down, those homes may once again be exposed to demolition.
Health Minister Yuli Edelstein on Tuesday accused the High Court of “losing it.”
Edelstein, who had a run-in with the court recently, said that the court has “made itself the legislative, executive, and judiciary branches at the same time. We must put an end to this.”
Tzipi Hotovely, Minister of Settlement Affairs, said “The court recognized the right of a Palestinian who never proved ownership over those of the citizens of the State of Israel, military veterans and taxpayers who settled in good faith and were sent by Israeli governments and who are now considered felons.”
The Likud party announced on Tuesday that it would legislate the law anew. However, its coalition partner, Blue and White, sent the opposite message that it would work to uphold the judges’ view, leading commentators to question whether the court’s decision will spark a coalition crisis.