Home / In the Media / Haaretz: “A bench in the breach?”

Haaretz: “A bench in the breach?”

By Akiva Eldar

“And as always, those who are hurt more than anyone else are the Palestinians, on whose land the High Court seal of approval has been given for Jews to settle.”

Something strange happened this week in the Supreme Court. Justice Ayala Procaccia, considered the heir to Mishael Cheshin in terms of judicial activism, gave her seal of approval to the breach of an order bearing her own signature. Her partners to this ruling – which is exceptional, to say the least – were Supreme Court deputy president Eliezer Rivlin and Justice Miriam Naor. The respectable members of this bench instructed the State Prosecutor’s Office not to enforce the High Court’s own restraining order, which has been violated openly for the past three weeks now. In other words, the court delivered a resounding slap, perhaps to itself.

The affair started in January, when Procaccia ordered all construction work stopped in the neighborhood of Matityahu East, in the ultra-Orthodox settlement of Modi’in Ilit. Among other locations there, work was also ordered stopped at the construction site of the builder Heftsiba. To avoid misunderstandings, Procaccia prohibited residents from moving into their apartments, taking possession or making use of them. The order was given after a resident of the nearby Arab village of Bil’in, together with the Peace Now movement, persuaded her that the neighborhood was being built without permits on land “purchased” partially with forged documents. The State Prosecutor’s Office was forced to agree to the restraining order, and instructed the police to launch an investigation of all those involved.

Four weeks ago, with rumors about Heftsiba beginning to fly, the rabbis of the 300 families who had purchased apartments from the company, instructed them to squat in the buildings. On August 6, Jerusalem District Court Judge David Cheshin ruled that “at this time,” the apartment purchasers were not to be removed from the premises. Cheshin stressed that this was not to be considered a permit that sanctioned what had been prohibited by previous rulings of other courts with regard to Heftsiba projects.

The State Prosecutor’s Office then turned to the High Court to ask how the state should interpret and implement the restraining order. Ostensibly, the justices had two possibilities: one, to cancel the order and hand over the keys to all the apartment buyers; or two, to keep the order in force and to demand the immediate removal from the premises of the squatters, who were knowingly contravening a High Court directive. However, the justices found a third option: They approved the violation of the order, while upholding it.

The ruling first stated that “no one disagrees that the act of squatting in the apartments is not in keeping with the restraining order.” Nevertheless, the justices also ruled that the squatters should not be evacuated until “the situation is entirely clarified,” and until a solution has been found to their problem. And what about the restraining order? It would remain in force until the final disposition of the petitions, so as to ensure that the ruling would apply only to tenants who breached the restraining order – that is, squatted in the apartments – before August 6, the date of the District Court ruling protecting the Heftsiba victims. First come, first served.

The rather circuitous method of purchasing land in the territories has been exposed in High Court hearings over the past year. Attorney Renato Jarach, former head of the High Court petitions department in the State Prosecutor’s Office, argued for a Canadian company building in Modi’in that the land had been purchased many years ago from people in Bil’in. He said the Jewish buyers had “deposited” the land with the custodian general in the Civil Administration, so as to have it declared state land. Eventually, around the time of the decision to construct the separation fence across Bil’in’s land, the Civil Administration “returned” the land to the buyers, who could then sell it to the construction company. Jarach explained that the system had been invented to protect the Palestinian sellers from the death penalty that they could expect from fellow Palestinians for selling land to Jews.

Other motivations

The police spokesman confirmed that its fraud squad had investigated “those involved” in the Modi’in Ilit city council and the Civil Administration, on suspicion that the building permits were illegally given. If the investigators had found the right files, they would have certainly figured out that this was not just a question of the breaking of planning and construction laws. Dubious powers of attorney show that some of “those involved” were looking after the interests of the Jewish buyers and of middlemen who had been convicted in the past of criminal acts, and that “those involved” were not necessarily motivated by concern for the Arab sellers of the land.

It would be interesting to know how Modi’in Ilit council head Ya’akov Guterman explained to the police a letter that he received from the CPM construction management company on March 15, 2004, stating that it was going to get started on projects in Matityahu East after receiving assurances of building permits for approximately 1,500 housing units. How does this statement jibe with the letter on September 9 of that year from Shlomo Moskowitz, head of the planning and construction bureau in the Judea and Samaria region of the Civil Administration, to Shmuel Heizler, the internal auditor of the Modi’in city council? In that letter, Moskowitz complained that “building permits were given in opposition to existing planning regulations and, therefore, without authorization by the licensing authority.” He added that he had been told that the reason for giving out the permits had been “the determining of facts on the ground, and concern that the Heftsiba construction company would leave the site.”

Moskowitz did not discharge his obligation by sending letters. He and his colleagues in the higher echelons of the Civil Administration bear ultimate responsibility for the wayward conduct in Modi’in Ilit. In March 2005, six months after Moskowitz warned of the offenses, the legal advisor to the Modi’in city council, Gilad Rogel, wrote an internal memo stating: “I have discovered to my shock that at this very time, construction offenses of colossal proportions are being committed in broad daylight.” Rogel said he could not deal on his own with “lawlessness of these proportions” and he had decided to report it to the highest levels.

The officials wrote letters, the laborers hammered, the building supervisors did not see, the buyers paid and the contractors grew rich – until they grew poor. And then, Peace Now and groups of people from Bil’in petitioned the High Court to stop the lawlessness. But the satisfaction of Peace Now for prying a restraining order out of the High Court to stop constructing and populating the site is not complete: They did not intend to hurt the ultra-Orthodox, who just wanted to take possession of their homes. And as always, those who are hurt more than anyone else are the Palestinians, on whose land the High Court seal of approval has been given for Jews to settle.