HCJ nixes law regularizing West Bank land encroachment

Esther Hayut  photo: Alon Ron

In a majority ruling, Israel's High Court of Justice found that the law infringed Palestinians' property rights and their right to equality.

The High Court of Justice has ruled that the "regularization law" concerning land in Judea and Samaria (the West Bank) is unconstitutional and has ordered that it should be annulled. In a majority of eight judges to one, Judge Noam Sohlberg, the court struck down the law, which was intended to regularize illegal settlement on land in Judea and Samaria, including settlement encroaching on land privately owned by Palestinians.

The law provides for the retroactive legalization of building on land by a person who did not own the rights to the land but who acted in good faith or with the agreement of the state, as defined in the law.

The court found that the regularization law infringed the property rights and the right to equality of the Palestinian residents of the area, and gave clear preference to the interest of Israeli settlers, without individual examination of the cases in which settlements were constructed and of the state's involvement in their construction, and without giving sufficient weight to the special status of the Palestinians in the area as "protected residents" in territory captured in war.

According to the majority decision, the law seeks to legalize retrospectively the forcible and illegal seizure of land that has owners of rights in it.

On the planning aspect, the court held that the law infringed the right to equality because of the different and beneficial treatment of construction offenders in the area in comparison with Palestinian construction offenders in the same area, and also in comparison with construction offenders within Israel itself.

The court held that the infringement of rights caused by the law was severe and clear, and disproportionate, and that the damage caused by the law outweighed its benefits, particularly in view of the fact that in many cases there exist other legal means of obtaining its worthy aim, with less harm to property rights and the right to equality.

For his part, Judge Sohlberg said that the law could have been amended by narrowing the definitions of the terms "settlement" and "state" to exclude agricultural and industrial use of land and to make the term "state" mean the central government only and not local authorities. The judge said that although the law did infringe constitutional rights, unusual solutions were called for in unusual circumstances, and that judicial review should take account of the complex factual and legal reality.

Attorney General Avichai Mandelblit refused to defend the law in the High Court of Justice, and in his opinion submitted to the court he supported the stance of the petitioners who argued that the law should be annulled. The government was represented by a private lawyer. The petitions were filed in March 2017, the hearing took place in June 2018, and now, after more than three years, a ruling has been given annulling the law.

The Likud party said in response to the court's decision: "It is regrettable that the High Court of Justice intervened and struck down an important law for settlement and its future. We will act to legislate the law again."

The Blue and White party stated: "The regularization law in its format as legislated contravenes Israel's constitution, and the problems with it were known even before the Knesset passed it. We respect the High Court of Justice's ruling and we will see to it that it is implemented."

Published by Globes, Israel business news - en.globes.co.il - on June 10, 2020

© Copyright of Globes Publisher Itonut (1983) Ltd. 2020

Esther Hayut  photo: Alon Ron
Esther Hayut photo: Alon Ron
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