Editorial: Unsettled law

Here’s a novel concept in dealing with the Ulpana apartment buildings in Beit El, Israel: Apply law and equity, and forget politics.

The 30 apartment units are ordered by Israel’s highest court to be demolished by July 1. The court determined that the absence of necessary permits and the construction on private Palestinian land was sufficiently violative of law to merit their destruction.

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Many who have advocated for honoring the court’s decision are in the camp of those who politically oppose expansion of settlements. They see any action by Knesset to undo the judicial ruling as a political move to once again favor Jewish settlers over Palestinian interests.

But some opponents of demolition say that position doesn’t take into consideration the interests of dwellers who spent money for the units without knowledge or control of the underlying legal status of the land.

And in fact, there’s a separate current lower court case pending that deals with who the rightful owner of the property was at the time of the development.

It would be a much more interesting debate if the lines for the fracas weren’t being drawn along the same ole same ole, namely, hard-line settlement supporters in favor of a stay against the demolition, and the leftists preaching in favor of the so-called Rule of Law.

There’s very little question that no matter how this turns out, the political landscape will claim the headlines. But that’s not really right, because the issue at hand has much less to do with politics and much more to do with what’s right and fair.

Courts in this country, in Israel and in other democracies deal with issues such as Ulpana all the time. Someone holds out a product, a house, or anything as legit and the buyer, unaware of the underlying possessory dispute, takes the bait and buys the thing. As long as the buyer has acted in an arms length fashion, and is not complicit in the fraud that’s been perpetuated, why should he or she be punished in the outcome?

Because the main focus in such cases is often on equitably balancing a variety of interests, the facts reign supreme in reaching a decision about these questions: What did the buyer know and when did he know it? How much time passed and did the actual owner have time to object before the construction occurred? Is there a way to get at the funds so they can be distributed to the right party? And if a demolition occurs, who is going to be made whole from the damage, and on what basis?

Unfortunately, this situation will take on overtones far more extensive than the legal niceties; in fact, we daresay that the underlying facts will become almost irrelevant. Another day, another battle on settlements, another day in which public relations battles will ensure no one will win and everyone will lose.

There’s another factor that many will fail to consider: There’s nothing in a democratic form of government that prevents a legislature from reversing a judicial decision, unless such is precluded by an underlying constitution. So Knesset is well within its rights and authority to make a different determination from that of the Supreme Court.

But if it does so, Knesset must bend over backward to ensure that the rights of all non-violative parties are protected. If a demolition occurs, legislators should provide a fund for any good faith, bona fide buyers to be compensated for their loss. And if the settlements are allowed to stand, a high-value recompense must go to the true property owner to justify the loss of his land.

To do otherwise than follow best legal practices would at the very least be creating the perception of a purely political decision, and at most ascribe to Knesset an ulterior motive in recognizing the rights of Jews but not Palestinians. That would not be a particularly useful outcome during this time of ever-present tension about the settlement question.