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Wednesday, February 01, 2006

What is 'Amona' (Emuna)?

I want to talk to you all a bit about 'Amona,' an 'outpost' about which you might have heard over the last few days. There may be violence in 'Amona' today so I think it's important that those of you who care about Israel know a bit about it. For the record, most of what I'm about to tell you regarding 'Amona' itself comes from a conversation that my wife had with her sister last night. Her sister lives in Ofra. 'Amona' is part of Ofra.

First of all, the name is not 'Amona' as the Israeli press keeps calling it, but Emuna, which means faith. Emuna is located on a hill across from the main town of Ofra. Jews have been living in Ofra since the late 1970's (the first time I was there was on a trip to see the Jewish towns in Samaria in 1978, which was guided by the then-Mayor of neighboring Shilo who was my counselor in camp in 1967. My brother-in-law was one of Ofra's founders). As I pointed out in one of my posts yesterday, Jews have been living in Emuna for more than ten years.

The land on which Emuna is located was purchased from its Arab owner by Jews. The Arab owner is afraid to disclose his identity because he is afraid of being killed. Selling land to Jews is punishable by death in the Palestinian Authority. In a May 21, 1997 interview, Yasser Arafat told the Israeli Newspaper Yedioth Aharonoth, "[This] law ... sets the death penalty for those who sell land to Israelis... We are talking about a few traitors, and we shall implement against them what is written in the law books."

Why has Emuna suddenly become an issue if Jews have been living there for ten years? To understand this, you have to know a little bit of constitutional law and how the Israeli Supreme Court - whose ruling the Israeli government now proposes to have the IDF enforce - works.

In most countries, in order to file a lawsuit, you need two criteria at a minimum. One is called "standing." You have to be a person (or entity) who was directly affected by something that someone else has done. For example, if you are hit by a car (R"L), you have standing to sue the driver of that car (or his insurance company since it has assumed liability for his actions behind the wheel). Your immediate family can probably sue the driver because their quality of life is directly affected by your injuries. But your neighbor upstairs cannot sue the other driver, because he has nothing to do with this. In legal terms, your neighbor has no "standing."

The second criterion is called "justiciability." There are certain types of cases in which the courts will not involve themselves because institutionally they are better suited to resolution by the other (elected) branches of government. The classic case in which courts will not involve themselves is what is called a "political question." In the United States, for example, if you don't like the fact that your troops are in Iraq, you cannot go to court and claim that it's unfair. The court will not hear your claim. That's because Congress, as an elected body, is better qualified to make those policy decisions than the courts. Congress decides its own procedures - the courts won't get involved.

In the Israeli Supreme Court, sitting as a 'High Court of Justice' (a concept originally borrowed from the English law to allow it to sit as a "court of equity"), the twin barriers of standing and justiciability don't exist. In the words of Ariel Bendor, the Dean of Haifa University Law School,

... in dealing with matters of constitutional and administrative law, the Israeli Supreme Court has, for at least fifteen years, hardly ever applied barriers against standing rights and the non-justiciability of political questions. The Israeli Supreme Court is even prepared to discuss the appeals of public applicants whose rights or personal interests have not been damaged, but who claim that the governing authorities have not acted lawfully. The court would reject such appeals only if there is someone who was directly harmed by the decision and who chose not to appeal against it, or if the claimed law-violation does not have any legal or public importance. As a general rule, the Supreme Court also does not place obstructions against deliberations over political questions. In this way, questions that have obvious security aspects have been discussed in the court and were essentially decided upon – questions that concerned political agreements between parties, and even recently the question regarding budgetary allocation for special education. The policy of the Supreme Court in the sphere of standing rights and justiciability based on giving preference to the rule of law, i.e. the need to ensure the existence of the law as opposed to the institutional interests of the court not to deal with questions in which a decision might harm its standing and expose it to the attacks of the criticized political authorities. This is because without judicial imposition of the law it is feared that the law would not be upheld. However, many see the approach that proposes to limit the range of legal control over the authorities as an expression of judicial formalism, as a means of limiting the political function of the court. But in actual fact, the very opposite is true. The avoidance by the court to deal directly with any appeal that is brought before it, however “political” it might be, is an expression of the justice of the judges and the courts and not of laws. The limitation of the standing rights and justiciability – which was practiced in Israel in the past, and is known to be the basic policy of the courts in the United States – is not directed towards legal interference in disputes that concern matters of security, state and religion, and other such sensitive political areas. It is intended to ensure that the position of political authorities – the parliament and the government – will have the upper hand, regardless of what is stated in actual law. It is just such an approach, despite its image, that is far frombeing formalistic. [Emphasis mine CiJ]

In other words, the Israeli Supreme Court acts as "Big Brother" and has essentially turned itself into a supreme legislative branch. (In this regard, you may wish to see Is it Legitimate to Criticize the Supreme Court? Aharon Barak's Revolution).

What does this have to do with Emuna? Everything. Because the entire Emuna situation was not the result of an aggrieved Arab complaining that his land was stolen. It was the result of the Israeli leftists of Peace Now filing an appeal with the Supreme Court, claiming that 'Emuna was built on private Arab land' (as if that is a crime in and of itself). As is stated on their web site:

In the beginning of July 2005, Peace Now, presented by attorney Michael Sfard, submitted a petition to the High Court of Justice where the respondents were the Minister of Defense, the Commander of the IDF forces on the West Bank, the Head of the Civil Administration and the Commander of the SHAI Police District, accusing them of not implementing the cease and desist orders for work being carried out on the site, as well as not carrying out the demolition injunctions issued against the buildings back in October 2004.

In most other western countries, Peace Now's petition would have been thrown out because it lacks standing and because the question it presents is political. Determining where a country's citizens will be allowed to live is about as political a question as can be presented. Peace Now is clearly not directly affected by the presence of Jews on Emuna's land. But in Israel, where everything is a subject for the courts, Peace Now's petition may result in bloodshed today. That blood - R"L - will be on their heads and those of the Supreme Court justices who have appropriated the legislative powers in this country to themselves.

For those of you who are wondering why you see religious children on television saying that they obey God's laws and not the State's, you now understand where that comes from too. The Supreme Court under Chief Justice Barak - by supplanting the Knesset's will with its own will - has implanted a disrespect for the rule of law here that may take generations to be undone.


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