Thursday, June 28, 2012

A retrial for Migron - Meeting the values of a democratic state and the values of a Jewish state

Dr. Aviad Hacohen..
Israel Hayom..
28 June '12..

The finality of a ruling is a cornerstone of the legal system; once a final ruling is handed down, there can be no further debate. This is how the legal system avoids endless appeals and the uncertainty that accompanies them.

But there is an exception to every rule, and this rule has exceptions in various legal fields. Though these cases are rare, it is possible, and wise, to enact these exceptions to the finality rule, especially when it is the only way to serve justice.

For example, in a criminal proceeding, when new evidence that could exonerate the defendant is revealed after the final ruling is made, it would be right to hold a retrial and reduce the sentence or even to acquit the accused. The same is true for alimony rulings, when a significant change in the circumstances justifies an adjustment of alimony payments.

If such exceptions occur in district courts, they should certainly occur in the High Court of Justice. As its name suggests, the High Court of Justice does not only rely on legal considerations but also feeds on the laws of integrity and justice. There are unusual cases when justice requires overturning even final verdicts.

If the news reports are true and Jews have legally purchased the land on which the outpost of Migron is situated, from willing sellers and for the full cost, then the verdict ordering the outposts' evacuation must be reconsidered. In light of the new circumstances, there is room to make an exception and reopen the case before the High Court of Justice in order to reach a more just verdict, especially considering that Migron's residents bought their homes in good faith and with real money.

Difficult cases produce difficult decisions. The High Court's important verdict on Migron once again highlighted the fact that the end, as important as it may be, does not always justify the means, and certainly does not justify a violation of individuals' selling rights. The message, one should hope, has already been heard loud and clear.

It is precisely for this reason that in light of the new circumstances, assuming that the legality of the purchase is proven beyond a shadow of a doubt, the land that was bought for its full price, and thus the homes constructed on it, should be allowed to remain intact and their residents not evacuated.

Such a policy would fall in line with the values of a democratic state — of justice and law — and also with the values of a Jewish state, recognizing the immense importance of "takanat hashavim" (the Talmudic ordinance for a compassionate justice in the restoration of misappropriated property) which allows those who sinned and stole land to avoid demolition by offering reasonable compensation.  (I don't believe that Dr. Avidad Hacohen meant to imply that the residents of Migron had "stole" the land, nevertheless the concept of offering reasonable compensation would surely apply in this case all the more so. Y.)


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