Challenging Demolition Orders against the Sawaed Brothers' Homes in Husseniya.

Permission for Criminal Appeal 1782/03, Misgav Local Planning and Building Committee v. Yousef and Housni Sawaed.

In 7/01, Yousef and Housni Sawaed, Arab citizens of Israel living in the village of Husseniya, were informed that administrative home demolition orders had been issued by the Misgav Local Planning and Building Committee (MLPBC) for each of their houses. The brothers thereafter filed an appeal to the Acre Magistrate Court. In 10/01, their request to cancel the orders was rejected. They immediately filed an appeal against this decision to the Haifa District Court, which cancelled the demolition in 1/02. The following month, the MLPBC filed an appeal to the Supreme Court. At this stage, the Sawaed brothers approached Adalah to assist them in their case.

In 1/04, Adalah submitted legal arguments on behalf of the Sawaed brothers to the Supreme Court, arguing that the Court should uphold the decision of the Haifa District Court, which ruled that the failure of the MLPBC to consult with the head of the local committee of Husseniya prior to the issuance of the demolition order, as required by the Planning and Building Law - 1965, rendered the order invalid; the MLPBC had only consulted with the head of the Misgav Regional Council prior to issuing the orders against the Sawaed brothers' homes. Adalah also argued that the Local Council Order - 1958 provides that in cases of home demolition orders, the authority of the MLPBC to decide upon these issues is transferred to the local committees that fall within the jurisdiction of the Misgav Regional Council - in this case, the local committee of Husseniya. Thus, the MLPBC should have consulted with the head of the Husseniya local committee and not with the head of the Misgav Regional Council. Therefore, the orders are invalid and the Haifa District Court's decision to cancel the demolition should be upheld.

At a hearing before the Supreme Court in 2/04, the MLPBC argued that the heads of local committees could not be trusted regarding the issuance of home demolition orders, as they are influenced by community forces that prevent them from providing impartial consultation. Supreme Court Justice Matza criticized the MLPBC for advancing such an argument. Essentially, the MLPBC's argument, if accepted, would moot all powers of elected local committees. Adalah submitted supplemental arguments to the Court in 2/04.

In 12/04, the Supreme Court issued its decision, accepting the MLPBC's appeal and overturning the Haifa District Court's decision. The Supreme Court ruled that there is no duty to consult with local villages / settlements committees before issuing home demolition orders. The Supreme Court held that "both the literal interpretation and the purpose [of section 238(b) of the Planning and Building Law - 1965] indicate that, before issuing an administrative demolition order, the head of a regional planning committee is obliged to consult with the head of the regional council, rather than with the head of the local committee of the village in which the illegal building is located." The Court rejected Adalah's argument that a local authority "includes the local committee," holding that a "'local committee' is not a 'municipality' or 'local council' as this expression is defined in the Local Authority Laws and in the Planning and Building Law, which applies to this case." The Court also decided that consultation with the head of the regional council is sufficient because the judgment of local elected leaders regarding demolitions can be compromised by their close relationships with residents of the village/settlement.

It is Adalah's position that the Court's decision deviates from accepted principles of statutory interpretation, and renders meaningless the purpose of the obligation to consult with the head of the local authority, in this case, the local committee, which is to gain public participation through consultation with the representatives of local residents. Consultation with a community's directly elected body is part of the democratic process, and especially important where administrative decision-makers are responsible for decisions taken without a legal procedure or prior hearings. In Adalah's view, the argument that the close relationship between a local committee and its residents might prejudice the committee's decision-making abilities is very problematic, as it legitimizes different treatment for villages which are managed by elected local committees, and those managed by municipalities or local councils, which also enjoy close relations with their residents. In addition, this argument is fuelled by unfavorable prejudices against small elected bodies, with the absurd result that because of the close relationship between an elected body and the concerns of its residents - which an elected body is supposedly duty-bound to enjoy - the representative body is not allowed to express its interests.

Permission for Criminal Appeal 1782/03, Misgav Local Planning and Building Committtee v. Yousef and Housni Sawaed (decision delivered 30/12/04).