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The key lines of the decision, which was made by a committee of three judges, Judges Benisch, Proziah and Hendel stated:
We examined the whole of the petitioners’ claims and we came to the overall conclusion that the petitions did not indicate a defect that occurred in the decision of the political-security cabinet as well as in the effects of the postponement order which justify our involvement.
The postponement decision - the subject of the petition - is a clear policy decision approved by the political-security cabinet and which, according to what arises from the response of the State, is designed to bring to advancement the purpose that the government sees as one of its central purposes – "advancing the political process vis-à-vis the Palestinians by means of direct negotiations without preconditions, based on an aspiration to arrive at the conclusion of the conflict and to a permanent peace agreement."
The Legal Forum for the Land of Israel protested the decision harshly. The general Director of the Forum Nachi Ayal said that “the rejection of the petition teaches that in the eyes of the judges the human rights of the Jewish residents of Judea and Samaria is less important than infringing the rights of geese for fattening.”
While, as the Court noted, the freeze order was alleged to advance important political goals, the Legal Forum believes that the rights of residents of disputed territories, as citizens of Israel, are protected by law and should be protected by the judiciary, just as any other citizen’s rights would be, even in the face of important political goals. According to Basic Law: Human Dignity & Liberty and the Supreme Court’s dicta in in Gaza Shore Regional Council v. The Knesset (2005) (dealing with the Disengagement) even a resident of a settlement has the right “to shape his life and his fate encompasses the essentials of his life, how he will live, with what will he work, with whom will he live” and that cutting an “Israeli from his house, his surroundings” violates that right. While the Disengagement was approved by the Knesset in accordance with the exception carved into Basic Law: Human Dignity & Liberty, the construction freeze was only approved by a portion of the cabinet and should not therefore have the power to override the protections of Basic Law: Human Dignity & Liberty. (For more on see The American Legal Forum’s Op-ed in the Jerusalem Post, entitled “A Right to Build”).
Still, the Court’s decision was not a complete failure for the petitioners. Attorney Itzhak Bam, the representative of the Legal Forum who argued its petition before the Court in late November said that following the petition, the order was reduced and limited. In addition, Bam noted that in the decision the Court leveled criticism on the State for rushing into the freeze but did not rush to establish and to activate a mechanism of compensation and to set criteria for compensation.
In the decision the Court said that:
In circumstances in which even the State agrees that a compensation mechanism is an important component in reducing the damages caused by the order, it was possible to expect that the State will act to advance the execution of this mechanism into practice. This was not the way things were from the start, since what actually happened was that at the date of bringing the response of the respondents from 3.22.2010, the Committee of Complaints has not yet began its activities. It should be noted that from the complementary response of the State from 3.22.2010 it arises that only in the beginning of the month of March the respondents crystallized criterions for giving compensation, and there is hope that within a short time all the necessary preparations will be completed, so that the compensation mechanism will begin to continuously treat the matters of the petitioners and others like them.
