The Attorney General supports the eviction of the Sumarin family from Silwan

The Attorney General submitted today to the Supreme Court his position on the appeal of the Sumarin family from Silwan, ruling that in his opinion there is no impediment to evicting the family. It will be recalled that the JNF/KKL (The Jewish National Fund) filed the eviction suit (through its subsidiary Heimanuta), but it later turned out that the JNF was working for the Elad settler organization who is behind the lawsuit and is expected to receive the house from the JNF if it is evacuated. In April 2021, the Supreme Court sought the Attorney General’s position on this issue, as it did regarding the eviction claims in Batan Al-Hawa in Silwan. The Supreme Court is expected to decide in the coming days on how to proceed in the case and is likely to set a time for hearing all the sides, including the Attorney General.

A few months ago, 34 recipients of Israel Prize, 125 intellectuals, academics and world-renowned artists as well as others approached the JNF demanding that they avoid the injustice and leave the Sumarin family alone. It seems that the Government is now joining the eviction demand.

Peace Now: Instead of intervening and doing justice, the Israeli government, through the Attorney General, becomes a direct partner in crime and unforgivable injustice. The Attorney General chooses to ignore the context and the injustice behind the eviction suit  and dives into quasi-legal questions to help settlers take over another property in Silwan. The Government’s fingerprints are smeared all over the Sumerin case. This is a political move in which government mechanisms such as the Custodian of Absentee Property and the Israel Land Administration and the JNF have been utilized in order to dispossess Palestinians of their property in East Jerusalem and replace them with settlers.

Background: The eviction lawsuit against the Sumarin Family

The Sumarin family fell victim to a vicious system developed by Likud government officials in the 1980s, along with settler organizations and the Jewish National Fund, according to which the settlers and the JNF initiated a declaration of properties in Silwan as “absentees’ properties”, and then these properties were transferred to the JNF and from there to the settlers. The method was exposed and stopped by the Rabin government, which set up a commission of inquiry into the matter (the “Klugman Commission”), but the assets themselves were not returned to the Palestinians.

And this is how the method worked in the case of the Sumarin family:

In 1987, the Custodian of Absentees’ Properties declared the Sumarin family home as an absentee property, behind the back of the Sumarin family and without her knowledge. The Custodian based his declaration on an affidavit he received at the initiative of the JNF and the settlers, according to which the landlord, Haj Musa Sumarin, the uncle of the Sumarin family who lives in the house, was absent.

It later became clear that Haj Musa Sumarin was not absent and he lived in Silwan until his death in 1983 (even a basic check in the population register was not done), but this did not prevent the Custodian of Absentees’ Properties from re-declaring the property as “Absentee’s Property” because Haj Musa’s sons were absent. This declaration was also made without checking whether the sons were truly absent and whether they were the sole heirs of Musa. The property was then transferred from the Custodian to the Development Authority and from there to the JNF. The JNF has signed a confidential agreement with the Elad Association, according to which the association will provide legal representation in the eviction lawsuit, and in return will receive the house.

The lawsuit against the Sumarin family was first filed by the JNF through its subsidiary Heimanuta in 1991 and after it lost, and appealed, and again lost, it filed a new lawsuit. This time it won in the Magistrates’ Court and the District Court and now the issue is being brought before the Supreme Court. For 30 years the Sumarin family has been struggling to prevent its eviction, and now the danger of eviction is closer than ever.

It should by mentioned that the Sumarin house is a strategic property located just tens of meters from the Al-Aqsa Mosque, and adjacent to which the settlers of the Elad Association established the “City of David” visitor center. Taking over this property will allow the Elad Association to complete a huge area of control at the entrance to Silwan, dig additional archeological diggings, and further reduce the Palestinian presence in this sensitive area.

See more about the use of Absentee’s Property Law to take of Palestinian properties in East Jerusalem in Peace Now’s report: Annex and Dispossess.

The position of the Attorney General

The Attorney General chose to ignore the context and proceeded to deal with the details of the legal issues that arise in the case without referring to the criminal way in which the JNF (and in fact Elad) acquired ownership of the property, in a dubious process of declaring “absentee properties” and transferring them to the JNF.

In order to understand the Attorney General’s position, one needs to look at the chain of events in the 30 years since the first JNF lawsuit was filed in 1991:

1991 – The JNF (Heimanuta) submits an eviction claim against the Sumarin family (Civil Claim, 5980/91).

1994 – Judge Yehudit Tzur rules that the declaration of the property as absentee property was made unlawfully and therefore the claim for eviction is denied. It turned out the person who was declared “absentee,” Mussa Sumarin, lived all his life in Silwan until he died in early 1980’s

1996 – In an appeal filed by Heimanuta on the verdict (Civil Appeal 21/95), the District Court found that the declaration of absentee property was valid (because the sons of the “absentee” Mussa Sumarin lived abroad and they are considered absentees), but sent the case back to the Magistrate Court to determine whether the Sumarin family has rights to the property by virtue of an agreement or authority that can override Heimanuta’s rights to the property.

1999 – The Magistrate Court (Justice Rafi Strauss) ruled that the Sumarin family had a right to the property by virtue of a permission the family got from the original owner and by a purchase agreement signed between the landlord and the father of the family. Heimanuta’s appeal therefore was rejected.

1999 – The Sumarin family filed a claim in the District Court to declare ownership of the property but failed.

2005 – Heimanuta returned and filed a new eviction lawsuit against the Sumarin family (Civil Claim 12797/05). The case took many years, and on September 20, 2019 the Magistrate’s Court accepted the lawsuit and ruled that the Sumarin family should vacate their home.

On June 30, 2020, the appeal of the Sumarin family to the District Court was rejected. The family filed a request to appeal to the Supreme Court who asked the Attorney General’s opinion on the case.

The legal question to which the Attorney General refers

The main legal question before the Supreme Court now is whether it is possible today to overturn the final ruling from 1999, which ruled that the father of the Sumarin family, Muhammad Sumarin, has the right to live in the property, or was the Magistrate’s Court right when ruled that the family no longer had such a permission.

In his response, the Attorney General analyzes the issue of permission in real estate law, and states that the circumstances that have changed since the 1999 ruling, allow for a re-examination of the question. According to the Attorney General the Magistrate Court and the District Court were right when they ruled that the family no longer has a permission from the owner to live in the house.

First, the Attorney General argues that the 1999 ruling did not address at all the possibility that the owner changes his mind and withdraws from the permission, because at the time the JNF, did not claim that it sought to revoke the permission, but denied that there was any permission from the first place.

Only now, in the current lawsuit, does the JNF announce that it does not give the family any permission to live in the house, so this is a new question that was not before the court in 1999 and there is no claim preclusion (“res judicate”) about it.

It is important to emphasize that in this context the Attorney General completely ignores the circumstances in which the property came into the possession of the JNF, as if it were a purchase from the original owner and not a takeover in cunning ways whose legality is questionable.

In addition, the Attorney General claims that since the father of the family, Muhammad, who received the permission from his uncle Haj Musa, recently passed away, there is a question as to whether the permission given to him is inherited by his widow and children as well.

These two questions are new questions that were not discussed in 1999 and therefore, in the opinion of the Attorney General, there was room to re-open the 1999 ruling.

The Attorney General’s final conclusion is that the Magistrates’ Court and the District Court were right when they accepted the lawsuit and ruled that the Sumarin family has no permission to be in the house and must vacate it.

The Supreme Court will decide in the coming days on how to proceed in the case and will probably set time for hearing all the sides, including the Attorney General.

To read the Attorney General opinion (in Hebrew) – see here

For more information on the cooperation between the Elad settlers organization and the JNF, see here.