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3 of 9 DOCUMENTS
SUPREME COURT OF ISRAEL
Aadel Kaadan v. Israel Lands Administration
HCJ 6698/95
THE SUPREME COURT
October 29, 1995 (case date)
March 8, 2000, Delivered


JUDGES: Aharon Barak; Theodor Or; Mishael Cheshin; Yaakov Kedmi; Itzhak Zamir
JUDGMENTS: HCJ 6698/95

1. Aadel Ka'adan

2. Iman Ka'adan

v.

1. Israel Land Administration



2. Ministry of Construction and Housing

3. Tel-Eron Local Council

4. The Jewish Agency for Israel

5. Katzir, a Cooperative Society for Communal Settlement in Samaria Ltd.

6. Israel Farmers Association

The Supreme Court Sitting as the High Court of Justice

[March 8, 2000]

Before President A. Barak, Justices T. Or, M. Cheshin, Y. Kedmi, I. Zamir

Petition to the Supreme Court sitting as the High Court of Justice

Facts: The State of Israel, through the Israel Lands Administration, allocated land in the Eron valley region to the Jewish Agency for Israel. The Jewish Agency, through a cooperative society, set up the settlement of Katzir on this land. The objectives of the Jewish Agency for Israel include the settlement of Jews throughout the land of Israel. For its part, the cooperative society will only grant membership to Jews. Petitioners, a couple with two daughters, are Arabs. They requested to live in the settlement of Katzir. According to petitioners, their request was immediately denied by reason of their being Arabs, since the land was allocated for the exclusive establishment of a Jewish settlement.

Held: The Court held that the principle of equality is one of the foundational principles of the State of Israel. It applies to all actions of every government authority. The Court held that the policy constituted unlawful discrimination on the basis of nationality. The Court held that the fact that the settlement was built through the Jewish Agency for Israel could not legitimize such discrimination.

Justice Y. Kedmi in a separate opinion was of the view that only a declaratory judgment regarding the status and weight of the value of equality with regard to the allocation of state land was warranted along with the clarification that the judgment is forward-looking and does not provide grounds to re-examine acts performed in the past.

For petitioners-Neta Ziv, Dan Yakir

For respondents 1 & 2-Uzi Fogelman

For respondent 3-Ilan Porat

For respondent 4-Dr. Amnon Goldenberg, Aharon Sarig, Moti Arad;

For respondents 5 & 6-Gad Shteilman, Yehudah Torgeman.

Basic laws cited:

Basic Law: Israel Lands, s. 1.

Basic Law: Human Dignity and Liberty, ss. 1, 8.

Basic Law: Freedom of Occupation, s. 4.

Legislation cited:

Law of Return 5710-1950.

World Zionist Organization -- Jewish Agency (Status) Law, 5722-1952, s.

8(b).

Israel Land Administration Law, 5720-1960, s. 3.



Draft legislation cited:

Draft Proposal for Basic Law: National Lands, Hatzaot Hok 5719-1959 at 272 in 27 Divrei Knesset (5719-1959).

Draft Proposal for the Israel Land Administration Law, 5720-1960 (Hatzaot Hok 34).

Israeli cases cited:

[1] CA 55/67 Kaplan v. State of Israel, IsrSC 21(2) 718.

[2] HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309.

[3] HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46(2) 692.

[4] CA 105/92 Re'em Engineers and Contractors Ltd. V. The Municipality of Nazareth-Illit, IsrSC 47(5) 189.

[5] HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485.

[6] HCJ 114/78 Burkan v. Minister of Finance, IsrSC 32(2) 800.

[7] HCJ 1703/92 C.A.L. Cargo Airlines Ltd. v. The Prime Minister, IsrSC 52(4) 193.

[8] EA 2/88 Ben-Shalom v. The Twelfth Knesset's Central Elections Committee, IsrSC 43(4) 221.

[9] HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.

[10] HCJ 840/79 Israeli Contractors and Builders Center v. The Government of Israel, IsrSC 34(3) 729.

[11] HCJ 262/62 Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu IsrSC 16 2101.

[12] LCA 5817/95 Rosenberg v. Ministry of Construction and Housing, IsrSC 50(1) 221.

[13] HCJ 5023/91 Poraz v. Minister of Construction and Housing, IsrSC 46(2) 793.

[14] HCJ 392/72 Berger v. Regional Committee for Planning and Construction, Haifa Region, IsrSC 27(2) 764.

[15] HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49(4) 94.

[16] HCJ 2671/98 Israel Women's Network v. Minister of Labour, IsrSC 52(3) 630.

[17] HCJ 73/53 Kol Ha'Am Company Ltd. v. Minister of the Interior, IsrSC 7 871.

[18] HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel, IsrSC 51(2) 509.

[19] HCJ 5016/96 Horev v. Minister of Transportation, [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[20] HCJ 528/88 Avitan v. Israel Land Administration, IsrSC 43(4) 297.

[21] HCJ 1000/92 Bavli v. Great Rabbinate Court of Jerusalem, IsrSC 48(2) 221.

[22] HCJ 453/94 Israel Women's Network v. The Government of Israel, IsrSC 48(5) 501.

[23] EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19(3) 365.

[24] LCA 7504/95 Yaasin v. Party Registrar, IsrSC 50(2) 45.

[25] LCA 2316/ 96 Isaacson v. Party Registrar, IsrSC 50(2) 529.

[26] HCJ 175/71 Abu-Ghosh/Kiryat Yearim Music Festival v. Minister of Education and Culture, IsrSC 25(2) 821.

[27] HCJ 200/83 Wathad v. Minister of Finance, IsrSC 38(3) 113.

[28] EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225.

[29] HCJ 4212/91 Beth Rivkah National-Religious High School for Girls v. The Jewish Agency for Israel, IsrSC 47(2) 661.

American cases cited:

[30] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[31] Burton v. Willmington Parking Authority, 365 U.S. 721 (1961).

Canadian cases cited:

[32] Eldridge v. B.C. (A.G.) [1997] 3 S.C.R. 624.

Israeli books cited:

[33] Y. Weisman Property Law 216-217 (3rd ed. 1993).

[34] I. Zamir, Administrative Power 236-37 (1996).

[35] Y. Dotan, Administrative Guidelines 315-16 (1996).

Israeli articles cited:

[36] R. Alterman, 'Who Will Sing the Praises of the Israel Lands? An Examination of the Justification for the Continued Local Ownership of Land,' 21 Iyunei Mishpat at 535 (1998).

[37] Barak-Erez, 'An Acre Here, an Acre There'--Israel Land Administration in the Vise of Interest Groups, 21 Iyunei Mishpat 613, 620 (1998).

[38] E. Benvinisti, "Separate But Equal" in the Allocation of State Lands for Housing, 21 Iyunei Mishpat 769 (1998.

Non-Israeli articles cited:

[39] D. Days, Brown Blues: Rethinking the Integrative Ideals, 34 Wm. & Mary L. Rev. 53 (1992).

[40] M. Tein The Devaluation of Non-White Community in Remedies for Subsidized Housing Discrimination, 140 U. Pa. L. Rev. 1463 (1992)

Jewish Law Sources Cited:

[41] Genesis, 1:27.

[42] Leviticus 24:22.

[43] Babylonian Talmud, Tractate Ketubboth, 33a.

[44] Babylonian Talmud, Tractate Babba Kamma 83b.

Other:

[45] Proclamation of Independence of the State of Israel.



[46] Universal Declaration of Human Rights.

[47] Covenant on Civil and Political Rights (1966).

[48] European Convention on Human Rights.

JUDGMENT


President A. Barak

The State of Israel has allocated land to the Jewish Agency for Israel. The Jewish Agency, in turn, has established a communal settlement on that land. The settlement was established through a cooperative society. In accordance with its objectives the Jewish Agency deals with the settlement of Jews in the State of Israel. The cooperative society, for its part, in fact accepts only Jews as members. The result in this situation is that an Arab cannot build his home on state lands allocated to the Agency. Under these conditions - and taking into account the circumstances of the case -- is the State's decision to allocate lands to the Agency unlawful, due to prohibited discrimination against Arabs? That is the question before us in this petition.

The Facts

1. The State of Israel is the owner of lands in the Eron valley region. On some of these lands it is in the process of establishing a large urban settlement called Harish. In another area, some distance from Harish, two adjacent hills were settled that together constitute the settlement of Katzir. On one of these hilltops, called "The Central Hill", the State (the Ministry of Construction and Housing: respondent no. 2) established a neighborhood. The State constructed the residential units. These units were allocated to the public at large, in accordance with the customary rules of the Ministry of Construction and Housing. Both Jews and Arabs are entitled to purchase residential units in this neighborhood. The area located on the second hilltop (known as the "Western Hill") was allocated for development to the Jewish Agency for Israel; respondent no. 4 (hereinafter; The Jewish Agency) by the State of Israel (the Israel Land Administration: respondent no. 1. Hereinafter: "the Administration") -- within the framework of a "licensing agreement". The Agreement, drawn up in 1986, is for a term of seven years. It is extended periodically. The last agreement, dated September 1, 1993, was to remain in force until the year 2000.

2. The Jewish Agency decided to establish a rural-communal settlement on the land it received from the State (on the Western Hill). It established (in 1982), the Katzir Communal Settlement [hereinafter: "the Communal Settlement"]. The Jewish Agency invested considerable sums in it, in the form of infrastructure and buildings. Katzir is a cooperative society for communal settlement (respondent no. 5: hereinafter the Katzir Cooperative Society). It was formed (in 1981) with the assistance of the Israel Farmers Association (respondent no. 6). The goals of the Katzir Cooperative Society are, inter alia, to establish, maintain and manage a rural communal settlement, set up on the basis of the organization of its members as a community that institutes cooperation among its members. The cooperative society numbers more than 250 families. These families built their homes in Katzir, leading their lives in a communal and cooperative framework, as defined in the Society's bylaws. These bylaws stipulate, inter alia, that only a person who, inter alia, "has completed [the] compulsory military service in accordance with the Security Service Law [Consolidated Version]-1959, or has been discharged from compulsory service under that same law, or whose military service was postponed in accordance with that law" (chapter C, s. 6e of the regulations, as amended on 8.2.82.) may be admitted to the Society. In point of fact, Arabs are not admitted as members of the Cooperative Society.

3. From a municipal standpoint, the Katzir Communal Settlement is managed by a local committee. It is within the jurisdiction of the Tel-Eron Local Council (respondent no. 3). The urban settlement of Harish is also within that Council's jurisdiction.

4. The petitioners are a couple with two daughters. They are Arabs currently living in an Arab settlement. They sought - and continue to seek -- to live in a place where there exists a quality of life and a standard of living different from the one in which they currently live. The petitioner approached (in April, 1995) the Katzir Cooperative Society and requested information regarding his options for purchasing a house or lot in the Katzir Communal Settlement. According to the petitioner's claim, he was told on the spot that, as he was an Arab, he would not be accepted to the Communal Settlement given that the lands upon which the Communal Settlement was built were designated exclusively for Jews. As a result, (on April 7, 1995) the Association for Civil Rights in Israel, approached the Local Council of Tel-Eron on the petitioners' behalf, and filed a complaint about the response the petitioners were given. The Council replied, (on July 16, 1995), that the procedures governing acceptance to the Communal Settlement are under the control of the Cooperative Society, and that the petitioners were free to purchase a residential unit in the urban settlement of Harish. The Association for Civil Rights in Israel subsequently filed a complaint with the Minister of Construction and Housing and the Director of the Administration. Their complaints were not responded to as of the date of the filing of this petition.

5. Upon the filing of the petition, (on October 30, 1995), an order nisi was granted. The respondents were requested to show cause as to:

"1. Why they (the Administration, the Ministry of Construction and Housing and the Local Council)or one of them, do not offer lots for independent building in the Katzir settlement, by way of tender, or by any other alternative manner, which would maintain equality of opportunity between all those interested in settling in the settlement; and

2. Why they do not amend their policy or their decision whereby lots for independent building in the Katzir settlement are allocated only after receiving approval (from the Jewish Agency and the Katzir Cooperative Society - A. B.) of acceptance of a candidate for residence in the Cooperative Society as a member (in the Cooperative Society - A.B.) and why they should not adopt all the steps demanded by such an amendment; and

3. Why they do not enable the petitioners to directly purchase from (the Administration, the Ministry of Construction and Housing or from the Local Authority - A.B.) a lot for personal construction in the Katzir Settlement, on which they can build a home for themselves and their children."

The petition was heard, (on October 13, 1996), before a panel of three (Justices Goldberg, Kedmi and Zamir). The panel decided that, in light of the issues raised by the petition, the presiding panel should be expanded. The judges convened for oral arguments (on March 19, 1997) and we decided to hear the parties' claims by way of written summations. Upon completion of the first round of summations, (on February 17, 1998), I recommended to the parties that an effort be made to find a practical solution to the petitioners' problem. I noted that such a solution may be found within the framework of the Harish Urban Settlement or the Katzir Communal Settlement, with the petitioners submitting their candidacy to the Cooperative Society. Mr. Bar-Sela was appointed as a mediator. His efforts failed. The petitioners notified us of this, (on December 17, 1998), and requested that the Court rule on the merits of their petition.

The Petitioners' Claims

6. The petitioners' principal claim is directed against the policy according to which settlements are established which are intended exclusively for Jews. They claim that establishing settlements in such a manner, as well as allocating land on the basis of nationality or religion (whether directly or by way of allocation to entities whose operation is based on these criteria) violates the principle of equality and therefore cannot be upheld. Their primary arguments, on this issue, are directed at the Administration. They argue that the Administration breaches its obligation to act as a fiduciary for all Israeli citizens and residents and to treat them equally in its allocation of State land to entities (such as the Jewish Agency, the Farmer's Association and the Katzir Cooperative Society) which make use of the land in a discriminatory and unequal manner.

7. The Petitioners are not disregarding the Jewish component in the identity of the State of Israel, nor do they disregard Israel's settlement history. Their petition is forward-looking. They submit that the Jewish component in the identity of the State carries determinative weight only in matters that are fundamental to the Jewish essence of the State -- such as the Law of Return 5710-1950. Additionally, the petitioners do not completely negate the right of a closed community to establish unique criteria for accepting new members -- provided that the community in question is truly distinct, with clearly defined characteristics, displaying a high degree of solidarity and cooperation between its members. It is the petitioners' contention that such characteristics do not exist in the Katzir Communal Settlement.

The Respondents' Claims

8. The respondents raise two preliminary claims. First, they claim that the petition was filed after a prolonged delay, as the land upon which the Communal Settlement is situated was allocated to the Jewish Agency many years ago, and since that time the respondents have invested considerable investments in its development and infrastructure. The respondents also argue that the change in the existing situation, sought by the petitioners today, would also lead to a serious encroachment on their autonomy, and interference with the social-settlement fabric that the society's members have chosen. In this regard, the respondents go on to claim that if the petitioners desire to alter the existing situation, they have the option of waiting until September 1, 2000, at which time the existing development license is scheduled to expire. Therefore, the petition suffers from both delay and prematurity. An additional preliminary claim raised by the Katzir Cooperative Society relates to the fact that the petitioners failed to actually apply for membership in the Cooperative Society. Their application was therefore never evaluated on its merits, and was consequently never rejected. In light of the above, the Cooperative Society claims that the petition was filed prematurely. Furthermore, the Cooperative Society claims that it has the autonomous authority to decide whether to accept or reject any of the candidates for membership, and that the authority to review the exercise of this discretion, lies only with the general court system, and not with the High Court of Justice.

9. Substantively, respondents 1 and 2 (the Administration and the Ministry of Construction and Housing) claim that they acted lawfully in allocating the land to the Jewish Agency, in reliance on the World Zionist Organization -- Jewish Agency (Status) Law, 5722-1952 [hereinafter: "the Status of the Jewish Agency Law"], and the "Covenant between the Government of Israel and the Jewish Agency for Israel" dated 28.6.79 (Yalkut Pirsumim 5737-1979 2565 at 2172 [hereinafter: "the Covenant"], the Covenant replaced the prior Covenant of 1954) and that given the specific circumstances of the case, and in view of the restrictive language characterizing the order nisi issued, the Court is not required to conduct an in-depth examination of the general constitutional issues raised by the petitioners by way of their specific petition.

10. The Jewish Agency clarifies that it has set itself the goal to settle Jews all over the country in general, and in border areas and areas with sparse Jewish population in particular. This goal, the Agency asserts, is along with the other goals it has set itself a legitimate goal, anchored in the Status of the Agency Law and the provisions of the Covenant, and is consistent with the State of Israel's very existence as a Jewish and democratic state. As such, it argues, granting the present petition would effectively signal the end of the extensive settlement enterprise operated by the Agency since the turn of the century. It would also constitute a violation of the Agency's freedom of association, and essentially thwart one of the fundamental purposes at the core of the Agency's existence. Furthermore: no one disputes the petitioners' (or any other person's) right to establish a new settlement or join an existing one; however, this does not mean that the petitioners may demand to settle in a settlement established by the Jewish Agency and to benefit, directly, or indirectly, from the Jewish Agency's investment. In this matter, it goes on to claim that the Supreme Court has in the past recognized the authority to allocate residential land to an identifiable segment of the population, whether on the basis of nationality or any other basis.

11. For their part, the Farmers Association and the Cooperative Society emphasize the national goals underlying the establishment of a communal settlement in the Eron River specifically. These respondents, too, do not contest the right of Israeli Arabs to live on state lands and enjoy full equality. Rather, they hold that there is no place for mixed communal settlements against the will of residents of the settlements.

The Preliminary Claims

12. I will first deal with the preliminary claims presented by the respondents. The argument regarding the petitioners' delay in bringing their petition must be dismissed, as the petitioners were not late in submitting their application. They applied to the Katzir Cooperative Society during the registration period. When it was made clear to them that as Arabs they would not be accepted as members of the Society they turned to this Court. It is true, the policy that underlies the respondents' action is not new, but this does not preclude its examination by the Court. This is certainly true-as per the petitioners' submission-in all that relates to the future. Nor can it be said that the petition is premature due to the petitioners' failure to apply for membership formally. As can be seen from the factual foundation laid out before us, it is uncontested that had the petitioners applied for membership to the Katzir Cooperative Society their request would have been denied. Under these circumstances, there is no point in submitting a completely futile application. Nor did the mediation process produce any results. We will therefore proceed to examine the merits of the petition before us.

The Questions before Us:

13. The legal question before us is whether the State (through the Israel Land Administration) acted lawfully in allocating the lands on which the Katzir Communal Settlement was established to the Jewish Agency, given that on these lands -- which were leased to a cooperative society that did not accept Arabs as members -- the petitioner (or any other Arab) cannot build his home. In light of the question's complexity, it is appropriate to divide the question into two sub-questions: First, would the State (the Ministry of Construction and Housing and the Israel Land Administration) have acted lawfully had it itself directly formulated a policy whereby licenses or tenancies on state land were allocated to the Katzir Communal Settlement, which limits its memberships to Jews? If such a policy is found to be unlawful, we must then turn to the second sub-question: Are the State's actions no longer unlawful if it itself does not operate directly within the bounds of the Katzir Communal Settlement, but rather, as is in fact the case, it allocates rights in the land to the Jewish Agency which, in turn, contracts with the Katzir Cooperative Society? We will begin by addressing the first sub-question.

The State Allocates Land to a Rural Communal Settlement that does Not Accept Arab Members

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