2000 Supreme Court
Aadel Ka’adan v. Israel Lands Administration was a seminal ruling made in the year 2000 by Israel’s Supreme Court. The Court ruled that by de-facto only permitting Jewish residents to live on the Katzir settlement, the Israel Lands Administration and the State of Israel had violated their duty to act in accordance with the principle of equality. The implication of the decision was that the Israel Lands Administration was ordered to consider the petitioner’s request to purchase for themselves a parcel of land in the settlement of Katzir for the purpose of building a home.
In this article, I will explore the arguments made by both the appellant and the defendant, as well as delving deeper into the reasoning of the Supreme Court.
Background Information:
The petitioners were an Arab couple with a daughter. They requested to live on the Katzir settlement, which is owned and administered by the Israel Lands Administration. As one of its provisions in its mandate, the Israel Lands Corporation stipulates that the membership needed to rent land will only be granted to those that have completed the compulsory military service. In practice, this meant that Arabs are not admitted as members of the Cooperative society, a prerequisite for living on the settlement, and as such, are not permitted to rent land or live on the settlement.According to the 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.
The petitioners claimed that establishing settlements in such a manner, as well as allocating land on the basis of nationality or religion violates the principle of equality and therefore cannot be upheld. For their part, the respondents posit that a change in the existing situation would lead to a serious encroachment of their autonomy and would constitute an interference with the social settlement fabric that the society’s members have chosen.
Issues:
- Did the state, through the ILA, act lawfully in allocating the lands on which the Katzir Communal Settlement was established to the Jewish agency, given that on these lands the petitioner cannot build his home?
- Would the state have acted lawfully had it itself directly formulated a policy whereby licenses or tenancies on state lands were allocated to the Katzir Communal Settlement, which limits its membership to Jews?
- 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, it allocates rights in the lands to the Jewish Agency, which in turn contracts with the Katzir Cooperative Society?
Court’s Analysis:
There are overarching, general purposes that extend as a normative umbrella over all Israeli Legislation. These reflect the basic values of Israeli law and society. They are an expression of the fact that each piece of legislation is an integral part of a comprehensive legal system. Equality is one of the State of Israel’s fundamental values. Every authority in Israel, and first and foremost the government, is required to treat all individuals in the State equally.
This applies to the allocation of state land. The Israeli Land Administration holds state land by way of trust, and as such, is subject to all of the duties owned by a trustee.
In other words, since the Administration is both practically and theoretically the state itself, it is subject to all of the obligations applicable to a public authority. To that end, the decisions of the Israeli Land Council must respect the principle of equality.
This begs the question, what is equality, and how does it manifest itself in this context?
Equality prohibits different treatment on the grounds of religion or nationality. This prohibition appears in the Universal Declaration of Human Rights, and is also accepted in Israel’s Proclamation of Independence, which established that the State of Israel shall “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender”. The practical translation of this is that the purpose of all legislation is at some level to guarantee equality to all persons. Dissimilar treatment, such as the one being prima facie displayed in this case, is “suspect”.
The Court recognized that sometimes there are contradictions between specific purposes which seek to realize social objectives, and general purposes which seek to ensure rights. When such a conflict occurs, a balance between the conflicting purposes must be achieved (Kol Ha’am Company Ltd v. Minister of the Interior). In balancing the specific purposes at the core of legislation against the general purpose, preference is given to the specific purpose only if there was near certainty that allowing for the realization of the general purpose would cause severe, concrete, and serious harm to the possibility of realizing the specific purpose. The underlying purpose of the Basic Law of the Israel Land Administration is “the settlement of Jews throughout the country as a whole, and in rural areas and in areas where the Jewish population is sparse in particular”. The respondents argue that the presence of Arab residents in the settlement would undermine the specific purpose of the settlement by causing Jewish residents to leave, turning a settlement that was intended to be a Jewish settlement into an Arab settlement.
The respondents argue that:
- Since they are equally prepared to allocate land for the establishment of an exclusively Arab communal settlement, its decision to allocate land for the establishment of an exclusively Jewish settlement does not violate equality (the concept of “separate but equal”, see Brown v. Board of Education of Topeka, 346 U.S.483, 1954).
- Even if the Israeli Land Administration had directly allocated land for the establishment of an exclusively Jewish settlement, it would have been lawful, as this would realize the values of the State of Israel as a Jewish State.
Court’s Response:
- There have been no requests for exclusively Arab communal settlements. In actuality, the State of Israel discriminates through this policy even if the motive for the separation is not the desire to discriminate.
- The Court does not accept an approach that places the values of the State of Israel as justifying discrimination between its citizens on the basis of religion or nationality. Jewish heritage certainly constitutes a central component of Israel’s religious and cultural heritage, but this does not mean that the State will discriminate between its citizens.
The Court recognizes that had the land for the establishment of the communal settlement been allocated by the State directly, the State would have been duty-bound to act with equality towards all those requesting the right to build a house there. Every person would have been eligible to compete for the right to build a house in the Katzir communal settlement.
However, in this case, it is not the State itself transferring the land. This begs the question, did the state itself violate its obligation to act with equality when a 3rd party to which state lands have been transferred adopts a policy of allocating land to Jews exclusively? Yes, what the state cannot do directly, it cannot do indirectly. “The State cannot escape its legal obligation to respect the principle of equality by using a third party that adopts a discriminatory policy. State action that is carried out in a discriminatory fashion by a 3rd party, does not lose its discriminatory character simply because it was carried out through the Jewish Agency.
Conclusion:
The State of Israel violated its duty to act in accordance with the principle of equality in transferring the land to the Jewish Agency. It is incumbent upon the State to consider the petitioner’s request to purchase for themselves a parcel of land in the settlement of Katzir for the purpose of building a home.