Monday, June 18, 2012

Double Standards for Jewish and Arab Building - Part II

by Gil Bringer

This is Part II of a series showing how "reverse discrimination" is applied in Israel, regarding building plans for Jews vs. Arabs. The article was originally published in the "Tzedek" supplement of the Hebrew weekly newspaper Makor Rishon.

Read Part I here.

Signs From On High

The expressions that the prosecutor Avital Sompolianski from the Department of the High Court uses against the ruling of Kesari are careful, measured and judicial, nevertheless it's hard to miss the sharp message that she wished to convey. "The ruling", explains Sompolianski, "is a far-reaching and erroneous general ruling, according to which, it is necessary to establish for the Arab sector, a system of planning tools which is different from the Jewish... the court does not accept the most basic foundational premises of the planning system in Israel. And it follows as a result of his ruling, that planning laws in Israel, including those of the highest-level programs ... are not suitable in practice for the Arab sector, and therefore cannot be applied to it". In other words, Judge Kesari determined in his ruling that the law of planning and building should not apply to the Arab population to the same degree as it applies to the Jewish population. Actually Judge Kesari would like to create two systems of planning and building laws - one for the Jews and another for the Arabs.

The good people who are struggling to hold onto the land, and fight illegal building and who, for years, have been seeking vigorous action by the local authorities against destruction of the landscape and illegal appropriation of nature reserves, took the ruling as a ringing slap in the face. From their point of view, the ruling wiped out almost everything that they have been trying to achieve, and they took it very hard. For them, this was not only a low point; from their point of view, it was even humiliating to hear a judge determine that as far as consideration of illegal building in the Arab sector, "as important as it is... it's not paramount".

Sompolianski served an appeal on behalf of the state to the high court against the ruling of Judge Kesari, and the case was to be addressed by Judges Gronis, Meltzer and Amit. But these three had never been asked to decide disputes dealing with the principles in question. Despite the strong claims of the state put forth in the appeal that was served in response to Kesari's ruling, and despite its original conclusion that the decision creates a difference between Jews and Arabs, regarding the applicability of the law of planning and building, the state compromised in a perplexing way by accepting upon itself a short version of the ruling, which was published [recently].

The ruling comprises three lines of text and indeed officially cancels the ruling of Kesari, but in parallel, it determines that the appeal must be heard again by the subcommittee for appeals and that this time... the composition will be different. "The subcommittee will address the appeal with an open heart and willing spirit", determines Gronis, and sends a narrow hint to the committee that perhaps did not understand the meaning of the change of composition of the committee and its goal. And in case this hint is also not enough, Gronis adds another hint and determines that "the subcommittee will be required, among other things, to take into account the unique characteristics of different populations...within the framework of the plan of the council under discussion, and it will take into account the fact that it was begun in the Arab sector".

Intervention in the Appeal

The attorney Hila Cohen from the Legal Forum on Behalf of the Land of Israel was pleased about the cancellation of Kesari's ruling, but very disturbed by the decision. "The principle decision of the judges to cancel Kesari's ruling is welcome", she explains. "This ruling cannot stand up to any legal standard and the ruling was given as an exception to guiding principles of rulings. The decision firmly establishes two systems of law enforcement and two systems of planning and building, one for Jews and one for Arabs, in the Arab system, illegal building is to be sanctioned and in the Jewish system transgressions are to be fought. However, it seems that the decision to cancel was made because of criticism about the method of Judge Kesari's ruling and about the legal guidelines that he used. Because as far as results, the High Court accepted a decision that resembles that of Judge Kesari, which is to discuss the plan anew, exactly according to Arara Council's request".

"From all of the troubling insinuations in the ruling, one clear direction of the court arises, which is to sway the subcommittee to accept the appeal. On one hand, the judges cancel the ruling, and on the other hand they accept exactly the decision of Judge Kesari that was seen as deserving of cancellation. Now we must hope that the subcommittee for appeals will discuss anew the building plan with an open heart and a willing spirit but also with an open mind and with some common sense, and will not be swayed by the music of the court's decision".

But Sompolianski does not accept Cohen's analysis, and thinks that the ruling of the High Court accepts the appeal and rejects the ruling of the district court, and from this point of view, it is good." The High Court referred to the conclusions of the state in its ruling", explains Sompolianski, "according to which there is no dispute over the issue that institutions of planning must take into account differing characteristics of population groups and that in the view of the council's plan, indeed it was appropriate to bring into account the fact that the plan originated in the Arab sector. Regarding this, the state clarified in an addendum to its conclusions, that the ruling referred to, indeed applies in this case; that the plans that originate in the national, district and local arenas, are approved after weighing all design considerations, including the characteristics of the Arab population and its needs, and also social, economic and demographic considerations".

Despite Gronis's broad hints, Sompolianski does not expect a change in the decision of the committee. She notes that "in the framework of the court discussion, I emphasized in the protocol that there's no reason to raise hopes in regard to turning over the decision that was taken, because these are well-reasoned decisions of senior officials of the institutions of planning. President Gronis answered that this is obvious and that the representative of the plaintiff understands it well.

Read Part III here
Read Part IV here

Gil Bringer is an attorney who serves as the legal consultant to the Jewish Home faction in the Knesset and co-editor of the "Tzedek" legal supplement to the Makor Rishon Hebrew weekly newspaper. Among other things, he deals with the areas of overlap between law and politics, Zionism and good governance. He can be contacted at

Translated from Hebrew by Sally Zahav

Source: "Tzedek" ["Justice"] Supplement of the Makor Rishon weekly Hebrew newspaper

Copyright - Original materials copyright (c) by the authors.

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