by Gil Bringer
This is Part I of a series showing how "affirmative action" 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.
One week before the vote on the Regularization Act in the Knesset, the other side of the equation was revealed. In a scandalous ruling, Judge Alexander Kesari from the Court of Administrative Matters in Haifa admitted what everyone already knew but couldn't say - the laws of planning and building are not applied equally to Jews and Arabs. The Arab local council appealed the decisions of two committees of planning that had rejected a request to sanction an illegal building, and Kesari accepted the appeal only because in his opinion, the Arab public is discriminated against, and because of this, it should have special rules of building. Afterward, the High Court indeed revoked the ruling, but it also sent a broad hint to the committee of planning that it should reconsider the subject.
The ruling handed down recently by the court for administrative matters in Haifa was undoubtedly the low point in the whole affair, nevertheless there was one positive aspect to it as well: It allowed us to see clearly, even if only for a very short time, something that is ordinarily hidden.
Here too, things that were always apparent but impossible to prove, were increasingly revealed. In this sense the courage and professional uprightness of Judge Alexander Kesari from Haifa is admirable. To read his scandalous decision really makes the blood boil, but it also shows in black and white what the overseers, police officers, contractors, prosecutors and everyone else, Jews as well as Arabs, have known for some time. In everything that relates to implementation of laws of planning and building in the various sectors of Israel, the legal system conducts itself according to a double standard. Jews and Arabs are treated differently. This doesn't happen randomly or unwittingly; there is a world view and a method at work. Judge Kesari was, after all, only the first one to express it openly and clearly.
Sanction by Affirmative Action
It began in 2008, when the local council of Arara appealed to get technical approval for a new building plan in the district's committee of planning. This is not the first time that the local council of Arara has requested to expand into areas outside of its jurisdiction, and it's not the first time that its request was rejected. Again, the goal of the plan was to expand the village considerably, and add massive building reserves for the use of its residents, and again the district committee rejected the council's request for the same reasons that it rejected Arara's appeal time after time.
The committee indicated in its decision that in Arara there is no housing crisis that would justify extension into a new area outside its jurisdiction, and that even if there was a certain lack of area for building, why, plans that the local council had approved in the past would solve this problem. Actually, according to the calculations of the committee, the local council had used only a third of the potential area that was intended for building, and there was no reason to give it any additional area by taking land from a large park that is supposed to serve several counties in the area. In closing, the members of the committee emphasized in their decision that the plan actually requires retrospective legalization of illegal buildings that had been erected on an area not intended for building, and as of now, since a demolition order had already been issued for these illegal buildings, it was important to defend the rule of law, to show that breaking the law will yield no benefit.
Arara did not yield, and appealed to the national committee for planning. Among other things, the council claimed that very many illegal buildings have been approved retroactively in the past, and there is no reason not to approve the present plan only because this new "illegal" building plan needs to be sanctioned. But the national committee also rejected the appeal, determining that in Arara there was already an extensive area allocated for building, and that even after taking into account the special characteristics of the Arab style of building, which is spread out over a much greater area - minimizing the use of height and maximizing the use of land - and is far from being an optimal use of land, there is no justification to approve the plan, which would extend into areas beyond the council's area of jurisdiction.
In the National Committee as well, they said that Arara’s approach to the issue of legalizing the illegal building was excessive and almost harassing. The committee determined that the sanctioning of illegal building would cause problematic results. But Arara was still not willing to yield, and decided to petition the Administrative Court in Haifa.
When the Judge is on Your Side
Precisely here, an especially positive surprise awaited Arara. After a prolonged discussion, Judge Kesari ruled that regarding the acts of the committee of planning, the Arab public is discriminated against, relative to the Jewish public, even though Arara had not made this claim. Kesari’s claim did not relate to the specific case of Arara but stated in a general way – all Arabs are the victims of discrimination in relation to all Jews.
Actually, not only did Kesari make this claim, which was never made by Arara, but he also took upon himself what should have been the role of the attorney of the council in a legally acceptable way, and Kesari himself supplied testimony to bolster the claim of discrimination. In his ruling, Kesari related to research that the prosecutor never received during the hearing and had never had an opportunity to make a counter claim against. The claim is that when building within the Arab sector is determined to be illegal, this stems from discrimination in matters of planning. As a conclusion from all of this and on the basis of a claim that was not made (by Arara) and evidence that was not served, Kesari determined in his ruling that separate plans must be created for the Arab sector, that will express the uniqueness of the sector because of its distinct cultural characteristics. The reading of Kesari’s ruling teaches us that wasteful exploitation of land reserves, retroactive sanctioning of illegal building and not using long-range tools of planning - all of these are reasons to reject building plans for the Jewish sector. This is acceptable, perhaps for Tel Aviv. But not in regard to the Arab sector. Kesari vetoed the decision of the committee and returned the plan for review.
Read Part II here.
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 email@example.com
Translated from Hebrew by Sally Zahav
Source: Makor Rishon weekly Hebrew newspaper
Copyright - Original materials copyright (c) by the authors.