by Gil Bringer
This is Part III 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.The Truth is Revealed
Read Part I here.
Read Part II here.
Kesari's ruling did not last very long before it was revoked, at least technically, by the High Court. But with the various turns that were taken by the court, we, as the public, had the opportunity once and for all to observe the subterranean judicial streams that are ordinarily not revealed to us. Why, Kesari could have achieved the same results by returning the hearing on the technical approval of the building committee, without blatantly ignoring all acceptable procedures of getting the evidence and the limits of the claims that were presented in the hearing. If the analysis of Attorney Cohen was correct, it could very well be that if Kesari had not ignored protocol and upset the conventional procedures, the High Court would not have gotten involved at all in this substantive decision.
Moreover, Kesari could have reached the same decision even without saying that in his opinion there is clear discrimination between the different sectors in the area of building and planning. A pinch here, a pinch there, and everything could have been worked out. However, his attitude that the law of planning and building should be enforced mostly upon Jews and to a much lesser extent upon Arabs, regardless of the question of law or precedent, is so clear and so sincere, that whether his view would eventually prevail or not, it nevertheless revealed a very significant truth.
It may be assumed that Kesari is not a unique case, and that there are many more who share his opinion, that ultimately will or will not be accepted. The ineffectiveness of the various authorities in handling of illegal building within the Arab sector is directed from above. There are those who sit at the head of the pyramid of the system of justice and believe that illegal building, when it is confined to a specific sector, is not such a terrible thing. Disregarding it might even serve the purpose of affirmative action. A thousand witnesses can testify to the extent of retroactive legitimization of illegal building in the Arab sector.
I spoke this week with one of the knowledgeable people in the area of supervision of illegal building in the North. In regards to any matter connected with Arab building he is totally discouraged. "The standards are supposedly the same standards and the law is, of course, the same law", he explains to me, "but carrying out rulings in the Arab sector is much more difficult. Preparation to carry out such a ruling is totally different. If we need to demolish a building within the Jewish sector, we need a few policemen, and even they are not necessary; but if it's in the Arab sector, we need 700 to 1,000 police officers. Supervision of the Jewish agricultural villages in the North is strict and rigorous, but in the Arab sector it's a different story. Folks there routinely build on plots of ground that are forbidden to build upon.They almost totally disregard design plans. There are cities in the Arab sector where even shopping malls have been built illegally. The local committees that are responsible for demolishing illegal buildings are not at all interested in taking care of illegal building".
And why should they take care of it, when the court itself sees the application of ordinary rules of the law of building and planning upon the Arab authorities as another example of the discrimination against the Arab public?
The Inspector is in Charge
The story of Sand Husisi, inspector of illegal buildings on Mount Carmel Ridge, is a short story, either amusing or depressing, depending on your point of view. It could, of course, be seen as an embarrassing story about one person, but more than being Husisi's personal story, it is an example of the stories of the Arab authorities in general, and how they internalize the government's message to them. This attitude is what Judge Kesari revealed in his ruling.
Husisi arrived at the Magistrates' Court in Haifa last September as a witness for the prosecution in order to testify against Wajid Ka'abiyya, who had been charged with building violations. After the prosecutor finished examining Husisi on behalf of the claimant, the defense asked to cross-examine. The protocol of that court session, which remains as evidence of the embarrassing testimony that occurred there, could almost turn one white with shame.
After showing a series of photographs to Husisi, the lawyer for the defense gave him an additional photograph. "Whose house is this?", the attorney asked Husisi. "It's mine, I live in this house", he answered. "Do you have a building permit for this house?", asked the defense, and Husisi answered immediately: "My house has no permit". The defense attorney tried to understand - "so you should be here as the accused!" Husisi, who understood the extent of his problem, began to squirm and tried to explain that indeed he had been convicted in the past of illegally building the house that he lives in, but actually he only took upon himself responsibility for his parents guilt. And that the issue is in the process of being resolved. And that actually it's the local committee that's not okay. The approval is on the way and will arrive very soon.
Husisi, the building inspector, could not remember, even though he was asked several times, if there is a demolition order on the house that he lives in. And really, how can a building inspector be expected to remember if the house that he lives in is slated for demolition? Is this his area of expertise? When the defense continued to harangue him with questions, Husisi claimed that he indeed had been convicted in the past of building violations, but that actually he has been in the process of getting approval for the illegal house that he lives in for more than seven years, since his conviction. "And if I tell you", the defense attorney asked Husisi, "that the zoning for that land is slated for agriculture and that you will not be able to get approval - what would you say?". Now Husisi was really in distress and began spewing out a mixture of conflicting versions that most likely did not help him at all. During his testimony he managed to be recorded in the protocol saying that there are many residents who pay money to the county, and in exchange, are allowed to build on agricultural land as an exception. And how is he different from them?
At this point, the court intervened and advised the attorney who had summoned Husisi to have him leave the stand. The Judge declared to Husisi that he need not continue answering questions which might incriminate him. The counsel for the accused announced that from his client's point of view they can stop investigating Husisi in exchange for dropping the charges against his client. After a break of a few minutes and consultation with the counselors about where this scandal my lead and how the building inspector himself was shown to be have violated the building code - the hearing was resumed. It was concluded that Husisi would answer general questions without entering into his personal story and that in any case, the protocol of the hearing will not be used against him. As if someone actually thought of doing something with his testimony.
Read Part IV (Compensation for a Fine) 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: "Tzedek" ["Justice"] Supplement of the Makor Rishon weekly Hebrew newspaper
Copyright - Original materials copyright (c) by the authors.