In Landmark Decision, Supreme Court Cancels Long Standing Governmental Socio-Economic Plan as it Discriminates against Arab Citizens of Israel
On 27 February 2006, an expanded seven-Justice panel of the Supreme Court of Israel unanimously ruled to cancel a governmental decision establishing “National Priority Areas,” finding that it discriminates against Arab citizens of Israel on the basis of race and national origin. In accepting Adalah's petition, originally submitted in 1998, the Supreme Court's 78-page written decision concludes eight years of litigation on this issue. The petition sought the cancellation of the governmental decision, which excluded the vast majority of Arab towns and villages in Israel from the list of National Priority Areas, thus denying their access to substantial economic and social benefits. The petition was submitted by Adalah Attorney Hassan Jabareen, on behalf of The High Follow-up Committee for Arab Citizens in Israel and the Follow-up Committee on Arab Education, and in Adalah's own name.
The government enacted Decision No. 3292 in February 1998, granting substantial economic and social benefits to residential communities categorized as National Priority Areas “A” or “B” and their residents, such as extra educational funding, personal income tax benefits and tax breaks to local industries. In 2002, the government approved a revised version of the decision and established National Priority Areas for several economic categories including industry, education, housing, tourism and agriculture. The stated purpose of the revised decision was, inter alia, to bridge gaps between communities, develop the areas and increase the standards of living in these communities. However, the government's revised decision again excluded the vast majority of Arab residential communities from National Priority Areas: just four Arab towns out of the more than 500 residential communities were eligible to receive benefits under the decision.
Adalah argued in the petition submitted in 1998 that the government's decision should be declared void as it lacked clear and consistent criteria in the awarding of these benefits and discriminated against Palestinian citizens of Israel by excluding the vast majority of Arab residential communities from the list of National Priority Areas. Adalah further argued that the government lacks the authority to divide the country into National Priority Areas, since the economic benefits provided to these selected towns and individual residents are of such a magnitude as to require statutory legislation to authorize their provision and set forth specific objective criteria for their allocation. Adalah established that Arab communities plagued with severe socio-economic conditions were denied benefits under the decision while more prosperous Jewish communities located nearby were deemed eligible. In 2003, at the request of the Court, Adalah submitted an amended petition that addressed the government's decision granting significant educational assistance and benefits to communities designated as National Priority Areas for education.
A town or village classified as a National Priority Area for education receives generous funds for various kinds of financial support for teachers, free pre-school education for young children, additional teaching hours for pupils, increased balance-grants from central government to local localities, computer laboratories fully-funded by the Ministry of Education for school and priority status for receiving university grants for students.
In its March 2004 response to the petition, the Attorney General's (AG) office argued that the division of the country into National Priority Areas has been a part of the government's political program since the early years of the state's establishment, and, as such, is a legitimate policy. Furthermore, the AG's Office acknowledged that the government's decision is not based on socio-economic factors, adding that, while it is true that there are no written criteria for the classification scheme, the designation is based on “geographical considerations.”
In its decision, the Supreme Court accepted Adalah's argument that the government's decision is discriminatory and that the government is not authorized to unilaterally divide the country into National Priority Areas without a law enacted by the Knesset to establish the reasons and criteria justifying such an action. Supreme Court Chief Justice Aharon Barak found that the state did not present satisfactory reasons for the designation of National Priority Areas for education on the basis of geographic considerations, and that the Court remained unconvinced that this was the government's only consideration. Justice Barak also noted that the proportion of Jewish communities classified as National Priority Areas for education versus the minute number of Arab communities thus classified does not reflect the geographic distribution of Arab population in Israel. Justice Barak further determined that, according to the “results test,” the government's decision discriminates against Arab citizens of Israel in its effect, irrespective of the government's intent:
Determining that in this case the effect is invalid and discriminatory is not a technical but an essential matter. The government's decision deals with one of the most basic rights – the right to education. Its result is infected with one of the most 'suspect' distinctions, which is the distinction made on the basis of nationality and race. It should be expected that governmental policy in this area will maintain equality between Jews and Arabs.
The Court cited data on the poor socio-economic situation of the Arab minority in Israel to support its decision. The Court noted that in 2002, for example, that the Israeli Central Bureau of Statistics classified 50% of Arab municipalities were classified in the lowest two of ten socio-economic clusters and 94% in the lowest four clusters. The Court also cited the discrepancy between the number of Arab and Jewish students who pursue their school education to the 12th grade, noting that Arab students were more prone to dropping out of school between the 9th and 11th grades, and therefore that far fewer Arab students receive matriculation certificates and meet the threshold for attending universities.
Deputy Chief Justice Mishael Heshin wrote that the government lacked the authority to establish National Priority Areas unilaterally, as such an action can only be done through legislation passed by the Knesset. Justice Heshin also stressed that when the Knesset deals with a governmental matter, either directly or indirectly, the executive is prohibited from using its authority to interfere. He emphasized that the government cannot use its authority to violate individuals' rights.
Justice Dorit Beinish wrote that the government cannot use its authority to violate human rights and that the government's decision to establish National Priority Areas ignored the Arab population. This amounts to a disproportionate violation of the principle of equality, she wrote. Justice Ayala Procaccia emphasized the importance of the right to equality in education and the need to strengthen the disadvantaged and provide less support to the advantaged. Justices Eliezer Rivlin, Edmund Levi and Salim Jubran agreed with these statements.
The Supreme Court's ruling transfers the issue of the establishment of National Priority Areas to the Knesset, making it more difficult for the government to independently make decisions affecting social and economic issues to such a large extent in Israel. In the future, the government will be forced to present its plans and justifications on this and similar matters publicly before the Knesset and be held accountable by opposition parties and civil society.
Significantly, the Court's cancellation of the government's decision is not restricted to National Priority Areas for education, but affects all designated National Priority Areas. The Supreme Court ruled that its decision will come into effect after 12 months.
Adalah views this ruling as groundbreaking for its recognition of the government's collective discrimination against Arab citizens of Israel on the basis of race and national belonging. This ruling constitutes a precedent since it will affect every governmental decision and hinder the executive's ability to circumvent the rule of law to arbitrarily violate the rights of Arab citizens, especially in the fields of social and economic rights. Thus, in accepting the petition, the Supreme Court has ruled that the executive branch including each governmental authority is compelled to respect the principle of equality.
H.C. 2773/98 and H.C. 11163/03, The High Follow-up Committee for the Arab Citizens in Israel, et. al. v. the Prime Minister of Israel (petition accepted)
