JNF's Response (H) Petition (H)
On 9 December 2004, the Jewish National Fund (JNF) responded to two petitions submitted by Adalah and the Association for Civil Rights in Israel (ACRI) to the Supreme Court in October 2004, against the Israel Lands Administration (ILA), the JNF and others. In its petition, Adalah demanded that the Court cancel an ILA policy and a regulation, both of which prevent Arab citizens of Israel from bidding in tenders for the allocation of JNF-owned lands. The petition argued that the ILA's policy is incompatible with the principle of equality, as it discriminates on the basis of nationality.
In its response, the JNF claimed to have purchased the lands within its ownership from previous owners using money donated by Jews from around the world, for the purpose of buying land in Israel and its distribution among Jews. The JNF further argued that its loyalty is only to the Jewish people, not to the general public in Israel, and that it operates only for the benefit of Jews.
The JNF demanded that the Supreme Court refrain from deciding on the issues raised in the petition, claiming that they are purely ideological matters relating to the character and identity of the Jewish state, and the relationship between Jews in Israel and Jews in the Diaspora. The JNF also argued that, "Equality does not mean giving someone the right to live on someone else's land since, just as the Jews do not have the right to live on Islamic Waqf land, or land belonging to one of the churches, non-Jews do not have the right to choose land given to the Jews for the sake of achieving their right to equality."
However, as Adalah Attorney Suhad Bishara argued in the petition, of the 2.5 million dunams of land currently owned by the JNF (approximately 13% of the total land in Israel), close to two million dunams were transferred to it by the state in 1949 and 1953. This huge transfer gave a special status to the JNF under Israeli law. As a result, the JNF enjoys an enormous influence over land distribution policy in Israel. For example, half of the members of the ILA Council, which determines land policy in Israel and manages "Israel's lands," must be nominated by the JNF by law. These lands comprise 93% of the land in Israel, and include the land owned by the JNF. Although under Israeli law state-owned land cannot be sold, the JNF's special status enables the transfer of lands to it from the state.
In its correspondence with Adalah, the ILA has acknowledged that tenders for JNF lands are open only to Jews. According to the ILA, the reason for this policy is that it must uphold the agreement signed between the state of Israel and the JNF in 1961, under which it is obliged to respect the objectives of the JNF: "To purchase, acquire on lease or in exchange, etc., ... in … the state of Israel in any area within the jurisdiction of the Government of Israel or any part thereof, for the purpose of settling Jews on such lands and properties." Thus, the ILA maintains that respecting this agreement does not amount to discrimination against Palestinian citizens of Israel.
However, as stated in Adalah's petition, the ILA, as a public agency established under law, is not authorized to adopt positions or pursue goals which are contrary to the principles of equality, just distribution and fairness. The ILA cannot be a sub-contractor for discrimination on the basis of nationality. Such a policy of discrimination is dangerous, irrational and extremist, and sends a negative, harmful and humiliating message to Arab citizens of Israel, argued Adalah.
In the petition, Adalah further argued that the ILA's policy of excluding Arab citizens of Israel from bidding for JNF lands is not based in statutory law, but only on a regulation – Article 27 of the Regulations of the Obligations of Tenders – promulgated by the Ministry of Finance, pursuant to the Obligation of Tenders Law – 1992. Adalah maintained that the regulation must be cancelled because the Tenders Law does not authorize the MOF to issue such a regulation. In fact, this regulation contradicts Article 2 of the Tenders Law, which provides that bids must respect the principle of equality and prohibits discrimination on the basis of nationality.
In its response, the JNF claimed that Article 27 is constitutional, and denied that it contradicts the Tenders Law. Further, the JNF asserted that its cancellation would not lead to the allocation of JNF lands to non-Jews, because the state must still uphold its duty to the JNF to manage its lands in accordance with its 1961 agreement with the state.
As Adalah argued in the petition, the continuation of the ILA's policy of preventing Arabs citizens of Israel from bidding in auctions for JNF lands will lead to the creation of further Jewish-only towns and neighborhoods, and Arab citizens of Israel will continue to be barred from leasing JNF land and building houses on it. Adalah contended that the resulting racially-segregated areas will resemble those established under the Apartheid regime in South Africa.
Bids for JNF-owned lands in the north and the Galilee have been frozen since 20 October 2004, when the Supreme Court assented to a motion filed by the JNF following the submission of Adalah's petition to delay a Supreme Court hearing on the case. In the motion, the JNF announced the freezing of new and existing tenders in the north and in the Galilee, until the hearing date or the issuance of a further decision. The bids in question remain frozen.
The Attorney General's Office is due to submit the state's response to the petition in January 2005, after which a hearing date will be scheduled.
H.C. 9205/04, Adalah v. The Israel Lands Administration, et. al. (case pending).
See also: H.C. 9010/04, The Arab Center for Alternative Planning, et. al. v. The Israel Lands Administration, et. al. (filed by ACRI).