Supreme Court Issues Order Nisi Requiring AG to Explain Exclusion of Seven Arab Bedouin Towns in the Naqab from National Priority Area “A” in the Field of Education

On 12 March 2004, the Supreme Court of Israel issued an order nisi (order to show cause) requiring the Attorney General's Office to explain the exclusion of seven Arab Bedouin towns in the Naqab (Negev) - Rahat, Lagiyya, Kessife, ‘Arora, Segev Shalom, Hura and Tel el-Sabe' (Tel Sheva) - from the National Priority Area “A” list in the field of education.

This order was requested by Adalah on 23 February 2004 as part of a petition currently pending before the Supreme Court, which demands the cancellation of a 1998 governmental decision that divides the country into National Priority Areas in an arbitrary and discriminatory manner, without legislative authorization or clear objective criteria. While this governmental decision classified 492 towns and villages as national priority “A” and thus eligible to receive a host of lucrative educational benefits, for example, only four small Arab villages were included in the list. Adalah General Director, Attorney Hassan Jabareen, submitted the petition in December 2003 and the supplemental motion requesting this order, in Adalah's own name and on behalf of the High Follow-up Committee for the Arab Citizens in Israel and the Follow-up Committee on Arab Education against the Prime Minister.

Adalah advanced two main arguments as the basis for this order: (1) The seven Arab Bedouin towns should be included in National Priority Area “A” in the field of education, as the official data shows that they are the most in need of such a program. In comparison to Jewish towns, they are by far, the most economically disadvantaged towns in Israel, with the lowest levels of educational attainment; and (2) In its final report, the official Or Commission of Inquiry, which investigated the causes and results of the October 2000 protest demonstrations, also examined the poor socio-economic situation of these towns. The Or Commission recommended that the state give special attention to the Arab Bedouin, emphasizing budgets that will close the gaps in education, housing, industrial development, employment, and services.

The December 2003 petition is the second petition filed by Adalah challenging the government's decision. The first petition, submitted in May 1998, has been pending before seven justices of the Supreme Court for the last five years, with numerous hearings held and written arguments filed. At a hearing in December 2003, the Supreme Court asked Adalah to submit a new petition so that the Court has one document that includes all the developments in the case since 1998. The Court also issued an order nisi in advance of the filing of the new petition, and decided that the case will be heard by seven justices.

The government decision divided the country into 3 areas - "A", "B" and "no status." Towns that are classified as "A" or "B" priority areas receive substantial additional budgetary allowances and services from the government such as extra educational funding, tax breaks to local businesses, and funds for infrastructure development. Residents of these areas receive enormous personal economic benefits such as additional mortgage grants and loans, tax exemptions, and educational benefits such as free pre-schools for children, additional hours of schooling, fully funded computer labs by the Ministry of Education, and exemption of fees for exams. The government assigns priority status almost exclusively to Jewish development and border towns, and to settlements in the 1967 Occupied Territories.

In the petition, Adalah argued that the government decision should be cancelled as the government lacks authority to divide the country into national priority areas: it is against the rule of law. The economic benefits provided to these selected towns and individual residents are of such a magnitude as to require statutory legislation that authorizes their provision and sets forth specific objective criteria for their distribution. The government's scheme, Adalah contended, lacks such criteria.

Adalah further argued that the purpose of designating certain towns as national priority areas is to help poorer towns to develop economically. Although Arab towns and villages in Israel rank lowest in all socio-economic indices according to official government statistics, they are effectively excluded.

Adalah also argued that the government's division is based on arbitrary geographical considerations. For example, although the disparity in educational attainment levels and the quality of facilities between Jewish and Arab schools is overwhelming, Migdal HaEmek and Natserat Illit (two Jewish towns in the north of Israel) receive priority "A" educational benefits, while eleven other neighboring Arab towns and villages (Nazareth, Ein Mahel, Reineh, Iksal, Dabburiya, Shibli, Yaffa, Kufr Kanna, Mashad, Tur'an, and Illut) do not receive these benefits. Adalah demanded that these eleven villages be classified as priority "A" for the purpose of receiving educational benefits. The fact that the government did not include Arab towns and villages in priority “A” for educational benefits constitutes discrimination on the basis of national belonging, Adalah argued.

The Attorney General's Office submitted its response to the order nisi in March 2004. In its response, the AG argued that dividing the state into National Priority Areas has been a part of the government's political program since the early years of the state, and, thus, it is a legitimate policy. Further, the AG stated that the main goal of the classification is encourage the population to move from the center of the state to live in peripheral areas; it is not based socio-economic reasons. The AG added that while it is true that there are no written criteria for the classification scheme, the designation is based on geographical considerations.

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 (case pending).