Supreme Court delays hearing for JNF and state agreement on compensation for land purchased by Arabs

On 24 September 2007, the Supreme Court of Israel held a hearing on a petition filed by Adalah in 2004 seeking the cancellation of a policy of the Israel Land Administration (ILA) and Article 27 of the Regulations of the Obligations of Tenders, which prevent Arab citizens from participating in bids for Jewish National Fund (JNF)-controlled land. The Supreme Court approved the proposal made by the JNF and the Attorney General's Office to delay further deliberations on the petition for three months in order to allow them to reach a final agreement over the exchange of land so that the JNF will be able to continue to pursue its goals. Under this proposal, the JNF will allow Arabs to bid for JNF-controlled lands during the coming three months, and the state will compensate the JNF for the land acquired by Arab citizens by transferring alternative state lands to it.

At the hearing Adalah General Director Attorney Hassan Jabareen and Adalah Attorney Suhad Bishara rejected the proposal as it does not end the discrimination against Arab citizens in the state; the state will transfer alternative land to the JNF for land acquired by Arabs citizens and will thereby maintain its current hold over 2.5 million dunams of land, equating to 13% of the total land-space in Israel. Adalah objected to the proposed exchange of land between the state and the JNF, which publicly acknowledges that it markets its land exclusively to Jews, as well as the delay in hearing the petition for three months. Adalah argued that the state and the JNF had the opportunity to reach a long-term solution that would bring an end to the policy of discrimination against Arabs.

Significantly, the state transferred almost two million dunams of “state lands” to the JNF in 1949 and 1953, and the JNF thereby gained a special status in Israeli law, as a body that wields enormous influence in land distribution policy in the State of Israel. In accordance with Israeli law, the ILA manages what is defined by law as “Israel land”, which accounts for as much as 93% of the land in the state, including JNF-controlled land.

Following the filing of the petition in 2004, the JNF asked the Supreme Court to 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 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, filed by Attorney Bishara 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 of 1993 – 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. Therefore, the ILA's policy and Article 27 contradict the limitations contained in the Basic Laws, as the discriminate on the basis of national belonging and are not based on primary Knesset legislation.

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 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 further creation of 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.

On 18 July 2007, a racist bill submitted by MK Uri Ariel (National Unity/National Religious Party) passed its preliminary reading in the Knesset plenum. The bill stipulates that land in the possession of the Jewish National Fund (JNF) is to be allocated exclusively to Jewish people. In accordance with the bill, a new provision will be added to the Israel Land Administration Law, 1960, entitled “Management of the Jewish National Fund's Lands.” Under the additional provision, “Despite whatever is stated in any law, leasing of Jewish National Fund's lands for the purpose of the settlement of Jews on these lands will not be seen as improper discrimination.” According to this new paragraph, “For the purpose of every law, the association documents of the Jewish National Fund will be interpreted according to the judgment of the Jewish National Fund's founders and from a nationalist-Zionist standpoint.”

H.C. 9205/04, Adalah v. The Israel Lands Administration, et. al.