In ruling against Bedouin, Israel’s top court ignored years-long institutionalized policy that created serious shortage of housing in Palestinian society.
After 13 years of legal battles, the Supreme Court last week ruled to finally approve the evacuation of the village of Umm al-Hiran, with its thousand residents. The court approved the evacuation based on the ruling that the state — which is the owner of the land and which granted the right to reside on the land — can also revoke the right it granted and remove the residents.
The court’s decision ignored the fact that it was the state that moved the residents to the area 60 years ago, after removing them from their own land during the the 1948 Nakba. During those 60 years, people were born in the village, grew up, married, built houses, gave birth to children and even had grandchildren.
Moreover, the court did not relate to the fact that the state is not planning to use the land for a different purpose. Houses will be built on it and people will live in them, exactly as they do today — but they will be Jewish residents, not the Bedouin of Umm al-Hiran.
It was not just these clear facts that the judges ignored. While they were entangling themselves in the legal exactitudes that allowed the state to change its mind and evacuate the residents legally, they ignored other legal principles, which should have caused the state to reexamine its decision.
Thus, for example, the planning authorities based themselves from the start on the assumption that the original residents had tresspassed on the land. In addition, according to the admission of the state representative in court, the possibility of integrating the residents of the village within the new community was not even considered, as fairness would require.
Joint Arab List Knesset members recently requested that a team of experts be established to provide an overall solution to the housing shortage in the Arab community — and that demolition orders be frozen until a long-term solution can be found. Attorney General Yehudah Weinstein did not accept the proposal. He insisted on enforcement — in the name of the rule of law, of course — with every objection being examined individually.
That is yet another example of how the authorities hide behind the dry letter of the law, without seeing the overall picture. Weinstein’s decision was supposedly based on the principle of “sectoral blindness,” but it ignored the discrimination against Arab society with regard to land and housing that is practised by all state authorities. It is this institutionalized discrimination that leads to construction without permits in Arab communities.
It is convenient to forget that the lack of housing in Arab communities stems to a great extent from their limited municipal boundaries, which do not include state land and have never been expanded. Twenty percent of the population lives on 2.5 percent of the land.
It also stems from the lack of up-to-date master plans in most Arab comunities and from the consistent discrimination in the allocation of resources — only 5 percent of the tenders published by the Israel Lands Authority for new housing in 2014 were for Arab towns.
And it stems from the systematic exclusion of Arabs from government benefits and support. One example is the “target price” plan for affordable housing, which will be implemented in 30 Jewish communities and not a single Arab one.
In such a situation, construction without permit is a necessity in Arab towns. The rule of law, even in its formalistic meaning, assumes that the citizen has been given a reasonable opportunity to act according to the instructions of the law, but chose not to do so. But governmental authorities prevent Arab citizens from building with permits or, at the very least, contribute significantly to making it impossible.
Turning a blind eye to the contribution of official policies in creating sectoral anomolies regarding planning and building laws and the insistence on literal enforcement, have turned the term “rule of law” into no more than a formalistic, bureaucratic cover.
In practice, it contradicts the essence of the rule of law, since it is the obligation of an administrative authority to strive for equality, not just in its meaning as relating to all as equals, but also in terms of relating to different people differently.
Legal formalism serves as an effective tool for the state to avoid its responsibility for the creation of the Arab housing shortage. In its decision on Umm al-Hiran, the court refused to see the human, social, historical and political aspects and ignored the state’s responsibility for the situation it created. Instead, it took advantage of the legal opportunity to remove the residents.
The Attorney General too, in his refusal to find an overall solution to the problem of construction without permit, defends the rule of law in only its formal aspect, while ignoring the years-long institutionalized policy that created the serious shortage of housing in Arab society.
The writer is an attorney in the land and planning rights department of Adalah – The Legal Center for Arab Minority Rights in Israel.
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