Challenging ILA Policy of Tenders Open Only to Jews for Jewish National Fund Lands
Petition submitted in 10/04 against the Israel Lands Administration (ILA), the Jewish National Fund (JNF) and the Minister of Finance (MOF), demanding the cancellation of an ILA policy and a regulation promulgated by the MOF, permitting the marketing and allocation of JNF lands through bids open only to Jews. Adalah also requested an injunction ordering the ILA to freeze all open and imminent tenders for JNF lands and ban their lease pending a final decision on the petition. Under Israeli law the ILA manages "Israel's lands." Since 1948, large tracts of Arab-owned land have been confiscated or otherwise appropriated under law and taken into the possession of the state or Zionist institutions, such as the JNF, for exclusive use by Jews, bringing about state control of over 93% of the land in Israel. "Israel's lands" include land owned by the JNF. 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, giving the JNF special status under Israeli law. The JNF enjoys a huge influence over land distribution policy in Israel, nominating, for example, half of the members of the ILA Council. 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. The ILA has acknowledged that tenders for JNF lands are only open to Jews, claiming that the agreement signed between the state and the JNF in 1961 obliges it to respect the objectives of the JNF, which include settling Jews on lands and properties within the Israeli government's jurisdiction.
Adalah argued that the ILA, as a public agency established under law, is not authorized to adopt positions or pursue goals contrary to the principles of equality, just distribution and fairness, and cannot be a sub-contractor for discrimination on the basis of nationality. Adalah also argued that the ILA's policy is not based in statutory law, but only on a regulation - Article 27 of the Regulations of the Obligations of Tenders - promulgated by the MOF 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 it, and because it 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. Moreover, the ILA's policy and the regulation conflict with the Basic Law: Human Dignity and Freedom - 1992, by discriminating on the basis of nationality, and do not rely on Knesset-enacted statutory law. The continuation of such practices, Adalah also argued, will lead to the further creation of racially segregated towns and neighborhoods, which will resemble those established under the Apartheid regime in South Africa. Moreover, land is an essential resource for social and economic development. The ILA's policy will exacerbate the severe lack of land resources in Arab towns, acute housing shortages and a scarcity of land for building, which precludes virtually all development, Adalah stated.
In 10/04, the JNF stated that it would freeze new and existing tenders in the North and in the Galilee until the hearing date. In 12/04, the JNF submitted its response, in which it claimed to have purchased its lands using monies 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 Court refuse to decide 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 non-Jews do not have the right to choose land given to the Jews for the sake of achieving their right to equality. Regarding Article 27 of the Tenders Law, the JNF responded that it is constitutional, and denied that it contradicts the Tenders Law. The JNF further stated 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 agreement with the JNF. The bids for JNF-owned lands in the North and the Galilee frozen since 10/04 remain frozen.
According to reports in the media, in response to the petition, the AG ruled in 1/05 that the ILA cannot discriminate against Arab citizens of Israel in the marketing and allocation of the lands it manages, even lands belonging to the JNF. Adalah's position is that there are two sides to the AG's ruling: on the one hand the decision is positive, since the AG concurred with Adalah's argument that the ILA's policy of marketing and allocating JNF-owned lands through bids open only to Jews is discriminatory. However, on the other hand, the AG also decided whenever a non-Jewish citizen wins an ILA tender for a plot of JNF-owned land, the ILA will compensate the JNF with an equal amount of land, a process which Adalah opposes as it involves the transfer of state-owned lands to the JNF, an institution which publicly acknowledges that its land policy is discriminatory. To date the AG has not submitted his response to the petition.
H.C. 9205/04, Adalah v. The Israel Lands Administration, et. al. (case pending).