21 December, 2009
Attn: MK David Rotem
Chairman of the Knesset Constitution, Law, and Justice Committee
The Knesset
Sent by fax
Dear Sir,
Re: Bill for the Amendment of the Order re Communal Societies (Admission Committees in Galilee and Negev Communal Settlements) – 2009
Ahead of the committee’s discussion of this bill tomorrow (22 December, 2009, at 10:00), I wish to present ACRI’s position:
1. The bill wishes to grant communal societies, which are private bodies, the legal power to conduct selection processes on various grounds against persons who wish to reside in communal settlements established on state lands. First of all, this is a redundant bill since Amendment 7 of the Israel Land Administration (ILA) Act, that was legislated only recently, assigned the power to restrict the sale of plots in communal settlements to the ILA, which will certainly publish its resolutions in the coming months, and out of consideration of High Court of Justice (HCJ) rulings in past and pending petitions on the issue.
See Chapter 10 of the ILA Act (Amendment 7) – 2009; HCJ 6698/95 Qadan v ILA, verdict 54(1) 272, 258 (2000); Petition 3962/97 Beerotayim v Arad, verdict 54(4) 614 (1998); HCJ 3552/08 Kempler v ILA (pending); HCJ Abriq-Zawidat v ILA (pending).
2. Amendment 7 of the ILA Act makes this bill redundant. If there is no way to avoid inequality in allocating public lands, a public body such as the ILA, which follows national standards, should have the power to restrict the assignment of rights to state lands while balancing between the right to equality and distributional justice, and conflicting interests for each case. The current bill wishes to place these considerations in the hands of private and interested parties, such as the communal societies, which is legally wrong.
See HCJ 244/00 The Siah Hadash Association v Minister of National Infrastructures, verdict 56(6) 25 (2002).
3. Practically, the constitutional right to equality dictates that any person should have the right to live in any settlement, certainly when the settlement was allocated public lands by the state. This bill will allow a private body to harm that principle of equality for various reasons that the bill cites.
4. The right to equality is not absolute and might even conflict with other values and interests. We do not oppose, for example, cases in which a settlement would make accepting a candidate for joining it conditional on his economic ability to build a house in the communal settlement within a given period of time – since this is a proportional criterion that is meant to prevent the allocation of plots to persons who would not be able to realize that benefit, which might clearly impair on the settlement’s development. The application of this criterion, however, requires no admission committee.
5. On the other hand, when a communal settlement grants an admission committee with comprehensive powers to screen candidates according to vague criteria such as matching the way of life, the social fabric, or the fundamental views of that settlement, this is wrong and fails to meet the conditions of the restrictive clause in Basic Right: Human Dignity and Liberty.
6. The way of life in the majority of Israel’s communal settlements is not cooperative anyway, and their social fabric is not different from any neighborhood with an active community life. This is particularly true when the law applies to relatively large settlements of up to 500 houses. Collective experience shows that the screening process is mainly used so as to give the populations of these settlements, which are often economically sound, a right to pick and choose their neighbors as they see fit and a way to make sure that “undesired” people do not join “their” settlement. This primarily applies to Israeli Arabs, but also screens out the handicapped, single mothers, religious people, or people of Oriental origin – according to the tastes of the founding nucleus of each settlement. Thus, admission committees may reject persons they disapprove of for such or other reason, or due to some prejudice of the committee members.
7. The criterion according to which candidates need to subscribe to the fundamental views in the specific settlement, as defined in its codex, is absolutely unlawful because it means that settlements may make accepting new residents conditional on their political stands or worldviews even when the candidate wishes to partake in the local community life. Using this power – as it happened in the Misgav settlements – committees may refuse people who do not hold nationalist-Zionist views, as the committee defines them, when the clear intention is to prevent Arabs and ultra-Orthodox Jews from joining these settlements. By the same token, when the founding nucleus of settlements upholds secular values, it might refuse religious or observant candidates – which is absolutely unlawful as well.
8. The establishment of an appeals committee does not detract from the illegality of the bill because it instructs the appeals committees to follow the same wrongful criteria that the admission committees used for screening candidates.
9. In summary – the only values that this bill promotes are separatism, exclusion, and discrimination against individuals, instead of promoting communal life and respecting another’s rights and way of life. This is yet another reason why we are against this bill. In case of irregular situations in which restricting admission to specific settlements should apply, that power is already assigned to the new ILA, and it should decide as the case may be, but should not assign private bodies, such as communal associations, with the power to discriminate against individuals.
Sincerely,
Attorney Gil Gan-Mor
The Association for Civil Rights in Israel (ACRI)
