{"id":538,"date":"2008-02-20T00:00:00","date_gmt":"2008-02-19T22:00:00","guid":{"rendered":"538"},"modified":"2011-05-23T15:47:10","modified_gmt":"2011-05-23T13:47:10","slug":"acri-urges-ministers-to-ensure-adequate-water-supply-in-east-jerusalem","status":"publish","type":"post","link":"https:\/\/law.acri.org.il\/en\/2008\/02\/20\/acri-urges-ministers-to-ensure-adequate-water-supply-in-east-jerusalem\/","title":{"rendered":"ACRI Urges Ministers to Ensure Adequate Water Supply in East Jerusalem"},"content":{"rendered":"
<\/div>\n

Mr. Meir Sheetrit
\nMinister of the Interior<\/p>\n

Mr. Binyamin Ben-Eliezer
\nMinister of National Infrastructure<\/p>\n

Re:\tEnsuring a Regular Water Supply for East Jerusalem Residents <\/p>\n

Sirs:<\/p>\n

We respectfully appeal to you regarding a matter frequently raised with us by East Jerusalem residents who suffer from the lack of a regular water supply. As will be explained below, lack of connection to the water system has led to a number of hazards in the eastern part of the city and severe violation of the residents\u2019 right to a supply of water.<\/p>\n

We are of the opinion that your urgent intervention is required so that a legal solution can be found that will enable East Jerusalem homes to be connected to the municipal water system.<\/strong><\/p>\n

Lack of a Regular Water Supply in East Jerusalem<\/u>
\n1.\tEast Jerusalem today has a population of over a quarter million Palestinians; more than half of these, according to our findings, do not have a regular, legal supply of water.<\/strong><\/p>\n

2.\tData recently provided by the Gihon Water and Sewage Company of Jerusalem indicate that Gihon has placed a total of 15,800 water meters in the Arab neighborhoods of Jerusalem. Since the average household in the Arab neighborhoods of Jerusalem has 5.32 inhabitants (Central Bureau of Statistics, Statistical Abstract of Israel 2006, Table 5.2), only 85,000 Palestinian residents of East Jerusalem appear to be legally connected to the Gihon water system.<\/p>\n

3.\tSince the total population of Arab residents of East Jerusalem is approximately 250,000, this leaves some 160,000 people – the balance of the population of East Jerusalem – without legal connection to the Jerusalem water system.<\/strong><\/p>\n

4.\tThis appalling situation is rooted in both a legal issue that prohibits connection to the water system of a structure built without a construction permit, as well as an ongoing planning failure with respect to East Jerusalem.<\/p>\n

5.\tAs a result of the planning failure, which we will discuss more fully below, for decades there has been virtually no legal way to issue construction permits for new structures. Thus, most of the structures in East Jerusalem were built without permits: An estimated 19,900 housing units were built in the Palestinian neighborhoods of East Jerusalem between 1967 and 2001, although only 3,100 construction permits were issued (Bimkom and Ir Amim, Planning Trap: Planning Policy, Land Allocation, Building Permits, and House Demolitions in East Jerusalem <\/i>(2004) [Hebrew], hereinafter \u201cPlanning Trap<\/i>“, p. 40).<\/p>\n

6.\tParag. 157a of the Planning and Construction Law (1965) prohibits any structure built without a permit to be connected to the municipal water system, the electricity grid, or telephone lines. While solutions were found that enable tens of thousands of East Jerusalem structures lacking a permit to connect to the electricity grid and telephone lines, no arrangement was found to connect these structures to the municipal water system. As a result, the Gihon Water and Sewage Company of Jerusalem does not allow connection to the water system for structures without a permit.<\/p>\n

7.\tThis unfortunate reality has left the residents of East Jerusalem with no choice but to rig makeshift connections to the water mains or to neighbors\u2019 homes that are formally connected to the water system. Through such connections, the residents fill storage containers from which they draw their water.<\/p>\n

8.\tThe significance of this situation is that the water supply does not come close to meeting the needs of the population, and the results are evident daily in the lives of East Jerusalem residents:<\/p>\n

\tWater pressure is low and the supply is irregular. A significant number of residents suffer from a complete lack of water for long days, after the water in the storage container has run out and before the next opportunity arises for refilling it.The stored water is exposed to a range of pollutants, from bacteria that proliferate in standing water to vermin and dead birds and fowl.<\/p>\n

\tThe shortage of water leads to poor hygiene in showering, dishwashing, and cleaning. Even preparing properly for prayer, which also requires water, is not possible. Water shortage contributes to high morbidity. From time to time, outbreaks of various infectious diseases are reported in East Jerusalem. Last summer, a suspected outbreak of viral hepatitis was reported in the Arab neighborhoods of East Jerusalem after 27 cases of hepatitis were found among children. Laboratory tests revealed that the disease was not transmitted by contagion, but through inferior sanitation, stemming from the lack of a sewage system and pollution of the drinking water (statement by the Jerusalem District Health Office from 25 July 2007). <\/p>\n

\tThe shortage of water also leads to quarrels among residents over the access to water, which sometimes spill over into violence.<\/p>\n

The Right to Water: The Normative Framework<\/u>
\n9.\tSince Israel annexed East Jerusalem in 1967, its actions there fall under the legal obligations of the norms of administrative law, internal constitutional law, and international law – humanitarian law and human rights law. As will be described below, all these legal systems recognize the right to water and the special obligation of a state to ensure the regular supply of water for all its inhabitants.<\/p>\n

In Israeli Law<\/u>
\n10.\tParag. 1 of the Water Law (1959) states:
\nThe sources of water are public property, under control of the State, and intended for the needs of its inhabitants and development of the country.<\/p>\n

11.\tParag. 3 of this law enshrines the right to water:
\nEvery person has the right to receive and use water<\/strong>, subject to the provisions of this law.<\/p>\n

12.\tThe Municipal Ordinance (Water Supply) states in parag. 21 the obligation of the municipality to ensure the regular supply of water:
\nIn keeping with the provisions of this Ordinance, it is the obligation of every municipal council to ensure that for every inhabited house within its jurisdiction, pure water be provided at not a great distance to meet the consumption and needs of those who reside in the house.
\nAnd parag. 238 of the Municipal Ordinance [Amended] notes the actions that the municipality must take to ensure the regular supply of water to the public.<\/p>\n

13.\tIsraeli courts have also recognized the right to water as a basic right derived from the right to life, the right to dignity, the right to health, and the principle of equality. The Haifa District Court, in session as a Water Tribunal, articulated the importance of this right and the obligation of the State to protect the right and implement it for every resident:<\/p>\n

The right to receive water is a basic and fundamental right that constitutes an element in the right of the Petitioners to health and dignity, and it is the obligation of the State to supply water to the Appellants<\/strong> to enable their dignified survival, the upkeep and growth of their agricultural businesses, and to safeguard their health.<\/p>\n

Recognition of water as a basic right is a development in the field of human rights over the last three decades. The right to water has been gaining recognition, directly or indirectly, as derived from other basic rights, such as the right to life and the right to health. Water as a basic right is drawn from a series of international documents that deal with human rights, such as international human rights conventions, the Amsterdam Declaration from 1992, the Dublin Statement from 1992, and others. The recognition of water as a basic right critical for human survival is enshrined in a Comment of the UN Committee on Economic, Social and Cultural Rights from 1966 (Comment No. 15 from 26 November 2003). The right to water as a basic right also derives from the practice of countries, which also constitutes a source for the recognition of rights in international law. <\/p>\n

The significance of recognizing the right to water as a basic right is the obligation of the State to take measures to protect that right and ensure its realization for every person without discrimination<\/strong> (Water Tribunal Appeal 609\/05 Abdullah abu Ms\u2019aed v. Water Commission (unpublished), [Legal Publications 06 (21) 152] pp. 3-4) [emphasis added].<\/p>\n

14.\tThe Supreme Court also ruled that the right to water is a basic right:
\n\u2026The fundamental assumption in the law is that every person has a right to receive water <\/strong> for payment. These matters, which were clarified in the case of Kfar Pines and cited above, have broad application for all \u201cinhabitants of the state\u201d and are not limited to the relations of a collective association and its members\u2026I will be utterly frank: The idea that an individual or family would be cut off from water evokes immediate recoil. Without water – there is no life<\/strong>. It is easier, for example, to adjust to cutting off a telephone line for lack of payment (Administrative Petition 7262\/00 Poriya Kfar Avoda v. Levy<\/i>, PD 56 (3) 899, 909-910) [emphasis added]. <\/p>\n

On the essence of the right to water, see also Administrative Petition 535\/89 Water Commissioner v. Perlmutter<\/i>, PD 46 (5) 695, 702.<\/p>\n

15.\tRecognition of the right to water as a basic right derived from the right to dignity is drawn from interpretations given in court rulings about the Basic Law: Human Dignity and Liberty. The Supreme Court recognized that human dignity includes the right to subsist in dignity, and noted the need to ensure the material existence of the individual as a basic condition for realizing this right. In the words of Chief Justice Barak:
\nThe Basic Laws protect the right to dignity and also encompass an aspect of material subsistence required to realize the right to dignity. From this perspective, the right of an individual to dignity is also the right to lead his ordinary life as a human being unvanquished by poverty that leaves him in unbearable destitution. According to this approach, the right to a life with dignity is the right that the individual will be ensured the minimum material means that enable him to survive in the society in which he lives (HCJ 366\/03 Commitment to Peace and Social Justice Association v. Minister of Finance <\/i>(unpublished), parag. 15 of the ruling of Chief Justice Barak). On this matter, see also parag. 1 of Justice Beinisch\u2019s ruling and parag. 1 of Justice Levi\u2019s ruling in this case; Administrative Appeal 3819\/04 Twito v. Jerusalem Municipality<\/i<, PD 59(4) 769, 779; Civil Appeal Request 4905\/98 Gamzu v. Yeshaiahu<\/i>, PD 55 (3) 360, 375-376; HCJ 5578\/02 Manor v. Minister of Finance<\/i>, PD 59 (1) 729, 736; HCJ 161\/94 Itri v. State of Israel <\/i>(unpublished).<\/p>\n

16.\tThe Supreme Court places special emphasis on the state\u2019s obligation to ensure that its inhabitants not live in life-threatening poverty; in listing the obligations of the State, it cited, inter alia, the obligation to ensure drinking water and adequate sanitation<\/strong>:
\nHence, it can be assumed in this matter – without making hard and fast statements – that among the obligations of the State derived from the Basic Law: Human Dignity and Liberty is the obligation to maintain a system that will ensure a \u201csafety net\u201d for the poor in society so that their material situation will not lead to life-threatening poverty. In this context, it must ensure that the individual has sufficient food and drink for survival; a place to live that enables privacy, a family life, and shelter from the elements; and adequate sanitation and health services that provide access to modern medical facilities (HCJ, Commitment Association, aforementioned, Parag. 16 of the ruling of Justice Barak).<\/p>\n

17.\tIn this context, it should be noted that health and an adequate standard of living are clearly related to the regular supply of clean water, derived from the causal connection between the lack of clean water and disease or physical ailments. It is known that without water there can be no life, and when water is of inferior quality or inadequate, it is impossible to maintain a healthy life. International comparative data, for example, show a clear correlation between access to water and infant mortality (on the relationship between various diseases and the lack of a regular supply of clean water, see Physicians for Human Rights, \u201cWater Discipline: Water, the State, and the Unrecognized Villages in the Negev\u201d (May 2006), pp. 21-27). For more about the right to water, see Neta Ziv, \u201cPoverty, Equality and Social Gaps: The Case of Water Rights in Israel\u201d, Mishpat Umimshal <\/i>7 (2) 945 (2004), 967-970 (Hebrew). <\/p>\n

In International Law<\/u>
\n18.\tIn accordance with international humanitarian law and international human rights law, as well, the State of Israel is obligated to ensure a regular supply of clean water to the residents of East Jerusalem, since it is the sole and exclusive authority in control in this area.<\/p>\n

19.\tThe obligation of Israel in this matter derives from a series of international conventions including the Covenant on Economic, Social and Cultural Rights ratified by Israel in 1991, which enshrines the right of every person \u201cto an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions\u201d (Art. 11). The Covenant also recognizes the right of every person \u201cto the enjoyment of the highest attainable standard of physical and mental health\u201d (Art. 12).<\/p>\n

20.\tThe Covenant on the Rights of the Child, ratified by Israel in 1991, enshrines the right of every child to enjoy the highest attainable standard of health (Art. 24), and obligates State parties to fight disease and malnutrition through, inter alia, the provision of clean drinking water.<\/p>\n

21.\tThe right to the supply of clean water is enshrined in other major international covenants and documents, such as the Covenant on the Elimination of All Forms of Discrimination Against Women, the Third and Fourth Geneva Conventions with the additional Protocol II, the Dublin Statement (1992), and the Amsterdam Declaration (1992). All these documents emphasize the prohibition against discrimination in realizing the right to water based on race, gender, religion, nationality, or political view.<\/p>\n

22.\tThe obligation of states to guarantee a regular supply of water was deliberated by international legal bodies, which sought to elucidate the content of this obligation. The UN Committee on Economic, Social and Cultural Rights stated in General Comment No. 15 from 26 November 2002 that all states must use the maximum resources available to them to ensure realization of the right to water for their inhabitants. The Covenant warns against the use of policies or legislation that could conflict with the right to water, even noting, \u201cNo household should be denied the right to water on the grounds of their housing or land status.\u201d<\/p>\n

23.\tIn the earlier Comment No. 4 from 1991, the UN Committee defined \u201cadequate housing\u201d to include access to clean water, sanitation and washing facilities, and means of refuse disposal.<\/p>\n

24.\tThe right to a supply of clean water is even recognized in the legislation and litigation of many countries in the world, such as the United States, European countries, Brazil, Argentina, South Africa, India, Nepal, and Ethiopia. Recognition of the right to water has brought the courts of many countries to assert that homes must be connected to the water system, polluted water sources must be treated, and the water system must be expanded. The European Court of Human Rights even recognized the right to connect to the water supply as a basic civil right (European Court of Human Rights, Zander v. Sweden<\/i>, No. 14282\/88 (Judgment of 25 November 2003).<\/p>\n

The Legal and Planning Problem<\/u>
\n25.\tWe believe that the status and importance of the fundamental right to water and the ongoing failure to arrange for planning procedures in East Jerusalem, leading to the use by the authorities of Parag. 157a in the Planning and Construction Law (1965) to prevent the connection of houses built without a permit, are inconsistent with the principles of law and justice.<\/strong><\/p>\n

26.\tAs noted, parag. 157a of the Planning and Construction Law (1965) prohibits connection to the water system of a structure built without a construction permit. In the language of the law:
\n(d) (1) A supplier shall not supply water to a property for purposes of carrying out work that requires a permit unless the applicant provides approval from the certifying authority.
\n(2) A supplier shall not supply water to a building \u00ad- not for purposes of carrying out work as noted in parag. (1) – until after the applicant provides approval from the certifying authority.<\/p>\n

27.\tThe certifying authority is defined in the paragraph as \u201cChair of a Local Commission together with the Commission Engineer, or Chair of a Subcommission according to parag. 18 together with the Local Commission Engineer\u201d (in Jerusalem, this generally means the Deputy Mayor and Municipal Engineer); and, the paragraph continues, this authority can give approval to connect to the water system only after receipt of a permit from the Local Commission or the local licensing authority for constructing a building or any other work on the property. It should be noted that the paragraph includes identical provisions with regard to receipt of approval from the certifying authority for connecting to the electricity grid and telephone lines.<\/p>\n

28.\tThe significance of this is that approval from the certifying authority for connecting to the various utilities cannot be given in any case that the structure is built without a construction permit. Thus, enforcement of the provisions of this law in East Jerusalem means that the Gihon Company, responsible for supplying water in Jerusalem, is prevented from connecting water to homes built without a permit.<\/p>\n

29.\tNevertheless, as noted at the beginning of this document, the massive construction without permits in East Jerusalem is not coincidental, and certainly not a product of the \u201ccriminality\u201d of the population. As noted, there is a cumulative planning failure for East Jerusalem that leads to this part of the city suffering adverse discrimination in planning compared with the western part of Jerusalem. This discrimination is reflected in government decisions, the preparation of city plans, and the use of these plans and the limitations on obtaining construction permits, as will be described in brief below.<\/p>\n

The Planning Trap<\/u>
\n30.\tIn June 1967, the administration, law, and governance of the State of Israel were extended over the territory known today as East Jerusalem, and a total of approximately 70,500 dunam, including nineteen villages adjacent to the city, were added to the Jerusalem jurisdiction. Of this area, over 24,500 dunam were expropriated by the authority granted to the Minister of Finance under the Land Ordinance (Acquisition for Public Use) (1943); these lands comprise over a third of the entire area of East Jerusalem.<\/p>\n

31.\tA clear majority of this land was used to establish Jewish neighborhoods in East Jerusalem: Ramot Eshkol, French Hill, the Jewish Quarter, Ma\u2019alot Daphna, East Talpiyot, Neve Ya\u2019akov, Gilo, Ramot, Pisgat Ze\u2019ev, and the Shu\u2019afat Ridge. Over 40,000 housing units were constructed on this land for the Jewish population, and not a single housing unit for the Palestinian population. With the exception of a negligible number of apartments, since 1967 no housing units were built with government aid for the Palestinian population of East Jerusalem.<\/p>\n

32.\tA planning vacuum has existed in East Jerusalem since 1967, which is being filled only partially, gradually, and slowly. Only in 1977 was the first city plan approved in East Jerusalem, EJ\/9, which dealt primarily with preserving the areas adjacent to the Old City and preventing construction. However this was a general town plan, and therefore could not serve as the basis for issuing construction permits. In 1983, a decision was made for the first time to prepare detailed local plans for East Jerusalem neighborhoods. Since then, over twenty local plans were approved for East Jerusalem on a total land area of approximately 24,700 dunam out of the 46,000 dunam of East Jerusalem that continue to be owned by Palestinian residents after the wave of expropriations in 1967.<\/p>\n

33.\tIn other words, only 53.7% of the property that remained in the hands of Palestinian residents after the expropriations underwent a planning process, meaning that construction could ostensibly proceed there with a permit. However, some 35% of this planned area was designated a green zone, precluding the construction of residential units. Because the vast majority of the area on which construction was permitted was already built up, very little property remains for construction in East Jerusalem.<\/strong><\/p>\n

34.\tOn top of this, the authorities have imposed a series of procedural limitations on applications for a permit even in the limited area that remains for construction. These procedures are costly and not within the means of the vast majority of East Jerusalem residents.<\/p>\n

35.\tAs a result, obtaining a permit to build in East Jerusalem is only a theoretical possibility, even for areas where a detailed plan exists and a construction permit is ostensibly attainable.<\/strong><\/p>\n

36.\tIndeed, construction with a permit has become a rarity in East Jerusalem. Based on the statistics in Planning Trap – in 1967 there were 12,600 housing units in East Jerusalem, with 19,900 housing units built between 1967 and 2001, but only 3,100 construction permits issued – it can be assumed that over half the housing units that currently exist in East Jerusalem were built without a permit. (For details, see Planning Trap, pp. 13-15, 19-26, 38, and 41-42.)<\/p>\n

Discrimination against East Jerusalem Residents<\/u>
\n37.\tIt should be noted that the protracted procedures and high fees required for obtaining a permit apply to Palestinian residents, but not to residents of West Jerusalem. Furthermore, there is an economic gap between East and West Jerusalemites, which has only increased with the economic severing of East Jerusalem from the West Bank as a result of the ongoing construction of the Separation Fence. This situation clearly reflects discrimination against East Jerusalem residents in all matters related to the possibility of building their homes legally.<\/p>\n

38.\tThis discrimination also leads to discrimination in access to water. The use of parag. 157a, which rests on the planning trap previously described, leads to the fact that connecting to the water system, meaning access to clean water, is provided in a discriminatory manner to Jewish and Arab neighborhoods of Jerusalem.<\/strong><\/p>\n

39.\tThe right to equality is of course a fundamental right in the Israeli legal system. With legislation of the Basic Law: Human Dignity and Liberty, the right to equality is enshrined in the context of the right to human dignity as a lofty constitutional right.<\/p>\n

40.\tThe Water and Sewage Companies Law (2001) states that every municipal water and sewage company, including the Gihon, \u201cshall sell and supply water continuously and efficiently, in a quantity and quality in keeping with every law and condition of the license, to every consumer in its area without discrimination<\/strong>\u201d (parag. 31; see also parags. 1(a)(1) and 1(b) of the law.<\/p>\n

41.\tDiscriminating between Jewish and the Palestinian neighborhoods in the supply of water therefore constitutes a violation of the fundamental right to equality and even violation of the Gihon Company\u2019s commitments according to the Water and Sewage Companies Law.<\/p>\n

Violation of Basic, Constitutional Rights<\/u>
\n42.\tUnder these circumstances, we are of the opinion that the use of parag. 157a, which leads to the violation of basic rights – the right to water, the right to life, the right to dignity, and the right to health – and to violation of the principle of equality for over 160,000 residents does not meet the criteria of reasonableness and proportionality in administrative law and the principles of law and justice. <\/strong><\/p>\n

43.\tAlthough parag. 157a benefits from the principle of the preservation of the validity of laws, today, however, in an era of a constitution and in light of the planning situation in East Jerusalem described above, this paragraph cannot be interpreted to allow for sweeping and disproportionate violations of a basic right of the individual or to provide general, comprehensive, and unlimited authorization to continue withholding connection to the water system.<\/p>\n

44.\tWe believe that under circumstances in which construction permits cannot in effect be issued, the withholding of connection to the water system for an entire population is unreasonable.<\/strong> In their decision to continue this conduct, the authorities are disregarding the blatant violation of the principles of proper administration and their obligation to adhere to the objective criteria of administrative reasonableness (HCJ 7542\/05 Portman v. Sheetrit (unpublished), parags. 17-19 of the ruling of Justice Arbel; HCJ 1993\/03 The Movement for Quality Government in Israel v. The Prime Minister, <\/i>PD 57 (6) 817, 836-837, 840-842).<\/p>\n

45.\tThe actions of the authorities in the urban planning of East Jerusalem, which brought about a structural failure in the planning system and disregard for the water supply problem, conflict with the trusteeship obligation of a public authority, as decisions in this matter were clearly not made with integrity, honesty, reasonableness, and lack of bias. The absence of integrity of the authorities is particularly obvious here, and diverges from the range of reasonable decisions that the authorities could have taken.<\/p>\n

46.\tIn addition, the authorities transgress with regard to their obligation to ensure that violation of the rights of East Jerusalem residents will be proportionate<\/strong>. As described above, the use of parag. 157a leads to serious breach of several basic rights and the principle of equality. This severe violation does not meet the criterion of proportionality according to its three subtests (HCJ 7957\/04 Mara’abe v. Prime Minister of Israel <\/i>(unpublished), parags. 110-116 of the ruling; HCJ 5016\/96 Horev v. Minister of Transportation<\/i>, PD 51 (4) 1, 53-54; HCJ 3477\/95 Ben-Atiya v. Minister of Education, Culture and Sport<\/i>, PD 49 (5) 1; Administrative Appeal 6821\/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village<\/i>, PD 49 (4) 221, 433-441).<\/p>\n

47.\tEven if the use of parag. 157a was seemingly intended to serve the objective of preventing construction without a permit, in actuality it does not accomplish this, and therefore does not meet the first test of proportionality – the test of rational means. The growth of the population, the need for a roof over their heads, and the fact that obtaining a construction permit in East Jerusalem is impossible lead to construction without permits on an ongoing basis, even when it is clear to the residents that they will not have access to such a vital resource as a water connection. Hence the very high rate of unauthorized construction is not evidence of contempt for the rule of law, but rather a structural failure of the planning system. The system has become more and more irrelevant for East Jerusalem residents, since it does not cope with the real needs of the residents or offer them solutions. In these circumstances, withholding connection to water constitutes only further harassment of the residents, as it clearly does not and cannot achieve the objective of the law.<\/p>\n

48.\tFurthermore, preventing connection to the water system does not meet the rational means test set by the Supreme Court whereby means should not be employed that are unreasonable or irrational (HCJ 4769\/95 Menachem v. Minister of Transportation<\/i>, PD 57 (1) 235, 279; HCJ 9593\/04 Murar v. Commander of Military Forces in Judea and Samaria<\/i> (unpublished), parag. 25; HCJ 2887\/04 Abu Medeghem v. Israel Land Administration <\/i>(unpublished), parag. 37). In the matter at hand, since injurious means were used although the population did not have the legal option of obtaining construction permits as is common in other areas of Israel, the means clearly injures an entire population indiscriminately, and therefore is neither reasonable nor proportionate.<\/p>\n

49.\tWithholding water from the residents of East Jerusalem also does not meet the second test of proportionality (the least injurious means test), because the authorities have at their disposal a range of other means that would cause less injury to the rights of the residents – above all, finding a solution in the planning and procedures that would enable residents to obtain construction permits. Just as the authorities demand that planning procedures be completed throughout Israel, they can demand the same for East Jerusalem. If this is not done, they must find alternatives that will enable the regulation of planning for construction in East Jerusalem and certainly enable a water supply to its residents, just as they do for other vital services (see below).<\/p>\n

50.\tThe use of parag. 157a also fails the third subtest, proportionality in the \u201cnarrow\u201d sense (the benefit versus the damage), since the benefit from not connecting to the water cannot sanction the damage caused to the rights of the residents. As noted above, no benefit is actually gained from preventing the supply of water, as construction violations continue unremittingly.<\/p>\n

51.\tIt should be noted that courts have ruled that means are disproportionate if alternative means are available, even if the benefit is reduced by the alternative means, if the damage caused is significantly less than would have been wrought by the original means (HCJ 7957\/04 Mara’abe v. Prime Minister of Israel <\/i>(unpublished), parags. 115-116 of the ruling; HCJ 2056\/04 Beit Sourik Village Council v. Government of Israel<\/i>, PD 58 (5) 807, 841). In the matter at hand, another means exists: expediting the planning procedures as required by law to regulate the status of all structures in East Jerusalem. Until this happens, an immediate legal solution must be found to end the ongoing harm to the rights of the residents.<\/p>\n

52.\tHence, poised on the scale of contending values are the objective of the law – preventing and deterring construction without a permit, which is not realized at all in reality – and violation of the basic right to water, which withholds from residents one of the most fundamental resources for human survival. In addition, the result of not connecting to the water system also constitutes clear discrimination of the Palestinian residents of Jerusalem in comparison with the Jewish residents. <\/strong> This violation is in breach of Israeli law, international law, and the international obligations of the State, and contravenes the principles of justice and morality. When these are the values at stake, it is hard to see how the theoretical objective of the law outweighs the other.<\/p>\n

53.\tTherefore, it is our opinion that insisting on fulfillment of the condition of parag. 157a in East Jerusalem is unreasonable, disproportionate, and fundamentally unfair, and that the situation should be changed at once.<\/strong><\/p>\n

Solutions in Similar Situations<\/u>
\n54.\tOur investigation has revealed that Bezeq connects East Jerusalem structures built without a permit to the telephone system without prior checking if there is approval from the certifying authority.<\/strong> Thus, Bezeq disregards parag. 157a of the Planning and Construction Law. Bezeq explains its conduct, known to various authorities including the Ministry of Communications, by noting that according to the company license, it must meet conditions of service quality that obligate it to connect consumers to the telephone network within two weeks of receipt of the order. This schedule does not leave enough time to check into the subject of construction permits.<\/p>\n

55.\tThus, parag. 157a is not enforced with respect to connecting the telephone network in East Jerusalem. This is an important service, of course, but clearly does not carry the same fundamental and vital urgency as the human need for a regular supply of water.<\/p>\n

56.\tRegarding the case of illegal construction in Arab and Druze towns, a legislative arrangement was made in the past that enabled connection to the electricity grid of houses built without a construction permit<\/strong>, noting in the law that parag. 157a of the Planning and Construction Law will not be applicable (Supply of Electricity Law (Temporary Order), 1996).<\/p>\n

57.\tThis arrangement was made possible in 1987, after the government adopted the recommendations of the Interministerial Committee on Illegal Construction (the Markovitz Committee), which stated that illegal construction in some Arab and Druze towns stemmed from the lack of town plans that would have enabled the issue of construction permits (for more about the lack of town plans and master plans in Arab towns, see the State Commission of Inquiry into the Clashes between Security Forces and Israeli Citizens in October 2000 (the Orr Commission), parag. 37 of the first chapter).<\/p>\n

58.\tSince, in planning terms, the neglect of East Jerusalem resembles the neglect of Arab and Druze towns, just as it was possible to establish a legislative arrangement concerning the latter, it is clearly possible to establish a similar arrangement for connecting to water in East Jerusalem. Indeed, in our view the principle of equality and the prohibition on discrimination mandate this.<\/strong><\/p>\n

Possible Solutions<\/u>
\n59.\tFrom the foregoing, it can be seen that when there is recognition that problems are rooted in a failure of the planning authorities, the authorities sometimes manage to find a solution that will ensure the provision of vital public services.<\/p>\n

60.\tTherefore we are of the opinion that in cases of an ongoing planning failure, such as East Jerusalem, and in light of the vital need for water as a basic commodity, the constitutional status of the right to water, and Israel\u2019s obligation according to Israeli law and international law, it is necessary and fitting to urgently find a solution that will allow for the connection of water to the structures that were built without a construction permit.<\/p>\n

61.\tThis problem can be resolved in any arrangement found suitable. Inter alia, a legislative amendment can be enacted to the Planning and Construction Law that will enable the certifying authority to give permits to connect to water in cases where no legal way exists to issue construction permits.<\/p>\n

62.\tAnother solution could be a legislative initiative that permits connection in the said cases, as was done for connecting to the electricity grid, as described in parags. 56-58 above. This means enactment of a law for the supply of water as a temporary order that will enable the Interior Minister or the National Infrastructure Minister to decide on and publish a list of places or structures that should be connected to the water system. <\/strong> As was done with respect to the electricity grid, here, too, the law will include a provision to submit the list to the local planning authorities, asserting that parag. 157a of the Planning and Construction Law does not apply to the places or structures approved by the Minister.
\n
\n63.\tWe are of the opinion that in the case of East Jerusalem, which has suffered for decades from an ongoing planning failure that led to a severe water shortage, which constitutes a health and sanitation hazard of the first order, a legal solution of some kind is urgently needed that will allow the Gihon Company to immediately connect the houses of East Jerusalem residents to the municipal water system.<\/p>\n

64.\tWe would appreciate your urgent consideration of the above and also request a meeting with you concerning this matter so that we can apprise you of the severity of the situation and the critical need to find a solution regarding the supply of water to East Jerusalem.<\/strong><\/p>\n

Yours very truly,
\nTali Nir, Attorney<\/p>\n

<\/div>\n","protected":false},"excerpt":{"rendered":"

Mr. Meir Sheetrit Minister of the Interior Mr. Binyamin Ben-Eliezer Minister of National Infrastructure Re: Ensuring a Regular Water Supply … Read more…<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[59,37,35,26,47],"tags":[12],"class_list":["post-538","post","type-post","status-publish","format-standard","hentry","category-east-jerusalem","category-arab-citizens-of-israel","category-land-and-planning-rights","category-social-and-economic-rights","category-the-right-to-health","tag-in-the-knesset"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/posts\/538","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/comments?post=538"}],"version-history":[{"count":1,"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/posts\/538\/revisions"}],"predecessor-version":[{"id":2335,"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/posts\/538\/revisions\/2335"}],"wp:attachment":[{"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/media?parent=538"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/categories?post=538"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.acri.org.il\/en\/wp-json\/wp\/v2\/tags?post=538"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}