Law and politics in Israel lands: Toward distributive justice

Israel Affairs

Volumn 14, Issue 4, 2008, Pages 662-680

  Barak Erez, Daphne ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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EID: 69849128791     PISSN: 13537121     EISSN: 17439086     Source Type: Journal    
DOI: 10.1080/13537120802340514     Document Type: Article

References (68)

1. The basic constitutional norm that preserves public ownership of land is established in section 1 of the Basic Law: Israel Lands, which provides that 'The ownership of Israel lands shall not be transferred either by sale or in any other manner'. This arrangement was influenced by the format for land acquisition prior to the establishment of the state, the collectivist world view prevalent in Israeli society at that time and, obviously, by national considerations relating to the Israel-Arab conflict. See further J. Weisman 'Israel's State-Owned Land', Mishpatim, Vol. 21 (1991), p. 79 (Hebrew).
2. See M. Mautner (ed.), Distributive Justice in Israel, Tel Aviv, 2001 (Hebrew).
3. Hereinafter: 'Israel Lands Administration Law' or 'the Law'.
4. Professor Zamir notes that the powers granted to the Israel Lands Administration serve a classic example of the legislative practice of conferring an administrative body with 'sweeping authority', and warns that a law of this kind (occasionally referred to as a 'framework law'), is not consistent with the concept of the rule of law. See I. Zamir, Administrative Power, Jerusalem, 1996, Vol. 1, pp. 236-237 (Hebrew).
5. Israel Lands Administration Law (Amendment), 1995 (hereinafter, the 1995 Amendment) added a number of provisions regarding these matters, but they include restrictions of a particularly limited nature.
6. Compare H. C. 840/79, The Union of Israeli Constructors and Builders v. Government of Israel, 34 (3) P. D. 729.
7. See section 197 of the Municipal Corporations Ordinance [New Version].
8. For example, according to Decision 1 of the Israel Lands Council, 'The transfer of urban lands, with the exception of land zoned for public purposes, shall be effected by way of a public tender'. In the context of this provision it was determined that 'In accordance with the decision of the director of the Israel Lands Administration, the Council is entitled to exempt the Administration from its obligation to transfer land by way of a public tender'.
9. An exceptional example of a judicial review of a deviation from the directives of the Israel Lands Administration is H. C. 143/64, Adato v. Amidar, 18 (3) P. D. 51.
10. H. C. 5023/91, Poraz v. Ministry of Housing and Construction, 46(2) P. D. 793 (hereinafter, Poraz).
11. H. C. 5023/91, Poraz v. Ministry of Housing and Construction, 46(2) P. D. 793 (hereinafter, Poraz), p. 801.
12. H. C. 6176/93, Elyakim 1986-Cooperative Agricultural Settlement Association Ltd v. Israel Lands Administration, 48(2) P. D. 158 (hereinafter, Elyakim).
13. H. C. 6176/93, Elyakim 1986-Cooperative Agricultural Settlement Association Ltd v. Israel Lands Administration, 48(2) P. D. 158 (hereinafter, Elyakim), p. 165.
14. Poraz, p. 801.
15. Poraz, p. 801.
16. Elyakim, p. 165
17. P. C. A. 5817/95 Rosenberg v. Ministry of Housing and Construction, 50(1) P. D. 221 (hereinafter, Rosenberg).
18. C. A. 2962/97, Beerotaim, Workers Moshav for Cooperative Agricultural Settlement v. Arad, 52(4) P. D. 614 (hereinafter, Beerotiam).
19. P. C. A. 10623/02 Kefar Hittim-Cooperative Moshav for Agricultural Settlement Ltd v. Bein, 57(2) P. D. 943.
20. P. C. A. 10623/02 Kefar Hittim-Cooperative Moshav for Agricultural Settlement Ltd v. Bein, 57(2) P. D. 943, p. 947.
21. Hereinafter, Mandatory Tenders Law.
22. Section 2 of the Mandatory Tenders Law.
23. Section 4(b) of the Mandatory Tenders Law.
24. Sections 25-26 of the Mandatory Tenders Regulations, 1993 (hereinafter, Mandatory Tenders Regulations).
25. Section 42 of the Mandatory Tenders Regulations.
26. Section 25(20) of the Mandatory Tenders Regulations.
27. C. A 1444/95 Eilat Municipality v. Israel Lands Administration, 49 (3) P. D. 749 (hereinafter, Eilat Municipality).
28. Eilat Municipality, pp. 762-763.
29. Rosenberg, p. 227.
30. See H. C. 6532/94, Abu-kaf v. Minister of Agriculture, 50 (4) P. D. 391.
31. See H. C. 6532/94, Abu-kaf v. Minister of Agriculture, 50 (4) P. D. 391, p. 394.
32. H. C. 6698/95 Kada'an v. Israel Lands Administration, 54 (1) P. D. 258, 279. The court noted this fact in its examination of the possibility of closing the settlement to Arabs, based on the claim of 'separate but equal'. In the absence of allocation of lands for Arab settlements, this claim is bound to be rejected on the factual plane alone, even before addressing the normative problems it raises.
33. The kibbutz, moshav (singular form) and kibbutzim, moshavim (plural form) are two Israeli frameworks of communal living, distinguished from each other by their particular economic structures
34. H. C. 244/00 Association for New Dialogue for Democratic Dialogue v. Minister of National Infrastructures, 56(6) P. D. 25 (hereinafter, Rainbow).
35. The details of these decisions were as follows: Compensation for the agricultural settlers in cases of rezoning on a percentage basis of between 27 and 29 percent of the value of the land after the rezoning (Decision 727 which replaced previous decisions in the same spirit: Decisions 533, 611 and 666); development of industrial zones on lands previously leased as agricultural lands under conditions that included a significant reduction in lease payments, an exemption from tender, and possible cooperation of external developers (Decision 717 which replaced Decision 441); and rezoning for the purpose of expanding the moshavim while offering a reduction in lease payments and an exemption from tender (Decision 737, which replaced Decision 612). These decisions directly benefited the two sectors which worked for heir promotion-the settlers themselves and the land developers who sought to capitalize on the new opportunities for building, and in doing so demonstrated one of the weaknesses of the administrative process: Its vulnerability to being biased in favour of the specific entities which the administrative authority is supposed to supervise. This tendency was discussed in the literature, in which it was referred to as the 'capture' problem (the dynamic of administrative agencies becoming 'captured' by the very same economic factors and players over which they are supposed to supervise). See S. P. Huntington, 'The Marasmus of the ICC: The Commission, Railroads, and the Public Interest', Yale L. J., Vol. 61 (1952) 467; L. L. Jaffe 'The Effective Limits of the Administrative Process: A Reevaluation', Harv. L. Rev., Vol. 67 (1954), pp. 1105, 1107.
36. The Committee Submitted a detailed report - Report of the Interoffice Team for Examination of Aspects Regarding Rezoning of Agricultural Land, 2001.
37. Justice Or delivered the main opinion, which was concurred with by the other justices on the panel-Justices Barak, Matsa, Shtrasberg-Cohen, Dorner, Beinish, and Procaccia.
38. Rainbow, p. 83. In the context of American constitutional law, the concern regarding delegation of legislative powers to the executive branch shaped the 'non-delegation doctrine'.
39. Rainbow, pp. 65-66.
40. Rainbow, pp. 64.
41. Decisions 666 and 667.
42. H. C. 5575/94, Mehadrin Ltd. v. Government of Israel, 49(3) P. D. 133 (hereinafter, Mehadrin).
43. H. C. 5575/94, Mehadrin Ltd. v. Government of Israel, 49(3) P. D. 133 (hereinafter, Mehadrin), p.148.
44. Decision 727.
45. Actually, when history is taken into account, agricultural settlers should be compensated in correlation to their investments in the land and the duration of their settlement. From this perspective, the current value of the land is of less relevance especially when compensation correlated with this value awards bigger sums to settlers whose history is not necessarily long or significant. Furthermore, the historical consideration gives additional weight to the argument that those living in the periphery of the country, who had survived difficult periods in the defence of the state borders, should receive higher compensation, not only in percentages, but also in absolute figures, despite the low economic value of their lands.
46. Rainbow, p. 74.
47. Decision 737.
48. Beerotaim, p. 18.
49. Decision 717.
50. The Or Commission Report, which addressed the problem of discrimination against Arabs in Israel, mentioned also the discrimination against the Arab sector in the area of lands. See Report of the National Commission of Inquiry for the Examination of the Confrontation between Israeli Citizens and the Security Forces in October 2000, Vol. 1 (2003), p. 43.
51. For additional discussion of the obligations on the Israel Lands Administration to operate in accordance with the principle of sustainable development, see D. Barak-Erez and O. Perez 'Planning in Israel Lands: Toward Sustainable Development', Mishpat U'mimshal, Vol. 7 (2004), p. 865 (Hebrew).
52. David Harvey, Social Justice and the City, London, 1973, pp. 101-108. For a criticism of Israeli planning bodies for their tendency to prefer profit maximizing considerations over considerations of social justice, see Y. Blank 'The Location of the Local: Local Government Law, Decentralization and Territorial Inequality in Israel', Mishpatim, Vol. 34 (2004), pp. 197, 265-281 (Hebrew). For example, municipalities tended to prefer commercial building which produced higher payments of municipal taxes, and opposed the construction of small apartments, whose purchasers were generally characterized as being poor.
53. D. Harvey, 'Social Injustice, Postmodernism and the City', 16 International Journal of Urban and Regional Research, Vol. 16 (1992), p. 588; D. Harvey, Justice, Nature and the Geography of Difference, Cambridge, MA, 1996.
54. Section 4M, Israel Lands Administration Law.
55. Compare: P. C. A. 3577/94, Phoenix Israeli Insurance Company Ltd v. Moreano, 48(4) P. D. 70.
56. Public Housing Bill, 1998, H. H. 306 (hereinafter, Public Housing Bill).
57. Public Housing (Purchasing Rights) Law, 1999.
58. Entrenchment and Registration of Farmer' Land Rights Bill, 1996, H. H. 656.
59. Justice Zamir expressed the idea of partnership and participation in administrative decisions in his famous judgment in H. C. 164/97 Contram Ltd. v. Ministry of Finance, Duties and V. A. T Department, 52(1) P. D. 289, 342. See also D. Barak-Erez, 'The Democratic Challenge of Administrative Law', Tel-Aviv V. L. Rev, Vol. 24 (2000), p. 369 (Hebrew).
60. H. C. 6924/98, Association for Civil Rights in Israel v. Government of Israel, 55(5) P. D. 15.
61. Mehadrin, p. 42.
62. H. C. 5734/98, Azriel v. Subcommittee of the Israel Lands Council, 53 (2) P. D. 8.
63. An additional question discussed in the case law regarding representative appointments was to which extent is a representative of a particular body, or group, obliged to act in accordance with the dictates and guidelines that he receives. See H. C. 5848/99, Paritzky v. District Committee for Planning and Construction in Jerusalem, 54(3) P. D. 5.
64. For example, the decision on the 'Build Your House' plan in Eilat (discussed in Eilat Municipality), which did not give priority to the local residents, was adopted without coordination with the Municipality. Justice Cheshin criticized the Lands Administration for that, adding: 'in terms of proper administrative proceedings, it is inconceivable that the Israel Lands Administration should be the only instance determining how lands are to be allocated for building within the boundaries of Eilat, and be forced to unquestioningly accept the decision made in Jerusalem'. The same applies to the issue of Tel Aviv and in other subjects involving the Israel Lands Administration. Ibid., p. 769. In contrast, the decision regarding the 'Build Your House' project in Ramat HaSharon (discussed in the Rosenberg case), which granted priority to the local residents, was coordinated with the Municipality. A comparison between the two cases indicates that cooperation at the decision-making stage has a potential for significantly influencing the process.
65. It should be clarified that decision-making in the government is also subject to the rules of administrative law, including the prohibition on conflict of interests.
66. Decision 972 of the Israel Lands Council, of 2 September 2003. The transitional provisions were premised on two main parameters: 'Reliance' and 'Planning', and accordingly led to the validation of transactions which had moved forward either from a contractual perspective or from a planning perspective.
67. H. C. 10934/02, Kibbutz Kfar Azza Association for Cooperative Agricultural Settlement v. Israel Lands Administration 58(5) P. D. 144. The court was satisfied that the second decision provided appropriate protection to the reliance interests of the parties to the transactions.
68. It is worthwhile to mention that in another famous judgment which dealt with administrative policy with distributive implications, the non-drafting of Yeshiva students to military service, the court held that the issue of group exemption from service should be legislated, rather than based only upon administrative decisions. See H. C, 3267/97 Rubinstein v. Minister of Defence, 52(5) P. D. 481.