The High Court of Justice, with a rare full panel of nine justices, heard on
Tuesday a case that goes to the heart of alleged massive housing discrimination
against Arabs, homosexuals, disabled people and other groups.
The panel
was skeptical of the charges, with at least four of the nine justices, including
Supreme Court President Asher D. Grunis, battering the petitioners, human rights
groups, including Adalah: The Legal Center for Arab Minority Rights in Israel
and the Association for Civil Rights in Israel.
Only Justice Salim
Joubran appeared to openly side with the petitioners, although it was unclear
where the other four justices stood.
The petitioners in the historic
constitutional battle asked that the court nullify the Acceptance Committee Law,
which allows approximately 434 small communities in the Negev and the Galilee
almost unlimited discretion in turning down requests of persons who want to move
into them.
The human rights groups claimed that, in practice, the law
allows the communities to discriminate against Arabs, homosexuals and the
disabled.
The justices focused on the fact that the text of the law being
attacked expressly prohibits discrimination. They also hit the petitioners’
arguments, contending that if taken to their logical conclusion, the same
arguments could be used to overturn the income tax law as discriminatory for
categorizing persons into income classes.
The petitioners responded with
a number of arguments, ranging from saying that the criteria used by the
communities are too vague and liable to abuse, to arguing that the court must
step in before massive discrimination takes place.
This argument holds
that everyone in the courtroom knew the motivation for the law was to entrench
discriminatory practices using careful wording.
Adalah has said that the
law applies to 434 communities in the Negev and Galilee regions, representing 42
percent of all of such settlements in Israel. It covers 90% of the state’s
communal settlements and 57% of its agricultural communities.
The state’s
Ori Keidar reiterated the state’s position that the petitions were premature,
that the law was new and that time was needed to see how the law played
out.
Keidar contended that the petitioners all ignored the clause
prohibiting discrimination as if it were irrelevant to the debate, whereas that
clause should be central to deciding if the law was discriminatory.
He
said that the case was really about whether communities as a special and limited model of living for
some in Israel could be possible under any circumstances, or whether the
petitioners were saying that the existence of such communities was
discriminatory.
In another rare event, Knesset legal adviser Eyal Yinon
spoke extensively and separately on behalf of the Knesset, rather than leave
defense of the law to the state attorney.
Yinon joined Keidar in arguing
that the law had extensive legislative history in which the Knesset was careful
to ensure its provisions were not discriminatory.
But Yinon, unlike
Keidar, made an explicit admission that he recognized the law could still be
abused and misused for “bad” purposes. He said, however, that the court should
give time for the review processes built into the law to fix any
abuses.
Joubran slammed the state’s representative, asking it
sarcastically to describe who exactly were the unbalanced or problem people that
the communities were trying to keep out if not Arabs, gays and the
disabled.
Joubran also took aim at the state’s vague descriptions of the
need for harmony in the communities, inquiring if there was “any research”
showing that in the communities “everything is perfect and there are no fights”
among the residents.
But most of the hearing consisted of Grunis, Supreme
Court Deputy President Elyakim Rubinstein, and justices Hanan Melcer and Neal
Hendel battering the petitioners.
The justices pushed ACRI attorney Gil
Gan Mor to acknowledge that there were court precedents for allowing special
communities to vet potential residents at their own discretion, noting haredi
and classical-style kibbutz examples (where all economic issues were still
handled purely communally).
Rubinstein said that the petitioners were
essentially proposing doing away with the idea of specialized
communities.
Gan Mor moved away from this allegation, trying to re-center
the court on the question of the law’s “problematic” criteria, which ACRI head
Dan Yakir seconded, suggesting that the court focus on the inherently
problematic selection process that the law encouraged, rather than demanding
concrete current examples of problems.
Adalah attorney Souhad Bashara
gave a spirited attack on the law, citing a long list of persons who could be
discriminated against if one just focused on the law’s text.
She implored
the court to focus on the realities surrounding the law, which she described as
not a question about deciding who can live in a community, but rather about a
large system of communities systematically excluding minorities.
Attorney
Orna Lin, representing the Abraham Fund Initiatives, another petitioner, also
vigorously attacked the law, seemingly warning the court that if it did not
strike it down now, it would be rehearing the same issue years down the
road.
The only difference, said Lin, would be that by acting now the
court could avoid harming the lives of large numbers of minorities.
Lin
also discussed the state’s argument, seemingly endorsed by some of the justices,
that the prohibition on discrimination in the law must be at the center of
analyzing the statute.
Lin implied that it should be obvious in a
democratic country such as Israel that discrimination was illegal, and that
there was no value to restating the obvious on paper, something that was already
part of the country’s basic laws, for preventing actual
discrimination.
The hearing ended with Joubran taunting the state to give
an example of an Arab community using the law to restrict entry to show that the
situation on the ground was truly equal, with Yinon responding that even if
there was not one now, the law allowed there to be one.
Due to the
monumental constitutional implications of the law, the court is not expected to
rush to make a decision in the coming days or weeks.