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Affirmative Action in Favor of the Majority: HCJ 114/78 Burqan v. Minister of Finance (Judgment of July 4, 1978)
Court Watch | 114/78 | 1.12.2009 | Adv. Yossi Wolfson
The Jewish Quarter in the Old City of Jerusalem. Photo: Stock.Xchng
Criticism
It could be said that the Burqan judgment enshrines in Israeli law the principle of affirmative action – in favor of the Jewish majority.

These are the facts as reflected in the judgment: the family of the petitioner, a Palestinian resident of East Jerusalem, had lived in a rented apartment in the Jewish Quarter in the Old City of Jerusalem since 1947. The apartment may have been partly owned by the family – thus according to then-Justice Meir Shamgar, while then-Justice Haim Cohen doubts this. Until 1938, Jews lived in the place. In 1973, the petitioner built a larger home for his family in Beit Hanina, but continued, at least, to keep various items at the home inside the Old City walls. In the framework of the Jewish Quarter restoration project, the house was seized by the Company for the Reconstruction and Development Jewish Quarter (JQDC) and the petitioner was offered compensation or alternative housing (an offer he rejected as it could have been interpreted as selling his rights to Jews). Once the “restoration” project was complete and a new building had been built, the petitioner sought to bid for one of the residential apartments offered on lease in the newly restored quarter. The JQDC refused to allow him to put in a bid as, according to the terms of the project, bids could only be placed by Israeli citizens who were residents of the country and had served in the IDF (or received an exemption from service, or served in one of the Hebrew organizations prior to May 14, 1948), or an oleh [i.e., a new immigrant who is Jewish or of Jewish descent and his/her spouse] residing in Israel. The JQDC's lawyer told the Court during the hearing that the aim of this cumbersome condition was to have only Jews participate in the bidding.

The question before the Court was whether a public company was entitled to stipulate such a condition which is prima facie discriminatory for bidding in a housing project.

Justice Shamgar does not hesitate to provide an answer that might attract the attention of Palestinian refugees from Acre, Jaffa and Saffuriya: the Jewish Quarter in the Old City has been the home of a Jewish community, intermittently from the seventh century, and continuously from the thirteenth century until 1948. “The restoration of such a historic and national site is a public goal for the fulfillment of which it is legitimate to seize private property”, he writes.[1] That is, for the purpose of reestablishing a neighborhood or a community in keeping with its ethnic identity as it was from the seventh century to 1948, one can seize the property of individuals who have been living at the site since 1947. Moreover:

Since this is a unique set of facts, namely the restoration of a historic and national site in name and substance – while maintaining its character and identity – and in no small measure while restoring it, there is no wonder that the Respondent did not see fit to sell the Petitioner an apartment in the Quarter, and it was allowed to do so.[2]

Thus, not only was the removal of the petitioners’ family from its home lawful (in fact, it was never brought for review in the petition), but so was the condition seeking to prevent non-Jews (including the petitioner) from living in the restored Jewish Quarter.

Justice Haim Cohen, who also presided, prefers to resort to make believe. First, the condition does not create discrimination on the basis of nationality. Justice Cohen claims:

The statement before us of Mr. Ben Zeev [counsel for JQDC, Y.W.] that the intention was for Jewish citizens of Israel only stands in stark contradiction to the plain meaning of what is written and a justice cannot go on anything but what his eyes see on paper. The restriction to citizens who served in the military appears to be a result of simple security considerations.[3]

Yet, in the very same breath he also determines that:

[T]he need to restore the Jewish Quarter in the Old City arose only because the Jordanian army invaded it, expelled the Jews, plundered their property and demolished their homes. Naturally, the restoration is meant to restore the Jewish community in the Old City to its former glory so that the Jews may again have, as in the past, a quarter specific to them, alongside the Muslim, Christian and Armenian Quarters.

There is no wrongful discrimination in the distinction of those quarters, each with its own group.[4]

Justice Cohen then finishes off once again with security considerations which justify preventing Jordanian citizens, who owe allegiance to the Hashemite Kingdom, from living in the quarter.[5] Justice David Bechor joins Justice Haim Cohen and stresses that the restoration of the Jewish Quarter is meant to restore it as specifically Jewish and he too finishes off with security considerations.

In other words, according to all three justices, the discrimination in the entitlement to live in the Jewish Quarter is affirmative action seeking to remedy the wrongs of the past; and if not affirmative action, in any event a necessary act for recreating a social reality that ceased to exist after the war. The preservation of a sociohistoric phenomenon of separate neighborhoods on the basis of religion and nationality is in itself a value which justifies preventing Arabs from living in the Jewish Quarter.

It seems that directly confronting the need to justify a Jews-only housing policy made the justices uncomfortable. It is not just an idea whose very utterance causes discomfort, but it also relates to the constant tension between Israel’s definition of itself as a Jewish state and its definition of itself as a democratic state. This may have been the reason the justices were angry with the petitioner, who brought the issue before them. They make all sorts of accusations at him: that he is a liar and manipulator; that he and his lawyer gave an interview on the case to an American newspaper, Heaven help us, whilst the petition was pending before the court; that he himself would not have sold land to Jews and should not chastise others for doing likewise; that his objective is not innocent but rather he seeks, like others in the country’s history, to prevent Jews from settling in Jerusalem; that he received assistance from the Society of Friends (the Quakers), “among whose activists there are some who believe that the People of Israel ceased to exist and the Christian Church took its place”.[6]

Needless to say that Saffuriya’s refugees will not be able to benefit from the Burqan ruling, nor will the refugees of Sheikh Bader on whose lands the Israeli Qiryat HaLeom (which houses the Knesset, the Supreme Court and government ministries) was built. The sacrosanct division into quarters of Jerusalem’s Old City did not prevent Israel from protecting the creeping settlement of Jews in the heart of the Muslim Quarter and in other Arab neighborhoods. In the Court’s defense, it should be said that it would not have necessarily made the same ruling regarding different places and at different times. In another case, the Supreme Court upheld a policy according to which Jews could not buy lots in a town established for Bedouins in the Negev region as part of the State's efforts to concentrate the dispersed Bedouin population into a number of towns.[7] And in 2000, the HCJ ruled that the State (whether directly or through the Jewish Agency) may not allocate lands intended for housing to Jews only: that case involved Katzir, a new communal settlement [in the Galilee]. In his judgment in that case, then-Supreme Court President Aharon Barak cited the Burqan judgment as a source for the principle of affirmative action while according the principle its true sense:

[S]ometimes, separate treatment may constitute equal treatment, or at least, that separation may be justified, despite the violation of equality. This is especially so, inter alia, when call for separate but equal treatment emanates from the minority groups that seek to preserve their culture and lifestyle and wish to prevent 'forced assimilation', (to use the words of Justice Shamgar in Burqan…).[8]

However, the prohibition on discrimination in allocation of lands for housing is a principle which remains hanging in the air of the legal world, still far from being practiced on the ground, and it continues to produce many legal cases.


Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
HCJ 114/78 Burqan v. The Minister of Finance (2011), judgment of October 31, 2011, para. 4 of the opinion of Justice Shamgar.
[2] 
Ibid.
[3] 
Ibid., para. 7 of the opinion of Justice Cohen.
[4] 
[5] 
Ibid.
[6] 
Ibid., para. 4 of the opinion of Justice Shamgar.
[7] 
HCJ 528/88 Avitan v. Israel Land Administration (1989), judgment of October 25, 1989 (in Hebrew).
[8] 
HCJ 6698/96 Q’adan v. Israel Land Administration (2000), judgment of March 8, 2000, para. 30 of the opinion of then-President Barak.
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