Publishing date: 08/01/2010
ACAP recently published a detailed study on the latest legal updates regarding the issue of land confiscation. The study is part of ACAP’s attempt to expand its professional coverage regarding the issue. As part of its activities, ACAP recently added a new section to its website on court rulings on planning issues on all levels, monitored by ACAP. These court rulings deal with subjects such as land confiscation, house demolition, etc.
In the same context, ACAP presented in its newest study a detailed review of law and principals the State of Israel used in order to confiscate lands: Land Order (buying for public good) 1943, the Planning and Building Act (1965) as well as other mandatory and Israeli laws used to confiscate lands like the Roads and Rails Order (1943), and the Trans-Israel Highway Act (1994). However, these laws were used less often.
ACAP also noted that the supreme court's ruling in the "Karsik" case is a legal precedent because it stated that the confiscation should be for a very specific and clear target, and when the need for the confiscated land is over, the original land owner is entitled to regain ownership on the land in certain circumstances. This ruling forced the government to make changes to the "Land Order"
ACAP showed in its study that appeals filed against land confiscation using the "Land Order" mainly focused on: 1) a Bureaucracy in the executive authorities in executing the public good. 2) the need for the confiscated land for the public good is over. 3) a change in the purpose of the confiscated land to other purpose other than the public good.
Whereas appeals filed against confiscation made using the planning and building act is usually based on bureaucracy and delays by the authorities in executing the purpose of the confiscation.
The study on the other hand shows the grounds the courts take into consideration before making the decision of terminating the confiscation and returning the land to its original owners. These grounds are:
- The time elapsed since the land was confiscated
- the amount of damage for the land owner caused by the delay
- the local authority's handling of the confiscation procedure
- the means the local authorities have to execute its tasks
- the reasons for the delays of using the land for its intended purpose,
- the size of the confiscated land
- the difficulties and the complexity regarding the planning procedure,
- progress made in other confiscation purposes.
The decision, whether or not there was unreasonable delay, is related to the aforementioned considerations, and also considering the principals and foundations regarding the statutory rights for freedom and ownership.
ACAP organized a special study day on Thursday 19.12.2009 to discuss these findings. Over 50 individuals, including present and former mayors of Arab townships, municipality representatives, lawyers, and civil engineers, participated.
Mrs. Einaya Banna-Jeryes opened the study day by welcoming the participants and discussing that this lecture is a part of a series of lectures ACAP is planning to organize in near future to update the public on the latest development on laws and plans related to the land. The study day involved presentations from MK Dr. Hanna Swaid, an expert on the subject of land and planning, and retired judge Rayik Jarjora. Both individuals presented their opinions on the updates and the changes the government intends to make regarding land confiscation. The first to speak was MK Dr. Hanna Swaid , who opened his lecture with a complement to ACAP for organizing this important lecture and called the official institutions to make similar lectures because it benefits the public. Dr. Swaid's lecture included a detailed explanation on the basics of the mandatory confiscation law, and lessons learned from applying this law. He also mentioned the various other laws related to land confiscation, and the motives behind the changes made to the confiscation law, most importantly was the "Karsik" precedent and the legal decisions regarding the termination of the confiscation. He also presented the points that are proposed for the change, and provided recommendation on this matter.
Dr. Swaid talked about the motives that urged the government to make changes to the confiscation laws, which mostly derived from the "Karsik" precedent. Karsik was a citizen from Giva'at Olga, and his land was confiscated for the purpose of building a military base. After some time, the base was moved to another location. The State tried to sell the land; at this time, Karsik filed an appeal to the Supreme Court demanding to regain ownership on the land. The Supreme Court ruled that when the use of the confiscated land is over, the original owner of the land is entitled to have it back, and suggested to the government to change the law accordingly. After this ruling a special ministerial committee was formed in order to present suggestions to modify the law. After the Karsik case many appeals were filed to the Supreme Court demanding to return the confiscated lands to their owners. However, most of these appeals that were based on the Karsik precedent were turned down. The court explained that the reason for this is the need for the law to pass first and then file these appeals.
Judge Jarjora presented the case of the city of Nazareth and its surrounding villages in the mid 1970’s, where the minister shifted his authority to confiscate 1200 Acres of land from Nazareth in order to build government intuitions. However, the real intention was to build a new city called "Nazareth Elite" to house "new immigrants" as a part of the government's plan to make Jews live in Galilee.
Judge Jarjora suggested that Arab institutions –the presenters of the Arab population- like the Follow-up Committee and the Forum of Arab Mayors, establish a fund like the KKL, in order to adopt and follow-up the subject of confiscations in light of the proposed changed to the confiscation law.
Judge Jarjora then presented his notes on the proposed law and that the ownership right has a statutory value based on the base-law of "Human Dignity and Freedom" (1992) and this was stated in the Karsik verdict. He ended his lecture with the statement "we know that every demand we make in order to keep our property and existence will not be accepted but that won't prevent us from raising it and demanding it. The purpose of confiscating the Arab lands is not for the public good, but to execute the government's policy of making Jews live in Galilee."