Articles
July/August 1993, Page 38
Israel and the Law
Israel Denies Muslim's Right to Live In Jerusalem's "Jewish Quarter"
By Kenneth R. Kahn
In 1978, Israel's High Court of Justice upheld the right of a Jerusalem public corporation to reject the application of an East Jerusalem-born Muslim to rent an apartment in which he had been living, on land which had been owned by his father until it was expropriated by the Israeli government. In reaching its decision, based largely on the fact that the apartment is in a section of the Old City the government considers the "Jewish Quarter," the court ruling seemed to deviate sharply from the human rights provisions of the charter of the United Nations, to which the government of Israel has pledged adherence.
On May 14, 1948, the state of Israel came into existence as a result of the partition resolution passed earlier by the United Nations, and in accordance with a declaration written by members of the Jewish community of Eretz-Israel.
The declaration stated that the state of Israel "will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the charter of the United Nations. "
Despite the pledges in the declaration, however, a system of apartheid and discrimination soon was established in all areas of Israeli existence. A case in point is the struggle of Muhammad Sa'id Burkaan, who sued the minister of finance, the Corporation for Restoration and Development of the Old City of Jerusalem, Ltd. and the minister of housing, alleging discrimination in the rental of an advertised apartment.
Mr. Burkaan sought to lease an apartment from which he had been evicted in the refurbished former "Jewish Quarter" of the Old City. The defendant Corporation for Restoration and Development of the Old City of Jerusalem refused his application, despite its appearance as a response to an advertised "tender of apartments to the public."
The defendants maintained that Mr. Burkaan did not meet their requirement that the applicant be a resident Israeli citizen who was a veteran of the Israel Defense Forces (IDF), or who had received an exemption from service as a member of a Jewish organization prior to May 14, 1948, or a new immigrant who is a resident of Israel. The defendants said Mr. Burkaan, as a Jordanian citizen, did not qualify to lease such apartments.
As in American courts, the defendant government agencies involved began their defense by challenging the jurisdiction of the Israeli High Court of Justice to hear the case. They stated that since the owner of the apartment does not exercise a public function, the defendants are only subject to the jurisdiction of the regular courts and not the Israeli High Court.
Israel's High Court
Israel's High Court of Justice has many functions similar to those of the United States Supreme Court. Like its American counterpart, the Israeli court hears writs of habeas corpus andmandamus, as well as suits brought to challenge criminal indictments and the rulings of individual judges. The Israeli High Court consists of a president, deputy president and eight members. Normally, three members hear a case, except at the request of the president or the deputy president.
The court ruled that it had jurisdiction, even if the defendant does not exercise a public function. The court determined also that the actions of the defendants amounted to a public invitation. However, no contractual relationship was established with the plaintiff, Mr. Burkaan, as a result, the court ruled.
Ironically, Mr. Burkaan was applying to live upon land that once was owned by his father. In Israel, such a state of affairs would not be unusual, as more and more land is confiscated and the record of original ownership is obliterated by time, politics and the lack of documentation.
Not only did Mr. Burkaan desire to rent an apartment built upon his own family property, he alleged that his father had lived there since 1947 and that the property has been "since time immemorial Muslim property." The house itself had passed from Jewish to Muslim ownership during the riots of 1938. "Jews never lived in it," he added.
To establish his residence at the disputed site, the plaintiff presented a letter dated June 16, 1968 from the prime minister and the minister of finance stating that since 1963 he had been renting one of the apartments in the house now offered for rent.
However, other information presented to the court indicated the plaintiff had moved himself and his family from the house to Beit Hanina. Therefore, the court accused him of lying about his place of residence, determining that he had left behind only a few personal belongings, and had attempted to create the impression that he had been evicted when, in fact, the family had left voluntarily.
Ironically, Mr. Burkaan was applying to live upon land that once was owned by his father.
In point of fact, however, the issue before the court was not the circumstances under which the family left, nor of where they currently were living. The question facing the court was to determine whether a supposedly public offering for housing was, in fact, a truly public offer, as most people would interpret the meaning of the term "public," or came with strings attached.
The irony that the complainant was only seeking permission to lease or purchase property that once had belonged to his family and had been illegally confiscated was not the issue before the court.
Mr. Burkaan began his campaign to retain an apartment in the building under the public offer by persuading Israeli television to film his eviction from the building. Instead of being persuaded by the existence of a filmed record of his eviction, the court's reaction was that "recourse to the media and appeal to public opinion amounts to contempt of court."
The court ruled that "a petitioner seeking relief from this court is obliged to keep silent outside the courtroom, lest his recourse to the media be construed as an expression of no confidence in the court." Furthermore, the court added, "as far as I am concerned that is in itself sufficient to dismiss the petition."
The balance between the public's right to know and the dignity and impartiality of the court was dealt another blow with the court's opinion that because Mr. Burkaan's attorney, Abraham Lenman, had spoken with the media in some detail about the case, he had violated professional ethics. The court suggested that "the state attorney should consider whether it is appropriate to file a complaint" against Mr. Lenman.
Nor was the court convinced by the heart of Mr. Burkaan's complaint that in setting up requirements which Jews but not Muslims could meet, the owners had established discriminatory requirements contrary to Israeli law.
Instead, the court found that although the term "Israeli citizen includes non-Jews, whether Muslim, Druze or Christian Israelis," the restrictions of apartments to those citizens who served in the military is "reasonable in view of clear security considerations. "
Additionally, the court determined that " it is not necessarily wrong to discriminate between citizens and non-citizens (remembering that Mr. Burkaan is a Jordanian citizen) as regards benefits from national assets or economic rights.
The "Need" to Restore the "Jewish Quarter"
The court examined the "need" to restore the "Jewish Quarter," stating, "it is only natural that the restoration be intended to revive the previous splendor of the Jewish community in the Old City, so that Jews will again, as in the past, have their own special quarter, alongside the Muslim, Christian and Armenian Quarters. There is no wrongful discrimination in the singular appropriation of these quarters, each to its own community. "
Pointing out that Mr. Burkaan is a Jordanian citizen, the language of the court's decision became more emotional with the statement that "such discrimination appears to me justified and proper; we cry out and protest against the wrong done to us by the Jordanians in the Old City, and it should not be demanded of us to give 'them' the opportunity to return to settle specifically in the Jewish Quarter. Both security and political considerations explain and justify such discrimination. " The High Court therefore set aside and dismissed Mr. Burkaan's petition.
