Supreme Court Decides: Enormous Financial Support Provided by State to Former Soldiers for Home Mortgages does not Discriminate against Arab Citizens

Adalah: “Today, the Supreme Court approved the use of the military criterion, which severely discriminates against Arab citizens. This ruling contradicts previous decisions of the Supreme Court which specify that the disparate impact test is the test which should be employed to determine the existence or otherwise of discrimination. Therefore, Adalah will request a second hearing before an extended panel of justices with regard to this ruling.”

On 13 December 2006, the Supreme Court of Israel rejected a petition filed by Adalah on 29 December 2005 against the Ministry of Construction and Housing. The petition, filed by Adalah Attorney Marwan Dalal, challenged the governmental policy of providing substantial financial support or “extended support” - in the form of low-interest governmental loans - for home mortgages to Israeli citizens who have completed their military or national service. This “extended support” is provided in addition to and supplements generous financial support that is already given to former soldiers for housing as well as other benefits under the Absorption of Former Soldiers Law - 1994. According to this policy, a married couple in a bad socio-economic situation, each of whom completed full military service, gets NIS 124,500 (approximately US $30,000) more towards their home mortgage than a similarly-situated married couple neither of whom served in the military. The petitioners argued that the “extended support” for housing mortgage loans discriminates against Palestinian citizens of Israel, who are not required and ought not to perform military or national service as a native national minority. Further, the petitioners contended that the purpose of supplemental governmental housing support is to assist the socio-economically disadvantaged to find housing solutions; the performance of military service is irrelevant to this purpose. Thus, the “extended support” assistance, beyond what is already provided by the 1994 law, in fact violates the Ministry’s declared purpose. Moreover, by distributing public funds in an unequal and unfair manner, the Ministry of Construction and Housing is violating its duty to all citizens to serve as a trustee for the whole public and not only for one part of it.

In the decision, the three-justice panel (composed of Justices Barak, Rivlin and Berliner) decided that there is no impediment in principle to granting benefits to those who have completed full military and national service above that which is afforded in the Absorption of Former Soldiers Law, provided that the use of the military service criterion is justified in the circumstances. Chief Justice Barak rejected Adalah’s argument that the use of this criterion results in discrimination against Arab citizens. Barak reasoned in this regard that “a distinction made on the basis of the national or military service criterion is not necessarily a permissible distinction or illegal discrimination: this depends on the circumstances. Those who have completed military or national service differ in many respects, as a group, from those who did not. Thus, for example, those who have completed military or national service dedicate much of their time and energy for the benefit of the general public. They cannot work or make a living during their service period. As long as this distinction is based on these factors, and as long as it is relevant in a given situation, it should not be considered illegal discrimination.”

In response to the decision, Adalah stated that, “Today, the Supreme Court allowed the use of a criterion that severely discriminates against Arab citizens. The authorities may abuse this verdict as a cover for intensifying discrimination against the Arab community. Not only did Barak ignore the housing crisis faced by Arab citizens, but he also contradicted his own prior ruling, according to which neither the intentions not the motives but the result of a certain policy should determine whether or nor we are dealing with discrimination among groups. Barak further disregarded a wide range of his own prior rulings, particularly his recent ruling in H.C. 11163/03, The High Follow-up Committee for the Arab Citizens in Israel, et. al. v. the Prime Minister of Israel, which dealt with the exclusion of Arab towns from the list of National Priority Areas. According to this ruling, the state is not permitted to grant benefits, especially significant benefits, in addition to what is already provided in primary laws. Therefore, Adalah will submit a motion for an additional hearing before an expanded panel of Supreme Court Justices to re-consider this decision.”

H.C. 11956/05, Suhad Bishara, et. al. v. The Ministry of Construction and Housing.

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