By Kahn, Kenneth R.
Washington Report on Middle East Affairs , Vol. 12, No. 2
Israel and the Law: Israel Denies Muslim's Right to Live In Jerusalem's "Jewish Quarter"
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 and mandamus, 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. …