Israel Lands Authority

On July 12, 2003 and on February 4, 2004, the Constitution, Law, and Justice Committee met as the committee for the Constitution by Broad Consensus to discuss the issue of the lands in Israel. The basis for discussion were the sections of Basic Law: Israel Lands, and several prominent scholars were present and expressed their views.

The Basic Law: Israel Lands establishes the principle of national ownership of the land. The Law includes a prohibition on transferring ownership of Israel Lands, with certain limited exceptions. The principle underlying the Basic Law is that Israel Lands are nationally owned, and they can only be leased, not sold.

The central issue debated in the meeting was whether to preserve this principle in the proposed constitution, or whether the opposite principle should be established, allowing private ownership on the lands - subject to certain exceptions regarding types of lands that must remain state-owned.

Some present, including government representatives, believed it is possible to solve the problems arising from the principle of national ownership without changing the basic structure of the law. They pointed out that the law allows certain exceptions to the prohibition on selling state lands, and suggested that any required changes can be made simply by broadening the exceptions. These changes can be made in ordinary legislation and there is no need to make constitutional changes.

Arguments in favor of retaining the principle of national ownership of Israel Lands: Professor Joshua Weisman of the Hebrew University investigated the reasons behind the directive prohibiting transfer of lands:

1. The primary reason is Zionist ideology.
2. The socialist principle that aims to leave central means of manufacture in the state’s hands.
3. Leasing enhances state control over the land and its uses with contractual limitations. Still, Professor Weisman maintained that the state may exercise the same control using ordinary planning and zoning laws, and that in reality, there is no evidence that greater control is retained over the use of state land anywhere in the world by leasing contract than by full transfer of ownership of lands subject to zoning laws.
4. Some believe state ownership of land is necessary to prevent foreigners from owning too much land. Professor Weisman pointed out that this problem is not unique to Israe, and that the usual way to solve it is, again, by legislating limits on private owners' ability to transfer land to aliens.

Retaining public ownership in ordinary law rather than in the constitution
Dr. Hillel Sommer of the Interdisciplinary Center in Herzeliya believed that public ownership could be left as it stands without major changes. However, he thought that such directives should be recorded in ordinary law, in order to allow it to be changed in the future, in light of the changing views on the subject, rather than rigidly anchoring it in an inflexible constitution.

Professor Weisman believed that the central problem with the leasing method currently employed in Israel is that although technically the contracts are leases, in reality the rights granted in the leases are closer to those of full ownership. This is because:

1. The leases granted by the Israel Lands Authority are long-term – usually two terms of 49 years.
2. The amount paid for leases is very close to the market price for full ownership.
3. The state does not actually repossess its land when the leases run out.

Weisman believed that even though the arguments supporting national ownership provide insufficient justification for preferring leasing to selling, we should keep the basic principle of the Basic Law: Israel Lands unchanged since it represents a fundamental feature of the Israeli legal system, part of the Zionist Ideological ethos, and because Israel is a small country with meager land reserves.

The Jewish National Fund supports national ownership Jewish National Fund (JNF) Chairman Yehiel Leket, delivered the JNF’s position, advocating the continued national ownership of land and the establishment of this principle in the constitution.

The Society for the Preservation of Nature supports national ownership Ms. Hagit Luzon, the representative of the Society for the Preservation of Nature in Israel also supported anchoring the existing arrangement in the constitution, in order to protect open areas (such as beaches and forests) from the pressures of various parties interested in developing and building on these lands. The administration of these lands by the Israel Lands Administration may provide an additional barrier against such attempts. The practice in Israel shows that there is more pressure to develop and build on private owners of lands and environmental preservation is close to impossible. Attempts to preserve open areas that are privately owned meet firm resistance in the form of claims for compensation and injury of the owners’ property rights. Preservation either fails, or costs enormous sums of money.

The Society believes that Israeli Land Administration should significantly strengthen its watch over open areas and encourage only sustainable development. Therefore instead of changing the principle of national ownership, the Israeli Land Authority should improve the way it manages the public lands. The principle that the state owns the land as a trustee of the public should be anchored in the constitution in order to enable the state to enhance preservation for future generations and to counterbalance the constitutional property right.

Even if the constitution is to include environmental rights, the Society’s view is that national ownership should be a constitutional principle, because of the difficulty to reduce the damages of development in a system of private ownership.

Professors Hanoch Dagan of Tel Aviv University and Rachel Alterman of the Haifa Technion expressed the view that the constitution should not establish any principle similar to the current arrangement, but rather establish a different principle and employ a different method for administering state lands.

There is no justification for public ownership of 93% of Israeli lands
Prof. Dagan pointed out that lands are key to a person’s freedom, and constitute a refuge from the power of the authorities. In a liberal state public ownership of land may be justified in certain cases, but it cannot be justified when the prohibition ownership of lands applies to 93% of the lands in Israel, including lands that are used for residence, commerce, tourism, and industry. There may be justifications for public ownership in certain types of lands, like environmentally protected areas, sites of historical, religious, or strategic importance, areas set aside for the absorption of immigrants, and similar lands. However there is no justification for wide public ownership of state lands. Furthermore, public ownership of land requires a comprehensive bureaucracy to deal with the land, a thing that makes land transactions more expensive and less efficient.

Public ownership – more pressure from interest groups
Prof. Dagan said that public ownership tends to impinge on distributive justice more than private ownership does, because interest group pressure is more powerful and effective in a system of public ownership than in a system of private landowners. Indeed, in Israel several small groups control vast territories of land in the name of public administration.

Legislation can achieve the same goals
Suitable legislation can accomplish equitable distribution of land in ways other than public ownership of lands. For instance, laws limiting the possibility to acquire property by a single body can be an effective tool to prevent a small number of parties from gaining control over too much land. The freedom of owners in certain types of properties can be limited by anti-discrimination laws, and specific directives can be legislated limiting the sale of property to foreigners.

The Israeli system is extreme in its centralization
Professor Alterman pointed out that the system used in Israel to manage public lands through the Israel Lands Administration is unique and extreme in comparison to other countries’ policies. She pointed to difficulty in advancing notions of social equality in a public lands system. In Israel equality was promoted despite public ownership, and only because the long-term leases have become very similar to full ownership.

The goal of keeping open lands is not achieved
Public ownership of lands may serve two interests. The first is political and security related, and the second is the interest of protecting undeveloped open land. The latter interest is advanced by prohibiting development in certain zones, which is easier under public administration. However, Prof. Alterman expressed the opinion that the Israel Lands Administration had failed to adequately protect the open undeveloped land under its supervision.

Professor Alterman objected to codifying state ownership of land, a notion she considered anachronistic, in the constitution. She found the idea of public ownership to be inflexible and damaging to the economy.

The Ministry of Justice’s representatives at the committee pointed out that underlying the current approach was the presumption that public ownership of the land is the best way to safeguard the land for the general public. They stressed the grave problems encountered in any attempt to legislate specific prohibitions against transferring property to foreigners. Such a directive would have to stand up to the tests of proportionality in order to override the constitution right to private property.

The difficulty in defining “foreigners”
It is difficult to define who is a ‘foreigner’ for the purposes of selling land – is an American Jew living in the United States considered a foreigner in this regard? There is also difficulty inherent in practically applying the prohibition.

The need to establish a land policy in the constitution
The Ministry of Justice representatives opined that there was good reason to resolve the dilemma of a system of public or private ownership of land in the constitution rather than in ordinary legislation. This is so that the broad interpretation given by the Supreme Court to the property right (which is currently anchored in Basic Law: Human Dignity and Liberty), shall not block directives that limit property rights, such as the prohibition of selling lands to foreigners.

MK Reshef Chayne (Shinui) insisted on anchoring in the constitution the principle that one of the purposes of the use of Israel Lands is the settlement of Jews throughout the country. We must find the appropriate balance between national Zionist aspirations and liberal democratic principles, he said. This is in light of the Supreme Court ruling on the Ka’adan case. MK Chayne and others suggested differentiating between Israel lands intended for residence in cities and in cooperative settlements (kibbutzim and moshavim), in which transfer of ownership to private hands should be allowed; and those lands intended for agriculture, in which the existing arrangement of public ownership would be retained.

MK Avraham Burg (Labor) stressed the tension that exists between the principle of equality that is a basis of the constitution the Committee is trying to draft, and the principle of national ownership behind the Basic Law: Israel Lands. MK Burg suggested differentiating between state lands and national lands. According to his suggestion, national lands, which have national importance, would remain in public ownership and untransferrable and be administered by the Jewish National Fund (JNF) or the Israel Lands Administration . State lands, however, would be saleable and subject to principles of the equality of all citizens.