("Justice", No. 2, Summer 1994)
Freedom of Access and Worship on the Temple Mount
Civil Appeal 67/93, "Kach" and the Jewish Defence League v. Minister of Religious Affairs, Minister of Police and others, 4.4.1993. P"M 47(2) 1. Before Justices Barak, Goldberg and Matza
The Supreme Court has consistently held in the past that the right of Jews to engage in prayers on the Temple Mount is to be determined solely by the executive authorities responsible for public order and safety, headed by the government of the State of Israel. This case was an attempt to circumvent this ruling by asserting the right of Jews to conduct prayers on the Temple Mount, within the framework of their statutory right to freedom of access.
The Supreme Court confirmed that the right of access to holy places is enforceable by the courts but held that the decisions of the police to deny Jews the right to engage in prayers on the site, made in the context of the need to preserve public order, were not unreasonable and the Petition was therefore dismissed.
The Petitioners argued that the Respondents (the Ministries of Religion, Police, Justice, the Chief Rabbis and the Muslim Wakf) customarily refused to allow Jews, carrying religious articles, to enter the Temple Mount. The Petitioners admitted that the Jews wished to enter the Temple Mount for the associated purpose of engaging in individual prayers but distinguished this from the conduct of public prayers.
The Respondents did not dispute the right of Jews to enter the Temple Mount. However, in their view, in the absence of a viable solution which would allow Jews to conduct prayers on the Temple Mount, there was a real fear that introducing holy books and prayers on the Temple Mount would be interpreted as provocation, which would lead to breaches of the peace and bloodshed.
The Petitioners further protested against the practice of allowing entertainments and games such as football to take place on the Temple Mount; the requirement that Jews be registered upon entering the site and the charge of admission fees to the mosques on the Temple Mount.
The Supreme Court Judgment:
In a unanimous judgment delivered by Justice Goldberg, the Supreme Court held that a number of substantive rights were created by the Protection of Holy Places Law – 1967, which were therefore made subject to enforcement by the courts. The paramount right provided by Section 1 of the Law, is the right to freedom of access to the holy places.
Here, the Petition did not raise the issue of the right of access per se, but rather the question of freedom of individual prayer within the context of the right to access.
In the light of the exceptional sensitivity of the place, which could not be compared to any other site in the country, the position adopted by the Ministry of Police could not at this time be regarded as faulty, from the point of view of its reasonableness. The police fears were not baseless, and the factors taken into consideration by them were not so ill-founded as to require the Court to interfere.
The Court also added that the police were under a duty to protect the sacred character of the place and prevent any violation of the feelings of members of any religion.
Further, the registration of visitors to the Temple Mount, where required in order to preserve public order, had to be conducted without discrimination between the different visitors.
With regard to admission prices charged by the Muslim Wakf for entrance to the Islam Museum and mosques, the Court found that the Wakf did not discriminate between members of different religions but drew a permissible distinction between visitors and worshipers, where the former had no inherent right to visit these sites free of charge.
In view of these findings the Court dismissed the Petition.
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