February 21, 2006

Posted in Uncategorized at 12:49 pm by yisraelmedad

The Temple Mount SNS News Service July 17, 1996,

Special Report          

This being the special “three-week” period, which culminates on Tisha B’av, commemorating the destruction of the two Temples, SNS brings its readers a review and analysis of the legal parameters, as well as the public policy concerning the Temple Mount, as regards entry and prayer. By Yisrael Medad.

Despite the Law for the Protection of the Holy Places, 1967, and its clauses assuring freedom of access to and worship within each religion’s holy sites, despite their reconfirmation in the Basic Law: Jerusalem, 1980, and despite the recognition of those rights, in principle, by Israel’s High Court of Justice, in practice the Israeli police consistently refuse to permit any form of Jewish prayer in the confines of the Temple Mount compound. In addition, any outward appearance of religiosity such as Tallit (Prayer Shawl) fringes hanging out, a Prayer Book or other religious tome or any ritual object such as Tefillin (Phylacteries), Lulav (palm branch) or the like are banned. In essence, a Jew may enter his Most Sacred Site but may not do so in a way that would be Jewish.

Some two dozen petitions have been heard by the High Court of Justice in the past 28 years. Throughout them all, the main thread is less a formalistic argument than an agreement by the justices, that in the matter of the Temple Mount, there is an overriding principle of “sensitivity”. The “principle of sensitivity” dictates that because Muslims view the Temple Mount Courtyard as their exclusive domain and will engage in violent acts to counter any display of Jewishness, then it is in the interests of public order to prevent a Jew from exercising his legal rights. The presence of a Jew, as a Jew and not as a “tourist” or “visitor”, is a provocation. As Professor Itzhak Englard has written: “In substance, the prohibition of public prayer is a violation of the principles of collective freedom of religion” (Amer. Journal of Comparative Law, 35:1987, p. 198).

Jurists and legal experts from the West and especially the United States will readily realize, that based on such a principle, the Civil Rights movement would never had made any gains, not to speak of gay rights and a plethora of social, religious and ethnic issues.

In one instance, in 1994, the Justices ordered the police to insure the entry of Jews (H.C.J. 3995/94) but nevertheless gave the police a free hand to cancel their order if public order needed to be preserved. Needless to say, with 300 angry Muslims led by the Deputy Mufti gathered inside the main entrance of the compound, the Jews assembled outside were denied entry.

The point should be stressed that it is not the wish of Jews to pray inside any Muslim building. In this regard, though, it is worth drawing attention to the fact, that such an arrangement already does exist in Hevron, where Jews and Muslims pray under the same roof. The Israeli Police and Border Guard Units, utilizing electronic instruments, assure the peace at that holy site.

It is undeniable that, legal and security arguments aside, it is a political consideration which denies Jews their civil rights and liberties. For example, although the High Court of Justice has confirmed, inter alia, that the Temple Mount surely is a Jewish holy place, the Department for Holy Places of the Ministry for Religious Affairs does not list the Temple Mount as such, budgets no money for it and in no other way administers the site. Most crucial, the Judges refuse to obligate the relevant Minister to formulate and adopt administrative regulations that would allow Jews to pray on the Temple Mount by defining, for example, the location and times for prayer.

The day-to-day administration, actually, is in the hands of the Jordanian Wakf. The religious officials tending to the Temple Mount are not Israeli government employees. They are uniformed and carry sophisticated communications equipment. The Temple Mount is a testing-ground for the undercurrent of tensions between supporters of Arafat, King Hussein and Islamic fundamentalists among those in charge and who run the institutions that exist there: educational, cultural and political.

Many people presume that Jewish Halachic (Jewish law) restrictions would deny entry into the Compound because of a Rabbinic Ban on stepping into sacred precincts. However, that prohibition extends only to a 500 cubit-square area, which is considerably smaller than the current esplanade. Former Chief Rabbi Shlomo Goren and others have pronounced in favor of a limited access.

Archeological and scientific engineering research, which could contribute to the location of the 500 cubit-square are is disallowed. In fact, Jewish archeological remains are systematically destroyed or covered over. The underground passageways of astounding historical importance are off-limits.

What we are witness to is the exploitation of the juridical system to the political demands of policy. Israel’s Courts must be convinced that their duty is to uphold the law and the norms of justice. They themselves, lend a legitimacy to the flouting of legal principles. It should be noted that as recently as this month, Israel’s High Court of Justice ordered the police to prepare for the protection of the right of Meretz supporters to demonstrate, even in a provocative fashion, along the Bar-Ilan Boulevard. Will they apply the same outlook to allow Jews to pray on the Temple Mount.

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