The Petition (Hebrew)
The Order Nisi (Hebrew)
On 20 August 2007, the Supreme Court of Israel issued an order nisi (order to show cause) on a petition filed to the court by Adalah on behalf of Muslim religious leaders in November 2004 mandating that the state explain its reasons for not issuing regulations for the protection of Muslim holy sites in accordance with article 4 of the Protection of Holy Sites Law – 1967. The petition demanded that the court issue an order compelling the Minister of Religious Affairs (now the National Authority of Religious Services) to issue regulations for the protection of Muslim holy sites in Israel, after consultation with Muslim religious leaders, as has been done for 135 Jewish holy sites.
Attorney Hassan Jabareen, the General Director of Adalah stated that the government’s refusal to recognize mosques is part of an unjust policy that ignored their religious importance. “Some of these sites are holy not only to Muslims in Israel but to millions around the world. The absence of regulations that define these holy sites will perpetuate the ongoing damage they have been sustaining.”
The petition was filed by Adalah Attorney Adel Badir on behalf of Sheikh Abdallah Nimr Darwish, Sheikh Kamel Riyan, Sheikh Ibrahim Sarsour, former Member of Knesset ‘Abd al-Malek Dahamshe, and the Al-Aqsa Association for the Preservation of Waqf Property, and in Adalah’s own name.
At a hearing on the petition held in July 2007, the state argued that there was no need to issue regulations to protect Muslim holy sites, but announced its willingness to allocate a budget of NIS 2,000,000 (about US $465,000) for this purpose. The state added that the petitioners’ aim was to obtain a symbolic achievement – the recognition of Muslim holy sites – and that there was not need for this recognition as long as the state is prepared to allocate funds for the protection of the sites.
Adalah argued that the budget discussed by the state is barely sufficient for the protection and maintenance of a single holy site, and that the state is obliged to apply the law and to issue regulations for the protection of Muslim holy sites, after consulting with Muslim religious leaders.
The Protection of Holy Sites Law - 1967, aims to safeguard and preserve sacred places from desecration, from anything which could obstruct access to these places by followers of religious traditions, or could offend their religious sensitivities. Article 4 of the law states that, “The Minister of Religious Affairs is responsible for the implementation of the law, and is authorized, after consultation with the religious leaders, or in accordance with their advice and the agreement of the Minister of Justice, to promulgate regulations in order to implement the law.” The Protection of Holy Sites Law requires the Minister of Religious Affairs to regulate holy sites in general, and not selectively on the basis of religious grouping. Thus far, however, the Minister has only used his powers to promulgate regulations for Jewish holy sites. These regulations define “holy sites,” and catalog acts considered prohibited in these places, and stipulate punishments for those found guilty of breaching them. Approximately 135 places have been declared as holy sites, all of which are Jewish.
In the petition, Attorney Bader argued that, despite the universal scope of the law, the Minister of Religious Affairs has used his powers in a discriminatory manner by setting forth regulations which specify only Jewish holy places. The result of this discrimination is the neglect and desecration of Muslim holy sites in Israel: many mosques and holy sites have been converted, for instance, into bars, night clubs, stores and restaurants.
The petitioners further argued that the Minister’s failure to issue regulations for the protection of Muslim holy sites constitutes a breach of the Protection of Holy Sites Law, violates the principle of the rule of law, the principle of equality, and contravenes the principles of administrative law, which provide that the Minister of Religious Affairs must use his powers in a transparent, reasonable, non-arbitrary and non-discriminatory manner. Further, as stated in the petition, the Penal Law (1977) also forbids the violation of holy sites, laying down criminal sanctions of imprisonment for the desecration of a holy site.
In addition, the failure to promulgate such regulations for Muslim holy sites results in continuous discrimination in the designation of the budgets for holy sites, since items are designated in the budget for Jewish holy sites only, on the basis that no regulations exist specifying Muslim holy sites.
Adalah further argued that the non-recognition of Muslim holy sites constitutes an unjustifiable disregard for the religious and historical significance of these sites, which mars the dignity and offends the religious sensitivities of Arab Muslim citizens of the state.
H.C. 10532/04, Sheikh Abdullah Nimr Darwish, et. al. v. Minister of Religious Affairs, et. al.
For more information, see: Adalah News Update, “Adalah Petitions Supreme Court in Name of Muslim Religious Leaders Demanding Legal Recognition for Muslim Holy Sites in Israel”, 23 November 2004.