Adalah Petitions Supreme Court in Name of Muslim Religious Leaders Demanding Legal Recognition for Muslim Holy Sites in Israel

On 21 November 2004, Adalah submitted a petition to the Supreme Court of Israel against the Minister of Religious Affairs, the Minister of Justice and the Prime Minister, demanding that the Court issue an order compelling the Minister of Religious Affairs to issue regulations for the protection of Muslim holy sites in Israel, after consultation with Muslim religious leaders, as has been done for Jewish holy sites.

The petition was filed by Adalah Attorney Adel Bader, on behalf of Sheikh Abdallah Nimr Darwish (Founder of the Islamic Movement in Israel, and Head of the Shar'ia Law Authority in Israel), Sheikh Kamel Riyan (Head of the Al-Aqsa Association for the Preservation of Waqf Property, Director of the Committee for Regional Councils, and former Head of the Kfur Bara Local Council), Sheikh Ibrahim Sarsour (Head of the Islamic Movement in Israel, and former Head of the Kufr Kasem Local Council), Member of Knesset 'Abd al-Malek Dahamshe (Head of political party the United Arab List), and the Al-Aqsa Association for the Preservation of Waqf Property (a registered non-governmental organization in Israel, which works to preserve holy places for Muslims throughout the country), and in Adalah's own name.

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 law stipulates punishments of seven years' imprisonment for anyone found guilty of desecrating a holy site, and five years for impeding access to a holy site. 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. 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. Approximately 120 places have been declared as holy sites, all of which are Jewish.

Attorney Bader argued in the petition 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 petition 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. Furthermore, the failure to promulgate such regulations for Muslim holy sites results in 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. Moreover, some of these sites are sacred not only for Muslims in Israel, but also for millions of Muslims abroad. The religious sites referred to in the petition include Al-Ghabisiyya Mosque, Qisariya Mosque, Ein Hod Mosque, Hateen Mosque, and Al-Hamma Mosque, the Big Mosque in Beer El-Sabe, and the mosques in Maqam Sayyidna 'Ali and al-Nabi Rubin. Neglect of Muslim holy sites is a long-standing problem, which has been repeatedly brought to the attention of the government over many years. In 1995, the Attorney General sent a letter to the Prime Minister, in which he noted the inequality between budgets allocated for Arab Muslim, Christian and Druze religious communities and those allocated to Jewish religious communities. The Attorney General recommended that efforts should be made to remedy this situation, and called the government's attention to the fact that the budgets designated for Arab religious communities are extremely small in relation to the proportion they make up of Israel's population.

A special committee was established in accordance with a government decision from February 2000, with the task of investigating the condition of Arab holy sites. It was decided that representatives from the Ministry of Religious Affairs, the Ministry of National Infrastructures, the Israel Lands Administration, as well as Sheikh Kamel Riyan, as a representative of the Regional Committee for Arab Local Councils, would participate in this committee. Responsibility was conferred on the committee for preparing a program to deal with the issue of abandoned non-Jewish holy sites. The committee also had to prepare a list of these places, and a schedule of priorities for implementing the program. The committee, which finished its work in mid-2000, found that there are 53 Muslim holy sites and 58 abandoned Muslim cemeteries in Israel. The Ministry of Religious Affairs, however, did not implement the recommendations of the committee.

Adalah further emphasized in the petition that the Chief Justice of the Shar'ia Court of Appeal, Ahmed Natour, approached the committee on numerous occasions, warning its members about the poor condition of Muslim holy places, especially in mixed cities and in villages in which Muslims no longer live. He also sent a letter on 22 March 1993 to the then Prime Minister, the Minister of Religious Affairs and the Minister of Justice, in which he discussed the disgraceful state of holy sites, stating that, "Many of the cemeteries existing in mixed towns and Arab villages until 1948, were transferred to governmental and local authorities, such as the Development Authority, and to companies for the development of mixed towns, including Halmish. These authorities rented the property on which holy sites stand to official bodies, and through them to private individuals, who used the buildings and defiled the sanctity of these sites. For example, the Qisariya Mosque was rented out and is now used as a bar and restaurant, and the Saksik Mosque in Yaffa is today used as a discotheque …" At the end of his letter, Chief Justice Natour requested that the state adhere to the Protection of Holy Sites Law, and that employees and officials be directed to impose penalties on anyone who breaks the law. He also asked the Minister of Religious Affairs to promulgate regulations for the protection of Muslim holy sites in order to put a stop to the desecration of these sites.

The Supreme Court ordered the Attorney General's Office to respond to the petition within 60 days.

H.C. 10532/04, Sheikh Abdullah Nimr Darwish, et. al. v. Minister of Religious Affairs, et. al.