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Legal Advocacy

Supreme Court Petitions: Religious Rights

Equal Funding for Arab Religious Communities. Petition filed against the Minister of Religious Affairs (MORA) and the Minister of Finance asking the Court to declare unconstitutional four provisions of the Knesset Budget Law (1998), which allotted only 1.86% of the total $400 million budget of the MORA to Arab religious communities (Muslim, Christian and Druze) combined. Adalah argued that as the Arab minority constitutes about 20% of the population, this disproportionate budget allocation violated the principle of equality. Case dismissed in 12/98 by a 26-page written decision. In its ruling, the Court confirmed that the MORA budget granted to the Arab religious communities constituted prima facie discrimination. However, the Court ruled that the petitioners failed to establish that "substantive inequality" exists; for this, according to the test articulated by the Court for the first time, it is necessary to examine the religious needs of each religious community. Thus, the Court decided that the petition was too general, and that the petitioners' requested remedy - to allocate funds commensurate with the Arab community's percentage of the population - would entail the appropriation of legislative powers by the Court.

(H.C. 240/98, Adalah, et. al. v. Minister of Religious Affairs, et. al., P.D. 52 (2) 167)

Equal Funding for Arab Religious Cemeteries. Petitioned the Court in 2/99 against the Minister of Religious Affairs (MORA) asking that two articles of the 1999 Budget Law, which allocate funding exclusively for Jewish cemeteries, be declared unconstitutional. Adalah demanded that the MORA establish clear, non-discriminatory criteria for the distribution of resources (over US $4 million annually) to all cemeteries; no public funds were provided to Arab Muslim, Christian or Druze religious cemeteries.

Result: In 4/00, the Court accepted the petition in a precedent-setting 26-page written decision. The Court ruled that the MORA should allocate money designated for cemeteries on an equal basis and according to the proportionality test (percentage-of-the-population). Further, the Court ruled that: "The resources of the State, whether land or money … belong to all citizens and all citizens are entitled to enjoy them according to the principle of equality, without discrimination, based on religion, race, sex or other prohibited consideration." Adalah was awarded legal fees of NIS 20,000. A subsequent motion was filed demanding that the Court instruct the MORA to implement the Court's decision in its 2001 budget. In 6/01, the MORA stated that funds are set-aside and Arab municipalities and other groups must apply.

(H.C. 1113/99, Adalah, et. al. v. Minister of Religious Affairs, et. al., P.D. 54 (2) 164)

Equal Funding for Arab Religious Buildings. Petition filed in 2/00 against the Minister of Religious Affairs (MORA), the Minister of Interior and the Minister of Housing arguing that the current criteria for granting funds for the religious buildings (e.g., mosques, churches, religious courts) discriminates against the Arab religious communities (Muslim, Christian and Druze). Adalah demanded equitable allocation and distribution of the religious buildings budget.

Result: Order nisi granted. Temporary injunction granted freezing the distribution of over US $30 million from the religious buildings budget, later replaced by a commitment from the Ministry of Finance to allocate these funds to Arab religious communities, should the Court accept Adalah's petition. In 3/01, the MORA committed to divide the religious building budget into three categories: synagogues, mikva'ot (ritual baths), and buildings for Arab religious communities. Adalah agreed to withdraw the petition based on this commitment, with leave to re-file if the 2001 budget law failed to fulfill these commitments. The Court awarded Adalah legal fees of NIS 5,000.

(H.C. 1399/00, Ittijah: The Union of Arab Community Based Organizations in Israel, et. al. v. Ministry of Religious Affairs, et. al.)

Demolition of the Mosque in the Formerly Unrecognized Arab Village of Husseniya. The unrecognized village of Husseniya, along with tens of others like it, became "illegal" as a consequence of the enactment of the National Planning and Building Law (NPBL) (1965), which retroactively zoned the land as a non-residential area. In 1996, Palestinian citizens of Israel living in Husseniya built a small mosque in the village. In response, the Local Planning and Building Committee (LPBC) of Misgav submitted an indictment against them for illegally building the mosque on "agricultural" land, and obtained an administrative demolition order from the Magistrate Court in Akka (Acre) in 1999. Petition filed in 3/00 to the Supreme Court against the Akka Magistrate Court and the LPBC seeking the cancellation of the court's administrative demolition order, and challenging the NPBL procedure of "demolition without conviction." Petition submitted following a successful motion for injunction, by which the Supreme Court stayed the demolition order. Adalah argued that the Magistrate Court had no jurisdiction to order the demolition; that according to Article 70 of the Penal Law, the damaging of a holy site is a criminal offense; and that the demolition would violate the right of residents to worship freely.

Result: Supreme Court dismissed the case in 5/01. Following the Court's decision, residents dismantled the mosque and built a second, larger mosque in the village. The LPBC again issued an administrative demolition order. Adalah successfully obtained a court order from the Akka Magistrate Court to quash the LPBC demolition order in 11/01. The Magistrate Court judge ruled that in cases where there is a local governing committee, but no municipality or local council, the head of the planning committee must consult with the head of the local governing committee before ordering the demolition of buildings under the latter's jurisdiction. An appeal by the Misgav LPBC is pending before the Haifa District Court.

(H.C. 1631/00 and H.C. 1878/00, Kaman Sawaed v. Magistrate Court of Akka, et. al., unpublished decision)

The Right to Pray in the Big Mosque in Beer el-Sebe (Beer Sheva). Petition filed in 8/02 on behalf of the Association for Support and Defense of Bedouin Rights in Israel, the Islamic Committee in the Naqab, 23 Palestinian citizens of Israel, and in Adalah’s own name against the Municipality of Beer el-Sabe (Beer Sheva), the Development Authority, the Ministry of Religious Affairs, and the Minister of Science, asking the Court to order the respondents to allow Muslims to pray in the Big Mosque in Beer el-Sabe - the city's only mosque. From 1906-1948, the building was used as a mosque; after the establishment of the State, the mosque was used as a court and prison, and later as a museum. Since 1991, it has stood empty and neglected. In Beer el-Sabe today there are around 259 synagogues for the 180,000 Jewish residents of the town, or one synagogue for every 700 Jewish residents. Approximately 5,000 Muslims live in Beer el-Sabe; by this ratio, the Municipality should offer its Muslim population at least eight mosques. The petition argued that free access to the mosque is protected by freedom of religion and the right to dignity. At a hearing in 5/03, the state committed to establishing an inter-ministerial committee to examine the issue.

In 9/03, the Prime Minister’s Office submitted eight proposed names for the inter-ministerial committee. All representatives proposed came from the Prime Minister’s Office (Chair), the Ministry of Internal Security, the Ministry of Interior the Ministry of Industry and Trade, the Ministry of Religious Affairs, the Ministry of Education, the Israel Lands Administration, and the General Security Service; none was Arab or Muslim. In 10/03, Adalah challenged the composition of the committee, and in response the Prime Minister’s Office stated that it would include one representative of the Muslim community. The AG’s Office then informed the Court that the committee was finalized, without any Muslim or Arab representative.

In 1/04, Adalah learned that the Beer el-Sabe Municipality published a bid (tender) for contractors to perform structural building work on the renovation of the Big Mosque, seemingly in order to convert it into a museum. In response, later in 1/04, Adalah filed a motion for an injunction to the Supreme Court requesting that it enjoin the Municipality from continuing with the bid and from making any changes that may alter the building’s use as a mosque, pending a final decision on the petition. Adalah argued that the Municipality’s action constituted a contempt of court, given that such structural changes would be in direct contravention of the Court’s 5/03 decision to establish a committee to make recommendations concerning the possibility of re-opening the mosque for prayer. The Municipality claimed that the work that it sought was solely intended to preserve the building. At a Supreme Court hearing held on the motion in 2/04, the Court ordered the Municipality to maintain the status quo, to limit any work on the building to that which is necessary for its upkeep, and to refrain from making any further changes or additions.

The committee released its report in 9/04, recommending that the Big Mosque remain closed for prayer. The report stated that Beer el-Sabe is a Jewish town, and therefore the question of the Big Mosque differs from that of mosques in mixed cities, adding that the committee was unconvinced of the need of Muslims to pray in this specific mosque. The committee also suggested that the Muslim population should go to pray in one of the surrounding towns. In response to the committee's recommendations, Beer el-Sabe Municipality emphasized that the issue of "public safety and security" must also be taken into account, adopting the position of the Israel police force that, if permission were granted to restore the building as a mosque, a conflict would inevitably ensue between the town's Muslim and Jewish communities.

At a hearing in 1/05, Adalah countered that the committee was advocating for the perpetration of discrimination against Muslims in violation of the rights to freedom of religion, freedom of worship and dignity for Arab Muslim citizens. Adalah also stressed the lack of a Muslim or Arab on the committee. During the hearing, the Court criticized the fact that not a single Arab Muslim nor any of the petitioners had been appointed to the committee, adding that what the state had done was unjust, as the issue relates to the rights of the Arab minority in Beer el-Sabe. The Court rejected the state's request to dismiss the petition, as well as the solution proposed by the AG to maintain the status quo. The Court suggested that the petitioners and respondents reconsider their positions and reach an agreement involving the designation of the building as a cultural and social center for use by the Muslim community in Beer el-Sabe, except for the purpose of praying. The two parties were asked to respond within 60 days.

In 2/05, the Municipality filed its response to the Court, stating its rejection of the proposal to open the Mosque as an Islamic cultural center. The municipality insisted that the Mosque should be opened as a museum. Adalah's position is that Beer el-Sabe Municipality's response is racist, and shows no respect for the Muslim community of Beer el-Sabe or its heritage. As Adalah contended in its own response to the Court submitted earlier in 2/05, the rights of religious minorities must be respected under domestic and international law, and the Big Mosque must therefore be opened as a place of worship for the 5,000 Muslim residents of Beer el-Sabe and approximately 150,000 Muslims in the Naqab.

In 1/06, the Court issued a second proposal during a hearing suggesting that the site be converted to a museum of Islamic culture. The Municipality was ordered to respond in 60 days, after which Adalah would have a further 60 days to respond to the Municipality’s position.

In 1/07, Adalah rejected a suggestion made by the Supreme Court to open the mosque as an Islamic museum and insisted that it should be opened for prayer and worship. Adalah argued that not opening the Big Mosque for prayer and worship infringes the dignity and the rights of Muslims from Beer el-Sabe to respect their holy sites and to worship. In 2/07, the Supreme Court issued an order nisi demanding that the Beer el-Sabe Municipality and Attorney General give their reasons why the Big Mosque in Beer el-Sabe should not be opened for prayer and worship.

H.C. 7311/02, Association for Support and Defense of Bedouin Rights in Israel, et. al. v. The Municipality of Beer Sheva, et. al., (case pending).

Demanding Legal Recognition for Muslim Holy Sites in Israel in Name of Muslim Religious Leaders. Petition filed in 11/04 by Adalah on behalf of Muslims leaders in Israel, and the Al-Aqsa Association for the Preservation of Waqf Property, 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, following consultation with Muslim religious leaders, as has been done for Jewish holy sites. 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. The Minister of Religious Affairs is responsible for its implementation, including the promulgation of regulations for this purpose. The law requires the Minister to regulate holy sites in general, not selectively on the basis of religious grouping. Thus far, however, the Minister has only issued regulations for Jewish holy sites. Approximately 120 places have been declared as holy sites, all of which are Jewish. The law, and the Penal Law (1977), stipulate criminal sanctions of imprisonment for the violation of a holy site.

The petitioners argued the Minister of Religious Affairs has used his powers in a discriminatory manner by setting forth regulations which exclusively specify 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 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. Furthermore, 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. The petitioners further argued that the non-recognition of Muslim holy sites unjustifiably disregards 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 also sacred for millions of Muslims outside of Israel.

Neglect of Muslim holy sites is a long-standing problem, which has been repeatedly brought to the attention of the government over many years. 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. 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. The Supreme Court ordered the Attorney General's Office to respond to the petition within 60 days.

Update: In 3/07, there were 135 designated holy sites, increased from 120 at the time of the filing of the petition, all of which are Jewish.

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