Case Number

HCJ 3358/95

Date Decided

5-22-2000

Decision Type

Original

Document Type

Full Opinion

Abstract

This petition concerns the Petitioners’ request to establish arrangements that would enable them to pray in the prayer area adjacent to the Western Wall in “women’s prayer groups, together with other Jewish women, while they are wearing tallitot [prayer shawls] and reading aloud from the Torah”, as required by the judgment of the Supreme Court in HCJ 257/89 Hoffman v. Director of the Western Wall (hereinafter: the First Judgment). Pursuant to the First Judgment, the Government decided, in 1994, to appoint a Directors General Committee, headed by the Director General of the Prime Minister’s Office, to present a proposal for a possible solution that would ensure the Petitioners’ right of access and worship in the Western Wall Plaza, while limiting the affront to the feelings of other worshippers at the site. In the report presented by the Directors General Committee to the Prime Minister, the Committee found that the Petitioners could not be permitted to pray in the Western Wall Plaza itself. The Committee therefore recommended that the Women of the Wall be permitted to pray at an alternative site at the southeastern corner of the Temple Mount wall. Two additional public committees that addressed the matter adopted a similar position, and the matter was therefore returned for a decision by the Court.

The Supreme Court Held:

A. (1) The First Judgment recognized the Petitioners’ right to worship in the Western Wall Plaza.

(2) The mandate of the Directors General Committee was to find a solution that would allow the Petitioners to realize their right to pray in the Western Wall Plaza, while reducing the affront to the feelings of other worshippers. But in recommending the designation of an alternative prayer site to the Western Wall Plaza the Directors General Committee chose a solution that was different from the one it was requested to develop and propose.

(3) Therefore, the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

B. (1) In arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

(2) We cannot reconcile with a situation in which fear of the violent reaction of any sector of the public will lead to the denial of the possibility of another sector to realize its given rights. It is not inconceivable that, in given circumstances, the Police may prevent a person or a group from realizing a right where there is a real basis for the fear that realizing the right will lead to a violent outbreak that may breach the public peace, and where the Police is unable to prevent such dire consequences by reasonable means. But no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition.

C. (1) Inasmuch as none of the alternatives suggested and considered at various stages of the proceedings can be viewed as even partially realizing the right to worship in the Western Wall Plaza, it is appropriate that the High Court of Justice order the Respondents to act to establish the appropriate arrangements for the realization of that right.

(2) Therefore, the Government must make concrete arrangements that will ensure the realization of the Petitioners’ right to worship in the Western Wall Plaza within six months.

Keywords

Constitutional Law -- Freedom of Religion, Constitutional Law -- The Rabbinate, Jewish Law -- Women

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