The question of Jewish prayer on the Mount

Freedom of access for all is a guarantee as a significant component of freedom of worship.

By IRVING GENDELMAN
Border Police officers patrol Temple Mount (photo credit: REUTERS)
Border Police officers patrol Temple Mount
(photo credit: REUTERS)
Israel prides itself as being a democratic constitutional government with the three classical departments of the executive, legislative and the judicial. As an enlightened constitutional government, this is inclusive of basic human rights and fundamental freedoms, such as the freedom of worship. It should be noted that basic human rights such as freedom of worship are enshrined in a number of international human rights declarations and documents.
While the governmental structure and practice in Israel is based upon the political foundation of Israel, it also derives its raison d’etre from Israeli cultural, historical, nationalistic and religious considerations.
A hallmark of this Israeli basis is the Basic Law: Human Dignity and Liberty, whereby freedom of religion is implied. In terms of freedom of worship, the Protection of Holy Places Law is significant and cardinal.
In part, the law states: 1) The Holy Places shall be protected... from anything likely to violate freedom of access of the members of the different religions to the places sacred to them.
2) Whosoever does anything to violate the freedom of access to them... shall be liable to imprisonment for a term of five years.
Thus, freedom of access for all is a guarantee as a significant component of freedom of worship.
The Temple Mount, which is holy to several religions, can obviously be defined as a holy site. Therefore, the Basic Law: Human Dignity and Liberty, the manifold international human rights declarations and particularly the Protection of Holy Sites Law apply to the Temple Mount. Thus, freedom of access to holy sites is pursuant to law. However, the law is not being implemented by the Israeli government as it relates to: The status quo In his commitment to the king of Jordan, Prime Minister Benjamin Netanyahu agreed to maintain the status quo on the Temple Mount. Essentially, this meant that the Israeli government would prevent Jewish prayer on the Temple Mount. This official Israeli policy contravenes Israeli law as well as the Israel-Jordan Treaty, both of which state that freedom of access to the holy sites must be protected, which obviously includes freedom of worship. The Israel-Jordan Treaty implies that prevention of access caused by rampant Arab violence is not acceptable. Regrettably, the Israeli government does not act to curb Arab violence on the Temple Mount. The status quo lacks legality. Rather, it appears that the Israeli government position accepts Arab violence as a reason to suspend the laws of the state. The status quo is divisive and impacts on Israeli sovereignty on the Temple Mount. It is all the more disconcerting in view of the Jewish history of the Temple Mount, site of the First and Second Temples.
The Supreme Court caveat to the Protection of the Holy Places Law In the various cases brought before the court petitioning for the right to Jewish prayer on the Temple Mount, the court found in favor of a police ruling that the police have a right to stop any religious action when the police believe it could lead to violence or danger to the public. Essentially, the court is adding its own caveat to the Protection of the Holy Places Law.
What is critical is that the court adds its caveat but at the same time it does not invalidate or modify the law. The question is how, from a constitutional point of view, the court is allowed to do this. There appears to be a contradiction and an usurpation of power.
As such, this is reminiscent of an observation by US Supreme Court Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process: “Judges have, of course, the power, though not the right to ignore the mandate of a statute and render judgment despite of it. They have the power, though not the right to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power they violate the law.”
More specifically, the Israeli court does not take judicial notice that its caveat restricts Jewish prayer on the Temple Mount, but not Arab conduct on the Temple Mount the sole purpose of which is to prevent Jewish presence and prayer on the Temple Mount. This is discriminatory against Jews and thus violates the Basic Law: Human Dignity and Liberty.
In the final analysis, I would respectfully recommend that Prime Minister Benjamin Netanyahu reconsider his position regarding the status quo preventing Jewish prayer on the Temple Mount in the context of existing Israeli law, the Jewish historical connection to the Temple Mount and the need to be consistent with the many human rights declarations and documents which attest to the basic human right and fundamental freedom of worship.
The author worked for the US Navy Department as an engineer and is a member of the US Bar. He also worked for the US Patent Office as an examiner. His interest in living in Israel is related to writing on governmental legal matters, with an emphasis on basic human rights that impact on Israel-connected citizenry.