The Temple Mount is under Israeli law but authorities must be “extra sensitive” to applying the laws on the site, Attorney-General Yehuda Weinstein wrote in a letter...a few weeks ago...Weinstein stressed that the Temple Mount must abide by all laws...He also wrote that any time authorities need to “test the application of law in the Temple Mount complex” they should be pragmatic and take the area’s unique status into consideration. Weinstein suggested that any reports on the situation should be sent to the National Security Council and the cabinet...
In the first instance, for veteran activists in behalf of Jewish rights and the application of Israeli law on the Temple Mount like yours truly, this is quite old news. Already in the mid-1980s, when I served as MK Geula Cohen''s parliamentary assistant, we obtained that principled instruction which, unfortunately, the esteemed but politically-biased lawyers in the State Prosecutor''s office and in other Justice Ministry corridors and rooms seem to conveniently forget or ignore. The case was the open-air prayer platforms the Waqf was constructing without any licence or permission. They were being built, of course, to restrict the areas where Jews could possibly, perhaps, one day pray. We obtained a ruling that Jerusalem''s planning authorities should be involved in approving plans and that Israel''s Antiquities Authority assure that no damage is being done to archaeological finds (but when bulldozers and trucks move soil from under El-Aqsa, no officiall was to be found).
In the second instance, Weinstein''s reference to the issue of "sensitivity" is simply being in line with the judgments of the Supreme Court sitting as the High Court for Justice. Time and time again, the justices over the past generation and more, since 1969, have termed the Temple Mount "sensitive" but only from a Muslim perspective. There is, to their minds, no "Jewish sensitivity" value to the site which is Judaism''s most holy location.
former Deputy to the President of Israel’s Supreme Court, Professor Menachem Elon, when he wrote, in a decision to prohibit Jews from worshipping on the Temple Mount, that the site possessed “great sensitivity...extraordinary sensitivity that has no parallel anywhere”.2 (H.C. 67/93. See also “Symposium, Temple Mount Faithful v. Attorney-General, et al”, The Catholic University of America Law Review, Vol. 45, No. 3, Spring 1996, pp. 861-941.)
In the name of that sensitivity, his adjudication prohibited a Jew from entering the holy site adorned with phylacteries or wearing a prayer shawl.
A Haaretz 2007 editorial noted
David Ben-Gurion described the situation in June 1967 by saying: "The Western Wall is for the Jews at the moment, and the Temple Mount is for the Muslims at the moment, and that is the reality we have to accept."
But, as this academic paper has it:
The Temple Mount is a receptacle for many of the memories that Jewish tradition and, increasingly, modern Israel utilize to construct a cohesive narrative of collective identity. The image of the Temple remained central to the Jewish tradition for nearly two thousand years in Exile.
So, between judges sensitive but to one claimant and a political view that one shouldn''t upset the status quo created, is there anything to be done with the law?
The Law for the Protection of the Holy Sites has been virtually a dead-letter in that despite establishing a crime of desecration of a holy site - which Weinstein will not apply - paragraph 4 has stalled any possibility of legal action. It reads:
The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice make regulations as to any matter relating to such implementation.
In a practical sense, for some 45 years, those consultations have never taken place and therefore, no regulations are in force. These regulations could have stipulated that Jews can pray in the collonaded section just to the left of the Mugrhabi Gate or in the far south-east corner between the hours of 8-9 on Mondays, Thursdays and Saturdays for example. It''s about time someone petition the HCJ to force these consultations to take place.
I myself alerted the readers of this paper back in October 2000 that
The law of the land guarantees free access to the site. But the High Court of Justice, which backed women''s wishes to pray at the Western Wall, denied that same basic freedom and right of prayer at a site most respected by them. How easy it is for the judges to ignore the secular law they have elevated to near-sanctity when Jewish sensitivity is the issue.
The camp of political progressives and liberals, normally so critical of clericalism, have championed any and all proposals that would wrest Jewish sovereignty from the site, including the idea of a "Divine sovereignty," which even arch-visionary Shimon Peres has ridiculed.
The Temple was twice destroyed by enemies of the Jews. We are now witnessing another effort to erase its memory from our national consciousness. How odd of Jews to be so confused.
I stand by my words.