In the Supreme Court sitting as the High Court of Justice  

HCJ 52/06

HCJ 1331/06

HCJ 1671/06

 

Before: The honourable Justice A. Procaccia

The honourable Justice E. Arbel

The honourable Justice D. Cheshin

*

The petitioner in HCJ 52/06: Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd

*

The petitioners in HCJ 1331/06:

1. Mohammed Hir Aldajani

2. Mohammed Zaki Nuseibeh

3. Mohammed Badar Al-Zin

 

The petitioners in HCJ 1671/06:

1. Simon Wiesenthal Center Museum Corp.

2. Simon Wiesenthal Center * Los Angeles

 

v.

 

The respondents in HCJ 52/06:

1. Simon Wiesenthal Center Museum Corporation

2. Simon Wiesenthal Center * Los Angeles

3. Jerusalem Municipality

4. Israel Land Administration

5. Moriah * Jerusalem Development Corporation Ltd

6. Jerusalem Local Planning and Building Committee

7. Jerusalem District Planning and Building Committee

8. Antiquities Authority

 

The respondent in HCJ 1331/06: Israel Police

 

The respondents in HCJ 1671/06: 1. Jerusalem Sharia Court

2. Mohammed Hir Aldajani

3. Mohammed Zaki Nuseibeh

4. Mohammed Badar Al-Zin

5. Custodian of Absentee Property

6. Development Authority

 

Petitions for an Order Nisi

 

For the petitioner in HCJ 52/06: Adv. Muhammed Suleiman Ajabaria

 

For the petitioners in HCJ 1331/06: Adv. D. Saif of the Karameh Human Rights Organization

 

For the petitioners in HCJ 1671/06: Adv. M. Lipschutz, Adv. O. Barry, Adv. R. Jarach

 

For the respondents in HCJ 52/06:

Adv. M. Lipschutz

Adv. R. Jarach

Adv. Sherri Lerner-Horowitz and Adv. Dorrit Yarchi

Adv. Y. Reutman, Adv. H. Sandberg, Adv. I. Ravid of the State Attorney*s Office

Adv. Yair Shilo

Adv. Yoram Barsela

 

For the respondents in HCJ 1331/06: Adv. Y. Reutman, Adv. H. Sandberg, Adv. I. Ravid of the State Attorney*s Office

 

For the respondents in HCJ 1671/06: Adv. Y. Reutman, Adv. H. Sandberg, Adv. I. Ravid of the State Attorney*s Office

 

 

JUDGMENT

 

 

Justice A. Procaccia

 

Introduction

 

1. According to city building plan proceedings that have received final approval, a building that is designated to serve as a Museum of Tolerance is going to be built in the centre of the city of Jerusalem. The original plan for the museum was based on the value of tolerance between nations and between human beings, and its purpose is to spread the idea of human dignity among the public, to educate people with regard to the values of mutual trust and fraternity in society, to further the purposes of education to respect the basic values of democracy, to bridge disputes between nations and between various population sectors, and to contribute to the deepening of human consciousness with regard to the value of peace and love in human life. The idea of establishing a Tolerance Centre in Jerusalem was the brainchild of the late Simon Wiesenthal, who was a member of the generation of the holocaust of European Jewry. He operated in his special individualistic way of assimilating the lessons of the holocaust, by locating Nazi criminals around the world and ensuring that they were brought to justice; within the scope of that commitment, Simon Wiesenthal sought to establish a spiritual centre whose characteristics and activity would focus on the dissemination of the message of tolerance to all human beings in the world. It is hardly

surprising that he chose to realize the idea in Jerusalem, the capital of Israel and the Jewish people, and a world centre for the three great religions of humanity. The Museum of Tolerance should reflect the lessons of the past and assimilate these lessons into the values of tolerance and fraternity for the future. It is supposed to link the past, the present and the future by regarding the basic rights of the individual as the supreme value in human life and in the governments of peoples and states.

 

The implementation of the idea of the museum is the responsibility of an American corporation, the Simon Wiesenthal Center, which is a non-profit organization that operates in the United States (hereafter** the Wiesenthal Center).

 

2. The relevant authorities in Israel responded favourably to the idea of setting up a Museum of Tolerance, and the Israel Land Administration and the Jerusalem Municipality decided to allocate land to the Wiesenthal Center in the heart of the city of Jerusalem. The location of the museum according to the city building plan that received final approval is in the centre of the city, at a site where until recently there has been a municipal multi-storey car park at the junction of Hillel and Ben-Israel Streets, which adjoins Independence Park and the Mamilla Moslem cemetery (hereafter we will call the area designated for building the museum under the plan** the museum compound).

 

3. For the purpose of furthering the project, the Wiesenthal Centre set up a special corporation, the Simon Wiesenthal Center Corp. (hereafter** the museum corporation) (the *Wiesenthal Centre* and the museum corporation will jointly be referred to as * the project owners). The project owners contacted the well-known architect Frank Gehry in order that he should design the museum on the site allocated to it. The architect Frank Gehry prepared a plan for the museum at the site chosen for it, and the planning proceedings took place before the planning authorities over the years, and they were concluded with the final approval of the plan on 29 August 2002. A building permit for starting the work on the museum project was given on 27 October 2004. Following the granting of the building permit, the museum corporation began works to develop the area, during which human bones and the remains of graves were found in the compound. In January 2006 the first petition in HCJ 52/06 was filed by the Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd (hereafter: the Al-Aqsa Corporation). The Al-Aqsa Corporation applied for orders to stop the work at the museum compound immediately in view of the discovery of the remains of graves at the site, and it petitioned the court to impose an absolute ban on carrying out any works at the site, on the ground that it is the area of a Moslem cemetery and that any work on the site involves a desecration of graves and a defilement of a Moslem holy site, and is therefore absolutely prohibited.

 

4. After the Al-Aqsa Corporation filed its petition and in consequence thereof, three petitioners (Messrs Aldajani, Nuseibeh and Al-Zin) began a proceeding before the Sharia Court, in which they petitioned for temporary injunctions, whose purpose was to bring about the immediate stoppage of the works at the museum compound. The Sharia Court issued orders against the Wiesenthal Center, the museum corporation and additional parties, which prohibited them from continuing to carry out the works at the compound. Following the proceeding before the Sharia Court, two additional petitions were filed in this court, one by Aldajani and the other by the project owners. In the first petition the petitioners are applying for relief that will compel the Israel Police to enforce the

temporary injunctions that were issued by the Sharia Court; in the second petition the project owners are applying to this court to declare the orders that were issued by the Sharia Court void because the Sharia Court has no jurisdiction to hear the case that was the subject of that proceeding, which concerns the building works for the Museum of Tolerance at the compound where the remains of ancient grave were found.

 

5. The main issue that arises in this proceeding concerns the question of what is permitted and what is prohibited when developing and building compounds where the remains of graves and human bones are discovered under the ground at the beginning of the works, after all the planning proceedings have been completed; secondary questions that arise in this context are what is the weight that should be attached to the timing when a petitioner who objects to the continuation of the building works applies to the court, a significant time after all the proceedings for planning the compound have been completed and approved, and what is the scope of the powers of the Sharia Court on this issue.

 

The main facts

 

Planning background

 

6. The museum compound is situated in the heart of the centre of Jerusalem. It borders on Independence Park and the Mamilla Moslem Cemetery. Since the founding of the state, a series of city building plans has been approved for the compound, and over the years the development of the land progressed as follows:

 

Outline plan no. 856: this plan was approved in 1960 and its purpose was to develop the area for residential and commercial purposes and to allocate areas for public buildings, open public areas and open private areas. The relevant compound for our purposes was designated as an open public area.

 

Local outline plan no. 2009: this plan became valid in 1979, and its main purpose was the construction of an underground multi-storey car park. Such a car park was indeed built on this compound, and it served the parking needs in the centre of Jerusalem for several decades.

 

Local outline plan no. 1880A: this plan became valid in 1991, and it contained the planning for the road connecting Hillel Street and Agron Street, through Independence Park.

 

Local outline plan no. 4498: the plan became valid in 1998, and within its scope the designation of the compound as an open public area was changed to the designation of a commercial area.

 

Local outline plan no. 4740: this plan became valid in 2000, and its purpose, inter alia, was to add two stories to the building known as *Beit HaMehandess* and to allow the construction of two new buildings on the compound.

 

7. The museum plan * no. 8030: Following the allocation of the land by the Israel Land Administration and the municipality to the Wiesenthal Center for the purpose of building the museum, the Wiesenthal Center began proceedings to change the designation of the compound to a classification suitable for building the museum. The designation change plan relating to this, which was plan 8030, was published pursuant to the Planning and Building Law, 5725-1965 (hereafter** the Planning and Building Law), and the fact that it was deposited was published in Reshumot (Yalkut Pirsumim no. 5023, page 120, of 16 October 2001), and in the Hebrew and Arabic media, as required by law. This plan was approved on 26 March 2002, after minor changes that were made to it as a result of objections that were heard by the District Planning and Building Committee. The plan was published on 29 August 2002 (Yalkut Pirsumim 5107, page 3909), and it was published in the media as required (for a review of the planning proceedings, see also the letter of Architect Barak Elam of 5 January 2006, appendix K of the supplementary statement of the project owners of 3 December 2006).

 

8. After the plan to change the designation of the land was approved, and after a team on behalf of architect Gehry began the specific planning of the museum building, the museum corporation applied to the planning authority for a permit to build on the land. This application received the approval of the Local and District Planning and Building Committees, and it was finally approved on 27 October 2004. When the building permit was granted, the museum corporation began to develop the compound that was designated for the construction of the building. Towards the end of 2005 the excavations for laying the foundations of the building began. During these excavations, remains of ancient graves and human bones were discovered on a part of the area designated for the building; they were found deep under the ground, concealed from human sight. At that stage the Antiquities Authority dealt with the remains, and they were removed from the building site for preservation and research.

 

9. After it became known that the remains of the ancient graves had been found at the building site that was designated for building the museum, the main petition in this proceeding was filed by the Al-Aqsa Corporation, which applied for the immediate cessation of the building and development on the site, as a result of the discovery of the graves (HCJ 52/06). The petitioner, according to its declaration, is a company that develops property belonging to a Moslem sacred trust in Israel, which has set itself the task of preserving and maintaining Moslem and Christian holy sites in the State of Israel. Before this judgment was given, the Minister of Defence made an order pursuant to the Defence (Emergency) Regulations, 1945, which declared the corporation a prohibited association, and he made an order to seize assets in its case. Below we shall discuss the legal relevance of this declaration to our case.

 

10. After filing this petition, two other petitions were filed (HCJ 1331/06 and HCJ 1671/06), which concern the jurisdiction of the Sharia Court to try and decide the issue of the building on the museum site after the discovery of the graves. The hearing of the three petitions was joined in this proceeding.

 

The location of the museum compound

 

11. The Museum of Tolerance was chosen to be built in the centre of Jerusalem and this was no coincidence. The choice of the location was the result of a national and municipal outlook that attributes special importance to this enterprise, a considerable part of which is due to the planned location of the building. Jerusalem, as the capital of Israel, constitutes a centre of interest for the whole world and for many visitors from all parts of the globe, who make pilgrimages to the city that is a spiritual and religious centre for the three main religions in the world. The location of the Museum of Tolerance in the heart of Jerusalem has a special meaning, which combines the cosmopolitan character of the city with the fact that it is a spiritual and religious centre that unites the peoples of the world.

 

Moreover, in recent years a special effort has been made to develop the centre of the city of Jerusalem by means of a master-plan that incorporates various plans that are designed to turn this area into a centre of cultural, spiritual, commercial and tourist interest, which will create a natural continuation between the old city and the new city.

 

The purpose is to make the centre of the city of Jerusalem a centre worthy of the capital of Israel, which will serve as a source of interest and attraction to visitors from Israel and abroad, which will return life and excitement to the streets of the city centre, not only in the fields of commerce and business, but also in the fields of culture, entertainment, tourism and housing. Within this framework, the plan for the city centre involves, inter alia, the constructions of a light railway, the renewal and development of streets, building various public buildings, planting and cultivating gardens, encouraging young people to live in the area by giving grants, encouraging commercial building and creating a new traffic system for vehicles which will facilitate access to the centre of the city.

 

The construction of the Museum of Tolerance at the centre of the city of Jerusalem therefore has special significance not only in view of the nature and purpose of the plan as a spiritual centre for spreading the awareness of tolerance between men, but also as an integral part of a master-plan to develop the centre of the capital, which has suffered a considerable decline in recent decades.

 

12. As of this time, the building compound on which it is planned to build the museum is made up of several parts: one part of the compound was used until the building work began as an overground car park (the *Independence Park* car park); the other part was used as an underground car park (the *Beit HaMehandess* car park), on top of which is a plaza known as *Cats Plaza.* The compound also includes the road that separates the underground car park and the overground car park, as well as a part of the area of a road that currently traverses Independence Park, which is Menasseh ben Israel Street. The area of the overground car park borders on an enclosed area that is an ancient Moslem cemetery, *Maman Allah,* which is also known as the *Mamilla cemetery.*

 

The findings of the Antiquities Authority

 

13. Since the remains of graves were discovered under the ground at the beginning of the building works on the compound, the Antiquities Authority became involved in the matter, dealt with the remains that were found and submitted a situation report with regard to the whole area of the compound (its supplementary statement of 2 November 2007). In the situation report, the museum compound was divided into five sectors according to a map of the area that was submitted by the authority as an appendix to the statement:

 

The sector marked *4* on the authority*s map extends over the majority of the museum compound, in its north-west part. This is the area of the car park that was dug and excavated many years ago, and in this area there is no concern that the remains of graves will be found. This area was released for building by the Antiquities Authority, as the competent authority to supervise sites of archaeological and historical importance by virtue of the Antiquities Law, 5738-1978 (hereafter** the Antiquities Law).

 

The sector marked *5* on the authority*s map is situated in the western part of the compound, and this contains a road that is actively used by vehicles, which is Menasseh ben Israel Street. This area has not yet been released for building by the Antiquities Authority, since the authority has not yet completed its investigations of this area.

 

The area situated at the centre of the compound is divided into three sectors: the sector marked *1,* which is an area that has been excavated by the authority, and there is no concern that it contains any remains of graves. This area was released for building without restrictions;

 

The area marked *2* is situated in the centre of the compound. Excavations have been carried out there, and the archaeological investigations required by the authority have been completed. The authority clarified that in this area dead persons were buried for hundreds of years in three levels: the top level of graves was completely evacuated by Antiquities Authority personnel; the same is true with regard to the second level; with regard to the third level, which is the oldest, this has mostly been evacuated, but there remain several dozen graves. These are ancient graves that are

more than three hundred years old. According to the position of the Antiquities Authority, it is possible to relocate these graves in a dignified manner to the adjacent Mamilla cemetery or to any other agreed burial site.

 

To the south of area *2* lies area no. 3, which is marked in purple (hereafter** the purple area). In this area the authority has carried out partial excavations. From a scientific viewpoint, the authority has reached the conclusion that there is no further need to continue its excavations, and building may be carried out on the area without penetrating the underground areas that have not been excavated. The area has therefore been released for building by the Antiquities Authority, on condition that the underground parts of this area are not penetrated, and if there is a need to construct piles for the building, this needs to be done under the supervision of the Antiquities Authority.

 

The position of the Antiquities Authority is therefore that from a historical and archaeological viewpoint there are no obstacles to continuing the museum project with regard to the main part of the compound, subject to certain building restrictions that were set out above, which are intended to preserve areas where there are remains of graves.

 

Interim orders and mediation proceedings

 

14. Within the framework of the proceedings in the three petitions, we issued an interim order by virtue of which the works on the compound were stopped until a decision was made on the petitions. An interim order was also made that prevented the Sharia Court from continuing to hold parallel proceedings on the action that was filed before it with regard to the cessation of the building operations on the museum compound.

 

15. The mediation proceedings that took place between the parties in an attempt to resolve the dispute concerning the building on the museum compound were unsuccessful. Subsequently, the representatives of the Wiesenthal Center and the museum corporation were requested to submit proposals for a practical solution of the difficulty that was created in those sectors of the compound where the remains of ancient graves were found.

 

Practical proposals for resolving the problem of building in areas where the remains of ancient graves were found

 

16. The project owners presented two main alternatives for resolving the difficulty created by carrying out building works on the museum compound where the remains of ancient graves were found (supplementary statement of 3 December 2006):

 

17. One alternative is the removal of the remains of the graves and the bones and their reburial elsewhere. The project owners undertook to remove the remains of the graves and the bones in a professional, dignified and proper manner, in accordance with the rules of the Islamic religion and under the supervision of Islamic religious leaders. They even undertook, where necessary, to buy suitable land or to adapt an existing burial area so that it will be suitable for the alternative burial site. For this purpose, the project owners contacted an architect to formulate a plan for rehabilitating the area of the Mamilla cemetery near the museum compound (the plan of Architect Shlomo Aronson of 19 September 2006 was attached as sub-appendix E of appendix A of the project owners* supplementary statement of 3 December 2006).

 

The project owners proposed three main possibilities of removing the graves from the site by means of innovative methods to prevent their desecration: the first possibility concerns the method of hand excavation, which is commonly used at burial sites in Israel today. According to this method, the excavations are carried out with fine tools to discover the graves and the skeletons, and they are moved to an alternative burial site after they are sorted by hand without harming the skeletons or the graves. This option was supported by an expert opinion of Dr Alon Shavit of 23 March 2006 (sub-appendix B of appendix A of the supplementary statement of the project owners). The second option is the freezing of the area where the bones are situated by means of metal pipes that are inserted into the ground and freeze the earth. After the freezing, the block of earth containing the graves and the bones is extracted, as one unit and without any contact with the human hand, and it is removed in its entirety to another burial site. This option was supported by an expert opinion of Engineer Netzach Mashiah of 23 March 2006 (sub-appendix C of appendix A of the supplementary statement of the project owners). A third possibility that was proposed by the project owners concerns a mechanical cutting system, by means of which the land is cut all around the grave. After this the grave is raised onto a wooden platform and is transported to its alternative site. This option also makes it possible for no contact to be made with the graves or the bones that are situated in the ground. This possibility was supported by an expert opinion of Engineer Ilan Shani of 20 March 2006 and Engineer Daniel Shaham of 23 March 2006 (sub-appendix F and sub-appendix D of appendix A of the supplementary statement of the project owners). Since these three possibilities require the removal of the graves to an alternative burial site, the project owners presented a letter of 25 September 2006 from General Abu-Rashid of the Development and Peace Centre in Amman, who agreed to supervise the removal and reinterment of the graves at an alternative burial site in accordance with Sharia law (appendix B of the project owners* supplementary statement).

 

Alternatively, instead of the removal of the graves, the project owners proposed that the graves should be buried in the ground underneath the museum compound itself. This possibility was supported by the opinion of Engineer Daniel Shaham of 23 March 2007 (sub-appendix F of appendix A of the project owners* supplementary statement).

 

18. The second alternative for dealing with the remains of the graves that was proposed by the project owners was to build on the *purple area,* where most of the graves are situated, without excavating the ground, thus causing minimal harm to the graves situated in the compound. But the solution involving this alternative, as it was originally presented, required works and drilling in the aforesaid area. In this regard the project owners said that limited excavations would be required in

the ground, mainly in order to construct piles as foundations for the building. This alternative requires a planning change of the underground part of the museum, which according to the original plan is intended, inter alia, for an underground car park, as set out in the opinion of Architect Ofer Kolker of 5 January 2006, which was attached to the response of the project owners (appendix C of their supplementary statement).

 

19. The Al-Aqsa Corporation rejected each of the aforesaid alternatives.

 

Orders nisi

 

20. Following an additional hearing of the petitions on 3 January 2007, we issued an order nisi in the main petition, which focuses on the *purple area* of the museum compound that constitutes 12% of the total area of the compound that is designated for the building, where most of the remains of the graves are situated under the ground. According to the order, the respondents in the main petition were ordered to show cause why the building plan of the museum compound should not be changed so that the building will not cover the *purple area* of the compound.

 

21. On 30 April 2007 an order nisi was also given in the petition of the project owners against the Sharia Court, which required it to show cause why the orders made by the Sharia Court within the framework of the proceeding that took place before it on the subject of the building on the museum compound should not be declared void, and why it should not be prohibited from continuing to hear that proceeding because it was overstepping its jurisdiction.

 

22. In their reply of 1 February 2007 to the order nisi in the main petition, the project owners went even further in an effort to find a practical solution to the problem of the remains of the graves situated in the *purple area.* They declared that they would be prepared to undertake to refrain from carrying out any additional digging or drilling in this area beyond what had already been carried out in the *purple area* in the past. This undertaking would be realized by building a *suspended floor,* which would be built above the level of the ground, by means of piles that were already built in the area before the petitions were filed. The *suspended floor* is supposed to leave an air cushion above the ground, the height of which would range between ten centimetres and one metre or more above the ground, according to the topology of the area. In this way, no physical contact will be created between the floor of the building and the surface of the land and the remains of the graves underneath it. An expert opinion of Engineer Arieh Klein, a geotechnical and geoenvironmental consultant, of 28 January 2007 supported the possibility of this building method. The opinion refers to various other cases in which building was carried out according to this method in the area of a cemetery, including cases of building on top of the graves themselves, in an area called *the city of the dead* in Cairo, Egypt (appendix K of the response of the project owners to the order nisi).

 

23. The project owners emphasized that the possibility of building a *suspended floor* requires a significant investment of financial resources on their part, both in order to realize the aforesaid engineering solution and because of the expenses incurred as a result of a change in the museum plans, which is required by the fact that the areas of the building that were originally intended to be built under the ground in the *purple area* would be moved to another part of the building. The opinion of Architect Ofer Kolker of 5 January 2006 reviewed these changes that would be required (appendix C of the supplementary statement of the project owners). The project owners also added that this option impedes the effective functioning of the museum itself, for example by preventing a possibility of large heavy vehicles entering the underground area of the building, because of the restriction upon excavations under the land. Notwithstanding, they expressed a willingness to incur the costs and to comply with the various restrictions that accompany this option, as a way of finding a proper solution to the problem that was created.

 

The project owners left the choice between the various options of resolving the difficulty that was created by the discovery of the remains of graves on the building site of the museum to the Al-Aqsa Corporation.

 

24. While they agreed to incur the costs of the various alternative solutions to address the problem that arose, the project owners said that they could not waive the realization of the original plan that a part of the museum would also be built on the *purple area.* According to them, imposing an absolute ban on building in this area would require them to abandon the building plan for the museum at this site entirely, and this may even lead to them abandoning the whole project, in which they have already invested large amounts of money. The main reason for this depends upon the character of the intended plan for the museum building, which, it was alleged, does not allow the *purple area* to be excluded from the area of the building. The model of the museum, as planned, constitutes a harmonious planning creation of Architect Frank Gehry, which has a clear artistic character and style. Each component of this plan is integrated and consistent with the other components, as a part of one artistic and planning whole. Removing one component of the plan, which relates to building on the *purple area* is likely to cause real harm to the overall planning, and it will not achieve the purpose, especially since this component is the heart of the whole building. The project owners emphasized that Architect Gehry sees no possibility of changing the planning of the artistic building that he planned by removing the *purple area* from the area of the building. Removing the aforesaid building to another site outside the centre of the city will also not allow the museum planning to remain as it is, since this planning is consistent with and integrated into the special scenic and design characteristics of the city centre, and it cannot fit in architecturally and artistically anywhere else. The letter of Architect Gehry of 31 January 2007 was submitting for our inspection; in it he says that in his opinion it is not possible to make the proposed change to the building, since the *purple area* in relation to the building is the heart of the project from a symbolic, cultural and architectural perspective. He also added that any change in the site of the museum will require the building to be planned anew, and Frank Gehry will not be able to undertake this planning (appendix H of the response of the project owners to the order nisi). This professional opinion that the museum planning constitutes one artistic whole that cannot be changed or split by removing the *purple area* from the area of the plan is also supported by the opinion of Architect Ada Karmi of 29 January 2007, in which she reviews the possible ramifications of prohibiting building on this site of the museum building. She concludes in her opinion that in view of the work method of Architect Gehry, which is based upon an integrated approach of architecture and sculpture and there being a close relationship between all the components of the project, removing one central component from the overall planning by prohibiting building on the *purple

area* is likely to ruin the whole project, and it will require the whole museum building to be planned once again from the beginning. In the opinion of Architect Karmi, this position is strengthened in view of the planning that is intended for the *purple area,* which constitutes a unique characteristic of the building and is called by her *the lungs of the project.* Cancelling this part of the building that is situated on the *purple area* will deprive the project of its soul, according to her opinion (appendix F of the response of the project owners to the order nisi). A similar opinion is expressed in the opinion of Architect Amir Mann, a senior lecturer at the Technion Institute, of 19 June 2006 (appendix AF of the supplementary statement of the project owners).

 

25. The Al-Aqsa Corporation also rejected the additional proposed solution that was raised by the project owners with regard to building the *suspended floor* over the ground of the *purple area.*

 

In the absence of any agreement between the parties with regard to an agreed way of resolving the dispute, we need to give judgment in the petitions on their merits.

 

The pleadings of the parties

 

The main petition in HCJ 52/06

 

The pleading of the petitioner, the Al-Aqsa Corporation

 

26. In its amended petition the Al-Aqsa Corporation seeks to prohibit a violation and desecration of the Moslem cemetery, which is a holy site to Moslems, to prevent a trespass on the Mamilla cemetery and to prohibit any disturbance to the graves and any excavations in the area of the cemetery; in addition it petitions the court to order the cancellation of the transactions that transferred property rights in the compound to the project owners. We were also requested to cancel the permits to carry out works that were given to the project owners in the area of the museum. The petition is based on three main pleadings, which are all based on the premise that the compound has the sanctity of an ancient Moslem cemetery: one main pleading is based on the approach that the sanctity of the compound where the remains of graves have been found makes it totally impossible to desecrate it by carrying out building operations on the site. According to the petitioner, once ancient graves are found in the compound, it is a holy Moslem area, where any building operation or development is completely prohibited. The second main pleading concerns the legal invalidity of the registration proceedings and the grant of rights in the land to the project owners in view of the nature of the property that is the subject of the petition. The third main pleading addresses the violation of the basic rights of the Moslem community and the injury to their sensibilities, and claims that building in the museum compound is inconsistent with the principles required by the safeguarding of religious sites. The following are the details of the pleadings.

 

The sanctity of the site:

 

27. According to the petitioner, the Al-Aqsa Corporation, the area of the museum compound, because the remains of graves were discovered in the ground, is an integral part of the one of the most important and holy cemeteries for the Moslem community. This is a parcel that belongs to the Mamilla cemetery compound, which contains thousands of graves, and in which some of the most important Moslem leaders are buried. This position is supported by an opinion of the expert Dr Raad Fathi Jabrin of 28 December 2006 (appendix 3 of the amended petition). Therefore, when the graves were discovered a duty arose to declare the burial site a national conservation site and to refrain from carrying out any works on this site. The petitioner adds that the sanctity of the site continues even today, and the court should not accept the claim that the sanctity of the site was removed because of the reason that the burial site is, prima facie, *ruined and destroyed,* which is the only situation under Sharia law in which the sanctity of the site is removed. It was also claimed that building should not be permitted on the site by virtue of a Sharia ruling that was given in the 1960s allowing it, because, allegedly, the aforesaid ruling is defective, firstly for the formal reason that the Attorney-General or a representative of the Ministry of Religious Affairs or a representative of the trustees* committee for Waqf property were not summoned to attend the proceeding. It is also defective from a substantive viewpoint, because of the factual conflict that exists between the findings in that ruling, according to which the area was already *ruined and destroyed* in the 1960s and the fact that human bones have been found very recently on the site, which shows that the area does not satisfy the aforesaid definition. The petitioner also raises arguments against the validity of the ruling from the viewpoint of the integrity of the person who made the ruling, the Qadi Sheikh Tahar Hamad. Therefore, it argues that this ruling should be regarded as void ab initio, and it should not be regarded as a source of religious law that allows building on the site from the viewpoint of Sharia law. The petitioner also states that Qadi Ahmah Natur, the president of the Sharia Appeals Court, published on 21 June 1994 a judicial order that prohibited making a religious ruling allowing the removal of sanctity from a holy site, and from this it can be seen that the ruling that permitted building on the museum site in the past was made unlawfully, and that according to the legal position that applies today there is a religious prohibition against building on the site (appendix G of the amended petition).

 

28. In support of its claim that the museum compound is a sacred site, the petitioner submitted a series of religious rulings that support the approach that the sanctity of the cemetery is eternal and that it cannot be removed even with the passage of time. The petitioner also submitted religious rulings of the president of the Supreme Sharia Court of the Palestinian Authority of 9 December 2006, as well as opinions given by Dr Musa Albist, the dean of the Faculty for Islamic and Sharia Studies in Israel at Um al-Fahem; the Mufti of Jerusalem, Sheikh Hussein, of 10 December 2006; Prof. Hussam Aldin bin Musa Afana, a lecturer at Al-Quds University, of 9 February 2006. All of these expressed an opinion that an action other than the burial of the dead in the Mamilla cemetery compound is completely prohibited (appendices G-H of the amended petition). The petition attached an expert opinion of Dr Ahmad Kadan, a lecturer at Al-Qasami College, who expressed his opinion concerning the sanctity of the cemetery as Waqf property, and the prohibition against selling or exchanging the Waqf for another property or for money (appendix I of the amended petition). In view of all of the aforesaid, the petitioner claims that there is an absolute religious prohibition against carrying out works, development and building on the compound, moving the buried bones or carrying out any other action that violates the sanctity of the site.

 

29. The petitioner in its arguments emphasizes the importance of the principle of equality, and it claims that just as maximum protection is given to Jewish graves in Israel and around the world, so too a Moslem cemetery, which is the subject of the petition, should not be desecrated. It submitted the opinion of Dr Hassan Sanalla of 12 December 2006, which reviewed the extensive protection given to Jewish burial sites in Islamic countries, and the general protection extended to sites of a religious character in international law (appendix T of the amended petition).

 

30. On a factual level, the petitioner disputed the respondents* claims that building on the cemetery compound has already taken place in the past. According to the petitioner, the construction of the *Palace* Hotel was done outside the compound of the cemetery. In support of this position the petitioner submitted an expert opinion of Engineer Kahba Alaa, who challenged the findings of the respondents* expert, Dr Jack Neriah, and disputed his conclusions that previous building was carried out inside the cemetery compound (appendix Q of the amended petition).

 

The invalidity of the transfer of ownership of the land and the invalidity of the planning proceedings

 

31. The second main pleading of the Al-Aqsa Corporation addressed the transfer of the rights in the land at the museum compound to the project owners, and the proceeding of registering the rights in their name. According to it, the classification of the land as religious Waqf property does not allow the transfer of the rights in this land from a legal viewpoint, or the carrying out of registration procedures in the name of the recipient of the rights. Therefore it is not possible to allocate the land in the compound to the project owners in a valid legal transaction, nor is it possible to register the rights in the land in their names. According to the petitioner, the registration of the land in the name of the Custodian of Absentees* Property when the state was founded, the transfer of the ownership in the compound to the Development Authority, and thereafter the leasing of the rights in the land by the Israel Land Administration to the project owners are acts that are contrary to law, since they are inconsistent with the Absentees* Property Law, 5710-1950 (hereafter** the Absentees* Property Law). Moreover the planning proceedings relating to the approval of the museum plan no. 8030 are contrary to the Planning and Building Law, and it is argued that they conflict with government decisions relating to assets belonging to a religious trust. The petitioner points to a government decision of November 1961, which was given as a result of a recommendation of a committee that was established by the attorney-general at the time, Haim Cohn, which determined that absentees* property that is on holy sites should be managed by the Ministry of Religious Affairs and not by the Custodian of Absentees* Property (appendix O of the amended petition).

 

32. According to the petitioner, a distinction should be made within the framework of the question of absentees* property between sacred properties that are public buildings and sacred properties that are properties with religious sanctity, which cannot be defined as absentees* property. This distinction is based on the claim that property with religious sanctity does not belong to human beings but to God, and in such circumstances the owner cannot be *absent.* In the alternative it was argued that even if we assume that we are speaking of an absentee*s property, its very nature as a

sacred property does not allow its transfer to a third party, notwithstanding the absenteeism of its formal owner.

 

33. According to the petitioner, there were also several defects of a procedural nature with regard to the transfer of the rights in the property. No certificate was ever issued to confirm that the compound was absentees* property, contrary to what is stated in sections 30(a) and 30(b) of the Absentees* Property Law; there is no certificate that testifies to the sale of the property to the Development Authority at a price that is not less than the official value of the property, as required under section 19(a) of the law; and finally, according to the petitioner, the nature of the property requires its transfer to a board of trustees under section 29(a)(c) of the Absentee*s Property Law; alternatively, the petitioner says that even if a board of trustees is not appointed as required in that provision, the money from the sale of the property should be used for the same purposes for which the board of trustees may use the money, as set out in section 29(g) of the law, which is something that did not happen in this case.

 

34. In addition to attacking the proceedings that transferred the property rights in the property, the petitioner also attacks the planning and building proceedings that were carried out on the site, namely the change of the designation of the land, first to an area that was used as a car park, and subsequently to other purposes, which ignored the provisions of section 99 of the Planning and Building Law, which states that as a condition for approving a plan, there is a duty of consultation with the Minister of Religious Affairs where a holy site or a cemetery is concerned. This duty was not observed in this case, and it is therefore alleged that this is capable of invalidating the planning proceedings for the museum.

 

Violation of basic rights

 

35. The petitioner claims that the building of a museum on a cemetery compound, which is of historical, national and religious importance, seriously violates the dignity of the persons buried at the site, and at the same time it injures the sensibilities of the Moslem community in Israel, and as such it conflicts with the Basic Law: Human Dignity and Liberty. According to the petitioner*s approach, building on the compound, even if it is proper from the viewpoint of the property and planning procedures, constitutes in itself an injury to the dignity of the dead and the sensibilities of the Moslem community, for which the cemetery constitutes a historic symbol. It also involves a real injury to Islamic religious values. On this point the petitioner goes on to refer to the Protection of Holy Sites Law, 5727-1967 (hereafter** the Protection of Holy Sites Law), which lays down the principle that holy sites shall be protected from desecration and any other injury, and against anything that may violate the freedom of access of adherents of the religions to the sites that are holy to them or their sensibilities towards those sites (section 1). According to the petitioner, this provision rules out the possibility of any permit to carry out works on the compound that will lead to a desecration of graves and a violation of the sanctity of the cemetery. The petitioner adds that the issue of the building on the Mamilla cemetery compound is an issue that is not merely an Israeli matter, but it has ramifications throughout the whole Moslem world. As support for this, the petitioner attached an expert opinion of the journalist Mahmoud Abu-Ata (appendix W of the amended petition).

 

In view of these claims, the reliefs set about above are being sought.

 

The application of social organizations to join the petition

 

36. A number of social organizations that operate in various fields connected with relations between various sectors of Israeli society (hereafter** the social organizations) filed an application to join this proceeding as amici curiae in order to express their position on the questions concerning the building of the museum on the compound. On this application it was decided that the organizations* position would be presented to the court without their being formally joined as a party to the proceeding. The pleadings of the social organizations focus on the main issue in the petition, namely whether there is a legal duty to prohibit all building operations in the museum compound because of the discovery of the remains of ancient graves in a part of it, and whether it is necessary as a result to cancel the city building plans that were approved for the construction of the museum.

 

37. The position of the social organizations is that the plan to build the museum on the compound should be cancelled and works in the area should be prohibited. According to the approach of the organizations, the construction of the museum on a site where the remains of graves have been discovered constitutes a serious injury to the freedom of religion and the freedom of expression of the Arab public in Israel, and the building permit, even if it was not tainted by any other legal defect, is an extremely unreasonable act and should not be allowed. The organizations also emphasize in their pleadings the negative effects that the building of the museum on the planned site may have on the fabric of relations between the Jewish and Moslem communities in Israel, and the serious injury that may be caused to this relationship if the project goes ahead. According to their approach, even if there was no planning or legal defect in the building approval procedures, in view of the discovery of bones and graves in the compound and in view of the fact that the museum compound is a part of the historical site of the Mamilla cemetery, the building of the museum amounts to the lighting of a barrel of gunpowder among the Moslem public in Israel. This concern is strengthened in view of the location of the project in Jerusalem, a city that is already weighed down by a considerable burden of tension between the different religions and cultures.

 

38. In support of their position, the organizations submitted three expert opinions on their behalf. One opinion is that of Prof. Yehoshua Ben-Aryeh of 20 March 2007 (appendix AP/4 of the application of 10 April 2007 to join the petition) (hereafter** the joinder application), in which the expert analyzed the geographical and historical aspects of the area of the Mamilla cemetery. According to him, the area of the Mamilla cemetery constitutes one unit that cannot be divided, and contrary to the position of the experts on behalf of the project owners, no building was ever built on the aforesaid compound, and even the *Palace* Hotel is situated outside the borders of the cemetery. Prof. Ben-Aryeh confirms that human bones were also found even in the area on which the Palace Hotel was built, but in his opinion:

 

*If graves were discovered in the area on which the Palace Hotel was built, then the position is similar to the position regarding a considerable amount of other building in Jerusalem* where graves are discovered while building on a site that was not previously known to contain graves, and then a need arises to deal with the problem and resolve it**

 

For years, until the 1960s, the cemetery was preserved, but since then the integrity of the compound has been prejudiced by constructing the road that connected Agron Street to Hillel and Ben-Sira Streets, and by building the Agron House and Experimental School buildings, the building of the car park and now the planning of the museum building. Prof. Ben-Aryeh expressed opposition to the building of the museum on the area of the cemetery.

 

39. In addition to this position, the organizations attached the opinion of Prof. Shimon Shamir of 25 February 2007 (appendix AP/5 of the joinder application), in which he presents his opinion that the building of the museum on the compound under discussion is likely to lead to a serious eruption in Jewish-Arab relations, and this case will be exploited by extreme Islamic organizations to inflame passions.

 

40. An opinion of Mr Amir Cheshin of 2 March 2007, who acted as the Arab Affairs Advisor to the Mayor of Jerusalem in the years 1984-1994 was also filed. According to this opinion, the Moslem organizations in Israel have over the years expressed considerable concern with regard to the neglected state of the site of the Mamilla cemetery, and he described the outbursts that took place several times when works were carried out on the site of the cemetery, which revealed graves and bones. He gave expression to the special sensitivity involved in building in an area where the remains of graves have been discovered and to the concern that tensions between the Arab and Jewish sectors will become inflamed, to a point that presents a danger of a deterioration in relations both in Israel and outside it (appendix AP/6 of the joinder application).

 

The response of the respondents, the owners of the project

 

41. The owners of the project raise in their pleadings some preliminary arguments which, in their opinion, are sufficient in order to justify the dismissal of the petition in limine, even without considering it on its merits. The preliminary arguments mainly concern the considerable delay that took place, according to them, in the filing of the petition. According to their approach, this delay should be regarded as starting from the time of the change in the designation of the compound that is intended for the construction of the museum to an open public area, which occurred as long ago as the 1960s, and it continued during the paving of the road that passes through the compound, the building of the car park and the planning procedures took place for the construction of the museum. Throughout all these proceedings, no objections whatsoever were made on behalf of any party on the basis of a claim that the area concerned is a cemetery. Moreover, throughout all the planning stages for the museum, which continued for approximately five years, and before the final approval of the plan, the Al-Aqsa Corporation did not file any objection with regard to the construction of the museum. The considerable delay that characterizes the petition justifies its dismissal in limine.

Moreover it was argued that various aspects of the property and planning claims raised by the petitioner were prescribed a long time ago, and this precludes any consideration of these issues. In addition to all this, there are various claims of estoppel against the petitioner, which are strengthened in view of the reliance of the project owners on the legal position that was created without any opposition on the part of the petitioner, and in view of the considerable investments that have been made by them until now in planning the compound. It was also argued that the petition is tainted by a lack of integrity and an abuse of process, inter alia, by extremists in the Islamic Movement, who are using the subject of the petition for political goals. In support of this, the project owners presented articles and reports that reflect the involvement of the Islamic Movement (appendices AH-AL and appendix AO of the supplementary statement of the project owners; see also the expert opinion of Mr David Klein of 22 January 2006, which reviews the character and goals of the Islamic Movement * appendix AM of the supplementary statement).

 

42. On the merits of the petition, the project owners dispute the three main claims raised by the petitioner, the Al-Aqsa Corporation. With regard to the first main claim, which concerns the sanctity of the site, the project owners concede that, as of the present time, it has indeed been clarified that a part of the compound that is designated for the building of the museum was used in the past for burial. Notwithstanding, it was argued that for thirty years the compound that is the subject of the petition was used as a car park for cars, without any claim having been raised with regard to the existence of graves in this area. Moreover, before the car park was approved in the 1970s, infrastructure and paving works were carried out in the compound. These works show that the area has not been considered or regarded as a burial site for many years, and for decades the assumption of the public was that it was possible to carry out works and operations without any restriction. This position was supported by the opinion of the archaeologist Dr Alon Shavit of 13 February 2006 (appendix 2 of the application to attach expert opinions filed by the first and second respondents on 14 February 2006), and by his follow-up opinion of 18 June 2006 (appendix V of the supplementary statement of the respondents). In these opinions the expert describes the archaeological characteristics of the site, and he says that the area that is designated for building the museum has already been used several times in the past for various building and paving operations, and it has no external indications that identify it as a cemetery. The site is located at the edge of the Mamilla cemetery, and no burial has been carried out on it since the end of the nineteenth century. He deduces this from the absence of organic material on the site, such as textiles and wooden boards, which are found at sites where burials have been carried out during the twentieth century. He says that a large number of the graves are in a much neglected state, and some are completely empty. Because the compound is at the edge of the Mamilla cemetery, it has suffered from repeated destructive processes.

 

43. The respondents further argue that, in principle, not every cemetery is considered a holy site, as distinct from a place of worship, and therefore the sanctity of the site should be considered on a case by case basis. Moreover, Islamic religious law recognizes the possibility of moving human bones and building on graves at a site that has not been used for burial for a long time. According to Islamic religious law, it is possible to declare the burial site to be *Mundras,* which means that it is a *ruined and destroyed* site. Such a declaration allows the development of the site for various urban purposes. Support for this position can be found in the opinion of the archaeologist Meir Ben-Dov of 13 February 2006, which reviewed various occasions in the past when Moslem graves were moved to other sites without any objection (appendix 1 of the application to attach expert opinions filed by the project owners on 14 February 2006). The project owners also presented a large number of opinions and declarations by experts in Islamic religious law, which support this argument, and

they support the position that the religious Moslem argument that rules out any building on a site that was used for burial in all circumstances is not valid, and it is merely a pretext for justifying other unrelated motives that underlie the petitioner*s position. In this context, statements made by Taisir Al-Tamimi, a judge in the Palestinian Authority, are cited; these recognize the possibility of moving graves from one site to another (appendix N of the supplementary statement of the respondents). They also present the opinion of Dr Jack Neriah, an expert in Islamic studies, of 3 December 2006 (appendix AA of the supplementary statement of the respondents), in which he sets out the approach of the Islamic religion concerning the transience of cemeteries, and the possibility of moving them in order to promote public purposes, and he gives many examples of cases in which such acts of moving graves were actually carried out.

 

Among the examples in Israel of Moslem cemeteries where changes of use were made and graves were removed, he mentions the Bab-A-Zahara cemeteries near Saladin Street in Jerusalem, near the Flower Gate, where the Waqf building was built on the area of a cemetery, and another building was built in which a sewage pipe was laid. Later, shops and a lecture hall were also built on the site. He also mentions the cemetery in Kefar Kassem, from which sections were taken for a football pitch; the cemetery in Iksal, from which sections were taken for a road; a cemetery in Um Al-Fahem, in which an open shelter and a road were built; the cemetery in Jaljulia, on which a road and a shelter were built and where there is an area that is used as a parking area for heavy vehicles; and the Waqf Al-Istaklal cemetery in Haifa, where a permit was given to remove graves and bones and the area of the cemetery was leased out for building (cf. CC (Hf) 2289/81 Al Madi v. Trustees of Istaklal Waqf in Haifa (Magistrates Court case); HCJ 232/76 Shukri v. Sharia Court [1977] IsrSC 31(1) 413). Even in the Pardesia cemetery land belonging to a cemetery was expropriated to be used for residential purposes.

 

The respondents also attached the opinion of Prof. Aharon Layish, a expert in Middle East affairs and Islamic law, of 5 January 2006, which confirms the existence of cases in which the Islamic religion allows building on the site of a cemetery, even in cases where the area is not *ruined and destroyed* (Mundras), in order to realize public purposes (appendix P of the supplementary statement of the respondents). In addition to these opinions, they submitted an opinion of Dr Shemuel Berkovitz, an expert in the law relating to holy sites in Israel, of 6 January 2006 (appendix Q of the supplementary statement of the respondents). In this opinion Dr Berkovitz reviews the Islamic religious law and reaches the conclusion that the judicial order made by the president of the Sharia Appeals Court in 1994, according to which no building should be allowed on Waqf property in any situation, including where a cemetery is concerned, is not applicable in the circumstances of the case before us. He adds that the museum compound is not classified as a cemetery at all, in view of a final judgment of the Sharia Court in 1964, which is accompanied by additional incidents of building on the Mamilla cemetery area, such as the building of the Palace Hotel and the building of shops and residential buildings on the area. According to him, apart from these buildings that were actually built, there was a plan to build an Islamic university on the site of a well-known cemetery, but ultimately the plan was not realized. The project owners also submitted the opinion of a former Jordanian general, Mansour Abu-Rashid of the Jordanian Peace and Development Centre in Amman (translated by Professor Layish), which also reviews the Moslem law regarding the removal of graves or building above old graves, and it confirms the approach that this can be done when public needs so require (appendix R of the supplementary statement of the respondents). In addition to this opinion, the respondents submitted two opinions of Moslem professors, Dr Said Bouheraoua of the International Islamic University in Malaysia and Professor Hallaq of the Institute of Islamic Studies at McGill University in Montreal, Canada, which also support this position

(appendices S and T of the supplementary statement of the respondents). The respondents attached a letter of 20 September 2006 from Advocate Karaja from Jordan, which supports the position that the building of the museum on the site where remains of graves were found does not constitute a rare event, and he confirms that similar building, on the site of a cemetery, has taken place in Amman in Jordan (appendix Z of the supplementary statement of the respondents, and a further statement of his in appendix M of the respondents* response to the order nisi of 1 February 2007). The respondents submitted the judgment of the president of the Sharia Appeals Court in Jaffa, Qadi Sheikh Tahar Hamad, in 1964, in which building was permitted on the whole site of the Mamilla cemetery, as support for this opinion (appendix AD of the supplementary statement of the respondents). The respondents oppose the position of the petitioner according to which an area of a cemetery can be declared *ruined and destroyed* only when the buried bones have become dust. According to their approach, the *destruction* that is required for this purpose does not amount to the disappearance of any indication of a grave or human bones, and in the case before us, under Sharia law, the site under discussion constitutes, by its very nature, an area that is *ruined and destroyed.*

 

44. The respondents further argue that the amount of the area where the main remains of graves were found on the museum compound is limited to approximately only 12% of the whole area planned for the building, and that they proposed fitting and proportionate solutions for dealing with those remains, which do not involve any injury whatsoever to the dignity of the dead, and these solutions should be satisfactory.

 

45. With regard to the petitioner*s second main argument, the project owners reject the contention that the transfer of the property rights in the compound under discussion is tainted by illegality, or that it is inconsistent with the Absentees* Property Law and the requirements of the planning and building laws. According to them, the transfer of the compound to the Custodian of Absentees* Property and thereafter to the Development Authority, without any restriction or reservation, was valid and consistent with the law and case law of the courts. Therefore the rights that were transferred to them are also valid, and the planning proceedings for the area also involved no legal defect.

 

46. Finally the respondents dispute the petitioner*s position that the issue before us gives rise to a question of a constitutional character. In their opinion, the court should not recognize constitutional rights concerning the dignity of the dead, and from this viewpoint the building in accordance with the plan does not give rise to a question of violating a basic right. At most this case involves an injury to the sensibilities of the Moslem community, but addressing this injury requires the application of a different and more flexible balancing formula than the one applied under the limitations clause in the Basic Law: Human Dignity and Liberty, which applies where there is a violation of a basic right. Moreover, the balance that is required in this case should focus particularly on the violation of the constitutional property rights of the project owners, which will occur if building on the museum site is prohibited. According to their approach, the general interest in protecting the sensibilities of the public against injury is opposed by the general interest inherent in urban development and social advancement that the building of the museum will further, and of no less importance is the fact that it is opposed by the protection that should be given to the property right of the project owners in the compound, as a constitutional right that merits supreme protection under the Basic Law. It is precisely the violation of their property right that should be the

focus of the necessary constitutional balances, and it should be determined in view of the principles of the Basic Law.

 

47. Alternatively, the respondents argue that even if a constitutional right of human dignity for the dead should be recognized, even then this right is significantly restricted in scope in comparison to the rights of the living, and therefore the various solutions that were proposed by the project owners, and their willingness to invest a large sum of money in implementing them, reduce to a minimum the expected violation of the dignity of the dead, and the building should be permitted subject to these solutions. In view of the various possible solutions that were proposed, the injury to the rights of the dead in this case satisfies the conditions of the limitations clause and achieves a proportionate and proper balance, especially in view of the conflicting constitutional property right of the project owners.

 

48. The project owners placed great emphasis on the importance of the project of the Museum of Tolerance for Israel, for the city of Jerusalem and for the development of the city centre. In support of their position, the respondents attached an opinion of Architect Amir Mann, a senior lecturer at the Technion Institute, of 19 June 2006, in which he reviewed the purposes of the project, the importance of its location precisely in the centre of the city of Jerusalem, and the unique architectural contribution made by the designing of the museum by Architect Gehry (appendix AF of the supplementary statement of the respondents). They also attached the position of the actuary Ephraim Greenblatt of 29 November 2006 with regard to the economic contribution that is anticipated from the construction of the project to the Israeli economy (appendix AG of the supplementary statement of the respondents).

 

49. The project owners responded at length to the opinions of the experts on behalf of the social organizations both from historical, ethical and legal perspectives, as well as from a public perspective.

 

50. The respondents rejected the claim that there exists an attitude that discriminates between Jewish cemeteries and Moslem cemeteries. They produced figures according to which there are a considerable number of cases in Israel and abroad where buildings have been built and roads paved over Jewish cemeteries, while taking special measures to prevent harm to the graves (appendices C-H of the respondents* response of 7 May 2007, and the additional opinion of Dr Jack Neriah, appendix I of the response of 7 May 2007). Thus, for example, it was stated that the building of a wing of a hotel above an ancient Jewish cemetery in Tiberias was permitted, a road was paved in Tiberias over ancient Jewish graves, etc.. In the city of Hamburg in Germany, a commercial centre was built over an ancient Jewish cemetery.

 

51. The respondents in their pleadings asked the court to attach no weight or significance to the petitioner*s claims relating to a concern that the building of the museum on the site may result in acts of violence. According to them, from a public and legal perspective no weight should be

attached to threats of this kind with regard to possible violence on the part of extremist groups, and these should not be allowed to dictate the course of the law and the realities of life in Israeli society.

 

52. The respondents also dispute the likelihood and probability of an outbreak of violence as a result of the building of the museum from a factual perspective. They base their position on the opinion of Prof. Yosef Ginat, an expert in Middle East affairs, who says in his opinion that in view of the history of the building on the area of the Mamilla cemetery and other neglected Moslem cemeteries, and in view of the minimal interest shown by the Moslem public in Israel in the cemetery over the years, there is no real concern of any eruption of violence, contrary to the opinion of the experts that were brought by the social organizations. According to him, the Mamilla cemetery compound has no great importance among Israeli Arabs, and they do not regard it as an important religious or historical site as the petitioner claims, and the great neglect of the area of the Mamilla cemetery for many generations reflects the true position of the Moslem public with regard to this site. Second, the remains of the graves and the bones in the museum compound have no name or identification, so that no personal or family importance can be attached to them; third, it is a fact that all over Israel extensive use has been made by Arab citizens of the grounds of cemeteries for various purposes, and in view of the flexibility of Islamic religious law on this subject, there is no great likelihood that any special religious sensibility will develop with regard to building on the museum compound. According to his approach, there is no real religious motive nor any genuine and justifiable religious sensibility with regard to the construction of the museum building on the compound, and the opposition that has arisen and that is reflected in the petition derives from the political aspirations of the leaders of the Islamic Movement to create political footholds in West Jerusalem. Professor Ginat adds that yielding to the aforesaid threats or pressure on the part of the leaders of the Islamic Movement will encourage that movement and its leaders to take further violent action (the opinion was attached as appendix J of the respondents* response of 7 May 2007).

 

53. The opinion of Prof. Yehoshua Porat, a historian of the Middle East, of 25 April 2007, also denies the existence of a real interest of the Arab public in the matter of the building of the museum on the compound. The opinion focuses on an analysis of the characteristic of the leadership of the Islamic Movement, which acts deliberately to inflame the passions of the Arab public, inter alia by raising issues that concern the construction of building on apparently holy sites. This expert also emphasized that granting the petition may carry the moderate Arab public onto the side of the radical stream, whereas allowing the building to be built is likely to lead, at most, to negative responses that have a merely transient effect (the opinion was attached as appendix K of the response of 7 May 2007).

 

54. The project owners stated in summary of their pleadings that contrary to the claim of the social organizations according to which the position of the general public is, in essence, one that rejects the building of the museum on the compound, in truth the real position is otherwise, and that a large number of organizations, charities and public figures have expressed support for taking a balanced, flexible and realistic approach on this subject. A long list of spiritual and public figures from a wide spectrum of spheres and sectors have expressed support for the need to promote the museum project in the centre of Jerusalem (the list was attached as appendix L of the response of 7 May 2007).

 

This concludes the pleadings of the project owners.

 

The position of the state

 

55. The state agrees with the main position of the project owners. It agrees with their claim that the petition is tainted by a lengthy delay in filing it and it claims that the Custodian for Absentees* Property should have been joined as a respondent in the main petition, and these defects in themselves warrant the dismissal of the petition in limine. The state also claims that the petition should be denied on its merits. With regard to the first main argument, the state says that in Sharia law there is a significant dispute on the question of the removal of graves and building on a site where ancient graves are situated, and there is a religious law approach, which is supported by rulings of the Sharia Court in the past, that allows building on such compounds. Notwithstanding, even if we accept the premise alleged by the petitioner, according to which there is such a religious prohibition, even so it does not constitute a decisive consideration in this case. The law applicable in Israel on questions concerning the relationship between final planning procedures and the finding of the remains of graves in the ground that is the subject of the planning is civil law rather than religious law, and the applicable legal arrangements on the question of building on the land should be examined accordingly. For this reason the religious sanctity of the compound in itself is not decisive for the purpose of providing a ground for the intervention of this court.

 

56. The state requests that we also reject the second main pleading, according to which there were property law defects in the transfer of the rights in the property to the project owners. The state sets out in its response that the land under discussion in the petition was first registered in 1938 within the framework of a *first registration* as a *true Waqf* (i.e., a sacred trust on private land) in the ownership of the Director of the Moslem Waqf of Jerusalem. In view of the Absentees* Property Law, a property of the Waqf is an absentee*s property since the Director of Waqf property had become an absentee on the effective date. The property therefore passed, by virtue of the law, to the Custodian of Absentees* Property, when it was unencumbered by any restriction or limitation, and from him it was transferred to the Development Authority. The rights of the project owners in the land were lawfully granted to them by the Israel Land Administration.

 

57. In so far as the proceedings for the change of the use of the land are concerned, the state gives details of the planning procedures that were carried out on the land in the area of the compound, starting from the beginning of the 1960s, without any objection being heard from any parties in the Moslem community, or later from the petitioner. All the planning procedures on the compound throughout the years were carried out lawfully, without any objection based on a claim of the sanctity of the site as a cemetery.

 

58. The state adds that the petitioner*s attempt at this time to attack the change of the use of the land on the compound to an open public area, which took place as long ago as 1960, on the basis of the provision in section 99 of the Planning and Building Law, which requires consultation with the Minister of Religious Affairs before making the change of use as aforesaid, cannot succeed.

According to that provision, a district or local outline plan that relates to the preservation of a holy site or cemeteries does indeed require consultation with the Minister of Religious Affairs, but that law, which was enacted in 1965, had not come into force when the procedures for the change of the use of the land were carried out in 1960. Therefore this claim of the petitioner also has no merit.

 

59. The state also requests that we reject the petitioner*s third main pleading, which relates to the claim of the injury to the dignity of the dead involved in building on the museum compound. According to the state, in this case a balance should be struck between the value of protecting the dignity of the dead and the public interest that exists in increasing the momentum of development in the various parts of Israel. This is particularly relevant in view of the limited area of the state and the density of the population, and the fact that it has a history of thousands of years, which results in there being an abundance of ancient graves under the ground throughout Israel. The need to strike a balance between the protection of the dignity of the dead and providing a solution to the needs of developing and advancing a modern society exists in various parts of the world, and it is given a proper solution, which is also the case in Israel. In the opinion of the state, the solutions that were proposed by the project owners for dealing with the remains of the graves reflect a proper balance between giving proper protection to the value of the dignity of the dead in an area where the remains of graves have been found, on the one hand, and the necessity of development and building in the various parts of Israel, and especially in Jerusalem, on the other.

 

The position of the Antiquities Authority

 

60. The Antiquities Authority is also of the opinion that the petition should be denied, subject to imposing certain restrictions on the building operations that will protect the remains of the graves from harm. According to the Antiquities Authority, the action of removing graves from their original site is done as a matter of course in many cases, and despite the importance of the Mamilla cemetery as a site of antiquities, already in the Mandate period parts of the area of the cemetery were used for development purposes. In this context the authority pointed, inter alia, to the Palace Hotel compound, the car parks that were built on the museum compound, the construction of the Bet Agron building and even the building of the Experimental School that is situated to the west of the museum compound, as buildings that were constructed over the years on the area of the Mamilla cemetery, without any objection from any party. With regard to the position of the social organizations, the authority attached to its response of 7 May 2007 certain documents that prove, in its opinion, the existence of building plans on the area of the cemetery that were prepared with the approval of the Moslems themselves, as can be seen in correspondence from 1946. From this correspondence it can be seen that the question of building on the area of the cemetery was already determined in favour of building, and all that remained was a dispute as to the value of the area, and the conservation of the ancient pool on the site. The authority also pointed out that it has maps from the 1860s, as well as aerial photographs from 1927, which, despite some lack of clarity, show with a high degree of probability that the area of the Palace Hotel did indeed constitute a part of the area of the Mamilla cemetery.

 

The position of the respondent, the Moriah Corporation

 

61. The Moriah Corporation is a municipal corporation that is entirely owned by the Jerusalem Municipality and it is involved in the development of infrastructures and the paving of roads. It has been given the task of preparing the infrastructure for building the Museum of Tolerance. The Moriah Corporation agrees with the pleadings of the project owners and the state. Its basic position is that a balanced solution should be found between the need to protect the dignity of the dead by moving the graves to an alternative burial site, on the one hand, and furthering the interest of developing the city. It attached to its pleadings an opinion of Meir Ben-Dov of 14 January 2006 (appendix A of Moriah*s response to the application for an interim order of 24 January 2006), which reviewed the status of the compound and the need for removing the graves.

 

62. In response to the opinion of Professor Ben-Aryeh, according to which the area on which the Palace Hotel was built does not constitute a part of the area of the Mamilla cemetery, the Moriah Corporation submitted an opposing opinion on its behalf by Prof. Gideon Biger (which was filed as a statement on 6 May 2007). In this opinion, the expert supports the positions of Dr Berkovitz and Prof. Layish, according to which the compound of the Palace Hotel was indeed built on an area of the Mamilla cemetery. Prof. Biger distinguishes in his opinion between the formal borders of the Mamilla cemetery, as they were determined at the beginning of the Mandate period and which were affected by the network of roads in the neighbourhood, and the real area of the cemetery, which also extended to the Palace Hotel compound.

 

63. The Moriah Corporation responded to the claims of the social organizations that the building of the museum gave rise to a danger of agitation against an ideological, nationalistic and religious background. According to the Moriah Corporation, this claim should be rejected, since threats of violence should not have any effect on the judicial process and on the judicial discretion exercised in it. The Moriah Corporation disputes the actual claim that building on the compound may lead to violence. In support of this position, it attached the joint opinion of Prof. Uzi Arad, an expert in security and international relations, and Dr Shmuel Bar, an expert on the Middle East, Islam and the Arab world, of 3 May 2007, which examines the claims of violence that were raised (the opinion was attached to the statement of the Moriah Corporation of 6 May 2007). According to the opinion, on an ethical and public level, giving in to nationalist violence is an improper policy, which may lead to long-term negative consequences, including the interpretation of the granting of the petition as a victory for radical Islamic parties in the struggle over Jerusalem, pushing the moderate Islamic streams to the fringe by *rewarding* the radical streams that oppose them, and giving Moslems a *veto* over building throughout Israel wherever the remains of graves will be found, a dangerous tool that is likely to be used for political purposes. These experts are of the opinion that even from a practical viewpoint the concern of a violent outburst as a result of the denial of the petition is not a real concern, in view of the absence of an absolute prohibition in the Islamic religion against the building of cemeteries, and in view of the neglected state of the cemetery, which indicate the fact that there is no special religious sensitivity on this matter. In their opinion, the petition is of a political character, but since the issue of the cemetery does not lie at the heart of the political dispute, the chance of an outbreak of sectoral violence is smaller. According to them, past experience shows that precisely a lack of decisiveness on the part of the party under attack was what led to a worsening of violence, and they gave examples of this. In any case, a proper response and readiness on the part of the law enforcement authorities should contribute to preventing an outbreak of violence, if and in so far as any danger of this will arise.

 

The position of the respondents the Jerusalem Municipality and the Jerusalem Local Planning and Building Committee

 

64. The Jerusalem Municipality and the Local Committee agree with the main arguments of the project owners and the state. They emphasized in their pleadings that there was no defect in the planning and building procedures, and they discussed the special importance of the Museum of Tolerance project for the development of the centre of the city of Jerusalem as a part of the overall municipal planning, which is intended to renew and develop the capital as a cultural, spiritual and tourist centre and as a focus of attraction for visitors from Israel and all around the globe.

 

65. In response to the expert opinions that were attached to the position of the social organizations, the municipality and the local committee submitted an expert opinion from Mr Shalom Goldstein, a former political adviser to the Mayor of Jerusalem on East Jerusalem affairs and the Arab population during the years 1995-2004. In his opinion of 3 May 2007, Mr Goldstein challenges the position adopted in the opinion of Mr Amir Cheshin, his predecessor in the position. Mr Goldstein says in his opinion, inter alia, that during his term of office in the position he was not consulted on the question of the Mamilla cemetery, except on a few occasions, and he did not encounter any Arab objection from the Arab community on this subject. During the nine years that he held office, he was asked to reply, at most, to two or three requests from the director of the Moslem sacred trust in Jerusalem on the question of the cemetery. He says that to the best of his memory from his childhood, the museum compound was sometimes used for circus tents that came to put on performances in the city over the years, and the compound was also used for entertainment attractions on various occasions. In his opinion, the building of the museum on the compound should not be regarded as an event that will have an explosive character, and the warnings sounded against the building that can be seen from the petition are, in fact, a political ploy, which is motivated behind the scenes by Sheikh Raad Salah, who seeks by means of political and ideological steps to return the whole compound of the cemetery to the control of the Moslem Waqf.

 

66. So far we have discussed the pleadings of the parties in the main petition of the Al-Aqsa Corporation in HCJ 52/06.

 

Let us now turn to the details of the pleadings in the two accompanying petitions.

 

The accompanying petitions on the question of the jurisdiction of the Sharia Court to hear and decide the question of the building of the museum (HCJ 1331/06 and HCJ 1671/06)

 

The arguments of the parties in Aldajani*s petition (HCJ 1331/06)

 

67. The essence of the petition in HCJ 1331/06 is the demand of the petitioners Aldajani and others that the Israel Police enforce the temporary injunctions issued ex parte by the Sharia Court in Jerusalem on 2 February 2006 and 8 February 2006. According to these orders, the museum compound is a part of the Moslem Mamilla cemetery, and as such it is sacred Waqf property, whose affairs and management are in the sole jurisdiction of the Sharia Courts, which are subject to the supervision of the Qadi. In according with this assumption, the Sharia Court issued temporary orders that order the cessation of the carrying out of the works on the compound, and the removal of any possession, tool and person that have any connection with the carrying out of works in the compound from it, and the prevention of their coming to and entering the site.

 

According to the petition, these orders of the Sharia Court were not honoured by the bodies against whom the orders were directed, and the police did not carry out its duty to enforce these orders and thereby collaborated in the desecration of the site and the dignity of the dead who are buried there.

 

68. The state claimed in reply that the Sharia Court has no jurisdiction to hear a proceeding concerning the building of the Museum of Tolerance, and therefore the orders made by it were made without jurisdiction and they are consequently void. According to its argument, the Sharia Court relied on its power under article 52 of the Palestine Order in Council, 1922, and on the property being a Waqf, but in the circumstances of the case we are not dealing with a Waqf property, and in any case the proceeding that was filed in the Sharia Court does not deal with the creation of a Waqf or with its internal management, which are the matters with regard to which the Sharia Court was given sole jurisdiction in Waqf matters under the Palestine Order in Council.

 

Moreover the land of the compound was acquired by the Custodian of Absentees* Property under the Absentees* Property Law, and thereby it lost its status as Waqf. It was sold lawfully in 1992 to the Development Authority as a real estate property that had lost its status as a Waqf, and therefore the Sharia Court did not have the jurisdiction to hear the case of this property. It follows that the question of the building on the museum compound does not fall within the jurisdiction of the Sharia Court, and consequently by issuing orders it exceeded its authority. Moreover, the Sharia Court does not have jurisdiction to give positive orders to the organs of the state, including the police, and in this sense also the Sharia Court exceeded its authority.

 

The petition in HCJ 1671/06

 

The arguments of the parties

 

69. The project owners filed this petition against the Sharia Court and the Aldajani group, and they requested declaratory relief that the temporary orders issued by the Sharia Court are void, and also

that it should be prohibited from continuing to hear the proceeding concerning the building on the museum compound, since this matter falls outside the jurisdiction of the Sharia Court. According to them, article 52 of the Palestine Order in Council gives the Sharia Court jurisdiction to hear matters concerning the creation or management of a Waqf. But in this case the museum compound is not a Waqf, and therefore the aforesaid provision does not apply. When the cemetery sacred trust was acquired by the Custodian of Absentees* Property pursuant to the Absentees* Property Law, it lost its character as a sacred trust, and as a result the Sharia Court lost the jurisdiction over it. Second, even had the property not been transferred to the Custodian, its sanctity was removed by the Moslem authorities themselves, who gave approval to carry out building on the site in the past; the same is true of the decision of the president of the Sharia Appeals Court in 1964. Moreover, since the land was sold by the Custodian to the Development Authority pursuant to the Absentees* Property Law, it passed to the purchaser after it was released from any restriction, and therefore by virtue of this situation also the Sharia Court has no judicial jurisdiction over this property.

 

70. Beyond all of this, the project owners claim that the Sharia Court is prohibited from holding any hearing of the issue of the building of the Museum of tolerance, if only for the reason that the Supreme Court began to hear the main petition that was filed by the Al-Aqsa Corporation in HCJ 52/06 before the proceeding before the Sharia Court was initiated by the Aldajani group. The principle of comity between the various courts in Israel demands that where there is a parallel jurisdiction of two courts, and a judicial proceeding is begun in one of them, the other court will refrain from holding a parallel hearing on a proceeding concerning the same issue, if it is filed before it at a later date.

 

71. The Aldajani group respond to the arguments in the petition by saying that their application to the Sharia Court was made because of the fact that they have family members who are buried in the cemetery compound. According to them, the petitions should be denied because the project owners did not exhaust the proceedings, in that they applied in this petition to the High Court of Justice before the exhausted all of their claims concerning jurisdiction before the Sharia Court. On the merits of the question of the jurisdiction of the Sharia Court, they claim that irrespective of the change that occurred in the owners of the rights in the land, it is not possible to deprive the cemetery of its character as a sacred trust property, and therefore the jurisdiction of the Sharia Court remains valid and has existed all along and even today, after the property rights in the compound have passed to the project owners.

 

72. With regard to the claim concerning the duty of comity between the courts, the Aldajani group claim that the hearing of the petitions before the High Court of Justice should be stayed until a decision is made by the Sharia Court on the question of its jurisdiction. In addition to this it is argued that the project owners show a lack of integrity in violating the judicial orders made by the Sharia Court, and by filing a petition in the Supreme Court, which was intended to bring about the cancellation of the orders. The Aldajani group requested that the continuation of the hearing of the petitions under review in this proceeding should be stayed until the judicial proceeding before the Sharia Court has been exhausted.

 

Interim orders

 

73. On 22 February 2007 and 30 April 2007 interim orders were made by this court, which prohibited the Sharia Court from continuing to hold hearings in the proceedings that were filed before it in the matter of the building on the museum compound, until these petitions are decided.

 

Decision

 

74. The decision on the three related petitions will focus on the following main issues:

 

In the petitions in HCJ 1331/06 and HCJ 1671/06:

 

(a) The jurisdiction of the Sharia Court to hear and decide questions concerning the building of the museum on the compound that was allocated for this purpose;

 

In the petition in HCJ 52/06:

 

(b) Delay as a ground for dismissal in limine of the Al-Aqsa petition;

 

(c) The petitioners* claims concerning the invalidity of the property rights of the project owners in the land that is the subject of the dispute;

 

(d) The legal validity of the city building plans for building the museum against the background of constitutional questions concerning the presence of the remains of graves in a part of the compound, and the proper ways of resolving them.

 

The petitions in HCJ 1331/06 and HCJ 1671/06

 

The issue jurisdiction of the Sharia Court to heard questions concerning the building of the Museum of Tolerance

 

75. Article 52 of the Palestine Order in Council, 1922-1947, regulates the issue jurisdiction of the Sharia Court, and it provides, inter alia:

 

*52. Moslem religious courts

*

Moreover, they shall have* sole jurisdiction in matters of the creation of a Waqf or the internal management of a Waqf that was created for the benefit of Moslems before a Moslem religious court. A decision that is given by a court of the Qadi may be appealed before the Moslem Religious Appeals Court, and the decision of this court shall be final* [emphasis supplied].

 

76. The Palestine Order in Council gave the Sharia Courts sole jurisdiction to hear matters concerning the creation of a Waqf or its internal management, when the Waqf was created for the benefit of Moslems before a Moslem religious court.

 

77. In our case the Sharia Court does not have issue jurisdiction to hear the issue of the building of the Museum of Tolerance by virtue of the aforesaid provision.

 

78. First, as the state claims, it has not been proved at all that the condition for the existence of sole jurisdiction is satisfied, namely that the compound that is the subject of the dispute served as a sacred trust that was approved by a Moslem religious court, nor was the existence of a sacred trust deed proved. Second, the jurisdiction of the Sharia Court was limited to questions concerning the creation of the sacred trust and its internal management. The jurisdiction does not extend to questions concerning the ways of using the land, which fall within the issue jurisdiction of the civil courts of the state.

 

Third, the compound was registered in the name of the Director of the Moslem Waqf of Jerusalem, who was an *absentee,* and therefore the land in the compound was acquired by the Custodian of Absentees* Property and he was entitled to sell them to the Development Authority pursuant to the Absentees* Property Law (sections 2, 4 and 19 of the law). The doubts that originally arose with regard to the authority of the Custodian with regard to Waqf property were removed when the Absentees* Property Law (Amendment no. 3) (Release of Sacred Trust Property and the Use thereof), 5725-1965, was enacted; this clarifies, in section 4(a1) that the rights in a Waqf whose director is absent will pass to the Custodian, when they are free of any reservation, condition or restriction. The amendment to the law in section 4(a1), by virtue of the last part thereof, applies retroactively from 1948, and therefore it also applies to the property that is the subject of our case. In these circumstances, the Waqf properties lose their sacred trust character, and the Custodian is entitled to transfer them to the Development Authority as ordinary real estate properties.

 

When the land was acquired by the Custodian and it lost its character as a sacred trust, the jurisdiction of the Sharia Court to try cases concerning it was lost from that time onward. This court held in this regard:

 

 

*Thus both the language of section 4(a1)(1) of the law and the legislative history of the amendment show clearly that the purpose of the legislation was to give the Custodian of Absentees* Property full ownership of the sacred properties of absentees, whether they were made into a sacred trust for the benefit of a family or whether the property was made into a sacred trust for public purposes* According to the law, the sacred trusts were therefore acquired by the Custodian without any restrictions under the law or the conditions that were determined when the sacred trust was created or thereafter, and he was given *unencumbered* ownership of the property. The cancellation of all the restrictions, reservations and conditions retroactively is what deprived the sacred trust of its characteristics as a sacred trust, and in consequence, when it lost its character as a sacred trust, the Sharia Court automatically lost the jurisdiction to consider its internal management or to intervene therein* (HCJ 6452/96 Custodian of Absentees* Property v. Sharia Appeals Court [2001] IsrSC 55(4) 363, at pp. 371-372 [emphases supplied].

 

The rule in Custodian of Absentees* Property v. Sharia Appeals Court applies both to a family Waqf and to a public Waqf, whether the Waqf was created for general purposes or it was created for a religious purpose.

 

Fourth, the sale of the property by the Custodian to the Development Authority strengthens even more the severance of the property from its *past* as a Waqf property, and with this its severance from the scope of the jurisdiction of the Sharia Court. Section 19(a)(1) of the Absentees* Property Law provides that the Custodian is entitled to sell an acquired real estate property to the Development Authority, and according to section 28(c) of the law, when *the Custodian has sold an acquired property, the property that he sold is released and passes into the ownership of the buyer, whereas the consideration that the Custodian received becomes a property that is held**. From this we see that when the land was sold to the Development Authority, the land was released and passed into the full ownership of the Development Authority. The Development Authority is entitled to transfer property rights in the property to a third party, and it is clear that the Sharia Court has no issue jurisdiction over such a real estate property, which lost its original character as a Moslem Waqf already at the stage when it was acquired by the Custodian.

 

79. As can be seen from the reply of the state of 5 February 2007, parcel 158 of assessment block 30036, which is the compound that is the subject of this case, was registered since the founding of the state in the name of the Custodian of Absentees* Property, and the classification of the area since 1960 was defined as *land, an open public area.* Since it was acquired by the Custodian, the compound ceased to have the status of a Waqf. On 12 July 1992 a sale deed between the Custodian and the Development Authority was filed at the Jerusalem Land registry with regard to parcel 158. On 21 July 1992 the land was registered in the name of the Development Authority (respondents* exhibit 7, which was attached to the response of the state). The property ceased to serve as a Waqf

when it was acquired by the Custodian pursuant to the law, and it became regarded as a *released* property when it was sold to the Development Authority. It passed into its full ownership as an unencumbered real estate property, and the state was entitled to grant rights in it to the project owners. The character of the compound as a *Waqf* ceased to exist when the state was founded.

 

80. All of the aforesaid reasons lead to the conclusion that the conditions set out in article 52 of the Palestinian Order in Council are not satisfied in our case, and therefore the Sharia Court does not have issue jurisdiction to hear the dispute concerning the building of the museum on the compound. It also does not have parallel jurisdiction to hear this dispute by virtue of any other source of jurisdiction.

 

81. For the sake of completeness I will add that we cannot accept the argument of the Aldajani group that the project owners should have exhausted their claims with regard to the jurisdiction of the Sharia Court in the Sharia Court itself, before applying in the petition to this court, in order that it could decide the question of the jurisdiction, because of the duty to exhaust any alternative relief. It is a matter of first principles that the principle of exhausting the alternative relief does not apply where such a course of action is ineffective, and when the involvement of this court is required before the alternative relief is exhausted in order to prevent an injustice, and for general considerations of justice (HCJ 4976/02 Attorney-General v. Netanya Regional Rabbinical Court [2002] IsrSC 56(5) 345, at pp. 353-354; HCJ 115/89 Yarimi v. Rehovot Regional Rabbinical Court (unreported)). In this case there are cumulative reasons that justify not exhausting the question of the jurisdiction of the Rabbinical court before applying to this court. The considerable delay in filing the Aldajani claim before the Sharia Court, the lack of good faith in applying to the Sharia Court on a matter that was being heard in a proceeding that was pending before this court, and the damage that was caused to the project owners as a result are all exceptional circumstances that justify a departure from the rule of exhausting the alternative relief. In addition to this, and the most important reason of all, it is not possible to separate the questions concerning the jurisdiction of the Sharia Court, which is the subject of the ancillary petitions, from the central questions that arise in the main petition that was filed in this court, which seek to examine the legitimacy of the building on a compound where the remains of Moslem graves were found. The cumulative weight of these reasons justifies the dismissal of Aldajani*s claim concerning the failure to exhaust the alternative relief concerning the clarification of the issue jurisdiction of the Sharia Court.

 

82. It should be stated that the question of the jurisdiction race between the Sharia Court and this court does not arise in this context, since the question of the jurisdiction of the Sharia Court on Waqf matters relates in every case to a sole jurisdiction of the court in certain respects, and we are not dealing with any overlapping jurisdiction to the jurisdiction of the High Court of Justice in this regard; only if an overlapping jurisdiction were to exist would there arise a question of the application of the rules of the jurisdiction race between courts with parallel jurisdiction.

 

83. In view of these reasons, it is hereby declared that the Sharia Court has no issue jurisdiction to here the question of the building of the Museum of Tolerance on the compound that is the subject under dispute. It follows that the orders that were made by it on this issue are void ab initio, and it should refrain from hearing any matter relating to this issue, which falls outside its jurisdiction.

 

84. In view of the aforesaid, the petition of the project owners in HCJ 1671/06 should be granted and the order nisi that was made in it should become absolute. The petition of the Aldajani group in HCJ 1331/06 should accordingly be denied.

 

HCJ 52/06 * the Al-Aqsa Corporation petition

 

The preliminary argument that the petition should be denied * delay

 

85. The main (amended) petition of the Al-Aqsa Corporation seeks to bring about a result whereby all the acts that transferred the property rights in the museum compound to the project owners are cancelled, the building plans that have received final validity are cancelled, the permits given for carrying out the works on the compound are cancelled and all building works in this area are absolutely prohibited. At the outset of the deliberations, we should examine the claim of delay that was raised by the respondents as a preliminary claim, which, according to them, should lead if it is accepted to the dismissal of this petition in limine, even without examining the issues that it raises on their merits.

 

We shall address the claim of delay in this context.

 

The delay and its effect on the main issues in the petition and the reliefs sought therein

 

86. The petition of the Al-Aqsa Corporation is tainted by a considerable amount of delay. It was filed on 2 January 2006, a long time after the city building plan relating to the compound was approved by the planning authorities and published in Reshumot, and some time after the works on the area began. Does the delay justify the dismissal of the petitions in limine?

 

87. It is a rule that a claim of delay made against a petition for relief in the field of public law requires an examination of three elements: subjective delay, objective delay and the degree of harm to the rule of law, which may be caused if the petition is dismissed in limine as a result of the delay (AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel (unreported decision of 7 December 2006)). The objective and subjective delay are elements that are both required in order for a claim of delay to succeed. The aspect of the harm to the rule of law examines the nature of the petition on its merits and the relief requested in it and it seeks to balance between the element of the passage of time and the damage caused as a result to the litigants and the general public interest, on the one hand, and the strength of the public interest inherent in the relief sought in the petition on its merits and the degree of harm that may be caused to the rule of law if

the petition is dismissed in limine because of the delay without an objective decision on its merits. Where the expected harm to the rule of law by not deciding the petition is greater than the total damage caused by considering a petition that is tainted by delay, the petition will be considered on its merits despite the delay (Blue Island General Partnership v. Society for the Protection of Nature in Israel, ibid.; AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [2002] IsrSC 56(3) 673, at p. 679; CA 6805/99 Etz Chaim General Talmud Torah and Advanced Yeshivah in Jerusalem v. Jerusalem Local Planning and Building Committee [2003] IsrSC 57(5) 433, at pp. 448-449; HCJ 8378/96 Habish v. Minister of Religious Affairs [1997] IsrSC 51(1) 145, at p. 159; HCJ 2285/93 Nahum v. Mayor of Petah-Tikva [1994] IsrSC 48(5) 630, at p. 642; HCJ 170/87 Asulin v. Mayor of Kiryat Gat [1988] IsrSC 42(1) 678, at pp. 684-685).

 

88. The question when the court will choose to decide a petition on its merits and even to grant a relief that is sought despite the existence of an objective and subjective delay is a question of judicial discretion that depends upon a balance and is based upon concrete circumstances. This discretion is determined, on the one hand, by the extent of the elements of delay, which reflect a violation of the interest of parties who relied on a given factual position, which was created a long time before the petition was filed, and acted on it, and on the public interest and the judicial system, which seek to focus on judicial decisions in matters that are of current relevance; on the other hand, the court examines the harm to the principle of the rule of law, which reflects a public interest of paramount importance, that can be expected if the claim of delay is accepted, and the petition is dismissed in limine without a decision on the merits (AAA 8723/03 Herzliya Municipality v. Hof HaSharon Local Planning and Building Committee [2004] IsrSC 58(6) 728, at pp. 734-735; HCJ 5682/02 A v. Prime Minister [2003] IsrSC 57(3) 84, at pp. 90-92; HCJ 1135/04 Man, Nature and Law * Israel Environmental Protection Society v. Supporting Committee for National Outline Plan 31/A/18 [2005] IsrSC 59(4) 784, at p. 789).

 

From general principles to the specific case

 

Subjective delay

 

89. The subjective delay focuses on examining the actual conduct of the petitioner and the question whether his conduct indicates an implied waiver of his right to apply to the courts. The petition of the Al-Aqsa Corporation suffers from a serious subjective delay, both with regard to the plans concerning the museum that were first published in 2001, and in retrospect with regard to the fate of the compound, which began in the 1960s when it was classified as an open public area and subsequently when massive building works were carried out on it, inter alia by paving a road and constructing a multi-storey car park without any objection on the part of representatives of the Moslem community in Israel.

 

90. In our case, after the decision of the Israel Land Administration and the Jerusalem Municipality to allocate the compound to the museum, the Wiesenthal Center initiated plan 8030; the depositing

of the plan was published in Yalkut Pirsumim on 16 October 2001, and also in the Arabic media on 21 September 2001. In the notices that were published, the area under discussion was expressly described as *the area known as Independence Park and Cats Plaza* and the Moslem cemetery to the east.* The plan spoke expressly of a change of use of the area from an open public area and a road to a public building area designated for the museum and auditoria. Objections were filed against the plan, but there was no objection from the petitioner, nor was any other objection filed on the basis of the claim that it was a cemetery. Approval of the plan was published on 29 August 2002 (Yalkut Pirsumim 5107, at page 3909), and it was also published in the Al Quds newspaper on 26 June 2002.

 

91. After the approval of plan 8030, the detailed planning of the museum began, and at the same time the museum corporation began to employ various professionals for the purpose of preparing to carry out this large-scale project. Subsequently the museum corporation submitted an application for a building permit, which was considered by both the local and the district planning and building committees. The building permit was issued on 27 October 2004. All of these steps involved an investment of very great effort and money. On 2 May 2004, a cornerstone laying ceremony took place at which various public figures were present, including the architect Frank Gehry. The event was also reported in the Arabic media in Israel.

 

It was also claimed with regard to the subjective element of the delay that the parties whom the petitioner represents could have objected to the change of use of the compound from a cemetery area to an open public area a long time ago, when the change of the classification of the compound was considered in 1960, and subsequently when a multi-storey car park was planned on the site in 1979. But throughout all the decision points that occurred in the planning status of the area, as this compound gradually became more and more removed from its original classification as a part of the Mamilla cemetery, not even one objection was heard from the Moslem community, which was aware over the years of the planning status and the actual uses made of the area. Notwithstanding, for many decades the compound was used for clearly *secular* purposes: a road was paved to connect the two roads on either side of Independence Park, and dozens of cars parked in the car park that was built on it when they came to the centre of the city.

 

92. The facts that are set out above clearly show the existence of a subjective delay on the part of the Al-Aqsa Corporation and the parties whom it represented in challenging the planning on the compound, and it gave no real reason to explain this delay. Admittedly the discovery of the remains of graves and human bones on the compound occurred only a few months before the petition was filed, but this does not provide any answer to the claim of delay in view of the petitioner*s fundamental position, which is based on the long-standing sanctity of the compound; its claim that the museum was planned on a compound that constitutes an integral part of the Moslem Mamilla cemetery could have been raised by it at an appropriate time in the initial stages of the planning, irrespective of the finding of remains of graves during the excavations of the site.

 

93. In view of the aforesaid, the petition of the Al-Aqsa Corporation suffers from significant subjective delay, in view of the fact that it was only filed in January 2006.

 

The objective delay

 

94. The objective dimension of the delay is intended to examine the degree of change that has occurred in the factual position in the area as a result of the delay, and the extent of the harm to the interests of the parties concerned in view of the delay in filing the petition. The objective element of the delay examines its effect on various parties that may be harmed by it, after they developed a legitimate interest that should be taken into account (Blue Island General Partnership v. Society for the Protection of Nature in Israel, supra; HCJ 453/84 Iturit Communication Services Ltd v. Minister of Communications [1984] IsrSC 38(4) 617, at p. 621). The objective delay therefore examines the degree of change that has occurred in the position on the ground and the extent of the harm to the interests of the parties concerned in view of the delay in filing the petition.

 

95. In our case, over the years a significant change has occurred in the planning classification of the compound and the way in which it has been used for public purposes. Already at the beginning of the 1960s the compound was separated from the area of the Mamilla cemetery and it was defined as an open public area, and over the years a connecting road was paved on it and a multi-storey car park was built on it. The museum plans themselves took five years to be approved, and before them the property rights in the compound were transferred from the Israel Land Administration and the municipality to the project owners. From the viewpoint of the Jerusalem Municipality and the state, the promotion of the museum project is of special importance as a cultural-spiritual centre from a national and international perspective. It is also of great importance from a local municipal perspective, as a part of the overall planning that seeks to increase the development of the city centre. Cancellation of the museum plan on the compound is likely to cause serious harm to various important goals on a national and local level.

 

96. The objective delay in presenting the opposition to the planning of the compound has without doubt had a significant effect on the project owners. They have invested in purchasing the rights in the property, as well as a huge amount of money and considerable human resources in comprehensive and complex planning procedures. They have made extensive preparations for carrying out the building of a project that has a special character from conceptual, ethical, cultural, social and artistic perspectives. According to the project owners, until now approximately 15 million dollars have been invested in the project, and there is a concern that granting the petition will seriously undermine their ability to raise additional money for this purpose.

 

97. The reliance interest of the project owners and the public authorities in developing the museum has crystallized against a background of the reality in which the planning procedures and their approval progressed without any disturbance from the viewpoint of the proximity of the compound to the area of the cemetery. The fact that for decades there was no objection to the use of the compound for public purposes such as a car park, which were inconsistent with the area being an integral part of a cemetery, also contributed to this.

 

98. The objective delay in filing the petition is therefore satisfied both from the viewpoint of the major change in the factual position on the ground and from the viewpoint of the reliance interest of the parties who are involved in the planning procedures and the development of the compound, which has become a legitimate interest of considerable weight that merits consideration.

 

99. The petition of the Al-Aqsa Corporation therefore suffers from a very significant subjective and objective delay.

 

The violation of the rule of law

 

100. Alongside the existence of delay in filing the petition, we should examine whether dismissing it in limine without considering it on its merits is likely to result in serious harm to an important public interest that amounts to a violation of the rule of law, which may cause more damage than the damage that is likely to be caused to the parties and the general public interest by considering the petition that is tainted by delay:

 

*The effect of a delay, even if it exists in both its subjective and objective aspects, may be negated where the act that is the subject of the petition involves significant harm to the public interest and refraining from considering it may harm the basic principles of the rule of law* (Blue Island General Partnership v. Society for the Protection of Nature in Israel, supra, at para. 96).

 

101. This petition raises a question of a fundamental nature as to the relationship between a general public interest of development and building on land to further an important social and public purpose, on the one hand, and the protection of the value of the dignity of the dead and respect for concealed ancient burial sites that are discovered in the court of carrying out works in the area. It concerns questions of the protection of property rights of the individual in the land as opposed to the need to respect religious and traditional sensibilities; it addresses the relationship between the world of the past and the world of the present and future, and the relationship between the needs of the living and the needs of the dead; it concerns the need to balance important conflicting values of a constitutional character.

 

In these circumstances, the petition should not be dismissed in limine despite the delay, but it should be examined on its merits (cf. HCJ 4638/07 Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation (unreported decision of 29 October 2007), at para. 23 of the opinion of Justice Vogelman). We need to decide the question whether the furtherance of the museum project, despite the presence of the remains of graves in the *purple area,* is consistent with the rule of law or is likely to undermine it. A constitutional set of balances is required that will reconcile the historical, ethical and religious character of the site with the property rights that were bought by private interested parties, in view of building plans that were approved and a clear public interest in the

development of the area for an important public purpose of a national, international and local nature.

 

The importance of the aforesaid questions justifies the consideration of the petition on its merits, despite the considerable delay that preceded its filing. Notwithstanding, the existence of the delay may have ramifications on how the decision is made on the merits of the issues raised by the petition.

 

The legal validity of the proceedings for transferring the rights in the land in the museum compound

 

The property status of the land in the museum compound

 

102. The petitioner claims that the land in the museum compound is a part of the Mamilla cemetery and it belongs to the Moslem Waqf. As such, it was not possible to transfer rights in it to others, and therefore the project owners have no valid property rights with regard to it.

 

103. The plaintiff*s claims with regard to the property status of the land can be divided into two main arguments: first it is argued that the original acquisition of the ownership in the sacred trust property by the Custodian of Absentees* Property was unlawful. An internal distinction should be made between a public religious trust and a public social trust. Whereas in the case of the latter type of trust such an acquisition is possible, in the case of a religious trust no such acquisition is possible. Second, it was argued that even in from a viewpoint of legal principle it was possible to give the ownership of the land to the Custodian of Absentees* Property, the constitutive conditions required for such an acquisition were not satisfied, and for that reason the ownership of the compound did not satisfy the conditions of the law, and therefore the rights of the project owners in the land should also not be recognized.

 

The status of a sacred trust in Israeli law and the possibility of acquisition of sacred trust property by the Custodian of Absentees* Property

 

On the nature of the institution of the Waqf

 

104. As can be seen from the response of the state of 5 February 2007, the land under discussion in the petition was originally a part of the Mamilla Cemetery. The land of the cemetery was first registered in 1938 within the framework of a *first registration* as a *true Waqf* (i.e., a sacred trust of private land), in the ownership of the Director of the Moslem Waqf of Jerusalem, a body

that constituted an organ of the Supreme Moslem Council (M. Duchan, Land Law in the State of Israel (second edition, 1953), at p. 72); a historical land extract was attached as respondents* exhibit 1 of the state*s response).

 

105. The institution of the Waqf (sacred trust) is similar in essence to the institution of a trust in civil law. The body that manages the Waqf acts in practice as a trustee, who manages the property for the beneficiary or for another purpose. In Islamic law there are two types of Waqf: a family Waqf, in which the beneficiaries of the sacred trust are members of the family (waqf dhuri), and a public Waqf, in which the beneficiary of the trust is the public as a whole (waqf khairi) (S.D. Goitein, Islamic Law in the State of Israel (1958), at p. 162). It is possible to classify the institution of Waqf in accordance with its various purposes, such as a waqf for religious purposes, for cultural purposes, for charitable purposes and for public welfare purposes (Duchan, Land Law in the State of Israel, at p. 63). Applying the institution of waqf to a property de facto precludes its transferability, and it makes it necessary to manage it solely for the purpose of the sacred trust (Goitein, Islamic Law in the State of Israel, at p. 170; H. Sandberg, Land Title Settlement in Eretz-Israel and the State of Israel (2000)).

 

The Custodian of Absentees* Property

 

106. The Absentees* Property Law regulates the acquisition of absentees* property by the Custodian (section 4). The law defines who is an *absentee* for this purpose (section 1(b) of the law). In a situation where the owners of managers of the property are absent, the property becomes absentees* property and the ownership thereof passes to the Custodian.

 

107. Until 1965 there was uncertainty with regard to the application of the Absentees* Property Law to waqf property from the viewpoint of their acquisition by the Custodian in the event that their manager was absent. In the past an opinion was expressed in this court that, contrary to other absentees* property, when a trustee of a waqf property was absent, the Custodian received authority to manage the waqf property, as opposed to the full ownership of the property.  As Justice Sussman said: *It is not the waqf property or the rights of the beneficiaries that became, when Mahmud left the country, a property that was acquired by the Custodian, but only the powers of the absent mutawalli (trustee) are what passed to the Custodian** (HCJ 69/55 Boulos v. Minister of Development [1956] IsrSC 10 673). This approach was incorporated in the government decision of 1961 (appendix O of the amended petition), according to which the responsibility for managing waqf property that belonged to absentees was given to the Ministry of Religious Affairs and not to the Custodian of Absentees* Property.

 

108.  But in 1965 the legislature addressed the uncertainty that existed on the question of waqf properties of absentees, and it amended the law by adding section 4(a1) of the Absentees* Property Law, which provides:

 

*If a certain property is a sacred trust under any law, the ownership thereof shall be acquired by the Custodian, when it is unencumbered by any reservations, condition or restriction of the kind provided in any law or in any document concerning the sacred trust or thereunder, whether they were determined before or after the acquisition, if the owner of the property, or the person who has possession or the right of management of the property, or the beneficiary of the sacred trust are absent; the acquisition is from 10 Kislev 5709 (12 December 1948) or from the date on which one of these became absent, whichever is the later date* (emphases supplied).

 

This amendment to the law was intended to clarify the legal position following Boulos v. Minister of Development, and also to reflect the original position of the legislature on this matter. It was explained in the explanatory notes to the draft law as follows: *The proposed law is intended to dispel doubts that arise following the judgment in HCJ 69/55* and to reinstate the original intention of the legislature whereby the Custodian acquires full ownership of a waqf property when its mutawalli (trustee) is absent* (Draft Laws 629 (5725) 48).

 

109. When the law was amended in 1965, no doubt remained that a waqf property whose manager was absent was acquired in its entirety by the Custodian, and that the law was not speaking merely of his acquiring a right to manage the Waqf. The full ownership of the property passes to the Custodian when it is unencumbered by any other right, and this means that its characteristics as a waqf are removed from the property, and it loses this special character. The application of the amending law was retroactive to 1948, and therefore this amendment applies and extends also to the property that is the subject of this petition.

 

110. The character of the property right acquired by the Custodian in a sacred trust property whose manager is absent was discussed by the court in Custodian of Absentees* Property v. Sharia Appeals Court, which was cited above in another context, where the court held (per Justice Beinisch), inter alia, that the acquisition of a waqf property of an absentee by the Custodian deprives it of its character as a waqf, irrespective of the nature or purposes of the sacred trust:

 

*Thus we see that both the language of section 4(a1)(1) of the law and the legislative history of the amendment show clearly that the purpose of the legislation was to give the Custodian of Absentees* Property full ownership of the sacred trust properties of absentees, whether they were consecrated for the benefit of a family, or whether the properties were consecrated for public purposes. Both from the wording of the aforesaid section 4(a1)(1) and from the explanatory notes to the draft law, as cited above, it can be clearly seen that the legislature ruled out the possibility of intervening in the management of the properties that were sacred trust properties before they were acquired by the Custodian, and also the possibility of transferring them from the Custodian, and it left the authority in this matter to the Custodian himself. To this end it was also provided in the law that the acquisition of the sacred trust properties by the Custodian was retroactive, from 10 Kislev 5709, 12 December 1948, or from the date on which the owner of the property, the person with the right of management or the beneficiary became absent, according to the latest of these dates. According to the law the sacred trusts were therefore acquired by the Custodian without any restrictions under the law, or conditions that were stipulated at the time of creating the sacred trust or thereafter, and the *unencumbered* ownership of the property was delivered into his possession. The revocation of all

the restrictions, reservations and conditions retroactively is what deprived the sacred trust of its characteristics as a sacred trust** (pages 371-372 of the judgment) (emphases not in the original).

 

This decision did indeed state clearly that no distinction should be made between the types of sacred trust or their purposes with regard to the rule in legislation that every sacred trust property, irrespective of its character and purposes, loses its character as a sacred trust when it is declared to be the property of an absentee, and it is acquired by the Custodian. Therefore there is no basis for making a distinction between the various types of sacred trust, and there is no basis for giving a limited interpretation to the law, as argued by the plaintiff, which is inconsistent with its spirit and purpose.

 

111. A claim that runs like a golden thread through the petitioner*s position is that we are dealing with a sacred property, and this fact inherently rules out the possibility of its being absentees* property. This is based on the outlook that God is the owner of a sacred property, and by definition such an Owner cannot be absent. This approach returns us to the distinction between a religious trust and other public trusts, a distinction which was not properly supported in the petition. But even if there were such a distinction, it would be insufficient to change the conclusion that the ownership of the land in the compound was acquired in its entirety by the Custodian by virtue of law. First, there is a doubt as to the sanctity of the area of the cemetery, because of the Sharia religious ruling of 1964 that removed this sanctity; second, over the years building was de facto carried out in the museum compound, a road was laid, and a car park was built and was used by the public in the city for many years. The de facto use made of the compound throughout a long period is inconsistent with the sanctity of the site; third, even if there were a recognized distinction between a religious and public trust, and even if the area of the cemetery were still recognized as a sacred area from a religious viewpoint, the law that governs the question of the acquisition of the rights in the compound is secular law and not religious law. When the legislature provided in the Absentees* Property Law that any sacred trust that satisfies the condition of absenteeism will be acquired by the Custodian when it is free of any reservation, condition or restriction, this also applies to a sacred trust that is defined as a sacred property in accordance with the relevant religious concepts.

 

112.   In view of the aforesaid, the petitioner*s claims concerning the Custodian*s lack of capacity to acquire full ownership of the land in the compound should be rejected.

 

The procedures that transferred the ownership of the land in the compound

 

113. The petitioner claims that even if originally it was possible for the Custodian to acquire rights in the compound, the actual transfer of the rights was done in contravention of the provisions of the law, and therefore the acquisition should be cancelled.

 

114. First, the petitioner claims that when the sacred trust was acquired by the Custodian, he was able to release it solely to a board of trustees, as stated in section 29A of the law, which provides:

 

*29A. Release of a sacred trust property

(a) If the Custodian releases a sacred trust property that was acquired by him and that was put in trust for the benefit of the family members of the creator of the trust or the members of another family and the beneficiaries are still alive, he may transfer the ownership thereof to them; if he releases a sacred trust property that he acquired which was not put in trust as aforesaid, he may transfer the ownership thereof to a board of trustees that is appointed under sections 29B or 29H.

(b) A property that is transferred as aforesaid shall be unencumbered by any reservation, condition or restrictions of the kind that were provided in any law or in any document concerning the sacred trust or pursuant thereto.

(c) A sacred trust property, for the purpose of this section and for the purpose of sections 29B to 29H, means a Moslem waqf property that is land that was lawfully made a sacred trust.*

 

This claim of the petitioner is not consistent with the express wording of this provision of statute. Admittedly, section 29(a) provides that for a sacred trust that is not a family trust, the Custodian may transfer it to a board of trustees. But we should take note of two cumulative conditions that are provided in the law: first, the law uses the word *may* and not *should,* and therefore the Custodian is not precluded from deciding not to release the aforesaid property but to sell it. In this regard the provisions of section 28 of the Absentees* Property Law are important. These provide:

 

*28. Release of acquired properties

(a) The Custodian may, at his sole discretion, but after taking into account the provisions of section 29, release an acquired property, in a certificate signed by him; and when he has done so, that property shall cease to be absentees* property, and any right that anyone had in that property before it was acquired by the Custodian shall return to that person or to whosoever shall replace him.

(b) The Custodian may make a condition with someone who requested that he exercise his power under subsection (a) that, when he gives a certificate as aforesaid, another property will become a held property. If the person agrees to the condition and the certificate is given as aforesaid, the other property becomes a held property.

(c) If the Custodian sells an acquired property, the property that is sold becomes a released property and passes into the ownership of the purchaser, whereas the consideration received by the Custodian becomes a held property; if the acquired property is a charge that is cancellable, and the Custodian cancels it for consideration, or a right that can be waived, and the Custodian waived it for consideration, the consideration becomes a held property at the time of the cancellation or the waiver, all of which as applicable.*

 

By virtue of this provision the Custodian may therefore release the property or sell it, at his discretion.

 

115. Second, even if the Custodian wishes to transfer the property to a board of trustees as aforesaid, the law requires him to transfer ownership to a board of trustees that is appointed under section 29B or section 29H of the law. These provisions of statute regulate the establishment of boards of trustees by the government as follows:

 

*29B. Board of trustees

The government shall appoint, by means of a notice in Reshumot, boards of trustees for the area of each of the following local authorities: Tel-Aviv-Jaffa, Acre, Ramla, Nazareth, Lod, Shefaram, Haifa.

The boards of trustees shall manage the sacred trust properties within the jurisdiction of the authority, which have been released and transferred to them under section 29A.*

 

*29H. Additional boards of trustees

The government shall determine, as necessary, in a notice in Reshumot, additional towns in which boards of trustees shall be established.*

 

A positive action of the government is therefore required to establish a board of trustees in the area of the relevant local authority. The city of Jerusalem is not included among the local authorities in whose jurisdiction boards of trustees will be established under section 29B, and the government has not decided, within the framework of its authority under section 29H, that a board of trustees will be established in Jerusalem. It follows that no such board has been established in Jerusalem. Consequently, even if the Custodian had wanted to release the property and transfer it to a board of trustees, this could not be done, since the conditions of the law regarding the appointment of a board of trustees by the government in Jerusalem have not been satisfied. In this regard, we should emphasize the difference between boards of trustees for sacred trusts that operated here during the Mandate period, which also include the board that managed the Mamilla cemetery compound until the War of Independence erupted, and the boards of trustees under the Absentees* Property Law. Whereas the former were organizations of the Supreme Moslem Council, the latter are boards that are set up by statute, and they an unrelated and unconnected to the bodies that managed the sacred trusts before the War of Independence.

 

116. In the alternative, the petitioner argues that even if the Custodian was entitled to sell the real estate property in the compound, and not to release it to a board of trustees, the same restrictions that apply to the board of trustees with regard to a sale of the property should also apply to him. This argument should also be rejected.

 

117. First, the petitioner did not present any basis for its position, which limits the powers of the Custodian in a manner that is contrary to the express language and intention of the legislature. It can be clearly seen from the language of the law that while certain restrictions were imposed on a board of trustees, such as with regard to the transfer of land where there is a mosque (section 29C of the law), no similar restrictions were imposed on the Custodian. The aforesaid distinction is not accidental, and it can be explained against the background of the legislative history, which indicates a broadening of the powers of the Custodian and a narrowing of the restrictions upon properties that have been acquired by him, including sacred trust properties.

 

118. Second, even if there was any merit in the interpretation proposed by the petitioner, the relevant restriction for our purposes with regard to the board of trustees would still relate solely to mosques and not to cemeteries. The petitioner was unsuccessful in showing how the restriction that governs a board of trustees with regard to the transfer of land on which there is a mosque can affect out case, in which there is no mosque. When the legislature narrowed the restriction that it imposed on the board of trustees solely to land on which there is a mosque, the significance of this is that it permitted the transfer of other land, even if they were in the past characterized by religious consecration. This issue was brought before this court in the past, and it approved the acquisition by the Custodian of an area of a cemetery, which was a sacred trust property, and its sale to the Development Authority (CA 415/89 Darwish v. Custodian of Absentees* Property [1993] IsrSC 47(5) 521, at pp. 522-523 (per Justice Goldberg).

 

119. The petitioner further argues that the lack of a certificate of absenteeism for the property under section 30(b) of the Custodian of Absentees* Property Law is an impropriety. There is no basis for accepting this claim. First, a certificate of absenteeism of 2 February 1966 was presented in the state*s response (appendix respondent/2 of the state*s response of 5 February 2007). On 16 March 1966 a letter was received at the offices of the Jerusalem Land Registry from the Custodian; this said, inter alia, that a registration extract was attached with regard to the parcel registered in the name of Mamur Al Awaqf Al Islamia, together with a certificate under section 30(b) of the law, and an application to register the parcel in the name of the Custodian, in such a way that he would replace the previous registered owner (respondent*s exhibit 3). The land was indeed registered in the name of the Custodian on 21 March 1966.

 

Moreover, even if such a certificate did not exist, this would not be capable of preventing the aforesaid property from being absentees* property. The requirement for a certificate of absenteeism for the property under section 30(b) of the law has merely probative significance, as can be seen from the title of the section *Rules of evidence,* and from its express content, which merely provides a probative presumption:

 

*(b) If the Custodian confirms in writing that a certain property is absentees* property, the property shall be deemed to be absentees* property as long as the contrary is not proved* (see also Darwish v. Custodian of Absentees* Property, at para. 6).

 

120. On the merits of the matter, there is no real dispute with regard to the *absenteeism* of the *Mamur Al Awaqf Al Islamia* organization, which managed the cemetery compound until the founding of the state. This organization, as described in the state*s response, was an organ of the Supreme Moslem Council. The aforesaid Supreme Council was established by meeting of Muftis, Ulema and Moslem notables in 1921, and was recognized by the British Mandate authorities (the order concerning the establishment of the council was attached as respondent*s exhibit 4 to the state*s response). The head of the council was the Mufti of Jerusalem, Hajj Amin Al-Husayni (Y. Porat, The Growth of the Palestinian Arab National Movement, 1918-1929 (1971).

 

One of the main functions of the Supreme Council was to establish and supervise sacred trust committees. The *Mamur Al Awaqf Al Islamia* is therefore clearly one of the organs of the Supreme Moslem Council.

 

In 1961 the director-general of the Ministry of Religious Affairs declared before the Supreme Court that when the War of Independence erupted, *also the members of the Supreme Moslem Council, the members of the sacred trust committees affiliated with the Council** left the country (HCJ 282/61 El-Saruji v. Minister of Religious Affairs [1963] IsrSC 17 188, at p. 191; IsrSJ 5 14). This declaration was accepted by the Supreme Court in that case as *a faithful description of the position that was created as a result of the war* (ibid.). The Supreme Court held that the Supreme Moslem Council was an absentee (Darwish v. Custodian of Absentees* Property, at para. 7).

 

121. The arguments of the petition concerning the impropriety of the acquisition of the compound by the Custodian of Absentees* Property should therefore be rejected.

 

Change of the use of the land, the sale to the Development Authority, and the planning and building proceedings

 

The sale to the Development Authority

 

122. The Mamilla cemetery compound was registered in 1938 as a large parcel with an area of more than 134 dunams (parcel 1 of tax assessment block 30036). In 1976 the parcel underwent reparcellation, and this led to the creation, inter alia, of parcel 158 of tax assessment block 30036 in the centre of the city of Jerusalem. The Independence Park car park is situated on this parcel, and this is the compound where the construction of the museum is intended to take place. Parcel 158 was registered in its entirety in the name of the Custodian of Absentees* Property since the founding of the state, and the area was classified as an open public area in 1960. On 12 July 1992 a sale deed was filed with the Land Registrar; according to this, parcel 158 was sold by the Custodian

to the Development Authority, and the latter was registered as the owner of the land in its entirety on 21 July 1992 (response of the state of 5 February 2007).

 

The planning procedures in the area

 

123. In 1960 city building plan no. 856 came into effect; this defined the borders of the Mamilla cemetery. The borders of the cemetery did not include the museum compound. This compound was defined on that plan as an *open public area.* In 1979 city building plan 2009 came into effect; this designated the compound as an area for an underground public car park. In 1990 plan 1880A came into effect; this was intended to demarcate a public road in Independence Park, which is today known as Menasseh ben-Israel Street; this traverses the park and links Hillel Street to Agron Street. On 7 November 2000 plan 4740 came into effect. The plan designated a part of the compound for building two buildings on top of the existing public underground car park; on 13 September 2002 plan 8030 came into force on the compound; this relates to the Museum of Tolerance, which is going to cover an area of 12 dunams.

 

124.  Details of the planning procedures on the museum compound from 1960 onward show that for almost fifty years the compound has not been a part of the cemetery, both in the normative sense and in the practical sense, and it was used for various public purposes. It was classified as an open public area and a road, an underground car park, two buildings on top of the car park, and finally the Museum of Tolerance were planned for it. During all those years no one raised any claim, on even one occasion, that the planning procedures violated the sanctity of the site, or that they were contrary to law as a result of the historical and religious uniqueness of the site.

 

125. There is also no basis to the petitioner*s claim that there was a defect in the change of the use of the land from a cemetery to an open public area in view of section 99 of the Planning and Building Law. This section provides that *A provision in a district or local outline plan concerning the preservation of a holy site or cemeteries shall be made after consulting with the Ministry of Religious Affairs.* The petition claims that no such consulting took place before the change of the use of the compound in plan 856 in 1960 from a cemetery to an open public area.

 

The answer to this claim, beyond the considerable delay in raising it, is that when this plan was approved, the Planning and Building Law, including section 99, had not yet been enacted, and there is no similar provision in the City Building Ordinance, 1936, which preceded it.

 

The petitioner also did not indicate any other defect in the planning procedures that is capable of invalidating the planning designation of the area and the manner in which it was used de facto for approximately five decades.

 

126. There was therefore no defect in the acquisition of the land by the Custodian, its loss of its character as a waqf, its transfer to the Development Authority unencumbered by any restriction or reservation, and the transfer of the property rights therein to the project owners. There is also no defect in the planning procedures that were carried out with regard to the area over the years, including the planning procedures that are relevant to the construction of the museum.

 

127. In view of the aforesaid, the petitioner has not proved the existence of any defect in the property and planning procedures relating to the compound that is the subject of the petition, and therefore this main claim should be denied.

 

The legal validity of the city building plan for building the museum against the background of the claim concerning the constitutional violation of the cemetery and the dignity of the dead

 

128. In the amended petition, the Al-Aqsa Corporation claims that the city building plan for the construction of the museum is invalid because it violates the constitutional right to protect the dignity of the dead, and because of disproportionately violates the sensibilities of members of the Moslem community. It requested the cancellation of the plan and the cancellation of the permits that were given for the works on the compound, and it requests orders that will prevent a trespass on the Moslem cemetery in the compound that is planned for the museum and that will prevent its desecration.

 

The petitioner*s arguments in this regard can be divided into two main claims: one is the prohibition of building on the sites of graves because it involves a violation of the dignity of the dead. This violation conflicts with a constitutional basic right, which requires the dignity of the dead to be preserved as a part of human dignity, which is enshrined in the Basic Law: Human Dignity and Liberty. The other is that building on the cemetery compound involves a serious injury to the sensibilities of the Moslem public, and therefore such building is disproportionate and justifies judicial intervention in order to cancel it.

 

129. As I set out above, the project owners claim in reply that a constitutional right of dignity for the dead should not be recognized, and the scope of constitutional protection of dignity is limited to living human beings only. Alternatively they argue that the strength of the constitutional right of dignity for the dead, even if it should be recognized, does not have an equal status to the dignity given to living human beings, and it is of much smaller scope and weight. With regard to the injury to sensibilities, their position is that even if such an injury exists, it should be balanced against the property rights that they acquired in the compound and against the general public importance involved in the construction of the Museum of Tolerance from the viewpoint of its contribution to the public in Israel, and from the viewpoint of its important weight in developing the centre of the city of Jerusalem.

 

130. A city building plan is an act with a recognized normative value and it has the status of legislation (CA 3213/97 Nakar v. Herzliya Local Planning and Building Committee [1999] IsrSC 53(4) 625, at p. 634; CA 9355/02 State of Israel v. Rashid [2004] IsrSC 58(4) 406, at p. 416; CA 119/86 Kanei Batim Ltd v. Netanya Local Planning and Building Committee [1992] IsrSC 46(5) 727). Such an act should be consistent with constitutional principles in the law. Provisions in a plan that conflict with constitutional basic rights may be cancelled if the violation of these rights is not a *constitutional violation* that satisfies the test of the limitations clause in the Basic Law. We should therefore examine the validity of the museum plan through constitutional lenses, in view of the complex constitutional issues that arise in this petition. The issues focus, first and foremost, on the question whether the protection of the dignity of the dead is a constitutional value. This is related to the question whether a violation of this value needs to satisfy the constitutional test, and what are the conditions that should be satisfied when carrying out the building in order to satisfy this test (cf. HCJ 10203/03 HaMifkad HaLeumi Ltd v. Attorney-General (not yet reported decision of 20 August 2008); CrimA 6659/06 A v. State of Israel (not yet reported decision of 11 June 2008)).

 

131. The questions that are involved in this aspect of the petition are both complex and sensitive, from legal, public and human perspectives. They include various ethical considerations that sometimes conflict with one another; they connect the world of the living with the world of the dead, the world of the past with the needs of the present and the future. Within the scope of these questions, interests of the individual compete with the sensibilities of a community; the values of tradition compete with public needs of development and progress; in order to decide these questions we need to find proper balances between various values.

 

Let us examine the questions before us one by one.

 

The constitutional status of the value of the dignity of the dead in Israeli law

 

132. Constitutional law in Israel recognizes the right of a person to dignity during his life. Section 4 of the Basic Law: Human Dignity and Liberty provides:

 

*Protection of life, body and dignity

Every person is entitled to protection of his life, his body and his dignity.*

 

Section 2 of the Basic Law provides:

 

*Safeguarding life, body and dignity

The life, body or dignity of a person as a human being may not be harmed.*

 

The right of a person to dignity as a basic right was recognized before the Basic Law: Human Dignity and Liberty was enacted (HCJ 355/79 Katlan v. Israel Prison Service [1980] IsrSC 34(3) 294, at para. 5 of the opinion of Justice Barak). It received greater recognition as a constitutional right when the Basic Law was enacted (HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335, at para. 12 of the opinion of President Barak; HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812, at p. 827; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464, at pp. 519-520).

 

Do the constitutional right of a person to dignity during his lifetime and the prohibition against harming his dignity continue even after he has passed away? If so, what is the scope of the protection given to this right? This is the key question in our case.

 

133. The Basic Law: Human Dignity and Liberty addresses the basic rights of human beings who are alive. It is no accident that the right to the protection of human dignity is addressed together with the right to the protection of life and body. The Basic Law prohibits any harm to the dignity of a person as a living person, and it does not speak of the dignity of the dead. But does the protection of the dignity of a living human being not include, as a natural continuation of the right, the ongoing protection of his dignity even when he is not longer among the living?

 

134. The cycles of life and death are interrelated in the human experience. The awareness of death and the experience of death are an integral part of human life from the beginning of his existence, and this relationship between life and death is reflected in the life of the law.

 

135. The dignity of the dead is a constitutional principle that is derived from the dignity of the living human being and from his right to personal autonomy. These are two inseparable and indivisible principles. Indeed, *the dignity of dead people is derived from the dignity of living people,* per Justice Zamir in HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [2000] IsrSC 54(2) 164; the dignity of the living is harmed when he is not assured during his lifetime that his dignity will be properly protected when he is no longer among the living. An injury to the dignity of the dead is, therefore, a violation of the dignity of the living, and thus it constitutes a violation of a constitutional right that merits constitutional protection. The attitude of human society towards the value of respect for the dead as a supreme value in the life of the individual and society, and as a link in the chain connecting past generations with the present generation and the generations to come, is one of the characteristics of the continuing nature of human existence. This value traverses oceans and continents and is enshrined in various social, religious and legal traditions as a part of the social ethos of world cultures in the east and the west. This attitude of respect for the dead is enshrined also in the constitutional infrastructure in Israel, as a direct derivative of the constitutional right to dignity during a person*s life.

 

136. According to the legal approach in Israel, the death of a person has direct ramifications on the collection of rights and obligations that characterize his legal personality during his life. From the moment of death, a person*s legal personality comes to an end. Section 1 of the Legal Capacity and Guardianship Law, 5722-1962, provides that: *Every person is competent for rights and obligations from the end of his birth until his death.* From the time of death, a person is no longer competent to acquire rights or become liable for obligations. His estate passes to his heirs, and rights and obligations that are closely associated with his personality expire upon his death (I. Englard, The Legal Capacity and Guardianship Law, 5722-1962, para. 13-1, at pp. 39-40 (second edition, 1995)).

 

137.  Notwithstanding, as distinct from the legal capacity of a person, which ends upon his death together with his capacity to be the subject of new rights and obligations, society, through the law, protects  various aspects of the dignity of the deceased after his death.

 

138. On a constitutional level, this court has held on more than one occasion that the right to dignity of a living person continues after his death (Jerusalem Community Burial Society v. Kestenbaum, at p. 523; HCJ 4225/01 Cohen v. Minister of Defence [2004] IsrSC 58(4) 155, at p. 168). In the words of Vice-President Justice M. Elon: **human dignity is not only relevant during a person*s lifetime, but also after his death** (CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR 170, at p. 102 {184}). Therefore it is accepted *that the protection of human dignity includes the protection of both the dignity of the living and the dignity of the dead* (HCJ 6685/05 Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd v. Y.G. Contractual Archaeology Co. Ltd (unreported decision of 18 January 2007), at para. 17; HCJ 3114/02 Barakeh v. Minister of Defence [2002] IsrSC 56(3) 11; [2002-3] IsrLR 39. See also A. Barak, Legal Interpretation * Constitutional Interpretation (vol. 3, 1995), at p. 437); A. HaCohen, *Law and Medicine in a *Jewish and Democratic State*: Between the Autonomy of the Law and the Pathology of Relations between Religion and State,* 2(2) Shaarei Mishpat 189 (2000), at p. 213).

 

Dignity of the dead * the categories of interests involved

 

139. It is possible to identify three categories of interests involved in the protection of the dignity of the dead. First, and most important of all, the essence of the right of dignity for the dead lies in the interest of the deceased while he is alive to the protection of his dignity when he dies. The roots of this interest lie in the legitimate expectation of a person, while he is alive, that his dignity, expectations, wishes and tradition will be preserved and respected even after he dies.

 

The second category of interests lies in the protection of the family members of the deceased, since a violation of his memory and dignity is inseparable from a violation of their own dignity. This was discussed by Justice Elon when he said: *It is established case law that *human dignity* in our case means, first and foremost, the dignity of the dead, namely the express or estimated wishes of the deceased, and the dignity of the living, namely the wishes of the family of the deceased, his friends

and loved ones, who wish to respect the memory of the deceased* (CA 1482/92 Hager v. Hager [1993] IsrSC 47(2) 793, at pp. 801-802; Shefer v. State of Israel, at p. 102).

 

The third category of interests concerns the dignity of the dead from a public viewpoint, and it is a part of the responsibility of society to respect its members who have died and to protect their memory and dignity. The deceased were in their lifetimes an integral part of society, the public and the state; just as society is liable to protect their dignity in their lifetime, it is liable to protect their dignity when they are dead. It is also liable to respect the living family members and relatives of the deceased, which are a part of society. It is liable to respect religious sensibilities and the sanctity of the concept of the dignity of the deceased in the various religions and traditions. Respect for the dead by society is a value that connects the generations that have passed away to the generations that are yet to come, and it is a link in the chain of human existence over the generations. The protection of the dignity of the dead is not limited therefore to the world of the deceased individual and his family, but it reflects a general social ethos; a society that does not respect the memory of its members who have died undermines one of the pillars on which it is built (Y. Ariel, *Dignity of the Living or Dignity of the Dead?* 20 Tehumin 171, at p. 178).

 

140. These three categories of interests that relate to the dignity of the dead give rise to a set of different protections that are intended to prevent a possible violation of the dignity of the dead. Some of the protections focus on the protection of the heart of the protected value** respect for the express or estimated wishes of the deceased; some of them address the broader circles of the protection of the deceased*s dignity with reference to the deceased*s relative and the family framework of which he was a part before his death; and some of the protections derive from a general ethical outlook that requires society to respect the dead as a part of the culture of society and the recognition of the place of the individual in the community. There are points where the various interests connected with the dignity of the dead coincide and overlap.

 

Let us consider each of the aforesaid aspects.

 

The first category of interests** protection of the deceased

 

141. At the centre of the first category of interests, it is possible to identify protections that focus on the wishes of the deceased with regard to various matters concerning his death. Thus, for example, the wishes of the deceased lie at the heart of the laws of inheritance and wills:

 

*Any struggle over the will of a person gives rise to the question of *respect for the dead,* which is a part of the general principle of *human dignity* that became a supreme principle in our law upon the enactment of the Basic Law: Human Dignity and Liberty* (CA 724/87 Kalfa (Gold) v. Gold [1994] IsrSC 48(1) 22, at p. 28).

 

The basic principle in the law of wills is taken from Jewish law, namely that the wishes of the deceased should be respected (Hager v. Hager, at p. 802; S. Shiloh, Commentary on the Inheritance Law, 5725-1965 (1992), at p. 229). This was the case before the Basic Law: Human Dignity and Liberty was enacted and it is also the case after it (Kalfa (Gold) v. Gold, at p. 28).

 

142. Human dignity and respect for a person*s wishes gives rise to the rule that a person has a right to control the division of his property, as he decided during his lifetime, which will be done after his death (CA 1182/90 Shaham v. Rotman [1992] IsrSC 46(4) 330, at p. 335). The freedom to dispose of property, when taken with the value of respect for the wishes of the deceased, protect a person*s right to give directions as to what will be done with his property after his death. This right is reflection in the principle of the freedom of make a will (Kalfa (Gold) v. Gold, at p. 29). In the words of Justice M. Cheshin:

 

*We recognize the right of man * which means each one of us * to control the distribution of his assets after death, and that everything should be done according to his wishes* Respecting the wishes of a person is an element of human dignity (*the wishes of a person are his dignity*). We must respect the dignity of the dead, for this is the dignity of the living* (LIBI The Fund for Strengthening Israel*s Defence v. Binstock [1994] IsrSC 48(3) 705; [1992-4] IsrLR 369, at p. 732 {402}).

 

Elsewhere he held:

 

*The freedom to make a will, and the injunction to respect the wishes of the deceased** the two sides of the same coin** are both derived from human dignity and from personal autonomy that is derived from dignity* (CA 4660/94 Attorney-General v. Lishitzky [1999] IsrSC 55(1) 88, at p. 115).

 

This idea found expression in the remarks of President Barak in his book, where he says:

 

*Indeed, the law of wills is based on the fundamental principle that we should respect the wishes of the deceased. This is a well-known principle of Jewish law, according to which *it is a meritorious deed to respect the wishes of the deceased.* It forms a part of our general and legal culture. It is derived from the autonomy of the individual will, which constitutes a part of the constitutional right of human dignity. It is implied by property rights, which has received constitutional protection in Israel* (A. Barak, Constitutional Interpretation (vol. 5 * Interpretation of Wills, 2001), at pp. 58-59) (see also CA 1900/96 Telmaccio v. Custodian-General [1999] IsrSC 53(2) 817, at p. 825; LCA 8047/03 Attorney-General v. Davidson (unreported decision of 16 June 2004), at para. 7).

 

143. A similar outlook can also be seen in the provisions of the Inheritance Law, 5725-1965 (hereafter** the Inheritance Law) itself. Section 28 of the law provides that the will is a personal act, and it can only be made by the testator personally. A provision of a will that is conditional upon the wishes of a person who is not the testator is void. Section 30 of the law provides that a provision of a will that was made as a result of duress, threats, undue influence, deceit or fraud is void. Section 54(a) of the Inheritance Law provides that *A will is interpreted in accordance with the intentions of the testator, as it is understood from the will, and to the extent that it is not understood from it, as it is implied by the circumstances* (emphasis not in the original).

 

The basic principle concerning the realization of the wishes of the deceased means that the main element in interpreting a will focuses on the clarification of the presumed wishes of the deceased with regard to the manner of distributing his property. In this respect, the only interest in the will that merits protection is the express or estimated wishes of the testator. This value of the wishes of the deceased even overrides any unreasonableness or irrationality of the will, and these cannot justify invalidating the will or allow any departure from it, as long as it is possible to ascertain the intentions of the testator (per Justice E. Goldberg in LIBI The Fund for Strengthening Israel*s Defence v. Binstock, at p. 745; the remarks of Justice M. Cheshin there, at p. 732; Telmaccio v. Custodian-General, at p. 826). Notwithstanding, the capacity to make a will is subject to basic principles of legality, morality and a practical ability to realize the wishes of the testator (section 34 of the law). In this respect, the freedom to make a will and respect for the wishes of the deceased are weighed against other essential interests, including the principle of public policy and the duty to uphold the law. Thus a balance is struck between respect for the wishes of the dead and the dignity of the living, and protection of public order and the values of upholding the law (Kalfa (Gold) v. Gold, at p. 29; Attorney-General v. Lishitzky, at p. 116).

 

144. One of the characteristics of the protection of the dignity of the dead from the perspective of the right of the individual can be seen in the protections given by the law in the field of the prohibition of defamation and the protection of privacy, even for someone who has died. According to section 5 of the Prohibition of Defamation Law, 5725-1965, defaming a person who is dead is tantamount to defaming someone who is alive, but it does not give rise to a cause of action to file a civil action or a private prosecution, and filing an indictment on account of such a defamation is conditional upon a request being made by a member of the deceased*s family who is a close relative, as set out in the law. The right of a person to reputation not only during his lifetime but also after his death was discussed by Justice M. Cheshin in HCJ 6126/94 Szenes v. Israel Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339:

 

*Whatever the scope of application of *human dignity* may be* everyone agrees that human dignity extends to a person*s reputation. Although human dignity has several offshoots, a person*s reputation * or perhaps we should say: a person*s reputation, as his reputation** is the main one. For if human dignity does not include a person*s reputation, what is human dignity?... Moreover, human dignity is retained not only during a person*s lifetime but also after his death. This is the express provision of section 5 of the Prohibition of Defamation Law, and case law has gone on to hold** expressly and without any hesitation** that human dignity in the Basic Law: Human

Dignity and Liberty extends also to the dignity of the dead* (at p. 866 of the judgment) (emphasis not in the original).

 

145. With regard to someone whose privacy was violated but died within six months after the event without his having filed an action or a private prosecution on account of the violation, section 25 of the Protection of Privacy Law, 5741-1981 (hereafter** the Protection of Privacy Law), provides that the close relatives as defined by the law may file an action or a private prosecution on account of that violation. If a person dies during a judicial proceeding arising from a violation of his privacy, his relatives may replace him and continue the proceedings in his stead, as set out therein. In LCA 1917/92 Schooler v. Jerby [1993] IsrSC 47(5) 764 the court (per Justice E. Goldberg) assumed that the Protection of Privacy Law applies also to someone who has died. In that case, the court rejected an alleged interpretation that the protection of privacy was limited to a living person, because if this were the case it would mean that**

 

*The right of privacy that a person had during his life, under the law, becomes a trampling ground after his death, which is contrary to the purpose of the law. The aforesaid right of privacy does not leave the world with the owner of the right, and it continues to be protected even after his death.*

 

This broad approach, which regards the protection of reputation and privacy as a part of the human right of dignity and recognizes that this protection exists not only during a person*s lifetime but also after his death, is also consistent with the general outlook that regards the dignity of the deceased as a part of the human right of dignity in a broad and comprehensive sense.

 

146. A series of legislative provisions protect the dignity of the deceased from the perspective of protecting the integrity of his body after death and the obligation of a dignified burial that preserves his dignity. The Public Health Ordinance, 1940, requires the burial of a person within 48 hours of the time of his death, unless a government doctor expressly permits a later burial (section 8(2)). The Public Health (Reburial) Regulations, 1941, provide that it is prohibited to remove a body from its grave for any purpose, it is prohibited to rebury a body and it is prohibited to open a grave for the purpose of burying other bodies unless permission has first been obtained in writing from a government doctor (regulation 3). The regulations also give details of the manner in which a body should be removed from its grave if permission is given for this (HCJ 637/85 Jewish Burial Society v. Director-General of Ministry of Health [1986] IsrSC 40(3) 785). These provisions are intended to protect public health, but at the same time it can be seen that they are concerned with protecting the dignity of the dead during the burial proceeding and during the removal from the grave. The Anatomy and Pathology Law, 5713-1953 (hereafter: the Anatomy and Pathology Law) regulates the conditions for post-mortem operations for various purposes, including scientific purposes, determining the cause of death, identification needs or using a part of the body for human health care. The provisions of this law also apply, mutatis mutandis, to an examination an autopsy of a body under the Investigation of Cause of Death Law, 5718-1958 (section 28 of that law) (hereafter: the Investigation of Cause of Death Law) (see also Englard, The Legal Capacity and Guardianship Law, 5722-1962, at pages 39-40; Cohen v. Minister of Defence; M. Birnhack, *Rights of the Dead and Freedom of the Living,* 31(1) Tel-Aviv University Law Review (Iyyunei Mishpat) 114

(2008)). In all of these provisions, an emphasis is placed on the dignity of the dead, while balancing this value against other important needs.

 

147. A person has a right to a dignified funeral and a proper burial, which will give expression to his dignity in life and in death. The right to a dignified funeral falls within the scope of the right to human dignity, which is enshrined in the Basic Law: Human Dignity and Liberty (CA 9486/00 Virag v. Carmiel Religious Council [2007] IsrSC 57(1) 565, at p. 570). The duty to respect the deceased*s body and to protect it from desecration constitutes an important value and injunction in the three religions * Judaism, Christianity and Islam (H. Caspi, T. Moritz and T. Tavori, *The Authority to Remove Blood Samples from Unidentified Dead Bodies for Identification Purposes,* 27 Medicine and Law (Refuah veMishpat) 35 (2002), at p. 37; A. Weinroth, *Removing Semen From a Deceased** Legal Aspects,* 27 Medicine and Law (Refuah veMishpat) 100 (2002), at p. 103).

 

148. Preserving the dignity of the dead during burial has found expression in various acts of legislations. Sections 3 of the Right to Alternative Civilian Burial Law, 5756-1996, provides that *A burial shall be conducted while preserving the dignity of the deceased.* Regulations 10(b) and (d) of the Right to Alternative Civilian Burial (Licensing of Burial Corporations and Determining Burial Procedures) Regulations, 5759-1998, provide, inter alia, that the burial corporation shall be responsible for transporting the body of the deceased from the place of death to the cemetery *in a manner that preserves the dignity of the deceased,* and *The method of burial, the place of burial, determining the form of the graves and their maintenance shall all be done in a non-discriminatory manner that ensures human dignity and the dignity of the deceased.* Section 266 of the National Insurance Law [Consolidated Version], 5755-1995, provides that the National Insurance Institute shall pay the burial fees in Israel in amounts that it shall determine (Virag v. Carmiel Religious Council, at page 570). Moreover, the duty of paying the expenses of a deceased*s funeral and burial and erecting a tombstone are a debt of the estate with has the highest level of preference (section 104(a)(1) of the Inheritance Law; Hager v. Hager, at page 800). The Prohibition of Erecting a Memorial in Memory of Perpetrators of Acts of Terror Law, 5758-1998, provides in section 2 that *A memorial shall not be erected in memory of perpetrators of an act of terror.* The grave and the tombstone on it are excluded from the definition of the word *memorial,* in recognition of the fundamental importance of the actual burial and erecting a tombstone for every deceased person, as a human being (HCJ 7583/98 Bachrach v. Minister of Interior [2000] IsrSC 54(5) 832).

 

The dignity of the deceased from the viewpoint of the family members

 

149. The right to a dignified burial reflects first and foremost the wishes and expectation of the deceased when he was alive to the right of dignity that he deserves after his death. But at the same time the burial, the grave and the tombstone on it, the memorial ceremonies and visiting the grave also realize an interest of the family to honour the memory of the deceased, which is an integral part of their own dignity.

 

On the place of burial Justice M. Cheshin said:

 

*A person has a right** it is his right during his lifetime and it is the right of his family members, his relatives, his friends and society as a whole are his death** that he should be given after his death a place of burial, grave and a tombstone on the grave. This is the dignity of a human being, it is the dignity of the dead, it is the dignity of the living as those responsible for the dignity of the dead* the place where a person is buried is a place where his friends and relatives can honour his memory; a place where the family members, his relatives and friends can gather, a place where they can remember him, associate with him, speak of him, honour him, love him* Indeed, it is a profound emotional need** an emotional need that exists in the heart of every one of us** that we do our best to honour the deceased and his memory** (Bachrach v. Minister of Interior, at pages 841-842) (emphasis not in the original).

 

150. On several occasions case law has associated the dignity of a deceased with the dignity of the deceased*s family as related concepts. Thus, for example, in HCJFH 3299/93 Wechselbaum v. Minister of Defence [1995] IsrSC 49(2) 195, it was said (per Justice Goldberg):

 

*A violation of human dignity is not merely an injury to the sensibilities of a particular family, if it is not allowed to add a personal expression on the tombstone of their beloved family member. The injury to *human dignity* is also an injury to the dignity of the unknown soldiers on whose tombstones there certainly cannot be any additional inscription that will express the anguish of their families; the injury to *human dignity* is also an injury to the dignity of fallen soldiers who were the only child of their parents, and on their tombstones there will appear no additional inscription of the kind that the petitioners are seeking to add; and the injury to *human dignity* is also an injury to the dignity of thousands of soldiers on whose tombstones there is no additional inscription that expresses the feelings of the families.*

 

(See also Bachrach v. Minister of Interior).

 

This was also addressed by Justice Arbel in Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation, where she said:

 

*The dignity of the dead is a part of the principle of human dignity* As such, its realization sometimes requires a violation of other interests* The principle of respecting the dead, not merely as a religious injunction but also as a social norm and duty, also concerns making it possible for the living** his relatives, his wife and children, his friends and anyone who cherishes his memory** to honour his memory and gather together to remember him where he was laid to rest. We are dealing with an issue that *involves a special personal and spiritual sensitivity*** (emphasis not in the original).

 

The third category * dignity of the dead from the viewpoint of society

 

151. The dignity of the dead has importance also from a general social viewpoint. The duty of the public and the state to respect the memory of the dead expresses an important value in the ethical and moral foundation on which society is based. Just as society is liable to respect the individual when he is alive, so too it is enjoined to respect him when he is dead. It should provide suitable means for carrying out the burial; it should ensure that the cemeteries are protected against any damage or desecration; violating the dignity of the dead has been defined as an injury to the public within the framework of the criminal norm in section 172 of the Penal Law, 5737-1977, which provides:

 

*Someone who enters without permission a place of worship or burial or a place which is reserved for the needs of a funeral or for safeguarding the bones of a dead person, or who treats a dead person disrespectfully, or who causes a disturbance to persons who have assembled for a funeral, all of which with intent to injure the sensibilities of a person or to degrade his religion, or when he knows that this is likely to injure the feelings of a person or degrade him, is liable to three years imprisonment.*

 

152. The desecration or destruction of a grave does not only injure the memory of the deceased and the sensibilities of his relatives. They inflict an injury *also on the sensibilities of many other people who visit the cemetery, where the dignified appearance of the place is important to them as a part of the private and public expression of protecting the dignity of the deceased and the dignity of the living who respect his memory* (CrimA 8469/99 Askin v. State of Israel [2001] IsrSC 55(2) 65, at page 87; CrimA 3338/99 Pakovitz v. State of Israel (unreported decision of 20 December 2000), at para. 16). The protection of the dignity of the dead has a general public aspect and reflects continuity of the dignity that society shows to the living and the dead.

 

153. The social importance attributed to the inscription on a tombstone, and the private and general significance of this with regard to the deceased himself, with regard to his family members and with regard to the general public, has been reflected over the years in the case law of the courts. The grave and the tombstone represent the remaining link between the deceased and his relatives and friends and between the deceased and the general public; their significance in the religious and emotional outlook of human beings symbolizes the connection between the world of the living and the world of the dead, and the continuity of the generations and the cyclical nature of life. In the words of Justice Barak in Jerusalem Community Burial Society v. Kestenbaum:

 

*Human dignity is not merely the dignity of a person in his lifetime. It is also the dignity of a person after his death, and it is also the dignity of his loved ones who keep his memory in their hearts. This dignity is expressed, inter alia, in the actual erection of a tombstone, visits to the cemetery on the anniversary of the death, and public memorial services and care for the grave. This

is the same link** which is sometimes rational and sometimes irrational** between the living and the dead* This is the external expression that reflects the internal relationships between the generations* (page 523 of the judgment; see also pages 519-520).

 

(Cf. the opinion of Justice I. Englard in HCJ 4763/97 Hachim v. Mazkeret Batya Local Council [1998] IsrSC 52(1) 35).

 

154. The court has regarded military cemeteries as sites of historical value, which are the subject of pain for the whole nation, since the soldiers who are buried in them are not only beloved by their families but they are beloved by the whole people (Wechselbaum v. Minister of Defence, at page 820).

 

The protected interests of the various categories

 

155.  The protection of the dignity of the dead may raise the question of the relationship between the three categories of interests involved, which are not always consistent with one another** the interest of the deceased, the interest of the family and the public interest. There may be cases in which the deceased*s interest conflicts with the family interest or conflicts with the public interest. There may be cases in which the family interest of protecting the dignity of the deceased is inconsistent with the public interest. In such circumstances the question may arise as to which interest prevails within the framework of the scope of protection afforded to the constitutional right. There are cases in which a conflict between the wishes of the deceased and the wishes of his family members will lead to the will of the deceased prevailing. This is the case in the law of wills and inheritance, apart from in exceptional cases arising from the illegality of the will or where it is contrary to public policy. The same is true with regard to the principle of the integrity of the deceased*s body, in which regard the consent of the decease to an autopsy or an organ donation overrides any potential opposition on the part of his relatives (section 6A(c) of the Anatomy and Pathology Law). By contrast, there may be cases in which the wishes of the family and even the wishes of the deceased yield to a conflicting public interest. It is not possible to determine a clear and fixed formula in advance for the order of priorities between the various interests; their relative weight is determined according to the circumstances of the case before the court.

 

156. In summary it can be said that the value of respect for the dead is a part of the concept of human dignity, which in our legal system receives constitutional protection. It coincides with the value of human dignity during his lifetime, and it constitutes an integral part thereof. It is a concept that extends not only to the dignity of the deceased himself but also reflects on the dignity of those close to him and the members of his family. It concerns the whole public, whose duty to protect this value characterizes the ethical and moral outlook that is unique to it.

 

The relationship between the constitutional aspect and the religious aspect of respect for the dead

 

157. The constitutional aspect of the value of respect for the dead, as a part of the concept of human dignity both in life and in death, is not identical to the religious aspect of the sanctity of the dead, and there is a conceptual difference between the two. The religious aspect of this value influences the constitutional content of respect for the dead, but it does not limit the scope of the constitutional right, nor does it define the extent of the protection given to it. This petition concerns the independent constitutional value of respect for the dead, which is derived from the fact that Israel is a constitutional democracy, which protects human rights. The Basic Law: Human Dignity and Liberty, and the values that it encompasses, are what determine the nature of the right and the scope of the protection afforded to it. In understanding the character of the constitutional right and in making the balances that are required in order to determine the scope of the protection afforded to it and outlining the permitted limits of violating it, religious injunctions and religious sensibilities relating to the sanctity of the dead have significance and importance. But they are not capable to determining the content of the constitutional right, the scope thereof and the balances that are required to allow a violation thereof. These are determined within the scope of the general constitutional outlook that is derived from the foundations of the system of government and the basic principles of the legal system.

 

The relativity of the constitutional value of respect for the dead

 

158. Constitutional human rights in Israel are afforded supreme protection by the law. But they are not absolute rights. The degree of constitutional protection afforded to them is affected by conflicting values that also have a protected status under the law. The existence of a pluralistic human society, which is regulated by a system of government based on democratic values, is characterized by a complex and varied set of different values, which are not necessarily consistent with one another. A conflict between such values may be expressed in a conflict between various basic human rights inter se or between basic rights and important general public interests that are required for the existence of a democratic society. In order to maintain a society that upholds freedom and respects human rights, a proper balance is required in order to reconcile conflicting values, subject to a reciprocal wavier of the absolute realization of these values.

 

159. The need to reconcile basic rights inter se and to reconcile them with conflicting public interests creates the relativity of the basic right, and the variability in the scope of the constitutional protection afforded to it, which is derived from the relative importance of the right as compared with the weight of the conflicting value with which it competes. The scope of the protection afforded to the basic right is not a constant. It is dynamic factor, which is determined in accordance with the circumstances of the concrete case.

 

160. The criteria that determine the scope of protection afforded to the constitutional right in the circumstances of the concrete case are enshrined in the limitations clause in the Basic Law: Human Dignity and Liberty.

 

Section 8 of the Basic Law states:

 

*8. Violation of rights

The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.*

 

161. The limitations clause outlines the permitted framework for a violation of the constitutional right. As such, it defines the scope of protection given to the basic right in a given case. The limitations clause is the tool by means whereby a balance is achieved between the protection of a constitutional right afforded to the individual and the regard for conflicting rights and interests (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443, at para. 54 of the opinion of President Barak; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (unreported decision of 11 May 2006), at paras. 45-46 of the opinion of President Barak; HCJ 1683/93 Yavin Plast Ltd v. National Labour Court [1993] IsrSC 47(4) 702, at p. 708; HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786, at p. 791; HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640; HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235, at p. 258; HCJ 4264/02 I*billin Towers Partnership v. I*billin Local Authority (unreported decision of 12 December 2006)).

 

162. The limitations clause is based on three elements: the existence of authority to violate a basic right (by virtue of law or in accordance with an express authorization therein); the existence of a proper ethical purpose for violating the right (befitting the values of the state and having a proper purpose); and the element of the means used (proportionality):

 

*A violation of a constitutional right needs to be done in a law, or in subordinate legislation by virtue of an express authorization in a law; the purpose of the law that violates the right should satisfy the value test according to the values of the state and have a proper purpose. The purpose is the predominant purpose of the law*, and the characteristics of the proper purpose are that it should be proper in the context of a violation of human rights within the overall social framework* The violation of a main constitutional right requires the purpose to realize a major social goal, or a real social need* With regard to the proportionate means, three subtests are required* The first test is the rational connection test or the suitability test; in other words the means should be appropriate for realizing the purpose that the law sought to realize; the second test** the least harmful measure test or the necessity test** requires an examination as to whether the means does not violate the right beyond what is necessary to achieve the proper purpose; and the third test** the proportionate result test** requires that the benefit that arises from achieving the proper purpose is commensurate with the damage caused by the violation to the constitutional right* This is a test of weighing the benefit against the harm of the violation, which is based on ethical-moral considerations* (I*billin Towers Partnership v. I*billin Local Authority, and the references cited there).

 

163. When a basic right of a person is violated by another person or by a government authority, the question arises as to whether this violation satisfies the proper constitutional balance between the protection that should be given to the right and the need to uphold the conflicting value** a conflicting basic right or a conflicting public interest** and what is the scope of the relative protection that should be given to each of the conflicting values in order to achieve the proper ethical result. Outlining the relative lines of protection that should be given to the conflicting values requires the application of the elements of the limitations clause to the concrete case, according to its special characteristics and circumstances.

 

The relativity of the value of respect for the dead from the perspective of Israeli legislation and case law

 

164. Just as the right to human dignity during a person*s life is not absolute and is subject to qualifications, which are the result of the necessary balance between it and conflicting values, so too the right of respect for the dead is not absolute but merely relative. This right is subject to a set of balances between it and other basic rights, and between it and other important interests that merit protection.

 

165. Thus in the case of the burial of a deceased, where there is a need to strike a balance between the rights of the individual and public needs, the protection given to the wishes of the family members of the deceased is qualified by other interests and considerations. A person*s grave is admittedly regarded as a private domain, with regard to which the family members have a protected status, but at the same time it is situated in a public place, which is intended to allow additional interests also to be realized and considered:

 

** In so far as the wishes of the deceased and his family are limited to the area of the grave itself, and in so far as the effect on the other graves in the cemetery and those who come to it is minimal, so the liberty of the individual to manage his affairs** in life and in death** according to his outlook, wishes and sensibilities will be recognized* but at the same time it cannot be denied that a person*s wishes have an effect on the public domain, and that there are considerations and interests that may justify placing restrictions on the realization of these wishes. For example, these may involve considerations concerning the planning of the cemetery, burial arrangements, shortage of space, expenses involved in safeguarding and maintaining the grave, and the like* (Virag v. Carmiel Religious Council, at page 571) (emphasis not in the original).

 

(See also CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [1999] IsrSC 53(3) 600, at p. 627).

 

166. Such a balance between a right of the individual and general social needs is also required in other contexts. Thus this court denied a petition of family members of a deceased, who died in the

course of security activity, to hold his funeral during the day, and it upheld the decision of the IDF Commander in Judaea and Samaria that the funeral of the deceased should be held at night, with the participation of his family members only, for reasons of public order and security:

 

*The military commander should take into account, on the one hand, considerations concerning human dignity. This consideration has two aspects and it encompasses the dignity of the deceased and the dignity of his family. By holding a dignified and proper funeral for the deceased, we uphold both the dignity of the dead and the dignity of the living* On the other hand, the military commander should take into account the need to maintain order and security in the territories. He should ensure the safety of the security forces, and he should ensure the security of the local inhabitants (both Arabs and Jews). He should maintain public order in the territories and enforce the law* (HCJ 3933/92 Barakat v. Central Commander [1992] IsrSC 46(5) 1, at page 6).

 

In that case the court was persuaded, in its words, *that it is almost certain that there is no possibility of both maintaining public order and security by adopting alternative measures (a curfew, blocking traffic, stationing regular army forces) and upholding the dignity of the deceased and his family. In such circumstances, the dignity of the deceased and his family should give way to some extent in order to allow public security and order to be maintained* (Barakat v. Central Commander, at p. 7). In that case a balance was required between the dignity of the dead and the right of the family to participate in his burial on the one hand, and the security needs of the territory on the other. In another case, Wechselbaum v. Minister of Defence, the court rejected a petition of bereaved parents who wished to add on the tombstone of their son, a fallen soldier, the names of his brothers. The Public Committee for the Remembrance of Fallen Soldiers recommended that the family*s request should be refused, and the Minister of Defence accepted its recommendation. The reason for this was based on an aspect of an overall public policy, according to which the uniformity of the tombstones of IDF fallen soldiers should not be undermined, since this might discriminate against bereaved families that had no personal inscription on the tombstones of their family members. The court found that the minister*s decision was not tainted by unreasonableness that justified any intervention. With regard to the military cemetery as a site of general public importance, the court said (per Justice Malz):

 

*This is a sacred place for the nation and the state. The soldiers who are buried in it are not merely beloved by their families but they are also beloved by the whole people and the whole state. It is a matter not solely for the pain of the families, but for the pain of the whole people, and as such it is to a large extent a historical site* (at page 820 of the judgment).

 

167. Even the sacred value of the physical integrity of the deceased is subject to balancing. Various acts of legislation address situations in which an autopsy is required, and sometimes a body even needs to be removed from its grave for this purpose. In such cases the conflict between the value of protecting the dignity of the deceased and his physical integrity conflicts most clearly with the conflicting public interest that requires the autopsy. Thus in the Anatomy and Pathology Law and the Investigation of Cause of Death Law there are situations in which the value of the physical integrity of the deceased is overridden by important conflicting interests.

 

168. The Anatomy and Pathology Law recognizes as a premise the value of preserving the physical integrity of the deceased as a part of the value of respect for the dead. Notwithstanding, it allows an autopsy in exceptional case, such as in order to make use of the body for scientific purposes, for which the written consent of the person is required (section 2 of the law); determining the cause of death or using a part of the body for medical treatment (section 6); saving an foetus (section 6C); operating on a body in order to save the life of a person who was injured in an incident with many casualties (section 6D); and operating on a body for public health reasons (section 10 of the law). In a case where we are dealing with an operation for the purpose of transplanting organs to another, if the consent of the deceased was not given, the consent of his family members is required in accordance with the arrangements set out in the law. It should be emphasized that where the deceased agreed to any such operation, the objection of a family member is of no significance (section 6A(c)).

 

169. A similar set of balances can be found in the Investigation of Cause of Death Law. According to the law, when a person dies and there is a reasonable ground for a concern that he did not die of natural causes, or that his death was caused by a criminal offence, it is possible to exercise judicial authority to investigation the cause of death. In this framework it is possible to order, inter alia, an autopsy or the opening of a grave and removing the body for the purposes of making the examination. In the Military Jurisdiction Law, 5715-1955, there is a similar arrangement that applies when investigating the cause of death of a soldier (sections 298A-298K). The relatives of the deceased have standing to present their position in proceedings under these laws. The ethical conflict in these situations focuses, on the one hand, on the public interest in discovering criminal offences and bring offenders to trial. On the other hand, considerations of religion, conscience and belief that concern the dignity of the dead and his family members often result in opposition to the autopsy. The way to solve this dilemma is to strike a balance that is achieved by assessing the weight of the need for the autopsy, by taking into account the seriousness of the suspicions, to what extent it is necessary to injure the physical integrity of the deceased for the purpose of the investigation, what is the proper weight that should be given to the wishes and sensibilities of the family, and seeking, where possible, to limit the scope of the injury to the body of the deceased. A balance is struck between all of these considerations (HCJ 754/03 Family of Sharha Yosef v. the honourable Justice David Mintz [2003] IsrSC 57(5) 817, at pp. 822-826; HCJ 11528/05 Family of Yoni Alzam v. the honourable Justice Galit Cygler (unreported decision of 14 December 2005), at para. 3).

 

All of the interests require a balance with regard to the building on the compound where the remains of ancient graves were found

 

170. What are the rights and the conflicting interests that should be taken into account for the purpose of building on a compound where remains of graves and human bones are discovered during the works? How should a balance be struck between these conflicting values?

 

Protection of human dignity in a recognized cemetery

 

171. The premise is that human dignity in life and in death is consistent with an approach that seeks to maintain a person*s burial site inviolate. This assumption is consistent with the expectations of the deceased in his lifetime, the expectations of his family and relatives after his death, and the expectation of society as a whole according to the cultural, social and religious outlook that characterizes it. A recognized cemetery is a site that is recognized by the deceased*s family and the community and is protected by the state. This is a site that serves as a focus for private and public recognition; it is a place where graves are visited and periodic remembrance ceremonies are held. A recognized cemetery is protected against violation and desecration.

 

172. In view of this premise, building and development on an area that is declared to be a cemetery for a purpose that is inconsistent with its purpose constitutes a violation of the dignity of the deceased. An area that is classified as a *cemetery* according to a city building plan requires special treatment, and like a *holy site* the provisions of plans relating to it require consultation with the Minister of Religious Affairs (section 99 of the Planning and Building Law). Although such a *cemetery* is not defined as a *holy site,* it may not be violated or desecrated, just as in the case of a holy site (cf. section 1 of the Protection of Holy Sites Law).

 

Injury to the sensibilities of the public or the community

 

173. A violation of a recognized cemetery, in addition to its being a violation of the dignity of the deceased and the dignity and sensibilities of the family, may constitute a violation of the sensibilities of the public and the community to which the deceased belonged in his lifetime. The violation may focus on a religious belief or an ethnic identity or membership of a community. The protection against an injury to public sensibilities is a public interest that merits protection in itself (HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267, at pp. 274-275). The protection of public sensibilities has been recognized as a relevant interest among all of the interests that should be taken into account for the purpose of the constitutional balance:

 

*The concept of keeping the peace and public order also includes a protected value of respecting the sensibilities of members of the public* This value is of considerable importance both for the individual and for society and the nation. The protection of public sensibilities from violation is no less a natural need of a human being than the need for protection of his body and property, and is sometimes greater. It is intended to protect his spiritual property, his cultural and moral values and his internal truth from violation. It is intended to protect him from the disparagement of what is dear to him and from casting an aspersion on the most sacred values of his life* (HCJ 316/03 Bakri v. Israel Film Council [2003] IsrSC 58(1) 249; [2002-3] IsrLR 487, at p. 278).

 

A democratic society should be sensitive to an injury to sensibilities no less that it should to a physical injury. *A democratic society that protects life, body and property should protect

sensibilities and spiritual concerns* (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149, at pages 45-46).

 

174.  Notwithstanding, not every injury to sensibilities, no matter how profound, tips the scales against a conflicting interest or right that has weight. In order for an injury to the sensibilities of a person of a community to preclude or restrict the realization of conflicting rights or interests, the injury to sensibilities needs to be *unendurable.* This criterion is not of a fixed nature, but its content varies according to the nature of the injury and according to the content of the conflicting rights. Thus, for example, the protection of religious sensibilities is not absolute, and it should balanced against the conflicting public interest. The level of protection that will be given to prevent an injury to sensibilities reflects the relative weight that should be given to the conflicting interests (HCJ 7128/96 Temple Mount Faithful v. Government of Israel [1997] IsrSC 51(2) 509, at p. 520). Within the framework of the aforesaid balance, there is a level of injury to sensibilities that is *endurable,* which a community in a democratic society should endure. This level of injury that should be endured is not constant. It varies from right to right and from injury to injury (HCJ 953/01 Solodkin v. Beit Shemesh Municipality [2004] IsrSC 58(5) 595; [2004] IsrLR 232, at page 614). The level of endurance for injuries to sensibilities is influenced by the strength of the basic right or the public interest that conflict with such an injury (Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation, at para. 19).

 

*In a democracy, not every injury to sensibilities justifies a violation of rights. Violations of sensibilities, which justify a violation of rights, should be by their very nature serious injuries to human sensibilities. These are injuries that a person cannot prevent from occurring; these are mostly injuries to the sensibilities of a *captive audience,* The extent of the injury to sensibilities may vary from right to right. In so far as concerns the basic human rights that are regarded as the *essence* of democracy** such as the freedom of expression** the extent of the injury to sensibilities that will justify a violation of the right should be considerable, serious and grave. Only a comprehensive and profound injury to sensibilities** including an injury to religious sensibilities and a religious lifestyle** will justify a violation of the freedom of expression* (Horev v. Minister of Transport, at pages 50-51).

 

175.  The injury to the sensibilities of the public that is involved in a violation of a cemetery caused by building ad development works requires consideration, while giving proper weight to the nature of the violation alongside the weight of the conflicting rights and interests (see the remarks of Justice Arbel in Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation).

 

Concealed burial sites under the ground and the dimension of the passage of time

 

176. The attitude towards the sanctity of a cemetery may vary from one community to another, from one religion to another and from one culture to another. This complication has another dimension, when we are speaking of a country that has an ancient history of thousands of years, in which many ancient burial sites that are mostly hidden deep underground may be found at any place throughout

it. Such cemeteries, which are unknown and unrecognized, naturally do not constitute a focus of recognition for the public in our time, and usually members of the community are completely unaware of the existence of the remains of concealed graves in the area. The less a cemetery compound is the focus of attention by the individual and the community, and the more that it is neglected, abandoned and even disappears from sight and is covered over the generations, so the strength of the constitutional value of the dignity of the dead becomes weaker with regard to such a compound. The more a cemetery compound is covered over with earth and cannot be seen, and the less it is visited and people do not know clearly of its existence, the less people expect the place to be preserved as generations pass. This is particularly the case when the area of the compound is used over the years for various uses that are totally unrelated to the presence of remains of graves under the ground. A visible cemetery, which is the focus of attention for the individual and members of the community, cannot be compared to hidden graves that were used as a burial site in the remote past and are now buried deep underground and are unknown and unrecognized by the neighbourhood. The dimension of the passage of time has weight when examining the intensity of the constitutional right of respect for the dead, when it conflicts with other recognized interests. As this intensity diminishes, the weight given to the needs of the living is likely to increase.

 

177. As can be seen from the material that was brought before us, there is an approach that Islamic law permits, in certain circumstances, building on old and ancient burial sites. Support for this can be found in the case law of this court approximately twenty years ago (HCJ 593/86 Islamic Association v. Um al-Fahem Municipality (unreported decision of 14 February 1988). According to this approach, Islamic law recognizes the close relationship between the values of culture and religion and the needs of modern life, which change over the generations, and it seeks to find a compromise between them and reconcile them.

 

There is therefore a considerable difference in the weight of the value of protecting the dignity of the dead between a recognized cemetery, which is used for this purpose and is the focus of recognition by the individual and the community, and a compound in which the remains of ancient graves are found under the ground, which were unknown to the public for many generations and which do not constitute a focus of any considerable recognition by the individual or the public.

 

Conflicting rights and interests

 

178. The constitutional value of respect for the dead, from which we derive the duty to avoid any violation of a cemetery as such, may be confronted by important conflicting interests, whether conflicting basic rights of the individual or public interests of special weight, which should be taken into account.

 

Essential public interests

 

Land resources

 

179. A modern society is characterized by a dynamic of development and change in all the sphere of human activity. Every generation brings with it changing needs in social and cultural spheres and in the physical infrastructures required for modern human life. The resource of land is one of the essential needs in a modern society. The proper life of a society depends, inter alia, on a person*s ability to exhaust the possible uses of land, to building infrastructure systems for transport, communications, public buildings, industry and commerce, and to promote building for residential purposes. Alongside all of these it is important to keep land for agricultural needs and for open areas of nature for human welfare (CA 3901/96 Raanana Local Planning and Building Committee v. Horowitz [2002] IsrSC 56(4) 913, at pages 941-942). The need for land resources is of particular importance in Israel, a small country that does not have reserves of land, in which the most effective use of land is of special importance:

 

*The land is therefore an incomparable essential resource of great value. It has especially great importance in a country like Israel, which has narrow borders, where the population density is high and which is a country that absorbs immigration. It is impossible to create land, and therefore a state must plan its policies with a view to the quantity of land in its possession. But it is possible to adapt the use of land to changing needs, and to increase and decrease the land available for changing needs* (Vice-President Or in HCJ 3939/99 Sedei Nahum Kibbutz v. Israel Land Administration [2002] IsrSC 56(6) 25, at pages 69-70).

 

180. An area that is defined as a cemetery according to its planning classification by virtue of city building plans may not be developed, and it is clear to everyone that the unique ethical nature of the site prevents the land being used for any purposes that is inconsistent with the purpose of the site. The main difficulty arises with regard to extensive areas of land throughout Israel that are not defined as cemeteries according to the planning infrastructure, but as areas that are permitted for development and building. When the remains of ancient graves, whose existence was unknown, are discovered under the surface of the land in the course of carrying out development operations within the framework of the planning designation of the land, a dilemma and ethical conflict arises and a balance needs to be made. On the one hand there is a public interest of great importance in making use of the land, especially in view of the limited resources of land in Israel. On the other hand the discovery of the remains of ancient graves of unknown persons requires ethical consideration because of the dignity of the dead and the historical and archaeological importance of the site. The fact that Israel has thousands of years of ancient history and is replete with the remains of ancient graves throughout the country exacerbates the natural tension that exists between the development and progress needs of a modern society and the values of the dignity of the dead and preserving antiquities in Israel. This was discussed by this court (per Justice Joubran) when he said:

 

*In view of the fact that the land in our country is replete with antiquities as living testimony of its long years of history, it is not unusual that in the course of carrying out building works cemeteries from ancient times or old human bones are discovered. The question whether the discovery of ancient graves justifies in every case the cessation of the building and development activity because of the existence of religious law prohibitions concerning the removal of graves is a very complex

question, and it has wide-ranging ramifications. In order to provide a solution to this question, we need to seek after a proper balance between the interest concerning the protection of religious sensibilities and the dignity of the dead on the one hand, and property interests of the land owners and the ever-increasing need to develop the country on the other. This question also gives rise to a tension between the interest of preserving the antiquities and the splendid heritage of our land and the constant need to develop the land and to provide a solution to essential public needs of the present* (Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd v. Y.G. Contractual Archaeology Co. Ltd, at para. 17).

 

181. In a similar context, a question arose with regard to a need to carry out works to lay a natural gas pipe in an area of land where there was a concealed Moslem cemetery (Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation). The court (per Justice Vogelman) considered the conflict between the public interest of carrying out infrastructure and development works and the interest of respect for the dead, when it was found that the works were likely to cause harm to the cemetery. The assumption of the court was that *cases of this kind, which are sometimes dictated by reality, require the making of a proper balance between the competing interests* (ibid., at para. 7). The court assumed that the interest of respect for the dead enjoyed constitutional protection under the Basic Law: Human Dignity and Liberty. It left undecided the question whether, when we are speaking of graves of unknown origins and of petitioners who have no special connection with those graves, the general interest of protecting the dignity of the dead enjoys constitutional protection by virtue of the Basic Law. Nonetheless the assumption of the court was that**

 

*The interest of respect for the dead does not exist in a vacuum. It is not absolute but relative. There is also* the public interest. This is the interest of the public as such, which is claimed by it as an organized body. A balance should be struck between the two, and sometimes this will lead** in the necessary cases** to a violation or restriction of the right of the individual.*

 

The criteria for examining the balance can be found in the limitations clause under section 8 of the Basic Law. In that case it was decided that an alternative solution should be adopted whereby horizontal drilling and excavations would be carried out under the ground at a depth of several metres, in order to lay the gas pipe without harming the graves. This alternative was found to reduce the violation of the dignity of the dead significantly, and the Electric Corporation was ordered to pay the expenses involved in minimizing the harm in order to protect human rights (ibid., at para. 11).

 

Essential urban development

 

182. Within the framework of the public interest of developing the land resources in the state, public building in an urban area, which is intended for special purposes of a social, cultural and human nature, may have special importance. Making use of land reserves in dense population centres is of special importance when it involves a planning change that will affect not only the individual, but also the whole character, quality and style of life of the public living in the city.

Projects of a special public character, which are supposed to stimulate social, economic and cultural life in the city, have special weight from the viewpoint of the general public interest.

 

The public interest in the certainty, stability and finality of planning and building proceedings

 

183. The dilemma that arises in our case is not connected to building within the precincts of a recognized cemetery that is defined as such according to its designation on a city building plan. It arises with regard to a compound which for almost fifty years was classified as an open public area, and afterwards as an area designated for the building of a car park and the paving of a road. It arises after all the planning proceedings in the past, over decades, were held and completed on the basis of the assumption that this was an area that was available for development and building without any conservation restrictions. The same is true of the recent plan for the building of the museum, for which the proceedings were held and completed, and final approval was given without any awareness of the existences of the remains of graves under the surface of the land.

 

184. This reality emphasizes the existence of a public interest with regard to the certainty, stability and finality of planning and building proceedings, which should be given the proper weight within the framework of the necessary balance of interests. When at the relevant planning stage there is no claim of a planning restriction on account of the existence of the remains of graves on the site, and when the planning proceeding is carried out according to law and is completed without any opposition, there is a clear public interest in giving weight to the finality of the planning proceeding and the importance attached to its realization, not only from the viewpoint of the ability to use the land, but also from the viewpoint of the value that should be attached to the factors of certainty, stability and public confidence in the planning and building system. Depleting the principle of the finality of the planning proceeding of its content by a later attempt to challenge its validity, because of a later discovery of the remains of bones on the site, has serious public repercussions both from a normative viewpoint and from the viewpoint of organizational efficiency. Admittedly, the principle of the finality of the proceeding is not absolute, and there may be extreme cases in which it will give way to a conflicting interest, which is of greater importance (cf. HCJ 5760/93 A v. Complaints Committee under the Psychologists Law, 5737-1977 [1996] IsrSC 50(4) 194, at pp. 204-205). But within the framework of weighing up the relevant interests, suitable weight should certainly be attached to the value of the finality and certainty of planning proceedings that have been completed and approved, and the significance of intervening in them after their completion, from the viewpoint of the proper functioning of the public authorities in this field.

 

Basic rights of the individual

 

Private property rights

 

185. Prohibiting building and development of land in any area where the remains of ancient graves and human bones are found under the ground at a late stage may conflict with the right of the individual to realize the private property rights that he has in that compound.

 

186. Property rights have been granted a supra-legislative status in the Basic Law: Human Dignity and Liberty, which provides in section 3 that *A person*s property rights should not be violated.* Case law over the years has given expression to property rights as supra-legislative rights (HCJ 4947/03 Beer-Sheba Municipality v. Government of Israel (unreported decision of 10 May 2006); CA 1188/92 Jerusalem Local Planning and Building Committee v. Barali [1995] IsrSC 49(1) 463, at pp. 484-485). Of the various varieties and kinds of property right, a special status has been given to property rights in land: *Since ancient times property rights, and especially property rights in land, have had a special status in our law, and they were recognized as basic rights even before section 3 of the Basic Law was enacted* (Raanana Local Planning and Building Committee v. Horowitz, at p. 913); CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221 per Vice-President Barak); HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481, at pp. 582-583. Property rights in land mean, inter alia, realizing the ability to develop and build on land, including the ability to build a public building of cultural-artistic importance that will also give expression, inter alia, to the beliefs and outlook of the property owner. In this regard, the right to realize property rights is consistent with the right of freedom of expression, which also enjoys a constitution status. The owner of the property right, who seeks to realize his right in the land by developing it and building on it has a basic right that merits constitutional protection. This basic right may compete with the constitutional right of respect for the dead. Just as the protection given to respect for the dead is not absolute, so the protection of private property rights is also relative. The conflict between them, while taking into account additional considerations concerning the general public interest, leads to the proper balancing point between all of the competing interests and rights.

 

Interim summary * respect for the dead as a constitutional right

 

187. In Israeli law the value of respect for the dead is recognized as a constitutional right that merits protection in several aspects. The right of respect for the dead constitutes an integral part of the basic right of human dignity, which has received statutory constitutional status in the Basic Law: Human Dignity and Liberty. But the right of respect for the dead is not absolute, and a violation thereof, whether by a government authority or by the act of an individual, depends upon satisfying the conditions of the limitations clause in order that it may be valid.

 

Comparative law

 

188. So far we have reviewed Israeli law and the protections that it gives to the dignity of the dead. Let us now turn to comparative law. It is not possible in this judgment to engage in a thorough study of comparative law. We will satisfy ourselves with a mere general understanding of the approach of several countries to the issue of the dignity of the dead and the relationship between this value and

the needs of modern society in various countries to develop and progress. Let us first relate, in brief, to the question of international and constitutional recognition of the basic right of respect for the dead; subsequently we will look at the balance that has been made in various countries between the value of protecting the dignity of the dead and burial sites, on the one hand, and the public interest in developing and building on land, on the other.

 

The question of international and constitutional recognition of the basic right of respect for the dead

 

189. Foreign legal systems, as well as international law, recognize basic rights given to a person during his lifetime. Some of the systems recognize a human right of dignity, which is interpreted in a variety of ways. In some human dignity is recognized as a constitutional value, but is not regarded as including the dignity of the dead. In these legal systems, the outlook is that a person has human rights during his lifetime, but from the moment that he dies he no longer has any rights (P. Sieghart, The Lawful Rights of Mankind (1985), at pp. 107-108). In some systems human dignity is not given constitutional protection, either in life or in death; notwithstanding, even in these countries where express constitutional protection is not given to the dignity of the dead, it is possible to find legal principles that give protection to various aspects of the dignity of the dead, such as with regard to matters of burial and protection of the physical integrity of the deceased. Let us review in brief the approach of several legal systems on this issue.

 

International law

 

190. International law expressly protects various aspects of the dignity of the dead. In the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (the First Geneva Convention) it is possible to find provisions concerning respect for the dignity of the dead. Article 15 of the convention provides that human bodies should not be left on the battlefield, to prevent them being despoiled. Article 17 provides, inter alia, that all parties to an armed conflict should ensure, in so far as possible, that the burial of the dead is done after a careful examination and identification of the bodies. This article of the convention goes on to address the duty of honourably burying the dead:

 

*They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, maintained and marked so that they may always be found.*

 

Article 27 of the Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (the Fourth Geneva Convention) provides a duty to respect the dignity of the local inhabitants.  In the case law of this court it has been held that this provisions applies not only to protecting the dignity of the living but also the dignity of the dead: *The premise is that the basic principle enshrined in art. 27 of the Fourth Geneva Convention, according to which the dignity of

the local inhabitants must be protected, applies not only to the local inhabitants who are alive, but also to the dead* Human dignity is the dignity of the living and the dignity of the dead** (HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [2004] IsrSC 58(5) 385; [2004] IsrLR 200, at para. 27 of the opinion of President Barak).

 

191. Article 130 of the Fourth Geneva Convention expressly addresses the dignity of the dead when it provides:

 

*The detaining authorities shall ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged and that their graves are respected, properly maintained, and marked in such a way that they can always be recognized".

* The scholar J.S. Pictet wrote in this regard that *respect for the dead is one of the most ancient ideas of civilization* (J.S. Pictet, Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at p. 506).

 

American law

 

192. As a rule, American law does not recognize the right of family members to sue for constitutional violations suffered by the dead (Conner v. Ambrose, 990 F. Supp. 606 (N.D. Ind. 1997), at pp. 619-620; Helmer v. Middaugh, 191 F. Supp. 2d 283 (N.D.N.Y. 2002)).

 

193. Notwithstanding, in American law use is sometimes made of constitutional principles in order to protect certain aspects relating to the dignity of the dead. Thus, the right of privacy was used to give certain protection to the family of a deceased to prevent his public humiliation (Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991; National Archives and Records Admin. v. Favish 541 U.S. 157 (2004)). Another way of protecting the dignity of the dead is by means of property rights, in the context of preventing an injury to the physical integrity of the deceased before and after burial (22A Am. Jur. 2d (2003) 11; S. Russell, *Sacred Ground: Unmarked Graves Protection in Texas Law,* Texas Forum on Civil Liberties and Civil Rights, vol. 4(1), 3; Guth v. Freeland, 28 P.*3d 982 (2001); Brotherton v Cleveland, 923 F. 2d 477 (6th Cir. 1991); Newman v Sathyavaglswaran, 287 F. 3d 786 (9th Cir. 2002)). The recognition of the importance of protecting the dignity of the dead is also reflected in many state laws in the United States. An example of this is section 872 of the Florida Crimes Code, which deals with offences concerning dead bodies and graves. Section 872.05 of this code provides, inter alia:

 

*It is the intent of the Legislature that all human burials and human skeletal remains be accorded equal treatment and respect based upon common human dignity without reference to ethnic origin, cultural background, or religious affiliation.*

 

Section 29-1-8a of the West Virginia Code, which deals, inter alia, with human bodies and graves, states the following:

 

** the purpose of this article is to assure that all human burials be accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds, or religious affiliations.*

 

German law

 

194. The German constitution, which is called the Basic Law, begins with a list of human basic rights. These are regarded as the basic values of German democracy. The premise of the Basic Law is that the state exists for the benefit of man (Michalowski & Woods, German Constitutional Law: The Protection of Civil Liberties (1999), at p. 69). Section 1 of the Basic Law, which concerns the protection of human dignity, provides in subsection (1): *The dignity of the human person is inviolable. To respect it shall be the duty of all public authority.* This principle is regarded as the supreme constitutional principle, and the Federal Constitutional Court has discussed this many times in its rulings. This right to human dignity is given to every man as such. It is a personal right enjoyed by every individual in society. A question that is the subject of dispute is whether persons who have died have a right to human dignity that merits constitutional protection. A similar question exists with regard to foetuses (Michalowski & Woods, German Constitutional Law: The Protection of Civil Liberties, at p. 97).

 

With regard to the dead, the Federal Constitutional Court held (in the Mephisto case, 30 BVerfGE 173 (1971)) that:

 

*It would be incompatible with the constitutional commandment of the inviolability of human dignity, on which all basic rights are founded, if a human person, vested with human dignity by virtue of his personhood, could, after his death, be belittled and degraded* The obligation to protect the individual against attacks on his human dignity, imposed by Art. 1(1) of the Basic Law on all state authority, therefore does not end with death* (cited in Michalowski & Woods, German Constitutional Law: The Protection of Civil Liberties, at pp. 98-99).

 

This decision has won the support of most commentators, although there are those who believe that there is a difficulty in attributing a constitutional right to dignity, which derives from human existence, also to someone who has ceased to exist, after his death. One of the explanations given to the protection of human dignity after death is based on a cultural and religious tradition, which requires the body of the deceased to be treated with respect (Michalowski & Woods, German Constitutional Law: The Protection of Civil Liberties, at p. 99). It should be noted that the

desecration of graves constitutes a criminal offence under German law (*126 para. 2 of the German Penal Code (Strafgesetzbuch)).

 

The balance between dignity of the dead and the need to develop land and promote public purposes

 

American law

 

195. American law usually grants a right to the spouse of a deceased, or his other relatives, to have possession of his body for the purposes of burying it. Notwithstanding, in view of the effect that burial arrangements have on the public interest, including public health, as well as safety and welfare issues, this matter is subject to arrangements in statute, and it is not entirely subject to the wishes of the individuals concerned (22A Am. Jur. 2d (2003) 11). The courts are very cautious not to intervene in private matters concerning burial. Even though they have authority to decide such issues, their authority is qualified by the Establishment Clause in the United States Constitution, which restricts the court with regard to decisions on disputes concerning religious outlooks and customs associated with religion. In resolving disputes of this kind, the court apply neutral legal principles, in so far as possible, and at the same time they take account of the customs of the community when dealing with the deceased, and the sensibilities relating to proper and dignified treatment of the deceased*s body (22A Am. Jur. 2d (2003) 12). The relatives of the deceased are entitled to protection of the burial site against violation or interference. But this right is subject to the police exercising its authority, and where the cemetery is abandoned, this right of the relatives is not recognized (14 Am. Jur. 2d (2000) 591-592).

 

196. Similar to the Israeli legal approach, so too in American law the cemetery is regarded not only as a place for burying the dead, but also as a site that creates a relationship of love and respect of the living for the dead. Thus those who stand in the stead of someone who bought for himself a burial site, and his relatives, are entitled to visit, tend and adorn the grave. Visitors to the cemetery have a right of access to the site, within the framework of reasonable arrangements. These rights are subject to rules and procedures that apply in cemeteries (15 Am. Jur. 2d, at pp. 589-590). Thus a right to a decent burial is recognized, and this is given protection in the law. The public, as well as the individual, has an interest in the protection of this right (22A Am. Jur. 2d (2003) 21). The duty of burial is regarded as a duty of the deceased*s relatives but also of the whole community, as a general moral value (Holsen v. Heritage Mut. Ins. Co., 165 Wis. 2d 641 (Ct. App. 1991); 25A Corpus Juris Secundum (1966), at p. 507). Some of the states in the United States give preference to the wishes of the deceased concerning his burial or the manner of treating his body after his death, and these wishes may override other interest, including the position of his family members (see, for example, Estes v. Woodlawn Memorial Park, Inc., 780 S.W. 2d 759 (Tenn. Ct. App. 1989)). But despite the importance of this consideration, it is not always possible to give precedence to the wishes of the deceased, especially when later events give rise to a need to change the burial site. The deceased*s wishes have a weight that varies according to the circumstances of the case, subject to those circumstances being taken into account, including the public interest, the sanctity of the grave, the sensibilities of the deceased*s family members, cemetery arrangements and ecclesiastical law, and after weighing up the conflicting considerations (22A Am. Jur. 2d (2003), at pp. 28-29; 25A Corpus Juris Secundum (1966), at pp. 500-502).

 

197. With regard to the issue of moving graves, American law determines that because of the sanctity of a burial site, it should not be moved unless there is a special need for this, or where moving a grave is intended to realize important purposes (22A Am. Jur. 2d (2003), at pp. 54-55). This was discussed by the Court of Appeals in the State of Tennessee:

 

*Except in cases of necessity and for laudable purposes, it is policy of the law that the sanctity of the grave should be maintained and that a body, once suitably buried, should remain undisturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing that it is necessary, and that the interests of justice require it* (Estes v. Woodlawn Memorial Park, Inc., 780 S.W. 2d 759 (Tenn. Ct. App. 1989).

 

See also Welch v. Welch, 269 Ga. 742 (Sup. Ct. Ga. 1998); Tully v. Tully, 226 Ga. 653 (Sup. Ct. Ga. 1970).

 

The possibility of moving a grave is examined in the special circumstances of the case. Thus, for example, the court will usually approve a reinterment in a family burial site that was bought at a later date, especially when the application is filed by the deceased*s relatives. Similarly permissions is likely to be given for a reinterment where a renovating of the cemetery is needed, or when it has been abandoned as a cemetery, or it has become an unpleasant sight (25A Corpus Juris Secundum (1966), at pp. 495-498). By contrast, the removal of a grave that is solely intended for economic benefit is not a sufficient reason for approving the removal. Moving a body from its resting place to another cemetery will not be permitted by the court if it is possible to realize the wishes of the parties in a reasonable manner without the body being disturbed (22A Am. Jur. 2d (2003), at p. 55).

 

198. In American law it is possible to find a distinction between the protection afforded by statute to ancient graves and that afforded to cemeteries that are in current use. The passage of time has an effect on the scope of the protection given by law to the burial site: *The terms *body* and *corpse* found in this statute do not include the remains of persons long buried and decomposed* (State v. Glass, 27 Ohio App. 2d 214 (1971), at p. 218).

 

199. A case that was heard in New Jersey concerned a burial site that had not been actively used for approximately seventy years, and over the years it had been neglected. The court allowed the church to move the bones of the persons buried there to an adjoining area, while giving validity to the public interest in developing the area, and it preferred the needs of the living to respect for the dead when it held:

 

*Respect for the dead does not require that land once used as a burial ground shall forever be hallowed and set aside as a final resting place. If that were so, the dead would in time crowd the

living off the face of the earth* (Trustees of First Presbyterian Church in Newark v. Alling, 54 N.J. Super. 141, 148 A. 2d 510 (1959)) (emphasis not in the original).

 

200. In Virginia the Supreme Court held in a certain case that the removal of graves was permitted, and it also regarded this as an action that sometimes protected the dignity of the dead. In that case a statue was erected in honour of George Washington, which required the removal of graves to another part of the cemetery. The graves that were designated for removal were in a dilapidated and neglected condition. The court held that the removal of the graves would benefit the removed graves and would result in an improvement to their neglected condition (Grinnan v. Fredericksburg Lodge, 118 Va. 588 (1916), at p. 593(. Subsequently a law was enacted in 1966 that expressly regulated a possibility of removing graves with the approval of the court (Va. Code Ann. *57-38.1). It has been held that this statute de facto adopted the principles laid down in Grinnan v. Fredericksburg Lodge with regard to the possibility of removing graves, also from the viewpoint of the benefit of those interred (In Re Petition of Gregory French, 10 Va. Cir. 133 (Va. Cir. Ct. 1987), at p. 134).

 

201. In the State of New York, it is possible, with court approval, to move abandoned graves and cemeteries in which there has been no burial for twenty years, in order to use the land for various purposes (NY CLS Gen Mun *164 (2006); NY CLS Town *296 (2006); NY CLS Vill *15-1508 (2006)).

 

202. The law in Louisiana addresses actions that need to be carried out when an unmarked cemetery compound is discovered, and the duty to obtain the approval of the competent authority before continuing works on the site. The law mentions, as a part of its purpose, the importance of protecting the dignity of the dead:

 

** (to) assure that all human burial sites shall be accorded equal treatment, protection, and respect for human dignity without reference to ethnic origins, cultural backgrounds, or religious affiliations* La. Rev. Stat. Ann. * 8:672 (2007) (emphasis not in the original).

 

Accordingly, the law provides that if an unmarked cemetery compound is discovered:

 

** every reasonable effort is to be made to restore the unmarked burial site and to avoid disturbing the human skeletal remains or buried artifacts* (ibid., at * 8:681).

 

203. Also in Texas and Minnesota legislation permits the removal of unmarked cemeteries only if a special permit is received from the competent authority (Tex. Health & Safety Code Ann. * 711.010 (Vernon 1998); Minn. Stat. * 306.243(2) (2006)). Georgia allows building on an unmarked

cemetery site, but this too is subject to the conditions provided in the law. The promoter is required to obtain a licence (Ga. Code Ann. * 36-72-4 (2007)), to hire an archaeologist who will supervise the removal of the graves (Ga. Code Ann. * 36-72-15 (2007)) and to ensure the reinterment and pay any financial compensation for any harm to the graves (Ga. Code Ann. * 36-72-14(b) (2007)).

 

204. Unlike in other states, the law in Kansas prohibits all building in a cemetery compound, which is defined as a parcel of land that is designated and marked for human burial, even with the passage of time (Kan. Stat. Ann. * 12-1441 (2006)). The Supreme Court of Kansas has held:

 

*Once established, a cemetery retains its character as such even after burials have been discontinued, as long as human remains are interred there* When a tract of land has been dedicated as a cemetery, it is perpetually devoted to the burial of the dead, and may not be appropriated to any other purpose* (Lower v. Board of Dir. of Haskell County Cemetery Dist., 274 Kan. 735 (2002), at p. 740).

 

The legislature in Kansas also saw special importance in protecting unmarked graves, which do not fall within the scope of the law preventing building, and therefore it enacted a special law in this regard: the Kansas Unmarked Burial Sites Preservation Act, Kan. Stat. Ann. * 75-2742 (2006).

 

This statute was enacted because it was recognized that the existing laws did not provide a satisfactory solution to the protection of unmarked graves, and that there were no satisfactory arrangements concerning the treatment and removal of graves from unmarked sites, which were intended to protect the dignity of the dead and those related to them. Unlike marked cemeteries, those that are unmarked were not given absolute protection, and it is possible to carry out building works on the site, but these works are subject to the restrictions and permits provided in the statute. The question of what is the area that will be regarded as a cemetery, and when a cemetery will be regarded as unmarked will be determined, inter alia, in view of the indications of the existence of graves, and in view of the question of what is the area of the compound that was used for burial (see in this regard the opinion of the Attorney-General no. 95-88, 1995 Kan. AG Lexis 86).

 

205. We should also point out that there are Federal laws that give protection to the burial sites of Native Americans. The main one of these is the Native American Grave Protection and Repatriation Act, which regulates matters concerning cemeteries that are located on Federal or tribal land. The law recognizes the interest in preserving these sites and the right of the tribes to receive into their possession human bodies and cultural items that are discovered on Federal or tribal land. The law is regarded, first and foremost, as**

 

** human rights legislation; and is designed to redress and protect the *civil rights of America*s first citizens** (C.A. Amato, *Digging Sacred Ground: Burial Site Disturbances and the Loss of New York*s Native American Heritage,* 27 Colum. J. Envtl. L. 1 (2002), at p. 16).

 

English law

 

206. In the past English law prohibited building on burial sites that were owned by the church or another religious community. In 1981 a law was enacted that permits building on compounds that were owned by a religious body in the past, on condition that no burial has taken place on the site in the last fifty years, or no relative or other person connected with a deceased who was buried without the last fifty years expresses an opposition to such building. Section 2 of the law requires the removal of the graves, in the event of building, unless the competent authority is of the opinion that the building will not harm the graves ((Disused Burial Grounds (Amendment) Act, 1981 (Chapter 18)). English case law has also recognized the possibility of building on grave sites for the public benefit. Thus the building of a road was permitted on a church burial site for reasons of public benefit. The court held that the public benefit in improving the transport system overrides the general interest and the personal interest of family members of the deceased in leaving the tombs where they are. Notwithstanding, the court ordered the graves to be removed to a more dignified and attractive part of the compound (Morley Borough Council v. St. Mary the Virgin (1969) 3 All ER 952).

 

Australian law

 

207. Australian law has also seen a need to preserve a balance between the protection of burial sites and conflicting public interests. A series of specific acts of legislation in Australia allows a change of the use of cemeteries for various public interests. The Conversion of Cemeteries Act, 1974 N.S.W. Acts (1974), provides the general statutory framework according to which it is possible to convert cemeteries into a public park, subject to various conditions, which require the dignified removal of the graves to another site, without any harm to the buried bones. In another series of legislative acts the possibilities of using cemeteries for other public purposes have been regulated. The Camperdown Cemetery Act of 1948, N.S.W. Acts (1999), allows a cemetery to be used for building a public park; the Campbelltown Presbyterian Cemetery Act, 1984, allowed a cemetery to be used for building a public road.

 

208. Some scholars learn from this series of legislative acts that the Australian legislature has indeed recognized the importance of protecting the dignity of the dead, but at the same time it has given precedence to the needs of the living in the balances that it makes:

 

** Generally, human remains will not be disinterred unless construction, or some other procedure, is going to disturb them anyway, but the existence of the legislation itself suggests a tacit acceptance of the primacy of the living over the dead and a willingness to disturb human remains if it appears necessary* (P. Vines, *Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds in Australia,* 20(1) Sydney Law Review 78 (1998)) (emphasis not in the original).

 

Later the author says that the element of time also has a material effect on the strength of the interest of the deceased*s relatives:

 

*While there is a general rule that bodies should not be disturbed, it is fairly easily overturned, if it is seen expedient. In particular, it is clear that the rights of the living are seen as predominant* (emphasis not in the original).

 

209. It can be seen that despite the sweeping recognition of the importance of protecting the dignity of the dead, which is common to the law of many countries, giving a constitutional dimension to this value is very rare. By contrast, the tension between the need to protect the dignity of the dead and the dignity of burial sites, on the one hand, and the public interest inherent in building and developing the land and promoting the welfare of the population is not unique to Israel. In general it can be said that in most of the countries that we have reviewed, the public interest of promoting the welfare of the living has priority, even if this involves a change in the location of graves and their removal. In general, building is allowed above ancient or unmarked graves, but this is subject to restrictions that are intended to protect the dignity of the dead and to respect traditions and sensibilities relating thereto. The point of balance between these values varies from one country to another, according to its concepts and heritage.

 

From general principles to the specific case

 

210. The question that we need to decide in our case is whether the implementation of the city building plan for the building of the Museum of Tolerance on the site designated for it, which has received final approval, satisfies the conditions of the limitations clause, even though the remains of ancient graves and human bones, which are concealed from sight, have been discovered on a relatively small part of the compound. Does the violation of the basic right of respect for the dead, together with values concerning the preservation of sites with religious sanctity and the sensibilities of members of the public, satisfy, in the circumstances of the case, the criteria that are laid down for the *constitutionality* of the violation? The considerable delay in filing this petition also has repercussions for the question of the strength and weight that should be attributed to the alleged violation caused by the realization of the plan as a result of the discovery of the remains of graves.

 

211. The conditions of the limitations clause make the constitutionality of the violation of the basic right dependent upon the violation being carried out in accordance with a law that befits the values of the state, is intended for a proper purpose and is not excessive. The limitations clause is the formula for balancing the conflicting values (HCJ 6893/05 Levy v. Government of Israel [2005] IsrSC 59(2) 876, at p. 887; Horev v. Minister of Transport, at p. 41; HCJ 8988/06 Meshy-Zahav v. Jerusalem District Commissioner (unreported decision of 27 October 2006), at para. 10). The limitations clause gives expression to the idea that human rights are not protected to the fullest extent; the needs of society and national goals may allow a violation of human rights. But the

restrictions upon human rights have limits, and these are set out in the limitations clause (Gaza Coast Local Council v. Knesset, at pp. 545-546; Solodkin v. Beit Shemesh Municipality, at p. 612).

 

212. Let us examine the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, as they apply to the case before us.

 

Violation by virtue of statute

 

213. A violation of a constitutional basic right is first and foremost conditional upon it being done in accordance with a law or by virtue of an express authorization therein (HCJ 10203/03 HaMifkad HaLeumi Ltd v. Attorney-General (not yet reported decision of 20 August 2008).

 

214. In our case, the building of the museum is regulated in city building plan no. 8030, which allows building on the compound that is the subject of the petition. A city building plan, in itself, has the status of law (Kanei Batim Ltd v. Netanya Local Planning and Building Committee, at p. 742; Nakar v. Herzliya Local Planning and Building Committee, at p. 634; State of Israel v. Rashid, at p. 416). The source of authorization for the approval of a plan as aforesaid is the Planning and Building Law, which regulates in article 3 of chapter 3 the powers of the planning authorities to approve local outline plans, and to allow a change of the use of an area of land to an area where building is permitted.

 

215. The museum compound is situated in the heart of Jerusalem, and since the founding of the state several plans have been approved for this area, and these have gradually led to an increasing development of the area. These plans received final approval and for the most part have been carried out in practice. Outline plan no. 856, which was approved in 1960, was intended to develop the area for residential and commercial purposes, and areas were allocated for public buildings, open public areas and open private areas; areas were also marked for renewal and roads were planned and cancelled (section 5 of the plan*s rules). Within the framework of this plan, the compound was separated from the cemetery and it was made available for development and building.

 

In local outline plan 2009, which received final approval in 1979, the building of an underground car park was approved, and a public road to the car park was designated; in local outline plan 1880A, which received approval in 1991, the road linking Hillel Street to Agron Street through Independence Park was outlined. In local outline plan no. 4998A, which was approved in 1998, the use of an open public area was changed to a commercial area, and in local outline plan no. 4740 the addition of two storeys to *Beit HaMehandess* and the construction of two new buildings was planned. The museum plan (no. 8030) is a direct continuation of the various uses of the land that have been made in the compound for decades, and its purpose is to change the use of the area from a special commercial area, an open public area and a road to a public building area that is intended

for a museum and an auditorium. The planning proceedings for the area in accordance with this plan were carried out lawfully and the plan was approved and received final validity.

 

All of the aforesaid circumstances indicate that the building on the compound in accordance with the plan is being done within the framework of the law or by virtue thereof.

 

216. The Planning and Building Law authorizes the approval of plans or areas intended for development, and it does not restrict these plans solely to areas where antiquities or ancient graves are not likely to be found under the ground. It assumes in all of its express and implied provisions that the designation of land for development and building will not be affected even if during the works remains of ancient graves are discovered. The assumption of the law is that such a discovery does not undermine the plan, even if it may require various adjustments, in order to minimize in so far as possible the violation of the constitutional value of respect for the dead. The position is different from a planning viewpoint when we are dealing with a recognized cemetery that is classified as such on the plan that applies to the site. With regard to such a site that is designated from a planning viewpoint as a cemetery, development and building on the site that are inconsistent with the planning designation are usually not permitted.

 

217. A distinction should indeed be made in the planning context between compounds that are designated for building and development purposes, where from the outset there was no knowledge that the remains of graves existed under the surface of the land, and areas that are defined in their planning designation as *cemeteries* or *antiquity sites,* which have historical or archaeological importance. With regard to the latter, legislation provides a series of different arrangements that are intended to ensure their proper conservation. Thus, for example, the Planning and Building law provided in section 49(5) that it is possible to lay down provisions in a national outline plan with regard to the preservation of antiquities and holy sites; section 57(4) of the law provides that in a district outline plan it is possible to lay down provisions concerning antiquities and also concerning cemeteries that will be used by more than one settlement (subsection (c)). In local outline plans it is possible, inter alia, to lay down provisions concerning the preservation of anything that has historical, archaeological or similar importance (section 62A(3) of the law); it is also possible in such a plan to designate land for cemeteries, and it is also possible to stop the use of existing cemeteries (section 63(e)(1) of the law). It is possible to expropriate land for public needs in order to designate it for a cemetery (section 188 of the law). Section 99 of the law provides that a provision in a plan concerning the preservation of a holy site or cemeteries shall be made after consulting the Minister of Religious Affairs. According to the Antiquities Law, there is a prohibition against carrying out various works on an antiquities site; these include building and paving roads without written approval from the director, and the works are subject to conditions that he will determine. This prohibition applies to an area that has been declared an *antiquities site,* when the declaration has been published in Reshumot; such a declaration is also accompanied by the registration of a note in the land register and the giving of a notice to the owner or occupant of the site and the planning authority (section 28 of the Antiquities Law).

 

218. According to the Antiquities Law, there is a prohibition against carrying out certain works on an antiquities site, and permitted works are subject to the supervision of the competent authority under that law.

 

Section 29 of the law provides:

 

*29. Prohibition of works on an antiquities site

(a) On an antiquities site, a person shall not carry out nor shall he permit the carrying out of one of the following, without a written approval from the director and in accordance with the conditions thereof:

(1) Building, paving, constructing an installation, quarrying, mining, drilling, * or burying.

*

(c) With regard to an antiquities site that is used for a religious need or is consecrated for a religious purpose, the director shall not give approval for digging or for one of the works listed in subsection (a) without the approval of a ministerial committee that is composed of the minister as the chairman, the Minister of Religious Affairs and the Minister of Justice.*

 

Section 31 of the Antiquities Law addresses conditions for returning a site to its original state when prohibited works are carried out on it, and section 30 provides that a permit that is required under the Antiquities Law does not make it unnecessary to obtain a permit under the Planning and Building Law.

 

219. Section 70 of the Water Law, 5719-1959 (hereafter** the Water Law), provides that if the implementation of a plan for a water facility desecrates a holy site according to the meaning thereof in the Palestine Order in Council, or a religious place of worship, which also includes a cemetery for this purpose, the competent authority shall not approve it without the consent of the Ministry of Religious Affairs.

 

220. A review of this legislation leads to the following conclusions:

 

First, the collection of legislative provisions set out above is intended to regulate the performance of works in cemeteries or antiquity sites which are recognized sites that have been declared and classified as such, whether under the planning and building laws, the Antiquities Law, or the Water Law. They do not apply to compounds that have not been declared or classified as aforesaid, even if in the course of carrying out building and development works remains of antiquities or the remains of ancient graves are found under the ground.

 

Second, the various laws that regulate the preservation of cemeteries and sites of historical and archaeological value do not absolutely rule out, even at declared sites, any development works at the site, but they make these works subject to the supervision of the relevant competent authority, in order to ensure proper conservation of the character and uniqueness of the site and the findings that were discovered on it.

 

221. In our case, we are not speaking of an area that is classified as a cemetery, nor of a declared antiquities site. Therefore the aforesaid provisions in the various laws do not apply here. Notwithstanding, the spirit of those legislative arrangements, which require a proper balance between the need to develop the land, on the one hand, and the values of preserving antiquities and respecting burial sites, on the other, is also applicable in our case.

 

The plan for building the Museum of Tolerance satisfies the first condition of the limitations clause, which makes the existence of the *violation* conditional upon it being done in accordance with statute or thereunder.

 

Befitting the values of the State of Israel, and having a proper purpose

 

222. The second prerequisite of the limitations clause demands that the violation is consistent with the values of the State of Israel as a Jewish and democratic state, and that it has a proper purpose. There is a close connection between the conditions for befitting the values of the state and having a proper purpose. A violation that is done for a proper purpose will usually be consistent with the accepted and proper values of the public in Israel. The question of the proper purpose is examined on two levels. The first addresses the question whether the purpose involved in the violation is intended to serve a proper social interest, and the second asks how important it is to realize this interest. Determining a reasonable balance between conflicting rights and achieving important public purposes satisfy the requirements of the proper purpose:

 

*It has already been held in our case law that a purpose is proper if it is intended to protect human rights, including by determining a reasonable and fair balance between the rights of individuals who have conflicting interests, in a way that leads to a reasonable compromise in the sphere of granting optimal rights to each individual. Moreover, a purpose will be regarded as proper if it serves importance public purposes of the state and society, in order to maintain an infrastructure for living together and a social framework that seeks to protect and promote human rights* (Menahem v. Minister of Transport, at para. 14).

 

(See also CrimA 6659/06 A v. State of Israel, at para. 30 of the opinion of President Beinisch; Levy v. Government of Israel, at pp. 888-889; Horev v. Minister of Transport, at pages 52-53).

 

223. The proper purpose does not ignore the potential violation of the right, but when it exists, and the other conditions are satisfied, it makes the violation constitutional (HCJ 8070/98 Association of Civil Rights in Israel v. Ministry of Interior [2004] IsrSC 58(4) 842), at para. 3 of the opinion of Justice Rivlin; Movement for Quality Government in Israel v. Knesset, at para. 52 of the opinion of President Barak).

 

224. In the case under consideration before us, we are dealing with a plan for public building of special municipal and national importance. It is intended to bring about the building of a public building that is supposed to reflect very important social and cultural ideas, which can make an important contribution to the public on both a national and an international level. Building the Museum of Tolerance as an ideological and spiritual centre is intended to attract visitors from Israel and abroad. It is intended to give an impetus to the development of Jerusalem as the capital of Israel, and it constitutes a part of an overall plan for substantial change in the city centre, which will turn it into a cultural, business and tourist centre. Carrying out the plan also involves the realization of property rights that are held by the project owners, and a reflection of the freedom given to them for artistic and conceptual expression through the planning of the building by Architect Frank Gehry. In all of these senses, the realization of the plan befits the values of the state and is intended for a proper and important purpose.

 

Proportionality

 

225. The principle of proportionality in the limitations clause examines whether the means adopted to realize the purpose is proportionate. In the broad sense, proportionality examines the relationship between the importance of the action, which involves the violation of the constitutional right, and the extent of the violation of the right from the viewpoint of the means adopted to realize the purpose. This principle focuses on the relationship between the purpose whose realization is being sought and the means adopted to realize it (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264, at pages 839-840). The content of proportionality is derived from three sub-tests: the first*concerns the question of the existence of a suitable relationship between the purpose and the means adopted; a rational connection is required between the means and the purpose whose realization is being sought. The second is the least harmful measure test. The meaning of this is that of all the measures that can be adopted to realize the purpose, the measure that violates the constitutional right to the least degree should be adopted. The third is the test of proportionality in the narrow sense, which examine whether the violation of the constitutional right is commensurate with the benefit obtained from realizing the purpose involved in the violation. These three subtests all need to be satisfied in order that the requirement of proportionality may be satisfied (CrimA 6659/06 A v. State of Israel, at para. 31; United Mizrahi Bank Ltd v. Migdal Cooperative Village, at page 438; Gaza Coast Local Council v. Knesset, at pages 550-551; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433; AAA 4436/02 Tishim Kadurim Restaurant, Members* Club v. Haifa Municipality [2004] IsrSC 58(3) 782, at page 815).

 

226. In the case before us, from an overall perspective, the interest of building the Museum of Tolerance in the centre of Jerusalem, with the special importance attached to this project from various viewpoints, conflicts with the concern of a violation of the dignity of the dead, as a result of the discovery of the remains of graves in a certain part of the compound. In the balance that is required between the two aforesaid conflicting values, consideration should be given, inter alia, to the following general criteria:

 

First, the importance and uniqueness of the Museum of Tolerance plan in its defined position in the centre of the city, and the degree to which it is possible to relocate the plan to another site without undermining its basic purpose;

 

Second, the degree to which it is practically possible to change the existing plan by excluding the *purple area* from the scope of the plan, so that nothing will be built on this area;

 

Third, what is the size of the *purple area* that is the subject of the dispute, relative to the area of the project as a whole;

 

Fourth, what was the character and classification of the area under dispute before the discovery of the remains of graves, and what were its uses over the years;

 

Fifth, the stage of the discovery of the graves from the viewpoint of the planning proceeding** was it at the beginning of the planning operations or during them, or only after the plan was approved and the works to realize it had begun;

 

Sixth, was there a delay in filing the petition, and what was the extent of the delay in view of the reliance interest of the promoters and implementers of the project;

 

Seventh, the weight that should be attached to the fact that we are dealing with concealed, unknown and unrecognized remains of graves, with which the public had no relationship before they were discovered, and what is the extent of the violation of the sensibilities of the public in this regard;

 

Eighth, what are the measures that can be adopted in order to reduce the violation of the graves, while realizing the plan;

 

Ninth, the position of the Antiquities Authority with regard to the manner of the proper treatment of the remains of the graves from the viewpoint of conservation and from the viewpoint of protecting the dignity of the dead;

 

Tenth, the weight of respecting the rights of the dead in relation to the needs of the living for development and progress in view of the passage of time and in view of the antiquity of the graves.

 

227. Let us examine against the background of all of these the extent to which the condition of proportionality is satisfied in this case.

 

Rational connection between the means and the purpose

 

228. The means chosen to realize the purpose should lead in a rational manner to its realization (Movement for Quality Government in Israel v. Knesset, at para. 58 of the opinion of President Barak). It is examined in accordance with the outcome, and it is based to a large extent on life experience and common sense (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior, at para. 67 of the opinion of President Barak).

 

229. There is a rational connection between the measure that was adopted, building the Museum of Tolerance, and the desired goal, making the site an ideological-spiritual centre, which will revolve around the issue of tolerance and peace between peoples, between difference sectors of the population and between man and his fellow man. The public interest in the building of the Museum of Tolerance is of multi-faceted importance: it is intended to make an importance contribution to the assimilation of the idea of tolerance in Israel and around the world; it is intended to promote in a significant way the development of the centre of the city of Jerusalem as the capital of Israel and to revive an area that has suffered in recent decades from a cultural, economic and commercial slump, and from terror attacks; it is intended to make a visual and artistic contribution to the urban face of Jerusalem, by means of the construction of a unique architectural creation that has been designed by one of the greatest architects in the world; at the same time it expresses the realization of a private property right of the promoters, who own the rights in the land. The building of the museum is therefore a measure that is intended to serve all of the aforesaid purposes in a rational manner.

 

The least harmful measure

 

230. Of the measures available, the authority or the individual should choose the one that violates the human right least. It is not necessary that the measure should satisfy this test in an absolute sense, only in a reasonable and proportionate sense (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior, at para. 68 of the opinion of President Barak).

 

231. This requirement is satisfied in the present case, in the following senses:

 

The museum compound is an area that has been classified since the 1960s as an open public area; a car park was built on it and a road was paved on it. The uses of the land for approximately fifty years have been consistent with the development needs of the area, and they have not been used at all as a cemetery. The museum plan is a direct continuation of the use of the land in the centre of Jerusalem for promoting the welfare of the public. The building plan of the museum, in the most part, does not encompass areas where there are human remains. The possibility of moving the whole plan to another area of Jerusalem, which will not be in its centre, where there will be no likelihood of finding graves under the ground. From the responses of the project owners, the architect Gehry and professionals in the field of architecture, such as Architect Ada Karmi, it appears that moving the plan to another site is impossible, and the location of the museum compound is an essential element of realizing the plan. Such a change of the museum*s location is not possible in view of the unique nature of the planning, which is boldly related to the specific location around which Frank Gehry designed the architectural and artistic building that he planned. Moreover, from an overall urban planning viewpoint, moving the building from the centre of Jerusalem will fail to realize basic goals that the plan sought to achieve, as a part of an extensive effort to develop the centre of the city and to rehabilitate the status of the city as the capital of Israel. These considerations** both the architectural and professional ones, and those concerning urban development** should be given considerable weight.

 

In this context an examination was also made of the possibility of changing the plan with regard to that compound in order to exclude from it the *purple area* where the remains of the graves were found, which constitutes approximately 12% of the area of the whole museum building. This possibility was rejected for professional reasons, because of the claim that this is an area that is the *heart* of the building plan, and removing it from the whole plan would deal a mortal blow to the artistic harmony of the architecture that was planned. This position should be accepted.

 

232. Notwithstanding, the project owners gave notice that it is possible to prevent a violation of the remains of the graves in the compound in several ways that can completely preserve the integrity of the remains of the graves and the human bones in the *purple area.* In this context, three technological options were proposed for removing the graves to an alternative burial site, while minimizing the contact with them, when the removal work is done under the supervision of the professional authorities and the Antiquities Authority. It should be noted that in the past there have been cases in which Moslem and Jewish graves have been removed with the full cooperation of Islamic and Jewish orthodox bodies, as applicable (e.g., Shukri v. Sharia Court; Darwish v. Custodian of Absentees* Property). Another possibility that was proposed by the project owners was to raise the building on the *purple area* by means of a *suspended floor,* which would leave an air space between the floor that will be built and the land, so that no contact with be made between the building works and the land and the remains of the graves underneath it. The project owners gave notice that they would be prepared to pay the whole cost that will be required in order to finance any measure that will be required for the maximum protection of the integrity of the graves and the dignity of the dead in the *purple area* on the plan.

 

233. In view of the conditions that prevail in the area, it seems to me that the measures that have been planned and proposed by the project owners in order to resolve the conflict between building needs, on the one hand, and the need of preserving the remains of the graves and fulfilling the duty of respecting the dead, on the other, satisfy the requirements of the least harmful measure.

 

234. We should also take into account in this matter the considerable delay that taints the filing of the petition, which occurred long after the plan was approved and after the implementation of the plan had begun. It is clear that the measures that can be adopted in order to minimize the violation when there is no delay are completely different from those that can be adopted when the claim of the violation is raised very late, after the planning works have ended and after considerable effort and money has been invested in the preparations for realizing the plan.

 

235. All of the aforesaid circumstances lead to the conclusion that the proposed measures for implementing the plan, while giving maximum consideration to the needs of preserving and respecting the site in the *purple area,* constitute the *least harmful* measures that satisfy the requirement of proportionality for a violation of the constitutional right.

 

Proportionality in the narrow sense

 

236. The test of proportionality in the narrow sense examines whether the proper realization of the plan is commensurate with the violation of the human right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior, at para. 75 of the opinion of Justice Barak; United Mizrahi Bank Ltd v. Migdal Cooperative Village, at para. 23 of the opinion of Vice-President Barak). This test is a value test; it is a test of the balance between the conflicting values and interests according to their weight. It gives expression to the principle of reasonableness (Levy v. Government of Israel, at page 890; Horev v. Minister of Transport, at page 43). It requires *a reasonable balance between the needs of the public and the violation suffered by the individual* (HaMifkad HaLeumi Ltd v. Attorney-General, at para. 55 of the opinion of Justice Naor; Beit Sourik Village Council v. Government of Israel, at page 850). It requires an ethical balance between the violation and the social benefit arising from the violation (Menahem v. Minister of Transport, at page 279; Movement for Quality Government in Israel v. Knesset, at para. 60 of the opinion of President Barak; Gaza Coast Local Council v. Knesset, at page 550).

 

237. In our case proportionality in the narrow sense examines the question whether there is a proper relationship between the benefit arising from the building the Museum of Tolerance on the existing site and with the existing planning, on the one hand, and the extent of the violation of the basic right of the dignity of the dead that it involves (HCJ 6451/04 Halua v. Prime Minister (unreported decision of 18 June 2006), at para. 11; HaMifkad HaLeumi Ltd v. Attorney-General, at para. 56 of the opinion of Justice Naor; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367, at p. 385). Is the violation that is likely to be caused to the

sensibilities of the public as a result of the implementation of the plan on the *purple area* of the museum compound reasonably commensurate with and proportionate to the benefit that is expected to be derived from building the museum on the planned compound, both from the viewpoint of the general public interest and from the viewpoint of the owners of the property rights in the compound?

 

238. My answer to this question is that, in the circumstances of the case, there is a reasonable and proportionate relationship between the benefit expected from realizing the purpose of building the Museum of Tolerance and the expected scope of the violation caused by realizing the plan in the *purple area,* assuming that steps are taken to reduce the violation in accordance with one of the options that were proposed by the project owners. The following are the main reasons for this.

 

The benefit of realizing the purpose of the building

 

239. The importance and benefit of realizing the plan to build the Museum of Tolerance in the centre of the city of Jerusalem are very great. The Museum of Tolerance embodies an ideal of establishing a spiritual centre that will spread a message of human tolerance between peoples, between sectors of the population and between man and his fellow-man. The establishment of the museum is likely to make an important national contribution to the whole country, in which no centre has yet been built with the purpose of addressing the issue of tolerance in all its aspects, and to bring about the assimilation of this idea among the general public. This centre is supposed to serve as an important focus of attention both in Israel and for the countries of the world. It is supposed to attract visitors from throughout Israel and from around the world, who will visit it and encounter the conceptual, architectural and artistic experience that it is intended to express. The location of the museum in the centre of Jerusalem has special significance, since it is a city that has a special ethical significance for three religions and an ancient history, which is unique to human civilization. Moreover, the existence of a Museum of Tolerance in the capital of Israel against the background of the ongoing Israeli-Arab conflict has special weight in the context of the dynamics of dialogue and the mediation efforts between the opposing sides. The building of the museum in the centre of the city of Jerusalem is intended to make an important contribution to the development of Jerusalem as the capital of Israel and to promote the urban development of the city centre as a municipal centre of local and national importance and significance. The construction of the museum is a part of a broader development plan for the city centre, whose purpose is to rejuvenate the central area that has suffered in recent decades from a serious economic and cultural slump. The development plan seeks to return Jerusalem to its former glory that it has lost over the years.

 

240. The museum project has a special character of its own. It was planned by one of the greatest architects of our generation, Frank Gehry, and it constitutes an architectural and artistic work of great value in its own right. The special architecture of the building in itself is likely to be a focus of attraction, like unique artistic public buildings in other cities around the world.

 

241. Furthering the museum plan constitutes the realization of the property rights that the project owners bought in the area for the purpose of building the project.

 

Considerable amounts of money, amounting to approximately 15 million dollars, have been invested so far in carrying out the project, as well as considerable human resources in the planning and preparations for realizing the project.

 

242. The cancellation of the plan, or the exclusion of the *purple area* from the scope of the plan, because of the discovery of the remains of graves on the site will cause considerable harm to the public and very significant harm to the owners of the property rights in the compound. This would be a setback for an important public initiative, which is likely to make a contribution of special importance to the advancement and assimilation of universal human values; it would be a setback for the chance of building such a centre in Jerusalem, with all of the symbolism inherent therein, and of thereby creating an important impetus and new spirit for renovating the status of the city as a spiritual centre for the peoples of the world and as the capital of Israel. The cancellation of the plan, or any harm to its integrity, would amount to a major economic setback to the project owners, who have already invested huge sums in promoting the plan and preparing to implement it. Cancellation of the plan or any harm to it also means a violation of the freedom of artistic expression that is reflected in the special architecture of the building, and the aesthetic messages that it is seeking to impart.

 

243. The setback to the plan is even greater in view of the fact that we are dealing with an area of land that was already classified decades ago as an open public area, it was subsequently designated for development and building, a multi-storey car park was built on it, buildings were planned on it and a road was paved on it, all of which without any objection. The museum plan itself, for which the proceedings lasted several years, received final approval a considerable time before the present petition was filed. The petition suffers from a very significant delay. In these circumstances, there is both a public and a private interest in the finality of the planning proceedings and in creating certainty and security in the planning field that plans that have received final approval will be realized.

 

The weight of the violation to the constitutional right of the dignity of the dead

 

244. The building and development of the area in which the remains of ancient graves and human bones are discovered under the ground during the works involves a violation of the dignity of the dead, which is tantamount to a violation of a constitutional right. The realization of the museum plan on the site intended for it in the *purple are,* where the remains of the graves were found, constitutes such a violation.

 

245. When examining the scope and intensity of the violation of the constitutional right in our case, I do not see any reason to address the conceptual dispute that was brought before us in the various opinions that were filed in the court by various religious figures and scholars, on the question of to what extent the Islamic religion insists upon the protection of cemeteries and to what extent it allows the needs of the living to override the sanctity of the site, especially when we are speaking of ancient burial places that are hidden from sight. Differing opinions were expressed on this issue, and there is no need to make a determination on this issue from a general viewpoint. The constitutional analysis that we are considering is based on general constitutional principles, which give relative weight to the religious injunctions that are relevant to the issue, but these injunctions, whatever they are, cannot decide the constitutional question. In the circumstances of the case before us, it is sufficient to assume that there is a dispute on the question of the extent to which the Islamic religion allows, from the viewpoint of religious injunctions, building and development on land that has the remains of ancient graves underneath it, and to what extent it permits the removal of such graves to alternative sites in order to allow development. It can also be said that there exists at least a predominant stream in Islam, which seeks a balance between new and old even in this area, and reality shows that even in Israel various building and development works have been carried out on Moslem burial sites in various parts of the country, without any opposition on the part of the Moslem community.

 

246. Moreover, I do not intend to address the claims of the some of the respondents who attribute to the Al-Aqsa Corporation political motives in filing the petition, which allegedly have nothing to do with a genuine concern for the sanctity of the place. The motives of the Al-Aqsa Corporation in filing the petition are not a decisive factor in the constitutional analysis. It is sufficient that the petition of the Al-Aqsa Corporation raises a genuine legal and constitutional question of value and significance for the court to address it on its merits, without it needing to examine the motive underlying the filing of the petition. The relevant facts that were brought before us are sufficient for justifying a decision on the question of the required balancing of values, on the assumption that the discovery of the remains of graves under the ground during the land development works according to the plan is an event of ethical and emotional importance to the community concerned, the members of that community and the general public that is liable to respect burial sites, whether that are visible or concealed, as a part of the value of respect for the dead.

 

247. Notwithstanding, in the special circumstances of this petition, the intensity of the value of respect for the dead that is embodied in the remains of the graves discovered on the compound is reduced for several reasons. The result that arises from this is that the overall benefit of realizing the museum plan, subject to the measures that should be adopted to protect the integrity of the graves, overrides the violation that may be caused to the value of the dignity of the dead, and the basic right that derives from this value.

 

248. The reasons for this are as follows:

 

(1) We are dealing in this case with the remains of graves that are approximately 300-400 years old and that were found under the ground, as can be seen from the professional position that was expressed by the Antiquities Authority. We are dealing with a site that throughout the years was

hidden, buried under the ground, unknown and unrecognized by the public or members of the community, and therefore it was not a focus of the sensibilities of the individual or the public. A distinction should be made between the intensity of the value of respect for the dead between visible and recognized cemeteries that are known to the public and classified as such from a planning perspective and the finding of ancient graves in the ground that could not be seen from the surface but were discovered only at the beginning of works that are carried out in accordance with approved planning, which was made without any prior knowledge of the presence of graves on the site. A cemetery on a recognized and known site is classified from a planning perspective with such a designation, and therefore all works on the site are subject to special permits that are intended to preserve the character and purpose of the site. But with regard to sites that show no visible signs of the existence of graves, the land is classified for various planning uses, and development plans are made accordingly, without any awareness and without reference to the existence of the remains of graves under the ground. This reality requires a proper balance between the protection that should be given to the dignity of the dead, even in circumstances where we are speaking of the remains of graves that are hidden in the ground, and the public interest inherent in the realization of building plans and the furthering of development of the land according to the planning classification of the area. From this viewpoint, there is a major difference between what is visible and what is not; between a situation where it is known from the outset where there is a site of graves that should not be harmed, and a situation where the graves are hidden, and the land is intended for various purposes, and the discovery of the graves occurs after the planning is completed, in the course of carrying out the works to realize it.

 

(2) A distinction should be made between a visible and recognized cemetery, which is classified as such from a planning perspective, and which serves as a focus of regard on the part of the public and the relevant community, and the discovery of ancient graves that are concealed on a planning compound, which are revealed in the course of carrying out works, and of whose existence the public was not previously aware. Such a site does not constitute a focus of emotional and religious regard for any community until it is discovered when the works for realizing the plan are begun, and the public or individuals have not had a special emotional relationship with it for many generations. This reality also reduces the weight that can be attributed to the value of the dignity of the dead on such a site for the purpose of the necessary constitutional balance.

 

In our case, the two aforesaid characteristics apply to the museum compound. We are speaking of the remains of graves that were found under the ground and their presence on the site was not known to the public at all. As a result, the area was designated for decades for various development purposes, and the plans to build the museum received final approval without there being any knowledge that there were remains of graves under the surface. Second, this site, because it was hidden, was not the focus of any regard by the public or the relevant religious community. It was not used as a site with any sanctity or religious or human value, and the various uses of it for a public car park and a road testify to the manner in which the public, including the Moslem community, regarded the aforesaid compound. A violation of such a compound cannot be compared to a violation of the nearby Mamilla cemetery, which is classified and designated as a cemetery from a planning perspective, and which the public regards as a site that has had emotional and religious value for many generations.

 

(3) Israel is a small strip of land, of great antiquity, with a history that extends over thousands of years. Naturally it contains large areas of land that may contain ancient remains and both visible and hidden graves. Antiquity sites, including sites with religious sanctity and cemeteries, enjoy special conservation arrangements within the framework of various acts of legislation, and there is a supervision mechanism that is intended to ensure protection for their integrity and dignity. With regard to the hidden sites, their discovery during ordinary planning development requires balances and adjustments in order to ensure, on the one hand, that the violation of sites of emotional, religious and historical value is minimized; on the other hand, it is necessary to seek to reduce the harm to the development and building impetus, which is one of the attributes of the life and existence of modern society in Israel.

 

In the tension that exists between the needs of the living for development, building, progress and an increase in human welfare, on the one hand, and respect for the dead on hidden historical sites, on the other, the former value will tend to prevail, subject to the duty to adopt, in every case, measures that will reduce as much as possible the extent of the violation to the dignity of the dead.

 

(4) In our case, the area of the museum compound was separated from the Moslem Mamilla cemetery as long ago as the 1960s, and it was classified as an open public area. Thus the compound was severed from the area of the cemetery from a planning viewpoint, and it was made available for various kinds of planning activity. A multi-storey car park was built on it, a road was paved on it, and plans were made to construct multi-storey buildings on it. For decades this area was not regarded as a cemetery by the general public or by the Moslem community, and throughout all the planning procedures that took place with regard to the compound over a period of decades, no one denied this position. Not only was the compound not identified as an area with religious sanctity nor was it the focus of any emotional regard, but it was the subject of planning for various purposes throughout decades, without any objection for reasons of the sanctity of the site.

 

(5)   City building plans relating to the museum were considered for several years and underwent the various stages of the plan approval procedures. No objections were raised to the planning on the basis of the possibility that remains of graves would be found in the area. The museum compound plan was deposited on 16 October 2001, and it was approved on 29 August 2002. The building permit to start the works was given on 27 October 2004. The petition of the Al-Aqsa Corporation was initially filed on 2 January 2006, after the works on the site had begun. In these circumstances, we are speaking of an application for relief that is tainted by a very serious delay, and granting it would amount to a serious undermining of the certainty and stability of planning and building proceedings that are carried out in good faith, in accordance with the planning procedures that are regulated in statute.

 

(6) The project owners have so far invested very significant financial and planning resources in the planning procedures and in preparing to implement the plan. The financial investment amounts to a figure of approximately fifteen million dollars.

 

(7) The area that is relevant to our case, in which the remains of graves were found under the ground, constitutes approximately 12% of the whole of the museum compound that is planned for building. This is a relatively small area, in view of the total area of the planned building. The violation of the dignity of the dead in this case is of limited scope. No physical harm to the graves is expected; we are not speaking of an active cemetery, but of the remains of graves that were covered with earth for many years, on an area that was designated for various purposes and on which building and paving operations were carried out. We are speaking of graves and remains whose precise identity is unknown and of petitioners and a community that did not have any connection with this site and specific graves in it over the years. In such circumstances, the scope of the violation caused by the plan is limited, and there is no *violation of the *nucleus* of the right, but only a violation of the periphery, which is of a relatively smaller intensity* (per Justice Vogelman in Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation, at para. 16; see also AP (TA) 2298/05 Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd v. Tel-Aviv-Jaffa Municipality [2005] (1) IsrDC 557, at page 574).

 

(8) With regard to the *purple area* in the museum compound, where the remains of graves were found, various options were proposed in order to reduce to a minimum the violation of the remains that were found, which will be entirely funded by the project owners. The main options are the following two proposals: the removal of the remains to an alternative burial site, by means of sophisticated technological methods, under the supervision of religious authorities and the professional supervision of the Antiquities Authority, without any harm being caused to the remains; the project owners undertook to invest money and resources in the planning, building and maintenance of an alternative burial site, and to refrain from any harm to the graves and the bones. Alternatively, it was proposed to leave the position in the area as it is, and to build a suspended floor over the graves, while leaving an air space between it and the ground. No additional excavations in the ground are required for this option.

 

The position of the professionals, including the Antiquities Authority, is that both of the proposed alternatives completely satisfy the accepted professional requirements for conservation, and they may be approved. The absolute undertaking of the project owners to ensure that no harm is done to the graves, and to treat them, according to the alternative that is chosen, with maximum care and respect, significantly reduces the violation of the constitutional right involved in carrying out the plan on the museum compound.

 

Each of the reasons set out above, on its own, and certainly when taken together, significantly reduces the intensity of the violation of the basic right of the dignity of the dead, which is involved in implementing the museum plan, in view of the special circumstances that characterize the case before us.

 

The balance

 

249. There is a reasonable proportionate relationship between the purposes involved in building the museum and the benefit from these, and the scope of the violation of the right of the dignity of the dead, which is involved in realizing the plan in the *purple area* where the remains of the graves are situated, and in view of the various potential alternatives for preventing a desecration of the graves, and this satisfies the test of proportionality in the narrow sense which is one of the conditions of proportionality in the limitations clause. The many benefits of realizing the museum plan were clarified above. The importance of the plan on ideological, national, international and municipal levels does not require emphasis. No less importance is the value of the certainty and security of planning procedures that have received final approval, and protection for the willingness of promoters to invest resources in projects that benefit society, by creating certainty as to the validity of the planning procedures and the viability of their investments. On the other hand, the violation of the basic right of the dignity of the dead is in this case a limited one, which extends over a relatively small area and can be significantly reduced by various measures that will protect the integrity of the graves and the dignity of the dead.

 

Beyond all this, Israel is a country with an ancient civilization, where the land is replete with visible and hidden remains of an ancient civilization with a history of thousands of years. In this same strip of land a living and functioning modern society, which is entitled to develop, advance and prosper. This society is governed by a constitutional democracy that protects constitutional basic values, including the human dignity of the living and the dead, together with important social values, including respect for the history and heritage of the communities in Israel, and respect for the sites that have an emotional and traditional value. The role of the law is to find the proper balance between these interrelated values** promoting development and advancing society, while respecting human values. In order to achieve a balance, it is necessary for each of the conflicting values to yield to some degree, and by means of this balance social progress will be achieved while upholding the rights of the individual and respecting the heritage and values of the past.

 

An injury to sensibilities as a conflicting value to the implementation of the plan

 

250. An injury to public sensibilities to a degree that exceeds what is *endurable* in a democracy may justify, in exceptional cases, a violation of a human right or a violation of another important public interest. In our case, for all of the reasons that were set out above with regard to the constitutional analysis, it can be said that the injury to sensibilities that may accompany the realization of the museum plan in view of the discovery of the remains of graves on the site, subject to the adoption of all possible measures that can minimize the injury to them, does not exceed what can and should be endured in order to allow people to live together in a democracy that respects human rights. Therefore such an injury to sensibilities does not violate the constitutional balance and administrative reasonableness that are required when balancing the needs of social progress and the duty to preserve the heritage of the past, including respect for ancient burial sites that were hidden for many generations.

 

Summary

 

251. In view of all of the aforesaid, the realization of the museum plan, subject to carrying out measures for dealing with the remains of the graves in the *purple area* in accordance with one of the proposed alternatives, satisfies the constitutional test and administrative reasonableness, and it can be approved.

 

Before concluding

 

252. Before this judgment was given, the project owners applied to this court in an application to dismiss the petition in HCJ 52/06 in limine, for the reason that on 14 August 2008 the Minister of Defence made an order under regulation 84(1)(b) of the Emergency Defence Regulations, 1945, against the Al-Aqsa Corporation, on account of it being a *prohibited association,* and an order was made to seize its assets. The order was made against a background of information that indicates the close connections between the Al-Aqsa Corporation and the Hamas organization.

 

253. I do not see any reason to dismiss the petition in limine because of an order of the Minister of Defence, for the following reasons.

 

254. The question here is whether there is a connection between declaring a body a *prohibited association* because of the character of its activity, which allegedly harms the essential interests of the state, and the legal capacity of such a body, or of the persons who comprise it, to apply to the courts of the state in proceedings that are intended to seek relief for harm that they claim has been caused to them contrary to law. The question is whether making an organization illegal negates its legal capacity and automatically denies it a status to apply to the court and petition for the protection of the law, without any necessary connection to the prohibition imposed on that body, under the order, to continue to manage its prohibited activity, and even to have possession of and manage property relating thereto. It is possible that a distinction is required between types of legal proceedings, their purposes and the reliefs sought in them in order to provide an answer to this question (cf. HCJ 6897/95 Kahane v. Brigadier-General Kroizer [1995] IsrSC 49(4) 853; HCJ 8529/01 Federman v. Jerusalem District Commissioner (unreported decision of 4 November 2001)). In the circumstances of our case, there is no need to decide this question, for the reason that I see no basis for dismissing this petition in limine for various other reasons, which are:

 

First, even if there may be a ground to deny legal relief to an organization that has been declared illegal, a distinction should be made between a situation where the legal proceeding was begun by an organization that was incorporated according to law a long time before the order was made, as happened in our case, and a situation in which the order was made before the organization applied to the court. The proceeding before us was conducted in its entirety, from beginning to end, except for the stage of giving judgment, before the petitioner was declared a prohibited association. These circumstances require and justify the case being heard on its merits and being decided on its merits.

 

Second** and this is the main issue** this proceeding raises a general fundamental question of a constitutional character, which has public repercussions beyond the specific interests of the direct parties to the case. The subject under discussion requires the finding of a constitutional balance between the importance of realizing the museum plan and the duty of respecting the remains of graves that were found in the compound and of protecting the dignity of the dead. This question is of general fundamental importance for the whole public, and it is not limited to the circumstances of this case only. It reflects a conflict between the importance of development, building and progress and the duty of respecting the heritage of the past; it expresses the tension that exists in human lives between the world of the living and the world of the dead, between the heritage of the past and the culture and creativity of the present and the future. It reflects the need to strike a balance between these values by creating a bridge between the various worlds in human life** the past, the present and the future.

 

The nature of the fundamental legal issue that arises in this case requires a judicial decision on the merits of the questions that arise in the proceeding, and it is not possible to dispense with the need to make such a decision because of a motive that may or may not lie behind the filing of the petition, or the declaration that the Al-Aqsa Corporation is a prohibited association, which was made only recently.

 

In view of this, the application to dismiss the petition of the Al-Aqsa Corporation in limine is denied.

 

255. Before concluding, I would like to add the following remarks:

 

During the proceedings in the case, and also in the pleadings and written opinions that were filed during them, a claim was made, inter alia, that realizing the museum plan would result in an emotional upheaval, extreme feelings of sectoral hatred and even acts of violence on the part of various elements in Israeli society that oppose the realization of the plan on the compound where the remains of ancient graves have been found.

 

These claims have not escaped out attention.

 

It is important to emphasize in this respect, in a manner that cannot be misunderstood, that in so far as there are concerns of acts of violence that are contrary to the law as a result of the decision allowing the building of the museum subject to certain conditions, this consideration has no place within the framework of the exercising of constitutional-judicial discretion. While the element of the injury to sensibilities, which results from the implementation of the plan, constitutes in itself a legitimate factor that should be taken into account, the threat of acts of violence and of conduct contrary to the law is not a factor that can be taken into account for the purpose of the judicial decision. It has been said on more than one occasion that judicial discretion should not be affected

by violence in the streets, or a threat of any other unlawful conduct, as a factor in the internal balance between the factors that are relevant to the decision. The judicial decision is based on a proper balance between the internal weight of the considerations that are relevant to the case, and a threat of unlawful conduct is not a relevant consideration but one that falls outside the scope of the case, and it should be considered (President Barak in Horev v. Minister of Transport, at pages 77-78). Tolerance and understanding for the sensibilities of others as a factor in judicial discretion does not mean giving in to the external pressure of unlawful demonstrations or acts of violence on the part of extremists, who seek to impose their will on the state authorities (HCJ 512/81 Archaeological Institute of the Hebrew University in Jerusalem v. Minister of Education and Culture [1981] IsrSC 35(4) 533, at pp. 543-544; Meshy-Zahav v. Jerusalem District Commissioner; HCJ 155/60 Elazar v. Mayor of Bat-Yam [1960] IsrSC 14 1511, at p. 1512; HCJ 230/73 S.T.M. Ltd v. Mayor of Jerusalem [1974] IsrSC 28(2) 113, at p. 119; HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [1978] IsrSC 32(2) 160, at page 165; CrimC (Jer) 3471/87 State of Israel v. Caplan [1988] IsrDC 5748(2) 265). The claims concerning a fear of acts of violence and disturbances of the peace as a result of the realization of the museum plan are therefore not included among the relevant considerations for the purpose of deciding this proceeding, and all sectors and streams of Israelis society can be presumed to respect the decision of the court and act accordingly, all of which within the framework of the law.

 

Conclusion

 

256. For the reasons set out above, I will recommend to my colleagues that we decide as follows:

 

The petition in HCJ 52/06

 

257. The petition, in so far as it concerns the cancellation of the museum plan and the cancellation of the building permits that were given to build the museum, is denied. Notwithstanding, an absolute order is hereby made with regard to the *purple area* in the museum compound, as defined on the map that was attached to the pleadings of the Antiquities Authority of 2 January 2007, as follows:

 

A condition for realizing the museum plan is the undertaking of the project owners (the first and second respondents) to take the following measures with regard to the *purple area* in the plan compound:

 

The project owners are required to refrain from harming the remains of the graves and the human bones that are situated in the *purple area* within the framework of one of the two alternative courses of action:

 

Either**

 

(1) the removal of the graves and remains of bones to an alternative cemetery site according to one of the methods proposed by them in their written pleadings of 3 December 2006;

 

Or *

 

(2) the building of a *suspended floor* above the *purple area,* which allows an air space between the floor of the building and the surface of the land, without carrying out any additional digging works, all of which as set out in the response of the project owners to the order nisi of 1 February 2007.

 

The choice of the course of action and proper method of dealing with the remains of the graves, the actual implementation of the method that will be chosen and the building in the *purple area* of the museum compound shall all be done in coordination with and under the supervision of the Antiquities Authority, as well as the competent authority for planning and building issues relating to cemeteries at the Ministry of Religious Services.

 

It may be assumed that the competent authority at the Ministry of Religious Services will consult the leaders of the Moslem community in Israel before making its decision on the issue under discussion.

 

The proper course of action for dealing with the remains of the graves shall be chosen in accordance with the guideline of minimizing the harm to the graves.

 

All the costs involved in dealing with the remains of the graves in accordance with the method that will be chosen will be paid by the project owners.

 

The final decision with regard to the proper method of dealing with the remains of the graves in the *purple area* shall be made no later than 60 days from today, and immediately after it is made it will be possible to act accordingly in this area and to carry out the works subject thereto.

 

In the other parts of the museum compound it is possible to begin works immediately.

 

The petition in HCJ 1331/06

 

258. The petition is denied.

 

The petition in HCJ 1671/06

 

259. The petition of the project owners in this proceeding is granted, and an absolute order is hereby made to the effect that the issue of the building of the Museum of Tolerance falls outside the jurisdiction of the Sharia Court. Therefore the orders made by the Sharia Court on 2 February 2006 and on 8 February 2006 in case no. 254/06 are void ab initio. The Sharia Court is hereby prohibited from continuing to hear case no. 254/06 and case no. 723/06, or any other proceeding that is pending before it or that will be filed before it, with regard to the building plan of the Museum of Tolerance, since this issue falls outside the scope of its jurisdiction.

 

260. The interim orders that were made in these proceedings are hereby revoked.

 

In the circumstances of the case, I shall propose that we do not make any order for costs.

 

Justice E. Arbel

 

I agree with the comprehensive judgment of my colleague Justice Procaccia, as well as with all of her reasons, and I would like to add some brief remarks on two points that arise before us during the hearing and the decision.

 

1. The Museum of Tolerance, which it was decided would be built in the centre of Jerusalem, is intended to send a message of tolerance that will strengthen human dignity and promote mutual trust and fraternity between peoples and human beings, irrespective of religion, race, sex or nationality. The location of the museum in the heart of Jerusalem, which is a focus of pilgrimages and a religious and spiritual centre, is capable of strengthening the message of fraternity and tolerance to the peoples of the world.

 

I will begin by saying that in my opinion this case, more than any other, should have been resolved by the parties consensually, which would have made it unnecessary to decide the complex questions concerning the very sensitive issues that come between peoples and religions that are seeking to live together with understanding and tolerance.

 

2. On 3 January 2007 we made an order nisi in the main petition, with regard to the area known as the *purple area* in the museum compound. The *purple area* amounts to 12% of the total area of the compound that is intended for building and it contains most of the remains of the graves that are under the ground. According to the order, the respondents were required to show cause why the building plan for the museum compound should not be changed so that the building would not encompass the *purple area.* At the end of the period given for submitting a response, the project owners gave notice in their response that they could not waive the realization of the original plan to build part of the museum on the *purple area.* According to them, imposing an absolute prohibition against building on this area would require them to abandon entirely the building plan for the museum at the present site, and this might also lead to abandoning the whole project. We were therefore left to decide weighty questions that focus on the general public interest of developing and building an important project that has reached the advanced stages of planning and is about to be built, which conflicts with the protection of the value of the dignity of the dead and the respect for ancient burial sites that were hidden and that were not brought before the relevant authorities for many years. The question before us was whether the advancement of the museum project which had, as aforesaid, reached the implementation stage, despite the discovery of remains of graves in the *purple area,* is consistent with the rule or law or is likely to harm it.

 

3. We were faced with a difficult decision. We needed to address the balances that have been discussed at length by my colleague. We were required to place the different values on the scales and, after weighing each of them, to give them their proper weight and to choose which of them should prevail (see also CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464).

 

4. As I have said on previous occasions, the work of balancing the various interests is not easy, especially when we are dealing with interests concerning spiritual and emotional matters (see HCJ 4638/07 Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation). The questions that are involved in the constitutional value of protecting the dignity of the dead, and whether a violation of this value needs to satisfy the limitations clause are difficult and sensitive questions from a legal viewpoint, as well as from the public viewpoint and that of private interests. The world of the dead and the world of the past compete with the world of the living and the world of the future. In cases such as these the court needs to act with great care. At the same time it may not ignore the need to carry out works whose purpose is to develop the land and promote the welfare of its inhabitants, and in the case before us, to promote initiatives that are of importance from an international perspective. I expressed my opinion that the dignity of the dead is a part of the human right of dignity in Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation:

 

*The aforesaid sensitivity [to the dignity of the dead] also requires and justifies a proper and dignified treatment of cemeteries as a final resting place, *for you are dust and to the dust you will

return* (Genesis 3, 19). The cemetery is the final resting place of the body, a memorial to those buried in it, and therefore case law has emphasized the serious, balanced and cautious approach that should be adopted in all matters concerning cemeteries, since this is required *on account of the dignity of the dead, the dignity of the living and the dignity of the Omnipresent* (Jerusalem Community Burial Society v. Kestenbaum, at pp. 500 and 516; HCJ 6685/05 Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd v. Y.G. Contractual Archaeology Co. Ltd). The treatment of cemeteries tells us about society, its attitude to its past and the respect that it has for the individuals in it* (Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation, at para. 1 of my opinion).

 

Notwithstanding, I went on to say:

 

*2. Hundreds and thousands of years of history are layered in the soil of the land of Israel. Where people have lived for hundreds and thousands of years, burial sites will also be found. At the same time the wheels of time move on, the population of Israel is growing and its needs are diverse and affected by the needs of the present. The development of the country, building and laying infrastructures are national interests that have an effect on the lives of the citizens of the state and the quality of their lives. In addition there are property interests that may arise with regard to the same parcel of land on which or in which graves have been discovered. The public interest in developing the country and various property interests as aforesaid may find themselves in conflict with the principle of respect of the dead and for the sensibilities of the public in cases of the kind before us. An additional interest that may arise in certain cases in this context concerns the interest of archaeological conservation and research.

 

3. It is clear in my opinion that when such a development plan *conflicts* with the location of a known and recognized cemetery, then we should do what is needed in order to prevent a violation of the cemetery, even if it involves extra expenses and planning adjustments of various kinds. In such cases it is not possible to ignore the location of the cemetery. A cemetery is not an object that can be moved from one place to another, and eternal rest should mean what it says. Notwithstanding, this does not lead to the conclusion that every development plan is *barred* in the vicinity and neighbourhood of a cemetery, but only that when we are speaking of a recognized and known cemetery or burial site, the promoters know of this and make their preparations accordingly, and it can be expected that those in charge of matters of development and infrastructures will take this fact into account among their considerations from the outset, and they will find a proper solution that takes into account the sensitivity of the issue, in so far as possible after consulting persons who may be injured* (Al-Aqsa Almubarak Corporation Ltd v. Israel Electric Corporation, at paras. 2-3 of my opinion).

 

5. When the work of balancing has been completed, from an overall perspective the scales tip in favour of the interest of building the Museum of Tolerance in the centre of Jerusalem as opposed to the conflicting interests. We have reached the conclusion that the violation of the basic right of the dignity of the dead, together with values of preserving burial sites that have religious sanctity, satisfies in the circumstances of the case the criteria that are required for the constitutionality of the violation and that the building of the Museum of Tolerance on the compound that is intended for

this according to the city building plans satisfies the conditions of the limitations clause. The construction of the museum realizes a proper purpose and is commensurate with the violation of human dignity and the dignity of the dead, the sanctity of the remains of graves and religious sensibilities.

 

6.  Notwithstanding the aforesaid, as I have already said, there is not case more suited than this one for a settlement, consent and understanding. It is hard to escape the feeling that the respondents, who represent the Museum of Tolerance, and especially the parties who seek to bring about the construction of a public building that is supposed to reflect important social values that are capable of contributing to the public on a national and international level, were too inflexible and did not openly and willingly consider the possibility of changing, even if only in some small way, approximately a tenth of the plan, since the main difficulty relates to an area of 12% of the total area that is designated for the building. I have considered their position several times, together with the opinion that supports the approach that regards the architectural planning as an artistic creation that is indivisible. According to their position, the *purple area* is the very heart of the museum, its planning cannot be changed or separated, and removing this area from the plan will undermine the artistic harmony that was planned. As they have clarified, implementing the plan that involves giving artistic and ideological expression by means of the planning of the building by Architect Frank Gehry, befits the values of the state and is intended for a proper and important purpose. We have accepted, albeit on my part with some degree of reservation, that excluding the *purple area* from the scope of the plan will violate the freedom of artistic expression and cause considerable damage and harm to the owners of the property rights in the compound, and that the significance is a setback for the chances of building such a centre in Jerusalem. Nonetheless I think it right to make it clear that it is hard to escape the feeling that the respondents, who represent the *Museum of Tolerance,* and especially the project owners who approached the well-known architect and sought by building the museum to promote the ideas of human dignity, education on the subject of mutual trust and fraternity in society, respecting the values of democracy and especially the value of tolerance, did not do enough in order to reach an understanding and agreement that would have given expression and advanced the ethical perspective that is the focus of the building of the Museum of Tolerance (with regard to the relationship between law and art and their various purposes, see M. Cheshin, *Thoughts on Art and Law,* Mishpat veSefer 1, 2 (2007)).

 

It is difficult not to wonder how the standard-bearers of tolerance were unable to give proper weight to the value of tolerance between peoples and between man and his fellow man in addition to other considerations and interests, no matter how important they are. This case is a test-case of tolerance** tolerance in the sense of realizing one*s desires in part only, a mutual waiver and listening to others; consideration for others, their feelings and their injuries; tolerance of such a kind that ensures the protection of human dignity and strengthens the existence of a democratic society. It is to be regretted that these were lacking when put to the test.  The remarks of Justice Barak in Jerusalem Community Burial Society v. Kestenbaum are apt here:

 

*Democracy is based on tolerance. This is the tolerance of the acts and opinions of others. This is also the tolerance of intolerance. In a pluralistic society like ours, tolerance is the force that unites us and allows us to live together* (HCJ 399/85 Kahane v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255, at page 277).

 

He went on to say:

 

*Tolerance constitutes both an end and a means. It constitutes a social purpose in itself, which every democracy should aspire to realize. It serves as a means and a tool for balancing and reconciling other social goals, where these conflict with one another* (Jerusalem Community Burial Society v. Kestenbaum).

 

In summary of this point, in my opinion more openness and willingness should have been shown to find an agreed solution in this matter for the same reasons that lie at the heart of the building of the museum.

 

8. My second remark concerns the delay that taints the filing of the petition. I agree that there was no basis to dismiss the petition in limine despite the serious delay of the petitioners, who refrained from taking any step before the competent authorities since the designation of the compound was changed to an open public area as long ago as the 1960s and during the paving of the road that passes through the compound, the building of the car park and the holding of the planning proceedings for the building of the museum. All of these took place over decades, without any objection being raised on the ground that the area was a cemetery. I agree that it was right and proper, in view of the sensitivity and importance of the issue, to examine it on its merits, to examine the validity of the museum plan through constitutional lenses, as my colleague has done, in view of the complex and profound issues raised by the petition. Notwithstanding, it is ultimately inevitable that the considerable period of time that passed before the petition was filed, as well as the planning procedures that were completed during the many years that went by, influenced the decision so that in practice they have a weight when considering the matter and balancing the competing interests, even though, as we have emphasized, the delay in filing the petition was not the focus of the decision because of the importance of the interests involved. This issue influenced the strength and weight given to the alleged violation caused by the realization of the museum plan as a result of the later discovery of the remains of graves, which as stated were hidden from site and with regard to which no one raised any objection.

 

9. Indeed, the question of delay ultimately has ramifications of the merits of the matter. The planning proceedings in this case continued for decades. The planning proceedings, as my colleague explained at length, indicate that for almost fifty years the compound has not been a part of the cemetery and it has been used for various public purposes: it was classified as an open public area, plans were approved for an underground public car park and buildings above the car park, and finally the plan for the Museum of Tolerance was also approved for this site. The question is** and no real answer was given to it** why the petitioners refrained during all those years from initiating the appropriate proceedings before the planning authorities. Who prevented them from coming forward and crying out against the violation of the dignity of the dead and the desecration of the sanctity of the site? As my colleague says, even if the remains of graves and human bones in the compound were discovered only several months before the filing of the petition, this cannot explain the failure of the petitioners to appear before the planning authorities, since their position is that the

whole compound is sacred and it is an integral part of the Moslem cemetery. Since this is the petitioners* claim, it is hard to understand how they failed to appear before the competent authorities and to cry out at the stages when the plans were being considered and they had the opportunity of opposing them. It would seem that there can be no doubt that had the claims been raised at one of the stages of the planning proceedings, before the competent planning authorities, their claims would have heard sympathetically, and it is possible that at a preliminary stage changes could have been made in the plan that would also have satisfied the petitioners. But at the stage that they have appeared before us to seek for relief, after years and years during which no claim was raised with regard to the sanctity of the compound despite the various uses that were made of it and the various proceedings that took place with regard to it, and when the judicial scrutiny of this court focuses on examining the administrative discretion exercised when making the decision that is under attack, it is clear that the margin for intervention is narrower.

 

10. In concluding I would like to point out that I have studied once again the pleadings of the various organizations and the opinion of Prof. Shamir. I have considered the concerns that were raised with regard to the negative repercussions that may accompany the building of the Museum on the planned site against a background of the delicate fabric of relations between the Jewish and Moslem communities in Jerusalem and the whole of Israel, the concern that this relationship may be harmed by carrying out the project and the concern that the building of the museum is tantamount to the *lighting of a barrel of gunpowder among the Moslem public in Israel.* Even if their pleadings with regard to the natural sensitivity on this subject arouse sympathy, I agree with the remarks of my colleague Justice Procaccia in this regard. The court does not ignore considerations of a breach of the peace and public order, but the judicial decision is made on an objective basis, and threats of acts of hooliganism or violence will not dictate it (HCJ 5277/07 Marzel v. Jerusalem District Police Commissioner (unreported decision of 20 June 2007); HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [1984] IsrSC 38(2) 449, at pages 455-456). Conduct that goes against the law cannot in any way influence judicial discretion and the consideration of objective and relevant factors only. Public pressure, threats of violence and illegal conduct will not as a rule be taken into account by the court since they are considerations that are external to the province of the law and falls outside the limits of the judgment.

 

*And once again, as always in the land of Israel,

The stones rage,

The earth hides nothing.

*

 

And once again, as always in the land of Israel,

The Gate of Mercy is still shut

And tombstones are shaded by a wall.

*

 

And once again, as always in the land of Israel,

The stones remember.

The earth hides nothing.

The law runs its course.*

 

(Haim Gouri, *Current Account*)

 

As I have said, I agree with the opinion of my colleague.

 

Justice D. Cheshin

 

1. I agree with the opinion of my colleague, Justice Procaccia, in all its parts. I agree both with the result that my colleague reached in each one of the petitions, and with her reasoning, in all its factual details and legal reasons. Notwithstanding, I see a need to add a few remarks with regard to the petitioner*s arguments that rely on the principle of equality.

 

2. The essence of the petitioner*s arguments in this context is that just as Jewish cemeteries in Israel and around the world are given maximal protection against desecration, so too should Moslem cemeteries be protected and no desecration of them should be allowed, and there should be no discrimination between one grave and another.

 

3. As my colleague said in her opinion, in their pleadings the respondents denied the claim of discrimination, which was raised by the petition, by presenting facts that show that there are quite a few cases in Israel and abroad in which buildings were built and roads were paved over Jewish cemeteries, by taking special measures to prevent harm to the graves. I will further point out, already at this stage, that this was usually done with the approval of arbiters of Jewish religious law.

 

4. Below I shall address some of the cases that were presented by the respondents, as well as additional cases, in which, for the most part, consensual religious law solutions were also found. But before this I will first make a few brief remarks on the approach of Jewish religious law on the difficult and complex issue before us.

 

5. Jewish religious law in principle prohibits the removal of a dead person from his grave, according to the literal meaning of the expression: *his dignity rests where it lies,* and his bones should not be moved from grave to grave, except in a very few cases where Jewish law permits this. The following is how Jewish law was summarized in the Shulhan Aruch (which was written by Rabbi Yosef Karo in the first half of the sixteenth century):

 

*1. The dead and bones may not be moved from a dignified grave to a dignified grave, nor from a humble grave to a humble grave, nor from a humble grave to a dignified grave, and it need not be said that they may not be moved from a dignified grave to a humble one. But to bury him in his own burial ground [i.e., to move him to the site where his ancestors are buried], even from a dignified grave to a humble one, is permitted, since a person can be presumed to rest easy with his ancestors. And likewise in order to bury him in the land of Israel it is permitted. And if they placed him them in order to move him [i.e., a temporary resting place], it is permitted in all circumstances. And if he is not protected in that grave, because there are grounds for concern that idol worshippers will remove him, or because water will enter it, or if it is a grave that is found, it is a meritorious act to move him* (Rabbi Yosef Karo, Shulhan Aruch, Yoreh Deah, 363, 1).

 

The subject was summarized almost identically, with references to sources and explanations, in Aruch HaShulhan, Yoreh Deah, 363 (this work of Jewish law was written by Rabbi Yehiel Michel Epstein in the latter half of the nineteenth century).

 

The factor that is common to all of these exceptions is that the moving of the grave if for the benefit of the deceased, and therefore removing him from his grave is permitted.

 

6. Alongside the aforesaid prohibition of moving the dead and bones from their resting place, there is also a *prohibition against benefiting from a grave, the stone and the building,* in the words of the Shulhan Aruch. According to this, no benefit may be derived from a building containing a grave and the stone used to build it (Shulhan Aruch, Yoreh Deah, 368, 1). The Aruch HaShulhan clarifies that the reason for prohibiting any benefit from cemeteries is *because of the dignity of the dead, so that they are not treated with contempt* (ibid., Yoreh Deah, 364, 1).

 

In this context, I should point out that the principle of the *dignity of the dead* was already determined in the Talmud itself (Babylonian Talmud, Megilla 29a). Moreover, in the Jewish world, the dignity of the dead is included in *human dignity,* which was called by the Rabbis *the dignity of human beings,* as clarified by Prof. N. Rakover, in his book Great is the Dignity of Human Beings** Human Dignity as a Supreme Value (1999): *The expression commonly used in our sources is not *human dignity* but *the dignity of human beings** (ibid., at page 18).

 

7. In addition to the aforesaid cases where moving a grave is permitted (*for the benefit of the deceased*), there is another law that was separated in the Shulhan Aruch into a separate law in a different chapter (Yoreh Deah 364, 5), which concerns *a grave that harms the public*:

 

*A grave that harms the public, like one that adjoins a road, even if it was used for a burial with the knowledge of the owner of the field, may be removed, and the site is ritually pure, but no benefit may be had from it if the grave was there first; but if the road was there first, benefit may be had from the site.*

 

8.  In his article *Moving Graves for Public Purposes,* 18 Tehumin 254 (1998), Rabbi Yisrael Rosen says that the source of this law can be found in the Talmud (Tractate Sanhedrin). Rabbi Rosen, who is the head of the Zomet Institute of Jewish Law and Technology, refers in his article to a textual dispute between Jewish law experts with regard to the precise wording of the Talmudic sources (the Jerusalem and the Babylonian Talmuds) on this law, and to the remarks of Rabbi Avraham ben David (known as *Ravad,* who lived in the twelfth century). In his criticisms of Maimonides (Mishneh Torah, Hilechot Tumat Met (Laws of the Impurity of the Dead), 8, 5-6), Ravad wrote:

 

*And the precise wording: a grave that is found may be removed and no benefit may be had from its site [and it is ritually impure], but one that is known may not be removed and its site is ritually impure and no benefit may be had from it, and one that harms the public may be removed and its site is ritually pure and benefit may be had from it* (cited at page 256 of the article; emphasis supplied in the article).

 

I see no need to enter into the question of which wording of the law concerning a grave that harms the public is the most precise wording. For our purposes, it is sufficient for me to say that this law allowed leading arbiters of Jewish law to allow the removal of Jewish cemeteries for public purposes, as set out and explained in Rabbi Rosen*s article. In order to be concise, I shall refer the reader to the article itself, and shall content myself by citing only two passages from it.

 

9. At the beginning of his article, Rabbi Rosen presents the question whether it is permitted to remove graves in a dignified and proper manner for the sake of public infrastructures, and he answers:

 

*It should immediately be said: it would appear that it is obvious and clear that there is no basis for permission, and even not for any discussion, if the interest is a private economic one* The issue under discussion here falls under the category of *public needs,* namely roads and public buildings only [emphasis in the original].

 

We can further limit our question so that it does apply, perish the thought, to deliberate planning *to pass over graves,* plough them up and pave roads on them. The matter under discussion relates solely to cases where, after the digging works in the ground have been begun, it transpires that it is a burial site, and the cost of *moving the road* or the building is more expensive or sometimes unreasonable from an engineering viewpoint* (ibid., at page 255).

 

As explained in the opinion of my colleague, Justice Procaccia, in our case also, the fact that it concerns an area used as a cemetery that was discovered only after the digging on the land began, and the cost of moving the building, which will serve the public, is not only more expensive but is even impossible from an architectural viewpoint in so far as the *purple area* is concerned, since according to the promoters this is the *heart* of the plan for the whole building.

 

10.  Rabbi Rosen ends his article with the following conclusions on the question of when Jewish religious law permits the removal of graves. Because of their importance I will cite them in full:

 

*a. The removal of graves, and digging in them, concern prohibitions of disrespect for the dead, __________, etc., in addition to the inhumane aspect of *poking around* in graves. The removal is permitted only in special cases.

 

b. A *grave that harms the public may be removed.* In the words of Maimonides, it *should be removed,* which implies that it is even an obligation and a recommendation.

 

c. The Shulhan Aruch explains: *like one that adjoins a road.* According to Rabbi Akiva Eger [who lived in the eighteenth and nineteenth centuries] and Netivot HaMishpat [written by Rabbi Yaakov Lorberbaum of Lissa, who also lived in those centuries], it is permitted to remove graves even for *public needs.* There is even an authority that permitted the enlarging of a synagogue, which is a public building.

 

d. Rabbi Shaul Yisraeli [who served as a judge in the Great Rabbinical Court] was disposed to permit it even for *beauty and ornamentation* [parks?] like a *tree that causes harm.*

 

e. When there is permission to remove graves, it is valid even for a cemetery and not merely for isolated graves.

 

f. After the removal, according to many opinions the site may be entered.

 

g. Paving a road over a grave that has not been removed is considered a *great humiliation* and it involves additional problems.

 

h. There are many authorities who hold that there is no obligation to incur serious financial expense in order to avoid moving graves. But there are those who require an effort to be made even when the expense is great.

 

i. The general public should not be required to bear the burden of financial expense; rather each person should be asked to do so according to his means.

 

j. If the *government* creates facts on the ground and begins to pave a road or to build a building on graves, the removal is also permitted if it is impossible to *appease it with money.* But it is not clear is this applies also to a Jewish government.

 

k. There is an authority that wrote that the right of the *governor* to expropriate land creates a situation of *a dead person who is buried in a grave that is not his,* and there is a justified ground for removing him. But it is not clear if this applies also to a Jewish government.

 

l. If a burial site is moved, very great care, dignity and seriousness should be shown. There are religious laws on this issue, but these procedures fall outside the scope of this article* (ibid., at page 273).

 

In view of this summary of Jewish religious law, I see a need to mention once again the great public importance of the Museum of Tolerance in the centre of the city of Jerusalem, which was discussed at length by my colleague Justice Procaccia in her opinion.

 

11. In his article *Between the Freedom of Science and Human Dignity: Studies in the Values of a Jewish and Democratic State,* which was published in a collection or articles entitled Archaeology and Dignity of the Dead * A Collection of Solutions to Disputes that Arose in the Past (Dr A. HaCohen and Adv. B. Kahana-Dror, eds., 2003), Dr HaCohen says:

 

*It need not be said that as a rule experts in Jewish law refuse to make a general statement on this issue, in case creating an opening the size of the point of a needle will lead to the opening of floodgates and to the loss of control over Jewish religious law supervision. Therefore, even in those

cases, which are quite rare, where the removal of bones from their resting place was permitted, the permission was given on an individual basis and in concrete circumstances, and it cannot be used as a permission or as *general* guidelines for any case that will occur in the future* (ibid., at page 27).

 

12. Now that I have reached this point, I will turn to present various cases, in Israel and outside it, where building was carried out in areas that were used as Jewish cemeteries, usually with the consent of Rabbis and arbiters of Jewish law. These cases were taken from among the cases cited by Dr Jack Neriah in his opinion.

 

Europe

 

a. At the end of the 1980s, during the excavations to build a shopping centre in the city of Hamburg, remains of Jewish graves were found. After demonstrations and protests of Jewish organizations, a compromise was reached with the local rabbis, according to which the underground car park was moved to the roof of the building, the graves were covered with a concrete layer with a thickness of approximately one metre, access was allowed to the areas of the graves and a memorial monument was erected on the site.

 

This Jewish religious law solution was made possible as a result of a decision of Rabbi Yitzhak Kolitz, who was the chief rabbi of Jerusalem and a judge of the Great Rabbinical Court. In his responsum, Rabbi Kolitz mentions the claim of the promoters that they did not know when they bought the site that it was a Jewish cemetery.

 

Rabbi Kolitz held:

 

*a. It is prohibited to remove the graves and the earth from the cemetery, even in order to move them to the land of Israel.

 

b. We are not preventing building on top of the cemetery * i.e., on it, but no digging should be done in it.

 

c. The building work on the site should be under the constant supervision of a supervisor who should be appointed by us* (*Removal of Cemeteries,* 18 Tehumin 253 (1998)).

 

He went on to say:

 

*The decision in paragraph b, concerning building on top of the area, was made reluctantly, and in view of the circumstances that the purchases invested much capital in buying the site. But it is certainly not the dignity of a cemetery that buildings should stand on top of it* (ibid.).

 

b. Following the destruction of an existing building in order to build an office building and a car park in the centre of the city of Prague, it transpired that the building stood on an old Jewish cemetery. The Jewish organizations expressed very strong opposition, but after lengthy negotiations a compromise was reached, according to which an area of 240 square metres of graves would not be harmed, a layer of concrete would cover the graves in order to separate them from the new building, and the foundations of the new building would be built around the graves.

 

c. In 2006, during the works to build a car park in the city of Pilsen in the Czech Republic, an ancient Jewish cemetery was discovered on the site. In order to protect approximately fifty graves that might have been harmed by the building, it was decided that the whole car park would be built on piles.

 

Israel

 

a. In the 1980s the Ganei Hamat Hotel in Tiberias was built on land of an ancient Jewish cemetery. The Jewish law ruling of the Rishon LeZion, the Chief Rabbi of Israel Rabbi Mordechai Eliyahu, permitted the building of the hotel, after arrangements were made to build it in such a way *that it would also allow Kohanim [Jewish males descended patrilineally from Aaron, the first High Priest] to use it* (see appendix D). According to the opinion, the solution was *impurity windows,* *impurity pipes* and *impurity tunnels* (see also appendix E).

 

b. In 1995, during the paving of road no. 1 on French Hill in Jerusalem, graves were found from the period of the Second Temple. In the absence of any alternative planning area for paving the road, Rabbi Yosef Eliashiv, a leader of the orthodox community of Lithuanian origins, ruled that it would be possible to drill diagonally underneath the burial site and place the contents of the graves at the bottom of the shaft, and thereby allow excavations of the level of the graves. When the digging was completed, the road was paved on the site.

 

13. In the collection of articles Archaeology and Dignity of the Dead, which was mentioned above, it is possible to find additional cases. I will mention two of these: one, in which a road was paved with the original planned route after a Jewish religious law solution was found, and the other in which the route was changed.

 

a. In the 1980s the Tel-Aviv-Jaffa Municipality decided to extend Kibbutz Galuyot Road. The extension of the road encountered Jewish graves. After members of the Atra Kadisha organization, and their leader Rabbi David Schmidl, understood that there was no alternative to widening the road onto an area where there were graves, they agreed to a solution of raising the level of the road by building a concrete bridge above the graves and creating a separation above them (ibid., at page 61).

 

b. The solution in the case of paving the Trans-Israel Highway north of the Lehavot Haviva kibbutz was, as I have said, different. In that case graves were discovered in the course of the work. After meetings and many mediation attempts that delayed the work for approximately half a year, the Trans-Israel Company decided, in order to prevent any further delay in paving the road, to move the route to avoid the graves, even though this solution involved very high costs (ibid., at page 64).

 

14. What can be seen from all of the aforesaid is that despite the Jewish religious law prohibitions and the aspiration of Jewish law experts to prevent the removal of graves or building on top of them, in practice, in cases where public needs required this, an agreed Jewish law solution has usually been found, and this allowed the building to be carried out in a way that minimized, in so far as possible, the violation of the graves and the dignity of the dead or their remains. Several solutions were adopted to facilitate this: separating the graves from the building that would be built above them (but not on them); Lowering the graves to a lower level in the ground. Jewish religious law also allows, as we have said, the removal of graves in a dignified manner. Balanced solutions of this kind were also proposed by the respondents, and they even agreed to pay all the expenses involved in them.

 

15. In summary, I agree that the principle of equality and the prohibition of discrimination apply, as a rule, not only to the living but also to the dead. Just as there should be no discrimination between one living person and another, in the absence of any relevant difference between them, so too there should be no discrimination between one dead person and another, one skeleton and another or one bone and another. But there is no discrimination in this case. Therefore, and in view of the reasons mentioned in the opinion of my colleague Justice Procaccia, I am in agreement with it.

 

The court has therefore decided in accordance with the opinion of Justice Procaccia.

 

Given today, 30 Tishrei, 5769 (29 October 2008).