REF: F:/Kalagy/HCJ3227/Judgment/BSR/23.12.09[TRANSLATED FROM THE HEBREW]
In the Supreme CourtSitting as the High Court of JusticeHCJ 3227/09Before:Her Honour, President D. BeinischHer Honour, Judge E. ArbelHis Honour, Judge S. JoubranIn the Matter of:1. The Families of Persons Interred in the Maman Allah(Mamilla) Cemetery Committee2. The Jewish Pluralism Center — The Movement forProgressive Judaism3. Rabbis for Human Rights4. The Forum for Civil Consensus5. SIKUI — Association for Promoting Civil Equality6. IPCRI7. Gush Hashalom8. Ben Adam LaAdam Association9. Protection of Liberties Committee, through Mr Amir Mahul10. Prof. Shimon Shamir11. Rabbi Michael Melchior12. Rabbi Naftali Rottenberg13. Prof. Olga Kapliuk 14. Dr Gershon Baskin15. Baruch Shalev16. Uri Avneri17. J. Solomon18. Amir Cheshin19. Tzvi Al-Peleg20. Prof. Yaron Tzur21. Dr Yair Baumel22. Dr Yossie Amitai23. Dr Mahmud Kial24. Hanna Siniora
The Petitioners
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AGAINST
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1. The Antiquities Authority
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Simon Wiesenthal Center3.
SWC Museum Corporation4.
Moriah, the Jerusalem Development Company LtdThe Respondents
Petition for Order Nisi and Interim Order Date of session:9th September 2009On behalf of the Petitioners:Adv. Hassan Tabaja; Adv. Einat HurwitzOn behalf of the First Respondent: Adv. Yoram Bar-SelaOn behalf of the Second Respondent:Adv. Renato Jarach; Adv. Oded Barry; Adv.Ran FironOn behalf of the Third Respondent:Adv. Moshe LipschutzOn behalf of the Fourth Respondent:Adv. Yair Shilo
JUDGMENTPresident D. Beinisch
On 29th October 2008 this Court’s judgment was awarded in the case known to the public as the Museum of Tolerance affair, in which the construction of the saidMuseum was permitted at a site where a Muslim cemetery was located beneath theground. In this petition the Court is being moved to order that the decision of theAntiquities Authority permitting the release of the area of the site for constructionshould be set aside, despite the Court’s earlier findings in the same matter.
Introduction
1.The instant petition is nothing other than “another reincarnation” of the casethat this Court considered at length, which case is also known to the public as“the Museum of Tolerance” affair (HCJ 52/06,
Al-Aqsa Corp. for the Development of Properties of the Muslim Endowment Ltd v. Simon Wiesenthal Center Museum Corp.
(not yet published, 29th October 2008 (hereinafter referred to as “the first petition”)). It should be noted that the trial of that petition was consolidated with two other petitions: 1331/06,
Aldajani v. Israel Police
and HCJ 1671/06,
Simon Wiesenthal Center Museum Corp. v. TheSharai Court - Jerusalem
).In the first petition Al-Aqsa Corp. for the Development of Properties of theMuslim Endowment Ltd (hereinafter referred to as “the Petitioner in the first petition” or “Al-Aqsa Corp.”) sought the cancellation of the building permitsthat had been awarded to the Wiesenthal Centre and SWC Corporation(hereinafter referred to as “the Second Respondent” and “the ThirdRespondent” in the instant proceedings or “the proprietors of the venture”), the
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argument being that the construction of the Museum at the site of the MamanAllah Cemetery in Jerusalem (hereinafter referred to as “the site”) unlawfullyinfringes the dignity of the dead.2.On 29th October 2008 this Court (Judges: A. Procaccia, E. Arbel and D.Heshin) held that the first petition should be dismissed insofar as related to thecancellation of the Museum plan and the building permits that had beenawarded for the construction of the Museum. At the same time, in theoperative part of the judgment detailed provisions were laid down with regardto the acts that the proprietors of the venture had to take when constructing theMuseum on the “purple area”.Before we discuss the petition, it is proper to present the designation of the“purple area”, within the meaning thereof on the date of writing the judgmentin the first petition. According to the information that was produced by theAntiquities Authority (hereinafter referred to as “the First Respondent”) to theCourt, the area of the site was divided into five parts and details about thefindings of the excavations that had been made were given in respect of eachone of them. These proceedings concern area no. 3, which was marked in thecolour purple on the map that was filed by the Respondents. In that area theAntiquities Authority had conducted only partial excavations, but it wassufficient to attest to the existence of many other tombs that had not yet beenexcavated. Nevertheless, from the historical, archaeological point of view, theAntiquities Authority stated that further excavations on its behalf were nolonger necessary and it therefore found that the area could be released for construction on condition that there should be no penetration underground inthat area. In view of that position and in order to avoid harm to the remnants of the tombs and the human remains that were left in “the purple area”, the Courtissued an absolute order (paragraph 257 of the first petition) directing the proprietors of the venture to adopt one of the following alternatives:
either
-the removal of the graves and remains of bones to an alternative cemetery siteaccording to one of the methods proposed by the proprietors of the venture;
or
the building of a “suspended floor” above the “purple area”, allowing an air space between the floor of the building and the surface of the land, withoutcarrying out any further excavation work. It was further held that theconstruction as a whole, including the choice of the appropriate alternativewith regard to the “purple area”, should be done in coordination with, andunder the supervision of, the Antiquities Authority and the competent authorityfor planning and building issues relating to cemeteries at the Ministry of Religious Services. As regards the cost of performance, it was decided thatthey would be borne by the proprietors of the venture. Accordingly, it was heldthat the proprietors of the venture could start the building work immediately, paying attention to the choice of the construction alternative with respect to the“purple area” being made within 60 days.3.It should be noted that the judgment in the first petition was awarded after along time and after numerous hearings. In those hearings a very extensive set
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