By: HaRav Menashe Sasson
In an Orwellian attempt to deny that HaShem gave Eretz Yisra’el, including Har HaBayit (the Temple Mount), to the Jewish people and the Jewish nation, the State of Israel, a self-proclaimed democracy, has long enforced a law which makes it illegal for a Jew to pray on Har HaBayit, while at the same time, encouraging Muslim prayer at that location.
During the week of 15 Iyyar 5782 (May 22, 2022), three Jewish teenage boys were arrested by Israeli police for saying the “Shema” prayer and “bowing” while on Har HaBayit. Notwithstanding a 5777 (2016) Israeli Supreme Court ruling which held that police lack the authority to unilaterally issue restraining orders, the police in this case issued and served the teens with a restraining order which purported to bar them from the Old City, and by implication, from Har HaBayit, for a period of 15-days.
The Israeli police attempted to justify issuance of the restraining order by claiming that the conduct of the boys – reciting the Shema prayer and bowing – may lead to a violation of public order. In other words, Israeli police claimed that Jewish prayer combined with “bowing” may provoke local Muslims to commit illegal acts of violence.
The statement by a police commissioner that engaging in public prayer constitutes a criminal act because such prayer may incite others to commit illegal acts of violence is, in a word, outrageous. Any police commissioner who would make such a claim, rather than order his subordinate officers to protect worshipers from the threat of illegal and violent acts by others, has irreparably violated the public trust and should immediately be dismissed from the police force. Furthermore, it should be no defense that the police commissioner was only acting in accordance with instructions from his superiors, regardless of whether those superiors are politicians or higher-ranking civil servants.
On 22 Iyyar 5782 (Sunday, May 22, 2022), a Jerusalem appellate court, in ruling that police exceeded their authority when they issued a restraining order against the teenage boys, stated “[i]t is difficult to imagine a situation in which shouting ‘Shema Yisrael’ on the Temple Mount would [unlawfully] lead to a breach of the peace.” The court went on to quote Israeli Police Commissioner Kobi Shabtai, who said during the recent, month-long, Muslim holiday of Ramadan that “[t]he Temple Mount is open. The Israel Police allows [sic] all residents of the country and the territories who come to pray on the Temple Mount to ascend and observe the worship of religion [sic].” The police commissioner, however, apparently did not intend for his invitation to pray on Har HaBayit to include Jews.
To state what should be obvious, there is something fundamentally wrong when a Jewish state enacts or enforces a law which makes it illegal for a Jew to pray.
Further compounding this injustice is the apparent disregard by police of a prior Israeli Supreme Court ruling which held that it is unlawful for police to unilaterally issue restraining orders.
In a democratic society, which the State of Israel claims to be, a fundamental principle of law is that the proper role of the police is to enforce the law, not make it. When police claim the power to unilaterally issue restraining orders, they deprive the person(s) against whom such orders issue of due process of law, which in this context means the right to a fair hearing before an impartial judge, prior to the imposition of a restraint on their freedom of movement.
Police officers have an implicit obligation to be aware, and know the substance, of court rulings that delineate the boundaries of their authority. When they exceed their authority, they should be held accountable, both through administrative disciplinary procedures within the police department, as well as through criminal prosecution and/or private civil damage awards against the government and/or against individual police officers.
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Menashe Sasson is a Sephardic rabbi and American attorney who resides in Jerusalem, Israel.