Temple Mount Loyalists Society v. Police Commander of the Jerusalem Region

The petition concerned the Respondent’s refusal to permit the Petitioners to pray beside the western entrance to the Temple Mount (the Mughrabi Gate) on Jerusalem Day, out of concern that conducting prayer at that particular site would lead to a breach of public order.

The High Court of Justice held:

A.        (1)        The right to assemble and demonstrate is a basic human right in Israel. It is not an absolute right, but rather a relative right, and when it comes into conflict with other rights or interests, it must, at times, retreat in accordance with an appropriate balancing formula.

            (2)        The appropriate balancing formula between the right to assemble and demonstrate, on one hand, and public safety, on the other, is that of “near certainty”. If harm to public safety in the form of physical injury to the assembled and the demonstrators is nearly certain, that probability is sufficient to justify the denial or restriction of the right to assemble and demonstrate. That is not the case when the harm to public safety is of a lesser degree of probability.

B.        (1)        Every person in Israel enjoys freedom of conscience, belief, religion and worship as one of the fundamentals upon which the State of Israel is founded.

            (2)        That freedom is partly anchored in sec. 83 of the Palestine Order in Council, 1922, while the other part constitutes one of the unwritten basic rights. By virtue of these laws – and in accordance with what is stated in the Declaration of Independence – every law and every power will be construed as recognizing freedom of conscience, belief, religion and worship.

            (3)        Freedom of conscience, belief, religion and worship is a relative freedom that must be balanced against other rights and interests that are also worthy of protection, such as the right to property, both private and public, and freedom of movement. One of the interests that must be considered is that of public order and safety.

            (4)        Freedom of conscience, belief, religion and worship is limited and classified to the extent required and necessary for the protection of public order and safety. Before taking any action that might infringe or restrict this right due to harm to public safety, it is proper that the police adopt every reasonable means at its disposal in order to prevent the harm to public safety without infringing the right to freedom of conscience, belief, religion and worship.

C.        (1)        Even in circumstances in which it is possible to show a concern for public safety, but where actual harm to public safety cannot be proven as a certainty, the police must adopt all the reasonable measures, subject to its abilities, in order to remove or mitigate the said concern. The police must not be deterred by violent elements that seek to harm the realizing of human rights, and a hostile crowd should not be granted a veto over the exercise of basic legal rights.

            (2)        Protecting freedom of conscience, belief, religion and worship is the duty of the police, but not its only duty. It must also protect other freedoms, as well as the freedom of conscience and religion of other people.

D.        (1)        The influence of a threat to public safety upon the exercise of a basic constitutional right is not particular to freedom of conscience and religion. It is common to that right and similar rights, such as freedom of expression and the freedom to assemble and to demonstrate.

            (2)        The principle is that freedom of expression, freedom of assembly and the right to demonstrate must retreat before considerations of public safety only when the probability for harm to public safety is at the level of “near certainty”. It is proper that the “near certainty” test should also serve to establish the balancing formula between freedom of conscience, belief, religion and worship, on the one hand, and public safety on the other. Thus, similar rights will receive similar protection.

E.         (1)        The Petitioners do not have a vested right to pray at the Mughrabi Gate under all circumstances and at any price. They have a right to pray at the Mughrabi Gate as long as that prayer will not create a nearly certain danger of harm to public safety. Such a danger does not exist under the circumstances of this matter.

            (2)        The police must – in the framework of the forces at its disposal – also prepare to confront threats that are not nearly certain. The Respondent must examine the situation as it changes, and if it finds that holding prayer services at the Mughrabi Gate creates a new danger that was not previously present, it has the power to take new action.