High Court to government: Frozen Western Wall plan 'can be thawed'

Judges indicated they strongly favor the implementation of the now-frozen 2016 government resolution to create a state-recognized egalitarian section at the southern end of the holy site.

By JEREMY SHARON
Updated: SEPTEMBER 1, 2017 00:30
Members of "Women of the Wall" pray with a Torah scroll during a monthly prayer near the Western Wall in Jerusalem's Old City July 24, 2017 (photo credit: REUTERS/Ronen Zvulun)
Members of "Women of the Wall" pray with a Torah scroll during a monthly prayer near the Western Wall in Jerusalem's Old City July 24, 2017
(photo credit: REUTERS/Ronen Zvulun)
The High Court of Justice gave the state six weeks on Thursday to consider reversing the suspension of a 2016 cabinet resolution to create an egalitarian prayer space at the Western Wall.
The order followed sharp criticism by justices of the state’s decision in June to freeze implementation of the resolution.
The three justices at Thursday’s hearing gave a clear indication that the resolution, which would create a state-recognized egalitarian section at the southern end of the Western Wall, was the optimal solution to the imbroglio.
But there appeared to be a difference of opinion between at least two of the three presiding judges, including Supreme Court President Miriam Naor, as to the ability of the court to force the government to implement the resolution.
The justices also strongly hinted that should the agreement not be implemented, they would be unwilling to accede to the demands of the progressive Jewish movements and the Women of the Wall group to establish an egalitarian section at the main Western Wall plaza.
The hearing is a critical juncture for the encumbered question of prayer rights at the Western Wall, and it is possible that a decision on the matter may be forthcoming before Naor steps down from the court.
During the hearing, Naor questioned the state attorneys as to whether or not the government might be willing to unfreeze the resolution, and the attorneys of the petitioners on whether they still accepted the original compromise plan.
Naor seemed to imply that this was her preferred option.
“Things that are frozen can be thawed,” she said, adding that “the agreement was a fitting solution, freezing it is not a legal concept.”
Fellow judge Hanan Meltzer appeared however more circumspect about the ability of the court to force the government to implement its own resolution, implying that this critical question is by no way a foregone conclusion and requesting that both the state and the petitioning parties provide their opinion on this possibility.

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“If the state does not revoke the suspension of the agreement, the government will need to answer whether the High Court has the authority to compel [the government to implement] the agreement,” Meltzer said.
Naor seemed vexed by the very fact that the resolution had been frozen, noting that all sides had “toiled and labored” over the compromise, which took almost four years to arrive at.
Naor also placed heavy emphasis on the most recent High Court ruling on the issue from 2003, noting that the court then ordered the government to make the existing space at the southern end of the Western Wall, called Robinson’s Arch, fitting for prayer within 12 months.
“Did the government stand by its commitments, and if not what are the consequences?” she asked.
Nevertheless, Naor said it was not within the court’s power to address claims beyond that of the frozen agreement itself.
“The powers of the court do not extend to the ability to create a new Western Wall plan,” she said. “The Western Wall will not be administered by judicial decisions.”
Women of the Wall chairwoman Anat Hoffman was upbeat following the hearing, saying that the justices’ comments in favor of the cabinet resolution proved that the agreement was the best option for all concerned.
“As we were negotiating the agreement we felt at times that we were making history,” she said. “Today proved that feeling to be right. The agreement is the guiding light in the court’s path to a just solution to the Western Wall dispute. A solution which is, according to Justice Naor, acceptable, agreed, respectable and proper.”
Leaders of the Reform and Masorti (Conservative) movements also took succor from the justices’ comments, saying that it was clear the court wants the government to reverse its suspension of the agreement.
The Chief Rabbinate repeated however its insistence that as the state institution empowered by law to manage the holy sites, the government had neglected its obligation to consult with it when formulating the agreement.
“Any attempt to damage the authority of the rabbinate in determining the principles of Jewish law at the [holy] site harms the rule of law and the sovereignty of the State of Israel and will bring about division among the nation,” the Chief Rabbinate said in a statement to the press.
Dr. Susan Weiss, director of the Center for Women’s Justice representing the Original Women of the Wall splinter group which opposes the agreement, was disappointed by the justices’ approach, saying that they were ignoring the fundamental issues of equality and rights of the individual in supporting the original resolution.
One of the critical terms of the agreement was to establish the central prayer area for Orthodox prayer only, which would prevent women from praying in a minyan and wearing prayer shawls and tefillin as they have done for many years.
“The court is refusing to make substantive decisions on the matter of human rights and civil rights, and instead is trying to broker and cajole people to agree to something they haven’t agreed to in 30 years, it’s more of the same stammering from the court unfortunately,” Weiss said.


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Women of the Wall
egalitarian prayer section at the Western Wall
Miriam Naor