Gisha appeals a judgment that violates Muslim freedom of worship and “fines” the organization with unprecedented legal fees

Gisha appeals a judgment that violates Muslim freedom of worship and “fines” the organization with unprecedented legal fees

· Despite the declared sensitivity towards freedom of worship at Jerusalem’s holy sites, the state allows Christians – but not Muslims – to exit Gaza for worship.

· The district court ordered Gisha to pay 25,000 NIS in legal fees to deter human rights organizations from representing Palestinian residents.

Mon., April 4, 2011
– Today (Monday) Gisha appealed to the Supreme Court against the judgment of Justice Eliyahu Bitan of the Beer Sheva District Court in which he rejected a petition filed in February by seven Muslim women from the Gaza Strip. The petitioners sought to enter Israel in order to exercise their right to freedom of worship and pray at the Al-Aqsa Mosque. Israel does not allow the entry of Muslim worshippers from Gaza, even subject to security screening, but does allow Christian worshippers to enter.

In a petition submitted to the Beer Sheva District Court in February, Gisha requested that the court to instruct the Minister of the Interior, the Minister of Defense and the GOC Southern Command to allow for the exercise of freedom of worship, which Israel is obligated to uphold equitably and without discrimination on the basis of religion. The court rejected the petition and ordered the petitioners to pay legal fees in the unprecedented amount of 25,000 NIS (approx. 7,250 USD).

In the appeal, Gisha claims that the district court relied on erroneous legal conclusions that contravene the state’s obligation to maintain equality and freedom of worship with respect to access to sites that are holy to all religions, under statutory law, case law and international human rights law.

In its appeal, Gisha relies on precedents in which the court ruled that the principle of equality applies to Palestinians under Israel’s control.

As such, there is no justification for discrimination on the basis of religion: Christians enjoy freedom of movement, Muslims do not. There are no security allegations against the petitioners; their only wish is to fulfill a Muslim religious commandment and pray in their holy places.

Gisha also appealed against and filed a motion to defer payment of unprecedented costs, an order which was accompanied by disdainful remarks toward Gisha by Justice Bitan, including referring to Gisha as a “human rights” organization (quotation marks in the original). In public petitions on principled issues such as this, the courts rarely order the petitioners to pay legal fees, even when the petition is denied. The instruction for civil society organizations to pay legal fees is limited to cases in which the public petitioner’s conduct was flawed, and the sum awarded is usually low.

The human rights community is concerned that the judge’s decision is part of the trend toward restricting the activities of human rights organization. Attorney Nomi Heger wrote in the appeal: “the judgment hints at a sense of skepticism that Gisha and other similar organizations are indeed primarily concerned with protecting human rights … this is expressed graphically by using quotation marks to note organizations’ activities and by ordering the payment of exceptionally high legal fees”. In addition, in his judgment, Justice Bitan invents a new category of “professional petitioner”, thus revoking the status of public petitioner held by civil society organizations and creating a dangerous precedent that potentially shuts the doors of the court to organizations that engage in legal advocacy on behalf of disenfranchised populations.