Concerns that the High Court of Justice might put a stop to the construction of new homes in the West Bank settlement of Ofra have led to the extraordinary step of keeping the work going seven days a week, irrespective of the religious prohibition against labor on Shabbat.
The decision relies on a religious ruling by Ofra's rabbi, Rabbi Avi Gisser, aimed at expediting construction so homes can be occupied before a possible court intervention.
Residents say the purpose of the ruling is to meet the construction deadline for the nine houses, which are being built in an existing neighborhood.
Earlier this month the Israeli human rights groups Yesh Din and B'Tselem, together with five residents of the adjacent Palestinian village Ein Yabrud, submitted a petition to the High Court in which they claimed the homes are being built on private land owned by the villagers. The petitioners demanded that the court activate stop-work orders and demolition orders they maintained had been issued in the past. They also asked the court for a temporary injunction to keep the houses from being hooked up to utilities, pending a decision in the case.
Rabbi Gisser's ruling was made possible since all of the construction workers at the site are non-Jews. They include foreign and Palestinian laborers. Halakha (Jewish law) generally prohibits Jews from explicitly instructing non-Jews to perform work for them on the Sabbath.
"The halakhic issue arose because disputes arose regarding the manner of this construction," Gisser said, speaking to Haaretz by phone. "It would not have come up on an ordinary quiet day. It followed from circumstances that create a need to implement this construction more vigorously."
Gisser said there have been previous cases in which such halakhic sanctions were granted for settlements in the territories. As for the halakhic reasoning, Gisser cited a Talmudic ruling (in Tractate Gittin) that says that the commandment to settle the land of Israel overrides the principle of not engaging non-Jews to work on Shabbat.
"Let's be clear about this," Gisser said. "We are talking about work by people who are not Jews, categorically. What violation is there in a non-Jewish laborer working on Shabbat? There is no violation, but we have a law that forbids telling a non-Jew to perform a work-related task on Shabbat. Naturally this ban gets overridden - for health reasons, or emergencies, or any other need, and the halakha also states explicitly 'for settling the land,' so that this matter is well-established and clear in the religious law. If this bothers someone, then apparently it bothers him politically more than practically."
The High Court petition is Ofra's top priority and greatly troubles the settlers, Gisser said. "What I find most foolish," he said, "is that the court is dealing with questions of arguments between neighbors. When one neighbor claims, 'This is mine, why are you building here,' he goes to the police and files a complaint. I couldn't run to the High Court over such a matter, and here the High Court hears and accepts the argument out of a highly cynical political consideration."
Gisser's ruling has not met with universal approval in the Orthodox community. For example, MK Rabbi Avraham Ravitz (United Torah Judaism), says that sanctioning construction on Shabbat is misguided to say the least.
"Purely from a halakhic standpoint, a Chinese laborer can work whenever he wants. If he chooses to do so on Shabbat, so long as it is not at my behest, a system of halakhic arguments can be found to permit it. I would not permit it, and in any case a rabbi should also take a long-term view: What will be the outcome of this? Tomorrow, someplace else, they will start allowing construction on Shabbat because perhaps some politician will wake up in the middle of the night [and call for] an armaments factory or textile plant that strengthens the state," Ravitz said.
"We were given the Land of Israel so that we would preserve the Sabbath, and not the other way around. After all, it was not permitted to build the Temple on Shabbat either," Ravitz added.