Jaffa Islamic Council Loses Legal Battle to Stop Construction on Site of Burial Ground

Court rescinds restraining order that prevented the Tel Aviv municipality from building a homeless shelter on the site, but local leader decries 'legal acrobatics' in ruling that followed a wave of protests against the project

Bar Peleg
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Arab Israeli men take to the streets of Jaffa, south of Tel Aviv to protest against the demolition of an 18th century Muslim burial ground, June 12, 2020.
Arab Israeli men take to the streets of Jaffa, south of Tel Aviv to protest against the demolition of an 18th century Muslim burial ground, June 12, 2020.Credit: AHMAD GHARABLI / AFP
Bar Peleg

A Tel Aviv court has rejected an appeal to halt the city’s construction of a homeless shelter on the site of a Muslim cemetery in Jaffa, the latest step in a legal battle that has inflamed tensions between the municipality and its Muslim residents.

Judge Limor Bibi of the Tel Aviv District Court ordered the plaintiff, the Islamic Council, to pay legal fees of 7,500 shekels ($2,200) and rescinded a restraining order that had prevented the Tel Aviv municipality from building the shelter.

The Islamic Council had petitioned against the construction, alleging that the permit that the municipality possessed had expired. The court, which had frozen construction, called for an additional hearing on July 22. The hearing was moved up to Sunday because of an urgent request by the municipality, who claimed that the petition-induced delay was causing it financial damage.

“It wouldn’t be an exaggeration to say that as long as the uncertain situation continues, there is a growing fear of harming the lives of people, causing additional harm to property and damaging the rule of law,” the municipality stated in its request.

The judge criticized the Islamic Council for submitting contradictory claims regarding municipal activity at the site to the district court and the Supreme Court. In its petition to the High Court of Justice in April 2019, the council claimed that works were being carried out “at this very moment.” Afterward, a restraining order was issued and construction was halted.

A protest against the demolition of a Muslim burial ground, Jaffa, June 26, 2020
A protest against the demolition of a Muslim burial ground, Jaffa, June 26, 2020Credit: Moti Milrod

In the appeal to the district court this year, the council claimed that the building permit was no longer valid because no work had been carried out at the site for over a year. “At no stage did a period of one year transpire during which construction had ceased, so, accordingly, the permit did not expire,” the judge said. Additionally, she said, the repeated petitions by the council were intended to use the courts to shut down construction.  

Tarek Ashkar, director of the Islamic Council, told Haaretz that the ruling was based on technicalities and “legal acrobatics” and that it was an example of the legal system functioning as part of a discriminatory establishment. “They could have said the permit was valid, but they didn’t say that ... The system is tipping the scales for the benefit of Tel Aviv’s municipality,” he said, adding that the city had not provided any documentation as evidence of its claims. He further said that the court had fined the council and suggested that this had to do with a city budget shortfall. 

The Tel Aviv municipality welcomed the decision “that allows continued works to build the homeless shelter in Jaffa, an important social project whose goal is to provide a rehabilitative solution for hundreds of homeless people.” Mayor Ron Huldai added, “The court decision proves that the city has worked and continues to work with sensitivity and according to the law.”

In recent weeks, Jaffa residents have protested against the construction saying that the municipality would have been more sensitive if it was a Jewish cemetery. The municipality says that during its work, steps will be taken to avoid damage to the graves, and if remains need to be moved, they will be reinterred on the site rather than elsewhere.

A building from the Ottoman period had previously stood at the site on Bergner Street. The city decided to demolish it and replace it with a three-story building that would include a homeless shelter and a commercial floor. Construction commenced in April 2018, when the Al-Isaaf cemetery, which dates to the 18th century, was discovered, including over 60 graves containing human remains.

According to the plan, some 80 homeless people will be housed in a building to be constructed on the site, which will provide preliminary aid to those living on the street who are at the beginning of the drug rehabilitation process. 

The city’s finance committee approved this week a request for full funding of the project by the municipality after the designated donor, French-Israeli billionaire Patrick Drahi, reneged on his pledge in April 2019 under pressure from opponents of the project. The city was originally going to contribute 6 million shekels but after Drahi’s withdrawal had to contribute another 23.5 million shekels.

The additional allocation, made against the backdrop of coronavirus-induced cutbacks, is designated to cover the rest of the construction budget and requisite payments to the Israel Antiquities Authority.

Earlier this year, the Tel Aviv District Court rejected another petition. District Court Judge Abigail Cohen then ruled that despite the importance of protecting the sentiment of the Muslim community in Jaffa, the interest of life over that of the dead should be preferred in this case.

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