REF: F:/Kalagy/HCJ3227/Judgment/BSR/23.12.

09
[TRANSLATED FROM THE HEBREW]

In the Supreme Court

Sitting as the High Court of Justice HCJ 3227/09

Before: Her Honour, President D. Beinisch

Her Honour, Judge E. Arbel
His Honour, Judge S. Joubran

In the Matter of:

1. The Families of Persons Interred in the Maman Allah

(Mamilla) Cemetery Committee
2. The Jewish Pluralism Center — The Movement for
Progressive Judaism
3. Rabbis for Human Rights
4. The Forum for Civil Consensus
5. SIKUI — Association for Promoting Civil Equality
6. IPCRI
7. Gush Hashalom
8. Ben Adam LaAdam Association
9. Protection of Liberties Committee, through Mr Amir Mahul
10. Prof. Shimon Shamir
11. Rabbi Michael Melchior
12. Rabbi Naftali Rottenberg
13. Prof. Olga Kapliuk
14. Dr Gershon Baskin
15. Baruch Shalev
16. Uri Avneri
17. J. Solomon
18. Amir Cheshin
19. Tzvi Al-Peleg
20. Prof. Yaron Tzur
21. Dr Yair Baumel
22. Dr Yossie Amitai
23. Dr Mahmud Kial
24. Hanna Siniora

The Petitioners

- AGAINST -

1. The Antiquities Authority

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 2. Simon Wiesenthal Center
3. SWC Museum Corporation
4. Moriah, the Jerusalem Development Company Ltd

The Respondents

Petition for Order Nisi and Interim Order

Date of session: 9th September 2009

On behalf of the Petitioners: Adv. Hassan Tabaja; Adv. Einat Hurwitz
On behalf of the First Respondent: Adv. Yoram Bar-Sela
On behalf of the Second Respondent: Adv. Renato Jarach; Adv. Oded Barry; Adv.
Ran Firon
On behalf of the Third Respondent: Adv. Moshe Lipschutz
On behalf of the Fourth Respondent: Adv. Yair Shilo

JUDGMENT

President D. Beinisch

On 29th October 2008 this Court’s judgment was awarded in the case known to the
public as the Museum of Tolerance affair, in which the construction of the said
Museum was permitted at a site where a Muslim cemetery was located beneath the
ground. In this petition the Court is being moved to order that the decision of the
Antiquities Authority permitting the release of the area of the site for construction
should be set aside, despite the Court’s earlier findings in the same matter.

Introduction

1. The instant petition is nothing other than “another reincarnation” of the case
that this Court considered at length, which case is also known to the public as
“the Museum of Tolerance” affair (HCJ 52/06, Al-Aqsa Corp. for the
Development of Properties of the Muslim Endowment Ltd v. Simon Wiesenthal
Center Museum Corp. (not yet published, 29th October 2008 (hereinafter
referred to as “the first petition”)). It should be noted that the trial of that
petition was consolidated with two other petitions: 1331/06, Aldajani v. Israel
Police and HCJ 1671/06, Simon Wiesenthal Center Museum Corp. v. The
Sharai Court - Jerusalem).

In the first petition Al-Aqsa Corp. for the Development of Properties of the
Muslim Endowment Ltd (hereinafter referred to as “the Petitioner in the first
petition” or “Al-Aqsa Corp.”) sought the cancellation of the building permits
that had been awarded to the Wiesenthal Centre and SWC Corporation
(hereinafter referred to as “the Second Respondent” and “the Third
Respondent” in the instant proceedings or “the proprietors of the venture”), the

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 argument being that the construction of the Museum at the site of the Maman
Allah Cemetery in Jerusalem (hereinafter referred to as “the site”) unlawfully
infringes the dignity of the dead.

2. On 29th October 2008 this Court (Judges: A. Procaccia, E. Arbel and D.

Heshin) held that the first petition should be dismissed insofar as related to the
cancellation of the Museum plan and the building permits that had been
awarded for the construction of the Museum. At the same time, in the
operative part of the judgment detailed provisions were laid down with regard
to the acts that the proprietors of the venture had to take when constructing the
Museum on the “purple area”.

Before we discuss the petition, it is proper to present the designation of the

“purple area”, within the meaning thereof on the date of writing the judgment
in the first petition. According to the information that was produced by the
Antiquities Authority (hereinafter referred to as “the First Respondent”) to the
Court, the area of the site was divided into five parts and details about the
findings of the excavations that had been made were given in respect of each
one of them. These proceedings concern area no. 3, which was marked in the
colour purple on the map that was filed by the Respondents. In that area the
Antiquities Authority had conducted only partial excavations, but it was
sufficient to attest to the existence of many other tombs that had not yet been
excavated. Nevertheless, from the historical, archaeological point of view, the
Antiquities Authority stated that further excavations on its behalf were no
longer necessary and it therefore found that the area could be released for
construction on condition that there should be no penetration underground in
that area. In view of that position and in order to avoid harm to the remnants of
the tombs and the human remains that were left in “the purple area”, the Court
issued an absolute order (paragraph 257 of the first petition) directing the
proprietors of the venture to adopt one of the following alternatives: either -
the removal of the graves and remains of bones to an alternative cemetery site
according to one of the methods proposed by the proprietors of the venture; or
the building of a “suspended floor” above the “purple area”, allowing an air
space between the floor of the building and the surface of the land, without
carrying out any further excavation work. It was further held that the
construction as a whole, including the choice of the appropriate alternative
with regard to the “purple area”, should be done in coordination with, and
under the supervision of, the Antiquities Authority and the competent authority
for planning and building issues relating to cemeteries at the Ministry of
Religious Services. As regards the cost of performance, it was decided that
they would be borne by the proprietors of the venture. Accordingly, it was held
that the proprietors of the venture could start the building work immediately,
paying attention to the choice of the construction alternative with respect to the
“purple area” being made within 60 days.

3. It should be noted that the judgment in the first petition was awarded after a
long time and after numerous hearings. In those hearings a very extensive set

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 of facts was placed before the Court. The planning authorities presented the
series of planning decisions underlying the building plan and also the relevant
outline plans. The Antiquities Authority, for its part, gave the Court reports of
the excavations that had been performed before the Court issued the interim
order directing the excavations to be stopped. Mediation proceedings were also
held and when they failed the proprietors of the venture were asked to present
practical alternatives to resolve the problem of constructing in the areas where
the remains of tombs had been found. Al-Aqsa Corp. for its part asserted that
in view of the sanctity of the site and the disproportionate infringement of the
constitutional right to the dignity of the dead, the transfer of the property rights
in the site to the proprietors of the venture should be cancelled, the permits
awarded should be invalidated and further work should be prohibited. Against
the background of those disputes, the proposals made by the proprietors of the
venture were rejected and the Court was called upon to award its decision.

4. On 16th January 2007 an order nisi was awarded, concentrating on the “purple
area” and directing the Respondents to show cause why the building plan of
the Museum site should not be altered for construction not to extend over the
“purple area”. The Petitioners were permitted to reply to the Respondents’
answer after it had been filed. When the Respondents’ answer was received it
appeared that there was a factual dispute between the parties with regard to the
findings of the excavations that had been made at the site of the cemetery. Al–
Aqsa Corp. therefore applied to obtain from the Antiquities Authority the plans
concerning the opinion of the chief excavator of the site, Mr Gideon Sulimani
(hereinafter referred to as “Sulimani”). That application was allowed and on
30th April 2007 Al-Aqsa Corp. was given permission to reply to Mr
Sulimani’s opinion within seven days.

Two and a half months later, on 12th July 2007, the Petitioners filed a further
application with a view to allowing an expert archaeologist on their behalf to
visit the site of the cemetery and inspect the Antiquities Authority’s excavation
documents. In the application that was signed by Adv. Dorjam Sif, who also
signed the petition herein, it was asserted that “the Respondents have misled
and deceived the Court”. The application went on to detail the discrepancies
that Al-Aqsa Corp. had, according to it, found between the findings of the
chief excavator’s report and the position of the Antiquities Authority, and
annexed to the application were the opinion of an expert archaeologist on
behalf of the Petitioners, the chief excavator’s report, the chief excavator’s
map and also the Antiquities Authority’s map. On 15th August 2007, after
considering the Petitioners’ assertions, the Court dismissed the application. On
29th October 2008 the judgment was awarded in the first petition. The
judgment was comprehensive and referred to the basic and individual
allegations that had been made to the Court.

The Legal Proceedings After the Judgment in the First Petition

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5. After the judgment, despite its findings, the Petitioners in the first petition
failed to come to terms with the result of the judgment and shortly after it had
been awarded, Al-Aqsa Corp. filed a contempt of court application together
with an application for the award of a provisional order. Its said application
was based on the allegation that the proprietors of the venture were not
performing the judgment. On 7th December 2008, the Court dismissed those
applications and held that the activity of the proprietors of the venture did not
constitute a departure from the findings of the judgment.

6. However, even though the proceedings in the first petition had come to an end,
various entities and organisations continued a legal battle with a view to
stopping the commencement of the Museum of Tolerance’s construction.
Thus, for example, Moked Mizan for Human Rights filed a petition in the
Jerusalem Administrative Court challenging the construction of the Museum at
the site. In the said petition, the Court was moved to order the Jerusalem
District Planning and Building Committee to reconsider its decision to approve
plan no. 8030 for the construction of the Museum of Tolerance. The Court was
further moved to cancel the building permit that had been awarded for the
construction of the Museum - which had been approved, as aforesaid, in the
first petition - in view of the discovery of tombs and human remains at the
building site. On 19th April 2009 the Jerusalem Administrative Court
(President M. Arad) dismissed that petition because it was impaired by
substantial delay. It should be noted that in view of that result, the
Administrative Court did not consider the relationship between the first
petition and the administrative petition before it. Nevertheless, the
Administrative Court stated that, prima facie, there was substance to the
Respondents’ assertion that the subject matter of the administrative petition
should not be considered since it had already been tried and decided in the first
petition (see: AP (J’lem) 1136/09, Moked Mizan for Human Rights v.
Jerusalem District Planning and Building Committee (not yet published, 19th
April 2009)). In view of the petition’s dismissal, Moked Mizan for Human
Rights filed an appeal in this Court, which is still pending.

7. Finally, it should be noted that the said petition preceded another

administrative petition (AP 9035/08, The Mutawalli of the Maman Allah
Cemetery Jerusalem v. The Jerusalem Local Planning and Building
Committee (not yet published, 15th February 2009)), which was brought
against the Jerusalem Local and Planning Committee and the Second to Fourth
Respondents in the instant proceedings. At the end of the hearing in the
Jerusalem District Court (Vice President I. Zur), the Petitioner, the Mutawalli
of the Maman Allah Cemetery Jerusalem, applied to withdraw his petition.

The Parties’ Pleas in the Instant Proceedings

8. The petition herein also seeks to delay the performance of the Museum
construction work. The central argument of the Petitioners in the instant
proceedings is that the First Respondent’s decision, permitting the release of

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 the area proposed for construction in accordance with plan 8030 (hereinafter
referred to as “the First Respondent’s decision”), should be set aside. The
Petitioners further apply for the First Respondent to be ordered to act in
accordance with the recommendation of the person who was its chief
excavator, Sulimani, as stated in the report that he wrote and “to refrain from
releasing the area for construction”, in their words.

The foundations upon which the Petitioners base their petition are five: firstly,
the Petitioners indicate that the First Respondent’s decision was awarded ultra
vires because, according to them, the First Respondent has no power to permit
harm to ancient sites; secondly, it is alleged that the decision is impaired by
extreme unreasonableness and even arbitrariness because the First Respondent
failed to discuss the chief excavator’s report of the site, which recommended
that the area of the cemetery should not be released for construction until the
excavations of the area had been completed; thirdly, it is alleged that the First
Respondent’s decision was awarded on the basis of a flawed and deficient
foundation because the archaeological excavations of the area had not been
completed and because the circumstances faced by the First Respondent were
not consistent with those described in the chief excavator’s report. Fourthly, it
is alleged that the First Respondent made its decision without consulting a
preservation committee, as required by its procedures. Fifthly, it is argued that
the First Respondent’s decision is impaired by a blatant institutional conflict of
interest because the archaeological excavations for which they were
responsible were financed by the proprietors of the venture rather than its own
budget. The Petitioners further argue that the First Respondent deceived this
Court in its hearings of the first petition. In that respect, the Petitioners assert
that the First Respondent did not produce to the Court the position of Mr
Sulimani, according to which the whole area should not be released for
construction. The Petitioners go on to argue that the First Respondent, in its
supplementary notices, gave the Court misleading data contrary to the actual
position on the ground. According to the Petitioners, the First Respondent’s
said behaviour attests to the way in which they have conducted themselves
throughout “the Museum affair”, as they define it. Having regard to all the
aforegoing, the Petitioners believe that the presumption of legality with respect
to the First Respondent’s decision is rebutted and it therefore ought to be set
aside.

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The First Respondent’s Position

9. The First Respondent was asked to reply to the petition and in its reply it
sought to dismiss the Petitioners’ allegations both with respect to those
concerning the deceit of the Court in the first petition and as regards its
decision to release the area of the site for the construction of the Museum.
Firstly, the First Respondent firmly denies the allegation that it misled the
Court. In this respect, the First Respondent states that the report that Mr
Sulimani prepared was put to the Court in the first petition and the Petitioners
in those proceedings were given an opportunity to consider and comment on it.
It is further asserted that the map that was filed by the Antiquities Authority
and divided into five parts was not intended to be the same as the map
prepared by Mr Sulimani, in which the site was divided into areas A to D.
Nevertheless, the First Respondent explains that the map that it filed in the first
petition described the state of the excavations at the site very accurately. To
sum up its position in that respect, the First Respondent states that the plea of
deceit raised by the Petitioners herein was also made in the first petition and
dismissed by the Court.

Secondly, the First Respondent adheres to its opinion that its decision to
release the area of the site was made lawfully. In that respect the First
Respondent seeks to explain that the power to order the release of a site for
construction pursuant to section 29 of the Antiquities Law, 5738-1978
(hereinafter referred to as “the Antiquities Law”) is vested in the Director of
the Antiquities Authority, and not the excavator of the site. It is also pleaded
that the report that Mr Sulimani prepared was an initial one and that the
Antiquities Authority have more senior professionals who are superior to the
excavator of the site, including the District Archaeologist and the Regional
Archaeologist. The First Respondent states in its reply that the decision of the
Director of the Antiquities Authority was made after consultation with
numerous archaeologists, including the District Archaeologist and the
Regional Archaeologist, and also after tours of the area and close monitoring
of the excavations. Consequently, the First Respondent pleads that there is no
foundation to the Petitioners’ allegation that the decision to release the area for
construction was arbitrary or unreasonable. The First Respondent further
argues in this respect that its decision reflects a proper and just balance
between the needs of research and documentation on the one hand and the
needs of development on the other hand. The First Respondent also states that
the opinions with regard to the proper balance were diverse. There were those
who believed that the “purple area” should be further excavated and there were
those who believed that as regards the historical and archaeological
conclusions, the lessons had been learned in the excavation. Ultimately, the
Director of the First Respondent was satisfied with the position, according to
which the excavations had exhausted themselves historically and scientifically.

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The Second to Fourth Respondents’ Pleas

10. In order to present the pleas exhaustively, the positions of the proprietors of
the venture (the Second and Third Respondents) and of Moriah, the Jerusalem
Development Company Ltd (hereinafter referred to as “the Fourth
Respondent”) will be adduced together. The proprietors of the venture believe
that the petition ought to be dismissed both on its merits and summarily. Their
reasoning for the dismissal of the petition on its merits are focused by the
proprietors of the venture on the legality and reasonableness of the First
Respondent’s decision and they in fact reiterate the First Respondent’s basic
arguments, as set out above. With regard to the summary causes, the
proprietors of the venture add their own and the main points are as follows.
Firstly, it is argued that the petition is impaired by substantial subjective and
objective delay, which caused the Respondents to alter their position
significantly to their detriment. Secondly, it is asserted that the petition is
aimed against a fait accompli, which there is no point in altering or it would be
complex and difficult to alter. In that respect, the proprietors of the venture
refer to the fact that the excavations of the area have been completed by them
and also all the remnants of the tombs and the human remains have been
removed, as the Court in the first petition ordered. Thirdly, it is argued that the
Petitioners are acting in their petition with a lack of clean hands, concealing
details and facts that are relevant to the case herein. Fourthly, it is asserted that
the proceedings preceding the instant petition established res judicata and the
Petitioners cannot therefore raise new pleas that were not considered in the
scope of the first petition or the other proceedings that were instigated after it.
Fifthly, it is pleaded that the Petitioners are abusing court proceedings, their
whole wish being to stop, or at least delay, the construction of the Museum of
Tolerance. The Fourth Respondent also concentrates its arguments on the
summary causes and pleads that in view of the delay that impairs the petition
and the fact that it is essentially theoretical, it should be dismissed.

The Hearing of the Petition in this Court

11. On 11th May 2009 the Court (Judge M. Naor) dismissed the Petitioners’
application for an interim order. On 9th September 2009 there was a hearing of
the petition. Shortly before the hearing, on 6th September 2009, an application
for an adjournment was made to us by the Petitioners in which it was pleaded
that the representation relationship between Adv. Kais Nasser and the
Petitioners had come to an end and that the handling of the petition had been
transferred to Adv. Dorjam Sif. However, it had become apparent that notice
of the representation’s conclusion had not been given on time and that Adv.
Sif, to whom the handling of the petition had been passed, had left Israel for a
long period. In view of the Respondents’ opposition to the adjournment of the
hearing, we decided that the adjournment application would be heard by the
Bench. On the hearing date there appeared before us on behalf of the
Petitioners Adv. Hassan Tabaja and Adv. Einat Hurwitz. The first stated that
this was the first time that the file had come into his hands and that he had not

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 yet managed to study it. Hence, his application was to adjourn the hearing.
Adv. Hurwitz, who was one of the signatories to the petition and the various
notices that had been filed in it, stated that she was not ready to plead and that
she had not known in good time that her friends had retired from the case. On
the other hand, the Respondents’ attorneys presented to us the immense
damage that was being caused to their clients due to delaying the hearing.
Against that background we expressed our displeasure at the behaviour of the
Petitioners’ attorneys and stated that “from the behaviour in the petition herein
the impression is gained that an abuse of court proceedings is involved with a
view to achieving an objective that failed in the previous proceedings and to
delay the construction that is planned at the place”.

Ultimately, the Petitioners were given a 10 day extension in order to give

notice to the Court as to whether they were insisting on their petition. On 22nd
September 2009 notice was received on behalf of Adv. Hurwitz to the effect
that the Second, Fourth, Fifth and Eighth Petitioners sought to strike out their
petition, whilst the other Petitioners sought to continue it. In view of the
differences with respect to the withdrawal of the petition, the Second, Fourth,
Fifth and Eighth Petitioners applied that, in the alternative, their names should
be struck out from the petition. Their said application was allowed. It was
further stated in the notice that Adv. Hurwitz had retired from the case and that
the handling of the petition had been transferred to Adv. Tabaja. On 3rd
November 2009, the latter gave notice that the First, Sixth, Seventh and Ninth
to Twenty Fourth Petitioners were insisting on their petition and applied for it
to be fixed for continuation of the hearing.

Discussion and Decision

12. We have studied the parties’ arguments and also the extensive material
annexed to them and we have not found that there is cause for our intervention.
From studying the parties’ notices, it appears that back at the time of the first
petition, the Court did have before it the report that was compiled by the
former chief excavator, Mr Sulimani, and also the Petitioners’ objections with
regard to the reliability of the Antiquities Authority’s position. The Court was
aware of the said objections, gave consideration to them in the first petition
and was ultimately satisfied with the position of the Antiquities Authority.
Such being the case, we have found no basis for the Petitioners’ allegation that
the Antiquities Authority concealed details of the findings that had arisen from
its excavations.

13. Moreover, in the instant case something of res judicata had also arisen,
sufficing to justify the dismissal of the petition. It is an acknowledged
principle that a matter or question that has been decided in a final judgment
establishes a procedural bar to the parties’ continuing to initiate further
litigation on the same matter or question. It has also been held that this
principle also applies in the case of petitions that are heard by this Court (see:
HCJ 20/64, Ha’Mesayer Ltd v. The Commander of Transportation, PD 18(3)

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 245, 250 (1964); HCJ 3785/06, D.S. v. The Inspector General of the Israel
Police, (not yet published, 25th September 2006); HCJ 3731/95, Saadia v. The
Israel Bar, (not yet published, 19th June 1995), paragraph 5 of the judgment).
The principle underlying the said rule is the finality of the trial and the
interests that are achieved by it are essentially twofold: firstly - guaranteeing
the reliance of a party on the decision awarded in the judgment, so that he will
not have to be troubled more than once because of the same matter; and
secondly, the effective and satisfactory operation of the court system.
Alongside this principle it has been held that there may be exceptional
situations in which the court, may in its discretion, depart from the rule with
regard to res judicata. Thus, for example, it has been held that a material
change in the circumstances of the case or the discovery of new facts that were
not known, and could not have been known, in the previous trial, might justify
the retrial of a matter that has already been tried and decided (see, for example:
HCJ 4842/06, John Doe v. The Minister of the Interior, (not yet published,
11th April 2007), paragraph 9 of the judgment). The case herein, as explained
below, is not one of those exceptions.

14. Firstly, it should be noted that some of the Petitioners, just like two of the
advocates who signed the petition herein, were involved in the various
proceedings in the first petition. From studying the instant petition, it appears
that the Ninth Petitioner serves as an umbrella for organisations of human
rights that operate in the Arab sector, including Moked Mizan for Human
Rights. As stated, Moked Mizan is also the Petitioner in AP 1136/09, an
administrative petition that was filed after the judgment in the first petition,
applying for the building permits to be cancelled. Moreover, in the first
petition Al-Aqsa Corp. explained that it was an amuta “that cares for and deals
with the interests of the Muslim community in Israel in all respects relating to
Muslim endowments and especially cemeteries and mosques” (paragraph 1 of
the first petition). The First Petitioner, in the instant proceedings, represents
itself as a committee established by some of the families whose relatives are
buried in the area of the cemetery at the site. Without going into the question
of the First Petitioner’s ability to identify those buried in the cemetery, in the
circumstances, Al-Aqsa Corp. having, in the first petition, sought to represent
the interest of all the Muslim families whose relatives are buried in the
cemetery, it is difficult to accept the plea that “different Petitioners” are now
involved and there should therefore be a review of this Court’s judgment (see
and compare: HCJ 8917/06, Ata v. The Minister of the Interior, (not published,
7th January 2007), paragraph E of the judgment).

15. As to the crux of the matter and as shown above, the first petition dealt with
the legality of the building plans and building permits, by virtue of which the
construction of the Museum of Tolerance has been permitted at the site where
the remnants of tombs and human remains had been discovered beneath the
ground. That question gained thorough and comprehensive legal consideration
and this Court ultimately held that the proprietors of the venture could start the
building work, subject to the limitations that were delineated with respect to

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 the “purple area”. Clearly the decision to permit the start of the building work
per se assumes the need for the First Respondent to release the area of the site
for construction. Consequently, by permitting the building work, the Court
also permitted the decision of the First Respondent that is the subject of these
proceedings. In the circumstances, we have found that the distinction that the
Petitioners seek to make between the First Respondent’s decision concerning
the release of the site for consideration and the legality of the building permits
is artificial and does not per se justify further consideration by this Court.
Moreover, we have not found that the exception exists with regard to the
change of circumstances alleged by the Petitioners. This is because the report
that Mr Sulimani wrote, like the Petitioners’ pleas with regard to the First
Respondent’s reports, were before the Court in the first petition and do not
constitute a “change of circumstances” that justifies rehearing.

16. Furthermore, from the various data produced to us, it appears that the “purple
area” has been deeply excavated and that the work of moving the tombs and
interring the human remains has been completed. Such being the case, it can
no longer be said that the Court’s intervention is necessary for the purpose of
implementing the recommendations of Mr Sulimani in the report that he filed
so that the whole site will be excavated. In view of this state of affairs, it is not
clear what relief the Petitioners are seeking from the Court. Are they seeking
to stop the construction of the Museum at the site even though the tombs and
human remains that were there have been moved? Or is it sought to move the
tombs back to the site and thereby prohibit construction? One way or the other,
it is clear that those applications cannot be met and there is no cause to do so
either, in view of the express findings of the judgment in the first petition.

17. Incidentally, we would mention that the Petitioners’ pleas with regard to the
Antiquities Authority’s exceeding its authority do not justify our intervention
in the findings of the judgment in the first petition. As aforesaid, the
Petitioners base their main plea on the professional dispute that arose between
Mr Sulimani and the Director of the Antiquities Authority with regard to the
question of whether or not the excavations in the “purple area” had exhausted
the archaeological and historical potential there. Consequently, a professional
dispute was involved between different officers of the Antiquities Authority.
The First Respondent, for its part, stated that the Director of the Antiquities
Authority is the person in whom the power to decide is vested and that his
decision was made after consultation with other archaeologists from the
Antiquities Authority. That position is accepted by us and for that reason we
have not found cause to intervene in this respect either. It should be noted that
section 29 of the Antiquities Law does indeed assign the power to release
ancient sites for construction to the Director of the Authority, providing that:

“Prohibition of operations on antiquity site

29. (a) A person shall not carry out or allow to be carried out
any of the following on an antiquity site, save with the written

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 approval of the Director and in accordance with the
conditions thereof:...”. (Emphasis added, D.B.)

Again, section 19 of the Antiquities Authority Law, 5749-1989, which

concerns the powers of the Director of the Antiquities Authority, demonstrates
the same:

“The Director’s powers

19. (a) The Director shall be responsible for the day to day
running of the affairs of the Authority, in accordance with the
decisions of the Council.

(b) Subject to the provisions of this Law and to the decisions

of the Council, the Director shall have all the powers required
for management of the Authority, and in particular the power
to represent the Authority in any of its functions and to sign
agreements or other documents on behalf of the Authority.

(c) The provisions of this Law shall not derogate from

the powers and functions vested in the Director under the
Antiquities Law, or under any other enactment”. (Emphasis
added, D.B.)

Conclusion

18. Finally we considered the question of whether the case of the Petitioners
herein is such as to disclose cause for our intervention in the findings of the
judgment in the first petition. As aforesaid, the judgment in the first petition
comprehensively and thoroughly analysed the questions of fact and law
associated with the Museum construction proceedings, and its conclusion was
that the petition to cancel the Museum’s construction should be dismissed. The
Petitioners herein pleaded that the Antiquities Authority had misled the Court
in the hearings in the first petition and that there were flaws in its decision to
release the area of the cemetery for construction. From the data adduced to us,
we found that this plea by the Petitioners had already been raised in the first
petition and had been dismissed by the Court. Since the judgment permitted
the commencement of building work on the site involved in the petition, the
First Respondent’s decision to release the land was clearly approved. Such
being the case and having regard to the fact that the work of moving the tombs
and interring the human remains as ordered in the judgment in the first petition
has been completed, we are satisfied that it is inappropriate for us to intervene
and that the petition should be dismissed.

Having reached that result, the application by the proprietors of the venture to
condemn the Petitioners in costs needs to be decided by us. We have gained
the impression that whilst the first petition was filed with the intention of

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 raising factual and legal pleas against the venture and obtaining the Court’s
decision, the filing of the petition herein was essentially intended to bring
about a delay in the Museum’s construction, in such a way as amounts to an
abuse of court proceedings. Having regard thereto and in view of the various
expenses of the proprietors of the venture in respect of this petition, the First,
Sixth, Seventh and Ninth Petitioners (the public Petitioners who gave notice
that they were insisting on their petition) shall jointly and severally bear the
Second and Third Respondents’ advocates’ professional fees of NIS 25,000,
each. Moreover, the said Petitioners shall jointly and severally also bear the
advocates’ professional fees of the First Respondent and the Fourth
Respondent in the sum of NIS 10,000, each. Based on all the aforegoing, the
petition is dismissed.

THE PRESIDENT

Judge E. Arbel

I concur

JUDGE

Judge S. Joubran

I concur

JUDGE

Decided as stated in the judgment of Her Honour, President D. Beinisch

Awarded this 23rd day of December 2009

_____________ _____________ _____________

The President Judge Judge

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