The indictment charged MK Bishara with violating the Emergency Regulations (Foreign Travel) (1948) for assisting Palestinian citizens of Israel to visit their relatives in Syria, from whom they have been separated for over fifty years.
The Court refused, however, to dismiss the indictments pending against MK Bishara’s two parliamentary assistants, Mr. Ashraf Qurtam and Mr. Musa Diab, who were also charged with this alleged offense. Judge Tawfiq Ktely, the President of the Nazareth Magistrate Court; Judge George Azulay; and Judge Yusef Ben Hamo signed the 47-page decision.
The Court ruled that the indictment against MK Bishara must be dismissed as Article 17(c) of the Emergency Regulations exempts members of Knesset from prosecution for this offense.
In so ruling, the Court accepted the interpretation of this article, as advanced by Adalah: The Legal Center for Arab Minority Rights in Israel, which represents MK Bishara and his aides in this case. The argument accepted by the Court is that the Regulations, in full, shall not apply to a person in possession of a diplomatic passport or a service passport of the State of Israel.
Given that MK Bishara has been in possession of a service passport since his election to the Knesset in 1996, prior to organizing the Syria visits, Article 17(c) makes it impossible to charge him with a violation of these Regulations. Thus, the indictment fails to state an offense and must be dismissed.
The Court rejected Adalah’s argument regarding the vagueness and ambiguity of Article 5 of the Emergency Regulations, which references Article 2A of the Prevention of Infiltration (Offences and Jurisdiction) Law (1954).
Article 2A lists several Arab countries, defined as “enemy states” in the law, where citizens of Israel are prohibited from traveling without a permit from the Minister of Interior.
This law, which has not been amended to reflect recent agreements, still includes Egypt and Jordan. The Court ruled that it should be obvious to Israeli citizens that traveling to Syria without a permit is prohibited.
The Court also rejected the argument advanced by Adalah that the indictment should be dismissed in the interests of justice. The Court stated that according to the strict test, as determined by case law, this principle does not apply here. Case law specifies that there should be extreme, unfair treatment of the citizen by the state or exercise of the state’s power against the citizen, or a violation of universal principles of justice.
While the Court agreed that the visits between family members who have been separated for more than fifty years is a humanitarian issue, the Court ruled that this argument could only be raised after conviction, at sentencing.
The Court did not rule on the issue of immunity, finding that it was not necessary to reach this issue, as the indictment would be dismissed on other grounds. The argument raised was that as a Member of Knesset, Azmi Bishara enjoys full immunity from prosecution.
In organizing these humanitarian visits, MK Bishara was exercising his role as a member of parliament on behalf of his constituents. The Court stated, however, that the immunity of a Member of Knesset does not protect his parliamentary assistants.
In commenting on the Court’s decision, Attorney Hassan Jabareen, the General Director of Adalah and the head of the legal team, stated that: “The law regarding the exemption is so clear to any lawyer and we found it strange that the Attorney General decided to indict MK Azmi Bishara. We think that the Attorney General was politically pressured into making the decision. About MK Bishara’s two parliamentary assistants, we are going to ask the Attorney General to dismiss the indictments in the interests of justice, especially after the indictment was dismissed against MK Bishara.”
In addition to Attorney Hassan Jabareen, the legal team included Attorney Riad Anes, Attorney Marwan Dalal, and Attorney Abeer Baker.