At 9 a.m. on Monday 8 November 2004, the Supreme Court of Israel will hold its first hearing on a petition filed by Adalah on behalf of Member of Knesset (MK) Dr. Azmi Bishara, head of the National Democratic Assembly party (NDA) in the political speeches case. The petition was submitted on 24 December 2003 against the Knesset, the Attorney General and the Nazareth Magistrate Court following the Magistrate Court’s decision of November 2003 not to dismiss the indictment against MK Bishara. For the first time since 1948, the Knesset lifted the immunity of an MK for political speech in order to file an indictment against him. This is an unprecedented event in the history of Israeli politics.
The two legal questions now before the Supreme Court are whether or not the Magistrate Court can legitimately proceed with the trial of MK Bishara without first deciding on the status of his parliamentary immunity; and what is the scope of an MK’s parliamentary immunity regarding political speech. Supreme Court Chief Justices Aharon Barak and Justices Eliezer Rivlyn and Ester Hayout will preside over the case.
MK Bishara is charged with two counts of allegedly “supporting a terrorist organization,” namely Hezbollah, based on public political speeches he made in Kardaha, Syria in June 2001 and Umm al-Fahem, Israel in June 2000 in violation of the Prevention of Terrorism Ordinance – 1948. The petition demands that: (i) the Knesset cancel its November 2001 decision to revoke MK Bishara’s immunity from prosecution; (ii) the Attorney General cancel the indictment; and (iii) the Magistrate Court stop all criminal proceedings as long as no final decision has been made on the status of MK Bishara’s parliamentary immunity.
In the petition, Adalah raised several arguments as to why the indictment is legally flawed and as to why the Magistrate Court erred in failing to dismiss it. Adalah argued that there is no legal basis for the lifting of MK Bishara’s immunity. It is the first time since 1948 that an MK has been stripped of his immunity for voicing political dissent. In these public political speeches, MK Bishara analyzed the factors that led to the end of the Israeli occupation of South Lebanon and spoke about the realities of the continued Israeli occupation of the Palestinian territories. Adalah argued that the two speeches delivered by MK Bishara fall within the scope of his parliamentary immunity and constitute classical cases of political speech, which enjoy full legal protection. MK Bishara’s political speeches were made in fulfillment of his role as an elected political representative, and as such, he cannot be criminally prosecuted for expressing opinions in accordance with the political party agenda on which he was elected. In addition, MK Bishara made identical speeches in the Knesset, for which no indictments were sought, prior to his delivery of the Umm al-Fahem and Syria speeches.
Adalah also argued that the Magistrate Court erred in failing to dismiss the indictment, particularly on the issue of immunity, which is a per se matter of law and must be decided pre-trial. According to a January 2004 decision of the Inter-Parliamentary Union’s (IPU) Committee on the Human Rights of Parliamentarians, in MK Bishara’s case: “deciding upon the question of immunity at the end of a trial is legal absurdity, as it wholly defeats the purpose of immunity.” The IPU is an international organization of 130 national parliaments worldwide, including Israel.