In this case, MK Bishara, the head of National Democratic Assembly political party, 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 sections 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance (1948).
In a half-page decision, issued after lengthy oral hearings were held and extensive written submissions were filed throughout 2002, and two years after MK Bishara was initially indicted, the Magistrate Court ruled that there is no need to decide on these preliminary arguments at this pre-trial stage of the proceedings. The Court stated that these preliminary arguments related to “factual questions, which belong in the main part of the case and not within the framework of preliminary arguments.” The Court also determined that “the aforementioned arguments have no place in the preliminary stage but rather following the hearing the evidence of the case.” The Court further stated that, “detailed reasons will be given as necessary in the body of the verdict, which will be provided hereafter.” The Court’s decision means that the indictment will not be dismissed at this stage, and that the case will go forward to trial. Judge Tawfiq Ktely, President of the Magistrate Court, Judge George Azulay, and Judge Yosef Ben Hamo, the three presiding judges in the case, delivered the decision of the Court.
Adalah raised several preliminary arguments before the Magistrate Court as to why the indictment is legally flawed and must be dismissed. A key argument raised is that there is no legal basis for the lifting of MK Bishara’s immunity. The lifting of MK Bishara’s immunity is an unprecedented event in the history of Israeli politics; it is the first time that an MK has been stripped of his immunity for voicing political dissent in the course of performing his duties as an elected, public representative. 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. The two speeches delivered by MK Bishara, Adalah argued, fall within the scope of his parliamentary immunity and are 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 of which he was elected. In addition, MK Bishara made identical speeches in the Knesset, for which no indictments were sought, prior to the delivery of the Umm al-Fahem and Syria speeches.
It is Adalah’s position that the Magistrate Court should have provided a reasoned decision concerning the preliminary arguments, particularly on the issue of immunity, which is a per se matter of law. It is a basic right of an accused in a criminal proceeding to know the reasons why a court has rejected his arguments. This principle gains greater significance where the issue before the court is a violation of a constitutional right, such as the right for immunity of an elected parliamentarian (MK). Under the law, substantive immunity includes political statements made by members of Knesset both in the Knesset and at public gatherings outside of the Knesset. Also, in January 2002, the Inter-Parliamentary Union (an international organization of 130 national parliaments worldwide, including Israel), Committee on the Human Rights of Parliamentarians, found that:
Mr. Bishara represents a party, recognized under Israeli law, which defends the right to self-determination of the Palestinian people, and that he has been elected on this platform … [the Committee] cannot share the view of the authorities that the two speeches under consideration, read in their entirety, express praise and support for a terrorist organization; considers rather that they reflect the political programme of Mr. Bishara’s party.