In November 2001, at the request of Attorney General Elyakim Rubenstein, the Knesset voted to lift the immunity of MK Azmi Bishara for the purposes of initiating this criminal prosecution. This decision marks the first time that an MK has been stripped of his immunity because of political statements made in the course of performing his duties as an elected representative. MK Bishara was indicted in connection with political speeches that he made at a public gathering in Umm al-Fahem, Israel on 5 June 2000 and at a memorial assembly for former President Hafez el-Assad in Syria on 10 June 2001. At these events, 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 represents MK Bishara. In the preliminary arguments, Adalah argued that the indictment is legally flawed and must be dismissed for the following reasons:
The filing of the indictment was politically motivated. The objective of this political prosecution, Adalah argued, is to silence an elected representative of the Palestinian minority in Israel who strongly advocates for equality between peoples, their right for self-determination, and the right of an occupied people to resist the violence of the occupation. Unable to successfully deal with MK Bishara’s sophisticated challenge to the dominant ideology of the state, the state decided to criminalize him, to present him as an enemy, as a threat, and as an individual outside of the law. While the Attorney General initially announced that there was no legal basis to indict MK Bishara, he changed his position only after consultations with the Prime Minister’s Office and the General Security Service. This process is flawed, as the Attorney General is obligated to act independently, free of political influence. Further, the police assigned to investigate MK Bishara following his speech in Umm al-Fahem twice recommended that the case be closed due to the lack of any guilt. Moreover, in an academic article authored by the Attorney General in which he explicitly attempted to de-legitimize the political agenda of the NDA party, he wrote that, “Anyone who calls for changing Israel to ‘a state for all its citizens’ [a main component of the NDA’s agenda] means in reality to change the Jewish character of the state. It is our duty to fight that, wholeheartedly, without compromise.”
Even if all of the facts noted in the indictment are true, no crime was committed. According to Supreme Court precedent interpreting section 4(g) of the Prevention of Terrorism Ordinance, the text of the speeches, as noted in the indictment, do not prima facie constitute a crime. Voicing resistance to occupation is a legitimate political opinion and does not amount to sympathy with or supporting a terrorist organization. The indictment primarily relies on lengthy sensationalized interpretations of MK Bishara’s speeches, and as such, the Attorney General is attempting to introduce these interpretations as facts. These interpretations are inaccurate, at best, and misleading, at worst.
The two political speeches delivered by MK Bishara fall within the scope of his parliamentary immunity. Article 17 of the Basic Law: The Knesset provides that MKs shall have immunity. Article 1(a) of the Law of Immunity of MKs, Their Rights and Their Duties (1951), in effect at the time of the filing of the indictment, provides that: “An MK shall not carry criminal or civil liability, and will be immune from any legal action, due to a vote, or an act – in the Knesset or outside it – if the vote, the expression, or the act was part of his role or in order to fulfill his role, as MK.” MK Bishara’s political speeches were made in fulfillment of his role as an MK and he cannot be criminally prosecuted for expressing opinions in accordance with the political party agenda of which he was elected. 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. 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 … 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.
The submission of an indictment in this case violates a basic tenet of criminal law: the principle of legality. According to this principle, the Attorney General may not prosecute any individual where the law is vague and unclear. Where the Attorney General initially stated that there was no legal basis for an indictment, and later changed his position only after consulting with the Prime Minister’s Office and the GSS, this change of position demonstrates that the Prevention of Terrorism Ordinance does not clearly prohibit MK Bishara’s political speech.
The main claims advanced by the state prosecutor, Mr. Moshe Lador, in response to Adalah’s preliminary arguments are that (i) MK Bishara’s speeches were not legitimate expressions of political opinions, but a call to adopt “terrorist methods” against Israeli citizens and the Israeli government, in order to change government policies; (ii) parliamentary immunity was not intended to protect MKs who make such speeches, and therefore it was correct for MK Bishara’s immunity to be lifted; and (iii) the Magistrate Court does not have the jurisdiction to rule on the legality of removing MK Bishara’s immunity by the Knesset. Adalah believes that based on Israeli law and the response of the state prosecutor, the Court must dismiss the indictment.