Dr. Bishara is accused of “supporting a terrorist organization” under the Prevention of Terrorism Ordinance (1948) for speeches made in Umm al-Fahem in June 2000 and in Kerdaha, Syria in June 2001. Criminal charges where brought against Dr. Bishara after the Knesset voted in 2001, at the request of then-Attorney General Elyakim Rubenstein (currently a Supreme Court Justice), to lift his parliamentary immunity. In 2002, the Knesset passed an amendment to the Law of Immunity, according to which MKs cannot claim immunity for statements made in support of armed struggle by “terrorist organizations” or “enemy states.” All three Supreme Court justices agreed that the Knesset’s amendment of 2002 to the law applies in Dr. Bishara’s case, as it serves to clarify the law’s existing language.
In the petition, Adalah requested that the Court rule on two questions pertaining to the criminal proceedings initiated against Dr. Bishara: (i) whether or not the Nazareth Magistrate Court can legitimately proceed with the trial of Dr. Bishara without first deciding on the status of his parliamentary immunity; and (ii) what the scope of an MK’s parliamentary immunity regarding political speech is. Adalah General Director Attorney Hassan Jabareen and Adalah Attorney Marwan Dalal filed the petition on behalf of Dr. Bishara.
On 7 November 2004, the Supreme Court advised the Attorney General to request that either the Magistrate Court deliver a decision on parliamentary immunity before continuing to trial, or elect for the Supreme Court to decide on the matter. The Attorney General chose the latter option.
In the majority opinion, Supreme Court Chief Justice Aharon Barak stated that, while Dr. Bishara’s statements did amount to supporting a terrorist organization, his speeches did not constitute support of armed struggle by a terrorist organization, in this case Hezbollah. He also stated that the Court must be very careful when ruling on whether or not to limit the freedom of expression of MKs. Barak further noted that the law’s language is very general and vague regarding what constitutes supporting the armed struggle of terrorist organizations.
In agreement with Barak, Justice Eliezer Rivlin stated that Dr. Bishara’s statements did not amount to supporting the armed struggle of a terrorist organization. Justice Rivlin went on to say that the role of parliamentary immunity and free expression for MKs is to secure effective representation for all groups and political opinions in Israel.
Justice Esther Hayut dissented, claiming that the statements allegedly made by Dr. Bishara should be read as fully supporting a terrorist organization and, as a result, do constitute support of armed struggle by a terrorist group. She emphasized that the statements were not made spontaneously, but rather presented in a scripted and calculating manner on two separate occasions. Thus, she concluded, Dr. Bishara had crossed the line of legitimate activity by a parliamentarian.
The removal of Dr. Bishara’s immunity is an unprecedented event in the history of Israeli politics. It represents the first time that an MK has been stripped of his or her immunity because of political statements made in the course of performing his or her duties as an elected representative and expressing views stated in his or her election platform. In the petition, Adalah argued that the Nazareth Magistrate Court had erred in failing to decide on the legality of lifting Dr. Bishara’s immunity at the outset of the proceedings, and, as a result, that its decision to uphold the indictment was legally flawed. Adalah argued that the two speeches delivered by Dr. Bishara fall within the scope of his parliamentary immunity and constitute classical cases of political speech and dissent, which enjoy full legal protection from criminal prosecution. Adalah noted that Dr. Bishara made identical speeches in the Knesset, for which no indictments were sought, prior to his delivery of the speeches given in Umm al-Fahem and Syria.
In January 2004, the Inter-Parliamentary Union’s (IPU) Committee on the Human Rights of Parliamentarians stated 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.” The Committee went on to say that, “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’s Knesset.