The submissions were prepared by Adalah General Director Hassan Jabareen, Advocate and Adalah Staff Attorney Abeer Baker and filed to the Supreme Court on 5 January 2003. The Court must deliver its final judgment on both issues by 9 January 2003.
On 31 December 2002, the CEC, comprised of 41 representatives of political parties in the outgoing Knesset, voted 21-20 to disqualify the NDA and 22-19 in favor of disqualifying MK Azmi Bishara. These decisions ran counter to the recommendations of CEC Chairman, Supreme Court Justice Mishael Heshin, who voted against the disqualifications. Significantly, in voting against the disqualification of the NDA, Justice Heshin also rejected Attorney General Elyakim Rubenstein’s unprecedented motion to ban the list from participating in the elections.
According to a May 2002 amendment to Section 7A of the Basic Law: The Knesset, the CEC’s decision to disqualify MK Bishara, as an individual candidate, is not binding. The CEC was required by law to forward its decision and arguments to the Supreme Court for approval. The disqualification of the NDA list, by contrast, does not require such approval. According to Article 64 of the Elections Law (1969), the list has the right to appeal the decision to the Supreme Court.
Four separate motions were submitted to the CEC seeking to disqualify MK Bishara and/or the NDA party list. Attorney General Elyakim Rubenstein submitted one of the motions, while the others were filed by right-wing MKs and political parties - Likud MK Yisrael Katz; MK Michael Kleiner and the Herut party; and MK Avigdor Leiberman and the National Union, et. al. Relying on Section 7A(a)(1) and 7A(a)(3) of the Basic Law: The Knesset, the petitioners’ claimed that the goals and activities of the NDA, expressed through various statements made by MK Bishara in the media, “deny the existence of the State of Israel as a Jewish and democratic state,” and “support an armed struggle of an enemy state or terrorist organization against the State of Israel.”
In the appeal, Adalah raised numerous legal challenges both to the evidence and to the statute.
Challenges to the Evidence
A large part of the submission filed by Adalah focused on the lack of evidence brought by the petitioners before the CEC. The following are the major arguments challenging the evidence brought forward in the motions.
Dependence of Attorney General’s motion on GSS evidence and abuse of process by GSS. The Attorney General’s motion was based almost exclusively on evidence compiled by anonymous General Security Services (GSS) agents. Adalah’s appeal argued that this evidence is undocumented, baseless and false.
Further, Adalah argued that the GSS materials relied upon by the Attorney General should be precluded, as their use amounts to wrongful interference by executive authorities in the activities of the legislative branch. GSS intervention in disqualification proceedings is an extremely dangerous act with no prior precedent, Adalah maintained.
The GSS, a body that is under the direct supervision of the Prime Minister’s office, cannot be permitted to influence the composition of the legislature. This type of interference, Adalah contended, is an abuse of the legal process and contradicts the principle of separation of powers.
Wrongful intervention of Attorney General. Adalah also argued that the Attorney General wrongfully intervened in the political process by submitting a motion for the disqualification of the NDA candidate list.
For this reason as well, Adalah contended, the evidence presented in the Attorney General’s motion should be precluded from consideration. Adalah noted that the Attorney General is a party both to criminal proceedings currently pending against MK Bishara and to the disqualification motion.
In October 2001, the Attorney General requested that the Knesset lift MK Bishara’s immunity in order to file charges against him for his political speeches in Umm al-Fahem and Kardaha, Syria. With this case still pending, the Attorney General again returned to same forum - the Knesset - in December 2002, seeking MK Bishara’s disqualification based on the same allegations contained in the criminal indictment.
This action violates the principle of separation of powers between the executive branch and the judiciary, Adalah argued. It also harms the status of the judiciary, and MK Bishara’s right to the presumption of innocence until proven guilty and his ability to protect himself.
Petitioners’ evidence does not relate to the goals and activities of the NDA or MK Bishara. Adalah emphasized in the appeal that the disqualification motions did not include any evidence that is directly related to the goals and activities of the NDA and/or MK Bishara as leader of the party.
Adalah argued that the evidence submitted by the petitioners is very far removed from the NDA’s ideology and MK Bishara’s moral and political positions. Moreover, Adalah argued, the petitioners completely disregarded all of the NDA’s publications and documented statements made by their leaders, as well as MK Bishara’s public speeches, speeches he made in the Knesset, and his weekly newspaper and academic articles which testify to the clear and widely-known goals of his party. Numerous quotes from MK Bishara’s articles as well as interviews published both in Israel and abroad, including Arab countries, were included in the appeal. In these materials, MK Bishara condemns the injury of innocent civilians, and recognizes the right of the Jewish people in Israel to self-determination.
Challenges to the Statute - Section 7A of the Basic Law: The Knesset
The right to vote and the right to be elected were given greater preeminence by the enactment of the Basic Law: Human Dignity and Freedom (1992). Any legislation passed subsequently which places restrictions on the rights to vote and to be elected, such as the May 2002 amendments to Section 7A of the Basic Law: The Knesset, must be very specific so as not to harm these rights.
Section 7A(a)(1) - Denial of the existence of the state as a “Jewish and democratic” state. Section 7A(a)(1) of the Basic Law: The Knesset, which relates to the “Jewish and democratic” nature of the state, should be interpreted broadly and inclusively, in accordance with Supreme Court precedent. Disqualifying the NDA, a political party list that raises a legitimate and democratic political agenda, such as individual and group rights for the Arab minority in Israel, will harm democratic values. It will harm the minority’s rights to equality and freedom of expression, their right to challenge the political positions of the majority, and their basic right to demand change in legitimate ways.
Adalah argued in the appeal that the political platform of the NDA, which calls for a “state of all its citizens,” - Jews and Arabs alike - does not deny the existence of the state of Israel as a Jewish and democratic state or call for its destruction. Further, Adalah argued that “the idea of an all-inclusive civil state,” adopted by MK Bishara, the NDA, and their thousands of supporters, strengthens democracy.
Section 7A(a)(3) - “Support of terror.” Section 7A(a)(3) of the Basic Law: The Knesset, which relates to “support of terror,” was added to the law in May 2002. Adalah argued that this new amendment is unconstitutional, particularly in light of the Basic Law: Human Dignity and Freedom, as it imposes severe restrictions on protected rights, including freedom of expression, and should be declared void on two grounds.
The Knesset did not provide a definition in the text of the legislation or a separate set of criteria to determine what constitutes a “terror organization.” In Israel, it is the executive branch and not the Knesset, which classifies and designates certain groups as terrorist organizations. This situation violates the principle of separation of powers, Adalah argued, as the executive branch can determine, as it sees fits, which groups are terrorist organizations. In this way, the executive branch can also determine which political parties can and cannot participate in the Knesset.
The term “support” is vague and overbroad. A statement relating to a principled position, namely, that all peoples have the right to resist occupation, can be interpreted as “supporting an armed struggle against the State.” Maintaining that a neighboring country has the right to protect itself against an Israeli military attack can also be interpreted as supporting an enemy state against the State of Israel.
Alternatively, if it is not declared void, Section 7A(a)(3) of the Basic Law: The Knesset must be strictly interpreted, Adalah argued. Read in light of the Basic Law: Human Dignity and Freedom, Adalah maintained, the provision must be interpreted as follows: Only actual support given to a specific terror organization, which helps its armed struggle; a specific call to join a specific terror organization to aid its struggle; or a specific call to a specific terror organization to continue its armed struggle may be prohibited.
Retroactive application of the law. The appeal raises an additional legal argument, regarding the fact that none of the evidence or quotations provided by the petitioners date from after the May 2002 amendment of Section 7A(a)(3). Accordingly, the CEC decision to disqualify the NDA and MK Bishara pursuant to this provision is a retroactive application of the law, and this evidence must also be precluded. The principle of non-retroactivity is a cornerstone of law-making, Adalah noted; it applies in order to prevent harm to vested rights and it is required for the stability of, and public trust in, the legal system. Numerous statutes provide that they may not be applied retroactively, unless specifically stated in the statute itself. A long line of Supreme Court judgments that detail rules of statutory interpretation, also prohibit the retroactive application of laws.
In Adalah’s view, the CEC decisions to disqualify the NDA and MK Bishara stem directly from political motives. The appeal and concluding arguments included numerous quotations from the CEC’s hearings, which support this argument, confirming that CEC members did not conduct the proceedings in a rational way, and did not relate to the specific legal issues at hand.
For all of these reasons, Adalah argued that the Supreme Court should accept the appeal and reject the CEC’s decisions to disqualify MK Bishara and the NDA from participating in the elections.