MK Bishara Syria Visits Case: Adalah Surprises Attorney General by Arguing for Dismissal of Indictment

On 10 December 2001, the prosecution of MK Dr. Azmi Bishara and two of his parliamentary assistants, Mr. Ashraf Qurtam and Mr. Musa Diab, began before a panel of three judges at the Nazareth Magistrate Court. The three judges are Judge Tawfiq Ktely, President of the Magistrate Court; Judge George Azulay; and Judge Yusef Ben Hamo.

MK Bishara and his assistants are charged with assisting Palestinian citizens of Israel to visit relatives in Syria, in violation of Regulation 18(d) of the Emergency Regulations (Foreign Travel) (1948). Most of the participants in these visits were elderly people who had been separated from members of their immediate families for more than 50 years. These family members had been forced to flee Palestine for Syria as refugees during the 1948 war, and were barred by the Israeli authorities from returning to their homes. According to the Attorney General’s argument, Regulation 18(d) prohibits any Israeli citizen from assisting others in traveling to states listed in Article 2A of the Prevention of Infiltration (Offences and Jurisdiction) Law, which includes Syria, without first obtaining a permit from the Minister of Interior.

At the beginning of the hearing, Attorney Hassan Jabareen, General Director of Adalah, demanded to submit preliminary arguments for dismissing the indictment. Mr. Jabareen stressed that these preliminary arguments alone provide sufficient grounds for the immediate dismissal of the indictment, which is legally flawed.

Mr. Jabareen made the following arguments:

• Regulation 17(c) of the Emergency Regulations (Foreign Travel) (1948) states that the Regulations, in full, shall not apply to a person in possession of a diplomatic passport or a service passport of the State of Israel. Given that MK Bishara has been in possession of a service passport since his election to the Knesset in 1996, prior to organizing the Syria visits, Regulation 17(c) makes it impossible to charge him with a violation of the Emergency Regulations (Foreign Travel). Thus, the indictment fails to state an offense. After making this argument, Mr. Jabareen presented MK Bishara’s service passport to the Court.

• Since Regulation 17(c) of the Emergency Regulations (Foreign Travel) exempts an MK who possesses a service passport, the removal of MK Bishara’s immunity was itself invalid, as it was based on incorrect legal information. According to law, the exemption makes an MK immune from prosecution on this charge. Mr. Jabareen noted that the Attorney General did not inform the Knesset of the terms of Regulation 17(c) when he requested and recommended the removal of MK Bishara’s immunity.

Further, Mr. Jabareen added that the prosecutor cannot amend the indictment and/or substitute the existing charge with a different one, because MK Bishara’s immunity was removed only for this specific charge. Should the Attorney General wish to amend the indictment, he will have to go back to the Knesset to seek the removal of MK Bishara’s immunity once again.

• Article 2A of the Prevention of Infiltration (Offences and Jurisdiction) Law lists places where Israeli citizens are prohibited from traveling under the terms of the Emergency Regulations (Foreign Travel). It has not been amended to reflect changes in Israel’s agreements with other countries. The Article still includes Egypt and Jordan, places to which Israeli citizens can freely travel, as well as East Jerusalem. Therefore, the article is misleading and unclear. Because of this ambiguity, the Attorney General should never have initiated prosecution based on this law.

Attorney Riad Anes, a member of the legal defense team, added that this case is a humanitarian issue, as it relates to relatives meeting after fifty years of separation. Prosecuting the case is itself contradictory to the principles of justice. In such a situation, Mr. Anes stressed, the Court has the authority to dismiss the indictment in the interests of justice.

The prosecutor, Ms. Yael Kochavi, responded by arguing that MK Bishara’s service passport, as provided by Mr. Jabareen, was not valid at the time that the visits were organized. Mr. Jabareen stated that it would not be difficult to prove that MK Bishara possessed a valid service passport at the time that he organized the Syria visits. Article 10(b) of the Law of Immunity of MKs, Their Rights and Their Duties (1951) states that each MK is entitled to a service passport upon being elected to office.

Ms. Kochavi also disagreed with Mr. Jabareen’s interpretation of the exemption conferred on MKs by Regulation 17(c) of the Emergency Regulations (Foreign Travel). She argued that it applied only to the holder of the service passport, and did not allow the holder to assist others to travel.

Interestingly, the prosecutor stated that the elderly Palestinian citizens of Israel who traveled to Syria did not obtain permission from the General Security Services (Shabak). Nowhere does it state that the Shabak is the agency designated to authorize travel to places listed in Article 2A of the Prevention of Infiltration (Offences and Jurisdiction) Law. The Shabak is known for its hostile attitude towards Palestinian citizens of Israel.

The Court gave Adalah 30 days to submit its preliminary arguments in writing, and allowed the prosecutor a further 30 days to respond before deciding whether or not to dismiss the indictment.