No Legal Basis for Opening a Criminal Investigation Against MK Azmi Bishara

14/06/2001

Today, Hassan Jabareen, General Director of Adalah, sent a letter to Israeli Attorney General Elyakim Rubenstein regarding the opening of a criminal case against Member of the Knesset (MK) Azmi Bishara.

Dear Sir,

I am writing to you regarding your response to MK Azmi Bishara’s speech in Damacus, which was broadcast by Israeli media.

1. As you know, on the basis of the partial broadcasting of MK Bishara’s speech, several MKs from the right-wing parties announced that MK Bishara should be prosecuted. Some of them made even more extreme announcements calling for acts of retaliation against him. Such extremist political rhetoric was intended to exert pressure on the Attorney General’s office to find a legal means to punish MK Bishara. Although you initially stated that, based on Jabareen v. The State of Israel, the Attorney General should not initiate legal proceedings against MK Bishara, you later announced that you consulted with the Registrar of Political Parties to determine whether MK Bishara’s Balad Party could be dissolved. Yesterday, we learned from the media that your office decided to open a criminal investigation against MK Bishara for incitement and sedition under theCounterterrorism Ordinance (1948).

2. At the outset, we want to make it clear that the speech of MK Bishara is a typical political speech which addresses the political situation in the Middle East, particularly the dangers that lie behind Sharon’s government. Although these things were said before a foreign audience, MK Bishara has made similar statements in the Israeli Knesset and to the Israeli media. In short, there is nothing conceptually new in his statements.

3. A political statement by any Member of the Knesset, regardless of the content, is considered a classic case of political speech which enjoys immunity from any legal action. As Justice Shamgar stated:

“The importance of substantive immunity is to allow the Member of Knesset to perform his duty as a public representative and to say his words by speaking or by voting in the most free manner, without being afraid that steps will be taken against him because of his activity.… Substantive immunity also applies to public political speeches by MKs, whether in the Knesset or at public gatherings, because the expression “to perform his role as a Member of Knesset” in Article 1 of the Law of Immunity of MKs, Their Rights and Their Duties should be interpreted to include political statements. A Member of Knesset is considered a public figure, in that his political actions are considered to be his role and his mission, and this role is not limited to the Knesset.”

(H.C.J. 620/85, Mi’ari v. The Chairperson of the Knesset, PD 41 (4) 169)

4. It is evident that any effort to interpret the Law of Immunity of MKs, Their Rights and Their Duties to limit the substantive immunity of MK Bishara by interfering with the content of his speech is a political rather than a legal act. MK Bishara’s statements enjoy substantive immunity under the law.

5. Supreme Court precedent and Israeli law clearly bar legal action, such as opening a criminal investigation, against an MK for his political statements. Therefore, our opinion is that this legal action against MK Bishara represents a political decision that aims to reassure those parties who oppose his opinion.

6. We believe that your decision has no legal basis - rather it aims to give an immediate answer to the political system. The charges currently under police investigation illustrate the political nature of the proceedings against MK Bishara. First, the Counterterrorism Ordinance is not applicable in this case, as Justice Or ruled in theJabareen case: “The reading of the Ordinance as a whole reveals a clearly-formed conceptual picture. This concept is to deal with terrorist organizations in order to eliminate them. It’s clear that any felony contained in the Ordinance should apply only to terrorist organizations.”

The same should be said regarding the felony of incitement to rebellion, Sections 133 and 134 of the Penal Law.These two sections deal with the incitement of the population against the State or of one sector against another. They deal solely with the internal political situation. The question that should be asked regarding MK Bishara’s Damascus speech is who has been incited and against whom. Is it possible conceptually within the Penal Law to incite the people of Damascus against residents of Israel, when by definition, this felony relates only to internal incitement?

7. Moreover, asking the Registrar of Political Parties to investigate the viability of dissolving the Balad Party is highly unusual. According to Section 5 of the Law of Political Parties (1992), the legal limitations apply only at the time that a party registers. Once the party is registered, it cannot be dissolved on the basis of its platform or the statements of its leaders.

8. As the guardian of the rule of law, the Attorney General should perform his duty with decency, good faith, and consistency, while enforcing the principle of equality. In this case, the interference of the Attorney General in a political issue and his attempt to indict MK Bishara based on inapplicable laws damages the important role of the Attorney General, creates discomfort among many public sectors, affects the reliability of his decisions, and violates the public trust.

9. Your choice to remain silent regarding the announcements of MKs such as Michael Kleiner (who called for acts of retaliation against MK Bishara), and your simultaneous efforts to inappropriately reassure some political sectors, violates the equality and good faith principles that are key to your office. Under these circumstances, your silence legitimizes MK Kleiner’s statements and de-legitimizes those of MK Bishara. Therefore we demand that you open an investigation against MK Kleiner based on his racist and dangerous statements about MK Bishara, including the suggestion “to put him before a firing squad.”

Thus, we ask you to halt all the proceedings against MK Azmi Bishara, and investigate MK Kleiner.

Sincerely,

Hassan Jabareen, Advocate

General Director