Supreme Court Rejects Adalah's Petition to Rescind Commission Warnings Against Arab Public Representatives

07/08/2002

On 5 August 2002, the Supreme Court rejected a petition filed by Adalah on 21 July 2002, against the Official Commission of Inquiry into the October 2000 protest demonstrations (hereafter "the Commission"). The petition sought the cancellation of warnings issued by the Commission against three Arab public representatives, Member of Knesset (MK) Dr. Azmi Bishara (National Democratic Assembly party); MK Abdel-Malik Dehamshe (United Arab List); and Sheikh Ra'ed Salah, the leader of the Islamic Movement in Israel. The petition was filed on behalf of the three warned Arab public representatives, The Committee of the Martyrs' Families, the High Follow-Up Committee for Arab Citizens in Israel, and in Adalah's own name.

In the petition, Adalah Staff Attorney Marwan Dalal argued that the warnings against the three Arab public representatives should be rescinded, as they are discriminatory, illegal, and constitute a breach of power by the Commission. Adalah challenged the Commission's mandate to investigate "the behavior of the inciters" during the October 2000 events, as well as the implementation of this mandate, which discriminated in numerous ways against the Palestinian community in Israel, and against the three warned Arab public representatives. Further, Adalah strongly objected to the Commission's use of undisclosed materials as the basis for warnings against the Arab public representatives, and its contradictory statements on the use of these materials. Adalah objected to the fact that undisclosed information relevant to the warnings against the Arab public representatives was made available to other warnees, who had given hostile testimony against the Arab leaders.

In its decision, the Court stated that:

The petition was submitted too late for consideration.
The petition should have been filed against the government rather than the Commission itself, as it challenged the Commission's government-issued mandate.
The Commission would guarantee that the warnings were based solely on disclosed materials, and is able to avoid being influenced in its decision-making by undisclosed materials relevant to the warnings.
The materials released to each warnee were relevant only to that individual.

The Court's two-page decision failed to adequately address several of Adalah's arguments, namely that:

The Commission should have asked that the government restrict its mandate to investigating the actions of the executive branch, in accordance with Israeli law and past commission experience. Adalah had previously requested that the Commission approach the government to request a change in its mandate, as the Commission is empowered to do under Article 2(b) of the Commissions of Inquiry Law (1968). Without explanation, the Commission chose not to exercise this authority, making it a suitable respondent for Adalah's petition.
The Commission's mandate was implemented in a discriminatory fashion, ignoring provocative actions by Jewish leaders such as then-MK Ariel Sharon, and questioning only the Arab public representatives on their political positions and agendas.
The Commission is relying on undisclosed materials as the basis for warnings against the Arab public representatives. The Court accepted the Commission's arguments on this matter without question, despite clearly contradictory statements made by the Commission regarding the use of undisclosed materials.
The Commission is making undisclosed intelligence information, relevant to the warnings against the Arab public representatives, available to other warnees. These warnees have already attacked the Arab leadership before the Commission, and will likely do so again.
The Court incorrectly presumes that the Commission will be able to properly distinguish between disclosed and undisclosed materials in the course of its investigation. Adalah objects to this assumption on the grounds that the Commission is, structurally, not an objective institution: it both makes allegations and seeks to determine their validity. Further, Adalah challenged the Court's assumption that the presence of two legal experts on the Commission panel, Justice Or and Judge Khatib, assures that the proper separation between disclosed and undisclosed materials will be maintained. Adalah argued that the Commission's role is to produce a public document, not a legal decision; as such, its investigation is not necessarily bound by legal considerations. Any materials reviewed by the panel, whether disclosed or undisclosed, could potentially influence its conclusions.

The three Arab public representatives are scheduled to begin testifying before the Commission's warnings phase in the second week of August. MK Dehamshe will testify on 8 August 2002, Sheikh Ra'ed Salah on 12 August 2002, and MK Bishara on 13 August 2002.