MK Dr. Azmi Bishara Political Speeches Trial: Prosecution Admits that Attorney General Consulted GSS Prior to Indictment

11/06/2002

On Sunday, 9 June 2002, the second hearing in the political speeches case of MK Dr. Azmi Bishara took place in the Natserat Illit Magistrate Court before a panel of three judges: Judge Tawfiq Ktely, President of the Magistrate Court, Judge George Azulay and Judge Yusef Ben Hamo. In this case, Dr. Bishara is charged with two counts of allegedly supporting a terrorist organization, namely Hezbollah, based on political speeches he delivered in Umm al-Fahem in June 2000 and Kerdaha, Syria in June 2001, in violation of sections 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance (1948).

On 7 November 2001, the Israeli Knesset (parliament) voted to lift the immunity of MK Dr. Azmi Bishara. This move came at the request of the Attorney General, Elyakim Rubenstein, in order to indict Dr. Bishara for these political speeches and for the organization of humanitarian visits by Palestinian citizens of Israel to Syria to meet with refugee relatives from whom they have been separated since 1948.

Ten international observers, including lawyers, judges, academics and human rights activists from Norway, Sweden and France attended the Court hearings on Sunday. Organizations represented included:

The International Commission of Jurists (ICJ) - Sweden
International Federation for Human Rights (FIDH)
Norwegian Bar Association, Human Rights Council
Norwegian Association of Judges
Norwegian Institute of Human Rights

At the first hearing in the case, on 28 February 2002, the defense team argued that the Court should cancel the indictment against Dr. Bishara, based on four principal arguments:

The filing of the indictment by the Attorney General was politically-motivated.
The facts of the indictment do not constitute a crime.
The immunity of a Member of Knesset protects his political speech.
Dr. Bishara may not be charged under these specific provisions of the criminal law, as they are vague and unclear, especially after the Supreme Court's decision in H.C. 8613/96, Mohammed Jabareen v. State of Israel.

At Sunday's hearing, the prosecution responded to the Adalah defense team's preliminary arguments. If the Court accepts even one of these arguments, it must declare the indictment void. The prosecution, represented by Attorney Moshe Lador, argued that Dr. Bishara's speeches were not legitimate expressions of political opinions, but a call to adopt terrorist methods against Israeli citizens and the Israeli government, in order to change the government's policies. Parliamentary immunity was not intended to protect MKs who make such speeches, Attorney Lador claimed, and therefore it was right for Dr. Bishara's immunity to be lifted. Further, the prosecution maintained that the Magistrate Court does not have the jurisdiction to rule on the legality of removing Dr. Bishara's immunity by the Knesset.

During the hearing, the Court asked the prosecution about the consultation that took place between the Attorney General and the General Security Services (GSS) prior to the indictment of Dr. Bishara, an issue raised by the Adalah defense team at the first hearing. Initially, the prosecution denied that such a consultation took place, but later admitted that it did occur, and claimed that it is part of the normal procedure in politically sensitive cases with potentially significant ramifications for national security.

At Sunday's hearing, Dr. Bishara was represented by the Adalah defense team, composed of Attorneys Hassan Jabareen, Riad Anes, Jamil Dakwar, and Marwan Dalal. The defense team challenged the prosecution's claim that Dr. Bishara's speeches were not legitimate, arguing that they were in fact political speeches by an elected representative, reflecting views that are widely held among Palestinian citizens of Israel. As such, the speeches must enjoy the protections afforded by parliamentary immunity.

Most importantly, the Adalah defense team argued that Dr. Bishara's speeches were legitimate because they advocated resistance to occupation, a right which is protected under international law. The defense team presented an expert opinion on the status of Hezbollah, by Professor Ze'ev Maoz, a leading academic expert on security issues. From 1994 to 1997, Prof. Maoz headed the Jaffee Center for Strategic Studies at Tel Aviv University; he is currently head of the university's School of Government and Policy. In his expert opinion, he stated that Hezbollah is a guerilla group, not a terrorist organization. Professor Maoz explained that Hezbollah is "a typical guerrilla organization, which revealed, over the years, political characteristics and much higher standards of morality and operational self-restraint than is typical of other guerilla groups." He further noted that Hezbollah is a "guerilla organization, whose operative goal was to fight the Israeli occupation in Lebanon. Its activities made a significant contribution to the change in public opinion and led to a turnaround in the attitude of decision makers." The defense argued that the content of Prof. Maoz's expert opinion is almost identical to the content of Dr. Bishara's speeches, with respect to the issue of resistance to the Israeli occupation in South Lebanon.

Additionally, the defense presented articles written by Dr. Bishara and published in leading international Arabic-language newspapers prior to his indictment. In the articles, Dr. Bishara analyzes Hezbollah's victory over the Israeli occupation in South Lebanon, and argues that while Palestinians can learn from the clarity of purpose, perseverance and dedication of Hezbollah, the full experience of the Lebanese resistance cannot be transposed into the Palestinian context.

Responding to the prosecution's allegation that the matter of parliamentary immunity is outside the jurisdiction of the Magistrate Court, the Adalah defense team argued that if the Court has the power to declare a law unconstitutional and void, it has the power to review the Knesset's decision to lift Dr. Bishara's parliamentary immunity. Finally, the defense team addressed the prosecution's claim that the meeting between the Attorney General and the GSS prior to Dr. Bishara's indictment was part of normal procedure. The defense argued that it is unacceptable to present such a procedure as the norm, and that if it is the norm, then it is a violation of law. The Attorney General must apply his power independently, the defense stated.

At the conclusion of the nine-hour hearing, the Court asked the defense team to present its concluding submission on the preliminary arguments by 15 August 2002. The prosecution must present their final submission one month later, on 15 September 2002. The Court will then decide whether or not to accept the Adalah defense team's preliminary arguments, and consequently, whether or not to declare the indictment against Dr. Bishara void.