Adalah Petitions the Supreme Court to Annul Its Prior Ruling Concerning the National Democratic Assembly Party
Yesterday, Adalah filed a petition to the Supreme Court on behalf of Member of Knesset (MK) Dr. Azmi Bishara and Awad Hussein, the Secretary General of the National Democratic Assembly (NDA) party, to annul one of its own prior decisions related to the 1999 Knesset elections. This is the first time that a petition has been submitted demanding that the Supreme Court annul one of its own rulings. In demanding this extraordinary remedy, Adalah, by Hassan Jabareen, Advocate argued that: (1) The Supreme Court, sitting as a court of appeals, exceeded its authority in issuing this decision. It had no jurisdiction to discuss the substantive issues that it addressed related to the case; (2) The proceeding before the Supreme Court was fundamentally unfair in that it was held without giving Dr. Bishara any notice and in his absence, and without giving him the chance to respond; and (3) The ruling is being used against Dr. Bishara, particularly in the context of the criminal cases pending against him.
In April 1999, Mr. Avner Erlich, an Israeli citizen, submitted a request to the Central Elections Committee (CEC) to ban the NDA party list from running in the 1999 Knesset elections. Mr. Erlich claimed that in a May 1998 interview with Ha'aretz, Dr. Bishara made comments that denied the existence of the State of Israel as the state of the Jewish people. Mr. Erlich quoted Dr. Bishara as stating: "Judaism is a religion, not a nationality; and the Jewish public around the world has no national status whatsoever … From a historical perspective, the idea of a state of the Jews is, in my opinion, illegitimate; and if you ask me, I am not prepared to give Israel historical legitimacy." Mr. Erlich argued that Dr. Bishara's positions violated a 1985 amendment to Section 7A of The Basic Law: The Knesset, which provides that: "A list of candidates shall not participate in the elections for the Knesset if its aims or actions, expressly or by implication, point to one of the following: (1) denial of the existence of the State of Israel as the state of the Jewish people; (2) denial of the democratic nature of the state; (3) incitement to racism."
Adalah represented Dr. Bishara before the CEC in this case. Following a lengthy discussion, the CEC decided by a large majority of 21 to 4, with one abstention, to reject Mr. Erlich's request. Mr. Erlich responded by submitting an appeal to the Supreme Court. The Supreme Court dismissed the appeal on the ground that decisions of the CEC could only be appealed by the Attorney General, the Chairman of the CEC or a group of 25% of the CEC members. The Supreme Court did not stop there, however, and continued in its ruling to declare that Dr. Bishara and the NDA party had "enjoyed the benefit of the doubt" from the CEC and had been "dangerously close to the line that should not be crossed."
Recently, Attorney General Elyakim Rubenstein has used this 1999 Supreme Court decision to attack Dr. Bishara. In two new articles authored by the Attorney General and in the media, he used the ruling in support of an explicit attempt to de-legitimize the slogan of the NDA party, namely "A State for All Its Citizens," a major component of the political agenda of the party. For example, in one of the articles, the Attorney General wrote that: "Anyone who calls for changing Israel to 'A State for All Its Citizens' means in reality to change the Jewish character of the state. It is our duty to fight that, wholeheartedly, without compromise."
