MK Dr. Bishara’s Political Speeches Case: At the First Court Hearing, Adalah Reveals that the Indictment is Politically Motivated and Must be Dismissed

28/02/2002

Yesterday, the prosecution of Member of Knesset (MK) Dr. Azmi Bishara for his political speeches began in the Magistrate Court in Natserat Illit 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.

International trial observers in attendance during the hearing included:

Mme. Ulla Sandbaek, Member of the European Parliament, Group for a Europe of Democracies and Diversities;
Mr. Miguel Angel Martinez Martinez, Member of the European Parliament, Group of the Party of European Socialists;
Ms. Yvonne Ruwaida, Member of Parliament (MP) Sweden, Green Party;
Mr. Preben Wilhelm, former MP from Denmark, missioned by the Euro-Mediterranean Human Rights Network, Denmark;
Mr. Michel Tubiana, Vice President, International Federation of Human Rights (FIDH), missioned by the FIDH, France;
Agnes Tricoire, Human Rights League (LDH), France.

Attorney Hassan Jabareen, General Director of Adalah, and Attorney Riad Anes made preliminary arguments throughout the day on behalf of Dr. Bishara. With these arguments, the defense team demanded that the Court dismiss the indictment.

Attorney Jabareen delivered the opening statement calling the case against Dr. Bishara a political trial, a trial against an influential elected representative of the Palestinian minority in Israel. The objective of this political trial, he argued, is to silence Dr. Bishara, who strongly advocates for equality between peoples, their right for self-determination and the right of an occupied people to resist the violence of the occupation. Further, he argued that Dr. Bishara poses a sophisticated intellectual challenge to the dominant ideology of the state. Unable to successfully deal with Dr. Bishara’s ideological challenge, the state decided to criminalize him, to present Dr. Bishara as an enemy, as a threat, as an individual outside of the law. The state initiated this prosecution in order to de-legitimize Dr. Bishara and the challenge that he poses.

Following the opening statement, the defense team made four preliminary arguments. They stressed that each of these arguments provided sufficient grounds for the dismissal of the indictment, as each demonstrated the illegality of both the indictment and the process by which the Attorney General issued the indictment.

The four preliminary arguments were:

The filing of the indictment against Dr. Bishara by Attorney General Elyakim Rubenstein was politically motivated. To support this argument, the defense established, by referencing numerous articles from the daily Hebrew press, that immediately after Dr. Bishara delivered his speech in Syria, the Attorney General announced that there was no legal basis for filing an indictment. Citing additional articles published at a later date, the defense also showed that only after consultations with the Prime Minister’s Office and the General Security Services (GSS), the Attorney General changed his position and decided to indict Dr. Bishara. The defense argued this change of position, after consultation with the executive branch, is flawed, as the Attorney General is obligated to act independently; his power and discretion to indict must be free of political influence. This process of consultation, undertaken by the Attorney General, with the Prime Minister, the GSS and political parties is dangerous and totally undermines the legality of the indictment.

Further, the defense revealed that police officers who had been assigned to investigate Dr. Bishara following the speech he delivered in Umm al-Fahem twice recommended – in December 2000 and in January 2001 - that the case be dropped due to the lack of any guilt.

In addition, the defense quoted an article authored by the Attorney General in which he explicitly attempted to de-legitimize the slogan of the National Democratic Assembly party, namely “A State for All Its Citizens,” a major component of the political agenda of Dr. Bishara’s party. The Attorney General wrote in this article 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.”
Even if all facts noted in the indictment are true, no crime was committed. Relying on Supreme Court precedent interpreting section 4(g) of the Prevention of Terrorism Ordinance (1948), the text of the speeches, as noted in the indictment, do not prima facie constitute a crime. Voicing resistance to occupation is a legitimate political opinion and does not amount to sympathy with or supporting a terrorist organization. The indictment primarily relies on lengthy sensationalized interpretations of Dr. Bishara’s speeches, and as such, the Attorney General is introducing these interpretations as facts. The defense, by Attorney Riad Anis, rejected the validity of these interpretations as inaccurate, at best, and misleading, at worst.
The two political speeches delivered by Dr. Bishara fall within the scope of his parliamentary immunity. The removal of Dr. Bishara’s immunity is an unprecedented event in the history of Israeli politics. It is the first time that an MK has been stripped of his immunity for voicing political dissent in the course of performing his duties as a public representative. Article 17 of the Basic Law: The Knesset provides that MKs shall have immunity from prosecution. Article 1 (a) of the Law of Immunity of MKs, Their Rights and Their Duties (1951) defines MKs’ substantive immunity as follows: “An MK shall not carry criminal or civil liability, and will be immune from any legal action, due to a vote, or an act – in the Knesset or outside it – if the vote, the expression, or the act was part of his role or in order to fulfill his role, as MK.” Relying on these laws and Supreme Court precedent, the defense argued that Dr. Bishara’s political speeches were made in fulfillment of his role as an MK and that he cannot be criminally prosecuted for expressing opinions in accordance with the agenda of the political party of which he was elected. In support of this argument, the defense presented the Court with identical speeches made by Dr. Bishara in the Israeli Knesset, for which no indictments were sought, prior to the delivery of the speeches in Umm al-Fahem and in Syria.

The defense also submitted a decision to the Court delivered in January 2002 by the Inter-Parliamentary Union, Committee on the Human Rights of Parliamentarians, which states that:

“Mr. Bishara represents a party, recognized under Israeli law, which defends the right to self-determination of the Palestinian people, and that he has been elected on this platform … cannot share the view of the authorities that the two speeches under consideration, read in their entirety, express praise and support for a terrorist organization; considers rather that they reflect the political programme of Mr. Bishara’s party.”

The defense also emphasized the procedural flaws in the Knesset proceedings in which the decision was taken to strip Dr. Bishara of his immunity. During those proceedings, the Attorney General did not present all of the facts but portrayed the situation as though a crime had been committed. The Attorney General did not present the claims as allegations, and thus denied Dr. Bishara of his right of the presumption of innocence.
The submission of an indictment in this case violates a basic tenet of criminal law: the principle of legality. According to this principle, the Attorney General may not prosecute any individual where the law is vague and unclear. Here, the Attorney General initially announced that there was no basis for an indictment; he changed his position only after consulting with the Prime Minister’s Office and GSS. The defense argued that the Attorney General’s change of position demonstrates that the Prevention of Terrorism Ordinance does not clearly prohibit the political speech of Dr. Bishara.

The Court scheduled a second hearing in this case for 7 April 2002. On that date, the prosecutor, Mr. Moshe Lador, will respond orally to defense arguments to dismiss the indictment. The defense will then have an opportunity to respond to the prosecutor’s presentation.