Supreme Court Hearings Today on Adalah's Concluding Arguments Against Disqualification of MK Ahmad Tibi

Today, an 11-justice panel of the Supreme Court of Israel will hold hearings on concluding arguments submitted by Adalah on behalf of MK Dr. Ahmad Tibi (Ta'al) against the decision of the Central Elections Committee (CEC) to disqualify him from running in the 28 January 2003 elections. The submission, prepared by Adalah Staff Attorney Marwan Dalal, argued that the CEC's politically motivated decision violated Israeli law. The Supreme Court must deliver its final judgment on the matter by 9 January 2003, according to the Elections Law (1969).

On 30 December 2002, the CEC voted to disqualify MK Tibi (21 in favor, 18 against, 2 abstentions) from running in the upcoming elections in Israel. This vote ran counter to the position of CEC Chairperson Supreme Court Justice Mishael Heshin, who voted against disqualification, and against the recommendation of Attorney General Elyakim Rubenstein, who favored approving MK Tibi's candidacy. In the concluding arguments, Adalah included numerous quotes of CEC members who participated in the proceedings, illustrating the CEC's politically motivated decision-making and its utter disregard for the law.

According to a May 2002 amendment to Section 7A of the Basic Law: The Knesset, the CEC's decision to disqualify MK Tibi as an individual candidate from participating in the Knesset elections is not binding; the CEC was required to forward its decision and arguments to the Supreme Court for approval.

The motion to disqualify MK Tibi was filed to the CEC by Likud MK Michael Eitan. The Likud party claimed that MK Tibi should be disqualified, pursuant to Section 7A(a)(3) of the Basic Law: The Knesset, which states that the CEC may disqualify a candidate or a political party list from running in the Knesset elections if his/its goals or actions…(3) [lend] "support of armed struggle, of an enemy state or of a terrorist organization against the State of Israel."

The Likud claimed that MK Tibi's actions are an explicit or implicit indication of his support of an armed struggle by Palestinian terror organizations headed by Yasser Arafat against the State of Israel. The motion also alleged that MK Tibi is the public relations agent of Yasser Arafat; that he solicits support for the Intifada and Yasser Arafat among "Arab Israelis"; and that he is responsible for the sharp increase in the involvement of "Arab Israelis" in terror activities. In addition, the Likud claimed that MK Tibi used his position as an MK to advance the interests of Yasser Arafat and the Palestinians and that "his entire tenure as an MK is full of anti-Israeli actions, which included various expressions of solidarity and support with and support to enemies of the state." Further, the motion alleged that MK Tibi interfered with the efforts of the Israeli army by giving interviews to the media in which he spoke out against the occupation.

In the concluding arguments, Adalah comprehensively refuted all of the claims of the Likud, arguing that the accusations against MK Tibi are false and unrepresentative of his views. Adalah argued that there is no evidentiary basis for the claim that MK Tibi provided support to terror organizations. The allegations, Adalah stated, are based solely on quotations and excerpts from newspaper articles, which were presented partially and out of context. Such reliance on media reports conflicts with Supreme Court precedent, which requires that evidence relate directly to the activities and officially stated goals of the candidate in question. In his affidavit, MK Tibi stressed that throughout his term as MK, he utilized all of his contacts in an effort to achieve a just peace between Palestinians and Israelis. He also emphasized his belief that open dialogue between the Israeli and Palestinian leadership is essential to achieving such a peace. Further, MK Tibi made clear that although he believes that occupied peoples, including the Palestinians, have the right to resist occupation, he opposes the killing of innocent people on both sides.

Adalah also raised legal challenges to Section 7A(a)(3) of the Basic Law: The Knesset, which relates to "support of terror." This new amendment, which was added in May 2002, is unconstitutional, Adalah argued, as it imposes severe restrictions on protected rights including the right of freedom of expression, and should be declared void on two grounds.

• The Knesset did not provide a definition in the text of the legislation or a separate set of criteria to determine what constitutes a "terror organization." In Israel, it is the executive branch and not the Knesset, which classifies and designates certain groups as terrorist organizations. This situation violates the principle of separation of powers, Adalah argued, as the executive branch can determine, as it sees fits, which groups are terrorist organizations. In this way, the executive branch can also determine which political parties can and cannot participate in the Knesset.
• The term "support" is vague and overbroad. A statement relating to a principled position, namely, that all peoples have the right to resist occupation, can be interpreted as "supporting an armed struggle against the State." Maintaining that a neighboring country has the right to protect itself against an Israeli military attack can also be interpreted as supporting an enemy state against the State of Israel.

Alternatively, if it is not declared void, Section 7A(a)(3) of the Basic Law: The Knesset must be strictly interpreted, Adalah argued. Read in light of the Basic Law: Human Dignity and Freedom, Adalah maintained, the provision must be interpreted as follows: Only actual support given to a specific terror organization, which helps its armed struggle; a specific call to join a specific terror organization to aid its struggle; or a specific call to a specific terror organization to continue its armed struggle may be prohibited.

The appeal raises an additional legal argument, regarding the fact that none of the evidence or quotations provided by the petitioner date from after the May 2002 amendment of Section 7A(a)(3). Accordingly, the CEC decision to disqualify the MK Tibi pursuant to this provision is a retroactive application of the law, and this evidence must also be precluded. The principle of non-retroactivity is a cornerstone of law-making, Adalah noted; it applies in order to prevent harm to vested rights and it is required for the stability of, and public trust in, the legal system. Numerous statutes provide that they may not be applied retroactively, unless specifically stated in the statute itself. A long line of Supreme Court judgments that detail rules of statutory interpretation, also prohibit the retroactive application of laws.

For all of these reasons, Adalah argued that the Supreme Court should reject the CEC's decision to disqualify MK Tibi from participating in the elections.