MK Bishara's Political Speeches Case: Parliamentary Immunity is a Per Se Matter of Law
In 11/01, the Knesset voted to lift the immunity of MK Dr. Azmi Bishara, head of the National Democratic Assembly (NDA) party. The lifting of MK Bishara's immunity is the first time since 1948 that an MK has been stripped of his immunity for voicing political dissent in the course of performing his duties as an elected, public representative. This move came at the request of then-Attorney General Elyakim Rubenstein, in order to initiate two criminal prosecutions against MK Bishara:
(1) Syria Visits Case: MK Bishara and two of his parliamentary assistants were charged under Article 18(d) of the Emergency Regulations (Foreign Travel) - 1948 for organizing a series of visits for elderly Palestinian citizens of Israel to travel to Syria to visit refugee relatives they had not seen since 1948. Adalah represented MK Bishara and his parliamentary aides before a three-judge panel in the Magistrate Court in Natzeret Illit. After oral hearings and the filing of numerous written briefs, in 4/03, the Court unanimously decided to dismiss the indictment against MK Bishara, accepting Adalah's argument that Article 17(c) of the Emergency Regulations exempts MKs from prosecution for this offense. In 12/05, the Magistrate Court ruled to not convict MK Bishara's former parliamentary assistants, Mr. Mousa Diab and Mr. Ashraf Qurtam of the criminal charges against them. In lieu of conviction, the Court sentenced Mr. Diab and Mr. Qurtam to a symbolic punishment of 200-300 hours of community service.
(2) Political Speeches Case: In this case, MK Bishara is charged with two counts of allegedly "supporting a terrorist organization," namely Hezbollah, based on political speeches he made, in violation of sections 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance - 1948. In these public speeches, made in Umm al-Fahem (2000) and in Syria (2001), MK Bishara analyzed the factors that led to the end of the Israeli occupation of South Lebanon and spoke about the realities of the continued Israeli occupation of the Palestinian territories. According to the Attorney General: MK 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 alter government policies; parliamentary immunity was not intended to protect MKs who make such speeches and therefore it was correct for MK Bishara's immunity to be lifted; and the Magistrate Court does not have the jurisdiction to rule on the legality of removing MK Bishara's immunity by the Knesset.
After numerous hearings and written submissions, the Magistrate Court ruled, in a half-page decision delivered in 11/03, not to dismiss the indictment against MK Bishara. The Court stated that there is no need to decide on MK Bishara's preliminary arguments regarding his parliamentary immunity, among other issues, at this stage stating that they relate to "factual questions, which belong in the main part of the case and not within the framework of preliminary arguments." The Court also determined that "the aforementioned arguments have no place in the preliminary stage but rather following the hearing the evidence of the case," and further stated that, "detailed reasons will be given as necessary in the body of the verdict, which will be provided hereafter."
Adalah filed a petition to the Supreme Court in 12/03, shortly after the Magistrate Court's refusal to dismiss the indictment against MK Bishara in the "political speeches case," challenging this decision on his behalf. The petition, along with a motion to stay the proceedings in the Magistrate Court pending a final outcome of the case, was brought against the Attorney General, the Knesset, and the Magistrate Court. The petition seeks a ruling by the Supreme Court on the issue of immunity. Specifically, the petition demands that: (i) the Knesset cancel its November 2001 decision to revoke MK Bishara's immunity from prosecution; (ii) the Attorney General cancel the indictment; and (iii) the Magistrate Court stop all criminal proceedings as long as no final decision has been made on the status of MK Bishara's parliamentary immunity.
Adalah had raised several preliminary arguments before the Magistrate Court as to why the "political speeches" indictment is legally flawed and must be dismissed. A key argument raised is that there is no legal basis for the lifting of MK Bishara's immunity. The two speeches delivered by MK Bishara, Adalah argued, fall within the scope of his parliamentary immunity and are classical cases of political speech, which enjoy full legal protection. In addition, Adalah argued, MK Bishara's political speeches were made in fulfillment of his role as an elected political representative, and as such, he cannot be criminally prosecuted for expressing opinions in accordance with the political party agenda for which he was elected. Adalah also contended that MK Bishara also made identical speeches in the Knesset, for which no indictments were sought, prior to the delivery of the Umm al-Fahem and Syria speeches.
Adalah argued that the lifting of MK Bishara's immunity by the Knesset was illegal in the first instance, as was his subsequent indictment by the Attorney General. Further, Adalah contended that the Magistrate Court also erred in that it should have provided a reasoned decision concerning the preliminary arguments, particularly on the issue of immunity, which is a per se matter of law. Under the law, substantive immunity includes political statements made by members of Knesset both in the Knesset and at public gatherings outside of the Knesset.
In 11/04, the Supreme Court held a first hearing on the petition, at which the Court determined, as Adalah had argued, that the issue of MK Bishara's immunity must be resolved pre-trial. The Court suggested that the AG should choose one of two tracks: either the case should be sent back to the Magistrate Court to decide on the status of MK Bishara's parliamentary immunity, or the Supreme Court will hold hearings and give the final decision on this issue. The Court granted the AG's request of 30 days to prepare its written response.
According to a decision of the Inter-Parliamentary Union's (IPU) Committee on the Human Rights of Parliamentarians issued in 1/05 in MK Bishara's case, "Deciding upon the question of immunity at the end of a trial is legal absurdity, as it wholly defeats the purpose of immunity." The IPU is an international organization of 130 national parliaments worldwide, including Israel's Knesset.
In 2/05, the AG's representative informed Adalah that the AG decided that the Supreme Court is the appropriate venue for deciding on this matter.
In 2/06, the Supreme Court ruled that the speeches made by MK Bishara fell were protected under his parliamentary immunity and dismissed all criminal charges against him.
H.C. 11225/03, MK Azmi Bishara, et al. v. The Attorney General, et al.
