Supreme Court Cancels Statements Made in a Prior Judgment Against MK Bishara and the NDA Party
Yesterday, the Supreme Court of Israel issued an unprecedented ruling on a motion and petition filed by Adalah in March 2002 on behalf of MK Azmi Bishara and the National Democratic Assembly (NDA) party that he leads. The ruling represents a de facto cancellation of statements made by the Supreme Court about MK Bishara and the NDA in an earlier decision.
Adalah's motion and petition challenged a Supreme Court decision issued in 1999 in response to an appeal by Mr. Avner Erlich, a citizen of the state, seeking to disqualify MK Bishara from running in Knesset elections held that year. The Supreme Court dismissed the 1999 appeal, but noted in its ruling, inter alia, that MK Bishara and the NDA party had been "dangerously close to the line that should not be crossed."
The petition and motion, submitted by Adalah General Director Hassan Jabareen, Advocate, sought the extraordinary remedy of canceling the 1999 Supreme Court decision. Adalah argued that the Supreme Court had no jurisdiction to discuss the substantive issues that it addressed in relation to the case. Further, Adalah maintained that the proceedings before the Supreme Court were fundamentally unfair, in that MK Bishara was not informed that they were taking place, nor was he present or given the chance to respond to the Court's allegations against him. Adalah also contended that the ruling is being used against MK Bishara in the criminal case currently pending against him on charges relating to his political speeches. The Attorney General, Elyakim Rubenstein, also cited the 1999 ruling in his request for the disqualification of the NDA and MK Bishara in the 2003 Knesset elections.
The decision delivered yesterday by Supreme Court Chief Justice Aharon Barak and Justices Dalia Dorner and Ayala Procaccia stated that the statements contained in the Erlich case against MK Bishara and Balad cannot be used against them, because of the undisputed facts that they were not present at the hearing, were not notified by the Court, and did not have the opportunity to explain or to respond to allegations against them. Based on this statement by the Supreme Court, which was agreed upon by the parties, Adalah withdrew the petition. While the 1999 Supreme Court ruling was not cancelled, the new decision effectively deprives it of any legal authority.
See H.C. 2247/02, MK Dr. Azmi Bishara, et. al. v. Avner Erlich, et. al., decision delivered 17 February 2003.
