Statement to the Inter-Parliamentary Union’s Committee on the Human Rights of Parliamentarians - The Case of MK Dr. Azmi Bishara

Statement to the Inter-Parliamentary Union’s Committee on the Human Rights of Parliamentarians 96th Session – 15 January 2002 The Case of MK Dr. Azmi Bishara by Jamil Dakwar, Advocate Adalah: The Legal Center for Arab Minority Rights in Israel

Presented at the 96th Session – 15 January 2002 by Jamil Dakwar, Advocate, Adalah: The Legal Center for Arab Minority Rights in Israel

It is my pleasure to stand before you today and to present some of our legal notes on the case of MK Dr. Azmi Bishara. As a legal and human rights organization, serving and representing the Palestinian minority in Israel, and currently in our capacity as MK Dr. Bishara’s lawyers, Adalah is very pleased that this Committee has decided to review the case. We strongly believe that this case is about much more than the violation of an individual parliamentarian’s rights; rather, we view it as a landmark case, one with great significance at both local and international levels.

On a domestic level, the case is significant in that it involves a parliamentarian representing a national minority group within a state that is ethnically defined. Therefore, the case is not only about the right of a parliamentarian to freedom of speech; more importantly, it is about the right of a national minority group to fair and equal political participation and representation.

Internationally, this case has tremendous significance, as it deals with the distinctions between the actions of legitimate resistance movements struggling against occupation and unjustified acts of terror against civilians. It is extremely important that parliaments and parliamentarians from around the globe engage in dialogue on these issues. Relegating debate and controversy over such issues to the courts by criminalizing the political speech that addresses them ultimately jeopardizes international law and human rights standards.

On 7 November 2001, the Israeli Knesset (parliament) voted to lift the immunity of MK Dr. Azmi Bishara, head of the National Democratic Assembly party. This move came at the request of the Attorney General, Elyakim Rubenstein, in order to indict  MK Dr. Bishara for two political speeches and for the organization of humanitarian visits by Palestinian citizens of Israel to Syria to meet with relatives from whom they have been separated since 1948. The removal of MK 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.

The first set of charges relate to political speeches made by MK Dr. Bishara at a public gathering in the Arab town of Umm al-Fahem, Israel on 5 June 2000 and at a memorial assembly in Syria on 10 June 2001, in which he expressed support for the right to resist the Israeli occupation of the Palestinian territories and South Lebanon. For these statements, MK Dr. Bishara is charged with two counts of supporting a terrorist organization, namely Hezbollah, in violation of sections 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance (1948).

MK Dr. Bishara is also charged, along with two of his parliamentary assistants, Mr. Musa Diab and Mr. Ashraf Qurtam, in connection with a series of visits he organized, whereby elderly Palestinian citizens of Israel traveled to Syria to visit relatives whom they had not seen since 1948. MK Dr. Bishara, Mr. Diab and Mr. Qurtam are charged with assisting in unlawful departure, pursuant to Regulation 18 (d) and (a), together with Regulation 5, of the Emergency Regulations (Foreign Travel) (1948) as amended in 1961. The first hearing on these charges was held in the Magistrate Court of Nazareth on 10 December 200l.

There was no legal basis for lifting MK Dr. Bishara’s immunity. His statements, addressing the political situation in the Middle East and the dangers that lie behind Prime Minister Ariel Sharon’s government, are classic cases of political speech, which enjoys full legal protection. The removal of an MK’s immunity as a result of his political speech is without precedent in Israeli law. As Supreme Court Justice Shamgar stated:

The importance of substantive immunity is to allow the Member of Knesset to perform his duty as a public representative and to say his words by speaking or by voting in the most free manner, without being afraid that steps will be taken against him because of his activity ... Substantive immunity also applies to public political speeches by MKs, whether in the Knesset or at public gatherings, because the expression ‘to perform his role as a Member of Knesset’ in Article 1 of the Law of Immunity of MKs, Their Rights and Their Duties (1951) should be interpreted to include political statements. A Member of Knesset is considered a public figure, in that his political actions are considered to be his role and his mission, and this role is not limited to the Knesset.[1]

Professor Claude Klein of Hebrew University, a prominent legal scholar in Israel, made the following statement before the House Committee of the Knesset, which reviewed the Attorney General’s request to remove MK Dr. Bishara’s immunity:

I think that this is the most difficult case that was ever raised in the Knesset since Israel was established...There can be no lifting of substantive immunity if MK Bishara’s statements and actions fall within the scope of the immunity. [If this is the case,] the Knesset cannot remove his immunity.[2]

Professor Suzy Navot, also of Hebrew University, and an international expert on parliamentary immunity, stressed to the House Committee that the attempt to remove the immunity was unprecedented:

I think that this is the first time that I can recall that this committee has dealt with the question of whether the actions of an MK are related to the fulfillment of his duty.[3]

MK Dr. Bishara did not appeal to the Israeli Supreme Court on the Knesset decision to lift his immunity; however the substantive immunity will be raised as part of the primary defense arguments before the magistrate court that is hearing the case.    

We believe that the indictments against MK Dr. Bishara were politically motivated and are the direct result of the ongoing efforts undertaken by a group of Israeli MKs, on an almost daily basis, to delegitimize the voice and the political viewpoints of Palestinian MKs representing the Palestinian minority in Israel. As will be highlighted, the legal opinion of the Attorney General that was presented before the Knesset, and opened the way for the lifting of MK Dr. Bishara’s parliamentary immunity and his subsequent indictment, is inconsistent and has no basis in Israeli law. In our view, not only were MK Dr. Bishara’s actions not criminal, they were essential to the fulfillment of his duty as an MK.

Article 17 of the Basic Law: The Knesset stipulates that Members of Knesset 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.

The case of Pinchasi, cited by the speaker of the Knesset, MK Avraham Burg, in his reply to this Committee, is the major case that deals with the scope of MKs’ substantive immunity. The Chief Justice of the Israeli Supreme Court, Aharon Barak, defined the scope of substantive immunity as:

The domain of prohibited activity that is very close and connected in terms of substance and relevancy to a lawful expression, such that we can say that it falls within the professional risks of an MK as a speaker and as someone who is expressing a point of view (orally and in writing).[4]

In this case, Justice Barak agrees with Justice Shamgar’s decision in Mi’ari, where the latter asserted that substantive immunity applies to the activities of an MK both inside and outside the Knesset: “An MK is considered a public figure in that his political actions are considered to be his role and his mission, and this role is not limited to the Knesset.” [5] We believe that, contrary to the Attorney General’s opinion, the substantive immunity of an MK does not become more restricted in proportion to his distance from the Knesset. Such an interpretation does not have any basis in law or in the Supreme Court cases.

In the case of MK Ran Cohen v. Police Minister, relating to the case of a secret military document that was read out on the Knesset podium by MK Binyamin Netanyahu, Chief Justice Barak details some of the risks that are inherent in the political activity of an MK, and adds that

Persons engaged in making speeches are at high risk of being accused of violating prohibitions that relate to libel or incitement. The substantive immunity is for granting immunity in this area of risk.[6]

Justice Goldberg, in the case of Pinchasi, stated that the test of the scope of substantive immunity is that of the “reasonable MK.”[7] The question, therefore, is would a reasonable MK, in same position as MK Dr. Bishara, behave similarly? In other words, would an MK representing a party that opposes the Israeli occupation of South Lebanon and is interested in maintaining a relationship with the Arab world, behave in the same way as MK Dr. Bishara? We believe that the answer to both questions is affirmative.

It should be noted that in Israeli national elections, Knesset seats are assigned in proportion to each party’s percentage of the total national vote. MK Dr. Bishara is representing a party that was directly supported by a minority constituency that elected his party on the basis of a political platform that is perceived as contrary to the mainstream political consensus. Aspects of this platform, which refer to ending the occupation of South Lebanon and the Palestinian territories, are common to all political parties representing the Arab sector. By indicting MK Dr. Bishara, the Attorney General is seeking to undermine the political will of a sizeable percentage of the population of Israel.

It should be noted that Israeli parliamentary immunity laws are unlike those of other western countries, where immunity applies mainly to speeches and votes cast within the Parliament, and to the capacity of the parliament member as a legislator and not as a politician or a representative of a political party.[8]Under Israeli law, parliamentary immunity goes further, protecting the actions of an MK outside the Knesset that involve the furtherance of his political agenda. It is part of an MK’s duty to represent his constituency outside, as well as inside, the Knesset. Israeli law gives protection not only to the legislative function of the MK, but also to his capacity as a community leader and political representative, in order to fulfill his duty as an MK under the political platform on which he was elected.

The candidacy and political platforms of every MK that sits in the Israeli Knesset are approved according to Article 7(a) of the Basic Law: The Knesset, by the Central Election Committee, headed by a Supreme Court Justice. Article 7(a) states that

A list of candidates may be disqualified if its platform or actions clearly and substantially evinces an intention, explicitly or by implication, to negate the existence of Israel as the state of the Jewish people, to negate the democratic character of the state, or to incite to racism.

It is worth noting that close to the last elections, which were held in May 1999, MK Dr. Bishara’s National Democratic Assembly Party was approved to run for the elections by a decision of the Israeli Supreme Court, in which an appeal to disqualify the Party’s list of candidates was dismissed.[9]

Moreover, in our opinion it is insufficient to argue, on a general basis, that the speeches of MK Dr. Bishara “pose a threat to national security or support terrorist organizations.” In most democratic societies, the state may not forbid or prohibit speech unless it is directed to inciting or producing imminent lawless action, and is likely to produce such action. Accordingly, the Attorney General must demonstrate that MK Dr. Bishara’s speeches presented an imminent danger, which he has not done. Clearly, the speeches do not constitute such a threat.
In order to understand MK Dr. Bishara’s speeches in their proper context, it is essential to refer to international human rights organizations that have published reports on the Israeli occupation of South Lebanon and the Palestinian territories. The views expressed by MK Dr. Bishara in his speeches find widespread support among prominent international experts. In July 1999, Human Rights Watch published a report on one decade of Israeli occupation in South Lebanon, titled Persona Non Grata: The Expulsion of Civilians from Israeli-Occupied Lebanon. Upon releasing its report, the organization charged that:

For more than a decade, Israel and its auxiliary Lebanese militia have been expelling innocent civilians from their homes and villages in South Lebanon...entire families have been expelled from the occupied zone in a summary and often cruel manner without due process of law. The victims, who have included elderly men and women as well as children, have been forced to leave their homes and villages without any advance notice and were generally not permitted to bring any personal possessions with them. The expulsions are carried out in secrecy. Israel bears ultimate responsibility for both its own actions and those of its proxy militia. Human Rights Watch called on the US and the member state of the European Union to publicly condemn the expulsions, and to press Israel to allow the expelled Lebanese civilians to return to their homes and recover their property under safe conditions, free of any form of coercion or intimidation from occupation security authorities.[10]

The British journalist Robert Fisk, who has covered the Middle East for many years and was declared the overall winner of the 1998 Amnesty International-UK Press Awards, reported on the horrors of the El Khiam prison in South Lebanon, in May 2000:

Khiam is an awful place. Electrical wires attached to the penis and feet, constant whipping, cold nights attached to a pole while pails of freezing water are thrown over near-naked bodies...I met one inmate just 10 days after his release, a man who had spent more than a year in Khiam. “When they interrogated me, they hit me on the head, then on the back with a Kalashnikov rifle. I fell down. The man put his boot in my face and broke part of my jaw. I have lost the hearing in part of my right ear. The ear drum is broken. He said, ‘You are working with Hizbullah.’ I said no. I run a cafe that sells beer. How could I be Hizbullah? Now I have bad breathing problems and the doctor says there is no medicine for it. That this problem will stay with me all of my life.” It is all true. The Red Cross, Amnesty and Human Rights Watch have all concluded that these stories are true. The case of Suleiman Ramadan, his arm amputated after beatings, still imprisoned after sixteen years, is among the best known.[11]
The international community recognized, in the twentieth-century process of decolonization, the right of persons to resist foreign occupation by any means necessary. These values were reinforced by various United Nations General Assembly Resolutions and international human rights covenants. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970) emphasized that all states have a duty to refrain from any forcible action that deprives peoples of the right to self-determination. The declaration also notes that “in their actions against, and resistance to” such forcible deprivation of rights, in pursuit of the right to self-determination, peoples are entitled to seek and to receive support in accordance with the purpose and principles of the UN charter.[12] In addition to this, Article 1(4) of the First Protocol of the Geneva Conventions assumes that the exercise of the right to self-determination makes possible, by definition, the use of force in response to the suppression of self-determination by foreign powers.

With respect to the charges brought in connection with the Syria visits organized by MK Dr. Bishara and his parliamentary assistants, it must be emphasized that the Israeli government was aware of the visits for some time, but allowed them to continue. The decision to pursue criminal action against MK Dr. Bishara amounts to a legal afterthought, an attempt to add legal weight to the speech charges, and a further indication of the Attorney General’s political agenda against MK Dr. Bishara.

The trips were a humanitarian effort undertaken by MK Dr. Bishara. Most of the participants were elderly people who had been separated from members of their immediate families for more than 50 years. These family members had been forced to flee Palestine for Syria as refugees during the 1948 war, and were barred by the Israeli authorities from returning to their homes.

The State of Israel has a duty to facilitate family reunification visits for Palestinian citizens. The Law of Return (1950), which allows Jews from all over the world to immigrate to Israel and obtain Israeli citizenship, assists in the reunification of Jewish families, but excludes indigenous Palestinians. The state’s duty to facilitate family reunification finds support in international human rights law and various United Nations resolutions.

Further, the charges against MK Dr. Bishara were filed under the Emergency Regulations (Foreign Travel) (1948), adopted from the British Mandate regime, which used these laws against both Jews and Arabs in Palestine. Prior to the establishment of the state, Jewish lawyers characterized these regulations as draconian, colonialist and fascist, yet the Israeli government continues to use them against Palestinian citizens of the state.

At the first hearing on this case, on 10 December 2001, Adalah surprised the Attorney General by arguing for dismissal of the charges, based on Regulation 17(c) of the Emergency Regulations (Foreign Travel) (1948) which state that the Regulations, in full, shall not apply to a person in possession of a diplomatic passport or a service passport of the State of Israel. Given that MK Bishara has been in possession of a service passport since his election to the Knesset in 1996, prior to organizing the Syria visits, Regulation 17(c) makes it impossible to charge him with a violation of the Emergency Regulations (Foreign Travel).

No date has been set for the next hearing on the Syria visits case. The first hearing on the speeches case against MK Dr. Bishara is set for 27 February 2002.

We ask you to bring MK Dr. Bishara’s case to the attention of the Inter-Parliamentary Council, at its March 2002 meeting in Marrakech, Morocco. We ask that you make appropriate recommendations to the Council, stressing the serious violations of MK Dr. Bishara’s rights by the Israeli Knesset and the executive branch, represented by Attorney General Elyakim Rubenstein. We ask that you recommend that the Council take the necessary steps to press for the immediate withdrawal of all legal action against MK Dr. Bishara.

I encourage the Committee to place particular emphasis on the potential threat that this case poses to the political participation of the Palestinian minority in Israel. The Council must recognize the fact that MK Dr. Bishara’s speeches and acts are included within the scope of his substantive immunity, are protected by law, and must not be considered criminal actions. Minority representatives, such as MK Dr. Bishara, should be free to express dissenting opinions. These expressions and attitudes should be viewed as part of the political right of representation of the Palestinian minority at large.

[1] H.C.J. 620/85, Mi’ari v. The Chairperson of the Knesset, PD 41 (4) 169.
[2] Meeting of the Knesset House Committee, 30 October 2001.
[3] Ibid.
[4] H.C.J. 1843/93 Pinchasi v. the Knesset PD 49 (1) 661, page 687.
[5] Ibid. at page 690.
[6] H.C.J. 5151/95 Ran Cohen v. Police Minister, PD 49 (5) 245.
[7] See Pinchasi at page 721.
[8] Marilia Crespo Allen, Parliamentary Immunity in the Members States of the European Union and in the European Parliament, Legal Affairs Series (W8/rev), July 1999. 
[9] H.C.J. 2600/99, Erlich v. Chairperson of the National Election Committee, P.D. 53 (3) 38.
[10] Human Rights Watch, “Civilians Summarily Expelled from Israeli-Occupied South Lebanon,”, 29 July 1999.
[11] Robert Fisk, Khiam Jail: Where Torture is Routine and By Remote Control,” The Independent, 20 May 2000.
[12] UN General Assembly Resolutions 3070, 3103, 3246, 3328, 3481, 31/91, 32/42, 32/154.