News Update


28 January 2010

Knesset Committee strips Arab MK Sa'id Naffaa of his parliamentary immunity; Attorney General to criminally indict him for political offenses surrounding his visit to Syria; Adalah to represent MK Naffaa

On 26 January 2010, the Knesset House Committee voted to strip Arab member of Knesset (MK) Sa’id Naffaa (National Democratic Assembly – Balad) of his immunity. This move permits the criminal indictment issued against him by the Attorney General (AG) for various political offenses surrounding his visit to Syria in September 2007 to go forward.

MK Sa’id Naffaa is represented by Adalah attorneys Hassan Jabareen and Orna Kohn, who also represented him in a hearing held before the AG and top officials from the State Prosecutor’s Office in March 2009.

During the Knesset's discussion, MK Sa’id Naffaa presented his arguments against the move to strip him of his parliamentary immunity. Unlike previous cases, and despite the fact that constitutional questions of primary importance are involved, the committee refused to hear the opinions of legal experts. It rushed to decide that MK Sa’id Naffaa does not have immunity for his political actions.

The key arguments raised by MK Sa’id Naffaa before the Knesset House Committee follow:
  1. The fact that I am appearing before the Knesset Committee by myself without an attorney to represent me, is due to the fact that the charges against me are clearly political in nature.
  2. The actions attributed to me in the indictment are entirely political in nature and are protected by the right to freedom of political expression, which means the right to voice a political view in any forum. The indictment against me was not issued in good faith, was driven by ulterior motives and is an arbitrary and discriminatory decision.
  3. I will not cite all of the many legal arguments that pertain to the charges against me. I will do this, if necessary, in the courtroom.
  4. I will suffice with presenting, in a nutshell, a few of the arguments regarding my substantive immunity from the indictment issued by the AG, which includes two charges.
  5. The first charge pertains to my trip to Syria as the head of a delegation of Druze religious leaders with the aim of making a pilgrimage to Druze holy sites in Syria.
  6. I have never denied that I assisted this delegation in organizing their visit. The clear aim of this delegation speaks for itself. This visit was undertaken after exhausting all other possibilities for dealing with the discrimination against the Druze in Israel in this matter.
  7. The Knesset Members Immunity, Rights and Duties Law - 1951 explicitly permits us to travel outside of the country without a permit, even when the law demands an exit permit. See in this matter the directive of Section 10(A) of the law, which under the title “Leaving for abroad” instructs as follows: “Any directive making departure from the state conditional upon receiving a permit or license will not apply to an MK except in time of war.”
  8. The objective of the law is to accord unlimited freedom of movement for an MK and to prevent an MK from being dependent on the executive branch.
  9. The situation in which an MK requires a permit from the minister of the interior (MOI) is problematic. In this case, the executive branch is telling us where to travel and with whom to meet. This measure is a restriction on the work of the parliament and constitutes interference that is very problematic and violates the principle of separation of powers.
  10. Moreover, the MOI has prevented Druze clerics from traveling and carrying out the tenets of their religion. In this case, I regard it as my political duty to oppose this policy. The trips were intended to enable freedom of religion, and these acts are in a context of ongoing discrimination. If the MOI did not discriminate against Druze clerics, we would not be arguing about this matter. The MOI's decision is discriminatory and violates the fundamental constitutional right to freedom of religion and ritual. Therefore, his decision cannot serve as a basis for indicting me: ex turpi causa non oritur actio [no action can be based on a disreputable cause].
  11. In addition to the discrimination and arbitrariness of issuing an indictment against me, I would like to emphasize that the AG has not issued an indictment against others for similar trips. This is good. This is the correct decision, from which we can learn about the problematic nature of issuing an indictment on such charges. I contend that the AG should apply the same law to me and should not indict me. If not, his decision is arbitrary and lacks good faith.
  12. In any case, there is no doubt that the motive of my actions is purely political, and that these actions were conducted as part of my role as an MK. In addition, the indictment does not accuse me of harming anyone or of causing material harm to a protected interest. Thus, the motive of the indictment against me is political; it is an ulterior motive, arbitrary and discriminatory.
  13. I will now focus on the second charge against me, which claims that I held a meeting with Talal Naji of the Popular Front for the Liberation of Palestine (PFLP) and that I attempted to meet with Khaled Meshal from Hamas. I denied this charge immediately after it was alleged.
  14. For the purpose of the discussion here, I ask you to assume that the actions attributed to me are true. In addition, I ask you to accept my declaration that I did not have any contact or meeting or conversation related, directly or indirectly, to security or military matters or related to joining or recruiting operatives for any organization. All of the conversations I held were conversations on political and social issues and dealt with public aspects.
  15. First, I will emphasize that the prosecution’s evidence regarding this charge is based on one witness only whose credibility is very problematic. But even according to the prosecution’s witness, the meeting was political. According to his testimony, during the entire meeting I conducted a political discussion regarding the need and ways to stop the bloodshed between Hamas and Fatah.
  16. That is, the charges against me do not accuse me of a regular criminal offense such as theft or fraud. They also do not accuse me of an action of a security or military nature. Even according to the prosecution’s witness, the meeting that I allegedly conducted was clearly political and its content dealt with the need to prevent the ongoing bloodshed among the Palestinian people.
  17. The political content of the meeting attributed to me, as described by the prosecution’s witness, constitutes in itself a reasonable explanation for conducting the meeting. Its content also shows that the meeting did not entail any harm or any intention to cause harm to the security of the state. Also, it was preceded by a decision of the High Follow-up Committee on Arab Citizens of Israel ("High Follow-up Committee") to call for reconciliation between Hamas and Fatah. Based on this decision, the High Follow-up Committee sent an official letter to both Abu Mazen [Mahmoud Abbas] and [Ismail] Haniyeh, and a meeting was held with Abu Mazen in his office, with the participation of the secretariat of the High Follow-up Committee and representatives of the Arab political parties.
  18. Could such a meeting, which was entirely devoted to a political conversation that corresponds to the political platform of the party I represented and the High Follow-up Committee's decision which has no connection to state security, constitute a forbidden contact? Does substantive immunity not apply to such a meeting?
  19. In the past, the attorney general refrained from issuing an indictment against MK Ezer Weizman [the former President of Israel] for having contact with the PLO. The attorney general explained in his response to a Supreme Court petition by MK Tzachi Hanegbi against the decision that even if it an offense or offenses were ostensibly proven, the substantive immunity provided under the Knesset Members Immunity, Rights and Duties Law applies to such offenses. (See HCJ 90/806, MK Tzachi Hanegbi v. Attorney General, Piskei Din 44(4) 797 (1990). 
  20. Also in the case of MK Muhammed Mi’ari, who participated and spoke at a memorial assembly for Fahd Qawasmeh, one of the PLO’s leaders, the Supreme Court ruled that MK Mi’ari was protected by substantive immunity. (See HCJ 85/620, MK Muhammed Mi’ari v. Shlomo Hillel, Knesset Speaker, Piskei Din 41(4) 169 (1987).
  21. Moreover, in light of the clear political content of the meeting, there is no doubt that substantive immunity applies to this charge. Conducting of this type of meeting constitutes part of the fulfillment of my role as an MK, who was elected by Palestinian citizens in Israel. Any other interpretation would render meaningless our political participation in the Knesset.
  22. Therefore, even if the actions attributed to me constitute a criminal offense, substantive immunity was designed precisely for this purpose. The goal of substantive immunity is to allow a broad range of activity for an MK so that he will be able to act to fulfill his role as an elected official without having to fear that legal proceedings will be initiated against him. It is also important to recall that immunity is designed for situations in which an MK is alleged to have committed an offense, because if there were no offense involved, then there would be no need for immunity.
  23. In light of the political character of the actions attributed to me, it is clear that they were done within the framework or with the aim of fulfilling my role as an MK. Any other interpretation would render meaningless the substantive immunity accorded to members of Knesset in the Basic Law: Knesset and in the Knesset Members Immunity, Rights and Duties Law.

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