||28 January 2010
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.|
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.
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:
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.
- 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.
- 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.
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.
- 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.
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.
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.”
- 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.
- 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.
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].
- 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
- 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.
- 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.
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.
- 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.
- 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.
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
- 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
- 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
- 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).
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
- 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.
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