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Volume No.7, November 2004

Supreme Court: Issue of MK Dr. Azmi Bishara's Parliamentary Immunity
Must be Resolved Pre-Trial

On 8 November 2004, the Supreme Court of Israel held a first hearing on a petition filed by Adalah on behalf of Member of Knesset (MK) Dr. Azmi Bishara, head of the National Democratic Assembly party (NDA), in the political speeches case. The petition was filed on 24 December 2003 against the Knesset, the Attorney General (AG) and the Nazareth Magistrate Court following the Magistrate Court’s decision of November 2003 not to dismiss the indictment against MK Bishara.

Chief Justice Aharon Barak and Justices Eliezer Rivlyn and Ester Hayout presided over the case. At the hearing, the Supreme 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 give the final decision on this issue. Chief Justice Barak stated that the petition raised a very important substantive subject and emphasized that prior decisions of the Supreme Court on cases concerning political speech clearly established that political speech is protected speech. The Court granted the AG's request of 30 days to prepare its written response.

MK Bishara is charged with two counts of allegedly “supporting a terrorist organization,” namely Hezbollah, based on public political speeches he made in Kardaha, Syria in June 2001 and Umm al-Fahem, Israel in June 2000 in violation of the Prevention of Terrorism Ordinance – 1948. 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.

In the petition, Adalah raised several arguments as to why the indictment is legally flawed, and as to why the Magistrate Court erred in failing to dismiss it, particularly on the issue of immunity, which is a per se matter of law and must be decided pre-trial. Adalah argued that there is no legal basis for the lifting of MK Bishara's immunity, emphasizing that this is the first time since 1948 that an MK has been stripped of his immunity for voicing political dissent. In the two public political speeches under review, 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. Adalah argued that both speeches fall within the scope of MK Bishara's parliamentary immunity and constitute classical cases of political speech, which enjoy full legal protection. The political speeches were made in MK Bishara's 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 on which he was elected. In addition, MK Bishara made identical speeches in the Knesset, for which no indictments were sought, prior to his delivery of the Um al-Fahem and Syria speeches.

According to a January 2004 decision of the Inter-Parliamentary Union's (IPU) Committee on the Human Rights of Parliamentarians, 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.

H.C. 11225/03, MK Azmi Bishara, et. al. v. The Attorney General, et. al. (case pending)

Petition (H)