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By ADALAH
At 9 a.m. on Monday 8
November 2004, the Supreme Court of Israel will hold its 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
submitted on 24 December 2003 against the Knesset, the Attorney
General and the Nazareth Magistrate Court following the Magistrate
Court’s decision of November 2003 not to dismiss the indictment
against MK Bishara. For the first time since 1948, the Knesset
lifted the immunity of an MK for political speech in order to file
an indictment against him. This is an unprecedented event in the
history of Israeli politics.
The two legal questions now before the Supreme Court are whether or
not the Magistrate Court can legitimately proceed with the trial of
MK Bishara without first deciding on the status of his parliamentary
immunity; and what is the scope of an MK's parliamentary immunity
regarding political speech. Supreme Court Chief Justices Aharon
Barak and Justices Eliezer Rivlyn and Ester Hayout will preside over
the case.
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:
the Knesset cancel its November 2001 decision to revoke MK Bishara’s
immunity from prosecution; the Attorney General cancel the
indictment; and 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. Adalah argued that there is no legal
basis for the lifting of MK Bishara's immunity. It is the first time
since 1948 that an MK has been stripped of his immunity for voicing
political dissent. In these public political speeches, 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 the two speeches delivered by MK Bishara fall within the scope
of his parliamentary immunity and constitute classical cases of
political speech, which enjoy full legal protection. MK Bishara's
political speeches were made in 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 Umm al-Fahem
and Syria speeches.
Adalah also argued that the Magistrate Court erred in failing to
dismiss the indictment, particularly on the issue of immunity, which
is a per se matter of law and must be decided pre-trial. 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.
Source: Electronic Intifada
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