Analysis: Why the court ruled in favor of Bishara

Since he acted within the scope of his duties as an MK, he was protected by "substantive immunity."

azmi bishara (photo credit: Ariel Jerozolimski [file])
azmi bishara
(photo credit: Ariel Jerozolimski [file])
The High Court of Justice was asked to determine whether MK Azmi Bishara's statements allegedly supporting terror organizations were made in the fulfillment of his duties as an MK and whether, even if they did, they did not violate the limits of "substantive immunity." According to the law, an MK's immunity cannot be lifted if his actions, which may have broken the law, were conducted in the fulfillment of his legislative duties and as long as they did not exceed the boundaries of the immunity granted him. Thus, in the case of Bishara, if the speeches he made in Damascus and Umm el-Fahm were made in accordance with his duties as an MK and did not fall outside the boundaries of substantive immunity, the Knesset was not authorized to lift his immunity and his trial in the Nazareth Magistrate's Court must be terminated. Supreme Court President Aharon Barak and Justice Eliezer Rivlin accepted Bishara's arguments while Justice Esther Hayut rejected them. An amendment to the Knesset Members Immunity Law, Rights and Obligations states that if an MK expresses support for the armed struggle of a terrorist organization, his statements fall outside the boundaries of substantive immunity. Barak, however, concluded that Bishara had expressed support for Hizbullah, but there was not enough evidence to prove that he had expressed support for its armed struggle against Israel. The second question Barak addressed was whether or not Bishara's speeches should be considered part of his duties as an MK. If they were, and since his statements had not fallen outside the boundaries of substantive immunity, he would be protected from prosecution by that immunity. According to Barak, substantive immunity is granted to MKs, among other things, "to guarantee that they can faithfully discharge their responsibilities and represent their electorate by being able to give free and full expression to their views and opinions without fear." Allowing an MK to speak his mind freely may put him in danger of breaking the law if his political views go against those of the consensus. For example, the Anti-Terror Ordinance prohibits anyone from expressing praise, support or calls for help for a terrorist organization. But this law makes no mention of "armed struggle" on the part of the terrorist organization. When it comes to MKs, however, substantive immunity allows MKs to enter the "danger zone" of breaking the law if in doing so, they are fulfilling their legislative responsibilities. According to Barak, Bishara made his statements in the context of his work. Therefore, he is protected by substantive immunity and cannot be put on trial.