The Case of Azmi Bishara
Political Immunity and Freedom in Israel

Gad Barzilai

(Gad Barzilai teaches political science and law at Tel Aviv University. His book, Communities and Law: Politics, and Cultures of Legal Identities, is forthcoming from University of Michigan Press.)

January 9, 2002

Two months ago, Israel's attorney general Elyakim Rubinstein formally accused Azmi Bishara, a prominent Arab-Palestinian member of the Knesset, of endangering the security of the Israeli state. Rubinstein's charges led the large majority of the Knesset, in a potentially historic vote, to lift Bishara's parliamentary immunity from prosecution. In specific, Bishara is charged with organizing an illegal delegation to visit Syria -- a state with which Israel is still officially at war -- and for calling upon other Arab countries to intensify their conflict with the state of Israel. Prosecutors are expected to proceed with a court case next month.

Bishara's parliamentary privileges allow him to travel to Syria, but he did indeed aid several Palestinian citizens of Israel, many of them seeking brief reunions with refugee relatives living in Syria, to visit Damascus. In June 2000, Bishara spoke of the "sweet taste of victory" when referring to Hizballah's long guerrilla campaign prompting Israel to withdraw from south Lebanon earlier that year. Then, during a June 2001 memorial gathering for Syria's late President Hafez al-Asad, the MK asked other Arabs for "wider support" for Palestinians' ongoing resistance to Israeli occupation. Though the Knesset has previously lifted immunity of members facing criminal charges, Bishara's case represents the first time in Israeli history that a member is so sanctioned because of political expression. The lifting of Azmi Bishara's immunity is a dangerous and unjustified act of censorship.

VIGOROUS CRITIC

Azmi Bishara is a vigorous intellectual and a well-known critic of the Israeli state. In numerous writings and public appearances, he has protested that the Israeli state's self-definition as "Jewish and democratic" is unrealistic and discriminatory. Leader of the National Democratic Assembly (NDA), a party advocating cultural autonomy and civil rights for Palestinians in Israel, Bishara calls for a binational Israel that would be a "state of all its citizens." This program has mobilized significant support among the NDA's electoral constituency: the Arab-Palestinian minority that has faced economic and social discrimination for generations. Bishara has never asserted that he is part of the Israeli political consensus; to the contrary, he has openly pointed to a direct conflict between the Jewish majority and the Palestinian minority over the definition of nationality in Israel. He articulates a trend among the Arab-Palestinian minority that poses a demand for socioeconomic and political equality not only in formal law, but in civic citizenship and nationality. Such demands make the MK a likely target of hatred from the Jewish majority, which almost invariably conceives him as a peril to the "Jewish state."

PARLIAMENTARY IMMUNITY

In a democracy, parliamentary immunity, and other types of political immunity granted to elected representatives, are crucial for protecting a plurality of attitudes and practices. Without such immunity, however controversial the protected practices are, political representatives might be paralyzed, since the government or majority party might severely curtail political opposition by sanctioning dissent and protest. As political theories invariably underscore, a democracy cannot exist as an open fabric without vibrant opposition.

While in a democracy the majority rules, or (as in Israel's case) a coalition of minorities rules, the non-ruling minority should enjoy special privileges of protections and political immunity. Since the majority rules, the minority is left with no option but to dissent and oppose the central government, to challenge its policies and to seriously question state ideology and its ramifications for public policy. The representatives of the minority relish immunity as a source of political empowerment in their possibly unrewarding struggles against the majority, especially under conditions in which the minority conceives itself as being systematically discriminated against by the state and its ruling elite. Absolute political immunity, like absolute power, may corrupt, but tolerance toward very controversial practices protected by political immunity is crucial to freedom in multicultural societies.

MINORITY UNDER PRESSURE

Israeli law grants immunity concerning political attitudes and political activities to all members of the Knesset, without any distinction between political affiliations, for life. The purpose of that constitutional protection, traditionally criticized for being too liberal, is to protect the MK from the tyranny of the majority and from dangerous political intolerance. Originally, this constitutional arrangement was justified in Israel when the dominant political party of Mapai ruled and endangered various minorities in a country where no entrenched bill of civil rights was in existence. Today, in a much more fragmented and polarized political setting, political immunity is still a crucial arrangement due to the predicament of the Palestinian minority in the Jewish state.

Since the second intifada and the breakdown of the Oslo agreement in the fall of 2000, the Arab-Palestinian minority in Israel has come under heavy political pressure. Many among the Jewish majority have considered the minority to be loyal to Yasser Arafat. The civil revolt in many Arab towns in Israel in October 2000 has been perceived by many Israeli Jews as evidence of the "Palestinization" of the minority and a danger to Israel's national security. Palestinian citizens' large-scale abstention from the prime minister's election in February 2001 (turnout plummeted from an average of 75 percent to 25 percent) has symbolized the increasing division between Jewish and Palestinian citizens of Israel. Ariel Sharon's rise to power in 2001 and the defeat of Ehud Barak have encouraged right-wing ultra-nationalistic Jews, both secular and religious, to publicly label Arab-Palestinian MKs as potential enemies of the state. Expressions of sympathy with Palestinians in the Occupied Territories, both inside and outside the Knesset, have been stigmatized as acts of treason. Several MKs, like Muhammad Barakeh, were questioned by police about their political speeches.

GIVING VOICE TO RESISTANCE

The debate in Israel over Azmi Bishara's case has revolved around two questions: should he enjoy immunity for his speech in Syria in which he allegedly called for a struggle against Israel? Is he protected under the veil of immunity while making such statements in Syria, regarded as an "enemy state"? Presuming that Bishara did indeed call for a struggle against Israel, focusing on its government, and not excluding a military campaign against it, these questions might seem redundant. Why should a democracy not defend itself? Defenders of Bishara point out that his comments in Syria encouraged resistance to the occupation of Palestinian lands, not to Israel as defined by its pre-1967 borders. Yet the decision of the Knesset to strip Bishara of his immunity has also been justly criticized by several leading Israeli legal scholars, including scholars who define themselves as Zionist in their worldview, based on purely normative arguments.

Bishara's speech in Syria severely criticized Israeli government policy in the territories occupied by Israel during the 1967 war. This occupation is the subject of fervent contention among Jewish Israelis as well, but Bishara's comments were taken in Israel as a justification for resistance to occupation by violent means. As a political representative of a national minority, the MK has given voice to a significant trend that conceives civil disobedience and even violence as a means for resisting oppressive majority rule.

DANGERS TO DEMOCRACY

But it is hardly conceivable to argue seriously that Bishara's speech has endangered Israel's national security, or that it has spurred violence against the state. Bishara's immunity was canceled for neither purely legal nor constitutional reasons. Rather, the proclivity of the Jewish public and most of the ruling elite has been to censor the critical and radical attitudes of the Palestinian minority as a national community. Stripping Bishara of his immunity was an act of censorship against a radical viewpoint, but not a prevention of a tangible peril to the state's existence or security. Therefore, legal scholars attest, stripping Bishara of his immunity was illegal by any normative conception of democracy as a fabric that should encourage plurality of voices and practices. Freedom of speech of representatives of the people should be almost absolute unless the tangible danger that they constitute to state security is immediate and indubitable.

Most legal scholars in Israel are fearful that criminal procedures against a politician for expressions of his/her opinions might pave the way to similar procedures against other opposition figures. As Bishara is the first MK to face criminal charges for his political outlook, and not personal or partisan corruption, these scholars may indeed be justified in fearing wider consequences. The Bishara affair has shown that the limits of intolerance in Israel have become more fragile, and that the space for dissent that questions state ideology and even state policy has become more confined. The lifting of Azmi Bishara's immunity, and the planned court proceedings against him, are dangerous developments for democracy in Israel.