## Facts

- Azmi Bishara, a member of the Knesset, delivered two public speeches (June 2000 in Israel; June 2001 in Syria) that were alleged to praise or express approval of Hezbollah, designated under Israeli law as a terrorist organization.
- The Attorney General indicted Bishara for “supporting a terrorist organization” under the Prevention of Terrorism Ordinance, 1948, based on the speeches.
- The Knesset voted to lift Bishara’s procedural immunity to allow prosecution to proceed.
- In related election litigation concerning the same speeches, the Supreme Court had overturned a decision disqualifying Bishara’s candidacy, finding the evidentiary threshold for supporting an “armed struggle” against the state was not met.
- In the criminal case, Bishara asserted substantive (functional) parliamentary immunity, arguing the speeches were political activity connected to his role as an elected legislator.
- The magistrates’ court postponed deciding the substantive-immunity claim until after hearing evidence at trial.
- Bishara petitioned the High Court of Justice to require a preliminary ruling and to terminate the prosecution based on substantive immunity.

## Issues

1. Whether the statutory exclusion from substantive parliamentary immunity for expressions supporting “an armed struggle of a terrorist organization against the State of Israel” applied to Bishara’s speeches.
2. If the statutory exclusion did not apply, whether the speeches nonetheless fell outside functional parliamentary immunity under the judicial “margin of natural risk” test.
3. Whether the trial court could defer the substantive-immunity determination until after hearing evidence, rather than resolving it as a threshold matter.

## Decision

- The High Court granted the petition by majority (Barak, P., and Rivlin, J.); Hayut, J., dissented.
- The majority construed the statutory exclusion narrowly, limiting it to speech that clearly supports armed struggle against the state, not general support for, or approval of, a terrorist organization.
- Applying that construction, the majority held the speeches did not clearly endorse armed struggle against the state and therefore did not trigger the statutory exclusion.
- Under the “margin of natural risk” doctrine, the majority held the speeches—though close to the boundary—were within the foreseeable risks of an MK’s political activity and thus covered by substantive parliamentary immunity.
- Because substantive immunity applied, the criminal prosecution could not proceed; the indictment was to be dismissed and the magistrates’ court’s deferral approach was rejected in substance.
- The dissent would have applied a broader view of the exclusion and a narrower view of functional immunity, permitting the prosecution to proceed.

## Legal Principles

- Substantive (functional) parliamentary immunity protects acts sufficiently connected to a legislator’s public and political functions, including political speech, even when delivered outside the legislature.
- Statutory exceptions that withdraw substantive immunity are construed strictly in light of immunity’s purpose of protecting legislative independence and robust political debate.
- The exclusion for supporting “an armed struggle of a terrorist organization against the State of Israel” requires clear endorsement of armed struggle against the state; general or ideological approval of an organization is insufficient.
- Functional immunity is limited by a “margin of natural risk” test: immunity covers conduct within the natural and foreseeable risks of performing legislative duties, but not conduct sufficiently detached from those duties.
- Where substantive immunity bars prosecution, courts should resolve the immunity question as a threshold legal determination rather than requiring a full evidentiary criminal trial.

## Conclusion

The High Court held that Bishara’s speeches were protected by substantive parliamentary immunity because they did not clearly support armed struggle against the state and, while near the boundary, remained within the natural risk of an MK’s political role, requiring dismissal of the prosecution.


Bishara v. Att’y Gen., HCJ 11225/03, 60(4) PD 287 (Isr. 2006)