High Court annuls legislation that gave Ben Gvir strong influence over police probes
At the same time, judges unanimously uphold other aspects of law that increased minister’s powers over the force
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
In the latest constitutional confrontation between the judiciary and the government, the High Court of Justice on Thursday struck down a key component of a highly controversial 2022 law passed at the behest of National Security Minister Itamar Ben Gvir that granted the far-right minister increased powers over police investigations policy — but that the court ruled threatened fundamental democratic rights.
At the same time, the court upheld other aspects of the law that granted the minister increased power over general police policy, including its principles of operation and priorities. But it added several explicit interpretations to those clauses of the law, intended to preserve police independence and limit the power of the minister over operational police actions.
The decision is the latest in a series of rulings by the judiciary against the government, which have contributed to a slow-burning constitutional crisis between the two branches of government.
The High Court and Ben Gvir have already clashed on several occasions over the ultranationalist minister’s efforts to interfere with operational police decisions, in particular over the policing of anti-government demonstrations. In March 2023 the court issued instructions to Ben Gvir forbidding him from interfering with operational police decisions in general, and in January 2024 explicitly ordered him to refrain from interfering with the policing of demonstrations.
Petitioners against the law, including the Association for Civil Rights in Israel (ACRI) and the Movement for Quality Government in Israel, lauded the decision, saying it would help preserve the independence of the police and serve as a barrier to its politicization.
In response, Ben Gvir lambasted the court for “trampling on the will of the voter.” Justice Minister Yariv Levin — who has himself been waging a two-year battle against the court — called implicitly to advance legislation he has championed to assert government control over the judiciary.
The decision to strike down the clause regarding authority over police investigations policy was made by a majority of five justices to four, with former acting Supreme Court president Uzi Vogelman writing the majority opinion (retired justices have three months to issue decisions in cases they heard before they retired), and moderate conservative justice Yael Wilner joining her more liberal colleagues in the decision.
The ruling to uphold the clauses of the law granting the minister more general authorities was a unanimous decision of all nine justices presiding over the case.
In his opinion for the majority, Vogelman wrote that there was an inherent danger to the rights of citizens if police investigation policies are politicized. The court determined that although the other powers granted to the minister could also have a problematic effect on basic democratic rights, there were existing laws, procedures and judicial rulings that meant the new law could be interpreted in a way that preserves police independence and impartiality.
The amended Police Ordinance law, passed on the insistence of Ben Gvir before the government was formed in December 2022, empowered the minister to “delineate the policies of the police and the general principles of its operation,” including “priorities, work programs, and general guidelines.”
In addition, it enabled the minister to “delineate general principles in the field of investigations, including determining fundamental priorities.”
ACRI and the Movement for Quality Government argued that the law enabled the minister to intervene in sensitive policing decisions, which could harm key constitutional rights including the freedom of protest and freedom of expression.
The petitioners also argued that the clauses of the law giving the minister heightened power over police investigations policy could politicize law enforcement, undermine the independence of the police and therefore severely harm democratic principles.
Writing for the majority, Vogelman said that “the concern of the encroachment of political considerations” in police work was all the more acute when it came to criminal investigations, and that “the possibility that the decision to open a criminal investigation and use harmful governmental power… [would be made] for reasons that are not pertinent or professional” could fatally undermine the legitimacy of an investigation.
He wrote that the law also created an irreconcilable disconnect between the power of the minister to determine police investigations policy and the authority of the attorney general to prosecute a suspect, resulting in a situation in which a citizen could be investigated by the police without there ever being a chance of prosecuting them.
“Becoming a suspect in a criminal investigation causes a serious violation of [a person’s] rights… including [being] exposed to the possibility of being arrested and put behind bars, and being deprived of their liberty and freedom of movement,” Vogelman noted.
As a result of the incongruence between the minister’s powers over investigations and the attorney general’s powers over prosecutions, “a person may find themselves subject to a comprehensive and invasive criminal investigation, while there is no intention to prosecute them in the first place.”
This, Vogelman wrote, could result in constitutionally unacceptable violations of a citizen’s basic rights enshrined in Basic Law: Human Dignity and Liberty, and therefore must be struck down.
Addressing the clauses of the law granting the minister greater authority over general police policy, Vogelman was also highly critical, writing that they created a “built-in preference for principles relating to the powers of the minister over principles relating to the independence of the police.”
Still, he wrote that the court found that the new law “did not detract from police’s obligation to act in an independent, professional and stately manner,” meaning that any policy running counter to those principles would still be unlawful under the terms of the legislation, and could be challenged in court.
Specifically, Vogelman wrote that those clauses should be interpreted in a way that clearly differentiates between “the authority of the minister to delineate general policies and principles only,” and “the prohibition on operational interference in the judgement of police officials.”
As such, the minister’s policies must be worded “in a general manner and [on the basis of] principles” and “not address details of implementation or execution, leaving judgement to the official who holds authority in the field.”
Vogelman also wrote that the court interpreted the clause granting increased powers to the minister over general police policy as including an obligation to consult with the police commissioner about policies the minister seeks to advance.
And he further wrote that any policies the minister wants to delineate regarding protests must be done in consultation with the attorney general.
Vogelman also added an interpretation of another clause of Ben Gvir’s legislation, which determined that the police commissioner’s authority over the police must be “in accordance with the policies and general principles delineated by the minister.”
This, the justice wrote, should be interpreted in a way that “does not detract from the police commissioner’s obligation to use his own independent judgment to determine organizational and operational policies for the police, and to be responsible for the manner in which the policy is implemented in the field, as well as the details of operational execution.”
ACRI’s executive director Noa Sattath said the ruling would “help protect the fundamental right to oppose government policy” and the right to protest against it.
“The court’s decision to strike down the minister’s authority over investigation policy and clearly limit his role in operational matters prevents the use of police power to suppress opposition to the government,” said Sattath, adding that the past two years had seen attempts to “use police power to suppress legitimate protests and advance partisan political agendas” and demonstrated exactly why the ruling was needed.
Ben Gvir denounced the ruling, saying the court had “once again turned itself into the sovereign, and is trampling the will of the voter.”
“The grave decision by the High Court to neuter the [law] is designed to strip the minister of his authorities and to try and grant the State Attorney’s Office and the Attorney General authority over the police,” he asserted. “In a democratic state, the one who determines policies for the police is the minister appointed over it, but this of course does not interest the High Court.”
