Court prevents outgoing commissioner from sounding warning

High Court raises constitutional concerns over law granting Ben Gvir police powers

Several judges challenge notion minister shouldn’t set general police policy and priorities, ask why petitioners’ concerns cannot be addressed by administrative intervention

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Justices hold a High Court hearing on petitions against a police regulations bill pushed for by National Security Minister Itamar Ben Gvir, on June 18, 2024. (Yonatan Sindel/Flash90)
Justices hold a High Court hearing on petitions against a police regulations bill pushed for by National Security Minister Itamar Ben Gvir, on June 18, 2024. (Yonatan Sindel/Flash90)

The High Court of Justice expressed heavy concern Tuesday with what some justices described as constitutionally problematic aspects of a contentious law passed in December 2022 granting broad powers over police policy to the national security minister, during a key hearing on the legislation.

At the same time, the court also questioned whether the concerns of the petitioners — that the law gives too much power to the minister over law enforcement — could not be addressed through administrative court intervention, instead of on the constitutional level.

Justice Noam Sohlberg notably said at one stage of the proceedings that striking down Knesset laws, as the petitioners have requested for the police law amendment, is always “a last resort,” and that a tool used by the court to interpret the legislation in a way that is in line with existing law was a realistic alternative.

Both sides of the debate insisted during the hearing that Israel’s democracy was at stake, with the petitioners contending that fundamental rights, including freedom of expression and protest, could be violated under the terms of the law, while National Security Minister Itamar Ben Gvir’s attorney maintained that democracy was at threat if the public’s representatives could not determine police policy.

The petitioners, a group of government watchdog groups, are requesting that the court strike down the law, passed in December 2022, which they said greatly expanded the powers of the national security minister over the police.

According to the law, passed at the behest of the far-right Ben Gvir, the minister is empowered to “delineate the policies of the police and the general principles of its operation,” including “priorities, work programs, and general guidelines.”

National Security Minister Itamar Ben Gvir visits the Tel Aviv Police Forward Command Center with Police Commissioner Koi Shabtai, March 1, 2023. (Courtesy: National Security Ministry)

In a separate clause singled out for particular criticism by the petitioners, the law enables the minister to “delineate general principles in the field of investigations, including determining principle priorities.”

Ben Gvir has been accused by the petitioning organizations, in separate proceedings, of abusing his power over the police and intervening on an operational level in accordance with his own far-right policy preferences.

The High Court in 2023 explicitly barred Ben Gvir from issuing operational instructions to the police due to concerns over the policing at anti-government demonstrations. However, a recent letter by the police commissioner to the attorney general indicated that the minister has seemingly ignored those orders.

Attorney Yitzhak Bart, representing the Knesset legal adviser, who has backed the law, argued in court that despite claims by petitioners that the law would allow for the politicization of police work, any such policies would continue to be illegitimate even under the new law.

“The law doesn’t allow the minister to intervene in operational decisions of the police, doesn’t absolve the police of acting in a fair-minded and apolitical manner, doesn’t change the balance between the independence of the police and the authority of the minister to determine general policy, and doesn’t change the division of authority between the police commissioner and the minister,” contended Bart.

But Acting Supreme Court President Uzi Vogelman and Justice Noam Sohlberg both took issue with the fact that the minister can dictate general policy over police investigations without approval or even a real consultative process with the attorney general.

“According to the clause, the minister needs to hear the position of the attorney general and consult with the police commissioner… hearing isn’t consulting,” said Sohlberg.

Vogelman went further, asking hypothetically what would happen if the minister sought a policy of prosecuting demonstrators for blocking roads and the attorney general opposed such a policy, asserting that there would be a clear conflict of authorities that under the new law would not be resolvable.

“This is a situation of clear clash [of authorities] which has no resolution,” said the acting court president, adding later that such a situation could also lead to severe harm to basic rights if the police detained and questioned people over a concern that the attorney general does not want to prosecute people for.

National Security Minister Itamar Ben Gvir (left) speaks during an official Memorial Day ceremony at the Ashdod Military Cemetery, May 13, 2024. (Liron Moldovan/Flash90); Attorney General Gali Baharav-Miara addresses the Israel Bar Association’s annual conference in Eilat, May 27, 2024. (Courtesy: Israel Bar Association)

Attorney Aner Helman, representing the Attorney General’s Office, insisted that the law was a threat to Israel as a democratic society and should “keep everyone awake at night,” owing to the weighty power of the police over ordinary citizens and, in turn, the powers that the law grants to the minister overriding the police.

He contended that the police minister should not be involved in determining investigation priorities, and said the law “deliberately diminishes the status of the attorney general and the police commissioner,” and was unconstitutional, as it provided no guarantees for basic civil rights.

Justice Alex Stein took him up on that point, inquiring, “How do macro policies lead to harm to constitutional rights?,” and adding that “according to what you are saying, you would need to protect human rights in state budgets so that they [state funds] are not allocated to the wrong place.”

Justice Yechiel Kasher argued that it was impossible to escape the fact that the police would always need to set investigative priorities, since there would never be enough money and resources to deal with all suspected criminality, asking why the minister should not set such policy.

Representing Ben Gvir, attorney Nadav Haetzni argued, as the ultranationalist minister himself has done, that Israeli democracy was under threat precisely because there was insufficient ministerial control over the police.

“In a democracy, the police have massive powers… the representatives of the public have to supervise all those with such massive power, including the police,” contended Haetzni.

“Saying that [determining policy over] investigations is outside of the [accepted] boundaries would take us to a non-democratic regime,” he said, arguing later that setting investigative priorities “is part of a democratic regime, we’re talking about who is expressing the will of the public.”

In one telling exchange, Haetzni said that the petitions would not have been brought “if we weren’t talking about this specific minister,” a reference to Ben Gvir’s history as a far-right agitator with several convictions for nationalist crimes, to which Justice Ofer Grosskopf retorted that “this amendment [to the law] would also never have come about.”

Police detain a protester during a demonstration calling for the release of hostages held by Hamas in Gaza since October 7, Tel Aviv, June 8, 2024. (Jack Guez/AFP)

Attorney Eliad Shraga, the chairman of the Movement for Quality Government in Israel, one of the principal petitioning organizations, blasted the idea that the law sought to strengthen democracy.

“The amendment gives the minister broad, undefined, unlimited powers, and essentially gives him full control over the police. This amendment de facto creates a militia controlled by a supreme commander,” averred Shraga.

He pointed to the large number of demonstrators arrested during the judicial overhaul protests — some 1,500, he said — compared with just seven indictments, alleging that this was the result of overly aggressive policing resulting from Ben Gvir’s policies.

Sohlberg challenged him, however, pointing out that the High Court has been petitioned over Ben Gvir’s actions as minister and has issued administrative injunctions against him.

Sohlberg was referring, in part, to an order by the court prohibiting Ben Gvir from giving operational instructions to the police.

“The doors of the court are open, petitions were filed, administrative steps were taken… the attorneys for the Knesset and the minister are saying this is the way to deal with these issues, they must be in the administrative branch, not the constitutional branch,” said the justice.

Later in the hearing, Sohlberg indicated that if the court were to intervene in the legislation, his preferred method would be to use the tool of interpretation to deal with any problems with the law. “Canceling a law is a last resort, not the first… therefore the option of using existing interpretation of the law and not canceling it is a real possibility,” he said.

At an earlier stage of the hearing, Helman, of the Attorney General’s Office, sought to have Israel Police Commissioner Kobi Shabtai address the court to give his insight into what he said were the dangers the law poses to the politicization of policing, but the court declined the request, telling Helman to submit Shabtai’s comments in writing.

Ben Gvir, who demanded the law be passed before entering the government, recently sought to fire Shabtai from his post after the latter wrote to the attorney general complaining about repeated interference by the minister in operational police matters.

“I came here due to a heavy concern for the future of the Israel Police as a professional and apolitical police force without different [forms of] interference,” said Shabtai outside the courtroom.

Earlier, Ben Gvir also outside the court that he felt like an “ornamental plant” as minister, who can’t determine any policy within his ministry.

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