Police chief and Ben Gvir spar over who cops should obey in constitutional crisis

In latest clash, Kobi Shabtai says force will always follow the law; far-right police minister argues it must hew to government policy rather than High Court rulings

Michael Bachner is a news editor at The Times of Israel

Israel Police Commissioner Kobi Shabtai, left, and National Security Minister Itamar Ben Gvir at the scene of a terror attack in the West Bank settlement of Ma’ale Adumim, outside of Jerusalem, August 1, 2023. (Chaim Goldberg/Flash90)
Israel Police Commissioner Kobi Shabtai, left, and National Security Minister Itamar Ben Gvir at the scene of a terror attack in the West Bank settlement of Ma’ale Adumim, outside of Jerusalem, August 1, 2023. (Chaim Goldberg/Flash90)

The Israel Police commissioner and the police minister publicly sparred Wednesday over the question of who is the ultimate boss of the Israel Police — the elected government or the law.

That question isn’t entirely theoretical, as the High Court of Justice is set to hold hearings next month on petitions demanding that two laws passed by the current hard-right government be nullified, and there are growing calls within the coalition arguing that the political leadership should not obey a potential ruling striking down the legislation.

Such a scenario would plunge Israel into a deep constitutional crisis, and could put the police in the position of having to choose whether to obey the government or the court.

That issue was in the fore Wednesday as Police Commissioner Kobi Shabtai and far-right National Security Minister Itamar Ben Gvir both spoke at a ceremony honoring outgoing Border Police commander Amir Cohen and the incoming commander, Yitzhak Brik.

Taking a clear stand, Shabtai sent a message to the coalition in his speech: “I am saying this unequivocally — the police have only one compass, always the law and the statutes. As long as I am its commander [of the force], the law will rule and [the force] will act only in accordance with it.”

In a further swipe against a previous attempt by Ben Gvir to form a national guard that would be independent from the police and answer directly to his ministry, Shabtai said: “I have fought and I will fight with all my strength to guarantee that any policing force will be subordinate to the Border Police and the Israel Police.”

(L-R) National Security Minister Itamar Ben Gvir, Police Commissioner Kobi Shabtai, incoming Border Police chief Brik Yitzhak and his predecessor Amir Cohen attend a Border Police chief handover ceremony in Lod on August 16, 2023. (Border Police)

Ben Gvir spoke after Shabtai, and characteristically didn’t hold back.

“Our police force is apolitical,” he said. “The police must act in a stately manner and according to the law. The principles of democracy are that the nation goes to the ballot box and has its say, and those elected need to set a policy. This policy is the policy that everyone must act in accordance with. That’s how it is in a democracy. People go to elections, politicians are elected and the policy they set must guide us all.”

Ben Gvir also touted his efforts to form the national guard, while emphasizing the importance of the Border Police, saying it was an “honor” to serve as the minister in charge of the force.

Tensions between Shabtai and Ben Gvir have simmered since Ben Gvir took office late last year and sought to exert more influence over the police. The National Security Ministry oversees the police force and Border Police.

Shabtai said in June that he will end his term in January and won’t seek an additional year in office.

Heralding a potential constitutional crisis, the High Court has scheduled hearings before expanded panels of justices on the legality of two highly controversial pieces of legislation passed by the current government — both amendments to Basic Laws that critics allege undermine the country’s democratic foundations.

One bars the court or the attorney general from ordering a prime minister to recuse himself, while the other bars the court from striking down cabinet or ministerial decisions based on their “unreasonableness.”

The court has never yet struck down a Basic Law or an amendment to one due to their quasi-constitutional nature, but has developed doctrines that might enable it to do so, or otherwise intervene.

Prime Minister Benjamin Netanyahu (right) with Supreme Court President Justice Esther Hayut at a memorial service marking 22 years since the assassination of Yitzhak Rabin held at the Mount Herzl cemetery in Jerusalem, November 1, 2017. (Marc Israel Sellem/POOL)

In a statement issued last week, hours after the High Court indicated it could demand that the government delay the implementation of the recusal legislation until after the next election to prevent it from being a law enacted for Prime Minister Netanyahu’s personal benefit, coalition party heads claimed that the court had no authority to strike down a Basic Law or to otherwise intervene in its implementation, saying that such a decision would disrupt the balance between the branches of government.

Netanyahu has repeatedly refused to answer whether he would obey a High Court decision voiding the reasonableness or recusal laws.

The clash over Basic Law amendments comes against the backdrop of the government’s planned drastic overhaul of the judiciary, which has been met with months of mass protests by opponents. The government and its supporters say the legislation is needed to rein in what they see as an overreaching court, while critics say it will sap the court of its power to act as a check against executive power, dangerously eroding Israel’s democratic nature.

The dispute over the plan has deeply divided Israeli society, and has seeped into the volunteer police force.

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