Supreme Court justice says he’s ‘worried’ about Ben Gvir police law during hearing

Petitioners against legislation granting extended powers over the police to the national security minister argue that it undermines force’s independence and threatens civil rights

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

Israeli National Security Minister Itamar Ben Gvir arrives for a court hearing at the Supreme Court in Jerusalem on petitions against his police regulations bill, June 7, 2023. (Yonatan Sindel/Flash90)
Israeli National Security Minister Itamar Ben Gvir arrives for a court hearing at the Supreme Court in Jerusalem on petitions against his police regulations bill, June 7, 2023. (Yonatan Sindel/Flash90)

Supreme Court Justice Isaac Amit said he was “a worried citizen” due to what he implied was a lack of constraints present in a new law delineating the national security minister’s authority over the police, during a hearing on the legislation in the High Court of Justice on Wednesday.

During the hearing, representatives of several government watchdog groups, as well as the opposition Yesh Atid and Labor parties, argued that the law, passed at the behest of far-right National Security Minister Itamar Ben Gvir, harms civil rights in Israel, undermines democratic norms, and compromises the independence of the police.

The petitioners also argued that the legislation was approved hastily and through the use of unusual Knesset procedures, depriving the opposition of the right to participate in the legislative process, which should invalidate the bill.

Supreme Court Justices Amit, Uzi Vogelman and Yechiel Kasher intervened frequently during the lengthy oral arguments of the attorneys pleading for both the petitioners and those representing Ben Gvir.

Vogelman in particular appeared to accept arguments that the law was indeed written in an amorphous manner, but was noticeably less impressed by arguments against the process by which the legislation was passed.

The police regulations amendments law passed at the end of December, before the current government took office, and states that the national security minister is entitled to “direct police policy and the general principles for its operations.”

National Security Minister Itamar Ben Gvir (second from right) in the Traffic Police’s National Control Center with Police Commissioner Kobi Shabtai (right) on March 9, amid nationwide protests against the government’s judicial overhaul program. (Courtesy: National Security Ministry)

This includes determining police priorities and work programs, as well as general orders and instructions.

The petitions against the law argue that its wording is very vague and therefore allows for it to be broadly interpreted by the minister to enable him to actively intervene in operational police activities. The petitions buttressed those claims by citing numerous occasions over the last five months in which they said the national security minister intervened in operational matters since he took office.

Supreme Court Justice Isaac Amit at a Supreme Court hearing, January 23, 2019. (Yonatan Sindel/Flash90)

Attorney Eliad Shraga, who heads the Movement for Quality Government in Israel organization, was first to plead, arguing assertively that the police amendment law was part of what he described as the government’s effort to “change Israel’s form of government” and undermine democracy.

“We hold that this amendment is unconstitutional, that this amendment will allow a minister — as we have already seen in the last half a year — to harm fundamental rights, whether it is the right to demonstrate, the right to freedom of expression, individual liberties, the right to due process, to be represented, we are seeing how human rights are being violated by this amendment,” Shraga argued.

He contended that one critical clause of the law enabling the minister to delineate policy was especially egregious.

“In this amorphous manner, the minister can determine policy, set priorities in all fields [of police work], have authority over investigations, the use of force, all these authorities that are unclear and amorphous are given over to the minister,” Shraga claimed.

National Security Minister Itamar Ben Gvir speaks to police officials ahead of a protest against the government’s planned judicial overhaul, outside the Knesset, February 20, 2023. (Arie Leib Abrams/Flash90)

Amit interjected at that point, asking whether Shraga was therefore objecting to what is not written in the law as opposed to what is, to which the MQG chief agreed that he was.

Vogelman then asked Shraga whether the restrictions he would wish to see on the minister’s ability to intervene in police operational activity could not simply be read into the law interpretatively, given the vague nature of its wording.

“We’d be here in court three times a day if that’s the situation,” retorted Shraga.

Strikingly, when the attorney for Ben Gvir gave his oral argument contending that the new law did not stipulate that the minister can intervene in police operational activity, Justice Kasher demanded why the law had not simply stated that explicitly.

Kasher was, however, skeptical of Shraga’s arguments, and implied through his questioning that the petition was transient based on Shraga’s political objection to Ben Gvir.

“You’re talking about a specific minister whose worldview you don’t agree with and a police commissioner whose worldview you appreciate more,” asserted Kasher.

Supreme Court Justice Uzi Fogelman during a court hearing on petitions against the National Security Minister’s police regulations bill, June 7, 2023. (Yonatan Sindel/Flash90)

“Maybe the situation will be the reverse in the future and you will want the minister to restrain the police commissioner,” the judge added.

Shraga responded that he was opposed to the measure regardless of who was the minister.

Attorney Oded Gazit, who presented the Labor party petition, focused a significant portion of his time on incidents in which he said Ben Gvir had already intervened in police operational activity since taking office, in order to underline what he said was the sweeping powers the new law affords the police minister.

Gazit referenced an incident in February during an anti-government protest in Jerusalem, in which Ben Gvir reprimanded the Jerusalem police commander over his management of the protest during the demonstration itself, and summoned him to a hearing over the matter.

Other references to actions Ben Gvir has taken regarding the protests against the government’s judicial overhaul were made by the attorney representing Labor’s petition. He noted that Tel Aviv Police chief Ami Eshed was removed from his command mere hours after a protest on March 9 that Ben Gvir believed Eshed had managed too leniently.

And he rejected one of Ben Gvir’s central arguments for the law that it was necessary in order to redress problems of rising violent crime in Israel, noting that murder rates in the Arab community, which has seen the most serious increase in murder rates in the country, decreased under previous police minister Omer Barev without a change to the law.

National Security Minister Itamar Ben Gvir visits the Tel Aviv Police Forward Command Center with Police Commissioner Koi Shabtai during protests and a ‘Disruption Day’ staged on March 1, 2023. (Courtesy: National Security Ministry)

Attorney Nadav Haetzni, who represented Ben Gvir in court — since the attorney general who almost always represents the government in legal proceedings opposes the legislation — argued that it is countries with no restraint on the police force that are anti-democratic and authoritarian, and claimed that the new law did not allow for direct ministerial intervention in police operations.

Ben Gvir’s written response to the petition asserted that “regimes in which the police enjoys complete independence, as the petitioners demand, are essentially dictatorial police states,” and asserted that “the foundations of democratic regimes require that the police be subject to the authority of the representatives of the people, the government.”

Pleading in court, Haetzni insisted that “we have here the total reverse of who needs to be independent and who needs to be in charge… There is no regime change here, not even the shadow of such a change.”

Justice Amit noted that despite the attorney general’s request at the time the bill was being discussed in Knesset, Ben Gvir and the other sponsors of the law failed to include a clause stating that the police must “act with statesmanship,” meaning in a balanced, equitable manner.

“When the word ‘statesmanlike’ is missing, and I’m speaking for myself, I become a worried citizen, even scared,” said Amit.

Ben Gvir, who himself pleaded to the court, responded to Amit saying he believed that the word “statesmanlike” was requested simply due to the fact that the opposition and legal establishment opposed his tenure as police minister due to his ultranationalist background.

“They want to include it only because of me. It was never demanded of other ministers. These demands are designed to harm my legitimacy in the job,” claimed the minister.

Justice Kasher responded by saying that Ben Gvir had therefore declined the attorney general’s request because he was personally insulted by it.

“You are essentially saying that your offense is more important than [legal and political] reconciliation,” said Kasher.

“Maybe some of these claims do stem from a lack of trust, there are people sitting here who are worried. If you want reconciliation it should overcome the insult,” the justice added.

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