High Court begins hearing on Ben-Gvir Law, police chief expected to oppose

Israel’s High Court of Justice on Tuesday held a significant hearing in a petition put forth by several organizations against a law passed by the coalition in late December 2022 that expanded the authorities of the soon-to-be, now-National Security Minister, MK Itamar Ben-Gvir.

The case reached its climax after a series of procedural stages and was heard in front of an expanded bench of nine High Court justices.

It was passed in the Knesset on December 27, two days before the current government was sworn in, after Ben-Gvir set it as a precondition for his joining the coalition.

The law was an amendment to Israel’s Police Law (also known as the Police Ordinance). It anchored the police’s subordination to the government, as well as allowing for the national security minister to set policy and general principles.

Further, it enabled the minister to set policy regarding investigations after consulting with the attorney-general, the police commissioner, and the officers responsible for investigations.

The leading petitioner, the Movement for Quality Government in Israel (MQG), argued at the hearing that Ben-Gvir’s conduct since taking office proved that the law was dangerous, as it de facto enabled the minister to intervene in operational matters, including in the treatment of individuals protesting against the government.

MQG chairman Adv. Eliad Shraga said to reporters outside of the courtroom, “We have seen everything that we have warned against come true in the last year and a half. We have seen the minister meddling in the policy regarding investigations; we have seen the minister meddling in operative law enforcement policy; we have seen the minister meddling in appointments policy; and we have seen the minister running the police.”

“This is an abnormal situation where the police are effectively a militia at the service of the minister. We live in a democratic country, and so we insist that the amendment to the Police Ordinance be repealed—that the Israel Police be an institution of the state, subject only to the rule of law,” Shraga punctuated.

Other petitioners included Yesh Atid MKs Yoav Segalovitz and Mickey Levy, both of whom served in senior roles at the police in the past; the Labor Party; the Association for Civil Rights in Israel (ACRI); and the High Follow-Up Committee for Arab Citizens of Israel.

Adv. Aner Hellman of the Attorney-General Office’s High Court of Justice division argued during the hearing that the part of the law regarding investigations needed to be struck down as unconstitutional since it did not include provisions to protect citizens from violations of human rights.

Hellman added that the part of the law giving the minister the ability to set policy should also be struck down unless the court clarifies what exactly qualifies as “policy.” According to Hellman, “policy” must be defined in advance and cannot be set during a specific addition. Moreover, the legality of these policy decisions must first be deemed legal by the ministry’s legal adviser.

A lawyer for Ben-Gvir, Adv. Nadav Haetzni, argued in response that the fact that Ben-Gvir has made controversial policy decisions since taking office does not mean that the law itself is unconstitutional. According to Haetzni, the minister should have the right to set general policy, and if the minister gave specific operational orders, these could be challenged in a separate process in the High Court.

In reference to this, Hellman and others argued that illegal operational directives given by Ben-Gvir could not always be appealed in real time and that the potential for human rights violations was serious enough to render the law unconstitutional. The law should especially clarify that the police, and not the minister, were responsible for making decisions in real-time regarding protests against the government.

Ben-Gvir attended part of debate

Ben-Gvir attended part of the debate and at one point even interrupted his attorney, saying that he would not agree to be a “plant,” i.e., a passive observer of the police’s actions. This continued a claim made by Ben-Gvir on Tuesday that outgoing Israel Police Commissioner Yaakov Shabtai and the Attorney General’s Office were colluding against him to prevent him from applying his policies.

Indeed, the hearing came during an ugly public spat between Shabtai and Ben-Gvir. Shabtai complained to the attorney-general in recent weeks that, on numerous occasions, the national security minister had illegally bypassed him and spoken directly to lower-ranking police officers.

Ben-Gvir, in turn, accused Shabtai of not functioning properly since the results of the Mount Meron tragedy report were made public in March.

The report found several officials, including Shabtai, former public security minister Amir Ohana, and Prime Minister Benjamin Netanyahu, personally responsible for the catastrophe in which 45 haredim were crushed to death during a mass Lag Ba’omer event at the grave of Rabbi Shimon bar Yochai in 2021.

Shabtai himself attended the hearing and wished to speak, but the judges denied his request. Shabtai instead spoke to reporters outside.

“I came here today out of a deep concern for the future of the Israel Police as a professional, apolitical” member of the police, without any specific agenda, Shabtai said.

“I did not come here against some minister or other. I came simply to present our positions about the significance and consequences of this law. Expanding the authorities [of the minister] could affect democracy in the State of Israel,” he emphasized.