(JNS) Israel’s Supreme Court on Thursday, while affirming the legality of most of a law granting the national security minister authority over the police, rejected a key provision that gave him power over police investigations.
The decision angered the government, which accused the court of stripping power from the people’s elected representative.
It is the latest broadside in an ongoing battle between the judiciary and the legislature over the proper separation of powers, with the government accusing the judiciary of having undemocratically expanded its authority to interfere in government decisions.
Nine members of the court (which sits as the High Court of Justice when considering petitions) voted 5-to-4 to strike down Section 8D of Amendment No. 37, which grants the national security minister the power to “set general policy in the field of investigations.”
The petitioners, a collection of left-wing and Arab NGOs, including the Movement for Quality Government in Israel, the Association for Civil Rights in Israel and Adalah—The Legal Center for Arab Minority Rights in Israel, had called for the entire amendment to be overturned.
The court left the rest of the law’s provisions standing, the main one being that the police fall under the authority of the government and that the national security minister is the government’s representative.
“The amendment doesn’t detract from the obligation of the police to act independently, professionally, sovereignly and self-reliantly,” the justices unanimously agreed, rejecting the argument of the petitioners, who said the amendment threatened to politicize the police and interfere with its independence and professional discretion.
The petitioners nevertheless treated it as a partial victory. Attorney Yonatan Berman of the Association for Civil Rights said it reduced politicization in the areas of investigation, freedom of protest and demonstrations.
The law is sometimes referred to as the “Ben-Gvir Amendment” after Itamar Ben-Gvir, leader of the Otzma Yehudit Party and the first person to hold the National Security Ministry portfolio. (The Ministry of National Security, newly formed in 2022, expands the powers of the previous Public Security Ministry, which was once known as the Internal Security Ministry.)
Amendment No. 37 to the Police Ordinance was passed by the Knesset on Dec. 28, 2022 by a vote of 61 to 55. The amendment assigned a host of of powers to the minister of national security with regard to police work. Ben-Gvir was appointed minister the next day.
Expressing the government’s dim view of Thursday’s decision, Justice Minister Yariv Levin of the Likud Party said: “In what country can self-elected judges disqualify a law that the parliament passed in three readings? Only in Israel is democracy increasingly being replaced by the rule of a handful of judges.”
Ben-Gvir also condemned the decision, saying, “The High Court of Justice is once again making itself sovereign, trampling on the will of the voter. … In a democratic country, the one who outlines policy for the police is the minister in charge of it, but the High Court is of course not interested in this.”
He accused the court of attempting to strip authority over the police from the ministry and hand it over to the Attorney General’s Office. The Attorney General’s Office is viewed with hostility by the government, which sees it as an extension of an overreaching judicial system controlled by unelected left-wing elites.
Ben-Gvir has been the most vocal in a growing chorus of coalition members calling for the ouster of the current attorney general, Gali Baharav-Miara, who he says is working to undermine government decisions. (She had called, among other things, for the court to cancel Section 8D of the Amendment.)
In rejecting Section 8D, the court’s majority said it violated the constitutional rights of suspects, and contradicted the “limitations clause” in Israel’s Basic Law: Human Dignity and Liberty, which limits the Knesset’s ability to pass laws that violate the rights enshrined in the law.
The four-member minority opinion found no constitutional flaws with Section 8D.
