Police Ordinance Amendment – Minister of National Security’s Authority (“Ben Gvir Law”)
Along with The Public Committee Against Torture and The Movement for Integrity, ACRI petitioned the High Court on January 18, 2023, demanding the annulment of Amendment 37 to the Police Ordinance. This amendment expanded the Minister of National Security’s authority, transferring him powers that had previously remained under the Police Commissioner’s jurisdiction. The petition claims that the amendment introduces political considerations into sensitive professional decisions on behalf of the police. A politically motivated police force that uses its power to advance political and partisan interests, is indicative of an authoritarian regime.
The petition notes that police authority and the potential for severe and disproportionate human rights violations, require oversight such that their power does not go unrestrained. They also demand equitable use of force towards law enforcement purposes, and not to promote the political goals of those in power at any given moment.
The petition focuses on three aspects of the implications of transforming the police into a politically motivated force.
The first aspect addresses the minister’s authority to delineate "police policy and general operational principles.” The petition claims that such authorization unconstitutionally violates freedom of protest and expression, delegating control over the extent to which these freedoms are exercised to a political entity. Examples were noted regarding the minister's intervention in police preparation for protests against the government, as well intervention regarding the police response to waving Palestinian flags. Both examples demonstrate politicization of the police caused by professional decisions shaped by a political entity, against whom protests are directed.
The second aspect entails the Minister of National Security’s authority to determine a “general policy regarding investigations” or “general principles” regarding police prosecution. The petition claims that decisions concerning investigations and prosecutions, including a general “policy” regarding these matters, must not enter the political sphere. “Political entities are in a state of institutional conflict of interest when it comes to decisions of this nature,” the petition puts forth, and they cannot be entrusted with policy making regarding investigations, which have implications on sensitive topics like fighting public corruption.
The third aspect addresses the provision authorizing the Police Commissioner to determine that a police order shall not be publicized. The petition claims that the clause allows for “covert legislation” and prevents the publication of police orders without any standards whatsoever, through gross deviation of the Freedom of Information Law’s provisions.
On March 5, 2023, we submitted a request for an interim order on the petition, requesting that the High Court of Justice order the minister to refrain from outlining policy, issuing provisions and guidelines regarding all matters concerning exercising the right to demonstrate and protest, until there is a ruling on the petition. We submitted a request following the minister’s intervention in the police’s operational conduct toward those protesting judicial reform. In the request, we claimed that sensitive decisions regarding exercising freedom of protest, the right to demonstrate, and freedom of expression, must be separated from the political echelon’s influence, to prevent the use of police authority to apply force toward political aims.
The court ordered the state to reply to the request for an interim order by March 13, 2023. Yet that same day the minister submitted a notice to the court stating that he does not trust the attorney general to reliably represent him, and he requested to represent himself. This followed the attorney general’s order to freeze the minister's decision to remove Tel Aviv Police District Commander Ami Ashad from his role, until the completion of a legal investigation on the matter. The court did not accept the minister's request to represent himself, declaring that he should first appeal to the attorney general "as is customary” (generally, separate representation is made possible in extremely exceptional cases, with the approval of the attorney general).
Two days later, the state submitted its response to the request for an interim order. The state opposed the request and claimed that even following amendment 37 to the order, the minister neither retains the authority to issue operational instructions to the police, whether directly or indirectly, nor to intervene in police commanders’ professional judgment regarding concrete incidents. The response further deemed the minister’s conduct in recent weeks illegal, as it crossed the boundary between policy making and providing operational directives to professional echelons regarding individual cases.
On March 19, 2023, the High Court of Justice published its ruling on the request and clarified that “the minister must refrain from granting operational directives to the police, whether directly or indirectly, and that this holds especially true regarding protests and demonstrations against the government.”
On June 7, 2023, a hearing was held on the petition and on June 18, 2023 the High Court of Justice issued a conditional order instructing the state to explain why the legal amendment should not be repealed.
In the Supreme Court (High Court of Justice) 532/23 The Association for Civil Rights in Israel vs. The Knesset
Attorneys: Yonatan Berman, Gil Gan-Mor
Urgent request for an interim order, 5.3.2023 (Hebrew)
Announcement from the Minister of National Security, March 13, 2023 (Hebrew)
Decision, 14.3.2023 (Hebrew)
The state's response to requests for an interim order, March 15, 2023 (Hebrew)
Decision, 19.3.2023 (Hebrew)
Preliminary response on behalf of the Knesset, May 31, 2023 (Hebrew)
Response on behalf of the legal advisor to the government, 31.5.2023 (Hebrew)
Decision and conditional order, 18.6.2023 (Hebrew)
Naftali Bendel, The Supreme Court issued an injunction on the "Ben Gvir Law," the Minister responded: "They think they're lawmakers, passing the reform in its entirety," Israel Hayom, 18.6.2023. (Hebrew)
Meir Turgeman, Despite the Attorney General's warning: Ben Gvir arrived at the police station during the protest, 16.3.2023, Ynet. (Hebrew)
Chen Ma'anit and Yehoshua (Gush) Breiner, Attorney General to the Supreme Court: Real concern that Ben Gvir crossed the line and interfered in the police's discretion, Haaretz, 16.3.2023. (Hebrew)
Chen Ma'anit and Yehoshua (Gush) Breiner, The Supreme Court to Ben Gvir: If you want to represent yourself, you must first approach the Attorney General, Haaretz, 14.3.2023. (Hebrew)
To the Attorney General, Haaretz, 14.3.2023 (Hebrew)