The Association for Civil Rights in Israel, together with the Public Committee Against Torture and the Movement for Quality Government, petitioned the Supreme Court on January 18, 2023, demanding the cancellation of Amendment 37 to the Police Ordinance, which expanded the powers of the Minister of National Security. The petition argued that the amendment injects political considerations into sensitive decisions that should be made by professionals, and that a politicized police force using its power to advance political and partisan interests is a characteristic of dictatorial regimes.
The petition stated that law enforcement wields significant power, with the potential for it to be misused to violate human rights. As a result, it is extremely important to ensure that police power does not become unlimited, and that law enforcement is never used to advance the political goals of whoever holds power at any given moment.
The petition focuses on three major elements in the politicization of law enforcement:
Granting the Minister of National Security the authorization to set "police policy and general principles for its operation." The petition argues that this is an unconstitutional infringement on the freedoms of protest and expression, and renders the ability to exercise these freedoms at the mercy of a political figure. Examples of the politicization that occurs when professional decisions are shaped by a political figure—especially a political figure against whom protests are directed—include the Minister's intervention in police preparations for anti-government protests and his intervention regarding police response to the raising of Palestinian flags.
Authorizing the Minister of National Security to determine "general investigation policy" or "general principles" regarding prosecutions by the police prosecutors. The petition argues that decisions regarding investigations and prosecution, including "general policy,” must remain apolitical. "Political figures are in a state of perpetual institutional conflicts of interest regarding such decisions," the petition states, and politicians therefore cannot be entrusted with setting investigation policies that could affect sensitive issues, such as the fight against public corruption.
Allowing the Police Commissioner to determine whether or not to publish a police ordinance. The petition argues that this allows for the creation of "secret legislation," and is contrary to the provisions of the Freedom of Information Law.
On March 5, 2023, we filed a request for an interim order, asking the Supreme Court to direct the Minister of National Security to refrain from setting policy and instructing law enforcement regarding the right to protest until the petition is ruled on in court. This request was filed following the Minister's intervention in the operational conduct of the police toward protesters against the judicial overhaul. The request argues that decisions regarding freedom of protest, the right to demonstrate, and freedom of expression must be made without political influences in order to prevent the use of police powers for political purposes.
The Supreme Court ordered the state to respond to the interim order request by March 13, 2023, but that day the Minister submitted a notice to the Court stating that he does not trust the Attorney General to faithfully represent him and requested to represent himself. This followed the Attorney General's order to freeze the Minister's decision to remove Chief Superintendent Ami Eshed from his position until the issue could be legally clarified. The Court rejected the Minister's request to represent himself and determined that he must first approach the Attorney General "as is customary" (the use of other representation is allowed only in extremely rare cases, and only with the Attorney General's approval).
Two days later, the State submitted its response to the interim order request. The State opposed the request, and argued that even under Amendment 37 the Minister of National Security still has no authority to give operational instructions to the police, directly or indirectly, or to counteract the police commanders' professional judgment. The response also noted that the Minister's conduct in recent weeks was illegal, as it crossed the line between policymaking and giving operational instructions to professionals during specific events.
On March 19, 2023, the Supreme Court published its decision and made clear that "the Minister must refrain from giving operational instructions to the police, whether directly or indirectly, and this is especially true regarding protests and demonstrations against the government."
A hearing on the petition was held on June 7, 2023, and on June 18, 2023, the Supreme Court issued an order directing the State to explain why the amendment should not be repealed.
On November 27, 2023, we filed another request for an interim order, demanding that Minister Ben Gvir be ordered to refrain from giving instructions to law enforcement regarding the right to demonstrate and freedom of protest. This request was filed after the Minister continued to violate the orders of the Attorney General and the Supreme Court, and announced that he had instructed the police to prevent anti-war demonstrations. In the request, ACRI quoted Ben Gvir, when he referred to a demonstration calling for the return of the hostages and a ceasefire as support for "Nazis," and stated that according to his instructions, "the Israel Police has so far prevented solidarity demonstrations with the Hamas Nazis," but the State Attorney's Office "forced the Israel Police to agree to this demonstration."
The Attorney General's response on January 1, 2024 stated that Minister Ben Gvir exceeded his authority, and that his intervention in police work constitutes improper interference and attempts to influence.
On January 10, 2024, the Supreme Court issued an interim order prohibiting the Minister from interfering in demonstrations. The Court determined that the Minister exceeded his authority and ordered him to refrain from giving operational instructions to the police regarding the right to demonstrate.
On March 29, 2024, response briefs were submitted by the Knesset and the State (Attorney General and Police). The Knesset argued that the amendment to the Police Ordinance reflected the position of public committees, and that it did not change the checks and balances that previously existed in the law. The Attorney General fully adopted our position that the Minister's involvement in investigations should be abolished, and that this is an area where the police should have absolute independence, without any political influence. Consequently, she agreed with our position that the section dealing with this issue should be overturned.
Regarding the Minister's involvement in other areas of police work, especially in issues related to freedom of protest, the Attorney General partially adopted our position. In her view, the law should be interpreted in a way that makes clear that the Minister cannot interfere with police decisions under the guise of policymaking, and that any policies must be principled and established after extensive staff work and consultation with professionals.
On September 8, 2024, we requested that the Attorney General open an investigation against Minister Ben Gvir, on the grounds of violating of the Supreme Court's interim order that prohibited him from interfering in police policies regarding freedom of demonstration. This followed reports that the Minister's security secretary instructed police officers to contain the riots at the Beit Lid base in late July and avoid the use of force.
The Court issued its ruling on the petition on January 2, 2025. The Court accepted ACRI’s position, and the majority that the section regarding the Minister's authority to set policy and priorities in investigations should be repealed, as it disproportionately violates the constitutional rights of suspects and would lead to the politicization of investigations. The Court also ruled not to repeal the general section granting the Minister of National Security the authority to set policy, but did state that policymaking does not permit intervention in operational policing decisions, and that administrative law obligations apply that require the Minister to set general policy after extensive staff work that includes consultations with various bodies—including the Attorney General. A minority opinion led by Acting President Fogelman held that in cases of policymaking regarding freedom of protest, the Minister would be obligated to give most weight to the Attorney General's position, due to the particular importance of freedom of protest and demonstration.
HCJ 532/23 The Association for Civil Rights in Israel v. The Knesset (Heb)
Attorneys: Jonathan Berman, Gil Gan-Mor