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June 19, 2024 - 4:00pm
While the collapse of Prime Minister Benjamin Netanyahu’s war cabinet has garnered the attention of the international media, within Israel focus has turned to a pending Supreme Court decision on how the country’s police force is run. If approved, this proposed amendment to the Police Ordinance law would give the Minister of National Security — currently Itamar Ben-Gvir of the far-Right Jewish Strength party — direct control over the police, making him the operational commander, instead of a political overseer. This would mean that Ben-Gvir could legally block investigations into settler violence and order the arrest and harassment of anti-government protesters.
The original amendment to the Police Ordinance law was passed by the Knesset in December, but legal challenges — including by the Attorney General, Gali Baharav-Miara — have prevented its implementation until now. Baharav-Miara warned that changes to the oversight of investigations in particular would cause “serious damage to the independence of the law enforcement system” and “should give any Israeli sleepless nights”.
When he was originally appointed as Minister of National Security in December 2022, the Supreme Court issued an injunction preventing Ben-Gvir from interfering with the work of the police. However, Israel’s most senior police officer, Chief Superintendent Kobi Shabtai, reports that he has already violated this decision by ordering his deputy to prevent the police from protecting trucks transporting aid to Gaza.
When Shabtai contacted Ben-Gvir to make it clear that this was a police matter in which he should not interfere, Ben-Gvir warned him that “there would be consequences” for his insubordination. Yesterday, Shabtai travelled to Jerusalem to try and give evidence ahead of the Supreme Court decision on the proposed change, but was not allowed to speak to the court as the judges ruled that his evidence was not pertinent to the case. Israel’s Channel 12 News interviewed Shabtai outside the court, where he said that he was acting “out of deep fear for the future of the Israeli police as a professional, apolitical force”.
Ben-Gvir has long made plain his intentions to politicise the police, calling for any anti-government protester who blocks roads to be arrested and interrogated as a possible terrorist sympathiser. If the Court approves the new law, then he would have free rein to use the police to attack and harass critics of the government and, given Ben-Gvir’s feelings on such matters, he could legally prevent investigations into violence by settlers.
These developments highlight the significant changes taking place within Israel while the world focuses on the ongoing military campaign. Fighting a war can change the structure of governments in unexpected ways. It is accepted that Netanyahu collapsed the war cabinet rather than admit Ben-Gvir, and Bibi has won some grudging plaudits for keeping him and fellow Religious Zionist Bezalel Smotrich at a safe distance from prosecution of the war. But this has occluded the increased influence of Ben-Gvir and Smotrich in other areas, which may have longer-term and more serious implications for Israel.
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SubscribeThe Israeli Supreme Court is fundamentally anti-democratic. A healthy democracy has a series of checks and balances. The authority of the legislature is checked by the Supreme Court, but composition of the Supreme Court must be determined by elected representatives – otherwise you have unaccountable judges ruling on legislative matters. This is not the case in Israel, where Supreme Court judges are appointed by a panel, largely comprised of other judges.
I do not support Israel’s actions in the West Bank, but it is not the role of the Supreme Court to determine Israeli policy in the West Bank. It’s a political issue that must be addressed by elected officials. The author is willfully blind if he doesn’t think independently appointed police chiefs, or commissions, are not politicized. They are politicized everywhere in the west. This is clearly the case, when you compare the police response to Covid protestors and pro Palestinian protestors.
This is clearly the case, when you compare the police response to Covid protestors and pro Palestinian protestors.
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Add here European Court of Justice decision on Hungary and European Court of Human Rights decision on Switzerland.
The Israeli Supreme Court is in fact the linchpin of Israel’s check and balances. Since in the Israeli system the executive is appointed by a majority of the legislative – the Knesset -, the supreme court is the only institution that is able to restrain the government. Without it the government would be all-powerful. This is exactly why since this extreme-right government came to power it tried to curtail the power of the supreme court. This is what would endanger the Israeli democracy more than anything else.
Regarding the mechanism of nominating supreme court judges: Currently the Judges Appointment Committee includes 3 supreme court judges, two ministers (incl. the justice minister), two MKs (one from the coalition, one from the opposition) and two representatives of the bar, 9 in total (https://www.gov.il/he/Departments/Guides/judges_nomination_committee?chapterIndex=2). Crucially, appointments of supreme court judges requires 7 votes. This system, the brainchild of former Likud minister of Justice Guideon Saar, has been in place since 2008 (http://fs.knesset.gov.il/17/law/17_ls1_566565.pdf). Thus, on the one hand no single constituency can appoint a judge on its own, but both the 3 judges and the 3 coalition members (2 ministers and 1 MK) have veto power to prevent appointments. The former makes sense because a judge is, among others, a professional appointment – and the profession should be able to block unqualified candidates. The latter makes sense because they were voted in power. This system ensures that supreme court judges are either consensual or, based on give and take, alternatively include more ideological and more liberal candidates. The makeup of the court since the last decade reflects this and is more diverse. I think it is fair to say that a large majority of stakeholders think that the current appointment system is well balanced and should not be altered in any way.
To answer another common question: Israel does not have a constitution, therefore the Supreme Court has used the Declaration of Independence, which includes a sort of Bill of Rights (equal rights for all citizens without distinction etc.) as the de facto constitution.
You can dress it up any way you like, but not one single judge or other unelected official should be appointing Supreme Court judges. It’s democracy 101. The court serves as a check on the elected legislature so it’s crucial they be appointed by surrogates who are elected. Judges can be elected, or they can be appointed by the legislature. If Israel has some issues with govt overreach, that is a completely different issue. You don’t solve that overreach by allowing judges – who are not accountable to voters – to have any role whatsoever in appointing judges.
If you want a check on the majority, you cannot have the majority select the people who do the checking. That is logic 101. Arguably, most democratic systems will work as long as the major players share a commitment to the system, and do not do things that will stop it from working, or that they would not want their opponents to do to them. It is when that breaks down that you need some checking mechanism capable of keeping a (democratically elected) majority from doing all it wants. No democratic system can endure if the Minister of Justice feels free to allow his supporters to break the law with impunity.
Solution is obvious – Supreme Court of the United States, nine judges with lifetime tenure.
Please, don’t try to deny it, don’t make yourself fool
Not a particularly good solution IMHO. Who selects those judges? The Israeli system at least tries to force selection of candidates that all parties can accept to live with, and give them a mandate to protect the system as such. In the US – now at least – you just get two partisan sides fighting to put in their own placemen so that they can take political decisions unchallenged. Ultimately the supremes have become just another political body that has no authority over anybody who does not like their decisions.
As Jim Veenbas puts it below: “You have simply created a powerful ruling body that has zero accountability.” and that is beholden to the political majority that appointed them.
There are numerous ways to protect minority rights within the framework of democracy. The US does a good job with an effective Senate, the electoral college and states rights. Also, every major democracy I know has minority rights enshrined in law. It’s what democracies do. If Israel is an exception to this, that’s an entirely different conversation. Supreme Court judges are typically appointed to long term, often lifetime terms, and this is what protects them from the whims of elected leaders. This is what makes it an effective check on legislatures. You don’t solve the tyranny of the majority by appointing judges with unaccountable surrogates. You have simply created a powerful ruling body that has zero accountability. I’m honestly baffled that this is even a conversation.
What I tried to explain – badly perhaps – is that in Israel the majority of the elected legislature appoints the government. If the majority of the elected legislature would also appoint the judges, then the majority becomes all-powerful, and there are no checks on it – the exact opposite of democracy 101. This is what Netanyahu’s judicial reform essentially attempted to achieve, and that’s why opposition was so intense.
‘Hard-right’ replaces ‘far-right’, I see ….. the author is becoming conscious of the danger of overusing terminology! 😉
To he who is on the ‘far-left’, the average centrist appears ‘far-right’.
With the rise of right wing politics its funny to see this new “hard right” terminology pop up everywhere. The rules for it seems to be:
Right wing party that isnt in power = far right
Right wing party that is in power or on the verge of being in power = hard right
The three branches of government in the US of A each have control over another branch while being controlled by the third branch. It forms an interlocking system of checks and balances that has proven remarkably stable over time. Israel has two branches of government, and the controlled chaos in it is easy to see. Note that Israel’s flag has 2 bars (even number), while American’s flag has 13 bars (odd number). Coincidence?