Deciding Matters of Police Policy: Labor Party vs. “Ben-Gvir Law”

By: HaRav Menashe Sasson
מאת: הרב מנשה ששון

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​Member of the Knesset (MK) and National Security Minister Itamar Ben-Gvir recently sponsored legislation that would amend a law which dates back to the 1926, pre-state of Israel, British Mandate era and which vests in the national Police Commissioner the legal right to formulate and implement the State of Israel’s law enforcement policy.
 
The amendment proposed by MK Ben-Gvir, would, if ultimately passed into law, transfer the authority to make law enforcement policy from the unelected national Police Commissioner to the elected National Security Minister.
 
The Labor Party has mounted political opposition in the Knesset to the proposed police reform law.  Apparently not wanting to rely on political opposition alone, the Labor Party has also filed a petition with the Israel Supreme Court which seeks a ruling on the “constitutionality” of the law.
 
Of course, no law in the State of Israel can properly be considered “constitutional” or “unconstitutional,” because, notwithstanding a requirement in the State’s founding documents, the State of Israel has never adopted a constitution.  This, however, is a subject for another day.
 
In challenging the “Ben-Gvir Law,” the Labor Party has argued that the law “could lead the State of Israel towards (sic) becoming a ‘police state,’ in which the police becomes (sic) an armed force at the service of political parties, contrary to its intended role of fair and impartial law enforcement.”
 
This argument ignores the fact that police commissioners, just like elected politicians, possess political opinions and preferences.  The only material difference is that politicians are, at least in theory, accountable to the electorate, while non-elected police commissioners clearly are not constrained by any such accountability.
 
The Labor Party, without reference to any particular parliamentary rule, has also argued that proper procedures were not followed in passing the law.
 
The role of the judiciary is, of course, to apply the law to the facts of a case which involves proper litigants who claim and deny, respectively, that they have suffered a cognizable legal harm.
 
Here, we have a political party asking the Judiciary to invalidate proposed legislation, on the grounds that: (1) the Knesset is not following proper parliamentary procedures with respect to its consideration of proposed legislation and (2) the proposed law is “unconstitutional,” which, for our purposes should be interpreted as “invalid” as the result of its alleged conflict, or other incompatibility, with some unspecified, pre-existing and valid law.

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Standing to Challenge Proposed Legislation

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​As an initial matter, unless and until proposed legislation is actually passed into law, any litigation challenging the validity of a proposed law is premature.  In legal jargon, a plaintiff lacks standing to bring or maintain such a case because the legal issue is not yet “ripe;” that is, there is not yet (and may never be if the legislation is ultimately not passed into law, or is passed into law in a form different from that which is currently being considered) any legal issue for a court to decide.

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The Alleged Failure of the Knesset to Follow Its Procedure

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The Knesset, as the legislative body of the State of Israel, enjoys equal stature with, and, thus, not subject to the jurisdiction of, the Judiciary.
 
Elected officials are often thought of as enjoying special privileges and perks that are not enjoyed by the electorate at-large.  However, in the context of legislators suing their Legislature for the latter’s alleged failure to follow its own rules, the former are, and necessarily must be, at a distinct disadvantage as compared with, for example, minority stockholders who want to sue the corporation of which they are a part owner.
 
Courts exist to rule on legal disputes such as those involving minority stockholders and the corporations which they partially own.  Courts not only have a duty to decide the merits of such cases, they have an obligation to do so.
 
The Knesset and its political minority members, however, are not analogous to a corporation that is sued by a minority of its stockholders.  Because the Knesset is of equal stature with the Judiciary, it follows that the Knesset may not be held by the Judiciary to answer claims that the Knesset violated Knesset procedures or rules when conducting its legislative business.  Unlike the claims of minority stockholders, similar claims by minority legislators constitute non-justiciable political questions, not legal questions which are within the competence of courts to decide.

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The Alleged Invalidity of the “Ben-Gvir Law

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​The Labor Party also claims that the “Ben-Gvir Law” is invalid because it allegedly conflicts or is otherwise incompatible with some unspecified pre-existing and valid law.
 
As mentioned above, the role of the judiciary is to apply the law to the facts of a case which involves proper litigants who claim and deny, respectively, that they have suffered a cognizable legal harm.
 
Whether a litigant has suffered a cognizable legal harm, in turn, depends upon whether the plaintiff has suffered a particularized and concrete injury, that is, an injury that is specific to the plaintiff, as opposed to a harm that is generally shared by all, or by a significant portion of, the members of society at large.
 
Here, any injury sustained by the Labor Party, or by any of its members, and which was caused by the alleged invalidity of the Ben-Gvir Law, consists of no more than the generalized and non-specific injury which was sustained by all or most members of society as a result of the alleged invalidity of the law.
 
Arguably, the Police Commissioner may suffer a particularized and concrete injury if the “Ben-Gvir Law” actually becomes law, in that certain of the Police Commissioner’s policymaking powers will have been diminished by the transfer of those powers from the Commissioner to the National Security Minister.
 
Thus, although the Police Commissioner might have standing to challenge the validity of the “Ben-Gvir Law,” if and when the Ben-Gvir Law actually becomes law, the Labor Party and its members clearly lack standing, either now or in the future, to do so.
 
In summary, as a matter of law, a plaintiff, including the Labor Party, lacks standing to challenge proposed legislation, as such legislation may never become law.  Additionally, because any alleged failure of the Knesset to follow its rules or procedures when considering whether to enact laws constitutes a non-justiciable political question and because legislators lack standing to challenge the general validity of proposed (or enacted) legislation, the Israel Supreme Court should dismiss the Labor Party’s lawsuit.

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