In addition to the aforesaid, respondent 4 argued that the determination that the decision to appoint the Commissioner in a personal and non-competitive appointment proceeding was subject to extraneous considerations and unreasonableness, was correct and necessary. The characteristics of the position of Civil Service Commissioner require appointment in a competitive process, and thus are supported by a variety of normative sources, including Resolution 4470; The Standards Document; Resolution 3793; and the comprehensive opinions that the legal advisory bodies submitted to the government in 2024, which were formulated following Resolution 3793. In the face of all this, the process enshrined in Resolution 2344 leaves the political echelon with an almost complete degree of influence over the appointment process, and does not provide an adequate guarantee to prevent the politicization of the civil service gatekeeper. It was emphasized that the vast majority of senior positions that are exempt from the obligation of a tender are appointed through a competitive process through a search committee, and only a minority of them are made by personal appointment, when it comes to positions that are not similar to the position of the Commissioner. To this, it should be added that in recent decades there have been far-reaching changes in circumstances in the civil service, changes that have led to a clear trend of politicization that undermines the purpose of the Appointments Law, which emphasizes even more strongly the importance of the independence and independence of the commissioner who will be elected. Finally, it was emphasized that since the judgment was given in the case of the High Court of Justice 2699/11 [Nevo] The factual basis has changed fundamentally.
The Attorney General's Arguments
- The Attorney General was also of the opinion that there was no reason to change the ruling. An exemption from a tender does not mean absolute discretion in determining the appointment process. Section 6 of the Appointments Law does not prescribe a positive provision regarding the appointment process or the qualifications conditions, but this does not free the government from any restrictions. Even in cases of other appointments in which the legislature exempted from a tender and did not set eligibility conditions, it was ruled that the authority is not free to appoint anyone it wishes, but must check suitability for the position and avoid political considerations in the appointment. The legislature did indeed establish in section 6 of the law an exemption from a tender, but it did not take a position regarding the method of appointment that would be taken in its place. A tender is only one specific and defined type of competitive procedure, and therefore the exemption from a tender is not exempt from competition at any level and format. To this, it should be added that the government recognized the need to conduct a professional selection process even when filling positions exempt from tenders, and established a competitive process that is more flexible than the format prescribed by law, in the form of a search committee. Weight should be given to this in examining the exercise of discretion in determining the appointment process in question, especially when the exemption from a tender is based on the fact that the tender procedure prescribed in the law is not at all suitable for the position of the Commissioner, and that in view of the complexity of the position and the variety of skills required, there is a need for a less rigid competition framework.
- The Attorney General further argued that the determination that the appointment of the Commissioner requires a competitive proceeding is based on the law. As determined by the majority opinion, the relevant considerations for the appointment of the commissioner are concerned with ensuring the candidate's professionalism and suitability for the position, and his independence and independence from the political echelon. These considerations cannot be fulfilled through an appointments committee, but only in a competitive appointment process. In this context, the Attorney General referred to the purpose of the Law and noted that in the absence of reference in the legislative history to the concrete purpose of section 6 of the Law, its general purpose of ensuring appointments in accordance with qualifications and not for political motives, is correct and even more valid with regard to the appointment of the Commissioner. It was emphasized that the position of Commissioner is not a position of trust; that the state of the public service is worrisome; and that there are a series of government decisions and the positions of administrative bodies - Resolutions 345, 4062 and 4470, and the criteria document - from which it appears that the commissioner should be appointed in a competitive process. A competitive proceeding does not necessarily have to be a search committee or necessarily a panel presented in the opinion of the legal advisors. The government can design the details of the procedure, provided that this is done within the framework of a professional procedure that will ensure that the committee will be able to fulfill its mission and that its independence will be preserved.
- The Attorney General also addressed the Applicants' argument that the mechanism set by the government would allow it to choose a candidate who holds its view for the purpose of implementing its policy. This argument was rightly rejected by the majority justices, who ruled that reliance on political-ideological reasons as a decisive and exclusive basis for the appointment is inconsistent with the principles of administrative law and with the purpose of the position of the Commissioner. This determination does not prevent the government from considering an ideological-professional relationship between the appointer and the appointee for the purpose of achieving its objectives, but it also does not lead to the conclusion that there is no reason to fill the position in a competitive process. To this, it should be added that the argument regarding a particular policy concept was raised in general terms and without any detail, and it was not even presented that previous commissioners were appointed on the basis of their economic outlook or doctrine regarding human appointment. In any case, such a policy can be addressed in a competitive process that includes an appropriate criterion, as is done in other senior positions in the civil service.
- The Attorney General further reiterated the flaws that she claimed occurred in the process of making Resolution 2344. The decision was made without dealing with the heart of the analysis presented to the government in the opinions of the legal advisory bodies, despite the fact that legal difficulties were presented and without these difficulties being discussed and understood. Nor was an examination of the existing alternatives, and no sufficient reasoning was given for determining the method of appointment that deviated from the purposes of the appointment, the characteristics of the position, the criteria set out in the various principled government decisions, and the legal opinions that interpreted all of these.
- The Advisor also referred to the manner in which the previous Commissioners were appointed and to the High Court of Justice 2699/11 [Nevo]. Only four commissioners were appointed in a similar format to the Appointments Committee. Two of them were appointed prior to Resolution 345, and with regard to another one - the appointment of the subject of the High Court of Justice 2699/11 [Nevo] - a quasi-competitive process was preceded that included a search team. As for the High Court of Justice 2699/11, it was rightly held by the majority opinion that in the years that have passed since the judgment, there have been developments that justify the issuance of an updated ruling. In this regard, the Advisor voted on Resolution 3793; on the State Comptroller's report, following which the criteria document was formulated; and the criteria for appointing a position set in 2018 by the Efrati Committee. In addition, it was noted that the High Court of Justice 2699/11 [Nevo] relied on the fact that in Resolution 345 it was determined that the position of the Commissioner would be examined by an appointments committee, but it was later clarified that the decision only "photographed" the existing situation and did not determine this based on the nature of the position; and that additional positions that were specified in Decision 345 as part of the same group of positions were diverted in subsequent years from the Appointments Committee to a competitive track. Therefore, no significant weight was rightly given to this matter. In addition, it was noted that an up-to-date examination of the method of appointment is required even against the background of the challenges facing the Civil Service Commission, in light of the developments in the years following the ruling.
- Finally, it was argued that there was no flaw in the majority opinion regarding the permanent procedure. Resolution 2344 is the fifth time that the government has determined that the commissioner will be selected by an ad hoc committee established close to the appointment, and there is significant difficulty in such a mechanism for such a senior position. The selection of the committee members close to the appointment also raises a difficulty regarding the independence of the committee, when the legal counsel learned the day after the judgment was handed down that the prime minister had sought to end the term of six public representatives on the committee. The aforementioned difficulty intensifies in light of Resolution 3793, in which the government itself determined that it would be required to propose a procedure to be submitted by the legal counsel. Indeed, it would have been better if the entire procedure for determining the procedure had taken place earlier, but even at the time when its promotion began - two and a half months before the end of the commissioner's term - there was sufficient time to hold an exhaustive discussion and dialogue to formulate an appropriate method of appointment and an acceptable composition of the committee. In any event, once the process of arranging a permanent procedure has begun, it is preferable to complete it while providing a temporary solution in the form of filling a place, rather than determining an unsuitable method of appointment for a six-year term in this important position.
Discussion and Decision
- The central question that is at the center of our matter is, as stated, this: whether the appointment of a civil service commissioner by the government by virtue of the authority granted to it in the Appointments Law must be made through a competitive process. The majority opinion in the judgment that is the subject of the additional hearing answered this question in the affirmative. In my opinion, this should be answered, in the opinion of my colleague Vice-President Sohlberg, in the negative.
Section 6 of the Appointments Law
- In order to understand the limits of the government's authority in appointing the Civil Service Commissioner, it is necessary first and foremost to refer to the provisions of the authorizing law. The language of the law, as always, serves as the starting point (High Court of Justice 4790/14 United Torah Judaism - Agudat Yisrael - Degel HaTorah v. Minister of Religious Services, paragraph 24 [Nevo] (October 19, 2014) (hereinafter: the United Torah Judaism case); Appeal of Petition/Administrative Claim 9187/07 Luzon v. Ministry of the Interior, para. 43 [Nevo] (July 24, 2008); High Court of Justice 693/91 Efrat v. Commissioner of the Population Registry at the Ministry of the Interior, IsrSC 44(1) 749, 761-762 (1993); High Court of Justice 953/87 Poraz v. Mayor of Tel Aviv-Jaffa, IsrSC 42(2) 309, 326 (1988)). Therefore, we will turn our attention to the provision of section 6 of the Appointments Law. This instruction has already been quoted as stated above, but in order for the reader's eyes to see it, it will be brought again below:
The government will appoint a civil service commissioner (hereinafter - the service commissioner); His appointment will not be subject to the tender obligation in accordance with Section 19 and a notice of the appointment will be published in the Official Gazette.