The language of this section is simple, clear and unequivocal, and it clearly emerges from it: the Isn't imposes on the government any special procedural restrictions in terms of the appointment process, and certainly does not obligate it to appoint the civil service commissioner through a search committee or other competitive process. On the contrary. The legislature chose to determine in the clause "Rachel your little daughter" and in an unequivocal manner, that when the government comes to exercise its authority by virtue of it, it is exempt from the conduct of that competitive proceeding that is at the heart of the legislation of the law - the tender proceeding.
- In my opinion, the provision of section 6 of the Law poses a very significant obstacle to respondents who wish to oblige the government to appoint the Civil Service Commissioner in a competitive proceeding. Where the legislature expressed its opinion in such a clear, simple and decisive manner that the government is not obligated to conduct a tender process - the flagship of the competitive proceedings for appointment purposes - it is very difficult to establish a claim that obligates the government to institute another competitive process.
- The respondents argue, as stated, that in this language the legislature did not intend to exempt the government from holding a competitive proceeding as a rule, but only from a tender proceeding. I don't think so. Admittedly, the legislature's approach to the appointment process is very concise and does not determine how it should be carried out, but rather indicates what the government is not obligated to do within the framework of it. However, the choice to use this language actually indicates the legislature's mindset with regard to the breadth of discretion it sought to confer on the government in determining the appointment process. It is difficult to dispute that the central component of section 6 of the law is its predecessor - entrusting the authority to appoint the commissioner to the government. The end of that section, which relates to an exemption from a tender, is not intended to detract from this authority, to limit it or to impose restrictions on it. On the contrary. It comes to emphasize it and make it clear to the government that when it comes to exercising its authority, it is not subject to any procedural restrictions, including the central limitation, which constitutes the "crowning glory of the law" (High Court of Justice 154/98 The New General Workers' Union v. State of Israel, IsrSC 52(5) 111, 123 (1998) (hereinafter: the Einstein case)) - the tender obligation under section 19 to the law. The reference to an exemption from a tender is therefore nothing more than an expression of the fact that the legislature sought to grant the government maximum flexibility and very broad discretion regarding the manner in which it will decide to exercise its authority, subject to, of course, the rules of administrative law.
- In my opinion, this position is also supported by the provision of section 19 of the Law, to which section 6 referres, as stated . The language of section 19, which enshrines the tender duty that is at the heart of the law, is essentially summarized in the words "A person shall not be appointed as a civil servant until after the service commissioner has publicly announced the position [...]". From this wording it emerges that the emphasis on the existence of the tender obligation lies in the element of publicity in it. This element, which embodies the desire to give the opportunity to apply for the position to anyone who wishes to do so, serves as a common denominator for most of the competitive proceedings and even stands at the basis of the respondents' position. The fact that the legislature exempted the government from the tender obligation, while referring to the provision of this section, therefore indicates its unequivocal and unambiguous view that the government is not obligated to make use of any public-competitive mechanism in the process of appointing the commissioner.
- As stated, the respondents raised before us various hypotheses regarding the purpose underlying the exemption from a tender in section 6 of the Law. Among other things, it was argued that the exemption stems from the fact that the Commissioner heads the tenders system, and therefore a tender under the Appointments Law is not suitable for filling this position; that its origin is that in accordance with Section 19 of the Law, the tender was made by means of a public announcement by the Commissioner himself of the position; and that the exemption stems from the rigidity of the tender procedure, which is not suitable for filling this position. I have examined the legislative history of the section, both in the Knesset plenum and in the discussions of the Labor Committee, and I have not found any real support for these hypotheses. If anything can be learned from the meager legislative history regarding section 6 of the law, it would be the legislature's desire to leave the government wide margin of discretion in appointing the commissioner in all its aspects and flexibility in the process, in order to ensure cooperation between the government and him as it implements its policy (and see in this context the wording of the section as it was when the Appointments Law was brought to its first reading in the Knesset in 1958 (the Civil Service (Appointments) Bill, 5719-1958, H.H. 365), in which only the government's appointing power was included, without reference to an exemption from a tender; the remarks of a representative of the Ministry of Justice on the sidelines of the discussions in the Labor Committee, following which the exemption from a tender was added for the purposes of "clarification" (Minutes of the 18th Session of the Labor Committee, 3rd Knesset, 9 (March 11, 1959)); and the remarks of the Prime Minister at the time, David Ben-Gurion, in the Knesset plenum, in which the amended bill of the Appointments Law was placed for first reading, in which the purpose underlying the entrustment of the power of appointment to the government was discussed (D.C. December 22, 1958, 630). See also: David Deri, Political Appointments in Israel 37-40 (1993); Assaf Shapira, Proposal to Amend the Method of Appointment of the Civil Service Commissioner, 9-10 (Proposal for Order 19, Israel Democracy Institute, 2018) (hereinafter: Shapira); Eran Assis, "The Issue of Political Appointments: Dealing with Legislation and Rulings," Shorashim Ba-Mishpat 141, 142 (2020)).
- An argument that has been heard before us in this context over and over again is that the fact that other positions for which a statutory exemption from a tender has been granted and it has been determined that the mechanism of an appointments committee will be used, are in fact appointed through search committees (such as the Director of the Israel Land Authority and the Director of the Government Companies Authority) - shows that Section 6 does not exempt the position from any competitive process. However, there is nothing between this argument and the interpretation of the section. In any event, the above interpretation does not exclude the government, where it believes that it should do so, the possibility of taking a competitive proceeding voluntarily in accordance with its discretion. In the past, the use made of a competitive procedure with respect to those positions indicated by the respondents was indeed made by virtue of a decision by the appointing body or its representative to make the appointment in this manner. A similar decision regarding the position of Commissioner was not made (and this will be expanded on below). Needless to say, the very fact that the search committees in those cases were established while adopting the position of the legal counsel to the government also does not affect the interpretation of the section, even without requiring the fact that in our case there was a later and different legal advice position (and this will also be discussed later).
- Another argument that was heard before us was that section 6 of the law is silent regarding the identity of the entity that will offer the government a candidate for civil service commissioner, in contrast to similar provisions of the law that specify the entity offering the position, whereas if the legislature had viewed the position of commissioner as a personal appointment of the prime minister, it would have explicitly instructed it. However, even this argument cannot be accepted. Beyond the fact that it is inconsistent with the legislature's intention to allow flexibility in the appointment, as detailed above, the conclusion that it is preferable for the proposing party to be completely external to the appointing entity according to the law, is very difficult.
- In any event, as stated, even if I assume that a general statement should not be attributed to the legislature regarding an exemption from the obligation to conduct a competitive proceeding, or an intention to leave the government with a wide margin of discretion in appointing the Commissioner in all its aspects, there is no provision in section 6 of the Law that obligates the government to take a competitive procedure in the appointment of the Civil Service Commissioner, and this is the starting point for our discussion.
- Indeed, authority is separate and discretion is separate, and the mere fact that the law does not impose a duty does not mean that such a duty cannot arise from other sources. However, given that our discussion deals with the obligation of the government to conduct a competitive process in the appointment, the fact that there is a provision in the law that exempts the government from the obligation to maintain the main competitive procedure that exists in the law, must be in our minds.
- I will therefore turn to examine whether there is a legal reason to intervene in Resolution 2344. However, before I get to the substance of the matter, I would like to make a preliminary note to our discussion.
Preliminary note - about the position of civil service commissioner; on judicial review; On the Desirable and the Found
- The importance of the position of civil service commissioner will not be disputed. The civil service in Israel is the long hand of the executive branch in the realization of its legal powers, policies and objectives. "Without public service, there can be no proper social life in a modern state, and the government will not be able to manage the affairs of the state. The life of the individual and the public in Israel depends on the public service, its level and the way it functions" (HCJ 5657/09 The Movement for Quality Government in Israel v. Government of Israel, para. 13 [Nevo] (November 24, 2009) (hereinafter: the Jerbi case); see also paragraph 41 of the opinion of my colleague the President in the judgment that is the subject of further discussion). The civil service includes tens of thousands of employees employed by various government agencies, all of which are the Civil Service Commission. The Ombudsman is the body with the highest authority in the field of personnel in the civil service, and is responsible for planning and managing the human capital and organizational system in the civil service. Its main functions are the management of the standards of government bodies, the appointment and absorption of employees, the determination of promotion tracks, the training of employees and the care of their welfare, and the determination of the regulations (for an overview, see: State Comptroller Annual Report 70B - Civil Service Commission 547-548 (2020) (hereinafter: the Comptroller's Report)).
- The Commission is headed by the Civil Service Commissioner, who holds a very broad scope of powers. Among other things, the Commissioner is authorized to approve standards that constitute a basic condition for the appointment of employees in the civil service (sections 14-15 of the Appointments Law); to sign letters of appointment (section 17 of the law); to approve the temporary employment of employees or employment before the candidate's medical capacity has been determined (sections 37 and 38 of the law); to prevent appointments (section 46 of the law); and order dismissal (section 46A of the law). The Commissioner is also authorized to approve the division of roles and powers between the administrative units and within them; to determine promotions; to offer the ministries and the government effective work practices; to organize and maintain training and learning institutions for employees; encourage the establishment of social services; and to introduce administrative regulations for government institutions (Government Decision 154 of 18 Tevet 5711 (December 27, 1950); Shapira, at p. 9). The Commissioner also has extensive powers in all matters relating to the management of tenders for the recruitment of employees, including he is entitled to set threshold requirements, screening tools, pre-selection procedures and more (Civil Service Rules (Appointments) (Tenders, Examinations and Examinations), 5721-1961). In addition, the Commissioner serves as a consultancy in various contexts, such as consultation on the absorption of an employee for a temporary position and the extension of its period (section 23A of the Law); It also serves as the government's long arm in promoting adequate representation among employees in the civil service (section 15A of the law). In addition, the Commissioner serves as Chairman of the Civil Service Committee (Section 7 of the Law), which has a significant role in determining positions to which a tender obligation will not apply in accordance with the government's authority in Section 21 of the Law. and, as detailed above, the Commissioner is a member of the search committees, the Advisory Committee and serves as the Chairman of the Commission's Appointments Committee.
- Another and most significant aspect of the role of the commissioner lies in the fundamental characteristics of the civil service in Israel - professionalism, stateliness, independence and apolitical (Einstein, at p. 118; the Jerbi case, paragraphs 13-17; Neta Nadiv, Civil Service Employee Tenders 126-129 (2019); and see also the remarks of then-Prime Minister David Ben-Gurion in the Knesset plenum in which the Appointments Bill was placed for first reading: June 1, 1953, 1424). These characteristics have already accompanied the civil service, and they are what were at the foundation of the Appointments Law, the main purpose of which is to ensure that the recruitment of employees to the civil service is not done out of bias or political considerations, but on the basis of professional qualifications and suitability for the position (Jerbi, paragraphs 14-15; Einstein, at pp. 122-123). Since the Commissioner is the body that heads the Civil Service Commission, and taking into account the extensive powers entrusted to him, it is clear that he has a significant role to play in maintaining these fundamental characteristics and in ensuring that the public service will not be subjected to considerations that are not of the nature of the matter.
- It is therefore difficult to overstate the importance of the role of the Commissioner. There is no doubt about that. At the same time, and this is where my position lies in the case before us - in order to justify the intervention of this Court in the decision made by the government regarding the process of appointing the Commissioner, it is not enough to cry out the importance and independence of the position or the "object of control" of the subject therein; Nor are it enough to explain why it is appropriate and preferable for the process of appointing him to be conducted in one way or another whenever the law does not require it.
- As is well known, the principle of separation of powers is one of the basic and fundamental principles of our legal system. Ink has already been poured out about the necessity of securing a democratic regime, and I will not elaborate. I will suffice to quote the words of Vice-President Cheshin , who did not flee to fight:
"The core of the principle of separation of powers will therefore be found for us - mainly - in the decentralization of powers between different authorities; with the promise that it would not be a single entity that would concentrate too many powers in its hands - a concentration that would turn that factor into an autocratic ruler; and in fulfillment of the principle that the authorities that will strengthen the powers will be separate from one another. Thus we will know that the three authorities that hold separate powers are forbidden to enter each other's kingdoms; Or perhaps we should be precise: they are forbidden to enter each other's palaces; Each authority shall act and do but only within the limits of the powers granted to it by law (and the Constitution) and is prohibited from plowing in the fields allocated to its sisters: the legislative authority shall not execute or judge; The executive branch will not legislate or judge; The judiciary will not legislate and will not execute" (HCJ 11163/03 Supreme Follow-up Committee for Arab Affairs in Israel v. Prime Minister of Israel, IsrSC 66(1) 1, 56 (2006)).