The court therefore does not determine the norm. Nor does he examine her logic or her wisdom. Its role is to interpret it and decide disputes relating to its implementation or the authority's compliance with its provisions.
- This also leads to another principle: the court's intervention in the decisions of the administrative authorities is contingent on proving grounds for intervention. It is not enough to raise general arguments regarding the manner in which it is desirable or desirable for the authority to act. The applicant for the court's intervention in the authority's decision must show that there is a legal cause that justifies it. In the absence of grounds pointing to a legal rule that was violated by the authority, there is no room for the court's intervention (Yitzhak Zamir, Administrative Authority, vol. 3, 1763-1765 and 1873 (2014); and see also: Regulation 5 of the High Court of Justice Procedure Regulations, 5744-1984).
- Although these are very basic principles, I have found it necessary to reiterate them in our case. As I will show below, despite the respondents' attempt to frame their arguments under various grounds for intervention, they have not been able to point even narrowly to a legal ground by virtue of which there is room to impose on the government a duty to appoint the civil service commissioner by way of a competitive proceeding, and whose violation justifies judicial intervention. The respondents' position, which was also adopted in the judgment that is the subject of the additional hearing, reflects, at most, the law desirable for their position, but it is far from consistent with the existing law. As desirable and appropriate as it may be, it does not in itself establish grounds for our intervention.
- I will therefore turn to the details of the matter in light of the respondents' arguments.
Contradiction to previous government decisions
- One of the main arguments heard by the respondents, and which was even raised at length by counsel for the Attorney General in the hearing before us, is that Resolution 2344 was passed in contravention of a series of government decisions and the positions of various administrative bodies, from which it follows that a competitive process should be used for the purpose of appointing the Commissioner. I cannot accept this argument.
- Let me begin with the obvious: The government of Israel, like any other administrative authority, is entitled to change, revoke or amend its decisions. Indeed, such a change must be made on the basis of well-founded reasons, in accordance with the rules of administrative law and taking into account, inter alia, considerations relating to the existence of a previous decision (see in this context: Civil Appeal 3604/13 Director of the Tax Authority v. Esinger, paragraphs 16-21 [Nevo] (May 10, 2015); High Court of Justice 3070/17 Anonymous v. Attorney General, paragraphs 17-18 [Nevo] (February 28, 2018); High Court of Justice 4491/13 Academic Center for Law and Business v. Government of Israel, IsrSC 67(1) 177, 289 (2014)). However, the basic assumption that cannot be disputed is that the power to change also exists (for more information, see also: Yoav Dotan, Judicial Review of Administrative Discretion, Vol. 2, 709-740 (2023) (hereinafter: Dotan); Dafna Barak-Erez, Administrative Law, 1, 371-406 (2010) (hereinafter: Barak-Erez); Yitzhak Zamir, Administrative Authority, Vol. 2, 1373-1402 (2011)).
- In any event, as will be explained below, I do not believe at all that those decisions of the Government and the positions of the administrative bodies on which the Respondents pointed out obligate the Government to conduct a competitive proceeding, and in any case I do not believe that Resolution 2344 contradicts them.
- The Respondents' argument in this context is based, as stated, on Resolutions 345, 4062 and 4470 and on the Benchmarks Document. Their argument can be summed up, in the abstract, as follows: Resolution 345 stipulates that positions of a professional nature that require a great degree of independence and independence from the holder must be filled by way of a search committee; Following Resolution 345, a benchmarks document was published detailing the characteristics of positions characterized by a high degree of independence and independence, which correspond to the characteristics of the position of the Commissioner; In Resolutions 4062 and 4470, the position of Commissioner was also classified as an independent position; And from the combination of all the above, it follows that the commissioner should be appointed in a competitive proceeding. Although in Resolution 345 it was noted that the appointment of the commissioner would be made through an appointments committee, it is a matter of "snapping" the existing situation without a characterization of this position, and the same applies to a series of additional positions that were dismissed from a previous tender and were bound together indiscriminately.
- In my opinion, this description alone is sufficient to illustrate that a positive decision made by the government to appoint the commissioner through a competitive process, from which it supposedly should not deviate, does not exist. At most, we are dealing with an inference that is learned by allusion from the thirteen attributes in which the Torah is required, which, as I will show below, is also based on erroneous assumptions.
- First, the Respondents' argument in this context is based on the assumption that in the framework of Resolution 345, the Government sought to distinguish between positions of "trust and coordination" for which an appointment committee should be assisted, and positions of "independence and independence" for which a search committee should be assisted. However, an examination of Decision 345 shows that it actually sought to distinguish between the most senior positions in the civil service, in which the subjects are responsible for the implementation and implementation of government policy, and senior positions in which the implementation of the policy of the minister or the government is not the dominant characteristic (see also the words of this Court in the case of the High Court of Justice 7908/17 The Movement for Moral Integrity v. Government of Israel, paragraph 3 [Nevo] (November 1, 2018); as well as the manner in which the matter was described by the Deputy Advisor in paragraph 16 of his opinion of June 18, 2024).
- And this is not a semantic matter. The respondents are hoping that the appointment of the second group of posts requires a search committee, and taking into account the independent and independent nature of the Civil Service Commissioner, he should be classified under this group. However, reading the decision with an emphasis on the seniority of the position or on the question of whether it involves the implementation of government policy casts doubt on this classification. It is clear that the Civil Service Commissioner heads the service and is responsible for the implementation of the policy of the executive branch, and there is no dispute about this. It is difficult to say that the realization of policy is the dominant characteristic of the position of commissioner. However, at the very least, this raises questions regarding the sharp distinction that the respondents tried to create, on the basis of which they sought to establish a duty on the government to conduct a competitive process.
- Second, even if I accept the respondents' argument regarding the substantive affiliation of the position of Commissioner to the group of positions for which it was determined in Resolution 345 that a search committee should be used, this will not necessarily lead to the conclusion they conclude. The reason for this lies in the simple fact that Resolution 345 determined in "Rachel Your Little Daughter" that all the positions exempt from a tender by virtue of an explicit provision of the law, including the position of the Commissioner, will be filled through an appointments committee.
- The Attorney General is of the opinion, as are my colleague the President in the judgment that is the subject of further discussion, that this determination in the framework of Resolution 345 does not constitute a normative determination regarding the proper appointment procedure, but merely a "snapshot" of the existing situation in relation to the mechanism for appointing the Civil Service Commissioner. Unfortunately, I have not found an anchor for this assertion. The basic assumption is that a government decision has a normative status that requires its branches. The claim that a particular decision or part of it is not normative and therefore the existence of a particular legal norm cannot be inferred from it, requires proof backed by a clear and significant foundation. This has not been proven before us. In fact, the background to Resolution 345 and its content teach otherwise.
- A perusal of Resolution 345 shows that it came into the world in order to "put things in order" with regard to the appointment process of positions exempt from a tender that were filled by the government or with its approval. In these circumstances, it is very difficult to assume that its content only reflects the existing situation and that it does not constitute an expression of position. After all, if the government has already been required to appoint all the positions exempt from a tender, there is no logic in the fact that only with regard to some of them it will express a normative position, while with regard to the rest it will only "photograph" the existing situation. In addition, the decision stipulates that the qualifications of the candidate for the position of Civil Service Commissioner and his general suitability for the position will be "examined" by an appointments committee, so it is not clear how this language can be learned that it only "photographs" the current situation and does not determine anything about the future. Finally, it should be noted that in certain contexts in the decision, the government clarified that what is stated in it does not change the existing situation (for example, it was clarified in section 2(a) of the decision regarding the very existence of an exemption from a tender for certain positions). A similar clarification does not exist in the context of the appointment process.
- Moreover, even if I assume that Resolution 345 is nothing more than a "snapshot" of the existing situation (even though no basis has been laid for it), and even if I assume that it is a trend to attach a competitive appointment mechanism to positions characterized by independence and independence (and as noted, this is not the only possible interpretation), the explicit and clear positive determination found in the decision is, as stated, that the appointment of the Civil Service Commissioner will be made through an appointments committee and not through a search Attempts to reach a different conclusion by drawing conclusions based on various assumptions that have no basis in the said decision are very landmine in my opinion.
- Third, the way the respondents read Resolutions 4062 and 4470 is also not simple at all. These are two complementary decisions that deal with determining the term of office of senior officers in the civil service. In the first decision, Resolution 4062, the government established three categories of senior positions in the civil service: positions for which one term of office will be determined that cannot be extended; Positions for which a term of office that can be extended will be determined; and positions for which a minimum period of time will be set for office without a term limit. With regard to the first category, which is relevant to our case, the Government held as follows:
"For senior positions in the civil service listed below, one term of office (term) that cannot be extended shall be determined: