Additional Hearing High Court of Justice 70105-05-25 Government of Israel v. Louis Brandeis Institute for Society, Economics and Democracy, The College of Management Academic Track, founded by the Tel Aviv Bureaucracy - part 16

There is also no dispute that proving the existence of extraneous considerations is a task that is not simple at all, although not impossible (High Court of Justice 4500/07 MK Shelly Yachimovich v.  Council of the Second Authority for Radio and Television, para.  12 [Nevo] (November 21, 2007); High Court of Justice 8756/07 Mavoi Satum v.  The Committee for the Appointment of Judges, Opinion of Justice A.  Fogelman [Nevo] (June 3, 2008); Armon Case, paragraph 5 of the opinion of Justice E.  E.  Levy and paragraph 5 of the opinion of Justice E.  Hayut).  However, in this case, apart from mere claims that were thrown into the air, no solid evidence was placed before us that the decision was based on extraneous considerations in the form of a desire to control the candidate.  I will mention that this is a method of appointment that is nothing more than a copy of the method of appointment used in the recent appointments to the position of Commissioner (including the appointment of the subject of the High Court of Justice 2699/11), [Nevo], and the composition of the committee is essentially identical to the composition by which the last Commissioner was elected in 2018 (when it is not superfluous to note that the method of appointment adopted in the past is in itself a relevant and relevant consideration in the decision).  See: Yitzhak Zamir, The Administrative Authority, Vol.  5, No.  3520 (2020) (hereinafter: Zamir, Vol.  5)).  In these circumstances, the burden of proving a claim of extraneous considerations is very heavy and substantial, a burden that was not lifted in this case.

103. Another basis for the grounds for extraneous considerations was discussed at length in the opinion of my colleague the President in the judgment that is the subject of further discussion. In his opinion, my colleague noted that Resolution 2344 suffers from administrative flaws, which he divided into three main issues: references by administrative bodies that indicate a trend of strengthening the independence of the commissioner and attaching a competitive mechanism to independent positions; the state of the public service as a whole; and the conduct of the government itself, which requires the establishment of guarantees for the protection of the independence of the commissioner.  My colleague did not find such guarantees in the appointed apparatus that was chosen, which, in his view, raises concerns about the penetration of political considerations both in the selection of the members of the Appointments Committee, in the appointment of the Commissioner himself, and in the possibility of using him to increase politicization in the public service.  He added that no in-depth process of clarifying alternatives was presented and no substantive response was made to the position of the legal advisory bodies.  On the basis of the aforesaid, my colleague concluded that the respondents had placed indications that cast doubt on the question of whether the appointment procedure was determined only on the basis of substantive considerations, in a manner that justified shifting the burden to the applicants.  I cannot join this position.
104. First, as detailed above, those references to the appointments of senior officials in the "positions of administrative bodies" are nothing more than government decisions and the benchmarks document detailed above, from which, as stated, it is not necessarily possible to deduce a trend of strengthening the independence of the Commissioner and linking a competitive appointment mechanism to positions of an independent nature. In addition, given that we are dealing with the determination of the mechanism, relying on the state of the public service as a support for shifting the burden to the applicants' shoulders raises a difficulty.  As for the reference to "the conduct of the government itself," I will say and will not add that this is a consideration that is not of the essence.
105. Second, with regard to guarantees for the penetration of political considerations into the appointment process, as this Court said in the High Court of Justice case 2699/11: [Nevo] "An appointments committee is not an idle committee. Its role is to examine the candidate's qualifications and suitability for the position.  In doing so, the committee seeks to ensure that the appointment of the civil service commissioner was made for practical considerations, and not for political considerations of one kind or another." To this, it should be added that the committee is headed by a judge in the remnant - against whom none of the respondents have a complaint, and that those public figures who are members of the committee are chosen from a list of public figures who serve as members of the Commission's appointments committee ordinarily, in alphabetical order.  It is not superfluous to note that in accordance with the government decision in which the composition of the Appointments Committee was determined (Resolution 4892), "the public figures who will be appointed as members of the committee will have knowledge and experience in the fields of public administration, with no personal, business or political connection to a member of the government," and that appointments will be made "after consultation with the Attorney General and the Civil Service Commissioner." My colleague noted that he does not cast aspersions on the members of the Appointments Committee, but in practice his position reflects a perception that attributes to the members of the Committee or to the public members participating in it, a lack of independence and dependence on the government, which undermines the foundations on which the Appointments Committee as a whole rests.  It should be noted that in the appointment of the commissioner in 2018, the committee did indeed refrain from recommending the candidate proposed by the prime minister.  In any event, insofar as the appointment of those public figures to serve as members of the committee raises difficulties or is mixed with political considerations, history shows that the respondents will find a way to bring the matter before this court.  The same is true of the Attorney General's claim that the Prime Minister sought to end the term of six public representatives on the committee.
106. Thirdly, with regard to the examination of the alternatives to the mechanism chosen and the position of the legal counsel bodies, I do not believe that this too is sufficient to establish anything on the level of the ground of extraneous considerations. As to the alternatives, this Court gave its opinion in the framework of High Court of Justice 2699/11 [Nevo] that there is no defect in the use of the Appointments Committee for the purpose of appointing the Civil Service Commissioner, so that the choice to continue on this path does not reveal any indication of an extraneous consideration.  On the contrary.  As for the legal advisory bodies, in the framework of the Cabinet meeting on June 30, 2024, their position regarding the appointment process was discussed at length.  A review of the summary of the hearing (Appendix 19 to the preliminary response on behalf of the legal counsel in the proceeding that is the subject of the judgment) shows that in this framework, the Deputy Attorney General presented the position of the counseling bodies, according to which the most appropriate procedure for appointing the Commissioner is through a search committee headed by the Supreme Court Justice Ret.  The members of the government, for their part, heard his words and expressed their opinion about it.  inter alia, the members of the government referred to the provision of section 6 of the Appointments Law; the judgment of this court in the case of the High Court of Justice 2699/11; [Nevo] and the proposed composition of the committee, which includes many legal bodies.  In these circumstances, in which the position of the legal counsel was before the government's eyes, and in which its members presented weighty reasons for not choosing the path of a search committee (some of which even underlie this opinion), it is very difficult, if not impossible, to find in this an indication of extraneous considerations.
107. It is also superfluous to note in this context that in contrast to Resolution 2129 (in which it was decided to examine the appointment by the Advisory Committee), with regard to Resolution 2344, the legal counsel officials were of the opinion that there was no legal impediment to its acceptance (and see also the explanatory notes to Resolution 2344 of November 3, 2024, in this regard). Although in their response of November 20, 2024, it was noted that this position is contingent on the fulfillment of a number of conditions, at the same time it was explicitly stated that in accordance with the government decision and the letter of the Cabinet Secretary of November 3, 2024, these conditions are expected to be fulfilled in the process of electing the next Commissioner as well.  Indeed, the legal counsel was of the opinion that the absence of a legal impediment does not mean that there are no legal difficulties in the decision.  However, their stated position is that legal difficulty does not prevent the implementation of the action or the decision-making by the Authority (see in this context: Section 30.b of Part B of the Internal Guide to Consulting and Legislation Work (2017); High Court of Justice 4646/08 Lavie v.  Prime Minister, para.  34 [Nevo] (October 12, 2008) (hereinafter: the Lavi case)).  In these circumstances, the mere fact that the legal counsel was of the opinion that there was a "better" way to appoint the commissioner in the form of a search committee does not indicate that taking the route of an appointments committee means that extraneous considerations were taken into account in the decision.
108. I will add and note in this context that although I do not dispute that in determining the mechanism for appointing the commissioner, guarantees are required to ensure that political considerations are not penetrated, the reliance on a future concern to consider foreign political considerations in the appointment process as a justification for intervention by virtue of the ground of foreign considerations raises a difficulty. As my colleague emphasized in his opinion, at this time we are dealing with judicial review of the appointment process, and not with any concrete appointment.  An appointment by virtue of that procedure was not carried out at all, and in any case it is not possible to determine the existence of extraneous considerations in the appointment.  The "geometric" location of the cause of action for extraneous considerations in the administrative proceeding is found at the stage after the decision was made, and it examines in retrospect whether extraneous considerations were indeed included in the decision.  The stage at which it is sought to prevent the penetration of extraneous considerations in advance, the weakness of the cause of conflict of interest.  As it is stated, "Although the purpose of the two rules is to purify the administrative decision of extraneous considerations, they work to achieve it in other ways: the rule regarding conflict of interest - by way of prevention; The rule regarding extraneous considerations - by way of a remedy" (Yitzhak Zamir, "Conflict of Interest in the Public Service", Conflict of Interest in the Public Sphere - Law, Culture, Ethics, Politics 225, 234 (2009) (emphases added); and see also: High Court of Justice 1993/03 The Movement for Quality Government in Israel v.  Prime Minister, Mr. Ariel Sharon, IsrSC 57(6) 817, 860-861 (2003); Dafna Barak-Erez, Administrative Law, vol.  2, 638 (2010); Zamir, vol.  5, at p.  3531; Tana Spnitz Conflict of Interest in the Public Sector in Practice and Halakha 47 (2013); as well as paragraph 34 of the opinion of my colleague Justice Barak-Erez in the judgment that is the subject of the additional hearing).
109. It is not for nothing that none of the respondents argued in the proceeding that is the subject of the judgment to future and theoretical extraneous considerations. The argument that was raised, and also in a marginal and limited manner, was, as stated, that Resolution 2344 was made out of extraneous considerations in the form of the desire to control the candidate who would be elected.  Such an extraneous consideration, as stated, has not been proven.  In this context, it goes without saying once again that the claim that the government as such is in a conflict of interest with regard to determining the process of appointing a civil service commissioner is very difficult, given that the law explicitly and unequivocally authorized it to appoint the civil service commissioner and even exempted it from the shackles of the competitive process of a public tender.  It is not for nothing that such an argument was not raised by any of the respondents.
110. An argument that was made on the level of conflict of interest was made personally to the Prime Minister. In this regard, it was argued that given the extent of the Commissioner's influence on appointments to positions that have a direct connection to the criminal proceedings being conducted against the Prime Minister and against parties related to him, he is tainted by a personal conflict of interest that prevents him from being involved in the appointment process.  However, in this matter, I have no choice but to repeat the reasoning of my colleague Vice-President Sohlberg in the judgment.  Not only is there a very long distance between the stage of determining the mechanism and making decisions relating to the prime minister's personal affairs - a distance that is reasonable to assume that as is customary in our districts, appeals to this court will be made more than once or twice; And not only is it difficult to try to heal a conflict of interest by changing the mechanism; However, it is not at all clear how a transition to a competitive appointment mechanism will heal that conflict of interest, given that the prime minister takes part in the appointment process in such a mechanism as well.  To this, as already stated, it is difficult to reconcile the argument that the mechanism should be changed on the basis of the particular circumstances of the prime minister, along with the argument that the mechanism must be fixed and determined "behind a veil of ignorance."
111. Thus, even in the claims of extraneous considerations in the decision or of a conflict of interest, there is no substance.
112. Before concluding this chapter, I would like to make two comments.
113. First: My colleague the President noted in his opinion that "it is not possible to 'suffice' with judicial review of the individual appointment decisions of civil service commissioners" due to the difficulty in proving extraneous considerations in the appointment decision (ibid., para. 71).  However, in the High Court of Justice case 5658/23 The Movement for Quality Government in Israel v.  Knesset [Nevo] (January 1, 2024) (hereinafter: the matter of reasonableness), one of the main arguments underlying the majority's position that the amendment to the Basic Law: The Judiciary, which sought to limit the use of the grounds of reasonableness, should be ruled null and void, was that in certain circumstances this ground is the only legal tool for effective protection of the individual.  In the meantime, it was stated by many of the members of the panel who held the majority opinion that the ground of extraneous considerations does not constitute an effective alternative to the ground of reasonableness, in view of the significant burden required to prove this ground (see, for example: paragraph 149 of the opinion of the President in Ret.    Hayut; paragraph 61 of the opinion of my colleague Justice A.  Hayut; paragraph 23 of the opinion of Justice A.  Baron; and paragraph 79 of the opinion of my colleague Justice Barak-Erez).  Why, then, in the circumstances of our case, suddenly the ground of reasonableness cannot serve as an appropriate tool for conducting judicial review at the stage of the individual appointment, to the extent that it is necessary to "precede" the judicial review to the stage of determining the mechanism?
114. Second: In the judgment that is the subject of the additional hearing, my colleagues disagreed on the question of what substantive considerations should be considered in the framework of the appointment of the Civil Service Commissioner. Since these considerations are not irrelevant to the stage of determining the mechanism, I would like to devote a few words to this issue as well.
115. The starting point is that when the authority exercises authority relating to the appointment of an employee in the public service, it acts as the public trustee. As such, it must exercise its discretion fairly, honestly, without extraneous considerations, without impartiality, and for the benefit of the public by virtue of which and for whose sake it has the power to appoint (High Court of Justice 4566/90 Dekel v.  Minister of Finance, IsrSC 45(1) 28, 33 (1991) (hereinafter: the Dekel case); High Court of Justice 2671/98 The Women's Lobby in Israel v.  Minister of Labor and Welfare, IsrSC 52(3) 630, 649-650 (1998); High Court of Justice 8815/05 Landstein v.  Spiegler, paragraphs 8 and 12 [Nevo] (December 26, 2005) (hereinafter: the Landstein case)).  In the meantime, by virtue of its aforementioned status, the authority is obligated to ensure the suitability of public servants to their positions.  This is true in general, and they are especially true when it comes to filling senior positions in the public service, in view of the significant impact of the appointment of suitable candidates for these positions on the level and quality of the public service, on its professionalism and on public trust in it (Lavi, para.  9; Jerbi, paragraphs 13 and 40-41; Landstein, para.  8).  This perception is also reflected in the Appointments Law, whose main purpose is to ensure that employees are admitted to the civil service on the basis of qualifications and not on the basis of connections.
116. From these purposes and principles, it emerges that when an authority exercises the authority given to it to appoint a person to a senior position in the public service, it must consider two main types of considerations: first, considerations relating to the body of the position - including the nature of the position and its characteristics; the requirements of the position, its vitality and the degree of seniority in the public service; the nature of the tasks that will be placed on the shoulders of the officer; and the needs of the system. The second is considerations relating to a person's body - including his professional and functional abilities; his professional education and experience; his organizational and managerial skills; as well as normative-value aspects (see and compare: the Lavi case, paragraph 10; the Jerbi case, paragraphs 28, 35-37 and 39-41).
117. In our case, taking into account the characteristics of the role of the Civil Service Commissioner and the broad scope of his powers, it is absolutely clear that at the time of his appointment, it is necessary to ensure that he is a person with the appropriate qualifications to manage the most senior body in the field of personnel in the civil service, to exercise the variety of broad powers delegated to him, and to maintain the independence of the public service. So far, it seems that there will be no disagreement among my friends.
118. At the same time, when examining the relevant considerations in the appointment, it is not possible to ignore another aspect of the role of the Commissioner. There is no dispute that the Civil Service Commission is the organization responsible for implementing the policy set by the executive branch in the areas of human capital in the country and the management of the public service.  As such, it is clear in my opinion that when the government comes to elect a commissioner, it is entitled to take into account considerations relating to his professional ability to carry out the said policy, and in part to his professional positions regarding the manner in which it is implemented (and compare: the Jerbi case, paragraph 27).  This conclusion is also consistent with the fact that entrusting the authority to appoint the commissioner to the government - without the need to hold a tender - is rooted in the desire to allow the government flexibility in choosing the commissioner, in order to ensure cooperation between it and the commissioner as the executor of its policy.  Granting this authority to the government means recognizing that in the framework of the appointment, the government will take into account considerations relating to the candidate's professional ability to carry out its policy.
119. This does not mean that in the framework of the appointment process, the government is entitled to consider political considerations. This court has made it clear time and again that an appointment based on considerations of political-party interests is an invalid appointment.  The consideration that must dictate the appointment is the candidate's qualifications, and an appointment based on political considerations betrays the confidence of the public that authorized the appointing authority (Dekel, at pp.  35-36; Einstein, at pp.  118-122; High Court of Justice 6777/98 Rosenberg v.  Committee for the Examination of Appointments under the Government Companies Law, 5735-1975, IsrSC 52(5) 721, 735 (1998)).  This is the case in general and so in particular with regard to the Civil Service Commissioner, who by his nature is not a position of trust with a political tone (Einstein, at p.  125; High Court of Justice 4446/96 The Movement for Quality Government in Israel v.  Government of Israel, IsrSC 50(3) 705, 707 (1996); and see also: Decision 4470, which orders, as aforesaid, the limitation of the term of office of the Commissioner, according to which he does not change with a change of government).  However, there is nothing wrong with the government taking into account considerations relating to the candidate's ability to professionally implement the policy it is aiming for with regard to human capital management and public service, and his views on how to implement this policy.  Precisely because this is such a high-ranking position, with such significant implications for the management of human capital in the country, it is hard to imagine that the candidate's professional positions in human capital management are of no importance.  An approach that does not see these positions as substantive considerations in the appointment "renders" in my opinion the role of the commissioner, and I am unable to accept it.
120. In the judgment that was the subject of further discussion, my colleague Vice-President Sohlberg noted that in his view, the government is entitled to consider considerations relating to ideological-professional affinity in the appointment. It is possible that the use of such a term may blur the line between legitimate considerations and political considerations.  However, it seems that my colleague the Vice President and I are eye-to-eye, in the sense that considerations relating to the candidate's ability to implement the government's policy professionally are certainly relevant considerations in the selection and the government is entitled to weigh them.  It should also be noted in this context that my colleague Justice Barak-Erez also expressed a willingness to give weight to considerations regarding the candidate's principled positions in relation to issues of management and public service, as did the Counsel in her arguments before us.
121. I am aware that the argument may be made that even legitimizing considerations relating to professional positions regarding the manner of implementing government policy may open the door to the consideration of political considerations. However, in my opinion, this kind of theoretical concern does not precede a cure for every blow.  It is clear that in order to justify taking into account professional positions for the purpose of realizing a certain policy in a concrete appointment, it is sufficient to say that it is necessary to present a policy that the government wishes to promote.

Unreasonableness

122. Another central argument made by the respondents is that Resolution 2344 is an extremely unreasonable decision. It was argued, inter alia, that the decision did not give sufficient weight or any weight to the independent and state nature of the position of Civil Service Commissioner; to the changes that have taken place in the civil service over the past decade; to previous government decisions; and the position of the legal advisory bodies.
123. Before I address the merits of this argument, I would like to turn my attention to the legal proceedings that took place before this Court in 2011 regarding the manner in which the Civil Service Commissioner was appointed. My colleague Vice-President Sohlberg discussed this at length in his opinion, and I believe that it is impossible to avoid repeating it even now.
124. As may be recalled, in 2011, prior to the appointment of Adv. Dayan to the position of Civil Service Commissioner, Respondent 3 filed a petition with this Court in which it was argued that the appointment of the Commissioner should be made by way of a search committee and not by way of an appointments committee (High Court of Justice 2699/11) [Nevo]. The petition focused on the argument that the decision to refrain from establishing a search committee to fill the position of Civil Service Commissioner was extremely unreasonable, for two main reasons: first, that appointment by way of a Appointments Committee is contrary to the method of appointment adopted in relation to other senior professional positions in the civil service; Second, the principles of equality, transparency and public trust require that the position of commissioner be filled by way of a search committee.
125. In response to this petition, a joint preliminary response was submitted on behalf of the government, the prime minister, the director general of the Prime Minister's Office, and the attorney general at the time, according to which the petition should be rejected. The essence of the position expressed in that response was that "there is no legal obligation to appoint a civil service commissioner specifically by way of a search committee.  On the contrary.  As will be detailed, the law expressly exempts the position of civil service commissioner from the duty of the tender, and stipulates that the appointment will be made by the government" (ibid., section 3).  In more detail, the same preliminary response argues that:

"In accordance with the provisions of the Appointments Law and the relevant government decisions described above, there is no obligation to establish a search committee for the position of Civil Service Commissioner.  [The Prime Minister] is authorized to offer the position to any person he deems fit to fill it, and to submit the name of that person to the Special Appointments Committee.  This was also done, as stated above, in the two previous times in which the Civil Service Commissioner was appointed.  Admittedly, on previous occasions this was done prior to Government Resolution 345 regarding the search committees, but in contrast to other positions, in which the government decided that it wanted them to be filled by way of a search committee, it was the same government that decided, in Resolution No.  345 itself, not to do so with regard to the position of Civil Service Commissioner, and with regard to other senior positions.  This decision, which lies deep in its governmental prerogative, is certainly reasonable and possible, and there is no reason not to honor it.