Moreover, the appointment process taking place in the case of the Civil Service Commissioner is very similar to the appointment procedure used in the appointment of directors general of government ministries, the Accountant General of the Ministry of Finance, the Director of Budgets in the Ministry of Finance, and more. The appointment process of these office holders is also regulated by means of Section 3 of Resolution 345, which means that the process of appointing them also does not include a tender or a search committee, but rather an examination by an appointments committee.
It is clear that the argument that the position of Civil Service Commissioner is a higher or more important position than the aforementioned positions should not be accepted. Nor should we accept the argument that the position of Civil Service Commissioner is a more 'professional' position than the above positions - these are also professional positions that are apolitical. Therefore, it cannot be said that what is reasonable for the appointment of a chief of staff or a police commissioner is not reasonable for the appointment of a civil service commissioner" (ibid., paragraph 6).
With regard to the argument that the principles of equality, transparency and public trust require that the position of Commissioner be filled by way of a search committee, it was held that:
"Section 4 of Resolution 345 defines a list of positions that must be appointed by way of a search committee. The problem is that the position of Civil Service Commissioner is not included in this list, but rather in the list of positions subject to examination by the Appointments Committee (Sections 1 and 2 of the Decision). From this it is clear that the government has deliberately chosen to separate between positions for which a search committee is required and other positions for which an appointment committee is required. Indeed, even if we accept the Petitioner's argument that many considerations support the appointment of the Civil Service Commissioner by way of a search committee, and even if we accept her argument that appointment by way of a search committee is preferable to appointment by way of an appointments committee, it cannot be said that appointment by way of an appointments committee exceeds the realm of reasonableness. The 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 is made for practical considerations, and not for political considerations of one kind or another. It cannot be said that 'sufficiency' in such a committee, as stated, beyond what is required by law, is unreasonable" (ibid., paragraph 7).
- This was presented at length in order to illustrate the profound difficulty inherent in the claim that Resolution 2344 is tainted by extreme unreasonableness. How, then, can it be argued that taking an appointment route that is exactly identical to that taken by the government for the purpose of appointing a civil service commissioner in 2011 - and was found to be extremely reasonable - constitutes today a decision that is extremely unreasonable to the extent that it justifies the intervention of this court? The respondents have the solutions.
- Indeed, the respondents reiterated that in their approach, since the judgment was rendered in the High Court of Justice case 2699/11 [Nevo], there have been significant changes that lead to the conclusion that today there is no longer room to continue appointing the Civil Service Commissioner through an appointments committee, but that this should be done through a search committee. In the meantime, they noted the government decisions that strengthened the independent status of the Civil Service Commissioner; the Criteria Document, which was formulated after the judgment in the High Court of Justice case 2699/11; [Nevo] the fact that the appointment of the commissioner in 2011 preceded a search team; and the need to make appointments independently and apolitically with regard to gatekeepers, as has been emphasized in recent years, by both administrative officials and by this court. However, in my opinion, none of these reasons provides justification for changing the judgment given in the case of the High Court of Justice 2699/11 [Nevo].
- As for the various government decisions, not only do they not lead to the conclusion claimed as detailed above, but they also - as Deputy President Sohlberg noted in the judgment - were passed to the High Court of Justice 2699/11 [Nevo]. As for the criteria document, as I noted above, this is a document prepared by the Commission and the Ministry of Justice (and not by the government), with the aim of regulating the use of search committees for positions for which no explicit instruction was given in Resolution 345. In our case, Resolution 345 explicitly stipulated that the position of Civil Service Commissioner would be filled by way of an appointments committee, and therefore the criteria do not apply to it at all. Hence, whatever the content of the criteria, they do not in themselves lead to the conclusion that what was reasonable in the past with regard to the appointment of the Civil Service Commissioner, is now extremely unreasonable.
- In addition, the appointment of the object of the High Court of Justice 2699/11 [Nevo] was preceded by a quasi-competitive proceeding. However, this matter did not even come up in the slightest hint as a reason for the validity of the decision to make use of the appointments committee - neither in the position of the legal advisor to the government nor in the judgment. Moreover, in the end, the candidate chosen in that process was not at all among the candidates who underwent the quasi-competitive process. Therefore, even this reason does not make what was reasonable in the past unreasonable today.
- And finally, the independence of the civil service commissioner and his apolitical position is nothing new. The importance of the independence of the gatekeepers in general is also nothing new. Even if in recent years this Court has been required to emphasize the importance inherent in this independence, this does not produce a change in the factual situation that justifies a completely different conclusion from that reached only a few years ago.
- I will add and note in this context that the retraction of the comparison made by my colleague the President in the case of the High Court of Justice 2699/11 [Nevo] between the Chief of Staff or the Commissioner of Police and the position of Commissioner (paragraph 60 of his opinion) does not make Decision 2344 unreasonable. My colleague insists that these appointments are made from a small group of candidates who have risen to senior command positions in the organization or in its equivalent organizations. However, this matter is reflected in the fact that these appointments are made by way of an advisory committee, which is not required to examine the candidate's professional competence, but only for considerations of integrity. On the other hand, given that there is no limited and limited pool of qualified candidates to serve as civil service commissioner, a mechanism was chosen that also selects the candidate's professional qualifications.
- There have been no real changes since High Court of Justice 2699/11 [Nevo] until today. Except for the personal taste of the respondents. But even if I assume that there have indeed been changes in the factual situation over the years since the judgment in the High Court of Justice case 2699/11, [Nevue] from here to the conclusion that this is now an extremely unreasonable decision - the distance is very great, as far east from west.
- In the margins of this chapter I will add this as well. My colleague the President noted that the fact that this Court has expressed its opinion on the issue in the past is not the end of the story. I do not dispute that this court can change its decisions. However, when it comes to doing so, it must act with great caution and set before it the principles of stability, legal certainty, and the finality of the hearing (and in this context, see, for example: High Court of Justice 1375/06 Gedera v. National Labor Court, paragraph 5 [Nevo] (October 24, 2006); Civil Appeal Authority 3749/12 Bar-Oz v. Sutter, IsrSC 66(1) 678, 712 (2013); Criminal Appeal 5492/11 Al-Rahman v. State of Israel, para. 26 [Nevo] (August 5, 2012)), the immovable and missing principles in this case are unreserved.
- Although in my opinion this is sufficient to reject the claim of unreasonableness in the decision, I will add and briefly address other arguments that were raised in this context.
- Thus, I do not believe that in determining the mechanism, sufficient weight is not given to the independent and state nature of the role of the Commissioner. As stated, the nature of the position should be given weight when determining the mechanism. However, as detailed above, alongside the independent nature of the Commissioner, it should be remembered that we are also dealing with a functionary who is responsible for the implementation of government policy, and even this aspect must be given weight in determining the mechanism (and in this context see also the words of my colleague Vice-President Sohlberg in paragraph 40 of the judgment). To this, it should be added that as described above, the Appointments Committee is not a "decoration committee" and is not a function of the government. It is composed of members who lack a political overtone and examines the candidate's qualifications and suitability for the position in a professional and in-depth manner. This is under the assumption that this is an independent and state position, and on the basis of criteria that were determined in the past after discussions with relevant parties.
- In addition, I do not believe that the lack of reference to the current state of the public service when determining the mechanism reflects unreasonableness in the decision. As stated above, these changes can and should certainly be taken into account at the time of the appointment itself, but they are not meant to have an impact on the selection mechanism, and certainly not under the perception that such a mechanism is supposed to be transparent to concrete circumstances.
- In summary, I do not believe that Resolution 2344 was given unreasonably, and therefore the arguments in this context should also be rejected.
"Equal opportunities"
- And finally, another argument that was heard before us originated in the opinion of my colleague Justice Barak-Erez in the judgment that is the subject of the additional hearing, from which it emerges that the obligation to conduct a competitive proceeding for the purpose of appointing a civil service commissioner "is also obligated in the light of the principle of equality [...]". This is due both to the opportunity given to potential candidates for the position, and to the implications of the Commissioner's decisions on equal opportunities for employees in the public service. I find this position very difficult.
- With regard to giving equal opportunity to potential candidates for the position, the position according to which the principle of equality requires the conclusion that every person should be given the opportunity to apply for any position, including the most senior positions in the civil service, is a position that I find difficult to accept. This is especially so against the background of the explicit provision of section 6 of the law, which exempts the government from a tender under section 19 of the law, whose focus is to provide an equal opportunity to submit candidacy.
- Nor is it superfluous to note in this context that it is conceivable that competitive proceedings that will not necessarily include giving every person an equal opportunity to apply for the position (such as the process of appointing the Attorney General), so that even the result reached by my colleague does not necessarily fulfill the principle of equality as it is perceived by it.
- and as for the potential implications of the Commissioner's decisions on equal opportunities at work. This is indeed a relevant consideration (as I also described above), but it certainly cannot lead to the conclusion that the mechanism must include a competitive proceeding. Its relevance is summarized in an examination of the Commissioner's abilities and qualifications in the framework of the individual appointment.
Where did I come from - that's where I'm coming back
- I have therefore discussed at length all the arguments raised by the respondents and by the Attorney General. I have shown why none of them justifies our intervention in Resolution 2344. As it emerges from the above, and as my colleague Vice-President Sohlberg also pointed out in the judgment, their arguments belong at most to the desired level of law. However, as my colleague the President noted in another case:
"'The law is desirable on the one hand, and the law is found separately. Sometimes the two merge with each other, sometimes there is a partial overlap between them, and sometimes they take each other out' [...]. The petition before us has reason and logic, but it does not rely on well-founded foundations in the law, and it seems that the shoulders of the existing law are too narrow to bear the weight of the relief requested" (HCJ 9957/17 MK Stav Shafir v. Minister of Finance, para. 66 [Nevo] (May 23, 2024); see also: Civil Appeals Authority 4958/15 Clalit Health Services v. Aharon, paragraph 14 of the judgment of my colleague [Nevo] (October 23, 2017)).
- It should be emphasized that I am correct to assume that the appointment of a civil service commissioner by way of a search committee is likely to improve the selection process. The very fact that a search committee is not limited to examining a candidate brought before it by the appointing body, but rather examines candidacies from entities that have submitted candidacy and from those it has approached on its own initiative, increases the possibility that the most suitable candidate for the position will be selected. Added to this is the fact that, as noted, as a rule, the composition of the committee includes parties with expertise and experience in the relevant field (see also: High Court of Justice 8134/11 and CPA Moshe Asher v. Minister of Finance, para. 14 [Nevo] (January 29, 2012); High Court of Justice 5755/08 Aran v. Government of Israel, para. 13 [Nevo] (April 20, 2009); High Court of Justice 5538/09 Peleg v. Civil Service Commission, para. 14 [Nevo] (July 6, 2010); High Court of Justice 4767/22 Adam Teva VeDin Israeli Society for Environmental Protection v. Government of Israel, para. 4 [Nevo] (March 24, 2024)). However, this does not lead to the conclusion that there is room to intervene in the respondents' decision to act specifically by way of appointment through an appointments committee. In this context, I will once again mention what was said by the Legal Advisor to the Government in their response to the High Court of Justice 2699/11 [Nevo]:
"From the very fact that there may be those who may believe that it is preferable to take such an election process over another, there is still a long way to go to determine that there is a legal obligation to choose specifically the selection process desirable for the petitioner and not for the desired one for the Prime Minister and the government."