In my judgment, I added that the current proceedings are not the appropriate venue for determining the exact boundaries of the process for appointing the Commissioner, but it is already possible to draw a partial conclusion in this context: since the flaw in the chosen mechanism stems from the lack of sufficient guarantees to locate the most suitable candidate and the failure to penetrate political considerations into the appointment decision, an appointment procedure must be established that will provide these guarantees. Specifically, I noted that establishing a competitive mechanism would yield a significant contribution in this context.
- Now that I have reviewed the detailed opinion of my colleague, the judge D. Mintz, at the stage of the additional hearing - my opinion remained as it was at the time of writing the judgment in the petitions, and to this a number of additional reasons were added, which I will detail below.
Determining the Appointment Mechanism - An Independent Administrative Decision
- I will begin with a comment regarding the nature of the government's decision that is on the agenda. My colleague the judge Mintz He is of the opinion that there is no justification for judicial intervention in the decision regarding the process of appointing the Civil Service Commissioner, inter alia, since the petitions were filed "before the competent authority made a final decision on the merits of the matter", and that it would have been appropriate at this stage to refrain from criticizing the appointment mechanism and to "focus on the appointment itself - which is at the heart of the real dispute" (at paragraph 151 of his opinion). In this context, my colleague further wonders why the grounds of reasonableness are not 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?" (ibid., at para. 114).
However, as also noted in the judgment that is the subject of the additional hearing, the government's decision regarding the determination of the mechanism for appointing the commissioner is An administrative decision for all intents and purposes, which is subject to judicial review as much as a concrete appointment decision. Determining the appointment mechanism is not merely a prelude ("promo") to the "real" administrative decision, but a decision Independent and separate - Required per se Comply with the conditions of administrative law, including the conditions regarding the existence of an adequate factual basis and consideration of relevant considerations only.
- Therefore, I cannot accept my colleague's assumption that we are dealing with an unnecessary "introduction" of the date of judicial review. To the extent that extraneous considerations were taken into account when determining the appointment process - by virtue of which the "pool" of potential candidates for the position is fenced - even if the selection of candidates within the database was made in itself due to substantive considerations, this will not retroactively cure the fact that the database was illegally delimited and defined from the outset.
It should be noted that according to the appointment mechanism preferred by the government, in any case, this is not a "pool" but rather the appointment of a specific person on behalf of the Prime Minister, who alone is subject to examination by the committee, as opposed to the possibility of examining dozens of potential candidates in a competitive process. Therefore, the stage of choosing the appointment mechanism is Critical, and as noted, it is an administrative decision that stands on its own. Therefore, I do not accept my colleague's thesis that "the 'geometric' location of the cause of action for extraneous considerations in the administrative proceeding is at a stage After the decision was made" (in paragraph 109 of his opinion; Emphasis in the original - 11). According to this method, when, for example, a petition is submitted to the court against the mechanism of appointment for the election of a city rabbi or for the election of a religious council or for the election of a local authority council or for the election of the head of the Shin Bet or for the election of a police commissioner, should the court reject the petitions and wait for the appointment itself? Strange (in this context, see, for example: High Court of Justice 4790/14 United Torah Judaism - Agudat Yisrael - Degel HaTorah v. Minister of Religious Services [Nevo] (19.10.2014) (hereinafter: Matter United Torah Judaism), which dealt mostly with a principled selection process; High Court of Justice 4308/24 Kahane Dror v. Minister of Religious Services [Nevo] (6.3.2025)). It is not needless to say that an administrative examination of the appointment process, separate from a concrete appointment, was even conducted in the case of the High Court of Justice 2699/11 The Movement for Quality Government v. The Government of Israel [Nevo] (May 17, 2011) (hereinafter: High Court of Justice 2699/11) - on which my colleague elaborated and relied as a point of departure for examining the present proceeding, and about which details will be brought later on.
- Moreover. Retrospective criticism of a specific appointment is of course possible, but it is limited by its very nature, insofar as it relates to establishing a factual basis for the court's intervention in the appointment of a certain person to a position in the public service. This is especially so against the background of the rule that "The court will not soon intervene in a decision regarding appointment to a professional position in the public service" (High Court of Justice 8134/11 Asher v. Minister of Finance, paragraph 11 [Nevo] (29.1.2012); See also paragraphs 71-72 of the judgment that is the subject of the additional hearing).
On the legal, the legal and the role of the court
- At the end of his opinion, my colleague Justice notes Mintz the "assumption inherent in the respondents' arguments, which was even adopted by the majority opinion in the judgment" (at paragraph 148 of his opinion). This assumption, my colleague notes, is that the mechanism set out in Resolution 2344 is not "strong" enough to prevent improper considerations from infiltrating the appointment of the commissioner. To this, my colleague responds that "it is difficult to imagine a claim that has a deeper frontal contradiction than that of the presumption of administrative correctness [...] It is inconceivable that in the stroke of a hand the basic principles on which this Court has stood time and time again, should be trampled upon" (ibid.). At the same time, my colleague adds that the argument "the lack of means in the existing toolbox cannot justify a deviation from the usual ways of examining an administrative decision. Nor can it justify the use of justified justifications that belong to the districts of the neighbors to our house" (ibid., at paragraph 150). My colleague also criticizes the majority opinion in the judgment, noting the rules regarding the failure to examine the wisdom of the legislature and the failure to replace the discretion of the administrative authority, and the need to rule according to the existing law and not the desired law (see paragraphs 72-75 of my colleague's opinion Mintz).
- With all due respect, I categorically reject the way in which my colleague presented the majority opinion in the judgment.
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