And I will also mention the words of the judge A. Rubinstein, written specifically regarding administrative law:
"Our experience allows us to draw the lessons of administrative law, and to try to instill them in the government system through our rulings. The study of past concepts and a broad view, from our place today, to governmental phenomena, make it possible to develop administrative law for the benefit of the public. Such an approach must of course be taken with caution and responsibility; But refraining from it will do our job in a Band-Aid" (High Court of Justice 3002/09 The Medical Association of Israel v. Prime Minister of Israel, paragraph 16 of the judgment of Justice Rubinstein [Nevo] (June 9, 2009) (hereinafter: the Medical Association case)).
- Thus, the reality itself is not a "bar-legal" consideration as claimed by the government's respondents. Reality is an inseparable part of the world of law, and God forbid we should relate to it as a consideration that is not relevant (paragraph 105 of my colleague's judgment).
On the Effect of Section 6 of the Appointments Law
- Another important clarification relates to the implications of the interpretation of Section 6 to the Appointments Law.
My colleague the judge Mintz Emphasizes that Section 6 "Isn't imposes on the government any special procedural restrictions" with regard to the appointment procedure, and that this section contains "no provision Binding the government to adopt a competitive procedure" (in paragraphs 59 and 66 of his opinion; emphases in the original - 11). There is no dispute about this, and as my colleague noted, this is the starting point for our matter.
- However, it is important to emphasize that my judgment in the petitions did not ask for Read Into the section itself It is mandatory to conduct an appointment process of one kind or another. Instead, as I clarified in my judgment, an analysis of the language and purposes of the Section 6 Intended to locate and define the set of relevant considerations in light of which government decisions should be examined On the level of administrative discretion. Indeed, as my colleague Justice noted Mintz, "authority and discretion on the other, and the mere fact that the law does not impose a duty does not mean that such a duty cannot arise from other places" (paragraph 67 of his opinion).
And to be precise: Case law has long recognized that the set of substantive considerations that delimit the discretion of the administrative authority includes "considerations that derive from the special purpose of the law relating to the matter" (High Court of Justice 987/94 Euronet Golden Lines (1992) inTax Appeal v. Minister of CommunicationsIsrSC 48(5) 412, 433 (1994)). In other words, in order to examine the compliance of the government's decision with the conditions of administrative law, it is necessary to examine, among other things, whether it was made on the basis of relevant considerations only; And the question of what are those "substantive considerations" is derived in the Torah, inter alia, from the purpose of the authorizing provision of the law - and in our case, From Section 6 to the Appointments Law.
- The Necessity of Interpretation Section 6 and its implications for the government's duties as an administrative authority, which therefore becomes part of the court's natural role - a role that is concerned, as my colleague noted, "to interpret it [the relevant norm] and to decide disputes relating to its implementation or the authority's compliance with its provisions" (at paragraph 73 of his opinion). With all due respect, from this to the examination of the "wisdom of the legislature", to the change of discretion of the administrative authority, or to the preference of the desired law over the common law (ibid., at paragraphs 72-75) - it is a very long way.
- If so, it is clear that I do not dispute the ruling of my colleague Justice Mintz according to which the existence of the statutory exemption under Section 6 The law "must be kept in mind" when we come to examine the government's decision (paragraph 67 of its opinion). The question is What meaning is derivative From this, is this an indication of the legislature's intention to give the government a "green light" to establish an appointment process as it pleases, and in particular one that will pave the way for the election of a commissioner who is ideologically close to it or its worldview? Or does it exist? To the section 6 And the Appointments Law Has a Purpose Different - A goal that, in turn, will reflect on the range of relevant considerations that can be taken into account when determining the appointment process?
The answer to this question must be done in accordance with the rules customary in our system, and this is what I will now require.