The Language and Purposes of Section 6 of the Law
- The language of Section 6 The Appointments Law is most laconic as follows: "The government will appoint a civil service commissioner (hereinafter - the service commissioner); The tender obligation will not apply to his appointment according to Section 19 and a notice of the appointment will be published in the Official Gazette."
- For the position of my colleague Justice Mintzwhere the legislature chose to exempt the government from the tender process - the "flagship" of the competitive proceedings - it can be inferred from this that there is an intention to exempt the government from holding a competitive proceeding. Somehow (in paragraph 60 of his opinion). In his view, the reference to the type of procedure that the government Inna must take, "indicates the state of mind of the legislature with regard to the breadth of discretion that it sought to grant to the government in determining the appointment procedure" (ibid., at paragraph 61). My colleague also relies on the fact Section 19 The law indicates, in turn, the public nature of the tender ("A person shall not be appointed as a civil servant until after the service commissioner has publicly announced the position [...]"); From this my colleague learned about the legislature's "unequivocal and unambiguous view" that the government is not obligated to use "any public-competitive mechanism" for the purpose of appointing a civil service commissioner (in paragraph 62 of his opinion).
- I wonder. An exemption from the "flagship" does not mean an exemption from maritime law at all; An exemption from a tender does not mean an exemption from any competitive proceeding that does not amount to a tender. This is the plain meaning of Scripture. In general, the rule of interpretation is familiar, "from the rule of no they are heard" and vice versa, but I do not know of an exegetical rule according to which the rule of no is derived from the rule of many other nations.
I do not believe that the language of Section 6 The law can carry such specific and far-reaching meanings, and in fact, it can even be argued that the opposite is true. As my colleague the judge emphasized Barak-Erez In the judgment that is the subject of the additional hearing, all that was determined In the section 6 The law is that the government is exempt from executing a tender - to which the tender rules apply as determined in the law, the regulations and court rulings - and nothing is stipulated in it regarding an exemption from holding Other Types of Competitive Proceedings. In other words, the legislature said "no" to the tender proceeding, but it should not be inferred from this that "no" applies to other types of proceedings. In fact, everything that is determined in the language Section 6 is that the government is exempt from holding a tender By Section 19 To the Appointments Law - i.e., a tender in the specific format according to which "the service commissioner [from] publicly announces the position [...]" (See also Section 24 of the law, which establishes conditions for the selection of candidates "for the position declared as stated in section 19").
- To be precise: the legislature knew how to distinguish between tender proceedings and other competitive proceedings. Thus, In the section 41(II) The Appointments Law, which was added in 2014, stipulates that "the chairman of the Knesset Central Elections Committee shall appoint a general director of the committee, according to the recommendation of the Search Committee Shema and the appointment The tender obligation under clause 19 will not apply". Our eyes see that a tender is separate from a search committee, and therefore, plainly speaking, it is not possible to conclude from the exemption from a tender obligation, an exemption from other competitive proceedings such as a search committee. [In parentheses: When the law was enacted in 1959, the institution of a search committee had not yet been anchored in government procedures and decisions, so it should not be inferred for our purposes that the absence of a reference to a search committee In the section 6. However, if the legislature wanted to expand the application of the exemption in 2014 In the section 6 to the law, so that it will also apply to an appointment through a search committee - it is clear that this could have been done].
And from another angle: the government's readiness Power to create the mechanism of the search committee, and refer to it positions that it itself has chosen for exemption from a tender (in accordance with its authority under the Section 21 to the law) - in itself indicates the existence of relevant differences between different types of competitive proceedings, and in particular between the tender mechanism and the search committee mechanism (see the judge's remarks). Barak-Erez in paragraph 6 of its judgment in the petitions).
- and in general, the choice to exempt the government from holding a tender according to Section 19 Specifically, it seems necessary - since tenders according to Section 19 The law is administered by the Civil Service Commissioner himself or anyone on his behalf, and it is clear that there is an inherent problem in the use of this mechanism for the purpose of appointing the Commissioner's replacement (see in this context paragraph 7 of the judgment of my colleague Justice Barak-Erez in petitions; Paragraphs 25-26 of the main arguments of the Movement for Quality Government in the additional hearing; Yes see directions Civil Service Rules (Appointments) (Tenders, Exams and Tests), 5721-1961, detailing the Commissioner's responsibilities with regard to the management of tenders).
- In any event, if the legislature wishes to signal to the government to "distance itself" from all types of competitive proceedings - that is, not only from the tender proceeding that according to Section 19 - It seems that this could have been clarified explicitly in the language of the law. Thus, for example, it was possible to deduct From Section 6 the words "according to section 19", and only to determine that the appointment of the commissioner "will not be subject to a tender obligation" (and the interpretive premise is well known, according to which the legislature does not corrupt its words in vain (see, for example: Civil Appeal Authority 6215/22 Miller v. Central Samaria Development Company Ltd., paragraph 9 [Nevo] (January 19, 2023)). Alternatively, it was possible to establish an exemption from holding a "public" proceeding, to the extent that the legislature believed that the center of gravity lies precisely in this characteristic.
Therefore, it is highly doubtful in my opinion whether it is possible to learn from the linguistic layer of Section 6, which relates to the tender mechanism according to Section 19, on the legislature's position in relation to other competitive mechanisms.
- If so, the linguistic layer of Section 6 It certainly suffers from a number of possible interpretations, and in the next stage, we must turn to an examination of the purpose of the section.
And to be precise: Section 6 does not anchor only the manner of appointment of the civil service commissioner (i.e., the determination that the commissioner will be appointed by the government with an exemption from a tender according to Article 19), but also gives legal status to this position as a whole. Therefore, the purpose of the section includes in fact two layers that are interrelated in a substantive connection - The purpose of the exemption from a tender; and the purpose of the position of the commissioner Himself. This connection is particularly close in our case, since, as stated, the question of the purpose of the position of the Commissioner has a direct impact on the range of relevant considerations that the government faces when determining the exact appointment mechanism (which is not a tender according to Article 19 to the law).
- According to the rules of interpretation that are customary in our places, the purpose of a statutory provision also includes its subjective purpose, i.e., the intention of the legislator. However, the premise in light of which the hearing of the petitions took place, and which seems to have been the basis of the parties' arguments at the additional stage of the hearing, was that the legislative history of the Appointments Law is "silent" as to the purposes of the Section 6 to the law. This is because the explanatory notes to the Appointments Bill do not include a detailed reference To Section 6and also in the discussions of the Knesset Labor Committee (hereinafter: The Work Committee), which handled the bill, it was not possible to locate a specific reference to the nature of the commissioner's position or the reason for the exemption from a tender.
- This assumption led the parties - and subsequently the judges of the panel that heard the petitions - to use more indirect indications in order to understand the purposes of the Section 6 of the law, and the set of relevant considerations that can be taken into account when implementing it.
For clarity I will mention the various possible purposes that have been proposed in this context.
- to the government's position - which was accepted, in essence, by my colleague the vice president Solberg And the Judge Mintz - Section 6 expresses the perception that the purpose of the commissioner's role is to realize the government's policy; Therefore, it is appropriate to allow the government freedom and flexibility in determining the appointing mechanism, and to allow it to choose a candidate with whom it wishes to work and act through him, and whose views are similar to its own.
- On the other hand, the position of the respondents in the request for further hearing - which was accepted mainly by me and by my colleague Justice Barak-Erez In the judgment in the petitions, it was held that it was not possible to learn about such a legislative intention. As to the purpose of the Commissioner's role, in my judgment in the petitions, I noted that it is appropriate to use the general purposes of the Appointments Law - which concern "In ensuring the professionalism of the public service, in ensuring professional appointments (based on qualifications and suitability), and in preventing appointments due to improper considerations such as party affiliation or proximity to the appointing body." (in paragraph 31 ibid.). In a similar vein, my fellow judge Barak-Erez Highlighted "The 'pole of control' of this position in relation to its decisions is critical to maintaining the professionalism, stateliness, and independence of the entire civil service" (in paragraph 9 of her judgment).
With regard to the purpose of the exemption from a tender according to Section 19 to the law, my colleague the judge Barak-Erez discussed, inter alia, practical reasons for this exemption, stemming from the Commissioner's own involvement in the tender process that according to Section 19; and also mentioned the possibility that the exemption provision from a tender is intended to make it easier to locate the most professional candidate - since taking into account the scope and complexity of the position of the Commissioner, the rigid and formalistic tender procedure may actually make it difficult to locate the most suitable candidate (in paragraph 7 of the judgment of my colleague Justice Barak-Erez; See also paragraph 17 of the main arguments on behalf of the Histadrut in the additional hearing).
- As for myself, even at the current stage of the discussion, I remain of the opinion that there are no convincing indications that the exemption from a tender is intended to indicate that the role of the Commissioner is perceived as an executive arm of the government and as the implementer of its policy. In fact, as I will detail below, it seems that the legislature's intention regarding the purpose of the position of commissioner was different.
- To be precise: there is no dispute about the relationship that exists between the government and the Civil Service Commissioner. It is the government that appoints the civil service commissioner; and it is the one that determines the direction of the public service ship, whose management is entrusted to the commissioner. However, taking into account the independence and apolitical nature of the office of the Commissioner, and the fact that the public service is in itself "Stately, professionally and apolitically" (High Court of Justice 154/98 The New General Workers' Union v. State of Israel, IsrSC 52(5) 111, 118 (1998) (hereinafter: the EinsteinThe relationship between the government and the civil service commissioner is not leading On its own to the conclusion that the commissioner is intended only to serve as an executive arm of the government, or that a candidate can be appointed for the position based on the proximity between his worldview and that of the government or its head.
- Members of the Vice-President Solberg, in his judgment in the petitions, noted that it is possible to learn about the purpose of Section 6 of the Appointments Law from the case law regarding the purpose of Article 21 to the law, which authorizes the government to exempt certain other positions from the obligation of a tender. My colleague emphasized that the exemption from a tender in section 21 It is in fact "a tool intended to assist the government in realizing its objectives" (in paragraph 17 of its judgment), and according to him, this purpose is also relevant to an exemption from a tender that is anchored In section 6 to the law, regarding the position of commissioner. Therefore, my colleague the Vice-President was of the opinion that considerations regarding "ideological-professional closeness between the appointer and the appointee" (ibid., at paragraph 18) - which are likely to assist the government in realizing its objectives - are included in the framework of the relevant considerations that can be taken into account when determining the procedure for appointing the commissioner. My colleague further noted that the general purpose of the Appointments Law is intertwined with the default enshrined in the law regarding the obligation to tender, and therefore it is not possible to learn from this about the purpose of the The Exception For this obligation, which is anchored In section 6 to the law.