[At this stage, votes were held, and the proposals raised at the meeting were rejected]
Minister of Justice: There is an interest in raising the position of the Service Commissioner a little bit and emphasizing its importance. This is a position whose holder is in constant struggle with the ministers, because the ministers cannot do anything, they cannot be promoted, without the consent of the commissioner.
[End of the yeshiva - 10]"
(Minutes of the 12th meeting of the Labor Committee, 3rd Knesset (January 14, 1959), pp. 9-10; emphases added - 10).
- Thus, we have before us an explicit discussion of the proposal Section 6 of the Appointments Law, and in the essence of the role of the Civil Service Commissioner. Various parties participated in this discourse - members of the Labor Committee, the Minister of Justice, as well as representatives of the Civil Service Commission - and it reveals the perception of the relevant parties from real time regarding the nature of the role and the independence of the Civil Service Commissioner.
What can we learn from the "Lost Meeting" about the role of the commissioner?
- First, I would like to discuss what Anonymous You can learn from it. Those present at the meeting held a significant discussion about the purpose of the commissioner's role, but did not mention even once the need for similarity in worldviews or ideological closeness between the commissioner and the government that appoints him. [And to be precise: Mr. Aloni's statement that the Commissioner has a "function on behalf of the Government", was brought in order to describe the areas of responsibility of the Commissioner, in connection with the question of whether a single person or a multi-member committee should be appointed to the position. Based on the full context of the matter, it is clear that it is not possible Seeing this as a confirmation Appointment Commissioner "on Behalf of".]
- In fact, the statements of those present at the committee all converge in one direction - according to which the purpose of the commissioner's position is Inna only to serve as an executive arm of the government, but to a large extent the opposite: the discourse in the committee about the role of the commissioner dealt with the need Raising its prestige of the position of civil service commissioner "and to emphasize its importance" (in the words of the Minister of Justice at the time), in light of "the important and responsible status of the commissioner" (in the words of MK Cohen).
- This purpose corresponds with the general purposes of the Appointments Law, regarding the promotion of professionalism and apolitical in the public service. It should be noted that not only is it consistent with these purposes in principle, but the connection to these purposes also arises from the words of those present at the meeting, who emphasized the need to strengthen the status of the Civil Service Commissioner Vis-à-vis government ministers Specifically. Thus, the Minister of Justice at the time noted that "this is a position whose holder is in constant struggle with the ministers," and MK Riftin stressed the importance of "the entire government appointing the Service Commissioner and not one minister." At the same time, Mr. Arian noted another relevant characteristic, when he referred to the members of the committee serving in a parallel mechanism in the United States (where, according to him, "the Service Commission is similar to ours"), and chose to emphasize specifically that "their independence is guaranteed by law".
[In a parenthetical article, it is interesting to note that the chairman of the Labor Committee, MK Govrin, later expressed criticism of the parallel mechanism in the United States, as to his position Not disconnected enough From the government. This is what MK Govrin noted in a discussion in the plenum ahead of the second and third readings, in response to MK Moshe Kalmer's remarks: "As much as I have studied things, I know that in the United States it is exactly the opposite. When the president leaves, he takes the entire administration with him; This party is going - it takes the entire administration. Are you suggesting that to us?" (D.C. 6.4.1959, 1929).]
- As noted, it seems that the purpose of the commissioner's position radiates in itself to the way of appointment which is chosen by the government In Gadari The exemption from a tender given to it. However, Those present at the meeting did not elaborate on the specific purpose of the exemption from a tender according to the Article 19 to the law. Under the circumstances Therefore, it is worth dwelling on MK Riftin's statement that he "sees it as an obligation for the entire government to appoint the service commissioner and not one minister." This statement, which none of those present at the meeting achieved, is in fact the most direct reference that can be found in the process of enacting the Appointments Law, to the question of the method of appointment of the Civil Service Commissioner.
- MK Riftin's statement is given in my opinion Understand that the legislature considered in real time the possibility of determining that the commissioner would be chosen by one of the government ministers - and consciously chose to reject it. To be precise, these words are given even greater importance in our remembrance, for The Prime Minister is also one of the government ministers. In this context, I will mention that in the mechanism adopted by the government in our case, the prime minister has the power to choose Alone the candidate he wants for the position of commissioner - and this candidate is brought Alone for the approval of the Appointments Committee and later also for members of the government, without giving any of these parties an opportunity to propose an alternative candidate.
- Therefore, this statement by MK Riftin provides support for the argument that my colleague Justice rejected Mintz (in paragraph 65 of his opinion), according to which if the legislature had viewed the position of Commissioner as a personal appointment of the Prime Minister, it is presumed that it would have stated this in the language of the law, as it did in relation to certain other positions. My colleague noted that this argument is inconsistent with "the legislature's intention to allow flexibility in the appointment," and that "the conclusion that it is preferable for the proposing party to be completely external to the appointing body according to the law is very difficult" (ibid.). However, as we have seen, the discussions on Section 6 They do not include support for the intention to allow procedural flexibility, but rather for the intention to fortify the status of the Civil Service Commissioner against the background of the points of friction between him and the government ministers. In these circumstances, however, it is necessary to conclude that the commissioner who will be elected will not be "identified" with a specific minister in the government (including the prime minister), even if that minister does not appoint the commissioner himself, but "only" locates him, interviews him, chooses him, and offers him to the other members of the government as a single candidate, in the sense of take it or leave it. In any case, I do not believe that there is an inherent defect in the fact that the bidder will be "a factor completely external to the appointing entity"; After all, this is how the search committee mechanism works (a mechanism initiated and determined by the government itself), which is still used today to appoint many positions that are exempt from a tender, and it is clear that an external party may possess professional knowledge and familiarity that will help bring in much better candidates than those that the prime minister is able to locate on his own: "Such a search committee convenes relevant professionals with expertise in the matter, who have the power to gather information, create a factual basis, and derive conclusions and recommendations from it."High Court of Justice 5599/11 Tel Aviv Journalists Association v. Government of Israel, paragraph 13 [Nevo] (24.11.2011)).
[Two comments in parentheses:
- My colleague refrained from even explicitly stating that a search committee is the desired law. In light of the above, it seems to me that it is difficult to disagree that in order to choose the most suitable person for the position, it is preferable to a process in which dozens of candidates are examined, rather than a process in which one candidate is examined (who by law is not even required to meet formal threshold conditions). To this must also be added the obvious - a competitive process, by its very nature, "neutralises" to a large extent the political consideration and strengthens the professional-independent aspect of the job.
My colleague noted that "it is hard to imagine that the candidate's professional positions in human capital management are of no importance," and that this is a pertinent consideration (end of paragraph 120 of his opinion). There is no dispute about this and there can be no disagreement, and in my opinion this is an outburst of open doors. Each commissioner is supposed to act, for example, to improve the quality and efficiency of public service; to increase its accessibility and transparency; to improve and empower the human capital of civil servants; to nurture the personal resilience of employees; and to implement technological innovations in order to improve the service.