These committees are the product of decisions made by the government over the years, and they are now used frequently for appointments to various senior positions in the civil service.
- At the center of our case is the appointment process of the Civil Service Commissioner, a position that, according to the provisions of the law, is exempt from the obligation of a tender and whose appointment is vested in the authority of the government. The main question before us is whether the government is entitled to appoint the Civil Service Commissioner through an appointments committee, or whether it must use a competitive appointment mechanism such as a search committee.
- In order to answer this question, it is necessary to first understand the developments that have occurred in the manner of the Commissioner's appointment over the years, since these are at the heart of the parties' arguments. We will then turn to the sequence of events with regard to the government's decision that is the focus of our case, and later we will discuss the main points of the judgment that is the subject of further discussion and the arguments of the parties regarding it.
Appointment of the Civil Service Commissioner
The position of Civil Service Commissioner is, as stated, one of those positions for which the Appointments Law provides a statutory exemption from a tender. Section 6 of the Law instructs in this regard:
The Government will appoint a Civil Service Commissioner (hereinafter - the Service Commissioner); his appointment will not be subject to the tender obligation under Section 19 and notice of the appointment will be published in the Official Gazette.
Over the years and until the date of filing the petitions that are the subject of the judgment, the Government of Israel exercised its authority under Section 6 The Appointments Law has about 20 times. Most of them are for permanent appointments and a few for temporary appointments.
- During the first decades following the enactment of the Appointments Law, the Commissioner's appointments were made through direct election of the Israeli government. In 1993, for the first time, the government decided to seek the assistance of a special committee established by it, in order to obtain its opinion on the qualifications and suitability of the candidate who was being examined at the time for the position of commissioner, Prof. Yitzhak Galnoor (Resolution 1596 of the 25th Government, "Appointment of a special committee by virtue of the authority under section 6 of the Civil Service Law (Appointments) - Civil Service Commissioner" (July 18, 1993)). A similar committee was also established in the framework of the subsequent commissioner appointment process, in 1996, for the purpose of examining the suitability of Adv. Shmuel Hollander for the position (Decision 14 of the 27th Government "Appointment of a Special Committee for the Provision of an Opinion on the Appointment of Adv. Shmuel Hollander to the Position of Civil Service Commissioner" (June 20, 1996)).
- In 1999, the Government decided to regulate the manner of appointment of positions exempt from a tender whose appointment is given to it or requires its approval, including the position of Commissioner (Resolution 345 of the 28th Government, "Positions for which the appointment was made by the Government or with its approval - exemption from a tender in accordance with Section 21 of the Civil Service (Appointments) Law, 5719-1959" (September 14, 1999) (hereinafter: Resolution 345)). Due to the importance of this decision, we will discuss its main components below.
First, the government decided to make use of its authority In the section 21 to the law and exempt from a tender a number of senior positions in the civil service (in addition to positions that were dismissed by it from a tender in the past by virtue of its aforesaid authority). In the decision, these positions were divided into two categories: first, "the most senior positions in the civil service, whose subjects are responsible for the implementation and implementation of government policy, and therefore require a high degree of trust and coordination between the holders of such positions and the members of the government" (these positions will be referred to hereinafter: Policy Execution Jobs); The second is senior positions in which the implementation of ministerial and government policy is not the dominant characteristic of the position, and they are one of two types - "jobs characterized by a clear professional or scientific aspect" or "positions of a regulatory nature, in which the subject is responsible for safeguarding the public interest in a defined area, and therefore requires a great degree of independence and professional independence" (these positions will be referred to hereinafter: Professional and Regulatory Jobs).