[In parentheses: The government's counsel pondered before us whether the growing phenomenon of exemptions from a tender is negative. The answer to this reflection is a resounding "yes." A mass of jobs exempt from a tender in the public service is a negative phenomenon that should not be "normalized". It contradicts the legislature's determination that the tender is the way to make appointments to the public service; It contradicts basic concepts regarding the public service in Israel, which is supposed to be free of political considerations ( Einstein, at pp. 118-122); and it also contradicts the recommendations of the committee headed by Judge (Ret.) M. Ben-Dror Since 1994, according to which the number of positions exempt from a tender should be reduced].
When we have discussed the relevant relevant considerations, and the question of the relevance of the judgment in a High Court of Justice case 2699/11 [Nevo] - It is possible to proceed with the examination of the government's decision on its merits.
The Conditions for Establishing the Cause of Action for Foreign Considerations
- I will open this section with further clarification regarding the boundaries of the discussion and the boundaries of the dispute. My colleague the judge Mintz reviews the various factual data detailed in the judgment in the petitions - including previous government decisions and the positions of various administrative bodies - and notes in this context: "I do not believe at all that the same government decisions and the positions of the administrative bodies on which the respondents pointed out Obligatory the government to conduct a competitive process" (in paragraph 79 of his opinion; emphasis in the original - 11) (and see also paragraph 90, where my colleague notes: "From here to the conclusion that from those decisions it appears that the government has assumed a duty to appoint the commissioner in a competitive appointment process, the distance is great").
- Against this background, it seems to me that it is appropriate to sharpen the question under discussion. I agree with my colleague that none of the factual data reviewed in my judgment establishes In and of itself, an explicit obligation on the part of the government to take a competitive procedure for the appointment of the Commissioner. In my judgment it was not even stated otherwise. It is therefore important to clarify: the factual circumstances that I detailed in my judgment are intended to illustrate, Cumulatively, the conditions for the existence of a cause for administrative intervention, focusing on the two-stage test established in this context in case law.
- It is also worth emphasizing: Considerations Strangers are not necessarily considerations Bad guys. The term "extraneous considerations" refers in administrative law to any consideration that is outside the set of relevant considerations in light of which the authority is authorized (and required) to act - even if it is a consideration that, in another context, might have been positive or appropriate. Indeed, as emphasized in the literature: "The authority must not take into account other considerations, even if it believes in good faith that doing so will serve the public interest" (Yitzhak Zamir Administrative authority Volume 5 - Grounds for Judicial Review 3494 (2020); See also Dafna Barak-Erez Administrative Law Volume 2 637 (2010): "Sometimes, the authority's motives are good and pure, in the sense that it strives to carry out an action for the benefit of the public. However, it does so on the basis of considerations that it is not authorized to consider. A distinction must be made between an improper motive and an extraneous consideration, and it is important to emphasize that sometimes a positive and desirable consideration, in and of itself, may also be disqualified").
- In our case, I will assume that the position presented by the Government in the proceedings before us reflects its honest understanding of the nature of the role of the Commissioner. However, as detailed at length, the government's approach is inconsistent with the purpose of the Section 6 to the Appointments Law and the intention of the legislature in this context - and not even with the manner in which the case law relates to the role of the Civil Service Commissioner (in this regard, see paragraph 4 of the judgment in the petitions).
- Thus, a preliminary stage for examining the existence of extraneous considerations is to understand the spectrum of considerations The Practical In light of which the Authority is required to act. Subsequently, I emphasized in the judgment various factual facts from recent years, mainly in order to strengthen the importance of the relevant considerations that I discussed, and which justified in my approach a reconsideration of the judgment In a High Court of Justice case 2699/11 [Nevo]. Thus, for example, with regard to the dismal data regarding the functioning of the public service, from which I concluded that "Growing Importance that in the appointment of a commissioner with proven skills, abilities and experience, who has the power (or the power) to initiate real changes in the functioning of the public service - including changes that are not necessarily in line with the political interests of elected officials" (in paragraph 59 of my opinion; Emphasis added - 11).
The same is true of what is stated in government decisions and documents on behalf of various administrative bodies, from which - as I noted - there is "the need to anchor procedural guarantees for maintaining the independence of senior officials for whom independence is a necessary component of their position, as well as recognition of the advantages that derive in this context from the conduct of a competitive appointment process" (at paragraph 57 of my judgment). [In parentheses: Regarding Government Decision 345, that my colleague Justice Mintz Discussing the question of whether it is intended to express a normative position or just to "photograph" the existing situation - I will suffice with a reference to clause 2(a) of that decision, in which the mechanism for appointment to the position of Commissioner was detailed, in which it was stated: "For the avoidance of doubt, it should be clarified that the positions as below were lawfully exempted from the tender obligation, in accordance with explicit provisions of the law as indicated next to each position, This decision does not change the existing situation in relation to them(emphasis added - 11)].
- I have also learned about the increased importance of considerations regarding the professionalism and apolitical nature of the public service, from factual circumstances related to the conduct of the government itself. Based on these circumstances, I noted that "The law must adapt itself to the changing reality, and immeasurably strengthened The need to establish real guarantees to protect the independent, state, and apolitical purpose of the position of civil service commissioner, in the face of attempts by the political echelon to undermine it and infiltrate political considerations into the ranks of the state public service" (in paragraph 62 of my judgment; Emphasis added - 11).
- To this last point, my colleague Justice responds Mintz He noted: "With regard to the reference to 'the conduct of the government itself,' I will say and will not add that this is a consideration that is not of the essence" (in paragraph 105 of his opinion). With all due respect, I found it difficult to understand this position of my friend. How can we discuss the question of whether a particular administrative decision was based solely on substantive considerations, if not by examining the concrete conduct of the administrative authority that made the decision? It is not for nothing that it was ruled that "sometimes it is possible to use statistical or circumstantial evidence that can point to the consideration of extraneous considerations, and even 'external defects that may attest to extraneous or improper considerations of the administrative authority'" (Matter United Torah Judaism, at paragraph 49).
- In any event, as I noted at the beginning of this section, the question under discussion Inna If the various factual indications establishe, Each one separately, an explicit obligation of the government to adopt a specifically competitive appointment procedure. The question we must decide is whether the concrete administrative decision on the agenda - Government Resolution 2344 - was made while giving weight to all the relevant relevant considerations, and only to them.
As explained in my judgment in the petitions, the case law outlined a two-stage test for examining the grounds for foreign considerations. According to this test, "if the petitioner raises a real doubt regarding the authority's considerations - and in this regard it is even possible to use circumstantial evidence - the burden can be shifted to the authority to prove that it did not consider but rather relevant considerations" (AAA 2638/20 Sustainable Association for Culture, Art, Music v. Mayor of Jerusalem, paragraph 2 of the judge's judgment A. Fogelman [Nevo] (6.9.2020)).
- Even now, I am of the opinion that sufficient indications have been placed before us in order to pass the first stage of the case law test. I will discuss them again:
(-) The government has chosen an appointment mechanism that is subject to decisive influence by the political echelon, and by the Prime Minister in particular. As may be recalled, according to the mechanism on the agenda, it is the Prime Minister who chooses a single candidate on his behalf, who is transferred to a special appointments committee whose members the Prime Minister is directly or indirectly entrusted with appointing most of its members: the chairman of the committee is appointed by the government itself, and alongside him are two public representatives from a list appointed by the Prime Minister, in consultation with the Civil Service Commissioner (where at the present time it is the Acting Commissioner, who was also elected by the Prime Minister) and the Attorney General. [And it is not superfluous to reiterate in this context MK Riftin's statement at a meeting of the Labor Committee on January 14, 1959: "I see this as an obligation that the entire government appoint the Service Commissioner and not a single minister."]