"Sometimes it is possible to overcome the presumption of legality - from which the authority's action benefits and by virtue of which the burden is placed on the petitioner to prove his claim regarding improper political considerations - by means of objective data that may ostensibly indicate an improper political consideration [...]. Thus, for example, a hasty decision without prior consultation, without examining the alternatives, without examination and research, without objective data attesting to kashrut, may confirm a circumstantial context that, in appropriate cases, can point to an improper consideration, and therefore may transfer the burden of bringing the evidence to the governmental authority" (High Court of Justice 1745/91 ICS). Israel Cable Systems in Tax Appeal v. Cable Broadcasting Council, para. 6 [Nevo] (May 14, 1991)).
I will also mention that the beginning of the saga before us is the government's decision to carry out the appointment by means of Advisory Committee, and it is not for nothing that the Attorney General determined that there is a legal impediment to taking this approach. This attempt by the government, which was clear on the face of it that it was not the appropriate way to make the appointment, also undermines and radiates the presumption of propriety of the appointment process.
- I will summarize our approach so far: The relevant considerations regarding the determination of the mechanism for the appointment of the Civil Service Commissioner deal mainly with In ensuring the professionalism and apolitical nature of the public service, as well as in preserving the status and independence of the Civil Service Commissioner in particular. These considerations are given increased importance in light of events The period, including the government's declared attempts to promote political appointments in the public service. The government's decision, which is currently under review, establishes a mechanism that gives decisive influence to the political echelon, and especially to the prime minister; that does not include guarantees that the candidate who will be brought before the special appointments committee will meet the high standard of professionalism required; and that it does not establish special reasoning or transparency obligations in order to enable comparison between the selected candidate and other potential candidates. This mechanism was chosen by the government without documentation of a substantive discourse that would reveal the considerations that led to it; and without any real confrontation with the opposing position expressed in the opinion of the legal advisors. These deficiencies remained even after the petitions were filed on the matter, and on the other hand, the government's counsel pointed out to us, on a number of different occasions, considerations that are not They come within the range of relevant considerations that need to be addressed.
In these circumstances, I was persuaded that There is a real doubt that the government's decision did not stem from Only Due to considerations regarding the professionalism and independence of the Civil Service Commissioner. At the same time, it seems that the weight given by the government to the consideration regarding the preservation of the status and independence of the commissioner - a consideration that received significant weight in the legislative process Section 6 The Appointments Law was negligible, If at all.
- Therefore, we must move on to the second stage of the case law test on the grounds of extraneous considerations - in which the burden of proof is placed on the shoulders of the administrative authority. However, as I noted in the judgment that is the subject of further discussion, at this stage we are left with "without objective support regarding the advantages of the mechanism chosen in Resolution 2344, and without convincing explanations on behalf of the government respondents regarding the relevance of the considerations that led them to choose this mechanism." (in paragraph 70 of my judgment). Therefore, there is no escaping the conclusion that the government has not been able to lift the burden of proof that has been transferred to it.
- Therefore, I believed, and still believe, that the appointing mechanism that has now been put before us for examination cannot stand. This is whether from the perspective of the cause of action for extraneous considerations (and the failure to lift the burden of proof), or from the perspective of the cause of reasonableness. Another approach, which allows for the "infiltration" of identification or worldview considerations into the process of appointing a civil service commissioner, paves the way in the practical-consequential sense for the penetration of extraneous considerations into the appointment itself.
Before Conclusion
- The court is not an entomologist who examines the dragonfly's wing through the microscope, while around it the storm is knocking on the doors. It is not enough to insist on and recognize the importance of the role of the Civil Service Commissioner, without the court assessing the result and significance The practical of his decision and without looking at the general picture on his desk.
- In the past, the prime minister was the first among equals, but following changes in the Basic Law: The Government, the power of the prime minister in Israel is almost unlimited - he appoints ministers and divides the various ministries among them according to his discretion; it is the one who dismisses ministers (for example, the dismissal of the defense minister in the midst of a war); at will, he assigns special tasks to ministers; at will, he exchanges chairs between ministers; If he wishes, he transfers units from one office to another; And he smuggled the Middle East through a series of appointments such as the head of the Mossad, the head of the Shin Bet, the head of the National Security Council, ambassadors to various countries, and more. In practice, a great deal of power is channeled into the prime minister, who outlines the direction of the government, which in turn controls the Knesset and a series of bodies and institutions such as the IDF, the police, and local authorities.
- The appointment of the Civil Service Commissioner through an appointments committee means that the Prime Minister is able to choose, directly, the Civil Service Commissioner, who serves as the balance sheet in search committees for positions and key positions in the public service, and who has a lot of weight in the appointments and dismissals of public servants.
The Civil Service Commissioner is in charge of the human capital of the civil service, and this capital belongs to all of us, to each and every citizen of the state. However, the result reached by my colleagues also entrusts the human capital of the civil service to the prime minister, which further intensifies the concentration of power of the entire executive branch - which, as noted, also controls the legislative branch. This is not a show of separation of powers before us, as my colleague Justice believes MintzRather, it is a manifestation of the over-empowerment of the power of the executive branch, and more precisely, the power of the prime minister, whoever he may be. To borrow from the words of my colleague the Vice President (Noam Sohlberg, "From Mutual Containment to Decentralization" Shipping 43 (2025)): Not the Diffusion and Decentralization of Power Before Us - Rather, it is his concentration.
- The Appointments Committee gives the Prime Minister Absolute de facto control about the appointment, as the person who chooses in advance the only candidate who is presented to the Appointments Committee and later to the government. If the qualifications of the first candidate proposed by the prime minister are so far from the threshold, the prime minister will always be able to choose another candidate (this is what actually happened in the "previous round", when the candidate proposed by the prime minister was disqualified by the appointments committee and then the current commissioner was recommended). However, over the years, it has become clear that the format of the appointment by the Appointments Committee is inappropriate and does not coincide with the characteristics of the position. What is good for the Tax Authority and the Competition Authority and the Israel Lands Authority is good for the Civil Service Commissioner.
From another angle, the government's insistence on the advisory committee, and later on on the appointments committee, raises the concern that it is not the commissioner's duty of loyalty to the public that is at the top of its agenda, but rather the degree of the prime minister's personal trust in the commissioner. In this context, I will quote the words of former Civil Service Commissioner Yitzhak Galnoor, who described a meeting he held in 1996 with Prime Minister Benjamin Netanyahu - against the background of the events in the affair Galnoor (which dealt with the lightning dismissal of Commissioner Galnor) - and advice he gave to the Prime Minister at the time: