| Yitzhak Amit
President |
Judge Yael Willner:
- The question that needs to be decided in our case is whether the government should be obligated to appoint the Civil Service Commissioner in a competitive proceeding. My friends, President Y. Amit and the judge D. Barak-Erez, are of the opinion that in view of the rules of administrative law, this question should be answered in the affirmative.
My opinion is different.
I am of the opinion that in view of the language of the Section 6 of the Civil Service Law (Appointments), 5719-1959 (hereinafter: The Appointments Law or The Law) and its purpose, administrative law does not establish A must The government must appoint the Civil Service Commissioner (hereinafter also: The Commissioner) in a competitive proceeding; and that therefore, the judgment of this court should be set aside In a High Court of Justice case 37830-08-24 [Nevo] As of May 12, 2025 (hereinafter: The judgment that is the subject of the additional hearing or The Judgmentand to leave in place the decision of the government in question (hereinafter also: Resolution 2344), as my colleague, the judge, held D. Mintz.
Rules of Administrative Law
- At the basis of the obligation imposed on the government in the judgment that is the subject of the additional hearing to appoint the Commissioner in a competitive proceeding, there were, in essence, four grounds of administrative law: extraneous considerations, reasonableness, conflict of interest, and equality. I will show below why I do not believe that the arguments that were made on the basis of these grounds are sufficient to establish such an obligation.
Extraneous considerations
- As detailed in the opinion of my colleagues, and as I will detail later, Resolution 2344 stipulates that the Civil Service Commissioner will be appointed through a mechanism in which the government selects a candidate for the position, and his appointment is conditional on the approval of the Appointments Committee, which examines his qualifications on the basis of parameters of Professionalism, Purity of Virtue and lack of political affiliation.
- In the judgment that is the subject of the additional hearing, it was determined that this mechanism is tainted by extraneous considerations. It was emphasized there that the aforementioned mechanism allows the government to take into account considerations concerning "Conceptual worldview", since it is the government that chooses the candidate for the position; It was held that considerations of this kind are not part of the considerations that the government is entitled to consider for the purpose of appointing a civil service commissioner (para. 87 of the judgment of my colleague, the President). Associate). This is because the relevant considerations regarding this appointment are Exclusively "Considerations of Professionalism (i.e., skills and suitability for the position); and considerations of Independence and apolitical [...] only these considerations" (para. 36 of the President's judgment, emphases in original).
[I will note at this point that these considerations of a "conceptual worldview" have been given different names in the opinions of my colleagues. Thus, in the judgment that was the subject of the additional hearing, my colleague, the Vice-President, used Solberg, in the term "ideological-professional closeness" (e.g., in paragraph 26 of his judgment). My colleague the judge Mintz describes these considerations as "relating to the candidate's ability Professionally To implement the policy to which [the government] is directing with regard to the management of human capital and the public service, and his views on the implementation of this policy" (at para. 120 of his judgment); and my colleague the President, Associate Also referred to "Considerations Political-IdeologicalHe explained that their interest is "in choosing a candidate who holds a worldview similar to that of the appointing authority (who himself belongs to the political echelon), on the assumption that this will assist in the implementation of the policy set by the political echelon" (at para. 40 of his judgment). It seems that, in essence, my colleagues have used different nicknames to describe the same type of considerations. Later in my opinion, I will refer to these considerations on their merits, but at this stage, for the sake of convenience, I will refer to them below as considerations "Conceptual worldview"].
- As noted, Resolution 2344 anchored the mechanism for the appointment of the Civil Service Commissioner, but it did not determine the identity of the elected Commissioner. The questioner, therefore, may ask, how was Resolution 2344 invalidated due to extraneous considerations, if a commissioner had not yet been elected by virtue of it, and in any case considerations for the selection of a commissioner had not yet been considered in practice? In the judgment that is the subject of the additional hearing, my colleague the President explains that with regard to the foreign considerations, "the defect that occurred in Resolution 2344 concerns the appointment process in principle, and not only with the probable outcome of the proceeding in relation to the Commissioner or the next Commissioners", since the appointment mechanism that was established "creates a fertile ground" for considering extraneous considerations of the type in question (in paragraph 71 of his judgment).
Thus, in essence, in the judgment that is the subject of the additional hearing, it was determined that Resolution 2344 is tainted by extraneous considerations, because the mechanism for appointing a commissioner established in the framework thereof allows, by its nature, to take into account extraneous considerations that concern a "conceptual worldview".
- As I will explain below, I believe that in light of the Section 6 In the Appointments Law and its purpose, considerations of a "conceptual worldview" are not alien to the appointment of a civil service commissioner (this is without expressing a position on the question of their proper weight out of the sum of the relevant considerations, which is not discussed in the framework of the ground for foreign considerations).
- At the same time, I will first open and clarify below that this conclusion of mine is beyond necessity. This is because even if I had assumed, for the purpose of the hearing only, that the aforementioned considerations were alien to the appointment of the Commissioner, in a manner that impaired the mechanism set out in Resolution 2344, this would not have led to the acceptance of the petitions that are the subject of the judgment, in the sense of obliging the government to conduct a competitive process for the selection of the Commissioner, in the absence of a rational connection between this remedy and the alleged defect.
The Possibility of Considering "Conceptual Worldview" Considerations in a Competitive Proceeding
- As stated, in the judgment that is the subject of the additional hearing, the government was obligated to appoint the commissioner in a competitive proceeding, and in any event, Resolution 2344 was invalidated, on the grounds that the appointment mechanism that was anchored in it allows consideration of considerations concerning a "conceptual worldview". However, as I will show below, even a competitive process for the appointment of the Commissioner is expected to suffer from the same flaw for which Resolution 2344 was disqualified, so that there is no rational connection between the alleged defect and the relief granted.
- Section 6 The Appointments Law, which is the focus of our discussion, states as follows:
The Government will appoint a Civil Service Commissioner (hereinafter - the Service Commissioner); his appointment will not be subject to the tender obligation in accordance with Section 19 and a notice of the appointment will be published in the Official Gazette.
- The judgment that is the subject of the additional hearing, which, as aforesaid, obligates the government to appoint the Commissioner in a competitive proceeding, is based on the determination that the provision of exemption from the permanent tender In the section 6 The law does not grant the government an exemption from competitive proceedings as a whole. As detailed in the judgment of my colleague the President, in recent decades Israeli governments have been assisted by three main types of committees in all matters relating to the appointment of senior officials with an exemption from a tender: the Advisory Committee for Appointments to Senior Positions; Appointments Committee; A search committee. Of the three, only a search committee conducts a competitive process (see: ibid., at para. 8).
- If so, let's assume that the government were to establish a competitive mechanism for a search committee for the appointment of the civil service commissioner; that within the framework of this mechanism, the search committee would examine dozens of potential candidates, and submit to the government a list of ten candidates who meet the relevant criteria to the greatest extent - of professionalism, independence and lack of political affiliation; and that the government would have chosen the commissioner from this list. It seems that the mechanism Competitive This, naturally, creates fertile ground for consideration of "conceptual worldview" considerations, since the government may base its selection of a candidate from the list on these considerations exclusively.
It should be emphasized: In practice, it seems that this state of affairs is true for any competitive process, at the end of which the government must choose the candidate it deems desirable from a list of candidates that were filtered as part of the process. It therefore appears that the only competitive procedure that will not be affected by the alleged defect is embodied in a mechanism that ends with the submission of a candidate Single for government approval. However, this type of mechanism is in tension with the Section 6 to the Appointments Law, according to which "The government will appoint the Civil Service Commissioner [...]", since it has the potential to transform the government from an entity to a mere approving body. Moreover, it can be argued that even such a mechanism suffers from the alleged flaw, since the government may base its decision on whether or not to approve the candidate, solely on considerations of "conceptual worldview."
- In view of the foregoing, I am of the opinion that the argument that considerations of a "conceptual worldview" are alien to the appointment of the Civil Service Commissioner does not justify the obligation of the Government to conduct a competitive process for the selection of the Commissioner; This is because this proceeding does not preclude consideration of "conceptual worldview" considerations, and in any case there is no rational connection between the alleged defect and the relief sought in the petition.
However, and in the context of more than necessary, I will explain below why I do not believe that considerations of "conceptual worldview" are foreign to the appointment of the Commissioner.