The Relevant Considerations for Exercising the Government's Authority under Section 6 of the Appointments Law
- As is well known, the relevant considerations for exercising administrative authority are determined in accordance with the purpose of the authorizing legislation; A consideration that is inconsistent with the objectives of the authorizing law is an extraneous consideration, which should not be taken into account in the exercise of the authority (See, among many: High Court of Justice 5016/96 Horev v. Minister of Transport, paragraph 48 of the President's judgment A. Barak [Nevo] (13.4.1997); High Court of Justice 953/87 Poraz v. Mayor of Tel Aviv-Yafo, verse 18 [Nevo] (23.5.1988)).
- In our case, as stated, the provision that authorizes the government to appoint a commissioner, and to determine the mechanism for his appointment, is fixed In the section 6 of the Appointments Law, according to which "the government shall appoint a civil service commissioner [...] His appointment will not be subject to the tender obligation under section 19 [...]." If so, the question is whether it is possible to take into account the considerations of a "conceptual worldview" for the purpose of exercising the government's authority according to Section 6 The law, or is it a matter of extraneous considerations, is intrinsically connected to the question of the purposes of this section.
- As stated, in the judgment that is the subject of the additional hearing, it was determined that in order to exercise the government's authority to appoint a commissioner and to determine the mechanism for his appointment, only "considerations of Professionalism (i.e., skills and suitability for the position); and considerations of Independence and apolitical" (in paragraph 36 of the President's judgment). These considerations were derived there from two sources: "the purpose of the Appointments Law and the nature of the Commissioner's role"; It was emphasized that these sources "deline[t] the set of relevant considerations that must be taken into account when appointing the Commissioner and determining the procedure for his appointment" (ibid.).
- Thus, in the judgment that is the subject of the additional hearing, the concrete purpose of the Section 6 to the law from the list of relevant sources for determining the relevant considerations for exercising the government's authority under this section. Admittedly, the general purpose of the Appointments Law, as well as the essence of the role of the Civil Service Commissioner, reflect on the concrete purpose of the Section 6 to the law. However, in order to understand this purpose, we must examine, First and foremostThe language of the section and try to trace its concrete purpose through it, since "the language of the legislation is an important and central source for the purpose of the legislation" (see: Aharon Barak). Interpretation in a sentence - Interpretation of legislation, 303 (1993) (hereinafter: Lightning)). In particular, given that Section 6 The law states, as stated, that the appointment of the commissioner is exempt from the obligation of a tender (hereinafter also: The Tender Exemption Provision), so we must understand the purpose of this provision.
- In this context, I will emphasize that in my opinion, the question that requires a decision in our case is not whether the provision of exemption from a tender In the section 6 The law exempts the government from any competitive process for the purpose of appointing a commissioner. Rather, the question is what is the purpose of the exemption provision from a tender set forth in the section; What are the considerations that derive from it; and whether they include considerations of "conceptual worldview." If the answer to the last question is yes, then such considerations can be taken into account both in the framework of a competitive appointment process and in the framework of a non-competitive appointment process; And if the answer to this is no, then they should not be taken into account for the purpose of appointing a commissioner, whatever the procedure for appointing him.
The purpose of the provision of the exemption from a tender in section 6 of the Law
- In his judgment in the present proceeding, my colleague the President relates, for the first time, to the purpose of the provision of exemption from a tender In the section 6 to the Appointments Law. According to him, this provision was established because tenders under the law are managed by the Commissioner or anyone on his behalf, so that a difficulty arises in holding a tender under the Law for the purpose of appointing the Commissioner (in paragraph 18 of his judgment; see also paragraph 7 of the judgment of my colleague, the judge Barak-Erezin the judgment that is the subject of the additional hearing). The said purpose is, therefore, technical in nature, and in any case it appears that according to this approach, the provision of exemption from a tender does not derive from a material purpose, from which material considerations that can be taken into account in the framework of the appointment of the Commissioner or in determining the mechanism for his appointment are derived. My opinion on this matter is different.
- I do not believe that the exemption provision from a tender In the section 6 The law was instructed for a technical purpose, related to the fact that the commissioner is entrusted with managing the tenders in accordance with the law. In my opinion, precisely in view of the centrality of the tender institution within the framework of the Appointments Law, it can be assumed that an explicit exemption from the tender obligation granted in the framework of the Law for a certain position is rooted in a material purpose, which is connected to the material purposes of the tender institution under the Appointments Law, and with the general purposes of this Law. As I will show below, I am of the opinion that this assumption exists in our case.
- This court has more than once discussed the purpose of the Appointments Law. In the meantime, it has already been ruled that "The main purpose of the law is to ensure that appointments in the civil service are made according to criteria of qualifications and suitability for the position, and are not motivated by motives of political affiliation or other irrelevant considerations" (High Court of Justice 5657/09 The Movement for Quality Government in Israel v. The Government of Israel, verse 14 [Nevo] (24.11.2009)). Against the background of this purpose, it is not for nothing that it was emphasized that "Instruction Article 19 The Appointments Law, which requires the admission of employees to the civil service through a tender, is the crowning glory of the law, which embodies its main purpose." (High Court of Justice 154/98 The New General Workers' Union v. State of Israel, IsrSC 52(5) 111, 123 (1998) (hereinafter: the Einstein)).
- However, despite the importance of the tender process, certain sections of the Appointments Law set out provisions for exemption from a tender. Thus, Section 21 This law authorizes the government, according to the proposal of the Civil Service Committee, "to determine jobs and types of jobs to which the tender obligation stated in section 19 will not apply, under the conditions it determines." Thus it was determined in the case law with respect to the purpose of this section:
"The mechanism in section 21, which stipulates that an exemption from a tender by the government will be, according to the service committee's proposal , a balance between the need to provide the government with an appropriate tool to realize its policy by means of appointments without a tender, and the need to refrain from political appointments or other improper appointments. He promises that a position will be added to the list due to the considerations of the position and not due to the considerations of the candidate for the position. It creates a system of checks and balances that maintain the rules of proper administration" (Einstein, at p. 128, emphases added; See, for example, High Court of Justice 7402/11 The Movement for Quality Government v. Prime Minister of Israel, para. 10 [Nevo] (January 4, 2012)).