And I will emphasize again - in this conclusion I do not express a position on the question of the proper relative weight of such considerations out of the sum of the relevant considerations, first and foremost considerations of professionalism, independence and lack of political affiliation. As stated above, the discussion of this question is not done within the framework of the ground of extraneous considerations.
- In view of all of the above, I am of the opinion that the arguments that were raised in relation to the cause of the foreign considerations do not obligate the government to conduct a competitive process for the appointment of the Civil Service Commissioner.
Likelihood
- As stated, in the judgment that is the subject of the additional hearing, it was determined that the government should be obligated to appoint the commissioner in a competitive proceeding, also by virtue of the grounds of reasonableness. It appears that this determination was based on the following reasons: the appointment mechanism established in Resolution 2344 relies "on political-ideological reasons as a decisive and even exclusive basis for the appointment of the Commissioner"; and ignores the consideration concerned with the independent and apolitical nature of the position of the Commissioner, as well as the current state of the public service (in paragraphs 69-70 of the President's judgment).
- At the outset, it should be noted that the aforementioned determination, on which the aforementioned reasons are based, is not limited to the conclusion that Resolution 2344 should be cancelled due to extreme unreasonableness. Rather, the conclusion deriving from the aforesaid determination is that any procedure for the appointment of a commissioner, which is not a competitive proceeding, is extremely unreasonable. In other words, within the realm of reasonableness of the procedures for appointing a commissioner, there are only competitive mechanisms.
As I will show below, I am unable to accept the reasons under discussion, and in any case I do not believe that they are sufficient to establish the above conclusion.
- As stated above, Resolution 2344 states that the Commissioner shall be elected through the mechanism of the Appointments Committee; This type of committee examines the candidate for the position of commissioner according to criteria concerning Professional Competence, Purity of Virtue and a lack of political affiliation. In the meantime, the Special Appointments Committee was established for the purpose of appointing the outgoing Commissioner (hereinafter: Efrati Committee) has formulated concrete criteria, which are intended to examine the suitability of candidates for the position of Commissioner in the aforementioned aspects. Thus, the mechanism for appointing a commissioner set out in Resolution 2344 gives weight, by definition, to considerations concerning the candidate's professionalism and the apolitical nature of the commissioner's position. In view of the above, it is difficult to determine that this mechanism is based on Exclusively Either decides "on political-ideological grounds," or ignores the consideration regarding the independent and apolitical nature of the position of commissioner.
- It should be emphasized that the purpose of the proceeding at hand is not the argument that the criteria set by the Efrati Committee for the examination of the suitability of candidates for the position of Commissioner should be stringent, in order to increase the weight of this or that consideration in the framework of the appointment process. Instead, the argument in our case, according to which the government should be obligated to conduct a competitive procedure for the appointment of the commissioner by virtue of the grounds of reasonableness, assumes, as aforesaid, that any proceeding that is not competitive is extremely unreasonable, without addressing the question of the weight given in the proceeding to considerations of professionalism and apoliticalness.
- In addition, I am of the opinion that there is a difficulty in the argument that the appointment mechanism that was determined is extremely unreasonable, in view of the current state of the public service; This is even if I accept the argument that the current state of the public service is not one of the improved.
This argument seems to be based on the assertion that "the complex state of the public service emphasizes the need to choose the person Best Fit to the position of commissioner. It is difficult to see how this purpose is achieved through a non-competitive appointment process" (at paragraph 59 of the President's judgment in the judgment that is the subject of further discussion).