Naturally, however, the basic purpose of any mechanism for appointing a commissioner, at all times, is to select the most suitable person for this position; The weight of this purpose does not change according to the state of the public service in one period or another. In the meantime, the legislature is presumed to have this purpose in mind when it enacted the Section 6 to the Appointments Law, with the provision of exemption from a tender therein; and that it was this purpose that was at the basis of the procedures for the appointment of a commissioner established by successive Israeli governments (procedures that were not competitive). I therefore do not believe that the state of the public service today is relevant to the argument that the most suitable person for the position of commissioner should be chosen.
- Thus, it appears that, in practice, the argument in question means that a competitive appointment mechanism will to the greatest extent fulfill the purpose of selecting the most suitable person for the position of Commissioner; and that therefore, an appointment mechanism that is not competitive is extremely unreasonable.
However, we must remember that it is not up to us to determine the best way to choose the most suitable person for the position of commissioner. Our role as a court is to decide the question of whether the appointed appointment mechanism is consistent with the provisions of the law, including Section 6 to the Appointments Law and the Rules of Administrative Law. As you know, "The court does not examine the wisdom or effectiveness of the decision; He will not replace the discretion of the authority with his own judgment; And even if he had decided otherwise if he had been in the shoes of the authority, he would not change its decision as long as it did not have a flaw in the level of legality that establishes grounds for intervention in the administrative act" (High Court of Justice 6274/11 Delek the Israeli Fuel Company in the Appeal Taxes v. Minister of Finance, verse 11 [Nevo] (November 26, 2012)). Therefore, even if the court is of the opinion that, taking into account the characteristics of the position of the Commissioner, the proper way to appoint him is through a competitive proceeding, this does not lead to the conclusion that this is what the law instructs.