Therefore, I do not believe that the argument regarding the state of the public service today, and the desire to appoint the most suitable person for the position of commissioner, necessarily lead to the conclusion that any process for appointing a commissioner that is not competitive is extremely unreasonable.
- The aforesaid, therefore, is sufficient to lead to the conclusion that the arguments relating to the cause of reasonableness do not justify the granting of relief concerning the obligation of the government to conduct a competitive process for the selection of the Civil Service Commissioner.
- However, it is extremely difficult not to mention in this context the judgment of this Court In a High Court of Justice case 2699/11 The Movement for Quality Government v. The Government of Israel [Nevo] (May 17, 2011) (hereinafter: High Court of Justice 2699/11) [Nevo], which was given following a petition in which the court was asked - as in our case - to determine that the Civil Service Commissioner should be appointed through a competitive process of a search committee. It was held as follows:
"It cannot be said that an appointment by way of an appointments committee exceeds the realm of reasonableness. The Appointments Committee is not an idle committee. Its role is to examine the candidate's qualifications and suitability for the position. In doing so, the Committee seeks to ensure that the appointment of the Civil Service Commissioner is made for practical considerations, and not for political considerations of one kind or another. It cannot be said that 'sufficiency' in such a committee, as stated, beyond what is required by law, is unreasonable" (at para. 7; The emphases are not in the original).
These correct words speak for themselves, and their power is also good in our case; As is well known, this court must exercise great restraint and caution with regard to deviating from its precedents, inter alia, in view of the implications for the stability of the trial (see, for example: High Court of Justice 5988/21 Anonymous vs. Anonymous, verse 78 [Nevo] (19.2.2025)).
- Admittedly, in the judgment that is the subject of the additional hearing, it was determined that a distinction must be made between our case and the circumstances underlying the judgment in-High Court of Justice 2699/11: [Nevo] There, a remedy was requested whereby the Commissioner would be appointed by means of a search committee, whereas in our case it was requested that the Commissioner be appointed in some competitive proceeding; And there was a quasi-competitive process, in which a search team examined about 150 candidates for the position of commissioner, while in our case no competitive process was conducted.
However, I do not believe that these distinctions justify a different result. First, it is doubtful in my opinion whether the difference between a competitive proceeding that includes a search committee, and a competitive proceeding in general, which is not a tender, embodies a material distinction. As detailed above, Israeli governments are assisted by three main types of committees for the purpose of appointment to senior positions with an exemption from a tender: the Advisory Committee for Appointments to Senior Positions; Appointments Committee; Search Committee - of which only a search committee conducts a competitive process. Second, it is not clear that weight should be given to the fact behind the judgment In a High Court of Justice case 2699/11 [Nevo] A "search team" operated, when this fact was not mentioned at all in the said judgment and therefore did not constitute a basis for the decision; All the more so, given that in the end, the candidate who was elected to the position of Commissioner was not at all among the candidates who passed the quasi-competitive process that existed (see paragraph 68 of the judgment of my colleague, the Vice-President Solberg and in paragraph 22 of the judgment of my colleague, the judge Barak-Erez in the judgment that is the subject of the additional hearing).
- In addition, in the judgment that is the subject of the additional hearing, it was determined that there have been changes since the judgment was rendered In a High Court of Justice case 2699/11, [Nevo] in three aspects: administrative decisions regarding the appointment of senior officials; the state of the public service as a whole; and the conduct of the current government. From my friends, the Vice President Solberg (in the judgment that is the subject of the additional hearing) and the judge D. MintzWe have discussed these issues in depth, I do not see the need to address this at length myself, and I agree with their conclusion that the aforementioned aspects do not justify in our case a determination that is completely opposite to the judgment In a High Court of Justice case 2699/11, [Nevo] and the reasoning that underpinned it. However, an exemption without anything is impossible, and I will suffice with a few short comments on this matter.
(-) First, there is no administrative decision made after the judgment In a High Court of Justice case 2699/11 [Nevo] (and not before it) that was detailed in the judgment that is the subject of the additional hearing, which stems from the fact that the Civil Service Commissioner should be appointed in a competitive proceeding.