Additional Hearing High Court of Justice 70105-05-25 Government of Israel v. Louis Brandeis Institute for Society, Economics and Democracy, The College of Management Academic Track, founded by the Tel Aviv Bureaucracy - part 53

(-) Practice and Case Law: The method of appointment that we are dealing with now is consistent with the method that has been practiced with us for more than 30 years, during which - about 15 years ago - a petition was even rejected in which an attempt was made to attack on the grounds of extreme unreasonableness: High Court of Justice 2699/11 The Movement for Quality Government v.  The Government of Israel ‏[Nevo] (‏17.5.2011‏)‏.  Against this background, I am of the opinion that even the commitment to past conduct and precedents is considered against our intervention, and that the reasons presented in that judgment did not escape in order to reject the most close arguments raised by the petitioners there.

(-) The mechanism attacked in the petitions: It must be remembered exactly what the administrative decision that is being attacked: Anonymous A direct government appointment, without boundaries or restraints, but rather an appointment that will be examined by an appointments committee, which is composed of a retired judge and two public representatives, who are elected according to a rotation managed by the Civil Service Commission; An independent committee whose role is to examine aspects of professionalism, integrity and lack of political affiliation with the appointing body (regarding the other characteristics of the committee, see the words of my colleague, the judge Mintzin paragraphs 2 and 106).  That is, there are also mechanisms in place to ensure the integrity of the appointment.

3. Given the aforementioned rule, I found it difficult - and still struggle - to find justification for our intervention in the decisions of the government at hand, by virtue of some of the grounds that we are familiar with from administrative law. I am also of the opinion, therefore, that the judgment that is the subject of the additional hearing should be annulled.

"Know where you came from and where you are going" (Mishna Avot 3:1) - The Procedure from an Overview

4. While I do not see the need to elaborate on the substance of the matter, as stated, it seems that the litigation of the two proceedings before us, which is now coming to an end, raises a number of general considerations; concerning them, I am of the opinion, there is room to elaborate further. "I have sinned" in the context of the judgment that is the subject of further discussion (see ibid., paragraphs 75-80; for analyses suggested by others, see: Elad Gil, "Hero-Ball in the Supreme Court: Comments on the High Court of Justice of the Civil Service Commissioner" ICON-S-IL Blog (May 26, 2025); Sagiv Barhoum, "In the Wake of the High Court of Justice of the Civil Service Commissioner: Contextual Judicial Review and Its Problems" ICON Essays: Essays in Public Law (2025)); However, it seems to me that the current stage of the proceeding 'sets a blessing' for itself, and demonstrates another aspect that deserves attention.  And even if part of what will be brought below is a repetition of what I have already said, it seems that the importance of the matter justifies further repetition and experimentation (see and compare: Babylonian Talmud, Chagiga 9:2).
5. Thus, the "saga" of determining the method of appointment of the Civil Service Commissioner, in whose case the legal proceedings began about a year and a half ago, comes to an end in August 2024 - about a month after the end of the previous Permanent Commissioner's term. During the period, the term of office of the current Commissioner was extended; was appointed to the position of acting officer, for a period of 3 months; The position remains unfilled; And God forbid, he returns to the return of the previous commissioner to the position, this time as an acting commissioner.  All this, with a permanent appointment not yet on the horizon.  The state of affairs is therefore far from ideal, with regard to the ability of the Commission to function, and of the civil service that depends on it (regarding the problem of refraining from permanent appointments to senior positions, see: High Court of Justice 7180/20 The Movement for Moral Integrity v.  Government of Israel [Nevo] (December 10, 2020); High Court of Justice 3056/20 The Movement for Quality Government in Israel v.  The Attorney General, paragraphs 50-54 [Nevo] (March 25, 2021); High Court of Justice 34680-08-24 The Movement for Quality Government in Israel v.  Minister of Communications, para.  39 [Nevo] (October 14, 2024) (hereinafter: the Mines case)).
6. In fact, this return to the starting point, with regard to the filling of the position, is also compatible, to a large extent, with the pendulum in which we are now finded, on a preliminary and principled level: determining the method of appointment to the position, on which the dispute before us revolves. Thus, at the outset, the government sought to change the method of appointment that had been practiced, with slight changes, for more than 30 years - to move from the assistance of an appointments committee, to the assistance of an advisory committee (regarding the types of committees, see paragraph 2 of the opinion of my colleague, Justice Mintz).  The government reversed this decision following comments made at the hearing held on October 15, 2024; At that time, the government determined that the appointment would be examined by an appointments committee, in a manner consistent with the way the previous appointment was made in 2018.  However, this return to the starting point, to the appointment format that has been customary with us for more than a generation, did not satisfy the petitioners; The attorney general also remained by their side.  Therefore, the petitions were amended, and at this stage the government's latest decision was attacked.  Along the way, the same amended petitions were accepted, by a majority of opinions; It was determined that the appointment must be made by way of a competitive procedure (noting that it should not rise to the level of a search committee, with all its details and subtleties).  At this point, the pendulum moves toward the opposite pole.  And now, as already noted above, the ruling in the current proceeding brings us, to a large extent, back to where we were even before the parties began to 'pull the rope' - the appointment will be examined by an appointments committee, in accordance with the aforementioned government decisions.
7. In the judgment that is the subject of the additional hearing, I noted, with reference to the change that the government initiated at the outset, things that I think are still relevant, also with regard to the current stage of the litigation: "The petitions in question demonstrate the dynamic that may develop in light of such an attempt at change - at the end of it, the applicant for change may find himself 'on the bottom,' and when the change that actually took place is the opposite of the one he sought to promote. We see, therefore, that apart from the many virtues of a moderate approach, of caution against changes and shocks, which can promote concessions and compromises that are so necessary in our districts, and which might have prevented the spiral into which we, and with us, the Civil Service Commission, entered more than six months ago, the request for change also entails a considerable risk, that it will find itself the promoter of change when the 'butterfly wings' finally brings.  to a change that is the opposite of the one for which he set out on his path" (paragraph 63; a somewhat close chronicle, which may also illustrate the above, can be found in the "trilogy" of proceedings of the head of the Shin Bet, which has recently come to an end: High Court of Justice 54321-03-25 The Movement for Quality Government in Israel v.  Government of Israel [Nevo] (May 21, 2025); High Court of Justice 18133-06-25 Guili v.  Deputy Attorney General (Public-Administrative Law) [Nevo] (July 15, 2025); High Court of Justice 427-10-25 The Movement for Quality Government in Israel v.  Government of Israel [Nevo] (December 28, 2025)).  "Be moderate in judgment," the members of the Great Assembly instructed us in the Mishna that opens Tractate Avot, and things are as beautiful then as they are now.
8. It seems, then, that the dynamic is clear; its end, its subsequent stages, and its further expressions in the future - who will be able to do so? In the meantime, the ability of the Commission to function has been impaired, and with it the entire public service; From a broader perspective, a tallit in which two people are holding it, while each person is pulling in his direction, is liable to tear in a way that will not benefit any of those who hold it (see and compare: 1 Kings 3:16-28). Indeed, changes, even radical and widespread, are sometimes necessary and beneficial; But it is always necessary, and all the more so in the sensitive period in which we find ourselves, great caution with them - both with regard to the very choice to promote them, and with regard to their scope and the manner in which they will be carried out.  To use the world of images to which my friends have turned: when the ship is already sailing in stormy waters, one must be doubly careful before making another powerful shake.  "A revolution can shock, even sink the ship.  We must bring it to safety, not sink into the depths" (High Court of Justice 5658/23 The Movement for Quality Government in Israel v.  Knesset, para.  182 of my opinion [Nevo] (January 1, 2024)).  All this, even more intensely, taking into account the perspective that the present procedure gives us: it is doubtful that the Sages will even succeed in bringing the changes to fruition, and even bring them to a conclusion; but the prices that are already included in accelerating that sharp change will also be paid.

On the Limits of the Law and the Representation of the Government's Position in Proceedings

9. In the judgment that is the subject of the additional hearing, I dealt at length with the gap between the position expressed in the past by the Attorney General regarding the issue at hand, and the position expressed by his people in the present proceeding, and the administrative stages that preceded it (see ibid., paragraphs 58-62 and 75-80 of my opinion; see also, in this context: the Mines case, paragraph 37); my colleague, Justice Mintz, also addressed the issue and expressed a close position (see his words at paragraphs 145-146). Therefore, in this matter as well, I will refrain from repeating the details; But because of the importance of the matter, and with a forward-looking view, there is no escaping one comment.
10. As is well known, according to the law prevailing in our districts, it is the legal counsel to the government that reflects the law of the executive branch, within its boundaries, as long as a competent court has not ruled otherwise. Subsequently, when the Authority does not accept the position of the Legal Counsel regarding those borders, the Legal Counsel to the Government can appear before the court and request a judgment against the Authority (see: High Court of Justice 6198/23 The Movement for Quality Government in Israel v.  Minister of Defense, paragraphs 84-85 [Nevo] (June 25, 2024) and the references therein).  This is not the place to discuss these fundamental issues; At the present point in time, and while limiting ourselves only to the circumstances of the case at hand, it is sufficient to note that at this stage a clear conclusion emerges: the boundaries of the law are considerably wider than those presented to the Government by the Legal Advisor to the Government, and to which the Legal Counsel also argued in the proceedings before us (in this context, it should be noted that even two of my colleagues, who saw fit to oblige the Government to conduct a competitive proceeding, made it clear that it was not a matter of obligation to establish a search committee; certainly not in the composition advocated by the Legal Counsel to the Government).
11. In the past, I have pointed to "the relevant feedback, in my opinion, to the decision regarding the refusal to represent, at the stage after the judgment has been rendered: if it is decided that a certain proceeding is one of the 'fairly exceptional' cases in which the legal advisor did not represent the position of the administrative authority [...] - It is expected that this will be a case in which the court's decision will be completely or almost completely identical to the position of the legal counsel, and will be unanimous, or very close to it. If this is not the case, the legal counsel should take it to heart, to re-examine whether it was correct, in the first place, to refrain from representing the position of the administrative authority; and to draw a lesson with a forward-looking view" (High Court of Justice 31238-09-24 Minister of National Security v.  Attorney General, para.  39 [Nevo] (March 9, 2025)).  Given the above, I am of the opinion that the result of the feedback in our case is clear, unequivocal.  The same lessons are therefore required, "in accordance with the obligation to represent the state even in difficult situations, and not always in matters that we identified with the decisions.  Attorneys are not policymakers, and therefore if we had a legal lead, we fulfilled our duty to argue as much as possible and proper" (Dorit Beinisch, "The Legal Proceedings Relating to the Deportation of Hamas Activists to Lebanon in December 1992," Roots in Law 469, 473 (Dina Zilber, ed.  2020)).

Conclusion

12. My position remains the same - there is no legal justification for obliging the government to conduct a competitive proceeding, prior to the execution of the appointment on the agenda; The appointment of the next civil service commissioner will also be examined by an appointments committee, as has been customary for ages. It should be remembered that the aforementioned method of appointment is a long way from a direct government appointment, free of restrictions.  It is presumed - which is also supported by past experience - that the Appointments Committee will do its job faithfully, and will properly examine the appointment that will be brought to its doorstep.  At the same time, even though in the end all the attempts to change the method of appointment were unsuccessful, one way or the other, and in fact precisely because of this, my hope is that those attempts that failed, and the developments that followed, will be able to drive another, broader and more important change, with regard to the dynamics described above, which characterize many of the issues that excite our spirits.  May it be.