Judge Dafna Barak-Erez:
- Can our judgment that the election of the Civil Service Commissioner be in a format that includes a competitive process be upheld? At this stage, it is known that my two friends who joined the panel - the judge D. Mintz and the judge Y. Willner - They chose to side with the approach of my colleagues of the Vice President v. Solberg And they answered the question in the negative. This can change the legal outcome and overturn the original ruling. Since I agree with my colleague the President Y. Amit, therefore, I do not need to revisit the issue in its entirety and suffice with a few comments, focusing on the references made to my original opinion. For the avoidance of doubt, I have remained in my opinion with respect to the totality of the reasoning detailed in this opinion, and I will not repeat them here, beyond emphases and clarifications.
- My Fellow Judge Willner She sets out the rules of administrative law at the beginning of her opinion. With this I will also begin. In my opinion, the starting point for the discussion is that the field of public law in Israel has developed to a large extent on the basis of case law, and not on the basis of comprehensive legislation that exhausts its rules and principles. When this is the case, legislation regulating the activities of government institutions is explicit and implemented in accordance with the principles that have been formulated in the case law of this Court over the years. Let us begin with the clearest example: the principle of the legality of the administration is not enshrined in the law - but have we found anyone who disputed his status under Israeli law? Nor do the "rules of natural justice" originate in legislation, but the supreme importance of the right to a plea or the prohibition of bias and conflict of interest is clear to all. The role of the authority as the trustee of the public, the demand for the existence of a factual basis as the basis for the administrative decision, and the duty to act with equality and fairness, along with many other principles, are not usually mentioned in primary legislation. However, this does not detract from their binding validity in its entirety. Thus, the basic position of administrative law in Israel since the early years of the State is that all the words of legislation should be viewed through the principles developed in case law.
- It should be added that this interpretive approach, according to which the legislation "sits on the shoulders" of the basic principles of public law, is not the domain of the Supreme Court alone. This is also the basic assumption of those involved in legislation. Over the years, proposals have been made to unite the basic principles of public law in the form of comprehensive legislation. However, Attempts to introduce a legislative reform that would "codify" the rules of administrative law have so far been unsuccessful (see, for example: YV Klinghöfer "The Administrative Procedures Bill" Law 12:347 (1982); Yitzhak Nightingale "Towards the Administrative Procedures Law - The need and the situation in Israel and other countries" Law 12 334 (1982); Shimon Sheetrit "On the Procedural Law The Administration" Law Yad 367 (1984); Ariel Bandor "Problems codifying the part General of Administrative Law" Legal Research T 155 (1991). For more information, see: Dafna Barak-Erez Administrative Law Volume 1 69-71 (2010) (hereinafter: Barak-Erez)). Even the most recent legislative memorandum prepared on the subject - the Memorandum of the Administrative Procedures Law (Regulating the Work of the Administrative Authority and the Rights of the Applicant to the Authority), 5774-2014 - has not matured into a comprehensive legislative anchor. In any event, dealing with this in itself teaches that the basic principles developed in case law are the middle bolt on which the implementation and interpretation of existing legislation rests.
- Against this background, we must also read and interpret Section 6 of the Civil Service Law (Appointments), 5719-1959 (hereinafter: The Appointments Law). Indeed, this clause instructs that "the government shall appoint a civil service commissioner" and that "his appointment will not be subject to the tender obligation under section 19". At the same time, the language of the law does not stand alone, but rather is integrated into the general principles of administrative law. As I clarified in the judgment that is the subject of the additional hearing:
"It was argued before us that according to section 6 of the Appointments Law, the government is authorized to appoint the Civil Service Commissioner, without any condition or reservation as to the manner in which the appointment was made, and therefore no additional obligation or restriction applies in this regard. This argument ignores, with all due respect, decades of case law, in which it has been repeatedly clarified that the existence of formal authority does not exempt from the application of other duties by virtue of administrative law" (ibid., at paragraph 2).