Similarly, in another matter, I had the opportunity to emphasize that "the existence of formal authority is not the be-all and end-all. The authority must be exercised in accordance with the law... The discretion accompanying the exercise of the power, even if it is defined in an explicit law as 'complete' or 'absolute' discretion, is not exempt from judicial review in relation to its lawful exercise."High Court of Justice 54321-03-25 The Movement for Quality Government in Israel v. The Government of Israel, paragraph 6 of my judgment [Nevo] (May 21, 2025)). These words - which are the foundational foundation of public law in Israel - were mentioned by me only briefly, and now within the scope of the additional discussion, it seems that they need to be expanded and clarified.
- These early and long-standing doctrines, according to which formal authority does not exempt us from the other principles of administrative law, were planted at the dawn of Israeli law and have taken root in the law that has been practiced with us ever since then (see, for example: High Court of Justice 70/49 "Spice" Ltd., a company registered under Companies Ordinance v. Minister of Supply and RationingIsrSC 5 1613, 1618 (1951); High Court of Justice 80/54 Nochimovsky v. Minister of Justice and Chairman and Members of the Committee for the Granting of Certificates to Certified AuditorsIsrSC 8 1491, 1498-1499 (1954); High Court of Justice 98/54 Lazarovitz v. Superintendent of Alimony, Jerusalem, IsrSC 10 40, 47 (1956); 1666 - Another Hearing Registrar of Companies v. KardoshIsrSC 16 1209, 1216 (1962)). In all of these as well, there was no disagreement among the judges about the very existence of administrative authority. However, this fact served only as a preliminary background, and did not prevent the court from setting various restrictions, limitations and conditions relating to the manner in which it is exercised - at the level of authority, on the level of the proper of the proceeding, and at the level of governmental discretion. On the contrary, the statutory administrative authority - however broad it may be in terms of its formula - did not lead the first justices of this Court to the conclusion that it was not subject to any procedural limitations. The opposite is true. Legislative anchoring the authority, however important, served only as a starting point for the work of judicial review.
- Accordingly, the question that we must ask in this case is not whether the provision of the law in which the authority is anchored includes an explicit requirement to conduct a competitive proceeding. It goes without saying that such a requirement does not appear in the text of the law before us in "Rachel your little daughter," and there is no need to dedicate many words to it. This was not even claimed. However, it should be made very clear: this question is the same as the question of whether the "near certainty test" is included in the wording of the Section 19(2)(A) To the Ordinance Press, 1933, by virtue of which the Minister of the Interior ordered in 1953 the temporary cessation of the publication of the newspapers "Kol Ha'am" and "Al-Ittihad". The negative answer to this question did not discourage this court, which limited the broad authority of the Minister of the Interior in determining that it could only be used if Most likely that the publication would endanger public safety (see: High Court of Justice 73/53 Kol Ha'am in the Appeal Taxes v. Minister of the InteriorIsrSC 7 871 (1953)). Needless to say, the demand in this format had no mention in the language of the law.
- Similarly, Section 7 Law For an arrangement for the seizure of land in times of emergency, 5710-1949, authorizes the relevant authority to issue a "housing order" instructing the owner of the house to hand it over to another person. Section 17 The same law gives the victim of such an order the possibility of appealing to an appeals committee appointed by the Minister of Justice. Despite the fact that the provisions of the law do not include any directive on the subject, this court disqualified one of the members of the Appeals Committee because in the circumstances of that case there was a real possibility of bias on his part (see: High Court of Justice 174/54 Schimmel v. Competent Authority for the Purpose of Arranging the Seizure of LandsIsrSC 9 459 (1955)). Another famous case was discussed in 1958, when the Minister of the Interior sought to exercise his authority under the Section 5(1) To the Ordinance Municipalities (as formulated at the time), and to transfer the Nahalat Yitzhak neighborhood from the jurisdiction of the Tel Aviv-Jaffa Municipality to the municipal area of the city of Givatayim. The section authorized the minister to do so for any reason whatsoever and without strict procedural restrictions, but this court clarified for the first time that anyone who is likely to be harmed by a governmental decision (in this case the residents of the neighborhood) has the right to plead before a decision is made in his case - a requirement that is not known in the language of the law (see: High Court of Justice 3/58 Berman v. Minister of the InteriorIsrSC 12 1493 (1958)). It is also possible to mention the question of the authority to impose mandatory payments retroactively. Although it was determined that there is no blanket prohibition on this, it was clarified that this is subject to the test of reasonableness (see: Civil Appeal 311/57 Attorney General v. M. Dizengoff & Co. (Sailing) Ltd.IsrSC 13 1026 (1959)). Against the background of these words, this Court found that the Ports (Wages of Passengers) Order, 5713-1953, which was promulgated by the then Minister of Transport, should be invalidated. More specifically, it was held that "due to the very long period of retroactivity, the order suffers from conspicuous unreasonableness", as this involves "manifest injustice and injustice" and the creation of "chaos and uncertainty" (Name, at p. 1040). Here, too, the aforementioned conditions were not explicitly stated in the authorizing legislation. They were created "out of thin air" in the rulings of this court, and have been integrated as an integral part of the binding fabric of the rules of administrative law.
- These are just a few examples, and there are many more. Thus, the development of case law has served over the years as a central and accepted generator of public law in practice in Israel. Accordingly, limitations, conditions or restrictions formulated over the years in the case law of this Court with respect to the manner of exercising legal administrative power were not only considered "the desired law" - but rather reflected the The Common Law In every case.
- Moreover, I believe that there is a solid basis for our position in the judgment that is the subject of the additional hearing Also From the perspective of the language of the law. Section 6 of the Appointments Law states that the position of commissioner is exempt from a tender according to Article 19 to the law. The wording of the exemption here is quite limited. This is not a general exemption from a tender or any other competitive proceeding, but rather a specific exemption from a tender according to Article 19 to the Appointments Law, with all its rules and subtleties. As I explained in my original judgment, a tender of this type is a defined and specific procedure, which is clearly distinguished from other alternative mechanisms that have competitive elements. The more you are careful about the language of the law, the more you must scrutinize it.
- By way of comparison, it is possible to mention other cases in which an exemption from a statutory obligation, which is fundamentally important purposes, has received a restrictive interpretation. For example, Article 17 The Interpretation Ordinance [New Version] stipulates that regulations with a legislative function are obligated to be published in the Gazette, unless otherwise stipulated. Subsequently, there are pieces of legislation that exempt regulations from the obligation to publish in the Gazette or prescribe a different format of publication (see, for example: Article 263 of the Municipalities Ordinance [New Version] in relation to municipal bylaws; Article 49 of the Securities Law, 5728-1968 in relation to the TASE Regulations and the guidelines thereto. For more information, see: Barak-Erez, at pp. 340-342). How should such exemptions be interpreted? A sweeping interpretation of the exemption could have led to the conclusion that since an explicit exemption from the obligation to publish the regulations in the Official Gazette was granted, it means that there was no obligation to publish them. This was not the way of the case law. On the contrary: it reiterated and clarified that in those cases where there is an exemption from the obligation to publish in the Official Gazette, there is still an obligation to publish in a different way, due to the importance of publicity. As explained in this context, in relation to Section 107(2) to the Post Offices Ordinance (as drafted at the time), which included an explicit exemption from the publication of regulations in the Official Gazette:
"Any act of legislation, and in this regard it does not matter whether it is a law or an act of secondary legislation, requires public publication... And even if there is an explicit provision in the law that exempts that act of legislation from publication in the Official Gazette. There are no secret laws in the State of Israel. When there is a provision in the law that exempts an act of legislation from publication in the Official Gazette, it is permissible not to publish it in the Official Gazette, but this does not mean that it is permissible not to publish it at all" (Civil Appeal 421/61 State of Israel v. Haz, IsrSC 15 2193, 2204-2205 (1961)).