Fifth, the Prime Minister's control over the appointment process enshrined in Resolution 2344 exceeds the framework of the Directive Section 6 to the Appointments Law, which grants the power to appoint the entire government, and is inconsistent with the rules of administrative law.
And finally, Resolution 2344 was adopted for extraneous considerations. The considerations that the government considered when making its decision are not what is the most permanent and appropriate appointment process, but rather what procedure will allow them maximum control over the candidate who will be elected.
- The Attorney General and the Legal Advisor to the Prime Minister's Office joined the respondents' position. It was argued that while section 6 of the law establishes an exemption from a tender for the position of commissioner, and thus it allows the government flexibility in determining the appointment process, it does not mean absolute discretion in the appointment process. The government must exercise its discretion in a reasonable manner and take into account the relevant professional considerations in choosing the appropriate path for appointment, especially when it expressed its opinion in the framework of Resolution 3793 that the methods of appointment should be examined. The body of the matter argued that a competitive process is necessary to ensure the appointment of a candidate with the required experience and professional level. In this regard, the government did not give sufficient weight to the fact that this is a very senior managerial and professional position with many powers, complexity and challenges, and that it is a position that requires independence. The legal counsel also argued that the government's choice of an alternative to a special appointments committee rather than a search committee or other competitive process constitutes a deviation from previous decisions. In this regard, it was mainly argued that this was a deviation from Government Resolutions 345, 4062 and 4470 and the Standards Document, in which a distinction was made between a position that requires independence and independence, such as the position of Commissioner, and a position that requires a high degree of trust. It was emphasized that there is great logic in this distinction, and that an appointment process in which one candidate chosen by the political echelon is examined entails an inherent concern that the candidate was selected for reasons that deviate from his suitability for the position and that he will be bound by the appointing echelon, and therefore cannot stand.
The legal counsel added that there is also a difficulty in repeatedly determining the ad hoc appointment process. Appointing the composition of the Appointments Committee close to the date of the nomination hearing is liable to harm the independence of the committee and its independence from the level that appoints its members, since it is not done "behind the veil of ignorance." In this way, it makes it possible to match the composition of the committee to the candidate that the appointing authority wishes to appoint. Therefore, the government's decision to once again adopt an ad hoc approach raises difficulties, especially in view of its own determinations in the framework of Resolution 3793. Admittedly, a similar outline has been practiced in the past and within the framework of High Court of Justice 2699/11 [Nevo] A petition against him was also rejected. However, this does not preclude a discussion of the correctness of the outline, its difficulties, and its alternatives. This does not justify refraining from sufficient professional reasoning. This is done, inter alia, taking into account the criteria document that was given after the judgment In a High Court of Justice case 2699/11; [Nevo] that the appointment of the subject of that judgment preceded the examination of the special committee by a competitive process, in the framework of which a team ordered by the prime minister located and examined 150 candidates before recommending to the prime minister four candidates, from whom a candidate was selected for examination by the special committee; the challenges facing the Civil Service Commission that did not characterize the civil service in the past; and the special importance that exists these days that the appointment process will ensure the independence of the Civil Service Commissioner.
- The applicants in the proceeding before us - the Government of Israel and the Prime Minister - were of the opinion that the petitions should be dismissed. They insisted that there was no reason to obligate them to conduct a competitive process for the selection of the Civil Service Commissioner, when section 6 of the Appointments Law states otherwise, that the rulings of this court have determined otherwise, and that the practice since time immemorial has been different. It was noted that Resolution 2344 seeks to appoint a commissioner in exactly the same way that the outgoing commissioner was appointed in 2018, and it is unlikely that the law will be different for different governments. It was also argued that appointments to unique positions in their seniority should be made through democratic mechanisms and not by dictating candidates, while turning the appointing body into one that performs a "signature of existence." In addition, the question of what is the proper way to make an appointment is a question that should be clarified and decided by the Knesset. The Applicants emphasized that, contrary to what appears from the position of the Legal Counsel, the fact that in the appointment process the subject of the High Court of Justice 2699/11 [Nevo] appointed a team to locate candidates was not at the basis of the position of the Legal Counsel or the basis for the decision in that proceeding. The Applicants further claimed that they relied on the comments of this Court in the hearings that preceded the issuance of the order nisi and subsequently amended Resolution 2129; and that Resolution 2344 was adopted after three long and in-depth government meetings, after the positions voiced by the parties to the proceeding were expressed, and after the government's legal counsel made it clear that there was no legal impediment to its adoption. Finally, the applicants noted that there were procedural flaws in the conduct of the legal counsel to the government.
With regard to the formulation of a permanent procedure, the Applicants claimed that they have no objection to the mechanism chosen this time as well being determined as a permanent appointment mechanism.