The judgment that is the subject of the additional hearing
- In the judgment of May 12, 2025, the petitions were accepted by a majority opinion of President Y . Amit and Justice Barak-Erez, against the dissenting opinion of Deputy President Justice N. Sohlberg.
- My colleague the President noted in his opinion that the Appointments Law is silent with regard to the mechanism for the appointment of the Civil Service Commissioner. Although section 6 of the law provides for an exemption from a tender, this does not grant the government unlimited discretion in appointing or exempting from the rules of administrative law. The Appointments Law is intended to ensure the professionalism and stateliness of the public service and to prevent political appointments, and the commissioner is an independent gatekeeper who is required to act against the spillover of political considerations into the public service. Taking into account these characteristics, it was determined that the set of substantive considerations to be considered when appointing him is limited to considerations of professionalism, independence and apolitical only, and that partisan and personal reasons are clearly foreign to the appointment. At the same time, there is no room for appointments based on similarities between the candidate's political-ideological worldview and that of the government. There is no dispute that the Civil Service Commissioner is required to carry out the policy of the executive branch. However, there should be no doubt about his ability to carry out this policy, whatever his political views may be. It can indeed be argued that Resolution 345 serves as support for the consideration of political-ideological considerations when appointing the Commissioner, since the position of Commissioner was included in the group of positions that were characterized by a high degree of trust and coordination between their holders and the Government. However, that decision did not positively determine that the position of Commissioner was suitable in its essence and nature for the group of positions of trust and coordination, but rather was a "snapshot" of the existing situation with regard to the appointing mechanism of the Commissioner. This position is consistent with what emerges from the Criteria Document, which is later than Resolution 345, according to which there is an aspiration to establish a competitive procedure for appointments to positions with similar characteristics to the position of Commissioner.
- The President also noted that Resolution 2344 highlights the involvement of the political echelon at all stages of the process, even regardless of the appointment of the commissioner by the government. This takes into account that the members of the Appointments Committee are chosen by government officials, and that the Prime Minister is the one who selects the candidate and brings him to the examination by the Appointments Committee. Admittedly, the very use of the mechanism of a special appointments committee is not new, and in the case of the High Court of Justice 2699/11 [Nevo], a petition seeking to instruct the government to use the mechanism of a search committee was rejected. However, that petition dealt only with a comparison between the mechanism of a search committee and the mechanism chosen by the government at the time, which included, inter alia, a quasi-competitive procedure in which a search team existed in addition to a special appointments committee. In any case, the fact that some 14 years ago this court refrained from intervening in the process of appointing a civil service commissioner is not the end of the story.
- Therefore, an examination of the current legal and factual basis leads to the conclusion that Resolution 2344 suffers from administrative flaws that go to the root of the matter. First, in a variety of government decisions and administrative directives that have been published separately from the individual appointment process, including Government Resolutions 345, 4062, and 4470 and the Benchmarks Document, there is a clear trend to strengthen the independence of the Civil Service Commissioner, and to attach a competitive appointment mechanism to positions that have a clear purpose of independence and apoliticalness. In contrast to this consistent trend, the government's conduct in establishing a mechanism that is completely devoid of competitive characteristics and is based entirely on decisions made by government officials themselves or officials appointed by it and its head. Second, the data presented in the proceeding paint an unencouraging picture regarding the performance of the public service in various indicators, as well as an increase in indications of politicization in the public service. Against the background of this reality, it is increasingly important to appoint a commissioner with proven skills, abilities, and experience, who has the power to initiate real changes in the functioning of the public service, including those that are not necessarily in line with the political interests of elected officials. It is therefore difficult to see how this goal is achieved through a non-competitive appointment process, which relies entirely on the prime minister's recommendation of a specific candidate. Third, in recent years, there has been a consistent erosion and trampling on public-administrative-state norms, including attempts by the government to weaken the gatekeepers and increase politicization in the public service. In these circumstances, the law must adapt itself to the changing reality, and the need to establish guarantees for the protection of the independent, state, and apolitical purpose of the position of civil service commissioner is strengthened. In this context, it was noted that the erosion of norms of proper administration is clearly reflected in the appointed mechanism, which is subject to considerable influence by the political echelon, without the government delimiting in advance the criteria for selecting one candidate or another. It was also noted that the concern about the penetration of political considerations is expressed on three different levels: the considerations for the selection of the members of the Appointments Committee - a choice that is entirely at the discretion of the government, which naturally has an interest in the results of the committee; the considerations underlying the appointment of the Civil Service Commissioner himself, both at the stage of selecting the recommended candidate and at the stage of voting in the government; and considerations relating to the entire public service, in view of the government's ability to use the commissioner in the future in aspects that are liable to increase the politicization of the public service. In addition, it was noted that there was no in-depth process of clarification, discussion and examination of alternatives in relation to the government's decisions regarding the current appointment process, and there was no substantive handling of what was stated in the professional opinion of the legal advisory bodies.
- On the basis of all the details, it was determined that the respondents had assumed more than enough indications that create substantial doubt as to whether the procedure for appointing the Commissioner was determined solely on the basis of substantive considerations. It was also held that from the point of view of the cause of action for extraneous considerations, this is sufficient to justify shifting the burden of proof to the Applicants, who in turn did not present real explanations as to the reason why the mechanism anchored in Resolution 2344 was chosen; and that from the point of view of the grounds of reasonableness, the government's decision was made while ignoring various relevant considerations, such as the independent and apolitical nature of the commissioner's position and the state of the public service.
- The President also emphasized that the procedure set by the government creates fertile ground for weighing improper political reasons "behind the scenes," which are extremely difficult to prove, and therefore it is not possible to suffice with the path of individual criticism of a concrete appointment of the Civil Service Commissioner. In addition, the applicants' argument that the prime minister is presumed to propose a suitable candidate for this senior position was rejected. On the contrary, the history of recent appointments shows that the prime minister's selection of a single candidate and bringing him before a nominations committee does not necessarily lead to the identification of the most suitable candidate for the position of commissioner. This is also supported by the worrying data presented in relation to the public service, in light of which the government's decision to "duplicate" the previous appointment procedures that led to the worrying situation, appears to be a decision that ignores significant factual data.
- On the level of relief, the President noted that the proceedings in question are not the appropriate venue for determining the exact boundaries of the appointment process, and that at this time, it is sufficient to say that an appointment procedure must be established that will provide guarantees for the location of the most suitable candidate and that political considerations will not penetrate the appointment decision, while the establishment of a competitive mechanism will yield a significant contribution in these contexts. It was emphasized that the competitive process does not necessarily include a search committee, even though this is the best way to ensure a successful appointment, and the issue should be clarified in a dialogue between all the relevant parties in the executive branch.
- Finally, with regard to the establishment of a permanent procedure for the appointment of the Civil Service Commissioner, it was determined that the Applicants in fact agree to the need to establish a permanent mechanism, and at least they did not present any real reasons against establishing such a procedure. The government's failure to make a decision on this matter in fact contradicts and ignores a previous decision that gives rise to a clear intention to formulate a permanent procedure. In the years following the judgment in the High Court of Justice case 2699/11 [Nevo], the government's use of the temporary practice of appointing a civil service commissioner intensified, and in view of the independent and apolitical nature of the commissioner's position, there is a difficulty in a situation in which the political echelon adapts a different appointment mechanism for each commissioner in accordance with obscure considerations that are not visible to the public.
- In view of all of the above, the President was of the opinion that the order should be made absolute, and that the appointment of the Civil Service Commissioner should be contingent on anchoring a permanent appointment mechanism that would be based on a competitive process.
- My colleague Vice-President Sohlberg had a different opinion. The Vice-President opened his opinion with the language of section 6 of the Appointments Law, noting that if the legislature chose to exempt the government from a tender, which constitutes a competitive appointment proceeding, there is no reason to require it in such a proceeding by means of judicial review of the administrative discretion exercised within the framework of the law by the authority holder. A distinction must be made between a situation in which the government chooses to resort to a competitive proceeding on its own initiative, despite an exemption granted to it by primary legislation, and a situation in which the court determines that the only possible discretion under the law requires a competitive proceeding despite that statutory exemption.
- The Vice President added that there are also no reasons in the field of administrative law that justify intervention in Resolution 2344. With regard to the cause of the foreign considerations, in addition to the considerations mentioned by the President for the purpose of appointing a civil service commissioner - considerations of professional competence and considerations of maintaining a threshold and preventing political dependence - another pertinent consideration can be mentioned: the question of the existence of an ideological-professional closeness that can assist the government in realizing its goals. The relevance of this consideration to the appointment also derives from the provision of section 6 of the Law. This is because the provisions of the exemption from a tender are intended to provide the government with a tool that will assist it in realizing its objectives, in the form of the entry into the appointment process of considerations that would not have been expressed in the framework of the tender, including considerations that relate to the conceptual-professional closeness between the appointer and the appointee. In this regard, it was noted that in the position of commissioner, there is a certain mixture between his perceptions and views and the professional issues on which he will decide. Therefore, and since he is to a large extent an executive arm of the government for the purpose of managing and directing the civil service, there is also room to consider considerations that concern his views on those issues that he believes will come before him in the performance of his position. Subsequently, and with reference to Resolution 2344, there was no expression in the statements of the members of the government prior to the appointment or in the arguments of the government's counsel that considerations were taken that went beyond the scope of the desire to bring about an appointment that would be in his power to assist the government in realizing its goals, in view of the ideological-professional closeness.
- According to the vice president, there is difficulty in ordering the cancellation of the appointed method on the assumption that when it is activated, the government will abuse it and violate its obligations under administrative law. This assumption is contrary to the presumption of administrative correctness, and in any event, even if such concerns are realized, it is possible and appropriate to deal with them within the framework of judicial review of a concrete improper decision. In addition, taking into account the rulings in the High Court of Justice case 2699/11, [Nevo] has considerable difficulty in saying that a decision that seeks to preserve the status quo and continue a mechanism that has already received the approval of this court is a decision tainted by extraneous considerations that must be annulled. In addition, the President's position that the position of Civil Service Commissioner is a distinct position of a gatekeeper is inconsistent with the approach of the legislature, which granted the power to appoint the government. While the position of civil service commissioner also has a threshold aspect, he also has many and varied responsibilities that he must perform in accordance with government policy, and one must be careful not to give too much weight to one aspect of the position over others.
- With regard to the President's determination that Resolution 2344 was extremely unreasonable, the Vice-President noted that in the years that have passed since the judgment was handed down in the High Court of Justice case 2699/11 [Nevo], there have been no changes that justify such significant changes in the position of the Legal Counsel or in the position of this Court. The fact that in the case of the High Court of Justice 2699/11 [Nevo] the possibility of holding a competitive proceeding that is not necessarily a search committee does not justify such a significant change, since the differences between the relevant government decisions are few and even if this was not explicitly claimed in that proceeding, the court could have determined an intermediate method, such as a competitive proceeding that is not a search committee, but this was not done. Nor does the fact that in the framework of the appointment process that is the subject of the High Court of Justice 2699/11 [Nevo] conduct a quasi-competitive proceeding justify a different result, since that procedure is not mentioned at all in the judgment, and the candidate who was selected was not at all among the candidates who underwent the competitive process. The criteria document also does not justify a different result, since it refers to jobs for which a tender is exempt by virtue of a government decision. In any event, it has no binding effect against the government. Nor do the government decisions that the President pointed to - Resolution 4062 and Resolution 4470 - justify a change from the judgment given in the High Court of Justice case 2699/11, when these decisions were already made before him. To all of the above, the Vice President added that the President's position is inconsistent with Resolution 345, which included the position of Civil Service Commissioner with those positions that would be filled with the assistance of an appointments committee. In this regard, no evidence was presented that this was a decision that was nothing more than a "snapshot" of the existing law, and in any event, it is impossible to ignore the group to which the commissioner's position was assigned.
- As for the permanent procedure, Government Resolution 3793, which stipulates that the government will be required in the future to adopt a procedure that will be formulated in consultation with the legal advisory bodies regarding the methods of appointing the Civil Service Commissioner, is still standing. However, in view of the delay caused with regard to the current appointment, it would not be right to "burden" him with the issue of the permanent appointment as well. At the same time, as long as Resolution 3793 is not repealed, even without a judicial order, those engaged in the work will have to act in accordance with it.
- My colleague Justice Barak-Erez joined the President's conclusion. She emphasized that the mere fact that the law provides for an exemption from a tender does not exempt the government from a competitive proceeding of any kind. In a variety of contexts, it has been ruled in the past that even in circumstances of an exemption from a tender obligation, the obligation to make decisions in a competitive and egalitarian process remains. Nor does the well-known importance of cooperation between the Civil Service Commissioner and the elected government for the purpose of advancing its policy lead to the conclusion that there is no impediment to making an appointment without a competitive process. Even a position that takes into account the Commissioner's principled positions regarding issues of management and public service does not necessitate abandoning the approach of a competitive process at the appointment stage. In addition, it is unable to agree with the position of the Deputy President that the purpose of the exemption from a tender in section 6 of the Law is to assist the government in realizing its objectives. The exemption was granted, inter alia, because the format of the tender is not suitable for filling the position of commissioner, since he himself holds the position that heads the tenders system, and in view of the complexity of his position and the variety of skills that he must bring to the position. However, a competition that is not subject to the relatively rigid framework of a tender reflects a completely different balance, and its application does not contradict the principle of exemption from a tender. Therefore, a determination that the Civil Service Commissioner should be selected in the format of a competitive proceeding does not exclude the government's authority to design the details of the procedure. It still has room for discretion with regard to the composition of the search committee, as well as with regard to other characteristics of its activity.
- Justice Barak-Erez also elaborated on the characteristics of the commissioner's position, noting that he is a clear gatekeeper. In view of the control of this position in relation to decisions that are of critical significance to maintaining the professionalism, stateliness, and independence of the civil service, it is important to conduct a competitive process. This importance is even sharpened by taking into account the breadth of the Commissioner's powers, both from the administrative aspect and from the perspective of the protection of rights. The Commissioner heads the Civil Service Committee; has the authority to approve standards in the civil service; He is required to consult with him for the purpose of appointing a substitute in the public service; He is authorized to make a decision on filling positions with an exemption from tender obligation. The Commissioner also sits on search committees and is a partner in many other committees dealing with appointments, including those of law enforcement officials such as the State Attorney and the Deputy Attorney General; And by virtue of this position, he may even be involved in their dismissal. Against this background, the Commissioner's independence from political elements is of outstanding importance, but the mechanism that was chosen gave the Prime Minister a central role in the appointment process. Therefore, taking into account the limitations that apply to his involvement in his appointment to positions in the fields of law enforcement while he is facing a criminal trial, the model chosen cannot stand on this additional independent basis as well. In addition to all of these, the commissioner also has a significant impact on equal opportunities in the public service. He has broad control over issues related to dismissal and termination of employment, and he has broad powers in the field of disciplinary proceedings against civil servants. Therefore, the appointment of the Commissioner in a competitive process is expected to contribute to the promotion of proper administration and equal opportunities in the public service, not only because of the opportunity given to potential candidates for the position, but also because of the implications of the Commissioner's decisions on equal opportunities for employees in the public service.
- Justice Barak-Erez emphasized that this is not a position of trust, but rather a position with a clear professional dimension that includes legal aspects relating to law enforcement, and as such, action must be taken to distance the process of his appointment from the political pole. Such an appointment not only harms the professionalism and stateliness of the position, but in light of the difficult period of its term, it is also liable to tie the hands of the next government when it comes to implementing its own policy. Contrary to the position of the Vice-President, in her view, the grounds of reasonableness are not the focus of the discussion, and from her point of view, the result is also necessary in light of the principle of equality and taking into account the known importance of determining appropriate mechanisms that can prevent a potential conflict of interest in decision-making.
- Justice Barak-Erez also joined the President's position regarding the change in circumstances that has taken place since High Court of Justice 2699/11 [Nevo]. According to its approach, great weight should be attributed to the fact that in that matter there was a quasi-competitive proceeding, and that in the past years there have been real changes in the exercise of the Commissioner's powers with regard to granting an exemption from tender obligation.
- Finally, Justice Barak-Erez noted, with regard to the regulation of the appointment process in a standing procedure, that already in the hearings that took place prior to the appointments of the last two commissioners, the recognition was expressed that regulating the manner of appointment is required, and it should be regretted that the time that had elapsed was not used for the purpose of such arrangement.
- In the end, it was decided, as stated, to issue a definitive order with respect to the two heads of the order nisi that was given, as stated in the judgment of President Amit with the concurrence of Justice Barak-Erez, against the dissenting opinion of Vice President Sohlberg.
The Further Hearing
- On the judgment, the applicants filed a motion to hold an additional hearing. In a decision of June 11, 2025, the President ordered that the application be heard before me, and in my decision of July 13, 2025, I ordered that an additional hearing be held before a panel of 5 judges. Later, the parties submitted brief arguments on their behalf. The following is a summary of the arguments.
The Applicants' Arguments
- According to the applicants' approach, the legislature gave its opinion in section 6 of the law regarding the question of the manner in which the civil service commissioner was appointed. He authorized the government to appoint the commissioner, and determined that it was entitled to do so without the obligation to tender. Prior to the ruling, there was no normative source disagreeing with this. On the contrary. The law, the ruling of this court, the opinion of the legal counsel bodies, and the practice that prevailed in practice, all pointed alike to the clear and independent authority of the government. In this regard, the Applicants specifically referred to the High Court of Justice 2699/11, [Nevo] , noting that in that proceeding, the legal counsel officials made do with a short opinion that categorically rejected all claims similar to those made by the respondents in the present case, without mentioning the search team that was established or any other competitive proceeding; that the petition there was dismissed immediately at the end of the hearing; and that the judgment given fully adopted the position of the legal counsel.
- The applicants added that there were procedural failures in the proceeding prior to the judgment. It was argued that Resolution 2344 was passed after this Court urged the government to amend Resolution 2129 and to establish a mechanism by which the candidate's eligibility would also be examined, and after the government's legal counsel did not establish a legal impediment to the matter. In these circumstances, the petitions were to be deleted, and there was no room to allow the respondents to amend their petitions, without being requested by them.
- In the opinion of the applicants, the new rule established in the judgment should be annulled. Leaving it intact breaks the legal certainty and strips the government of the role of appointment entrusted to it by the legislature. The new halakha also entails a series of failures. Including, contrary to what is stated therein, the legislature explicitly established the appointment procedure in section 6 of the Law; it is not appropriate to a reality in which there is room for judicial review even in cases where the law is implemented as it is written; the majority opinion sought to draw conclusions regarding the purpose of section 6 of the law from the explanatory notes that dealt with all appointments in the civil service, and not with an exception to the tender obligation set out in section 6 to the law; The fact that the position of civil service commissioner is of great importance should not lead to the conclusion that he should be cut off from the government as a part of it; The judgment undermines the institution of case law in Israeli law; Some of the reasons in the judgment are bar-legal that should not have been taken into account; The judgment is based on the identity of the government, the prime minister, and other statements without any normative source; Relying on the increase in the number of jobs exempted from tenders as an indication of a deficiency in the civil service raises a difficulty, it is not at all clear that the increase is a negative thing, and it is not impossible that it stems from an economic perception; There is no reason to draw conclusions from the legal situation of the Prime Minister or from the results of past appointments regarding structural questions regarding the mechanism for appointing the Commissioner; It is not possible to point to extraneous considerations in the government's decision, which was based on the law, case law and practice that has been practiced since ancient times.
The Respondents' Arguments
- The respondents argued that the judgment should be left in place.
- Respondents 1-2 discussed at length the principle of statehood, which is a fundamental component of the essence and democratic character of the state, and argued that the only way to ensure it is through the election of the commissioner in a competitive process. This is the case in general and especially at this time when there is a serious, continuous and ongoing threat from the Israeli government to the very existence of democracy. The characteristics of the commissioner's position and his status as a "gatekeeper" also lead to the conclusion that the only way to appoint him is through a competitive process. Any other mechanism controlled by the Prime Minister seriously harms the purposes of the office and the basic principles enshrined in the law; And the obligation to conduct a competitive process also stems from the basic principle that the Authority's action in allocating resources and appointing officials must be carried out in a competitive and equal manner.
As for the provision Section 6 According to the Appointments Law, the mere fact that the section provides for an exemption from a tender obligation does not mean that the government is granted absolute freedom to appoint. In fact, the exemption does not negate the obligation to compete at all, but only shapes it differently, in the form of a defined, transparent and controlled procedure that ensures an examination of the candidates' suitability. As for the house High Judgment for Justice 2699/11, [Nevo] Since 2011, there has been a substantial factual development in the form of multiple decisions granting an exemption from a tender. This trend creates an increased risk of politicization and a violation of the principle of equality, and therefore requires strict adherence to competitive procedures and stricter standards of judicial supervision. Against the background of this trend, the obligation to interpret the Section 6 to law in a manner that requires an alternative competitive procedure.