In addition, it was argued that the appointing mechanism was tainted by a substantial personal conflict of interest, in light of the fact that the prime minister personally involved in the appointment is facing criminal prosecution and is connected to criminal proceedings in security affairs; and given the scope of the Commissioner's influence on appointments to positions that have a direct connection to these proceedings. This is a fundamental and irreconcilable conflict of interest, which cannot be remedied by means of a retroactive examination of moral integrity, which requires the design of a state and competitive apparatus devoid of any involvement of the prime minister.
Finally, it was argued that in the absence of an orderly and permanent appointment procedure, which also includes a clear definition of the nature of the position and the main areas of responsibility of the commissioner, the appointment is liable to become an arena of political and personal considerations.
- Respondent No. 3 essentially reiterated the reasoning of the majority opinion in the judgment. It noted that the power granted to the government by virtue of section 6 of the law does not negate judicial review, and that the attempt by the applicants to read into the provision of the section a sweeping exemption from a competitive proceeding is difficult. The reason why the Commissioner was excluded from the tender mechanism is that according to Section 19 of the Law, which deals with the tender obligation, the Commissioner is the one who publicly declares the position. The judgment that is the subject of the additional hearing also does not contradict the judgment given in the case of the High Court of Justice 2699/11 [Nevo]. This is because that judgment dealt only with the question of the obligation to hold a search committee in the framework of the process of appointing the Commissioner; the appointment of the object of the High Court of Justice 2699/11 [Nevo] was preceded by a competitive process; and since the judgment was given in the High Court of Justice case 2699/11, there has been a substantial change in circumstances, in the form of normative changes, government decisions that emphasized the independence of the Commissioner, and many indications of the deepening politicization of the public service.
Respondent No. 3 also argued that the mechanism set forth in Resolution 2344 does not include sufficient guarantees for locating the most suitable candidate for the position and that political considerations will not penetrate the appointment process, and that a competitive mechanism is the most appropriate channel for appointing a senior position holder that requires a great degree of independence and professional independence. The very existence of a competitive proceeding does not sterilize the government's authority, but rather ensures that the authority will be exercised lawfully, subject to the rules of administrative law. A competitive process also does not exclude the practical possibility of appointing a commissioner who will also work to promote government policy. The government's authority to choose from among the final candidates that will be offered to it is not mutually exclusive, thus leaving a common ideological affinity as well as the ability to work together. Resolution 2344 also deviates without any reason from Resolution 3793, which stipulates that the government will be required in the future to adopt a fixed procedure regarding the methods of appointment on the basis of a proposal that will be formulated by the legal advisors to the government.