My colleague the judge also shared this position in the same matter Barak-Erez, which added the following:
"If so, a position in which enforcement and investigative powers are vested cannot be, by definition, a position of trust, from which the criterion for appointment and dismissal is 'personal trust.' This is a position whose fulfillment reflects loyalty to the public. [...] Indeed, it is natural that there must be trust between the government and every public servant who is subordinate to it. However, this is not a matter of personal trust, but rather of professional trust based on performance and achievements. A situation of loss of trust should not be ruled out, but it must be reasoned and based on deeds and facts, and not on personal preference" (ibid., at paragraph 16 of her judgment).
[To complete the picture, it will be noted in a parenthetical article that in the matter of Head of the Shin Bet My colleague, the Vice-President, abstained Solberg from his opinion regarding the interpretation of the cause of the crisis of confidence. This, as far as his approach is concerned, a decision on this issue was not required in view of the developments that occurred during the course of the litigation.]
- In my opinion, this approach - which prefers the objective dimension - is also necessary in our case, when examining claims directed against an officer of the type of the Competition Commissioner. In this context, we should refer once again to Resolution 345, where it was determined that this is not a position in which the implementation of the policy of the Minister or the Government is a dominant characteristic; and that "a great degree of independence and professional independence is required" from the officer. Moreover, the fact that the Government determined in Decision 4062 that a minister wishing to terminate the term of office of a senior officer of the type before us is required to first apply to an external committee composed of professional representatives, also indicates the need for an examination Objectively of the Minister's request on the basis of objective evidence (and see in this regard the words of the Judge Kabub quoted above). All of these characteristics strengthen the conclusion that claims of a crisis of trust should be examined with special caution, and that such a claim should not be accepted where it is based on a personal-subjective loss of trust. Instead, it must be ensured that it is supported by objective-professional reasons that have weight, which have a basis in reality, which indicate that this is a crisis of professional confidence and not a personal one.
- Moreover, relying on a minister's subjective feelings to examine his request to terminate the term of office of an officer inherently raises a great practical difficulty. Thus, naturally, there is a difficulty in examining the hearts and kidneys, and this is true even with regard to the Appointments Committee. Therefore, the position that the crisis of trust is primarily subjective is difficult in my view and raises many questions as to the manner in which that personal trust should be examined and measured. To this must be added, as the judge held Kabub In the judgment that is the subject of the further discussion, that if the cause of action had been based on subjective feeling, the committee would not have had any tools to determine whether the cause of action exists, or not. In other words, under this approach, the internal logic of the very demand to accept the committee's recommendation is omitted.
Moreover, from a material point of view, a difficulty arises in the approach that views a crisis of confidence as a cause of action with a subjective dimension, since it opens the door to the abuse of the term "trust" as a cover for extraneous considerations. An officer who fears that if he does not act in accordance with the policy of the ministerial echelon, his term of office will be terminated on the grounds of a personal crisis of confidence, will adapt himself to the policy - and as a result, officers with enforcement and regulatory powers will become positions of trust of the ministerial bodies, in complete contravention of the demands of independence and independence of their positions. This is in contrast to our system of government, in which the gatekeepers owe their trust to the public, and see in this regard - with the necessary changes - what I wrote on the matter Head of the Shin Bet: