Additional Hearing High Court of Justice 30682-08-25 Civil Service Commissioner v. Lavi Civil Rights Proper Administration and Encouragement of Settlement (NPO) - part 23

Judge Khaled Kabub:

1. I have carefully read the opinion of my colleague, President Amit, and I have seen that the distance between our approaches is not great.  I have detailed my opinion at length within the framework of the proceeding that is the subject of further discussion, and those who are interested will examine it there.  I will now only wish to clarify the matter from my point of view.
2. The starting point for our matter lies in the principle of the legality of the administration, according to which an administrative authority is entitled to act only within the limits of the authority granted to it. Accordingly, since the Civil Service Commissioner has not been authorized to recommend to the government - alone - if the grounds for terminating the term of office of the Commissioner of Competition have been met, he is not authorized to determine - alone - that the letter of the Minister of Economy does not reveal grounds for termination of its term.
3. For this reason, my colleague is of the opinion that the Commissioner is not authorized to 'reject out of hand' the Minister's request to order the convening of the Committee. This position, in principle, is acceptable to me.  As I noted in my opinion, which is the subject of the further discussion:

"In the usual case, I do not believe that there is room to conduct a 'substantive and evidentiary examination' of the Minister's arguments prior to the convening of the Committee.  The starting point is that the Minister's claims, in view of the reasons for the termination of his term, are intended to be clarified by the Committee as a whole and not by the Commissioner or by the Legal Counsel to the Civil Service Commission.  In this sense, I agree with my colleagues regarding the inherent shortcomings of the method whereby the Legal Counsel to the Civil Service Commission performs a kind of 'pre-ruling' of the Minister's claims, and prevents him from bringing his words before the Committee" (ibid., paragraph 39).

4. At the same time, I added, in cases where there are real indications that there were serious administrative defects in the work of the requesting minister, i.e., defects that could undermine his authority and lead to the nullification of his decision to initiate the process of termination of office, then the commissioner must examine these arguments before he makes use of his own authority to order the convening of the appointments committee. This is because if the minister did indeed exceed his own authority at the time of submitting the application, then there is no source of authority that can compel the commissioner to convene theappointments committee.

I would like to illustrate this with a few examples.

5. Let me begin with a simple example. Take, for example, a case in which there is a dispute over the validity of Reuven's appointment as Minister of Economy (and compare to the case of the appointment of MK Ofir Akunis as Minister of Justice, contrary to the position of the Attorney General, where, for the sake of caution, an interim order was issued, stating that "Minister Ofir Akunis shall not begin serving as Minister of Justice [...] " (High Court of Justice 2228/21 The Movement for Integrity v.  Government of Israel, para.  2 [Nevo] (April 27,2021)).  Reuven turns to the Civil Service Commissioner and asks him to convene the Appointments Committee to discuss the grounds for terminating the commissioner's term.  The Commissioner, who is aware of the dispute regarding the validity of Reuven's appointment as Minister of Economy, consulted with the government's legal advisors, and was told that the appointment was invalid.
6. It seems to me that in such a case my colleague will not dispute that the Commissioner is not obligated - and in fact is not even entitled - to convene the Appointments Committee. After all, no lawful request was placed before him to convene the Committee.  The same is true where there is a dispute regarding the question of who is the Minister "with whose office the position is located" (in the words of section 4.d.1 of Resolution 4062).  Gabi Didi clarified that the Commissioner is authorized to consult with the legal counsel in order to determine whether the request to convene the committee was submitted on behalf of the competent body or not, before he makes use of his authority to order the convening of the committee.
7. And now for another example, a little more complex. Reuven was duly appointed to the position of Minister of Economy.  He turns to the Commissioner and asks to convene the Appointments Committee to discuss the dismissal of the Competition Commissioner.  The reason for dismissal is the red-haired hair of the Commissioner (and compare the example given on page 229 of the well-known Wansbury case: Associated Provincial Picture Houses Ltd.    Wednesbury Corp.  [1948] 1 KB 223,229 (CA)).  Attached to the letter were photographs of the supervisor, which clearly attest to the color of her hair.  On the face of it, in such a case, the formal requirement in section 4.d.1 of Resolution 4062 was met.  The request for the committee's opinion was submitted in writing by the minister, detailing the relevant factual basis.
8. However, it seems to me that even in such a case my colleague would agree that the Commissioner is not obligated to convene the committee. This is because the Minister's request does not claim that one of the grounds for which the Committee is authorized to recommend the termination of the Commissioner's term (in accordance with section 4.b of Resolution 4062) exists, and in any case it is a matter of convening the Committee in vain.  In other words, if the Government in its plenum is entitled to terminate the term of the Commissioner of Competition only if certain grounds have been met, it is clear that there is no point in convening the Committee if no claim related to their existence was raised in the application at all.
9. Thus, it cannot be said that the commissioner is obligated to convene the committee whenever he approaches him and requests the convening of the committee; this is especially so, taking into account the significance of the opening of the proceeding of the termination of the term of office of a senior and independent officer in the public service. The commissioner is required to convene the committee when the request to do so has been submitted by the entity authorized to submit it, and when the committee's recommendation is required in relation to the question of whether the grounds on the basis of which the government is entitled to terminate the commissioner's term have been met.
10. And from here the example is even more complex. Suppose that the relevant minister turns to the commissioner and asks him to convene the committee in order to make a recommendation on the question of the existence of the grounds listed in resolution 4062.  But from whom? The commissioner reads the application and is convinced that the factual basis detailed in the application cannot establish any of the legal grounds for termination of office.  Not only that, but the commissioner is convinced that the minister erred in interpreting the grounds for termination of office, and therefore, even if everything claimed in the minister's letter is true, this does not establish the grounds for termination of office according to their correct interpretation, and therefore the convening of the committee would be in vain.  The commissioner consults with the legal advisors to the government, and they confirm his reasoning.  In such a situation, does he have the authority to refrain from ordering its convening?
11. The Attorney General was of the opinion in the proceeding that was the subject of the additional hearing - and this position did not change - that the answer to this question is in the affirmative. In her approach, if there is no minimal factual basis that can support the grounds for termination of the commissioner's term, according to their correct interpretation, there is no justification for instructing the commissioner to convene the committee.  Otherwise, we find that we open the door to the possibility that the minister will abuse this power, while harming the independence of the commissioner.
12. On the other hand, as I clarified in my opinion that is the subject of the further discussion, in my opinion, when the Commissioner is of the opinion that the grounds for terminating the term of office of the Commissioner have not been met, he is not entitled to 'reject out of hand' the request to convene the Committee. The authority to recommend to the Government on the matter is vested in the Committee in its plenum.  This was my position, and I have not changed this position.
13. However, as I noted there, the case that is the subject of the additional discussion gave rise to a dilemma of a different kind. This dilemma relates to situations in which there are real indications that the Minister's actions involved serious administrative flaws when he chose to submit the request for the convening of the committee, and thus, in practice, he exceeded his authority.
14. In this context, I mentioned that, according to the Director-General, the Minister demanded that she resign from her position against the background of his dissatisfaction with the fact that she did not respond to his whims in matters of concrete enforcement that were not subject to his authority. I also mentioned that the Minister chose not to respond to this serious claim (for more information, see paragraphs 45-48).  In such a situation, I was of the opinion that the Commissioner was authorized to examine whether the Minister acted within the limits of his authority in submitting the request, since the Commissioner must convene the committee only after he has seen that a lawful request for its convening has been submitted.
15. I would like to reiterate: If the Minister had denied to the Commissioner the factual claims of the Commissioner with respect to the sequence of proceedings that preceded the request to convene the Committee, or if he had personally submitted a petition to this Court against the Commissioner's decision, in which he would have denied the Commissioner's claims, it is possible that the result would have changed. In such a situation, the Committee could have been allowed in its plenum to decide the said factual dispute.
16. However, in the factual circumstances before us, in which the petition was filed by an unrelated third party, and in any case the Commissioner's arguments were not contradicted, I was of the opinion that there is a factual deficiency that makes it difficult for us to determine that the Minister acted within the limits of his authority when he submitted to the Commissioner the request to convene the Committee. Accordingly, my opinion was and still is that no factual basis was laid that would justify our intervention, as the High Court of Justice, in the decision of the Civil Service Commissioner in this case.
17. As to the cause of action concerning a severe and ongoing crisis of confidence or substantive and prolonged disagreements , in this context my colleague the President and I see eye to eye. My colleague adopts the main points of my position in the judgment that is the subject of the motion, and I accept his comments regarding the substance of the ground.  I also accept his comments in response to my colleague, the Vice-President,   Sohlberg.