Judge
Vice President Noam Sohlberg:
- The line of the law in the opinion of my colleague, President Amit, is also acceptable to me. Indeed, as stated in the judgment that is the subject of the additional discussion, "the Commissioner alone has no authority to refrain from convening the committee for the purpose of discussing a minister's request to terminate the term of office of a senior officer" (paragraph 44 of the President's opinion. See also the judgment that is the subject of the additional hearing: paragraph 52 of the opinion of Justice Y. Elron; paragraphs 10-14 of the opinion of Justice E. Stein; and compare: paragraph 39 of the opinion of Justice H. Kabub in the judgment that is the subject of the additional hearing, and his words now in paragraphs 11-12 of his opinion).
- I also agree with the determination of my colleague the President, according to which "in his capacity as Chairman of the Committee, the Commissioner may place on the Committee's table a proposal to first hold a preliminary and expedited hearing of the application" (paragraph 45). Indeed, as my colleague, Justice Stein, pointed out, this question - whether the Committee has the authority to conduct a preliminary and expedited process of hearing an application that is foreseeable, prima facie, to be an idle request, and to pass its negative recommendation if it turns out that the dismissal request is indeed such - was not discussed at all within the framework of the judgment that is the subject of the additional hearing. However, taking into account what is stated in paragraph 4D of Resolution 4062 of the 31st Government, "Determining the Term of Service of Senior Officers in the Civil Service" (September 7,2008) (hereinafter: Resolution 4062), where it was expressly stated that "the Committee shall determine its work procedures", it is difficult to dispute that the Committee is indeed entitled to conduct the proceeding in the aforesaid manner as well, and in the hearing before us the Respondents unanimously agreed to this.
- As to other issues that were expressed in the opinion of my colleague the President, and which also arose in the judgment that is the subject of further discussion, I am of the opinion that we should not express a position on them at this stage of the proceeding. Thus, for example, following the dispute that arose between Justices Elron andKabub in the judgment that is the subject of further discussion regarding the interpretation of section 4(b)(2) ofResolution 4062, which lists among the grounds for termination the term of office of an officer "the existence of a severe and ongoing crisis of confidence, or the existence of substantial and protracted disagreements between the senior officer and his superiors, which create a situation that prevents efficient and proper functioning, " my colleague the President interpreted his doctrine. For myself, I do not see fit to address the issue, from good to bad. The question of whether the grounds listed in section 4(b)(2) have been fulfilled in the matter at issue has not yet been examined by the committee, in whose hands the work was entrusted. As far as Didi is concerned, a judicial review that will also deal with the appropriate interpretation of the grounds listed therein may only take place on the basis of a concrete recommendation by the committee that will be required to do so (see, for example, of many: High Court of Justice 21480-07-25 Haifa Municipality v. National Council for Planning and Building, para. 3 [Nevo] (July 9,2025); High Court of Justice 46759-01-25 Environmental Infrastructure Association v. Minister of the Interior, para. 10 [Nevo] (October 27,2025)). This, while also paying attention to the broad discretion given to the committee in its work (regarding the standard of intervention in the decisions of appointments committees of the type we are dealing with, see the recent High Court of Justice 23426-04-26 Almakais v. the Prime Minister, paragraph 53 of the judgment of Justice Grosskopf, and the references there [Nevo] (June 1,2026)).
- Similarly, I do not intend to express a position, for the better or the better, regarding the Minister's request on its merits, nor to express any opinion on the conduct of the Commissioner in the framework of her position. It is clear, on the one hand, that the Minister has the presumption of administrative correctness, and on the other hand, it must also be assumed in relation to the Commissioner that she has carried out her duties to the best of her ability and expertise, in the public interest. As determined in the judgment that is the subject of the additional hearing, and as is now also determined by my colleague the President, the discussion of the question of whether the Minister's request is justified, and whether one of the grounds for dismissal listed in Resolution 4062 arises with respect to the Commissioner, is subject to the authority of the Committee according to the law, and it is understood that it must hear the positions of the parties with an open heart and a willing soul, consider and make recommendations as its wisdom.
- As to the essence of the law, therefore, there is an agreement between me and my colleague the President, with the exception of the issues mentioned, with respect to which I do not see fit to express a position. Nevertheless, in view of the difficult outcome of the proceedings at hand, I am not free to exempt myself without adding a few comments about the path that has brought us so far. I will focus on what I believe should be done in order to prevent a recurrence of the matter, with a forward-looking view. I will begin by referring to the role played by the Legal Advisor to the Government in the course of the proceedings, and I will conclude with comments relating to our own relations with the neighboring authorities.
On the Role of the Legal Advisor to the Government in the Proceeding
- Admittedly, on the formal level, the Civil Service Commissioner was the focus of the proceedings, and the question discussed is whether or not his decision not to convene the Appointments Committee to discuss the Minister's request falls within the scope of the authority granted to him by law. However, it seems to me that this description is far from the way things are conducted in reality. A review of the Commissioner's decision of August 12,2024, as well as the correspondence that preceded it, shows that the Commissioner's position, both in principle, with respect to his authority not to convene the Committee prior to the conduct of a "preliminary legal examination", and on the concrete level, with regard to the results of that preliminary examination, was determined in practice in the opinion received by the Commissioner from the Legal Counsel to the Government. Justice Elron also commented on this in the judgment that is the subject of the additional hearing, that "no matter how we examine the proceeding that has been conducted since the submission of the minister's request, and how we do not dress ourselves in legal garments of one kind or another while referring to abstract principles, we will reach a clear conclusion - the substantive discretion with respect to the grounds for termination of office was examined not by the members of the committee - who have the authority by law; Rather, by means of the legal counsel, which positioned itself as the sole filtering body and blocked the committee from convening and discussing the substance of the matter, inter alia by means of an interpretation according to which the Commissioner has the authority to reject the Minister's request himself" (paragraph 51; see also, and compare: High Court of Justice 5769/18 Amitai v. Minister of Science and Technology, paragraph 20 of the opinion of Justice Stein [Nevo] (March 4,2019)). Another instance of the same phenomenon was expressed in an oral hearing, when it became clear that despite the appearance of the Civil Service Commissioner as the first of the applicants listed in the title of the request to hold an additional hearing, the Commissioner himself, flesh and blood, was not even asked for his opinion regarding the request submitted on his behalf by the Attorney General's Attorney General (see: pages 37-38 of the minutes of the hearing of June 30,2026). We see that, in fact, the party that made the decision not to convene the committee to discuss the Minister's request was the Legal Advisor to the Government. The original petition was filed against this decision, and it was determined - for the second time - that it was indeed contrary to the law.
- As explained, the attribution of the decision not to convene the committee to the Civil Service Commissioner, and not to the opinion in the light of which he acted, raises a difficulty - a kind of gap between the signifier and the marker. However, the aforementioned framing has a certain element in the law that prevails in our districts, according to which "it is the legal advice to the government that reflects the executive branch of the law, within its borders, as long as no competent court has determined otherwise" (Additional Hearing High Court of Justice70105-05-25 Government of Israel v. Lewis Brandeis Institute for Society, Economics and Democracy, The College of Management Academic Track Founded by the Tel Aviv Bureaucrats' Union, Paragraph 10 [Nevo] (February 3,2026) (hereinafter: Additional Hearing, High Court of JusticeHa-HaOmsiv Justice); see also: Report of the Public Committee for the Examination of the Methods of Appointment of the Attorney General and Matters Related to His Tenure, 44 (1998) (hereinafter: the Shamgar Commission Report); Ruth Gavison, "The Attorney General: A Critical Examination of New Trends, " Criminal 5,63 (1996) (hereinafter: Gavison).); Ariel Bendor, "The Attorney General: Between Legal Position and Representation, " Mishpat Research 34,1379,1396 (2023) (hereinafter: Bandor); see and compare: Section 4 of the Attorney General's Law (Opinions, Representation and Supervision), 5786-2026, effective January 1,2027). The Commissioner should therefore not be blamed for acting in accordance with the opinion he received from the legal counsel, even though it ultimately turned out to be wrong.
- My colleague, Justice Barak-Erez, found it appropriate to emphasize that "although we do not fully accept the original position of the legal counsel, " "the policy considerations that were at the basis of it [...] were valid and proper considerations, " when she said that "the solution proposed in our judgment [...] provides a response to the justified concerns that were raised." I see things a little differently. As far as I am concerned, precisely because of the respect and preciousness with which the legal advisor's opinion is treated, the result we reached at the end of the legal process is disturbing and requires attention. In this context, and without exhausting it, I would like to expand a little on the discussion with regard to two issues: the first, and the more marginal one, relates to the Applicant's position in relation to the desired law, and to the questions that arise from it. The second, and the main, relates to the Applicant's duty to reflect to the Authority the prevailing legal situation, and to separate it from the law that she deems desirable, and the gap between this duty and the course of action taken in the matter at hand.
- I will therefore begin with the desired level of law. As my colleague, Justice Barak-Erez, points out, the type of arguments on which the Applicant relied in her position against the convening of the committee is customary to be titled 'the process is the punishment' (as in the title of Malcolm M. Smith's book). Feeley). In this context, it was argued that "the fact that at the end of the process the committee may find the minister's claims to be unjustified, does not significantly reduce the intensity of the chilling effect. This is because the process itself impairs the officer's ability to function, diverts his attention, requires him to invest a great deal of resources, and structurally and profoundly weakens his ability to stand up and fulfill his duties professionally and independently." Indeed, such a concern does exist with respect to the relevant officers, and it must be treated with the proper seriousness. However, like my colleague, Justice Stein, I too am of the opinion that the manner in which the matter was presented by the Applicant somewhat diminishes the internal integrity and solid backbone that presumes on holders of high offices, such as those who are endowed with them (paragraph 16 of his opinion in the judgment that is the subject of the additional hearing).
- Further to this, and from a broader perspective, it seems to me that an analysis of the 'dismissal laws' that apply to senior civil servants, which takes into account only the possibility of situations in which the minister or the government will initiate frivolous proceedings against his superiors, for extraneous reasons and in order to intimidate them, and ignores the possibility that an elected official will exercise this power, genuinely and sincerely, based on an honest position according to which a certain officer harms his ability to promote the public interest, in a manner consistent with the grounds set forth in the law, raises great difficulty. Of course, I do not take a position on the question of which of the options exists in this case; However, as a matter of principle, it is clear that a prudent design of the 'ex ante' dismissal mechanism must take into account both of the aforementioned possibilities, and draw up an arrangement accordingly that will relate both to the concern that a 'too light' dismissal proceeding will open the door to all those dangers presented by the Applicant, and to the opposite concern, of the design of such a cumbersome mechanism and full of hurdles and obstacles, that even a justified dismissal proceeding will not be able to come to an end within its scope. I agree with my colleague that the concerns raised by the Applicant have a balanced response within the framework of the existing mechanism - which obliges the Committee to give its opinion to the Minister's request on the one hand, but allows it, if it finds that it has an empty request before it, to respond to the Minister with a negative recommendation 'on site', on the other hand. It seems to me that it is the one that given: the government decisions in which the various aspects of the existing dismissal mechanism were anchored, created a more balanced and appropriate arrangement than the one claimed by the Applicant.
- In any event, even if the Applicant's position regarding the desired law was based on a complete and comprehensive analysis of the relevant policy considerations, it is clear that this is a secondary matter in relation to the more central duty of the legal advisor to the government - "to instruct the government authorities what is prohibited and what is permitted, what is legal and what is illegal" (Shamgar Commission Report, p. 43). On this level, it should be emphasized, as also described by my colleague the President in his detailed opinion, that not only are the concerns - as justified as they may be - "not to establish an independent source of authority for the Commissioner not to convene the Committee" (paragraph 61), but the position presented by the Applicant is not anchored in the language of the provisions of the law, and it is even contrary to the precedents that have been changed in the case law of this Court only recently, with respect to close arguments (see: paragraphs 55-57 of the President's opinion; In particular, see and compare: High Court of Justice 1711/24 The Movement for Quality Government v. Minister of Justice, paragraph 31 of the judgment of Justice Willner, and paragraphs 1-2 of the opinion of Justice A. Grosskopf [Nevo] (September 8,2024), and also compare with the Applicant's position there, as detailed in paragraph 7 of Justice Willner's judgment). The result of this is that the Applicant reflected to the Civil Service Commissioner that it is legally forbidden to convene the Committee, whereas according to the law as a whole, in accordance with the Court's decision in the judgment that is the subject of the further hearing, which we are now confirming, the Commissioner was obligated to convene the Committee; and when he did not do so, relying on the Applicant's opinion, his action lacked authority.
- In her written and oral arguments, the Applicant emphasized the precedent and primacy of the Minister's request, when in this case he was first asked to convene the Appointments Committee for the purpose of terminating the term of office of a senior officer, and the fact that, naturally, this Court has not yet addressed the issue. Admittedly, as part of his role, the Legal Counsel is required to issue legal opinions for the executive branch, even in matters on which a binding ruling of this Court has not yet been ruled, and it is natural that this may sometimes turn out to be a complex task. However, even then, the counsel is required to separate "between the description of an existing and agreed legal situation and a legal development, which is a more speculative matter" (Gavison, p. 110); and "to ensure that his or that of others in the legal counsel system point to a restriction that applies to the elected or professional echelon to make or implement the decisions that it deems appropriate, or to oblige them to act contrary to their understanding only when the law prohibits the authorities from acting as they wish or obliges them to act in a certain manner" (Bander, p. 1397; emphases in original). To this end, it is expected that the opinion will be based, first and foremost, on the relevant provisions of the law and on inferences from the existing case law, before turning to general principles and insights regarding the proper law. Looking ahead, it seems to me that good advice is that "if there is no concrete legal precedent by the Supreme Court, the Attorney General must show a restrained approach and allow the officers, especially in the case of elected officials, to make the decision that they deem appropriate, even if he is of the opinion that the decision raises legal difficulties, when he assesses that there is a small chance that the court will not invalidate it" (Bendor, p. 1396).
- I do not, therefore, believe that the fact that the Applicant based her opinion on policy considerations that may be appropriate reduces the difficulty posed by the fact that the Civil Service Commissioner was presented with an erroneous legal picture. As far as I am concerned, the conclusion we have reached, according to which the concerns described have a simple solution within the framework of the existing law, actually highlights the difficulty in the conduct of the legal counsel to the government, which - and not the court - was charged with the responsibility of "assisting the government authorities to find a legal solution to their problems" (Shamgar Commission Report, p. 44). After all, at the end of another hearing in an expanded panel, it turns out that none of the six justices who were asked to address the issue saw fit to go as far as the position of the legal counsel was. All of them were of the opinion - albeit to varying degrees - that the law was closer to the position of the minister than was claimed. The chronicles of the present proceeding, therefore, once again sharpen the lessons required by the Legal Advisor to the Government (on this, see: Additional Hearing of the High Court of Justiceof the Commissioner, paragraphs 10-11; High Court of Justice 31238-09-24 Minister of National Security v. Attorney General, para. 39 [Nevo] (March 9,2025)); Its essence is the need, which is in fact an obligation, to adhere to the law as it is, and not to sail to other districts.
- I will say this in "Rachel Your Little Daughter": Concerns presented by the legal advisor to the government about the negative effects of the actions of the government authorities on the public interest - although they should not be taken lightly, of course - cannot overcome the basic obligation to present the law to the authorities as it is. Apart from the damage caused to the rule of law and basic democratic values (with an emphasis on the principle of representation), as a result of the fact that an elected official is prevented from taking an action that he is entitled to perform by law (in this case, to hear the recommendation of the Appointments Committee regarding his request, affirmative or negative), in the long term such conduct is liable to undermine the status of the legal advisor to the government, and under the assumption that his position on what is permitted and what is forbidden reflects the prevailing legal situation. Scholars well warned:
"Just as a larger kingdom is not necessarily stronger, so the addition of powers is not always an addition of power. Kingdoms weaken and collapse when their territories expand greatly and their borders become so long that they can no longer be controlled as before. In this spirit, the question is what strengthens the Attorney General and what weakens him. In our opinion, the institution of the Attorney General is liable to be weakened, God forbid, precisely when it is attacked, if its spheres spread too far from the core of legal advice to the government in its literal sense. The striving to achieve absolute power, to block every loophole and to protect against any possible danger is often a dangerous illusion, which leads to the opposite result than hoped. You caught a lot - you didn't catch [...] Ultimately, the obsessive establishment of lines of defense means that the Torah barriers rise up against the Torah itself. The guards at the front posts are better armed and become more threatening. They stand on the first line of defense of the kingdom of justice, ready to shoot even at 'infiltrators' who have not yet reached the border and have not yet attempted to cross it. They may even occupy territory beyond the kingdom's border in order to prevent access to the kingdom itself; to establish a normative safety belt even before the legal border; and to protect with all their binding power 'proper norms' that have not yet been anchored in law or case law" (Eitan Levontin and Ruth Gavison, "The 'Binding' Position of the Attorney General, " Shamgar Book - Articles Part I , 221,284-221 (Aharon Barak, ed. 2003) (hereinafter: Gavison and Levontin); Emphasis added - v. S.; See also: Additional Hearing of the High Court of JusticeHanatziv, paragraph 145 of the judgment of Justice D. Mintz).