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

The Procedure and its Punishment - On the Relativity of Time

15. I mentioned above the central place occupied in the Applicant's arguments by the concern of a situation in which the dismissal proceeding would be in the form of 'the process is the punishment' for the Director-General. However, it seems to me that in our case, this concern, of the costs of the proceeding, which are not dependent on its final outcome, has been expressed in a completely different way, and it is actually the Minister who experienced this.  Thus, it is true that it has now been determined that he was right in his arguments, but taking into account the period that he still has left to serve as a minister, our judgment for him is like the etrogim after Sukkot.
16. As detailed by my colleague the President in his opinion, the Minister's request to remove the Commissioner of Competition from her position was forwarded to the Civil Service Commissioner on January 28,2024. Only after about 7 long months of "preliminary examination" (see and compare: High Court of Justice 5483/95 Gindi v.  Minister of Religious Affairs, IsrSC 49(5) 661,670-671 (1996)), and after a petition was filed on the matter, the Minister "merited" to receive on August 12,2024, a final decision from the Commissioner, based on a legal opinion by the Deputy Attorney General (Public-Administrative Law), in which he announced that "there is no reason to convene the Appointments Committee in accordance with your request." Hence, two years of litigation in this court, the result of which was determined - twice - that there was no justification for refusing to hear the minister's request.  Now that the Knesset has dissolved, and the government, and the minister in it, is nearing its end, the minister returns to the starting point of the proceeding, when his original request has not yet been heard on its merits.  It is well known that 'late justice is justice that has been denied'; this is also the case in the case before us, which was signed with a judgment that is to a large extent "like snow in summer and like a rain in the harvest" (Mishlei 26:1).
17. I have already discussed the Applicant's 'contribution' to the situation described, but it seems to me that we, too, in court, have an institutional responsibility to prevent the recurrence of the matter, with a forward-looking view. In this context, we must remember that there is no 'judicial time' like the time of an elected official.  It is well known that one of the most fundamental differences in any democratic country, between the legislative and executive branches, and the judiciary, lies in the fact that unlike judges, who are appointed for long terms and are not required to be appointed or re-elected, members of the political branches are elected or appointed for relatively short and limited terms (for a classic description of this state of affairs and the reasons underlying it, as well as its many implications for the decentralization of power between the branches, see: Alexander Hamilton, James Madison, and John J.  The Federalist (article 78) (Aharon Amir, 2004)).  At the end of their term, elected officials are required to return to the public, and to seek their trust again, based on their actions and achievements during their term of office.
18. These words, as is well known, take it for granted that it is impossible to accept a situation in which an elected official is prevented from acting lawfully, as was already determined at the conclusion of two legal proceedings - according to his view, until he received confirmation (and additional approval) from the court that he wished to act in accordance with the law (in his request to hear the committee's recommendation; as to the request for dismissal, I will emphasize again, I am not taking a position), his term came to an end. Admittedly, in terms of 'trial years', a period of 3 years is indeed not an exception in our districts, for the purpose of clarifying a petition tothe High Court of Justice that is being held for further hearing.  However, for elected officials, this is a period of time that covers most of the years of office, and often even more.  Heaven forbid that it seems to us that terrible gatekeeper who declares that "no one but you could have been allowed to enter here, because this entrance is only for you.  Now I am going to close it" (Franz Kafka, "Before the Law, " The Sentence and Other Stories 86 (translated by Ilana Hammerman, 1997)).  Alongside the unfairness of such conduct towards the minister, who has a presumption of propriety in his actions (see, for example: High Court of Justice 8173/21 The Movement for Quality Government in Israel v.  Government of Israel, paragraph 55 of the judgment of Justice Stein [Nevo] (May 22,2022)), particularly troubling is the democratic deficit that has been created as a result of it, due to which we are liable to reach a situation in which "The public loses faith both in the power of politicians to decide and control, in the authority and wisdom of jurists to advise, and in its own ability to influence the course of life in a democratic state" (Gavison and Levontine, p.  267).
19. For all the reasons aforesaid, I find it difficult to accept the position of my colleague the President, who describes the prolongation of the proceedings in this case as a more or less natural result of "the precedential nature of the proceeding before us, which revolves around legal issues that have not yet received sufficient clarification" and believes that it is sufficient to suffice with the expectation that "now that the normative framework has become clear, [...] future proceedings, if any, will be conducted with the appropriate efficiency and speed" (paragraph 84). On the practical level, and with a forward-looking outlook, I am of the opinion that even when precedential issues come before us - "new ones have come from among them, not the deceit of your fathers" (Deuteronomy 32:17) - we would do well to find ways to enable the elected authority to continue to act, as far as possible, in the concrete matter that it seeks to promote, especially where it already has a determination by this court that it is acting lawfully.  or when it is possible to isolate the concrete case and avoid troubling broad consequences (for such a line of action, see: Additional Administrative Hearing 5331/24 Population and Immigration Authority v.  Azania Clement [Nevo] (July 8,2024); Additional Hearing: High Court of Justice54128-11-25 Israeli Democracy Guard v.  Minister of Justice, para.  3 [Nevo] (December 4,2025); High Court of Justice 15779-03-25 The Movement for Quality Government in Israel v.  Knesset [Nevo] (July 2,2025)).
20. From an even broader perspective, and taking into account the many cases that come before us, in which urgent temporary remedies are requested to delay the Authority's action from the very beginning, it is appropriate that this special 'anti-domination difficulty' caused by legal inhibitions should have a great impact on the discussion that we are conducting in the framework of the famous 'parallelism of forces'. Thus, for example, in the level of the chances of a petition, great weight should be given to the presumption of administrative correctness, especially when we are dealing with elected officials, and a higher evidentiary standard should be set regarding early intervention in the action being attacked, as opposed to the usual situation (see: High Court of Justice 3330/97 Or Yehuda Municipality v.  Government of Israel, IsrSC 51(3) 472,478 (1997); Dafna Barak-Erez Mishpat Administrative Law Vol.  4 29,441 (2017)).  On the level of the 'balance of convenience', it is appropriate to also consider the serious damage caused to "the entire public", in a case in which an elected authority is prevented from realizing its viewpoint, on pretexts that will eventually turn out to be wrong (see and compare: High Court of Justice 1715/97 Association of Investment Managers in Israel v.  Minister of Finance, IsrSC 51(4) 367,381 (1997)).  It is also clear that in exceptional cases in which - after we have warned ourselves with all the above warnings - it has been found that there is room to delay the implementation of the decision of the elected echelon until the completion of the proceeding, it is necessary to expedite the clarification of the matter accordingly; this is in order to prevent a situation in which what will determine the fate of a petition is not the substantive law that applies to it, but rather the length of time required for its clarification (see and compare: High Court of Justice 35011-06-26 The Movement for Quality Government in Israel v.  Knesset [Nevo] (September 3,2026); as well as the incarnation of the petition in High Court of Justice case 75050-01-25 Israel Bar Association v.  Knesset [Nevo]).
21. Despite the agreements that we have reached regarding Shurat Ha-Din, and despite the fact that "there is no joy in the world like the clearing of doubts" (Metzudat David's commentary on Mishlei 15:30), there is no denying that the end of the long saga does not bring with it much satisfaction. This is not only due to the nature of the issue at hand, but also because of all the "negative externalizations" of the proceedings, which I listed above, and which are now in the category of "coins that cannot be corrected" (Ecclesiastes 1:15).
22. In the margins: During this period I am wearing another 'hat' as chairman of the Central Elections Committee, and therefore I will refrain from referring to the words of my colleague in paragraph 88.