The judgment that is the subject of the additional hearing
- As stated at the outset, in the judgment the petition was accepted by a majority opinion of the justices Elron andשטיין, against the judge's dissenting opinion Kabub.
- At the beginning of his opinion, the judge noted Elron that he was not required to discuss the independent and professional nature of the position of the Commissioner, an issue that was not in dispute; and that he was not required to elaborate even on the issue of the nature of the Supervisor's functioning, both for the procedural reason that an order nisi was not issued on this ground, and for the substantive reason that this Court is at a clear professional disadvantage on this issue and that the Appointments Committee is the body charged with examining such claims. Against this background, the judge turned Elron To present the three issues that are at the core of the dispute - the validity and status of the preliminary examination process conducted by the Legal Advisor to the Government; the scope of the Commissioner's discretion not to convene the committee; and the interpretation of the grounds for termination of office relating to a severe and ongoing crisis of confidence.
- First, the judge Elron noted that there is no dispute that the government is the authority to terminate the term of office of the commissioner, but that the exercise of its authority is subordinate, like any other administrative authority, to the rules of administrative law. In this context, the judge Elron discussed the various government decisions that regulate the stages of the process for termination of the term of office of a senior officer in the public service, and which, as stated, may direct and limit the government's discretion. This is done, inter alia, by creating an "external" mechanism that requires the recommendation of the Appointments Committee to be received prior to a decision to terminate a term, and by determining limited and defined grounds for which a term of office can be terminated. Against the background of this starting point - the recognition of the government's authority alongside its limitations - the judge turned Elron examine the arguments regarding the status of the preliminary examination process conducted by the Legal Advisor to the Government. In this regard, the judge Elron He was of the opinion that, as a rule, there is an interpretive difficulty in adapting the provisions set forth in the Commissioner's Directive - which is directed entirely at the process of appointment - also to the process of termination of office. Specifically, the judge Elron discussed the linguistic interpretation of section 3.d of the Commissioner's Directive, as formulated at the time, and held that it cannot be called a process of substantive examination of the Minister's request, which deviates from the grounds of disqualification enumerated therein, in a manner that transfers the discretion given to the Committee as a whole to the Legal Counsel and the Commissioner alone. Therefore, the position of the State Respondents that the Commissioner's Directive establishes authority for the conduct of a preliminary examination proceeding was rejected.
- Similarly, the state's respondents' general argument that the principles of administrative law, as well as considerations stemming from the fear of a "chilling effect", also established justification for the existence of the preliminary examination process prior to a decision to convene the appointments committee. In this context, the judge erred Elron that it is precisely the adoption of the state's respondents' approach that will increase the "chilling effect", since the higher the threshold is set for the convening of the committee, the more significant its actual convening will have on the officer; that it is precisely the prolongation of the proceedings in the framework of the preliminary examination that raises the difficulty; that senior public servants are not a "leaf that is swept away" that bows to the will of the minister, and their professional "backbone" is not in doubt, and therefore there is no real concern about a "chilling effect"; and that the fear of a "chilling effect" is counter-vised by the fear that the failure to convene the committee will lead to almost "immunity" of officers from termination of their tenure. In view of all of the above, it was determined that there is no solid normative basis, if any, for conducting the preliminary examination stage in the format in which it was carried out.
- Subsequently, the judge asked Elron to examine whether, as a rule, and not in the framework of a preliminary examination, the Civil Service Commissioner has the authority to "dismiss out of hand" the minister's request without bringing it to the committee's examination. In this regard, the judge ruled Elron that there is no explicit authority in government decisions or in the Commissioner's directive that grants the Commissioner the authority to block or reject a minister's request without transferring it to the Appointments Committee. It was found that the authorization of the Civil Service Commission as the coordinator of the Committee's work (section 4.d(3) of Resolution 4062) grants the Commissioner only procedural powers, and therefore there is no basis for the claim that the Commissioner has substantive authority that is superior to the other members of the Committee, which allows him to reject the Minister's request without convening it. On the contrary, it was noted that the language of the relevant Government Decision explicitly states that the authority is vested in the Committee as a whole.
At the same time, the judge clarified Elron Because the question of whether it should necessarily be inferred from the aforesaid that the commissioner must convene the committee automatically, in every case in which the minister approaches, is complex, and that it is not possible to anticipate the myriad of possible future scenarios in which it will arise. In any event, the judge Elron He held that in any event, in the circumstances of the case, the Minister's request was not unfounded or amounted to an empty request, and therefore, it is clear that in the circumstances of the present case there was no reason to reject it out of hand. In view of the aforesaid, it was held that the Commissioner's decision exceeded the limits of the very limited administrative discretion given to him for the purpose of convening the Committee.
- Finally, the judge Elron He moved to examine the interpretation of the grounds for termination of office, which concerns a severe and ongoing crisis of confidence, as an additional reason for not convening the committee. In the meantime, the judge ruled Elron Because in terms of the "intensity" of the lack of trust, it is necessary to point to a consistent crisis of trust of a significant degree of severity. At the same time, the judge Elron Noted that trust, by definition, is a term Subjective, even though for the purpose of examining it it is possible to use certain objective elements; and that the very existence of a cause for termination of office that concerns a severe and ongoing crisis of confidence assumes that at least a certain degree of trust is required between the officer and the ministerial superiors above him. Hence, the judge Elron rejected the state's respondents' argument that the fear of a misinterpretation of the cause of action should lead to the non-convening of the committee, and ruled that the place to examine the existence of the cause of action is within the framework of the committee's deliberations and by its members; and that no decision should be made at this stage as to the "authenticity" of the alleged crisis of trust between the minister and the commissioner, an issue that should be decided by the committee itself.
- In summary of his opinion, the judge Elron He emphasized that the outline set out in the government decisions and in the Commissioner's directive is in itself the mechanism that "restrains" the government's authority to terminate the term of office of an officer during the fixed period, and it is the one that reduces its scope of discretion. Therefore, it was determined that there is no room to add additional restrictions by way of interpretation. It was further clarified that it will also be possible to conduct judicial review of the committee's decision in accordance with the rules of administrative law. In light of the above, the judge's position Elron It was that the order nisi should be turned into an absolute order so that the commissioner would convene the appointments committee in order to examine the minister's claims regarding the lack of trust between him and the commissioner.
- The Judge שטיין He concurred that the petition should be accepted and that the commissioner was required to convene the committee, but clarified that his path was shorter. According to him, the language of the law is clear and states that the powers of appointment and dismissal are vested in the government, in accordance with the minister's recommendation. The exercise of such powers is subject to the rules of administrative law, and for these reasons, the government has established a special committee that is supposed to formulate a recommendation regarding the termination of the term of office of senior officials in the civil service, subject to the grounds for termination of office set out in the government's decision. Since the commissioner was not authorized by any legislation to reject out of hand a request by the minister for termination of office, the judge ruled שטיין that he does not have the authority to do so. It was further held that the Commissioner's position at the head of the committee grants him auxiliary procedural powers accompanying the position, but it does not grant him the authority to make a substantive decision that prevents the committee from convening. As to the claim of the "chilling effect", the judge שטיין that it has the power to establish the desired law, but not the existing law; that the mere granting of a substantial part of the dismissal process to the Appointments Committee in itself reduces the fear of a "chilling effect"; and that the consent of a senior officer to accept the position should not be seen as a benefit that may be taken from him, but rather as a decision that benefits the state, and it is the one that should be concerned about the possibility of losing the service of a highly qualified officer.
- On the other hand, the judge's opinion Kabub as stated, it was different, and he was of the opinion that the petition should be dismissed. At first, the judge stood Kabub on a procedural difficulty that arises from the way in which the majority opinion operates. According to him, the significance of the order nisi issued on February 3,2025 - which, as stated, referred only to the cause of the crisis of confidence - was that the Commissioner's decision not to convene the committee to discuss Grounds for non-conformity ratified in practice by the court. Thus, according to him, the arguments in the matter were rejected already at the stage of the order nisi עצם The Commissioner's authority not to convene the committee and it was determined that the authority exists (otherwise there would be no reason to limit the hearing to only one ground). This means that the opinions of the other panel judges deviate from the boundaries of the order nisi that was granted. If so, according to the judge's approach Kabub, the starting point is that the commissioner has the authority not to convene the committee, but it is necessary to examine the considerations on the basis of which he is permitted to do so.
- Against this background, the judge continued Kabub He noted that the Commissioner's decision whether to convene the committee or to refrain from doing so is an administrative decision, and therefore the Commissioner has discretion. In this context, the judge added Kabub The fact that the Minister's request is submitted to the Commissioner and he orders the convening of the committee also shows that he is given discretion to do so. In his view, the considerations that the Commissioner must consider derive from the purpose for which the Appointments Committee was established - to ensure that a decision on the termination of the term of office of officers whose independence is a central pillar of their duties is made out of practical considerations and not political considerations. The Judge Kabub He insisted that in the usual case, there should be no "substantive and evidentiary examination" of the Minister's claims, and that the starting point is that these claims are intended to be clarified by the committee as a whole and not by the Commissioner or the legal counsel to the Civil Service Commission. At the same time, the judge Kabub He ruled that the exception to the aforementioned rule should be recognized. According to him, where there are real indications that point to extraneous considerations or other serious administrative defects that underlie the Minister's request, it is appropriate for the Commissioner to clarify these arguments before convening the committee, since in these circumstances it is the Minister who acts, prima facie, without authority.
- From the general to the individual, the judge Kabub He was of the opinion that the opinion of his colleagues on the panel did not adequately address an important factual fact, namely the meeting that took place between the Minister and the Commissioner not long after the Minister took office, in which, according to the claim, an attempt was made to influence the independent judgment of the Commissioner. The Judge Kabub He ruled that since this factual version was presented to the Commissioner by the Commissioner, the Commissioner could not ignore the real concern that the Minister's request to convene the committee stemmed from extraneous considerations, the main of which was his desire to bring about the dismissal of the Commissioner. This was in view of the Commissioner's refusal to comply with his demands on matters that were subject to its independent discretion. Since this is the prima facie factual basis presented to the Commissioner, it emerges that the Minister was not authorized to request the convening of the Committee, the Judge Kabub found that the Commissioner was not obligated to comply with this request. In this regard, the judge Kabub He gave significant weight to the fact that the Minister did not appear for the proceedings in court and did not give an affidavit on his behalf regarding the circumstances under which the process of termination of the term of office of the Commissioner was requested.
- As to the cause of the crisis of confidence, the judge Kabub He emphasized that even if the cause has a dimension Little More subjective than other grounds, it is not based solely on "things of the heart", for if this were the case, there would be no reason to require an external and objective committee to examine the existence of the cause. Therefore, it is required that an external party be under the impression on the basis of a proper factual basis that there are reasons Objective that attest to the existence of a severe and ongoing crisis of trust between the minister and the commissioner.
The Request for Further Hearing
- On August 12,2025, it was submitted by the Civil Service Commissioner, the Appointments Committee, and the Attorney General (hereinafter: The Applicants) a request to hold an additional hearing of the judgment. The motion argues, in essence and in summary, that the judgment that is the subject of the request for an additional hearing precedentedly ordered the Commissioner to convene the Appointments Committee, and that this is the first case in which this Court permitted the advancement of proceedings for the termination of the term of office of a senior officer during his fixed term of office. Against this background, it was argued that the judgment has significant implications for the future functioning of senior officers in the public service, knowing that it is possible to initiate a proceeding to remove them at any time, even without the requirement of a preliminary evidentiary basis. In this context, it was clarified that the fact that at the end of the process the committee may find the minister's claims unjustified, does not diminish the intensity of the "chilling effect" that the proceeding itself will cause. The applicants insisted on the renewal of the rule ruled by the majority opinion in the judgment, according to which the commissioner's authority not to convene the appointments committee was revoked, and instead it was determined that the commissioner must convene the committee almost "automatically" where he is asked to do so. According to them, the new rule is even more difficult in view of the implications inherent in opening such a proceeding and the fact that the majority opinion in the judgment did not give sufficient weight to the concern of a "chilling effect". Moreover, it was argued that the difficulty embodied in the rule is even more acute in light of the judge's rulings Elron with respect to the interpretation of the cause of "acute and ongoing crisis of confidence", and in particular with regard to its subjective nature. In this context, it was emphasized that this position contradicts previous rulings of this Court with respect to this ground, which were determined In a High Court of Justice case 54321-03-25 The Movement for Quality Government in Israel v. The Government of Israel [Nevo] (May 21,2025) (hereinafter: the Matter Head of the Shin Bet).
- On the other hand, the Minister, who received separate representation in this proceeding, argued that the motion to dismiss out of hand was lawful since it was submitted without the Ombudsman's consent, who, to the best of his knowledge, does not even believe that there is room to hold an additional hearing of the judgment; and even though it was not at the discretion of the Committee, which in any case did not convene. It was further argued that the application was filed in contravention of the Attorney General's duty to represent, and that too it should be rejected out of hand. On the merits, it was argued that the judgment only applied trivial precedents from administrative law, and it appears that the application was filed in an attempt to annul the result of the judgment based on speculative scenarios such as the "chilling effect". Finally, it was argued that the Applicants' arguments with respect to the cause of the "crisis of confidence" are clear 'appeals' arguments that do not warrant further hearing.
Lavie joined the minister's position that there is no reason to hold another hearing on the judgment. According to her position, it is doubtful whether the judgment contained a new rule, let alone one that justifies contemplating the outcome of the judgment. In any event, Lavi also emphasizes that the applicants' arguments are based solely on speculative concerns.
- To complete the picture, it should be noted that alongside the request for an additional hearing, a request was also filed to delay the execution of the judgment. On September 14,2025, and in order to prevent an irreversible situation that could thwart the further investigation of the request, a temporary order was issued to delay the execution of the judgment that is the subject of the request, with all that this entails regarding the convening of the Appointments Committee and the continuation of the process of termination of the term of office of the Director-General, until a different decision is made.
- In my decision of January 15,2026, I ordered that an additional hearing be held in the judgment after I considered "the nature and importance of the issues that arise within the framework of the proceeding, relating to the powers of the Civil Service Commissioner, and their broad implications for the termination of the term of office of senior officers in the public service." It should be emphasized that in this regard, I have given my attention to the fact that we are dealing with a precedential case in which for the first time a minister requested to convene the Appointments Committee for the purpose of ending the term of office of a senior officer such as the Commissioner of Competition. As a result, the judgment that is the subject of the application is the first case in which this Court was required to discuss the limits of the powers of the Civil Service Commissioner and the Appointments Committee in the framework of proceedings for termination of the term of office of a senior officer during his fixed term of office. In these circumstances, I am of the opinion that there is great importance in improving and sharpening the law in relation to the issues that arise within the framework of the judgment, while creating legal certainty with a forward-looking perspective.
[Indeed, arguments similar to those that arise here were raised only recently, after I decided to hold another hearing, in the framework of another proceeding concerning the request of the Minister of Religious Services to terminate the term of the Director General of the Chief Rabbinate (High Court of Justice 10925-03-26 Director General of the Chief Rabbinate of Israel v. Acting Civil Service Commissioner [Nevo] (June 29,2026)). At the end of the day, the proceedings there were deleted, but this illustrates the broad implications of the judgment that is the subject of the application.]
- To complete the picture, it should be noted that in my decision of January 15,2026, I found to reject the Minister's arguments that the request for an additional hearing should be deleted out of hand, which he claimed was submitted without the consent of the Commissioner and the Committee. As stated in this decision, the Minister's arguments in this regard were raised without being supported by an affidavit and without a concrete argument being raised in this regard by Applicants 1-2 themselves. In any event, it was clarified that in accordance with the Directive Section 30(II) Law The Courts [Consolidated Version], 5744-1984, Filing a request for an additional hearing is a procedural right given to every party in the proceeding that is the subject of the motion, including the Attorney General, who was a respondent in the present proceeding. I also rejected the Minister's argument that the Attorney General's request to hold an additional hearing is contrary to her duty to represent. In this context, I also found it necessary to note that:
"From a broad perspective, it should be noted that in view of the objectives of the additional hearing proceeding - as a procedure intended to put precedent on a machine on issues of principle that inherently affect the broad public interest - this Court has in the past shown a broad approach regarding the possibility of the Attorney General to voice his position in the framework of this proceeding. This is true even in cases where the Attorney General was not a party to the proceeding that is the subject of the additional hearing, and even when he sought to expand his arguments beyond those raised by the original parties (Additional Civil Hearing 7398/09 Jerusalem Municipality v. Clalit Health Services, paragraph 24 of the judgment of President (ret.) A. Grunis and the judgment of Justice A. Vogelman [Nevo] (April 14,2015); see also: Miscellaneous Applications Civil 4123/19 State of Israel v. Picali, paragraphs 15-16 [Nevo] (July 1,2019)). Even in view of this approach, I did not find it appropriate to accept the Minister's arguments in this context" (ibid., at paragraph 3).