In blow to government, court strikes down appointments process for civil service head

In the latest blow by the High Court of Justice against the current hardline government, the top legal panel ruled on Monday that a cabinet resolution from 2024 to appoint a new head of the Civil Service without a competitive process is invalid.

In a two-to-one decision, the court determined that the process for appointing a Civil Service commissioner must be carried out by creating a permanent appointments process, which involves a competitive hiring system.

The 2024 cabinet resolution had created a formula whereby the prime minister, in an ad hoc process, would nominate one candidate and have their background vetted, but not their qualifications for the position. After legal pressure, the government agreed to have their qualifications vetted too.

But following petitions by government watchdogs, the court on Monday ruled that such a system still did not include sufficient guardrails to guarantee the independence, impartiality and apolitical nature of the Civil Service commissioner role, and neither would it ensure that the best candidate would be appointed to the job.

Writing for the majority, Supreme Court President Isaac Amit acknowledged that the Civil Service Law states explicitly that there is no obligation to issue a public tender for the position, something which could, in theory, legitimize the government’s method of picking one candidate for approval, without having a competitive process.

He wrote, however, that this did not exempt the government from abiding by the principles of administrative law when passing cabinet resolutions.

Prime Minister Benjamin Netanyahu leads a government meeting at the IDF headquarters in Tel Aviv on December 31, 2023. (Miriam Alster/Flash90)

Amit also noted that the Civil Service Law, as a whole, was intended to ensure the professionalism and impartiality of the public service as an apolitical institution and prevent the appointment of officials based on improper considerations such as party affiliation or personal kinship.

These guarantees were all the more important when appointing a civil service commissioner, Amit wrote, since the position can be considered one of the “gatekeepers” upholding the rule of law in Israel due to the significant authorities invested in the office and the appointeee’s responsibility to maintain a politically neutral and impartial public service.

Amit pointed out that the system proposed by the government would give “decisive” influence of politicians over the process, with the prime minister nominating a candidate and an appointments committee whose members themselves would have been selected only by politicians vetting the candidate.

Having a competitive process through which multiple candidates are evaluated would help identify the best available individual to fill the role and prevent “the penetration of political considerations” into the appointments process, Amit argued.

His ruling also essentially ordered the government not to suffice with an ad hoc appointment process, as had been used to appoint recent Civil Service commissioners, and instead create a permanent system for selecting the position.

In a dissenting opinion, Deputy Supreme Court President Noam Sohlberg wrote that there is no justification for the court to intervene on the issue, since the law for the Civil Service states explicitly that there is no obligation to issue a public tender for the position.

It was not right, therefore, to use judicial review for an administrative law when the legislature had decided that a competitive appointments process was not obligatory.

Communications Minister Shlomo Karhi, a radical voice in the Likud party, urged Prime Minister Benjamin Netanyahu to ignore the court ruling, calling the majority judges “anti-democratic” and accusing them of “showing contempt for the law.”

“We have another opportunity to say to the High Court, ‘No!’ To protect democracy and the balance between the branches of government, we have to tell the High Court ‘No!’” he tweeted

The Movement for Quality Government in Israel, one of the petitioners, said, however, that the ruling “constitutes another pillar in protecting the independence and professionalism of the public service.”