Israel's decision allowing PM to pick public service czar is illegal, A-G tells High Court

The government’s decision in August to enable Prime Minister Benjamin Netanyahu to personally choose Israel’s next public-service czar, officially the civil service commissioner (CSC), was an illegal attempt at political takeover of the public service, Attorney-General Gali Baharav-Miara wrote on Sunday in response to a High Court of Justice petition on the matter.

The response indicated yet another clash between the attorney general’s office and the government, whose members have argued that the AG is intentionally attempting to wrest powers away from it. The AG has countered by arguing on many occasions that she would not have had to intervene repeatedly if the government had ceased attempting to pass decisions that violate the law.

The civil service commissioner is the official supervisor of the state’s tens of thousands of civil servants, and has broad authority, including approving the allotment of positions and authorities between and within administrative units; establishing administrative regulations for government institutions; chairing an appointment committee for senior civil service positions; and more.

The current commissioner, Prof. Daniel Hershkowitz, was set to retire in September, but his term was extended by three months due to the ongoing argument between Prime Minister Benjamin Netanyahu and the attorney general’s office over the appointment process of the next commissioner.

Israeli law simply says that the government appoints the commissioner, without laying out the relevant process. In 2018, before Hershkowitz’s appointment via an ad-hoc committee, the Netanyahu-led government decided that it would formulate a regular procedure ahead of the next CSC appointment, after consulting with the attorney general and other legal bodies.

The attorney general’s office presented its recommendation in June, but the government in August rejected it and decided instead for another ad-hoc, one-time solution: Netanyahu will choose the commissioner, and then have the choice ratified by Israel’s Senior Appointments Advisory Committee (SAAC), which approves appointments of seven senior positions, mainly in the security and economic establishments.

This was unacceptable, Deputy Attorney-General Gil Limon wrote ahead of the government’s August decision. According to Limon, the SAAC was an inappropriate venue for appointing the CSC, since it only looked into candidates’ integrity but not into their professional qualifications. While the SAAC usually approves candidates from a small pool of candidates who are assumed to be appropriate to the high-ranking open position, the civil service commissioner can come from a wide variety of fields, and the pool of candidates is enormous. A nominating committee must therefore look into qualifications and not just integrity, Limon argued at the time.

THE NOMINATING process of the CSC was especially important since the CSC is responsible for ensuring the professional and apolitical character of the entire civil service, and as such is a major gatekeeper, Baharav-Miara added in her response to the High Court petition on Sunday. Baharav-Miara added that her office had already ruled in August that the government’s proposal was not legally viable, and the fact that the government went ahead and approved it regardless was a violation of numerous High Court rulings, which stipulated that the AG’s interpretation of the law was legally binding.

Rather, the appropriate appointing procedure for the CSC was what is known as a “search committee,” whereby an independent committee actively searches for and approves candidates, and then recommends one or a number from which the government may choose between, the attorney-general wrote. The makeup of the independent committee could be negotiated, she added.

A 'clash of two views'

Netanyahu said in August that the argument between him and the attorney general’s office represented a “clash of two views – a decision by the clerks or a decision by the people.” According to Netanyahu, if the people believe that the appointment was flawed, they can replace the government, which can then make new appointments.

Baharav-Miara wrote in her response to the High Court on Sunday that this approach reflected a “formal and very narrow understanding of democracy, that is not consistent with High Court rulings regarding the need for checks and balances between and within the branches of government in general, and regarding the professionalism and apolitical character of the public service in particular.”

Baharav-Miara added, “Under the title ‘governance and democracy,’ the government wishes, by thinning the appointment process of the civil service commissioner, to essentially undermine his basic role in maintaining the state-loyal, independent, and apolitical character of the public service, and as a derivative of this – to weaken his role in safeguarding fundamental democratic principles of the rule of law and proper governance.”

The case in question was a merger of petitions filed by The Louis Brandeis Institute for Society, Economy and Democracy, the Manor Center within The One Hundred Initiative, the Movement for Quality Government in Israel, and the Histadrut.