However, Prime Minister Benjamin Netanyahu rejected the proposal and decided instead that he would personally choose the next commissioner, whose integrity (but not legal background) would then need to be vetted by the Senior Appointments Advisory Committee, bringing the matter to Sunday’s hearing.
Willner said that the proper order of operations would be to require the government to establish a procedure for appointing the commissioner, which could then be subject to review. She also noted her preference for a compromise, though it may already be too late.
She further noted that the government exempted this post from a tender process but did not amend the law even when it had the opportunity to do so, and that for years, commissioners have been appointed accordingly. The question now, she said, is whether this situation has reached a level of extreme unreasonableness.
Willner also raised the possibility of remanding the matter to the government for a more thorough examination, while Amit noted that the government had already had four opportunities to do so.
The government’s position is that while a competitive procedure may be desirable for the appointment, it is not legally required, and imposing one would exceed the court's jurisdiction.
The judges pressed government representative attorney David Peter for explanations. Amit said, “There is no question the commissioner’s appointment needs independence, impartiality, and professionalism… There is also no opposition to the position that the appointment falls to the authority of the government, but authority is one matter, and procedure is another.”
Is everything political?
Barak-Erez commented that the government’s decision “is vague and unreasonable” and fails to address the essential questions raised by petitioners. Willner added, “Even in the construct of a competitive process, it is ultimately the government that decides.”
Amit noted that the government repeatedly promised to set an orderly process but had failed to do so, hence the court’s determination of the need for a competitive procedure. Peter argued that the quality of the civil service is a political matter at its core.
Amit responded, “I read your submissions; for you, everything is political. When a citizen waits 20 minutes in the blazing sun at a bus stop, is that political? What is political about citizens’ daily lives?” Peter replied, “Yes, because decisions on where to invest resources are political questions.”
Willner remarked on the growing number of appointments made without tenders: “This is a troubling figure that should alarm every citizen… Was this considered by the government?” Peter replied that it was.
Willner said, “A competitive process is indeed preferable; it improves the appointment procedure, and we would all benefit. That is not the question. The question is: What is the legal source for obligating the government to conduct such a process?”
Eliav Breuer contributed to this report.