Yesterday, the government unanimously approved the proposal of Prime Minister Benjamin Netanyahu empowering him to choose the next Civil Service Commissioner himself, subject to vetting by an ethics committee. The decision is contrary to the stance of Attorney General Gali Baharav Miara, who, together with Deputy Attorney General Gil Limon, argued that the proceeding was improper, and that there were legal objections to it.
In effect, the government seeks to return to the old appointments method that prevailed before 2018, whereby it selected the commissioner, and the appointment was screened by an ethics committee, without any professional qualification requirements. In her written opinion, Baharav Miara cites a ruling by the High Court of Justice on a similar matter, and states, "We again have before us a response that amounts to ‘rely on us’. But as I made clear above, in a democratic country that kind of response is unacceptable. Rather, there should be mechanisms that will prevent having to trust the executive arm blindly."
Not just ethics
The Civil Service Commissioner is in charge of manpower in government ministries. He is responsible for building the human capital in the public sector, setting criteria and selection methods for employees, the training they should undergo, and how disciplinary procedures will work. Part of his job is to head the committee responsible for senior professional appointments, and in this role he sometimes finds himself in confrontations with government ministers.
Under the Civil Service Law (Appointments), the government is the body that chooses the Civil Service Commissioner, and the appointment is exempt from the requirement to conduct a tender. On September 12, 2018, Prof. Daniel Hershkowitz, a former chairperson of the Habayit Hayehudi party, who had served as minister of science in Netanyahu’s government, was appointed Civil Service Commissioner for a six-year term that ends in a month’s time.
Until 2018, the appointment of the commissioner was subject only to the "Grunis Committee", which examines ethical standards, criminal records, and various affairs, without considering a candidate’s professional background and experience. In advance of Prof. Hershkowitz’s appointment, the committee was changed into a sort of appointments committee, and the Attorney General was charged with the task of preparing a proposal for a committee that would not only approve candidates, but would also search for and screen them, and present the government with its preferred candidate (or candidates).
Deputy Attorney General Adv. Gil Limon writes in his opinion that the government’s current proposal is "without precedent for the way of selecting a commissioner", and that there are legal obstacles to advancing it, but in fact, as he himself writes in the opinion, in 2020, when Shmuel Hollander came to the end of his term as Civil Service Commissioner, "The director general of the Prime Minister’s Office set up a ‘search team’ to function as a sort of search committee, with the participation of the head of the Budgets Division in the Ministry of Finance, the director general of the Ministry of Culture and Sport, and the deputy attorney general as an adviser. The team examined 150 potential candidates and presented the prime minister with four recommended candidates."
That is to say, the Prime Minister’s Office set up an ad hoc committee at its own discretion, without an orderly procedure. That committee, headed by Judge Hanan Efrati, was unsparing in its criticism of the appointment of Hershkowitz, and wrote that "the move is inappropriate" and that his academic background as a professor of mathematics at the Technion was not relevant to the position, but it approved the appointment nevertheless. In other words, the current proposal is far from being unprecedented.
According to legal sources, "What the Attorney General proposes has never existed, and it is actually the government that wants to return to the situation as it was up to now." As far as the Attorney General is concerned, however, what happened in the past constituted an examination of qualifications and not just of ethics, even though the committee was formed at the initiative of the Prime Minister’s Office.
As mentioned, in 2018 the government decided that, in the future, "The government will act in accordance with a procedure for the appointment of the Civil Service Commissioner to be formulated by the legal counsel in the Prime Minister’s Office, in consultation with the Attorney General." Now, the Attorney General seeks to implement that mandate, and has therefore recommended forming a committee headed by a former judge to be appointed by the president of the Supreme Court with the prime minister’s consent, and consisting of the Attorney General or her representative, the director general of a government ministry or a former Civil Service Commissioner to be appointed by the director general of the Prime Minister’s Office with the consent of the Attorney General, an academic to be chosen by representatives of the universities and colleges, and a representative of the public to be appointed by the director general of the Prime Minister’s Office with the consent of the Attorney General.
Two kinds of committee
A source familiar with the matter makes a distinction between two kinds of committee. "There’s a committee that examines or screens, that advertises a post, and people submit their candidacies to it, and it says: this is the most suitable person, or here are the three most suitable people. As opposed to this there is a confirmation committee, such as the one before which the nominated chief of staff appears, that only examines the person that the government brings before it, and can only check whether he or she is worthy."
The Attorney General insists on a selection committee, whereas the government insists on a confirmation committee. In addition, the Attorney General wants the committee to examine the candidate’s professional credentials, while the government wants an examination of ethical standards only.
"According to the proposed decision under discussion, the prime minister will be able to choose a person for this important and sensitive position, without considering threshold conditions, fitness, experience, or suitability, and without a competitive, public procedure, which is a vital aid in making an educated choice of the person who will fill a senior role such as that of Civil Service Commissioner," Deputy Attorney General Limon wrote in his opinion. Since the Commissioner sits on the committee responsible for many senior professional appointments, politicization of the role is liable to seep through and become politicization of the entire civil service.
Adv. Ofir Alkalay, chairperson of the Government Employees Union, also called on Netanyahu to hold a public, impartial selection process. "Government employees give their all to provide the best possible service to the public. They deserve that the person chosen should be committed solely to the public."
Published by Globes, Israel business news - en.globes.co.il - on August 12, 2024.
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