The Prime Minister’s Office announced on Thursday that on Sunday the government will approve a measure to give itself control over the appointment of the country’s next Civil Service Commissioner, despite a statement from the Attorney-General’s office that the measure is “not legally viable.”
The government’s intention to ignore the AG’s advice, which according to the High Court of Justice is legally binding, will likely lead to a deterioration in the already tense relations between the government and the AG, which began soon after the government’s inception due to the attorney-general’s opposition to the government’s judicial reform.
The Civil Service Commissioner is the official supervisor of the state’s tens of thousands of civil servants and is responsible for ensuring the professional and a-political character of the civil service. The commissioner has broad powers, including the right to approve the allotment of positions and authorities between and within administrative units; to establish administrative regulations for government institutions; to chair an appointment committee for senior civil service positions; and more.
The process of appointing the commissioner is not regulated by law. Following the appointment of outgoing commissioner Daniel Hershkovitz in 2018, the Netanyahu-led government at the time formally decided to regulate the issue ahead of the next appointment, but this did not happen. Netanyahu therefore requested that he choose the next commissioner and then have it ratified by Israel’s Senior Appointments Advisory Committee, which is responsible for ratifying seven senior appointments – five security-related, (Chief of Staff, Mossad head, Shin Bet head, Israel Police Commissioner, and Israel Prison Service chief), and two economic-related (Bank of Israel governor and his or her deputy).
The Senior Appointments Advisory Committee includes four members: A retired High Court judge, the Civil Service Commissioner, and two public representatives chosen by the government. In order for Hershkovitz not to be involved in appointing his successor, Netanyahu proposes to replace him with a former civil service commissioner, or a former PMO Director-General, on the condition that neither are currently civil servants.
Deputy Attorney-General Gil Limon accepted the legal position of the PMO’s legal adviser, Shlomit Barnea-Fargo, that this process was not legally viable.
Qualification as well as integrity
Limon explained that the Senior Appointments Advisory Committee looks only into the candidates’ integrity, it does not look into their professional qualifications, as the appointments it supervises come from a small pool of candidates who are presumed to be appropriate to their position due to their seniority. The Civil Service Commissioner, however, 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.
Limon added that the prime minister’s proposal to replace Hershkowitz with a person of his choice tilted the four-member committee in his favor, as it would join the two public representatives appointed by his government. This would essentially enable Netanyahu to appoint anyone he wants, Limon said.
Limon also linked the issue to the judicial reforms, quoting the High Court of Justice’s ruling that struck down the one reform bill that passed, known as the Reasonableness Bill, which would have barred the court from using “extreme unreasonableness” as a judicial measure to strike down executive decisions.
Some of the justices stressed in their rulings the importance of an independent civil service, and the fact that enabling ministers to act with “extreme unreasonableness,” coupled with the fact the ministers by law may claim for themselves any authority given to their subordinates, meant that there would no longer be effective judicial oversight on decisions by civil servants at all levels – paving the way to the politicization of the entire civil service.
Limon argued that this revealed the government’s goal of weakening and controlling the civil service and that a non-political Civil Service Commissioner was essential to prevent this.
Knights of the equal committee round table
Limon and Barnea-Fargo proposed instead to form an independent five-member nominating committee led by a retired high court judge, and including a representative of the attorney-general; a former civil service commissioner or director-general of a major ministry, chosen by the PMO’s director general with the AG’s consent; an academic who is an expert in public law, chosen by the deans of all of Israel’s law schools; and a public representative with significant relevant experience, also chosen by the PMO’s director-general, with the AG’s consent.
The government argued in the explanatory section of the decision to pass Netanyahu’s measure, that Barnea-Fargo’s proposal was unacceptable since it essentially gave the attorney-general veto power over the identity of the nominating committee’s members, and thus imbued itself with immense influence over the nomination of the commissioner.
The government also argued that Barnea-Fargo did not consult with government ministers before coming up with her proposal, and did not explain the considerations behind the committee makeup that she proposed.
National Unity chairman Benny Gantz wrote on X, “Netanyahu critically harmed the civil service. His ministers turned many of the professional appointments into political jobs, whole departments in the prime minister’s office have been taken apart and turned into ruins.”
“His decision to personally choose the civil service commissioner, especially after the Prime Minister’s Office’s shameful failure to run the war’s home front, and the need to appoint special manager after special manager, will harm the citizens of Israel.
“Israel’s civil service needs significant reform, and in order to lead it we need a civil service commissioner, and not a commissioner at the service of the prime minister,” Gantz wrote.