The High Court of Justice on Thursday heard arguments regarding the appointment method of the civil service commissioner, a contentious issue that has pitted the government against the attorney-general and connected, according to critics, to its attempt to politicize public service.
The hearing was live-streamed on the court’s website, a rare occurrence reserved for cases usually with constitutional aspects. It marked the third hearing on the petition and came as part of an ongoing saga that began around the scheduled end of the tenure of the previous commissioner’s tenure in September.
The previous commissioner, Prof. Daniel Hershkovitz, eventually left office on December 13, after receiving a three-month extension due to the ongoing disagreements over the appointment of the person to replace him.
The civil service commission is the official supervisor of the state’s tens of thousands of civil servants. The commissioner is considered a central gatekeeper of the professionalism and apolitical character of public service.
The commissioner’s authority includes chairing a large number of appointment committees for various high-level positions, approving government requests to recruit employees without a tender, and more. The identity of the commissioner is especially sensitive now, as the government has begun a process to fire Attorney-General Gali Baharav-Miara and reportedly will try to remove Shin Bet head Ronen Bar as well.
The appointment method of the commissioner is not laid out in law. The government in 2018 formed an ad-hoc committee to appoint Hershkovitz, but requested that the attorney-general propose a permanent appointment method to be implemented beginning with the next commissioner.
However, Prime Minister Benjamin Netanyahu rejected the attorney general’s proposal, and decided instead that he personally would choose the next commissioner, whose integrity (but not legal background) would then need to be vetted by the Senior Appointments Advisory Committee.
After the decision was challenged in court, Netanyahu eventually backed down and decided that the appointment would again be based on an ad-hoc committee, similar to the previous appointment.
Temporary appointment
In the meantime, the prime minister in January appointed Roi Kachlon to the position for a period of three months, after the High Court clarified in a separate proceeding that the appointment was highly questionable and approved only to maintain “operational continuity” within the civil service commissioner’s office.
Since 2023, Kahlon has served as the head of a directorate to fight crime in the Arab sector, situated within the Prime Minister’s Office. Before that, he worked for about 14 years in the State Attorney’s Office as head of its Economic Crime and Corruption Department, as well as the State Attorney’s Office’s head of discipline, among other roles.
Netanyahu introduced Kahlon as someone with significant managerial experience in the public sector. However, Deputy Attorney-General Gil Limon wrote at the time that Kahlon’s professional background was far from meeting the bar for the position of commissioner, even temporarily. Limon also accused Netanyahu of misleadingly presenting Kachlon’s credentials. Reports also emerged that Kachlon allegedly fabricated part of his credentials, and he is currently undergoing a disciplinary investigation.
In any case, Kachlon’s tenure, which the High Court ruled could not be extended, is set to end in April, and the appointment procedure for a permanent commissioner is still being debated, including in Thursday’s hearing. The court issued an interim ruling in February requiring that the government explain a) why the appointment shouldn’t be based on a competitive procedure, and b) why the appointment process shouldn’t become permanent
The government hired Adv. David Peter, a private lawyer, to represent it, after the attorney-general took the petitioner’s position. Peter argued at the hearing that the letter of the law did not lay out an appointment procedure, and therefore, the government had the discretion to appoint a commissioner as it saw fit. He pointed out that a high court ruling from 2011 had come to the same conclusion and that the attorney general had permitted the ad-hoc committee.
However, advocates for the petitioners, including the Louis Brandeis Institute for Society, Economy, and Democracy, the Manor Center, the Movement for Quality Government in Israel, and the Histadrut, argued that many appointment methods in Israel’s system were not directly laid out in law but developed based on a series of government decisions and court rulings; that the civil service commissioner’s key gatekeeper position necessitated a non-biased appointment method; that the government itself in 2018 had committed to adopting a permanent method; and more.