On September 22, 2022, Israel’s High Court of Justice unanimously accepted a petition to cancel the interim government’s appointment of a chairman for the Committee on Appointments of Senior Positions (SP Committee) for a full eight-year term. The appointment was intended to fill the vacancy in the position following the death of retired Justice Eliezer Goldberg on March 11, 2022. (HCJ 5403/22 Lavi, Civil Rights, Proper Administration and Encouragement of [Land] Settlement v. the Prime Minister, State of Israel: the Judicial Authority (decision rendered on Sept. 22, 2022).)
The court’s decision enabled the appointment of a temporary chair. Accordingly, on September 28, 2022, Israel’s cabinet approved the temporary appointment of retired Justice Elyakim Rubenstein as the chairman of the SP Committee. Rubenstein will serve in the position solely to review the government’s candidate for new Israel Defense Forces Chief of Staff [IDF COS] Maj. Gen. Herzi Halevi.
Facts of the Case
On June 30, 2022, the Knesset (Israel’s parliament) approved the Law for the Dissolution of the 24th Knesset and Parties’ Financing Law, 5782-2022 (Dissolution Law). The Dissolution Law provides for the dissolution of the 24th Knesset before the completion of its term and for national elections to take place on November 1, 2022. Under section 30 of the Basic Law: the Government, “the outgoing Government shall continue to carry out its functions until the new Government is constituted.”
Earlier that month and again following the passage of the Dissolution Law, Minister of Defense Benny Gantz expressed his conviction to Attorney General (AG) Gali Baharav-Miara that “the process of appointing a [new] chief of staff [to replace COS Aviv Kochavi, whose term was ending] should be advanced, even during the period of the elections, due to a vital need.” (HCJ 5403/22, Justice Noam Sohlberg, para. 8.) On August 8, 2022, the government, on the AG’s recommendation, approved the appointment of retired Justice Menachem Mazuz as the committee’s chairman for a full term of eight years.
Applicable Law and Rules
According to article 3(c) of the Basic Law: The Army, the IDF COS is appointed by the government, upon recommendation of the minister of defense and subject to the requirements enumerated in Resolution 3839 of the 34th Government, adopted on May 27, 2018.
Under the resolution, the appointments of seven senior level positions, including that of the IDF COS, must be based on “a preliminary examination by an advisory committee in relation to the appointment and receipt of its opinion.” The SP Committee review and opinion should address the integrity of appointments to ensure that they are not based on personal, business, or political connections between the appointees and government ministers.
With regard to the authority of the outgoing government, the Supreme Court has issued a number of rulings in the past, with the intention of limiting government activities during this period in general and avoiding appointments during election periods in particular. In the spirit of the rulings, the AG has also set relevant guidelines and expressed this position before the court.
Issue Before the Court
Although the need to appoint a committee chairman was undisputable due to the vital need to complete the procedures for the appointment of an IDF COS, it was questionable whether, as a matter of principle and in accordance with case law and the AG’s guidelines, it was possible to order a permanent appointment for a period of eight years even during an election period.
Verdict
According to Justice Noam Sohlberg, the starting point in deciding the case was recognizing that an outgoing government must refrain to the extent possible from making appointments, even when a specific need for a necessary appointment arises. Under such circumstances, a temporary appointment should be preferred over a permanent appointment, except in exceptional cases.
Concurring, Justice Yael Willner opined that a permanent appointment of a chair in this case was inconsistent with judicial precedents and with the AG’s guidance to refrain from permanent appointments during an election period, except in the absence of another reasonable and adequate solution. The law and the guidelines that applied, she emphasized, were intended to create certainty and uniformity in the implementation of the law by the government, independent of specific considerations relating to one candidate or another.
According to Justice Ruth Ronen, the respondents had the burden of showing that the temporary appointment, or the appointment of an “ad hoc” chair, for less than a full term of eight years was an unreasonable and inappropriate solution. The respondents, she determined, had failed to lift this burden. Ronen rejected the claim that a temporary appointment would harm the independence of the committee by creating an assumption in the public that it was designed to serve only for the purpose of approving a particular COS.
Reactions to the Decision
Welcoming the decision, the petitioner, the Lavi nongovernmental organization, stated that “the State of Israel today took a significant step towards an egalitarian legal system that applies identical standards to all political players.
Criticizing the decision, however, former legal advisor to the Knesset, Nurit Elstein, opined that
In Elstein’s view, given the nature of the committee and its purpose, the cancellation of the permanent appointment by the court harms the committee and its independence.
Ruth Levush, Law Library of Congress
October 11, 2022
Updated October 12, 2022, to make a correction to the end of the article.
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