July 17

Matan Gutman: Appointment and Removal of Senior Executive Officials in Israel

In 1992, Mr. Aryeh Deri, the Interior Minister of Israel, was indicted on corruption charges. The Basic Law of Israel, which is the equivalent to the Israeli Constitution, states as follow:

should a minister be convicted by a court, it shall state in its verdict whether the offense involves moral turpitude; should the court so state, the minister’s tenure shall cease on the date of such verdict.

During the trial, Minister Deri enjoys a presumption of innocence. Therefore, despite the serious indictment which involves moral turpitude, before conviction t  Nevertheless, a petition was submitted to the Supreme Court by , whose goal is to fight against government corruption in Israel (the Movement for Quality Government in Israel) – demanding that the Prime Minister dismiss Minister Deri following the indictment. The Court in Movement for Quality in Government in Israel v State of Israel HCJ 2094/93 IsrSC 47(5) 404 (1993) ruled that it was unreasonable for the Prime Minister not to dismiss the Minister after his indictment, with the Prime Minister’s failure to do so violating public trust in the government. The Court determined that the Prime Minister was required to exercise his authority under the Basic Law and to consequently remove the Minister of Interior from office. In 2000, Mr. Deri was convicted of bribery, fraud and violation of trust, and he was sentenced to three years in prison. He was released in 2002 after serving his 22 months sentence. In 2012, Mr. Deri decided to return to politics as the Shas Party leader. In 2015, Prime Minister Netanyahu decided to appoint Mr. Deri as economic minister and later, in 2016, as interior minister again. Petitions filed with the Supreme Court against the appointment of Mr. Deri were rejected by a majority of two against one. Mr. Deri’s case exemplifies the central role the Israeli Supreme Court plays in the appointments and removals of officials in the executive branch. Drawing similarities to the United States, where the President asks himself if he would be able to obtain Senate approval for his appointments, the appointing authority in Israel would ask himself the chances of which the Court would disqualify the nomination.

The jurisprudence relating to the issue of appointment and removal of government officials is based on the perception, as articulated by the Court in Amitai – Citizens for Sound Administration and moral Integrity v Yitzhak Rabin, Prime Minister of Israel, HCJ 4267/93, IsrSC 47(5) 441, 457 (1993), that “fitness is one issue; discretion quite another.” In other words, judicial review of the appointments and removals of government officials and ministers is not examined solely by the requirements of the applicable law or Basic Law. There is also the issue of whether the authority making the appointment or dismissal acted reasonably and whether the authority had taken into account various considerations. The Court in Eisenberg v. Minister of Construction & Housing, HCJ 6163/92, IsrSC 47(2) 229, for instance held as follows:

We must distinguish between questions of competence, (or authority), and questions of discretion. The absence of an express statutory provision regarding the fitness of someone with a criminal past establishes the candidate’s competence. However, it does not preclude the possibility of considering his past within the framework of exercising the administrative discretion given to the authority making the appointment. Indeed, the criminal past of a candidate for public office is a relevant consideration, which the authority making the appointment is entitled and even obligated to take into account before making the appointment.

This jurisprudence is based on the standards of reasonableness, developed primarily by former President of the Supreme Court Justice Aharon Barak. In Israel, the doctrine of reasonableness developed as a separate and independent ground for review, distinct and apart from the “classic” grounds for judicial review, including, inter alia, extraneous considerations, discrimination, non-reliance of substantial evidence, deficient reasoning (See HCJ 389/80 Dapei Zahav  v. The Broadcasting Authority, IsrSC 35(1) 421 (1980)).

Based on this ground for review, any action by a government authority must be reasonable. An act of the executive branch outside the zone of reasonableness is improper and illegal. What is unique, in Israeli jurisprudence, is the definition of the grounds of reasonableness. An unreasonable administrative action has been defined as a situation in which the administrative authority failed to give proper weight to all relevant considerations which formed the basis of the administrative decision, and did not properly balance between all the relevant considerations, in accordance with their weight:

The only way to further the discussion about the substance of reasonableness is to recognize that reasonableness is neither a physical nor a metaphysical concept, but a normative one. Reasonableness means that one identifies the relevant considerations and then balances them according to their weight. Indeed, reasonableness is an evaluative process, not a descriptive process. It is not a concept that is defined by deductive logic. It is not merely rationality. A decision is reasonable if it was made by weighing the necessary considerations, including fundamental values in general and human rights in particular. Nothing is reasonable ‘in itself.’

(See Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116  Harv. L. Rev.  16, 145-146 (2002).)

This ground of reasonableness provides the judiciary with a powerful tool to examine the substance of the discretion of the administrative authority. In using such a ground, the Court is emphasising to the administrative authority that it is insufficient that they merely act in accordance with their legal authority in good faith, followed due process, relied on solid evidence substantiated your decision and considered only relevant considerations. The administrative authority must also demonstrate that they attributed proper weight to each of the relevant considerations which form the basis of the administrative decision, and that all of the considerations were balanced properly. If the authority fails in this respect, then its action becomes illegal and illegitimate.

Accordingly, many senior appointments in the executive branch have been examined by the Supreme Court (by means of petitions submitted to the Court), and the amorphous question of “is it a reasonable appointment” has often been posed before the Court. Using this broad ground of judicial review, the court has invalidated many appointments to the executive. The court in Eisenberg v Minister of Construction & Housing HCJ 6163/92, IsrSC 47(2) 229, for one, invalidated the appointment of the Director-General of the Ministry of Housing over suspicions of his commission of criminal offenses involving obstruction of justice, notwithstanding the appointee’s receipt of a pardon for these suspicions from the President of the Israel prior to his prosecution. (Richard Posner sharply criticized this decision, see Richard A. Posner, ‘Enlightened Despot‘, The New Republic.) In another case, the Court in Plonit v Chief of the General Staff HCJ 284/99 53(2) PD (1999) rejected the appointment of a Major-General in the IDF on the grounds that he was convicted in a disciplinary proceeding several years prior to this appointment for having a consensual sexual relationship with his secretary , which led to the suspension of his military advancement for two years. The Supreme Court in this case ruled that it was improper to grant him the rank of Major-General in this case, even though his suspended sentence had terminated. In other case an appointment was invalidated by the court because the candidate expressed racial views (See Lavi v Prime Minister HCJ 4646/08 (2008)).

There are countless examples to highlight the central role of the Supreme Court with regard to appointments made by the executive branch. The chief result is that before any appointment, the appointing authority asks his legal advisers – will the appointment pass judicial review? This jurisprudence, of course, has far-reaching implications on appointments in the executive branch in Israel. For example, in 2007, the Minister of Public Security was interested in appointing Mr. Yaakov Ganot as Commissioner of the Israeli police. Ganot was head of the Prison Services at the time. The one “stain” on his illustrious police career was an acquittal over bribery charges in the 1990s. The Minister, who felt that Ganot was the best candidate for the position, announced that he intended to appoint him as Chief of Police. In less than 24 hours, a petition against the appointment had been submitted to the Supreme Court, and Ganot, who realized from the media reports and his legal advisers the humiliation he would have to endure if his nomination was disqualified by the Court, informed the Minister that he was declining this coveted role.  In this manner, the Minister “lost the battle” without the Court even hearing the petition, which as stated, was submitted against an individual who had been acquitted of all charges, and subsequently held senior positions in the Israeli security services, such as, head of the Prison Services.

Ultimately, it is important to bear in mind that the court creates ​​the jurisprudence of appointment and removal from scratch, according to principles of “constitutional common law”, rather than the interpretation of the Basic Laws. Justice Barak emphasized that the development of the doctrine of reasonableness in Israeli administrative law, and especially in the jurisprudence of appointments and removals of government officials, is a vehicle for strengthening ethical norms in the government:

It is appropriate to use the reasonableness test in reviewing executive actions, including issues of government ethics. Naturally, in countries where there is self-restraint in government, there may be no need to develop the principle of reasonableness in government ethics. But in countries where this self-restraint is lacking – and the concept of “it is not done” is insufficiently developed – it is proper to extend the principle of reasonableness to all government actions.

(Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116  Harv. L. Rev.  16, 146 (2002))

This jurisprudence, of course, created tension between the judiciary and the executive branch. However, in the Israeli reality, as Prof. Barak points out, the court sometimes should – in a proper balance between the various interests – turn rules of ethics into rules of law, and assimilate a governmental culture of ” it is not done”.

Matan Gutman holds an LLM from Harvard Law School, and is currently a PhD Candidate in Administrative Law at Bar-Ilan University under the supervision of Prof. Aharon Barak and Prof. Ariel Bendor. He is also External Lecturer at IDC Herzliya and Chief of Staff, Bureau of the Director General Office of the State Comptroller and Ombudsman of Israel.