Bill to increase political appointments is valid, says court
The High Court of Justice on Thursday rejected a petition to strike a bill intended to increase political appointments to key government positions.
Justice Minister Ayelet Shaked declared victory over the petition and expressed satisfaction that the government can now implement its decision on the issue.
At the same time, the High Court decision written by president Esther Hayut said that the government should beware of broadening the number of political appointments beyond the current decision.
She specifically said that the court’s decision was limited to the current expansion – which focuses mostly on deputy director-general positions – and that part of the court’s willingness to approve the decision as constitutional was the guarantees made by the state that the new appointees would not have power over ministry legal advisers or over hiring new ministry employees.
These guarantees were important to ensure that the new political appointees could not erode the ability of government “gatekeepers” to keep ministries apolitical and at high levels of expertise.
The court had hinted to its leaning at a hearing in January when Justice Noam Sohlberg told the petitioners that: “Politics is not a magic word” that makes “any legal change, initiative [or appointment] illegal.”
Attorney Yuval Yoaz, representing the Movement for Purity of Ethics, had slammed the decision, noting that the government’s own lawyers had warned the Knesset that the concept was just barely legal and created incentives for public corruption.
Monday’s hearing followed the High Court of Justice’s December 4 interim decision to freeze the bill. The proposed legislation would enable ministers to place more of their political allies in high-powered government positions, sidestepping current requirements for open competition.
While ministers themselves are political appointees, most government officials who work for the ministers are career professionals with no political affiliation.
The dispute is about how far changes can go that might contradict the professionals’ understanding of their limits in enacting policies. In other words, can politicians legislate away the ability of bureaucrats to tell politicians what they cannot do, so they won’t face such resistance?
Those who approved the legislation view getting more political appointees into their ministries as a way to circumvent professional-level opposition.
The bill would allow any ministry with more than 150 employees to have an additional top-level political appointee. It would also allow more control by politicians over search committees, where such committees are mandated by law.
Sohlberg and Hayut gave Yoaz a hard time during the hearing, saying his attempts to use the government lawyers’ opinion as a cudgel against the initiative would not work.
Hayut said Yoaz was claiming that the government did not have authority to pass this kind of a bill. She pointed out, however, that the government’s legal advisers and Yoav’s objections only related to worries about politicization and abuse of the law’s implementation, not authority.
On the flip side, Hayut did grill the state about whether the bill was sufficiently explicit in defining the powers and duties of the new politically-appointed positions, such that departing from the open-competition principle was legally justified.
It appears that the government’s assurances to Hayut in that regard paved the way for the court’s approval.
Yoaz argued that the High Court’s rulings have set down a cardinal principle that politicization must stay out of the public sphere. He said the bill is beyond the Knesset’s authority because it is inherently inconsistent with the court’s apolitical principle.