(photo credit: Ariel Jerozolimski)
The courts – along with the legislature and public authorities and figures –
have, for years, been attempting to combat the widespread phenomenon of
political nominations and dismissals in the public service, i.e., nominations
and dismissals in which the political affinity of the candidate or employee is a
material (or dominant) consideration.
The public service in Israel is
based on the principle of a professional apolitical civil service. For most
positions in the civil service, subject to public tender or not, political
considerations in nomination and dismissal are extraneous. Public positions are
regarded as a public resource, to be occupied solely on basis of a high
professional standard and personal integrity.
Political nominations and
dismissals are regarded as an abuse of power and a breach of fiduciary
undermining the civil service in many ways: they lower its professional
standard, unlawfully discriminate and breach the principle of equality,
the hierarchical order, undermine the public faith in the civil service,
the civil service with unnecessary nominations of favorites, infect the
decision- making process with conflict of interests and extraneous
considerations, destabilize the civil service as a result of frequent
of civil servants whenever a political changeover occurs, damage the
other civil servants whose candidacy is thwarted, deplete the civil
professional employees, and exploit public funds for extraneous
VARIOUS LEGISLATION and directives contain prohibitions and
restrictions intended to deflect pressure of political electorate
nominations to the civil service.
The courts have joined the battle by
ruling that political nominations which do not fulfill essential
for professional qualifications and personal integrity are unlawful and
this principle, even nominations to positions of special trust such as
Managers of Ministries, have been revoked. The court has stressed that
nominations and dismissals may involve personal liability on the civil,
disciplinary and criminal levels. Prohibited conduct includes various
degrees of direct and indirect actions (even manifestation of
support by the transfer of CVs).
The court has also eased up on the onus
of proof in civil actions, ruling that the injured person need only
reasonable suspicion that political considerations played a part and for
onus of proof to be transferred to the employer to rebut such suspicion
prove that the nomination or dismissal was lawful.
In one case, the
Supreme Court took an additional step by ruling that the principle
remedy of the
employee who is politically dismissed is reinstatement to the position
unlawfully deprived of.
As a further deterrent, it called for
perpetrators to pay the price, by reimbursing the public, out of their
pockets, for the expense involved in the damages payable to the injured
SHORTLY AFTER this ruling, the Jerusalem magistrate’s court
ruled on the indictment of former Minister of Environment Protection,
Hanegbi, on charges of criminal bribery and breach of faith in
his involvement in political nominations and dismissals for the purpose
enhancing his political position. It was proven that political
dismissals began decades before Hanegbi and became a feature of the
culture in Israel.
Indeed, the pressures exerted upon Hanegbi by the
electorate members to make political nominations and dismissals
their frustration at having themselves been previously discriminated
political grounds by ministers, elected by other political parties.
court was faced with the difficult task of delineating between conduct
crosses the line into the criminal and conduct which would better be
by other disciplines and forums (such as disciplinary, public, moral,
since despite their pervasiveness and despite public denunciation, never
had political nominations and dismissals been treated as constituting a
At the end of the day, the said charges against Hanegbi were
revoked, on grounds of abuse of process, since the indictment against
reflects a change of policy which the court ruled should apply
also because of the inconcrete nature of the criminal offense of breach
faith. However, the ruling contains a statement of principle: That
nominations, due to their quantity, systematic nature, type and
fundamentally injure the values protected by the criminal offense of
faith – the integrity of civil servants, the public faith in the civil
and the public interest which the perpetrator has a duty to serve – and
constitute a criminal offense.
Hopefully, the Supreme Court ruling, which
underscores the personal liability of the perpetrators on the civil,
disciplinary and criminal levels, will assist civil servants and elected
officers alike to deflect pressures – such as were blatantly exerted
Hanegbi – to make or support political nominations and dismissals in
the political support.
It may also, in the long run, act as a deterrent
on other actors in the political scene from exerting such pressures.The
writer is a partner at S-Horowitz & Co.