The appointment of a new ministry director general by a transitional government contradicts both Supreme Court rulings and the attorney general’s orders, Justice Menachem Mazuz said on Wednesday.
He was speaking during a High Court of Justice hearing on a petition against Justice Minister Amir Ohana’s decision to fire his ministry’s director general, Emi Palmor, and replace her with Ophir Cohen. On Sunday, the court froze Cohen’s appointment until it issues a final ruling.
“On the face of it, this appointment violates the attorney general’s instructions, and it’s a direct violation of Supreme Court rulings,” Mazuz said.
The rulings in question forbid a transitional government to make any senior civil service appointments unless a given appointment cannot wait. The attorney general’s directive specifically forbids appointing a new ministry director general unless “there’s no choice but to replace the director general to enable the ministry’s proper functioning.”
Because the Knesset dissolved itself in April and called a new election for next month, the current government is considered a transitional government.
The state argued during the hearing that the petition was premature, because the cabinet hasn’t yet approved Cohen’s appointment. But Mazuz rejected that argument, saying the petition wasn’t about Cohen’s suitability for the job, but rather about “the process of ending [Palmor’s] tenure and appointing someone new during an election period.”
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“You’ve submitted three responses, but you haven’t properly addressed that,” he told the state’s attorney.
Justice Neal Hendel added that he favored issuing a show-cause order, which would mean the court sees merit in the petition and the burden is now on the state to prove otherwise.
The petition, filed by the Movement for Quality Government in Israel, argued that none of the reasons Ohana has offered was sufficient to justify replacing Palmor. Even if Ohana lacks confidence in Palmor, it said, he hasn’t explained why that would prevent “the ministry’s proper functioning” in the brief period until the September 17 election, and the attorney general’s instructions don’t permit replacing a director general for any other reason.
Nevertheless, Attorney General Avichai Mendelblit approved Palmor’s dismissal last month despite the upcoming election, telling Ohana that even though there were “legal difficulties” with the move, there was no legal barrier to it. And on Sunday, the panel that vets senior civil service appointments approved Cohen for the job, after Ohana said he hadn’t found any candidate from the civil service in whom he had complete confidence.
In the 2005 ruling Mazuz cited, which dealt with an effort by the town of Kiryat Ono to replace its religious council, the court ruled that politicians should generally refrain from making new appointments during an election period because “their fate in the next government, after the election, remains unknown.” Appointments should therefore await the formation of a new government, “except in cases where there’s a real and vital need to fill a certain job that, if not met, would create a vacuum that could undermine an important public interest,” it said.
In a 2015 ruling that also dealt with a transitional government’s powers, the court said the main reason for barring such a government from making senior civil service appointments is that it has lost the Knesset’s confidence and is merely acting as a placeholder until a new government is formed.