On the Nexus between the Process of Appointments of Senior Civil Service Members and the Judicial Protection of Independent Administrative Discretion in Parliamentary Systems

---

To access the full article in Hebrew, please click here

Senior Appointments in the Civil Service: A Democratic Perspective

The issue of senior appointments in the civil service has repeatedly attracted media attention in recent years, particularly in the context of disputes between politicians and legal professionals in the civil service, or between politicians and public petitioners, regarding the eligibility, "reasonableness," or even the absence of appointments. Frequently, the formal authority to appoint lies with elected representatives, yet the law requires that they consult with a professional body. While this duty of consultation should be interpreted as a requirement to ensure that candidates meet certain eligibility thresholds, it is sometimes construed by the professional authority as a power to dictate the appointment of a specific individual to the position—even in cases where the legal power of appointment belongs to a minister or to the government. The purpose of this brief note is to raise several considerations on the matter, without addressing specific case law.

Why does the law vest appointment authority in elected officials? Would it not be preferable for appointments to be made on a purely professional basis?

This question invites us to return to foundational democratic principles. In a parliamentary system, the government is collectively accountable to the legislature for the management of state affairs. Each minister bears ministerial responsibility for the affairs of their respective ministry. Without authority, there can be no responsibility. If a minister is not permitted to appoint a cadre of individuals with whom they can consult and through whom they may administer their ministry, they cannot properly assume responsibility for its operations. Importantly, the involvement of elected officials in appointments is not intended to enhance efficiency in governance. Thus, even empirical findings that such involvement does not increase effectiveness cannot alter the normative argument. The core claim is that the officeholder who bears democratic responsibility must also have control over the key appointments that determine the execution of that responsibility. Accordingly, it is accepted in both presidential and parliamentary systems that ministers may appoint a narrow, senior layer of trusted individuals to help implement their policy agenda. This is not a local historical compromise—as sometimes claimed—but a standard practice in the proper functioning of democratic systems.

How should the scope of politically appointed "trusted positions" be determined?

The basic premise of public administration in democratic systems aims to preserve the civil service as neutral and apolitical. Accordingly, appointments in the public sector are generally expected to be based on equal opportunity through competitive processes such as public tenders or, at the very least, search committees. In contrast, appointments to trusted positions are made without competitive procedures and are largely exempt from the application of the principle of equality. Such appointments are left to the discretion of the elected official. Because they constitute a deviation from the principle of equality, the layer of trusted positions must be both senior and narrow in scope.

To determine how narrow this layer should be, one must distinguish between parliamentary and presidential systems. Empirically, there are fewer personnel changes following a change in government in parliamentary systems compared to presidential ones. In other words, presidential regimes tend to have a broader layer of politically appointed positions. This paper argues that, in a certain respect, the separation of powers between the executive and the legislature in parliamentary systems is achieved through greater civil service independence, whereas in presidential systems, that separation is achieved by holding separate elections for each branch. In presidential systems, the legislature may serve as an effective check on executive action, particularly when the two branches are controlled by different parties. By contrast, in parliamentary systems, the government generally holds de facto control over the legislature, and therefore civil service independence helps balance the government’s power.

In presidential systems, bureaucratic independence is to some extent a result of the fact that civil servants serve two masters—the executive and the legislature. In parliamentary systems, independence results from bureaucratization: the professionalization and insulation of the bureaucracy. Accordingly, the layer of trusted positions should be narrower in parliamentary systems than in presidential ones. Those who hold such positions typically leave office upon a change in government.

On the Relationship Between the Power to Appoint and Administrative Independence

Beyond recognizing the legitimacy of a narrow layer of political appointments, it is crucial to preserve the combination of ministerial involvement with professional oversight in the processes of appointing and dismissing senior officials. This balance serves to reconcile the values of professionalism with the democratic principle of accountability. Ministers should be involved in the appointment of senior officials whose actions substantially affect the implementation of government policy.

In this essay, I argue that the jurisprudence on administrative independence, as it pertains to officials who are hierarchically subordinate to ministers, developed on the assumption that courts should refrain from interfering with the substantive content of the administrative decision, because, if necessary, the decision-maker can be dismissed and replaced. The rationale is that dismissal brings the disagreement to light, exposing any improper motives behind ministerial intervention, and deters ministers from such conduct. The dismissal mechanism is analogous to legislative override mechanisms in primary legislation. Another available tool is the minister’s power to assume authority over a specific matter. Here too, the act of assuming authority brings political disagreement into the public domain and enhances transparency and accountability.

There is a clear trade-off between the power to appoint and/or dismiss, and the scope of administrative discretion in hierarchical relationships. If ministers are not permitted to be involved in appointment and dismissal processes, then the jurisprudence concerning administrative independence of officials subordinate to ministers must be reconsidered. Conversely, as the minister’s power to appoint and dismiss is diminished, the scope of permissible ministerial intervention in substantive administrative decisions should expand. Alternatively, the law must treat such officials as independent authorities not subject to hierarchical subordination to elected officials, with all democratic implications this entails. These officials would typically enjoy fixed terms of office and may even be restricted from being reappointed, to enhance their independence. They are not replaced upon a change of government, and their removal is not at the sole discretion of the appointing authority. A parliamentary democracy must carefully assess the nature of each office to determine whether democratic principles necessitate subordination to elected officials or, instead, require institutional independence.

Appointments During Caretaker Governments

The challenges of senior appointments intensify during caretaker periods. Prior to the establishment of the current government, Israel experienced an unprecedented political stalemate, with three consecutive election cycles under a caretaker government. A caretaker government suffers from a democratic deficit resulting from its loss of parliamentary confidence. Its actions may raise serious concerns of agency cost, where the motives behind its decisions may include attempts to influence electoral outcomes or entrench policy preferences ahead of anticipated electoral defeat.

Comparative and historical experience shows that during caretaker periods, heads of state often engage in partisan conduct and sweeping appointments designed to influence long-term policy beyond their term of office. For instance, the landmark case of Marbury v. Madison arose from an effort to flood the judiciary with Federalist judges after the Anti-Federalists’ electoral victory.

Israeli jurisprudence has held that caretaker governments possess the same legal powers as regular governments. However, when exercising those powers, their discretion is limited to matters of essential urgency and even then must comply with principles of proportionality. Over time, the courts have interpreted this standard broadly, often classifying military operations or peace negotiations as essential, while treating nearly every senior appointment—even those with minimal governmental influence—as problematic. I have shown elsewhere that this application of the standard has yielded inconsistency. In fact, the outcomes should be reversed: appointments with no substantial governmental involvement ought to be permitted, whereas matters of war and peace should be more tightly constrained during caretaker periods. In recent years, the Attorney General has relaxed the applicable standards for appointments during such periods, facilitating some key appointments.

In my view, the operative standard for caretaker governments should be the "routine conduct" test, which was rejected by the courts. This test is useful across legal domains (corporate law, property law, etc.) to identify exceptional acts where the risk of abuse of power is elevated. It is also commonly used in comparative law to define the limits of caretaker authority. I analogize from the doctrine of "primary arrangements" in the Follow-Up Committee case to suggest criteria for assessing whether an act qualifies as routine for purposes of caretaker governance: when the act has long-term consequences, affects large segments of the population or society at large, triggers intense public controversy, implicates constitutional rights, is irreversible, or has been rejected by the legislature, it cannot be deemed a routine act.

For appointments with decisive government influence, temporary appointments are generally preferable to permanent ones during a caretaker period, allowing the incoming administration to make final determinations. While temporary appointees may seek to curry favor with incumbents in hopes of permanent appointment, this incentive is counterbalanced by the possibility that the government will soon change—encouraging professional, impartial conduct. The extent of governmental influence over an appointment often signals that the position is primarily policy-driven. For appointments that are urgent but non-routine, or when permanent appointments are unreasonably delayed, the appointment may proceed during the caretaker period—but only with parliamentary consultation or opposition involvement.

This essay thus explains why parliamentary systems tend to maintain a narrower layer of politically appointed positions, subject to the discretion of elected officials. It also explains why civil servants require stronger structural protections in parliamentary systems, where bureaucratic independence must substitute for the formal separation of powers found in presidential systems. It argues for recognizing the interaction between administrative independence in hierarchical relationships and the power to appoint, dismiss, or assume authority. These considerations directly inform how appointments should be approached during caretaker periods, where appointment power suffers from a significant democratic deficit in parliamentary systems.

Suggested Citation:

On the Nexus between the Process of Appointments of Senior Civil Service Members and the Judicial Protection of Independent Administrative Discretion in Parliamentary Systems, ICON-S-IL Blog, December 6, 2020.