The High Court of Justice on Sunday rejected petitions challenging the appointment of David Zini as head of the Shin Bet internal security agency, ruling by a 2-1 majority to uphold the nomination.
Chief Justice Yitzhak Amit, writing in dissent, said the appointment should be returned for further review by the advisory committee on senior appointments. Amit said the manner in which the decision was made raised sufficient difficulty to justify issuing a conditional order requiring the state to explain why Zini’s appointment should not be sent back to the committee for completion of its reasoning.
In his opinion, Amit said the committee failed to thoroughly examine the identity and conduct of the appointing authority — Prime Minister Benjamin Netanyahu — an omission he said was significant given the circumstances surrounding the nomination.
The petitioners argued that Zini’s appointment was driven by improper motives, citing ongoing Shin Bet investigations into Netanyahu’s close circle, including the so-called Qatargate affair.
“The appointments committee refrained from examining integrity in its broader sense with respect to the appointing authority,” Amit wrote, adding that in doing so it had “erroneously transformed understandings into a source that improperly limited its own authority.”
Amit said the committee’s failure to address what he described as weighty claims presented to it — including allegations related to the background leading to the appointment, the prime minister’s conduct and the possibility that extraneous considerations influenced the decision — left its ruling without a sufficient factual and legal foundation.
Under those circumstances, Amit said, the petitioners met their initial evidentiary burden in demonstrating a prima facie flaw in the appointment decision and the need to return Zini’s case to the advisory committee for further justification.
By contrast, Deputy Chief Justice Noam Sohlberg wrote that “many of the arguments raised in the petitions regarding the integrity of the prime minister as the appointing authority were arguments that could not be raised at all.”
Sohlberg pointed to an agreement reached between the government and its head, Prime Minister Netanyahu, and the attorney general in a previous proceeding concerning the appointment of a Shin Bet chief, unrelated to the appointment of David Zini.
“That agreement,” Sohlberg wrote, “was given the force of a judicial decision, and it was expressly stated that it would bring an end to the discussion of claims regarding a conflict of interest on the part of the prime minister.”
Sohlberg also rejected the arguments against Zini’s appointment itself, as well as the claims directed at the work of the committee that examined his fitness for the post.
He went on to note that, “under established case law, when it comes to judicial intervention in appointments made by the government — particularly to senior positions such as head of the Shin Bet — the court must exercise great restraint; all the more so when the appointment has been reviewed by the advisory committee, which has special expertise in examining these aspects.”