Case Number
HCJ 2671/98
Date Decided
8-11-1998
Decision Type
Original
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
The Minister of Labor & Social Affairs (the “Minister”) appointed Respondent 2 to the office of Deputy Director General for the IT & Information System Administration at the National Insurance Institute (IT Deputy). The appointment was for a six-month trial period. Prior to the appointment, eight deputy directors held office in the National Insurance Institute (NII), including one woman. The Petitioner – the Israel Women’s Network – is a public association whose goal is to fight for the promotion of equality and justice between the sexes in Israeli society. The Petitioner argued that the appointment was void because the Minister failed to fulfil his duty to act for proper representation of both sexes among the deputy directors at the NII.
The High Court of Justice (per M. Cheshin) ruled:
A. (1) The provisions of sec. 15A of the State Service (Appointments) Law, 5719-1959 – which mandate proper representation of both sexes – apply to civil service employees, but by their language, they do not apply to employees of statutory corporations like the NII (para. 22).
(2) Section 22(B) of the National Insurance Law [Consolidated Version], 5755-1995, applies the rules for the appointment of civil service employees to the appointment of the employees of the NII. However, the section does not apply to the appointment of the members of the NII Management, which under sec. 18A of that law, also comprises the deputy directors of the NII. Therefore, sec. 15A of the State Service (Appointments) Law does not directly apply to the appointment challenged by the petition (para. 23).
(3) Section 18A of the Government Companies Law, 5735-1975 – which requires that the composition of a board of directors of a government company reflect proper representation of members of both sexes – does not apply to the appointment under review. Although sec. 60A of the Government Companies Law applies the provisions to statutory corporations, it was only extended to appointments to the Council of the NII, and not to appointments to the Management (para. 23).
(4) Consequently, the provisions of the law that require proper expression of the principle of equal representation of both sexes apply to the appointment of members of the NII Council and to the appointment of other employees of the NII, but do not apply to the appointment of members of the Management, including the Director of the NII, the Vice Director and the Deputy Directors (para. 24).
B. Although the appointment of a deputy director at the NII does not require the publication of a tender, it is an act in the field of the public law, and like any act in the public field, the appointment is subject to the general norms of public law. Under public law, the appointing authority must act as a public trustee, with integrity and fairness, without irrelevant considerations, reasonably, equally, and without discrimination. Failure to strictly comply with these principles in making appointments leads to selecting a person who is unfit for the office, it prejudices the civil service, and also raises a concern that a person unlawfully appointed will similarly make appointments in reliance upon improper principles (para. 28).
C. (1) Discrimination against women has plagued society from time immemorial. Such ongoing discrimination creates certain lifestyles and thought patterns that cannot be uprooted overnight. Moreover, ongoing discrimination over the course of so many years has created layers of discrimination – one on top of one another – and thus we have cumulative discrimination – discrimination in the attire of a quasi-status (para. 39).
(2) Discrimination against women is generic discrimination. As distinct from particular discrimination, the person who is being discriminated against “represents” an entire class. Therefore, such discrimination inherently raises the representation issue. Consequently, one of the ways of uprooting such discrimination is by imposing a duty to arrange for the representation of women in various public entities (para. 40).
(3) The question whether inequality and discrimination have been created will be examined according to the result, and not according to the intentions. No matter how pure the intentions may be, if the result is discriminatory, the actions will be disqualified. In our case, it is hard to be disabused of the impression that discrimination has played a role in the lack of proper representation of women at the NII Management. It is not special, conscious discrimination, but generations-long discrimination (para. 45; para. 34).
(4) The duty to give proper expression to the principle of equal representation of both sexes requires vigorous actions to achieve proper representation of women in the civil service. This duty is part of a binding, general doctrine that applies to every appointment or selection in the civil service (para. 46).
D. (1) There are various models for the implementation of the doctrine of “proper representation” of women. However, in the circumstances of the present case, there is no need to delve into the meaning of this expression inasmuch as where there is only one woman among nine deputy directors at the NII, the situation clearly violates the proper representation requirement (para. 47).
(2) Inasmuch no specific, direct statutory requirement applies to the appointment under review, but rather a consideration that the Minister must take into account in exercising his discretion, we cannot conclude that the requirement to give proper representation to women in the NII Management must result in the appointment of a woman to the position of IT Deputy (para. 48).
(3) Under the circumstances, the Minister’s duty is to search for suitable women candidates for the position. This is a positive duty to investigate and search, to gather information, to sort the relevant information and ascertain its credibility, in a thorough, rational and pertinent manner (paras. 52-54).
(4) The Respondents’ vague, general reply shows that the Minister failed to meet the burden imposed by the aforesaid duty to initiate and search for suitable women candidates for the said office (paras. 48, 55).
(5) Under the circumstances, in view of the fact that Respondent 2 took office – for a trial period – several months before the issuing of this judgment, it would not be proper to order the immediate revocation of his appointment. Rather, the Minister must perform his duty under the doctrine of equal representation of women to search for suitable women candidates for the office, and to present them to the appointment committees by the expiration of current trial period, and thereafter decide who will be appointed to the position under consideration (paras. 56-57).
Keywords
Labor -- Discrimination
