Case Summary and Outcome

The Supreme Court of Israel held that Parliamentary coalition agreements concluded prior to the formation of a government and dealings with the functions of legislative or executive authorities should be made public. Four combined petitions requested the Court to rule whether factions of the Knesset (Israeli Parliament) that concluded coalition agreements among themselves prior to the formation of a government were obliged to publish those agreements. The Court reasoned that the agreements had to be published to satisfy the rules of fairness and integrity that were foundational for the public’s confidence in the government.

This case was contributed by Right2Info.

Facts

Combined petitions raising the issue of whether parliamentary factions which had concluded coalition agreements amongst themselves prior to the formation of a government are obliged to publish those agreements were brought to the Supreme Court. The Court was asked to show “why agreements …concluded in connection with, and prior to, a vote on the formation of a government under section 15 of the Basic Law: The Government, should not be published”. [para. 1]

It was argued by lawyers for the Likud faction that the Court should confirm the existence of a legal duty to publish coalition agreements, and define the parameters of that duty. The Likud faction also submitted the agreements it had reached with other factions. The Labour Alignment asked the Court to give a ruling regarding whether a duty of disclosure exists or, in the alternative, to satisfy itself with the Alignment’s willingness to publish its agreements. The United Torah Judaism – Agudat Yisrael faction argued that the Court should recommend the legislature enact appropriate legislation on the subject, or another way should be found to require disclosure of the agreements by all factions simultaneously.

The Attorney General’s response was that a duty under public law to disclose coalition agreements indisputably existed and publication should coincide with presentation of the Government before parliament when it informs parliament of its basic political platform.

Decision Overview

Judge Meir Shamgar delivered the judgment, and Judges Barak, Goldberg, and Eliezer concurred. The Court began by outlining the fact that political agreement as expressed in coalition agreements is the outcome of Israel’s political regime and election structure which  functioned by virtue of confidence in Israel’s parliament, the Knesset. The coalition agreements are the accepted device in Israel constituting a framework for political consensus among parties and filling posts in the Government and the executive branches at an early stage, as well as other similar matters.

The Court held that coalition agreements were “…agreements concluded by public functionaries chosen by the electors to carry out legislative and government functions”. [paras. 4-5] Such agreements were designed, among other things, to serve the good of the public and preserve rules regarding fairness and integrity that are foundational for the public’s confidence in the government . It was held that that this purpose of the agreements could only be served if they weren’t concealed and were available to the public. The Court stated that,“public scrutiny is not only an expression of the right to know, but it is also an expression of the right to control”. [para. 5]

The Court held that the democratic system is based on the sharing of information about what is happening in the public domain with the public itself. Whilst the government can withhold this information, it is only in exceptional circumstances when required for state security, foreign relations, or when any vital public interest is threatened. Thus, the Court concluded that “agreements between factions, or between a faction and a member of the Knesset, or between individual members of the Knesset, concluded in anticipation of the formation of a government, ought to be published, if they deal with the functions of the legislative or executive authorities.” [para. 8] Further, it was not relevant whether or not, as a result of agreement, the government was successfully formed.

In his concurring opinion Justice Barak added comments concerning the legal source of the obligation to disclose political agreements and the Court’s role in formulating that obligation. He noted that the obligation to disclose stemmed from three main sources: (i) the nature of the regime; (ii) the public character of the agreement; and (iii) the public’s right to know. Justice Barak noted that Israel was a parliamentary democracy, with the basis of this system being the right to vote, which is vested in the citizens of the State. Therefore, citizens needed to receive information to make informed political decisions.. He also noted that parliamentary factions were trustees of the public and any information they held was not their private property, but the public’s. Finally, he pointed out that the obligation to disclose was derived from freedom of expression, which encompassed both the right of the individual and the public to know.

Judge Goldberg’s concurring opinion expressed concern that the Court was not the rightful authority to deal with and provide the framework for a constitutional matter in the first degree. Rather, it should be the Knesset that legislates. Nonetheless, he concurred because “..if the matter is left completely open until there is statutory action, and if the matter of disclosure is left to the good will of those who conclude the agreements, then we will not have avoided the risk of damaging the fabric of our public life, with all the implications thereof.” [p. 24]