Case Number
HCJ 1601/90, HCJ 1602/90, HCJ 1603/90, HCJ 1604/90
Date Decided
5-8-1990
Decision Type
Original
Document Type
Full Opinion
Abstract
The combined petitions in this case raise a single issue, i.e., whether agreements concluded between Knesset factions with a view to the establishment of a coalition government (referred to hereafter as "coalition agreements") are required to be brought to the attention of the public.
In view of Israel's electoral system, resulting invariably in the representation in the Knesset of a large number of factions and the consequent need to establish coalition governments, the question is of considerable practical importance, and coalition agreements are indeed a regular feature in the process of formation of governments.
Attorney for the Likud faction argued for the existence of a legal duty to publish coalition agreements, requesting the Court to define the parameters of such duty and submitting the agreements it had reached with other factions. The Labour Alignment asked the Court to give a ruling on the question 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 submitted that the Court should recommend the legislature to enact appropriate legislation on the subject, or, alternatively, a way should be found to require disclosure of the agreements by all factions simultaneously.
The Attorney General's response was that existence of a duty under public law to disclose coalition agreements was indisputable. Publication should coincide with presentation of the Government before the Knesset when it informs the Knesset of its basic political platform, and this has indeed become standard parliamentary practice.
The High Court held as follows:
1. Coalition agreements are an integral part of the Israeli governmental structure and electoral system.
2. Such agreements are drawn up by persons holding public office who are elected by the public, and are therefore trustees of the public interest. Such position of trust, as well as a general duty to act in a fair manner, require them to make a full public disclosure of information at their disposal.
3. The democratic process requires ongoing communication between electors and elected, which is not confined merely to election times and for this to be effective, the public as well as each individual voter, have right of access to full information to enable them to make the appropriate choice when elections take place. Hence the necessity for full disclosure of coalition agreements.
4. Knesset members also have the same right of access to information as to the content of coalition agreements, so as to enable them to exercise their choice where a new government is presented before the Knesset for a vote of confidence.
5. Disclosure of coalition agreements is also required in the interest of effective public scrutiny of their contents, thus ensuring their conformity with the law and enhancing public confidence in government administration.
6. The duty to disclose coalition agreements is not an absolute one. Other interests, as for example those relating to security or foreign relations, or the need at times for political negotiations to be held away from the full glare of publicity may, in certain cases, require non-disclosure.
7. The same principles apply to disclosure of agreements concluded between opposition factions, as to these concluded between coalition partners.
8. On principle, there is nothing to prevent the Court from laying down specific rules with regard to disclosure of coalition agreements, to be derived from basic constitutional principles. The Court would thereby act in a creative, rather than an interpretative capacity, in the common law tradition, which has also been adopted by the Israeli legal system, especially in the field of administrative law.
9. Nevertheless, the Court recommended that the whole field of political agreements be the subject of appropriate legislation by the Knesset, which should regulate, inter alia, the scrutiny of the contents of such agreements and details relating to their disclosure, these being matters which cannot be effectively dealt with by the courts.
The Court therefore confined itself to laying down the general principle that political agreements must be disclosed, and the broad rules relating thereto, such as the timing of thereof, i.e. no later than presentation of the Government before the Knesset.
10. The Court also dismissed the argument that section 15 of the Basic Law: The Government refers explicitly only to publication of the Government's political platform and therefore, ex silentio, coalition agreements do not require publication. The positive requirement to disclose such agreements should be derived from basic constitutional principles, as explained above.
Keywords
Administrative Law -- Disclosure of information, Administrative Law -- Discretion, Constitutional Law -- Government
