Four combined petitions requested the Supreme Court to rule whether factions of the Knesset (Israel's Parliament) that conclude coalition agreements among themselves prior to the formation of a government are obliged to publish those agreements (para. 1).
The Court found that the agreements in question were “public agreements” as they were concluded “by public functionaries chosen by the electors to carry out legislative and government functions” (paras. 4-5). Such agreements were designed, among other aims, to serve the good of the public and to preserve “the rules of fairness and integrity” which were foundational for the public’s confidence in the government (para. 5). This purpose of the agreements could only be served if they were not concealed and the public was aware of them. According to the Court, “[p]ublic scrutiny is not only an expression of the right to know, but it is also an expression of the right to control” (para. 5).
Acting in the absence of explicit constitutional or statutory recognition of the right of access, the Court nonetheless held that the democratic system is based on the sharing of information about what is happening in the public domain with the public itself. The government can withhold this information only in exceptional circumstances when withholding is required by state security or foreign relations or when any vital public interest is threatened (para. 5).
In the Court’s view, “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.” There was no substantive difference in whether, as a result of agreement, the government was successfully formed or the attempts to do so failed (para. 8).
In his concurring opinion Justice Barak 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. As to the first source, Justice Barak explained that Israel was a parliamentary democracy, and the basis of this system was the right to vote vested in the citizens of the State. Thus citizens needed to receive information to make informed political decision (para. 4). Secondly, Justice Barak noted that parliamentary factions were trustees of the public and information that they possessed was not their private property, but belonged to the public (para. 5). Thirdly, he pointed out that the obligation to disclose derived from freedom of expression that encompassed the right of the individual and the public to know (para. 6).
Judgment of the Court.