The chances of the public ever learning how cabinet ministers voted in the Ministerial Committee for Legislation have dropped considerably, after a legal opinion was issued stating that revealing this information will require the approval of the cabinet.
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The initiative to publicize how the ministers vote on the legislative proposals the committee debates came from Justice Minister Tzipi Livni, who views this as an important step toward transparency.
The Ministerial Committee on Legislation determines which bills go to the Knesset plenum with government backing − which makes it almost certain they will pass into law − and which bills go nowhere. The panel’s debates are confidential; they are not transcribed and how the ministers vote is not documented. The lack of transparency makes it easier for interested parties to exert pressure, make deals, and stymie legislative initiatives without the public being able to monitor the process.
Livni, who is chairman of the Ministerial Committee for Legislation, announced two months ago, at the current panel’s first meeting, “It would be proper for there to be transparency in the committee, and I plan to examine this.”
Cabinet Secretary Avichai Mandelblit, however, delayed the move in order to check its legality, apparently with the backing of Prime Minister Benjamin Netanyahu, who is not very excited about Livni’s idea.
The legal opinion was provided by the Prime Minister’s Office legal adviser, Shlomit Barnea-Fargo, and is being revealed here for the first time. The adviser determined that Livni does not have the authority to make the change she wants on her own, nor is the ministerial committee empowered to change the cabinet work regulations.
Barnea-Fargo said that the authority to do so rests with the full cabinet. Livni has already asked the prime minister and cabinet secretary to bring the issue up for debate by the cabinet as soon as possible.
According to Barnea-Fargo, the cabinet work regulations that were approved by the cabinet last April state that the Ministerial Committee for Legislation will make decisions “by a majority vote” of the committee members, and there is no need for a vote by name. Thus, there is no need to document how the ministers voted.
Under the regulations, the debates of the cabinet and the ministerial committees are meant to be transcribed, but the transcriptions are automatically classified top secret and only the cabinet secretary is authorized to change the classification or allow them to be read − and even then, only if the transcripts do not deal with issues of state security.
But in reality, the debates of the Ministerial Committee for Legislation are not transcribed. There are minutes kept, which include a summary of the debate and the decisions made, and these are meant to be accessible to the public, but as noted, without details of how individual ministers voted.
In fact, the cabinet regulations forbid ministers to release information from the debates of the committees or the cabinet meetings if they were not authorized to do so by the prime minister. According to Barnea-Fargo, it thus follows that “revealing the ministers’ positions, as expressed in their votes, is also forbidden.”
In other words, according to the legal opinion, Livni cannot on her own decide to publicize how the members of the Ministerial Committee for Legislation voted. This is already relevant because Livni has started to publicize how she herself voted in the committee as proof of her commitment to transparency.
Most political observers believe that the cabinet will vote against the initiative. The move apparently has the support of some of the first-time cabinet ministers, but not the more senior among them. Netanyahu does not support the proposal, fearing the implications such public knowledge of how individual ministers voted on bills on the other ministerial committees and on the debates of the full cabinet as well.
Barnea-Fargo’s opinion does not reject the possibility that the cabinet will vote in favor of revealing how ministers vote in the legislation committee, but she is preparing for the possibility that the cabinet will veto Livni’s proposal and then be challenged in the High Court of Justice. There is a chance that a petition will be filed even before a cabinet debate on the issue. A coalition of good-government and social-justice organizations, most prominently the Movement for Freedom of Information, is already planning to file such a petition next week.
While in the past the courts have tended to rule in favor of the public’s right to know, Barnea-Fargo believes the fear that revealing ministers’ voting patterns might have a chilling effect on free debate in the legislation committee is a strong argument. She admits that it is hard to make that case categorically, though with regard to some votes the argument remains solid.
In her document, she acknowledges that there is a public interest in revealing voting patterns so that the public can monitor its elected officials and make sure they are operating on the committee in accordance with their promises. On the other hand, revealing how the ministers voted could undermine the public interest in the event the transparency ties the ministers to their political promises rather than allowing them to vote their conscience.
“The committee members are liable to vote out of popularity considerations, and not relevant considerations,” she wrote.
Another argument against revealing how ministers vote is based on the principle of the government ministers’ collective responsibility. Barnea-Fargo’s opinion notes that from the moment a resolution is passed by the full cabinet or one of its committees, all cabinet ministers, including those who opposed the decision, are meant to support the resolution. The fact that neither the minutes nor the transcripts record how each ministers votes “is an expression of the principle of joint responsibility ... since after a resolution is passed it obligates all members of the cabinet.”
The bottom line is that while Barnea-Fargo’s opinion does not rule out transparency, one gets the impression she believes that any High Court petition filed over the issue is likely to be rejected. Substantive arguments aside, Barnea-Fargo notes that ordering the cabinet to publish details of the votes would constitute an irregular intervention by the judicial branch in the work of the executive branch.