'The will of the people'

Recently, ministerial catapults have been aimed at the High Court of Justice, as well as low and even unworthy words, as preparation for an onslaught against the justices should they rule to cancel the Judea and Samaria Settlement Regulation Law. An announcement was also delivered to the High Court from the Knesset podium last week, in the name of the government: "In the clearest words possible: Keep your hands off the legislation."

The people attacking the High Court argue that any law passed in the Knesset by definition expresses "the will of the people." This baseless claim is brought out to lend a sense of general moral devotion to bills that are sectarian, extremist, evil, and even when they comprise blatant and unjustified violation of human rights. But life is a little more complicated than that. The public elects the Knesset in a direct, proportional vote, and therefore, on election day, the Knesset represents the will of the people. The Knesset gives the government the authority to manage the affairs of the state, but that management mechanism does not mean that every piece of legislation the government initiates or gives a majority in the Knesset reflects "the will of the people."

In a parliamentary regime like ours, the factions that make up the coalition are dependent on many factors, some personal and others circumstantial. In the last election [in 2015], the Israeli public gave the main governing party, the Likud, only one-quarter of its vote, and the Likud put together a governing coalition in which the second-largest party received only 8% of the voters' ballots. Over the course of a year, the "will of the people" was given voice by a coalition majority of a single vote, and then all of a sudden the "will of the people" was expressed by bringing Yisrael Beytenu into the coalition. In contrast, if the attempts to include the Zionist Union faction in the coalition had succeeded, the "will of the people" -- in the very same Knesset -- would have led to some very different laws than those passed by the current Knesset since it launched.

Even if every law that passed with a majority vote in the Knesset did express the "will of the people," offensive or harmful laws should be opposed. Many years of experience, both our own and others', have taught us that an unchecked majority tends to trample. So the best government for us is the one that imposes limitations on the legislative majority to keep it from harming the rights of the minority.

In this context, it is important to understand how laws are actually passed in the Knesset. Bills the government initiates or supports are approved by the Ministerial Committee on Legislation as a result of agreements between the coalition factions. In the current government, which has existed since May 2015, there has been only one instance of a minister objecting to a decision by the committee. From there, bills are approved by the cabinet mainly by a system of "pass mine, I'll pass yours." The work ticks along, but the dispute remains.

Therefore, a bill on a divisive wedge from a small faction that represents, say, 3% of the voters, could pass in the Knesset plenum under the misleading title of "the will of the people."

The reason for that is simple: The government controls Knesset legislation through "coalition discipline." This is a vital tool, but it creates a political power pyramid: Minority holdings lead to a majority in the Knesset, sometimes because of apathy in coalition parties, sometimes because of party interests, sometimes because of personal calculations, and sometimes because of threats. Add to that the tension between the Likud and Habayit Hayehudi, which brings in competition that leads to pursuit, which sends things downhill. This reached a climax in the settlement regulation law, an all-powerful show of coalition weakness. The main problem of governance in our country these past few years is the coalition parties -- primarily the main governing party, whose name still includes the three words "liberal nationalist party" -- repeated buckling to the whims of the fringe.

For free people there is no substitute for a liberal democracy in which the majority governs and civil rights are protected. The debate about the matters in which it is appropriate for the High Court to intervene is important, but given the way that fortress -- which is vital to the protection of human rights -- is under attack, we must work diligently to protect the High Court's ability to protect the public from the absurdities that pretend to represent the "will of the people."

Benny Begin is a Knesset member for the Likud party and a former government minister.