Tuesday, 14 March 2023

Yuval Harari wrong on judicial reform

Israel, unlike other countries in the region, chose to build up the rule of Law in the Anglo Saxon manner because the alternative was ethnic tension and corruption under what was an essentially Socialistic type of economic regime. One outstanding figure who gained international attention was Aharon Barak who, though Ashkenazi, insisted, as Attorney General on the 'Buzalgo test' by which even a well connected Ashkenazi was treated just the same as a poor Mizrachi. This was back in the Seventies. Barak later became Chief Justice. He opposed the elevation of another great legal scholar- Ruth Gavison- to the Bench in 2005. This still rankles with the Israeli Right. However, since Israel- like India- has a mandatory retirement age for Judges, the composition of the Bench is less contentious. Still, one might say that, like India, there has been more judicial activism or even a 'judicialization of politics' because Israelis are on the qui vive for corruption amongst the power elite.

Like India, there are some on the Right in Israel who feel Judicial activism has gone too far. However, there is little evidence that the Bench acts against the interests of the Zionist state. Moreover, unlike Modi, Netanyahu does face quite serious corruption charges. Still, there can be no doubt that Netanyahu is Israel's leading statesman and thus should remain in power so as to ensure that Israel does not get left out in the peace negotiations which China is sponsoring in the region. Perhaps Netanyahu will quietly abandon his proposed legal reforms and thus gain popularity as a man who puts the country ahead of his own lively desire not to go to jail. 

All in all, the current protests in Israel are a storm in a teacup. Nothing fundamental is at stake.

The hugely overrated Yuval Noah Harari takes a different view. Netanyahu is Hitler. He must be stopped before he invades Poland. 

Harari- whom I call Harris because not to do so would be like totes Nazi-  writes, quite hysterically, in Ha'aretz 

What the Israeli government is trying to carry out is not a legal reform – it’s a coup d’├ętat.

No. A coup d'etat involves the sudden, violent, removal of the existing administration. Netanyahu remains in power. I suppose one could say his proposed legislation breaches the constitution- though Israel doesn't have a written constitution- in which case the matter is justiciable.  

There are two main types of coups in history. One type is the “coup from below.”

i.e. a military takeover by junior officers who are from peasant or working class background.  

That’s the kind that’s easy to spot. For example, in some banana republic, the power-hungry General Strongman decides to seize control.

That's a coup from above. The General already had a lot of power and decided to do away with the facade of civilian government.  Alternatively, the existing strongman- e.g. Saddam Hussein- decides to get rid of the nominal leader- Hassan al Bakr. 

Early one morning the citizens wake up to find tanks in the streets of the capital! An armored battalion surrounds the parliament, firing shells at the elegant marble building. A company of paratroopers storms the prime minister’s house, handcuffs him and imprisons him in a military dungeon.

This is like the Saur revolution in Afghanistan which was led by Communists some of whom had infiltrated the armed forces. 

Meanwhile, a second paratrooper company seizes the central broadcasting station, and at 8 A.M. the terrified citizens turn on their TV sets to discover Gen. Strongman, his chest covered with gold medals, announcing in an authoritative voice that, “for the good of the people,” he is seizing power in the country.

This is the typical Pakistani coup. 

Usually when we think of a coup, we think of that kind. But there is another type that is very common in history: a “coup from above.” That’s more difficult to spot.

buy Ayub Khan, Zia, Musharraf etc. were easy to spot as having the monopoly of coercive power. 

A “coup from above” occurs when a government that came to power in a perfectly legal way, violates the restrictions the law imposes on it, and tries to gain unlimited power.

If the constitution permits this, then this is perfectly legitimate. We don't say that Chamberlain or Churchill or FDR carried out a coup when they concentrated power in their own hands so as to defeat the enemy.  

It’s a very old trick: First use the law to gain power, then use power to distort the law.

Elected legislators are supposed to change the law to meet the exigencies of the times.  It is quite true that popular resistance- e.g. the Yellow Vests in Macron's France or the Farmer's agitation in Modi's India- may cause the Government to abandon a particular policy. Sometimes, the leadership changes as a result- Mrs. Thatcher had to go because she had been too inflexible in her stand on the poll tax. 

It can be very confusing when a “coup from above” takes place.

Not if it genuinely is a coup. I suppose a Prime Minister might declare Martial Law and assume emergency powers. Indira Gandhi's Emergency may be called a 'coup from above' but this did not confuse anybody because she jailed her opponents and then did crazy shit- like forced sterilization. That's why she lost the 1977 elections. If Netanyahu has gone too far then his government will fall and he- like Indira- may lose his seat in Parliament.  

On the face of it, everything looks normal. There are no tanks in the streets,

nor are there any crowds of protesters because their leaders have all been jailed and the armed police are beating anyone who looks like they might be disaffected.  

and no general with a uniform sagging with medals interrupts the television broadcasts. The coup occurs behind closed doors, with laws being passed and decrees being signed that remove all restraints on the government, and dismantle all checks and balances.

But, unless opponents are jailed, there is no coup. Churchill, it is true, did jail some British Fascists like Oswald Moseley, but he didn't touch a hair on the head of any patriot who chose to attack him in the most venomous terms.  

Of course, the government does not declare that it is carrying out a coup. It claims only that it is passing some much-needed reforms, “for the good of the people.”

Governments are only permitted to do things which are for the good of the people. No President or Prime Minister ever said 'I plan to really fuck over everybody in our country.'  

How can we in Israel today determine whether we are facing a genuine reform or a coup?

There is no coup because Netanyahu isn't jailing his opponents or forcing the Army to take a personal oath of loyalty to himself.  

The simplest test is to ask: Are there still limits on the power of the government?

Yes. The judiciary is one check. The other is the likelihood that Netanyahu's coalition collapses as legislators seek to put distance between themselves and a leader who is perceived to have gone too far down a road which was bound to attract intense opposition.  

When instituting a reform package, the government makes significant changes, but still respects the limitations on its power.

The previous protests against Netanyahu claimed he was distorting the law to protect himself from jail. However, he seems to have bounced back from those allegations. The question is whether these protests too will fail in their objective. The plain fact is, Israel has an unwritten constitution. The Bench may have restricted the scope of 'political question' much beyond anything common in other Anglo-Saxon jurisdictions- except India where the question of selection of judges also arises. However,  it looks as though Modi is content to leave the Collegium system in place because Governments find it convenient to duck decisions on 'wedge issues'- e.g. homosexuality or the Ram Temple- by letting the Courts take their time in coming to a decision. 

Even after the reforms are implemented, it still doesn’t mean the government can do anything it wants. On the other hand, a coup is a situation in which the government tries to gain unlimited power. If the coup is successful, it means that from now on there are no restrictions on the government’s decisions and actions.

In the case of Israel- a small country with a lot of political parties and a vibrant political life- the big check on the Government is the possibility that its coalition will collapse. 

According to these criteria, it’s clear that what is happening in Israel at present is a coup, not a series of reforms.

No. It is an attempt to expand the scope of 'political question' or 'executive privilege'. I suppose one could say that Netanyahu faces the opposite problem to that of Biden who is stuck with a right wing Supreme Court. 

The government is trying to confuse us by focusing our attention on complicated technical matters, such as “What will be the exact composition of the committee that appoints judges?” The public must not be distracted by such deceptions! Instead, we must keep asking: “What limits will there be on the power of the government under the new regime?”

The answer is that Parliament is the check. Israel has a lot of political parties and a lot of ambitious politicians. However, only Netanyahu has emerged as a statesman with an impressive 15 years of tenure as Prime Minister under his belt. Moreover, in view of the recent rapprochement between Iran and Saudi Arabia, brokered by the Chinese, it is important that there is continuity in Israeli foreign policy. The alternative- unstable Governments led by nonentities- could lead to Israel being frozen out of China's peace plan for the region. 

Let’s say that the governing coalition decides to pass a law depriving Arabs of the right to vote – does any mechanism exist that can obstruct such a move?

Yes. The Knesset could refuse to vote for it. 

In other democracies, there are many mechanisms that can prevent the passage of such a racist and antidemocratic law.

No. The mechanisms are the same. Consider Clause 10 of the Nationality and Borders bill of 2022 passed by the Tory government. Will it stand? Perhaps. Will it actually be used on any extensive scale? Unlikely. On the other hand, the administration can always do things on quite an extensive scale (e.g. 'Windrush') which are prima facie illegal. It is how laws are interpreted- or ignored wholesale- which determines outcomes. Israelis should know this very well.  

In Israel, at present, there is only one such mechanism: the Supreme Court. If a majority of Knesset members votes in favor of disenfranchising Arabs, or in favor of denying workers the right to strike, or in favor of closing down all the newspapers that dare to criticize the government – the Supreme Court is the only institution authorized to intervene and strike down such legislation.

But all the things mentioned above can be done without any enabling legislation. The Executive always has many different ways to skin the proverbial cat.  

The government’s “legal reform” seeks to destroy the independence and power of the Supreme Court, and thereby dismantle the only restriction on the governing coalition.

But the only restriction on the Israeli executive has always been what it can get away with. Often this meant what America would allow it to get away with. 

The other problem is that the Bench may strike down a law- e.g. a 2017 law legalizing 4000 settlements- but then decide that such settlements can't be dismantled! In 2020, the Bench says Mitzpe Kramim is illegal but then, in 2022, decides the thing is kosher because, under Military Law, the test of 'market regulations ' was 'good faith'. 

Some may argue that there will still be one very important mechanism imposing limitations on the government: elections. No matter what the government does, if the public does not like it, in the next election, voters are free to replace the government. But this argument does not hold water.

Because, like the Bench, the virtue signalers protesting this (who do, however, genuinely hate Netanyahu) don't really want to hand the country back to the Palestinians. This is an exercise in hypocrisy. Netanyahu is sending a signal that the Liberals and the pointy headed Judges are trying to ruin the Zionist State while Netanyahu's enemies are pretending that Netanyahu is Hitler. He will soon set fire to the Knesset and arrest all his opponents. Then he will open Concentration Camps for Liberals and Homosexuals and dudes who like dressing up in their Mother's clothes. 

First, this mechanism does not provide any protection for the rights of minorities.

The plain fact is, no land was 'abandoned' by Palestinians. In 1948, many did cross the border because they were instructed to do so for their own safety. They fully expected to return. In India, similarly, Muslims who fled across the border in 1947 expected to return but when they tried to do so Nehru passed a law effectively stripping them of citizenship. To be fair, both Israel and India were faced with the problem of exchange of population. About as many Jews were driven out of Muslim majority areas in the MENA as Palestinians over the subsequent decades. This is tragic. However, both Israelis and Palestinians can gain a lot by cooperating. Perhaps, the Chinese will create the conditions to make this possible. Unlike the US, the Chinese have always recognized Hamas and it is with Hamas that Israel needs to do a deal.  

Second, under the new regime, the ruling coalition could change the electoral system at will, making it very difficult to replace the government. If the coalition suspects that it might lose the election, it might bar opposition parties from participating in it, or invent some other trick that will ensure its victory. The new legislation the government is trying to pass includes no mechanism to prevent such foul play.

But the Central Elections Committee had previously banned parties- e.g. the right-wing Kach party. For 'balance' it also tried to ban the PLP (a Leftist Jewish/Arab progressive party) but the Bench overturned this decision without striking down the 1985 Act. More recently, Balad was banned but unbanned by the Bench.

Of course, there is nothing sacred about the mechanism of the Supreme Court. If, along with weakening the court, the government had proposed alternate checks and balances on its own power – it might have been possible to believe that the government really was interested only in instituting reforms, rather than in establishing a dictatorship. But the government has not proposed any such alternate measures.

Israelis are simply too independent in their thinking to tolerate a dictator. Equally, it must be said, Israeli statesmen, regardless of 'ideology', tend to be pragmatic and to pursue only the interests of the Zionist state. The same could be said of the Bench. There is something hypocritical in the pretense that a small country in a troubled part of the world is actually like the US and thus needs all sorts of constitutional checks and balances.  America may rightly be called a nation of lawyers. Israel is a nation of ex-paratroopers some of whom are as passionate about the law as others are about Mathematics or Bio-Chemistry. But, it must be said, young Palestinians are equally passionate about academia- if they get the chance to be. 

When the leaders of the coup are explicitly asked what will limit the power of the government under their new regime, the only answer they give is: “Our goodwill. Trust us.”

No. Netanyahu is saying that he has a mandate from the electorate to rein in the Bench because what they are doing harms the Zionist State. His enemies say he is trying to stay out of jail. Perhaps, Netanyahu will quietly drop the bill so as to appear moderate and concerned only with the good of the country. Modi gained by dropping the Farm Bill. People thought he was putting the country first by swallowing humble pie.  

That is the classic answer given by every dictator. Gen. Strongman, after seizing power with the help of an armored battalion, also declares in his speech to the nation: “Trust me. I will protect you. I will take care of you.”

Which candidate for election, or public office of any type, says 'Don't trust me. I will rob you and sodomize your children. I won't protect you. Take my word for it.'? 

For the citizens, it doesn’t matter whether it’s an armored battalion or a legislative blitz that makes them utterly dependent on the goodwill of the ruler. In both cases the result is a dictatorship. When the only thing that limits the power of the government is its own goodwill – that is the definition of a dictatorship.

No. If the government depends on votes, it is not a dictatorship. Hitler and Mussolini and Stalin may have held plebiscites. They did not hold free and fair Parliamentary elections.  

But there is, nevertheless, a fundamental difference between establishing a dictatorship with tanks, “from below,”

Generals are 'above', not below. It is not the case that a bunch of corporals can organize a coup.  

and establishing a dictatorship by means of legislation, “from above.”

Netanyahu says he has a mandate because judicial reform was part of the platform he stood on. Voters, not power elites, put him in office. 

When a coup occurs “from below,” there are many official bodies whose job it is to stop it: the army, the police, the secret service.

That's not a coup. It is a popular uprising. The color revolutions were not called coups.  

The government can order them to come to its aid and arrest Gen. Strongman. But when it is the government itself that’s carrying out the coup – then the army, the police and the secret service will find it difficult to oppose it, because they are normally bound to obey the government’s orders.

This is false. History shows that 'Generals' and police officers and the Intelligence community can depose any would be dictator as has just happened to Peru's Pedro Castillo.  However, where a leader's power flows from a Parliamentary coalition, such interventions would be rare unless the Head of Government has gone mad or was a cretin to begin with.

 Equally, it must be said, the Bench may completely fail in unseating a Head of Government who retains the confidence of Parliament.   

In such a situation, it is the duty of the citizens to stop the government and to prevent it from gaining unlimited power.

But that is not the case in Israel. It is fair to say that Netanyahu's platform included precisely the thing which people are protesting against. Like Macron who caved in to the demands of the Yellow Vests, Netanyahu may scrap his plans and hope to gain popularity for showing humility.  

How will we know that we have succeeded in stopping the coup, and that it’s time to stop demonstrating and consider a compromise? Legal details are of great importance in striking such a deal, and experts in the field will have a lot of work on their hands. But the key question each one of us will have to ask ourselves regarding any such arrangement is: “What will limit the power of the government? If a majority of Knesset members wants to deprive Arabs of the right to vote, or ban all opposition newspapers, or jail women for wearing shorts – what is the mechanism that will prevent this?”

Sadly, there is no mechanism which will prevent this other than grass-roots work to alter the preferences of voters. The bigger problem is that such changes may be brought about by stealth- i.e. the law may say one thing but the authorities may do something quite different. 

We must therefore reject any compromise that fails to include robust limitations on the government’s power,

In which case Israel won't be able to defend itself.  

and we must convey to the government a very clear message: Bring the coup to a halt, or we will bring the country to a halt.

There is no coup. Anyway, Harris & Co can't bring anything to a halt.  They can merely advertise their own ignorance and stupidity. 

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