The Empire of Hayutistan (1)
News, Analysis and Commentary from the Oligarchy ruled by Esther Hayut
The last few weeks have been edifying. There are two narratives regarding what has happened. One narrative is that an institutional reform that posed a danger to Israeli liberties has been averted. The other narrative is that Israel has become a failed democracy, in which the elected government no longer governs and the true locus of power lies elsewhere. Both narratives are essentially true.
Some people reading this blog will focus on the first narrative and try to argue that the events of the last few weeks are a victory for democracy. While something bad may have been averted, what has been lost is far, far greater: Israel’s democracy. Recovery from this debacle will not be quick or simple.
Even before the current crisis broke out, Israel was a compromised democracy. This view is held by many more people than supporters of the current Knesset coalition, if you can catch them admitting it. Israel’s Supreme Court exists by virtue of Knesset legislation, but it has in recent years set itself above the Knesset. It arrogated to itself the right to decide which of Israel’s laws are constitutional – something the Knesset itself never, ever did – handing Israelis down a constitution legislated from the bench. The only countries (other than Israel) where constitutions are created by people whom nobody elected are countries you wouldn’t want to belong to. When the Knesset presumed to legislate constitutional legislation using rules handed down by the court, the court arrogated to itself the right to review and potentially strike down those. It uses its doctrine of “reasonableness” to enforce its own public policies in place of the people’s elected representatives. In many cases, too many to ignore, it essentially controls the appointment of the Attorney General and has decreed that the government is subordinate to the judgment of that unelected official. The Attorney General nominally controls the State Prosecution, and there is almost universal consensus that that body is corrupt and inept (the Zdorov case being a good exhibit of both flaws).
Some people will argue that some of the descriptions above are not true, but that really matters very little. The majority of Israelis who voted for Israel’s current government think they are true. Their level of confidence in the courts and the State Prosecution is essentially zero. They are no longer willing to have central issues of social, security and foreign policy subject to the fiat of a pack of philosopher-kings (and queens) whom nobody elected.
In the weeks since the election the will of the majority has been thwarted and the country’s elected government set at naught. Grant all the criticism of the composition of this government, its faulty leadership and frequently stupid policies, and that’s still what happened. The people who refused to accept the verdict of the polls include – are not limited to, but include – the rich, the powerful, the occupants of privileged positions in business, academia and elite IDF units. These people struck, and were able to force their preferences on the majority.
Theirs is a pyrrhic victory, achieved not by argument or consensus but by raw power. In the course of the struggle of the last few weeks the truth about how Israel is governed has been laid bare. The court, struggling to preserve its power though lacking a democratic mandate, has tried to remove the man a majority of the country voted for as prime minister. The abuse of concepts like “reasonableness” and the prerogative of the Attorney General, unfounded in any law that anyone can point to, has reached new heights. The message to the majority of the country is: You can vote as you like, but the ballot box is only a kind of game. Real power lies elsewhere. Even if one sees through the façade of the Supreme Court’s claim to supreme power over the elected government, that power will be enforced through the streets and by a strike of the minority, and the consent of the governed be damned.
The people who forced their minority view upon a government elected by a majority fear that majority and what it might attempt to legislate. That’s understandable. What they don’t yet understand, I believe, are the implications – for the country, and for themselves – of their actions. What happens when a majority of the country decide that they are indeed second-class citizens, that those who dominate the State will never consent to the will of the majority, that the ballot box is just a cruel confidence game? Because right now that’s the message that comes through loud and clear. What happens when the current rules of the Israeli game, finally and definitively, lose the consent of the governed?
Political scientists term “praetorianism” the political phenomenon of the armed forces seizing power from a civilian government. We have witnessed an example of praetorianism, Israel style, which I will discuss in my next blog. In the blog after that I will address the question of whether there is a way out of this dilemma.
In the meantime, I want to address a question to those who, with the best intentions in the world, demonstrated in the streets against judicial reform, blocked roads, declared a boycott of service in the IDF: You have won for now. You have forced your view upon the majority of the country as expressed in the polls. Everyone now sees that you, in fact, govern, with Esther Hayut and her colleagues on the bench as your regents. How long, in conscience, can you keep on governing Israeli society in this way?
For now, chew upon this: It’s time to stop pretending that Israel is the only democracy in the Middle East. There are no democracies in the Middle East.