The real coup against Israel’s democracy

For once, Ha’aretz has stated an important truth

MELANIE PHILLIPS

As I write, tens of thousands of Israeli protesters against the government’s judicial reforms, who have spent the past few days marching to Jerusalem, are becoming even more dangerously agitated over the fact that the Knesset has just passed the first provision of these reforms which abolishes the criterion of “reasonableness” in judicial review.

The protesters describe these reforms as a “coup” that will “destroy democracy”. That’s how they describe a democratically elected government and Knesset enacting a proposal that was put to the electorate to vote on at the last general election.

Yesterday, an estimated 200,000 Israelis who support the judicial reforms mounted a counter-demonstration in Tel Aviv declaring that the anti-government protesters were trying to mount a coup against the government and acting to destroy Israeli democracy.

A few days ago, their claim was endorsed straight out of the horse’s mouth, as it were. In the Ha’aretz internet English edition, Yossi Melman wrote:

A military coup is underway in Israel. This is the unvarnished truth. At the same time, there is an attempt to play with words in order to avoid looking the reality in the eye. The rebels and their supporters are employing euphemisms and resorting to linguistic acrobatics rather than stating unequivocally that there is insubordination among many Israel Defense Forces reservists. They refer to it instead as “ceasing to volunteer.”

This rebellion is widespread and extends beyond the petitions that have already been signed by thousands of IDF reservists (in active duty or not), the Mossad and the Shin Bet secret service. It also exceeds the thousand or more pilots, air force technical staff, special ops personnel, elite units, Unit 8200 operatives and the technological unit of the Intelligence Branch, military doctors and more, who have not reported for reserve duty or warned that they will not report if the government’s judicial overhaul legislation, which they call regime change, is passed.

A growing trend of so-called gray (or white) refusal must also be taken into account – i.e., reservists who avoid service on various other pretexts without labelling it as refusal to serve. Furthermore, the number of junior and mid-level officers – lieutenants, captains, majors and even lieutenant colonels – declining to extend their regular military service is also on the rise. This trend is of serious concern to the IDF Manpower Directorate, to the General Staff and the IDF chief of staff himself.

It’s more comfortable for all involved not to explicitly use the phrase “military coup,” but if the issue is to be effectively addressed, the reality must be faced head-on and called by its rightful name.

Indeed it must. Some of us who have been paying attention realised that this was an attempted coup right from the start, when its leaders called for the Netanyahu government to be brought down more or less as soon as it took office. While some protesters are undoubtedly motivated by a principled (if misguided) opposition to the judicial reform, the leaders of this insurrection made it clear from the get-go that such opposition was merely a useful ploy to sweep aside the democratically elected wishes of the public and bring down the government it had elected.

Melman then went on to gloat about this coup and to justify it on the basis that sometimes a democratically elected government has to be brought down by a military coup — in order, he claimed, to preserve democracy. It’s worth dwelling upon the details of this remarkable justification.

He wrote:

Military intervention in civil society is nothing new and is not unique to Israel. Historically, it has followed two seemingly contradictory trajectories that are actually two sides of the same coin. The first, and more common, is a military rebellion and seizure of power by a general or junta in order to install authoritarian or dictatorial rule. The second, of which there are far fewer examples, is a military coup for the sake of democracy.

The fascinating book “The Democratic Coup d’Etat,” published in 2017 by Oxford University Press, examines this very issue and poses thorny dilemmas that are also relevant to what is currently happening in Israel. The French term “coup d’etat,” writes author Ozan Varol, “brings to mind coups staged by power-hungry generals who overthrow the existing regime, not to democratise but to concentrate power in their own hands as dictators. We assume all coups look the same, smell the same, and present the same threats to democracy. It’s a powerful, concise, and self-reinforcing idea. It’s also wrong. ‘The Democratic Coup d’Etat’ advances a simple yet controversial argument: Sometimes a democracy is established through a military coup.”

So what examples of such a coup does this book provide? Melman wrote:

It traces the history of military coups for the salvation of democracy – from the uprising by Athenian sailors on the island of Samos in 411 BCE, through coups in Europe, Africa and South America. Varol also discusses the Turkish military’s role as a defender of democracy since the establishment of the Turkish republic by Mustafa Kemal Atatürk, and the military coup to restore Turkish democracy that occurred in 1960.

He also elaborates on the 1974 Carnation Revolution in Portugal, during which officers who returned from the Portuguese colonies revolted against the dictatorial regime in Lisbon and established a democracy by popular consent, with very little bloodshed. This democracy also brought about the independence of the colonies.

Another, albeit much less convincing, example presented by Varol is the 2013 deposing of Mohammed Morsi by Abdel-Fattah al-Sissi and the Egyptian military, out of concern — or on the pretext — that he was about to institute a theocracy. In the book, Varol identifies several characteristics of democratic military coups:

1. The military coup is directed against an authoritarian or totalitarian regime;
2. The military joins the popular resistance against the regime;
3. The tyrannical leader refuses to comply with the opposition’s demand that he cede power and the military responds;
4. The coup is organised by a military that relies upon mandatory service and is part of the civil-national fabric;
5. Having carried out the coup, the military arranges for free and fair elections to be held within a short period of time, and peacefully transfers power to the democratically elected victors.

Varol argues that, ultimately, the commonly held view that any coup is necessarily a bad thing, that by definition a coup is something that harms democracy and stability, needs to be replaced by a much more nuanced understanding of the term.

Got that? Spotted the difference with Israel? These were all coups against a tyrannical regime. They were insurrections mounted to wrestle freedom and the rule of law away from regimes which suppress them. Yet Melman is using this argument to justify an insurrection against Israel’s democratically elected government. 

That isn’t a coup to protect democracy. It’s a coup to destroy democracy.

Moreover, the claim that the measure passed today abolishing the “reasonableness” criterion in judicial review will usher in a dictatorship doesn’t hold water. As Israel Kasnett reported on JNS.org, legal experts such as law professor Avi Bell and the lawyers at the Kohelet Forum argue that the Supreme Court’s criterion of “reasonableness” , developed after 1993 in a judicial power grab to counter the rise of the democratically elected Likud party, is not anchored in any legal principle and has been used to give the judges powers to strike down laws and ministerial actions unprecedented anywhere else in the democratic world.

As for the claim that abolishing this “reasonableness” criterion will remove Israeli ministers from judicial scrutiny, the Kohelet Forum says this is ridiculous. Kasnett writes:

Kohelet also emphasised that contrary to popular belief, the annulment of the reasonableness criteria as proposed by the bill “will not prevent judicial review or lead to a violation of human rights. Most of the main review grounds in administrative law will remain… Repealing reasonableness grounds will demand of the court that it review decisions based on sound legal grounds, and not on the judges’ opposing world-views or preferences, and will leave value decisions to the elected officials”.

Bell observed:

“With the high court and official legal establishment acting in open contempt of the elected legislature and executive, and in open rebellion against any attempt to return legal limits to their power, Israel is already in a constitutional crisis. One can only hope they will come to their senses.”

Alas, it looks like they are not. For those opposing reforms such the one passed today, their inescapable position is that they want to have rule by unelected and unaccountable judges rather than rule by democratically elected politicians they despise. For such opponents, the argument that the proper way to deal with such despised politicians is through the ballot box no longer has any validity. Their claim that they are defending democracy is bogus and Orwellian. They want representative democracy replaced by unbridled judicial power — and the power of the streets, enforced by the military.

We owe Ha’aretz a debt of gratitude for tearing aside at least one of the veils of obfuscation to call this crisis out for what it is — a military coup.