An Israeli looks at India

Let me put this up right up ahead. A uniform civil law is a must in any land. I would say that it forms the basis of nationhood. This does not mean that it tramples over individual rights, far from it. Individual rights are sacrosanct but civil laws come into the picture when another person gets impacted by what your circumstances and actions. Talking about inheritance, adoption, marriage, divorce and the like. This has to have national applicability. You can get married under a tree, in front of a bus or in a church, does not matter. But if your marriage has to be dissolved, then other things being equal, the property division between you and your wife should not be impacted by where you got married, who married you and which deity you prayed to at that time. If you want to create a nation and a shared values society, then this kind of equality of treatment is important.

I have written many times on this topic here. This is specially evident when it comes to minorities. Yes, I understand that there is a problem with the tyranny of the majority, but that’s where your nationhood comes from. Every country and nation has to decide what their minimum common rules should be. If you want to live in a liberal democracy, then minimum common civil laws will apply. And when you dont, then problems occur, like with the Baha'i in Egypt, the Arabs in Israel, the Hindu’s and Christians in Pakistan, the Muslims in India, etc.

This paper by an Israeli academic was interesting. First the abstract:

This article focuses on the ambivalent effect of religious autonomy in India and the outcome for democracy in the country. The Indian constitution guarantees autonomy to its religious minorities, and promises the minorities the freedom independently to manage their religious affairs in addition to a proportional share of the budget. At the same time, the constitution emphasizes the aspiration to legislate 'uniform personal laws' for all the citizens of India in accordance with the principles of secularism, equality and with India's self-definition as a civic nation. This recommendation has however remained a 'dead letter' until today. In this domain, the state has constituted a civic law for Hindus, which adjusts Hinduism to democratic principles. In this sense, the state has nationalized Hinduism, and the government has assumed authority and reformed Hindu civic and marriage laws. However, although they have tried, the state's legal and political institutions have not interfered thus far with Muslim marriage and religious laws. Muslims are committed to the Sharia while Hindus must obey the state's civic laws. By avoiding enforcement of affirmative action for Muslims in the spheres of political representation or public employment, while simultaneously prohibiting Hindus' group rights, and providing religious autonomy to the Muslim minority, the Constitution, which stresses so-called secularism as well as minority protection, intensifies the conflict between these two governance principles. The conclusion is that this situation not only leads to ideological conflicts and resource competition but also, overall, threatens the stability of India's democracy.

This Shah Bano case was a blot on Indian democracy as it made sure that it hit the worst, the Muslim Woman, right in the solar plexus. All religions are patriarchal and there are many items in the Indian version of Islam which are decidedly anti women. And then the Indian state went and slept with the obscurantists and mullahs. See the wiki site mentioned above. This lack of a uniform civil code direction by the politicians is venal but judicial attempts have tried to make sure that the patriarchal stupidity and pandering to religious obscurantists is obviated to a certain degree.

Its the women who get hit all the time as usual.

The Irish Govt and the EU forget what democracy is

This makes me extremely cynical indeed. A constitution is supposed to be one of the foundations of the state and it is to be expected that the citizens would agree and appreciate it.

It just tells me the depths to which this European project has sunk that it is now reduced to whining and moaning about a dark future without this constitution. Only ONE country out of tens is asking its citizens about its constitution and that too is causing major issues. That is democracy for you, you elitist corrupt lot?

Bernard Kouchner, France's foreign minister says that "Irish voters were warned on Monday that the rest of the European Union would look at them with “gigantic incomprehension” if they rejected the bloc’s Lisbon reform treaty in Thursday’s referendum."

No, Bernard, we are looking at you with cynical comprehension that you are basically an elite, who have no pretensions towards democracy and the will of people. And it is indeed telling that you are uncomprehending of the will of the people. After all, you and your other European Elite never followed it, did you?

And then you have an unelected leader of a government which has perhaps the lowest popularity rating of any recent government in British History, busy signing up the country to a constitution which is crap.

Technorati Tags: Ireland,EU,Constitution

Water Wars

Well, the South African Constitution says this.

Section 27(1) of the constitution says: “Everyone has the right to have access to ... sufficient food and water.”

Section 27(2) says the state must “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights”.

Ok, so everybody has a right to food and water. Now, does that mean free water? As I have said so many times before, there is nothing free in the world. Somebody has to pay. So the South African High Court has ruled that the state has to pay for a basic provision of water to everybody. See here for more details.

Now, where do we get the money from? General taxation? so why would the poor pay for the rich? Remember that payments for services out of general taxation are disproportionately and comparatively bad on poor people. It is like the child benefit that is given to every child in the UK. Its about 20 pounds of so. So think about it, this money is taken from the general taxation pot. So even I, who is a higher rate taxpayer, gets this 20 pounds for my children. Now I can afford to pay for my children myself. But because it comes out of general taxation, the vast majority of the poor end up paying in general taxation and then getting a wee bit in return. So paying for core services from general taxation is not that hyper efficient... Here are some good options on it.

Check out what happened here. This is indeed quite a curious decision and goes to show that when politicians say things like "right to jobs, or water, or or or", well, when rights are given, then ability to protect and provide those rights should also follow. Otherwise, its just words...

Car Bombs are not terrorism!

Now I have heard everything, car bombs are not terrorism according to German Legal Eagles!

Either the reporting or the judgement itself is flawed because all this judgement now does is to hold the rather interesting German legal and constitutional model (based partially on the US legal and constitutional model) open for discussion. What is the state? the central government? the lander? all? difficult questions, all.

Technorati Tags: Legal System,Germany,Constitution,Counter-Terrorism

Abraham Lincoln - the constitutional President? Nope!

Very interesting book review here. Specially see the bolded bits. Sort of puts Dubya's attempts at making an end run around the constitution into perspective, no? This is why every US President from Lincoln down has had issues with the War Powers Act and its predecessors. So wherein the demands for impeachment and war crimes?

Anyway, read and scratch chin


Daniel Farber. _Lincoln's Constitution_. Chicago: University of Chicago
Press, 2003. ix + 240 pp. Notes, bibliography, index. $27.50 (cloth),
ISBN 978-0-226-23793-0.

Reviewed for H-CivWar by Brian Flanagan, Hauenstein Center for Presidential Studies, Grand Valley State University

Abraham Lincoln, _Praetor Maximus_

Examples abound in history, of leaders who have taken on dictatorial powers at the expense of constitutional order--Lucius Cornelius Sulla and Julius Caesar in classical Rome; Mao Zedong, Joseph Stalin, Hideki Tojo, Adolf Hitler, and Benito Mussolini in modern Europe and Asia. It would come as a shock to the sensibilities of most Americans who revere their sixteenth president that Abraham Lincoln is often placed in the
company of such leaders. As we approach the bicentennial of Lincoln's birth, it is important to remember that throughout the Civil War he took actions that were viewed by many of his contemporaries--and are still viewed by many scholars--as beyond the limits of _ordinary_ presidential authority, as perhaps dictatorial.

In 1861, after the South's attack on Fort Sumter, newly inaugurated President Lincoln opted for several counter-offensives that fell squarely within Article I of the United States Constitution, describing the national legislature's authority--not the president's. He blockaded Southern ports (effectively declaring a state of war); suspended _habeas corpus_ between Washington D.C. and Philadelphia, and eventually across
the North; expanded the regular army and navy; and ordered the U.S. Treasury to advance two million dollars to a private firm in New York for discretionary use on war supplies. Later he instituted military trials across North and South to dispense justice and ignored a Supreme Court directive challenging his authority to suspend the writ. Even the Emancipation Proclamation, Lincoln himself admitted, would have been
beyond his authority in peacetime.

But 1861-65 was a time of rebellion--of Civil War--in the United States. How does this _extraordinary_ circumstance change the legal implications of Lincoln's actions?

Enter Daniel Farber.

Farber's book, _Lincoln's Constitution_, could justifiably be re-titled
"Lincoln's Constitutionality"(at the expense of the author's double
entendre): it is more correctly characterized as an assessment of the
legality of Lincoln's presidency than as an analysis of his
interpretation (or reinterpretation) of the U.S. Constitution. In fact,
this is one notable limit to Farber's legal history of the executive
administration of the Civil War. He does not consider, as Garry Wills
has, the significance of the Gettysburg Address in changing the
Constitution by cleansing it of "that legal compromise" over the issue
of slavery and by appealing instead to its "spirit," its moral root in
the Declaration of Independence.[1] Except in passing, he does not
consider, as David Herbert Donald has, Lincoln's Whig understanding of the Constitution that actually _weakened_ the executive branch in
relation to Congress and the cabinet, even if in war decisions it tended toward John Quincy Adams's expansive view that, "by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them.... Whether the war be civil, servile, or foreign ... the military authority takes for the time the place of all municipal institutions, slavery among the rest."[2]

Farber's analysis of Lincoln's abidance by constitutional law,
congressional statute, presidential precedent, and Supreme Court ruling is exhaustive. With the possible exception of J. G. Randall, no scholar to date has made as thorough a study of Lincoln's war measures in light of American law. More limited analyses have stopped at the (accurate) assertion that Lincoln himself never claimed his sweeping use of power was ordinarily legal. In essence, he went stovepipe hat in hand to a special session of Congress to ask ratification of his otherwise extralegal usurpation of congressional authority:

"These measures, whether strictly legal or not, were ventured upon,
under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress."[3]

More limited analyses have pointed to Congress's August 1861
ratification of Lincoln's actions, the Supreme Court's March 1863 _Prize Cases_ decision upholding the legality of his early war measures, and Congress's 1863 Habeas Corpus Indemnity Act, which retroactively authorized all arrests and seizures made under authority of the president.

More limited analyses have gone back further to emphasize the 1787
Constitutional Convention's decision to replace Congress's authority to "make" war with its authority to "declare" war, leaving it to the
president to repel sudden attacks. Much more limited analyses have
claimed broad, inherent, executive war powers--out of reach of the
legislative and judicial branches--and other exclusively presidential
prerogatives deduced from Article II clauses of the United States
Constitution. These analyses have used the uncharacteristic claim of a preeminent constructionist, Thomas Jefferson, that jeopardizing the nation's "very high interests ... by scrupulous adherence to written law, would be to lose the law itself ... thus absurdly sacrificing the end to the means."[4] Or they have used Lincoln's refrain defending suspension of the writ, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"[5] Together, these arguments can be used to make a strong case for the constitutionality of Lincoln's war measures, and all are assessed by Farber--most of them in one chapter.

But it is important--especially as debates persist today over the
balance between national security and individual rights, presidential
and congressional authority, national and state sovereignty--to remember that Lincoln's presidency was extraordinary in our history. It is important, as we read presidential historian Michael Beschloss
trumpeting the supreme value of presidential courage, to look closer at Lincoln's actions and understand where at crucial moments he probably overstepped his authority--even if he has been vindicated by history.[6] It is important, as Lincoln scholar Vernon Orville Burton pins the roots of an "imperial presidency" in the sixteenth president's "cavalier" approach to civil liberties, to recognize where the president was squarely within his legal bounds and where he showed great restraint.[7]

For this, we can return to Daniel Farber's legal history of Lincoln's
war decisions. Farber, the Sho Sato Professor of Law at the University of California, Berkeley, and McKnight Presidential Professor of Law at the University of Minnesota, has given us a disciplined and fair look at the sixteenth president's most controversial decisions. Farber considers a wide range of arguments both defending and condemning Lincoln: from his pre-presidential conclusion that secession was indeed illegal--that the federal government had authority to coerce state governments into
recognizing the supreme law of the land--to his exercise of powers
ordinarily reserved by Congress, to his administration's infringements on individual liberties in North and South. The author is decisive where possible but allows uncertainty to remain where it must--particularly on constitutional questions of "original intent" that the framers themselves debated until their deaths.

Farber's conclusions, overall, are favorable to Lincoln's legacy. With
the exception of some prominent freedom of speech infringements and cases of unjustified abridgement of individual rights in the North, most of what Lincoln did was strictly constitutional, falling within explicit presidential or congressional authority. It is a vital distinction, of course, that Lincoln's use of congressional powers--though probably necessary and in line with the "classic liberal view of emergency power"--were "approved and in all respects legalized and made valid" by Congress (p. 194). "Nowhere was there any thought," writes Farber, "that necessity alone gave the president an exemption from the legal consequences of violating statutory or constitutional requirements. Lincoln does not seem to have claimed such legal authority" (p. 195). Instead, Lincoln was retroactively granted executive and legislative prerogative to deal with the consequences of rebellion in the South.

Such being the case, Abraham Lincoln's accusers turn out to be right. In the classical Roman sense, he may accurately be called a dictator--a _praetor maximus_--vested temporarily with extraordinary power to deal with crisis. It is lucky, Farber reminds us, that at the crucial moment a man of "unshakable determination, combined with a shrewd sense of reality" was available to lead (p. 199).

Notes

[1]. Garry Wills, _Lincoln at Gettysburg: The Words That Remade America_ (New York: Simon & Schuster, 1992), 38.

[2]. Charles Francis Adams, "The Sifted Grain and the Grain Sifters,"
_American Historical Review_ 6, no. 2 (1901): 233.

[3]. Lincoln's Special Session Message, July 4, 1861, _Messages and
Papers of the Presidents_ (New York: Bureau of National Literature,
1897), 7: 3225.

[4]. Thomas Jefferson to John B. Colvin, September 20, 1810, _Works of Thomas Jefferson_ (New York: G. P. Putnam's Sons, 1905), 11: 146.

[5]. Lincoln's Special Session Message, July 4, 1861, _Messages and
Papers of the Presidents_ (New York: Bureau of National Literature,
1897), 7: 3226.

[6]. Michael Beschloss, _Presidential Courage: Brave Leaders and How They Changed America, 1789-1989_ (New York: Simon & Schuster, 2007), ix.

[7]. Vernon Orville Burton, _The Age of Lincoln_ (New York: Hill and
Wang, 2007), 225.

All this to be taken with a grain of piquant salt!!!

Europe doesnt seem to like democracy very much, does it?

So polls are saying that the new EU constitution (sorry, the EU Reform Treaty!) should be put to the people in a referendum: I quote:

An overwhelming majority of people in the European Union’s five biggest
member states want the bloc’s treaty on institutional reform to be submitted to
national referendums, according to an opinion poll published on
Thursday.
According to the poll, 70 per cent of those questioned in France, Germany, Italy, Spain and the UK want a referendum, 20 per cent do not, and 10 per cent are unsure. Some 76 per cent of Germans want a referendum, 75 per cent of Britons, 72 per cent of Italians, 65 per cent of Spaniards and 63 per cent of French.

You know what I hate? is being taken for an idiot by these politicians. Gordon Brown and other assorted European leaders, do not think that I am not able to make an informed judgement. And when you are talking about my country's sovereignity, I do not trust you at all. Plus you promised. So besides being elitist, you are also a liar, a promise breaker and frankly incompetent to boot.

Disgusting!

All this to be taken with a grain of piquant salt!!!

Gordon Brown's dishonest posturing on the EU referendum

Here we go again with the posturing. Gordon Brown, for some bizarre reasons of his own, is refusing to let the British public vote on the EU treaty. Here is an excellent rebuttal of that argument by Gideon Rachman of the FT. I quote:

First, this is a relatively trivial treaty. Britain did not vote on
much more far-reaching measures such as the Single European Act or the
Maastricht treaty, so why vote on this? Second, the EU is a good thing – and a
British No would plunge it into crisis. Finally, there is Britain’s national
interest. A British No would provoke a damaging rupture in its relations with
the rest of Europe.
...
Some conjure up a “nightmare scenario” of Britain being forced out of
the EU, if it rejects the treaty. But the French and Dutch were not thrown out
of the Union because their voters rejected the constitution. It would be very
hard to argue that Britain should be treated much more harshly. Of course, there
would be a lot of anger directed against Britain in the drawing rooms of
Brussels and Berlin. But eventually people adapt to reality. The reality is that
the EU now needs Britain as much as Britain needs the EU.

Gisela Stuart, a former Minister and current Labour MP has also hit out on Gordon Brown's silly refusal.

“Recent events have shown some rather old-style politics, with the prime
minister looking indecisive and lacking veracity,” she wrote. “Sticking to your
guns in defence of a patently dishonest position is not leadership but the soft
option and a cop-out from a specific promise made to voters.”

He is really creating his own problems, if he had agreed to do the referendum, his stock in the UK will shoot up, specially after his absolute incompetence around the Northern Rock imbrogilo, the aborted election and general sillyness with the pre-budget report.

All this to be taken with a grain of piquant salt!!!

Thieves backing another thief are understandable but what is Angela Merkel’s excuse?

Most of the political leaders in Africa are clowns at best and basic thieves at worst. No more no less. Bunch of robbers and low lives. And our governments shove money at them. But this isn’t a rant at the aid policy. There is an up and coming EU-AU summit and obviously, if it was up to me, I would refuse entry to this thieving idiot from Zimbabwe as a way of telling him that he is not welcome and the world does not like his thuggish behaviour. And to his credit, British Prime Minister has made it clear that Robert Mugabe of Zimbabwe is not welcome.

But guess what? The African Union says that it is a matter of principle that they do not “interfere in other countries other than extreme cases of violence or genocide”. So that’s all right then that this idiot is starving his country to death? Germany Chancellor Angela Merkel is currently visiting South Africa and met South African President Thabo Mbeki, another clown. And what did she say? That it is perfectly all right for this thug to attend the Summit.

So be it, the Brits should and will stay away. I am certainly not happy that British Foreign Policy will be driven from Brussels and the continent and this further confirms my idea that leaving our national foreign policy hostage to these idiots is stupid.

What I do not understand is why Gordon Brown is not allowing a referendum on the EU constitution (oh! Sorry, the Reform Treaty!). That should show all the European bureaucrats and politicians about what their people think!

All this to be taken with a grain of piquant salt!!!

Elitist autocracy infesting Europe with respect to the EU Constitution - Now Sweden

I have already moaned about how the Dutch and English have been so much against letting their people vote on the constitution. Now here comes a translation of an editorial from a Swedish Newspaper Världen idag.

Read and Weep all you Citizen Democrats for your leaders think you are twits!

EU-Constitution adopted in Sweden without Swedes taking part
by Björn von der Esch, Monday September 17
The new EU Constitution was debated in Stockholm with participation of Swedish Minister for EU Affairs and foreign EU experts. Everything was conducted in English and, in the absence of expertise in English EU-legalese, one shouldn’t have attended. No written translation, and no translators were present. Could one possibly display greater arrogance towards the citizens?
The audience repeatedly raised the same question: “Why not ask the Swedish people about their opinion concerning the EU Constitution by holding a referendum? “ After all, it’s all about a constitution overriding the Swedish one. Apart from the usual reply — namely that the populace doesn’t fathom such matters and accordingly tend to cast their ballots erroneously — the Swedish minister’s motivation was even more scary, especially since she holds a university degree in political science.
In fact, her motivation against a referendum was given as follows: referenda are not a Swedish tradition. And she gave an example: The current Swedish constitution was adopted in 1974 without a referendum.
Well, that may be right, but the adoption nevertheless took place while observing the conditions stated in the constitution, namely that changing the constitution must be preceded by two successive ballots in two different parliamentary sessions separated by a general election.
What the government and the parliament now are about to do is to not give a damn about Swedish constitutional law. They argue that the Law Council finds such a referendum superfluous. But they don’t mention this council’s reason for doing so: there is a precedent. On several occasions the parliament ignored the constitution when transferring executive power to EU, which means that the Swedish Constitution is already de facto invalid in EU matters.
- - - - - - - - -
When some political entity doesn’t obey its own constitution but ignores it without asking or informing the electorate it’s usually called a coup d’état. In Swedish EU politics there is a cordial alliance between the parties presently in power and the Social Democrats. Together they have the absolute majority in parliament and want to avoid a referendum at any cost , nor do they even want the constitutional proceeding take place. This agreement has facilitated an EU policy akin to a one-party state! Rigged elections without EU-critical candidates and a muted EU debate are some examples.
This October the government intends to ratify the final EU Constitution arguing that the common flag and a common EU anthem has been dropped from the otherwise unchanged constitution. Instead Sweden will be blessed with a sovereign “EU President” and an “EU Minister for Foreign Affairs” and no longer be able to reject laws unpopular with the Swedish electorate.
The irony of this is that Sweden was actually one of of the oldest democracies in the World and now — over a very short span of time — has evolved into a state where fundamental, democratic rights have disappeared, because nobody in his wildest dreams imagined the possibility!
— Björn von der Esch, former MP and Constitutional Councillor

Technorati Tags: Sweden , Constitution , Democracy

The reason ECB gets grief from political leaders is because its legitimacy has a small question mark

You might have noticed that there is a war brewing between President Sarkozy of France and the European Central Bank. Sarko says that the ECB isnt doing much about growth, while the ECB says that Sarko is an economics illiterate.

Economics, the dismal science, has always had a huge amount of politics involved in it. There is a separate branch of politics and economics call as Political Economy even. One of the basics of this theory is that if there is a difference between the economic decision making and the political structures, then the natives will become restless. The most famous example of this was when the Americans revolted against the British, the thrust of the argument being, "no taxation without representation".

Fast forward 200 years and we find President Sarko of France fulminating against the European Central Bank. We find the European Central Bank calling the French President as economically illiterate. Why is this? You can point to many reasons but the main reason is that the ECB does not rest on a politically firm base. The constituent countries like Germany, UK, France, etc, all have their central banks and by and large are considered to be the models of probity. When your central banker says something, they usually accept it and there is political backing for economic decision making.

But the ECB does not have this luxury, while many countries did sign up to the Euro, the European project has always been an elitist project, it never was opened up for strong representation. Look at how the people reacted on the constitution. Yes, many countries voted yes for the constitution, but when were the people asked? how many people were asked if they wanted this? Not many and that is why the French, Dutch, British, Norwegians, Swiss and various others have, at best, an ambivalent relationship with the EC and ECB, and at worst, an adversarial relationship.

And instead of learning from their mistakes, the blithering inbred elitist morons keep plunging away at the stupid constitution (sorry, its a treaty now!). Dont they realise that the fact that Sarko is so much against the ECB means that the treaty is also dead for all practical purposes? No, they know best and we poor citizens are just morons.

Well, I want a referendum on this treaty and I want to vote no! No taxation, no economic impact without my representation!

All this to be taken with a grain of piquant salt!!!

Further to the demand to have a referendum on the poxy EU Treaty

I spoke before about how the British Government was cowardly in not allowing a referendum on the EU treaty (well they call it the treaty but its 96% of the ill-fated and rejected European Constitution).

Well, there is going to be a rally now and I support that rally.



All this to be taken with a grain of piquant salt!!!