—Ozan Varol, Lewis & Clark Law School
[Editors’ Note: In this forum on Egypt and New Perspectives on Constitution-Making, three young scholars of comparative constitutional law – Ozan Varol, Will Partlett, and David Landau – discuss their recent work on constitution-making and democratic transitions, focusing on Egypt. The work offers counter-intuitive predictions about the pace and design of the process, as well as the role of undemocratic actors like the Egyptian military in the transition.]
I am delighted to join David Landau and William Partlett in exploring how recent comparative constitutional law scholarship may inform our understanding of the ongoing transition process in Egypt. Two of my most recent articles analyze the constitutional and political role of the military in transitions from autocracy to democracy: The Democratic Coup d’État, 53 Harvard International Law Journal 291 (2012) and The Military as the Guardian of Constitutional Democracy, 50 Columbia Journal of Transnational Law (forthcoming Summer 2013). In this post, I will summarize the central claims of these articles and briefly explain how they bear upon the constitutional transition in progress in Egypt.
The Democratic Coup d’État examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy.
The Democratic Coup d’État challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.
Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. The article argues that, throughout the democratic transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. In democratic coups, therefore, the people and the military seem to strike a Faustian bargain where the military extracts a price in the form of constitutional entrenchment in exchange for deposing a dictatorship and turning power over to the people.
To explain the democratic coup phenomenon and the constitutional entrenchment thesis, The Democratic Coup d’État uses a number of comparative case studies, including the February 2011 coup in Egypt that toppled the autocratic Hosni Mubarak government. The Egyptian military staged a coup in response to a persistent popular uprising against the Mubarak regime and, upon assuming power, announced its intention to transition the nation to a democracy and hold free and fair elections. The presidential and parliamentary elections that followed were viewed as free and fair by most major accounts, and the military surrendered its authorities without protest following President Mohamed Morsi’s consolidation of legislative and executive power in August 2012.
Throughout the transition process in Egypt, however, the military behaved as a self-interested actor. To protect its social and economic privileges, the ruling military leaders attempted to entrench their policy preferences into the new constitution by a variety of methods that I discuss in the article. It remains to be seen whether these attempts will bear fruit. The early partial draft of the new Egyptian Constitution recently released for public discussion does not include the chapter on civil-military relations. It will be interesting to see the extent to which the civilian institutions in Egypt will have constitutional oversight over the military, including its economic and social empire.
My forthcoming article, The Military as the Guardian of Constitutional Democracy, picks up from where The Democratic Coup d’État left off and asks whether the military can provide institutional support to an emerging democracy after democratic procedures have been established. The world is littered with failed democratic transitions, and the establishment of a constitutional democracy remains the least likely result of an attempted transition. This article analyzes whether the constitutional savior of these failed democracies may, in some cases, be found where we have not been looking—i.e., outside the traditional institutions in Montesquieu’s tripartite system. I challenge the prevailing orthodoxy in constitutional theory that a constitutional or political role for the military in a nascent democracy automatically hinders democratic progress. Rather, I argue that certain militaries (what I call “interdependent militaries”) can play, and have played, a democracy-promoting role in the initial phases of a transition from autocracy to constitutional democracy. In brief, the interdependent military is ordinarily composed of citizen-soldiers, responsive to international democratic norms, and focused on external, not internal, threats.
I argue that the interdependent military is capable of providing institutional support to an emerging democracy because its institutional self-interests often align with the conditions that Madison and others have identified as conducive to the genesis of a constitutional democracy: intra-state stability, political pluralism, and national unity. Using comparative case studies, I explore how the interdependent militaries’ self-interested actions have counter-intuitively promoted democratic development in fledgling democracies and constrained unilateral exercises of power. To be sure, there are certainly costs associated with enlisting institutional support from the military, and in some cases, those costs will outweigh the benefits. My aim in this article is to explain the neglected benefits the military may provide to a nascent democracy as a by-product of furthering its self-interests and analyze how we can minimize the costs.
Consider, for example, political pluralism. The establishment of competitive political parties, and a political marketplace in which those parties can compete, are the primary factors in determining a state’s probability of becoming and remaining a democracy. In a post-authoritarian society, however, political parties are likely to be weak or nonexistent since the authoritarian regime ensures its own survival by stifling political opposition and pluralism. But the military, which is necessary to the survival of most nations, is often left untouched. And in some cases, the military may have an institutional interest in maintaining political opposition in a post-authoritarian nation and preventing the domination of the government by a single politically powerful group. If a political party becomes too powerful, that party can threaten the military’s interests, curb the military’s powers, or strip the military of its economic and social privileges. In contrast, the military may find more comfort and autonomy in the division of political powers that political competition would produce. Unless the military is assured that the ruling party will protect the military’s interests and not renege on that commitment—an uncertain proposition amidst a democratic transition process ordinarily characterized by shifting interests and alliances—political pluralism will be a safer bet for military leaders. In other words, in keeping one powerful party in check to protect its interests, the military may tend to promote the proliferation of others, which has positive effects for democratic development.
For example, although the Egyptian military does not squarely fit within the interdependent mold I describe in the article, its self-interested actions during the transition process have still produced some positive, and likely unintended, results for political pluralism in Egypt. In the immediate aftermath of the 2011 coup that toppled the Hosni Mubarak regime, the Egyptian military’s interests were aligned to a large extent with those of the Muslim Brotherhood. From the military’s perspective, the Brotherhood promised much-desired stability after a tumultuous revolution and a turbulent transition period. The military and the Brotherhood thus appeared to be in a tacit partnership that would allow the military to maintain order and protect its economic and social privileges. As the democratic transition progressed and the Brotherhood grew to be overly ambitious and opportunistic, the military’s interests shifted. Instead of supporting the Brotherhood’s political agenda, the military began to oppose it. Concerned with the growing threat to its social and economic interests from the Brotherhood, the military launched a campaign, aided by the judiciary, to ensure that the Constituent Assembly and the parliament were not dominated by the Brotherhood and meaningfully represented opposition interests. The military’s protection of its self-interests, therefore, also had the counter-intuitive by-product of promoting, at least to some extent, political pluralism and opposition in Egypt.
Ideally, of course, it would be civilian, not military, leaders that would enable the requisite conditions to establish and sustain a constitutional democracy. In the frequent absence of such civilian institutions, however, it may be necessary to enlist the assistance of non-traditional and second-best actors, such as the interdependent military, as one democracy-promoting actor among many and temporarily preserve, during the initial stages of the democratic-transition process when the process is at its most fragile point, admittedly counter-majoritarian checks and balances on the elected branches to promote democratic progress. In an imperfect transition process, the second best may be the best we can do.