Blog of the International Journal of Constitutional Law

Suharto and Mubarak’s Final Days: Similar Trajectories Leading to Very Different Modes of Transition

On The New Republic’s website on February 2, 2011, Thomas Carothers suggested that those leading the Egyptian transition might want to draw some lessons from the experience of Indonesia. He notes several aspects of the Indonesian transition from the regime of Suharto to a new regime that, he believes, helped Indonesia achieve what was, in many respects, a remarkably successful transition to robust democracy. This got me thinking how eerily similar the trajectory of Suharto and Mubarak’s final days were–but also how different the transitions have begun. It is an open question whether the unfolding Egyptian transition will turn out to follow a path so fundamentally different from the Indonesian one that lessons learned in the Indonesian transition will cease to be easily transferable.

The last days of a military strongman: General Suharto liked to refer to himself as “the Smiling General.” Through the early 1990s, he had much to smile about. He was a military figure who had effectively ruled Indonesia since the late 1960s. During that time, he had gained near total power and his family had become rich. Suharto’s smile began to fade only in the mid-1990s. Once appreciated for stabilizing a chaotic political state and promoting some economic growth, his popularity began to erode. Serious hostility began to be directed at the favored position that his children and cronies enjoyed in the state. Political grievances also began to surface. Suharto had allowed pseudo-democratic multi-party elections—although he had forced the popular opposition to run under the banner of a limited number of “official” parties. Elections were rigged, however, so that none of these were permitted to gain more than some centrally-determined number of seats in the parliament. In 1997, the parliamentary election returns were considered to have been even more manipulated than usual.

An external shock revealed a surprising fragility to Suharto’s regime. A pan-Asian currency crisis sparked popular demonstrations in urban areas, where students, who felt unrepresented by the officially permitted opposition parties, appeared and called for a change far greater than the official opposition had done: a dismantling of the entire structure of governance. During the first demonstrations, the military killed several student protesters. This led to popular disorder in which hundreds were killed, with much of the violence allegedly fomented by government-paid provocateurs designed to create an environment in which the government could justify the use of military force against civilians to restore order. As the disorder grew, Suharto gave a speech on national T.V. stating that he would not resign but that new elections will be held at some indeterminate date and that he would not run again. This set off such an uproar and such a palpable threat of mass disorder that, at the urging of the leaders of the military and the ruling part, Suharto two days later. Much of his cabinet resigned shortly thereafter—leaving power in the hands of his vice-president, a regime insider.

If this sounds familiar, it should. One could replace the name Suharto with Mubarak and the paragraph could describe Egypt.

On the other hand, there is one striking difference in the mode of the Suharto and Mubarak’s resignations, and it anticipates possibly significant differences in the mode through which transition will occur in Egypt. Suharto’s resignation was formally legal and power transferred according to the rules of the Constitution. The figures leading the transition seem to have tried at most points over the next few years to ensure that the transition followed a pattern of formally legality. Admittedly, there was contest over the degree to which the old regime should be dismantled, and this involved a considerable amount of extra-legal violence on the part of both the government and anti-government protesters. Nevertheless, once the government moved forward on a path of new elections, constitutional amendment and so forth, it generally tried to follow the paths that the constitution laid out.

Mubarak’s resignation, on the other hand, did not set in motion a formally legal transfer of power. Power should have gone to the deeply unpopular speaker of the People’s Assembly. If the Parliament was deemed void (which was possible, given the problems with the election that sat its current members), power should have transferred to the Chief Justice of the Supreme Constitutional Court. It went to neither. Instead, the military formally declared that power was vesting in a committee of military officers, making clear thereby that, unlike Suharto’s successors, it did not feel constrained by any constraints of legality. The Constitution was ignored from the moment that Mubarak resigned. Today’s formal suspension of the Constitution simply made explicit, and of course ratifies, the decision to follow an extra legal course.

That the Egyptian military has unfettered itself from the constraints of formal positive legality does not mean that it is unconstrained. Let us assume that many in the military are acting in good faith. It will then be constrained by its understanding of the best interests of Egypt. In coming to that understanding, they will be, to some extent, constrained by the voice of the people. Quite simply, the military leaders will not be able convincingly to argue to more liberal factions within the military (or to outside powers such as the U.S. whose support the military wants) that something being protested by massive numbers of people is actually in the best interests of the nation.

Indeed, in some ways the decision formally to suspend the constitution already reflects a concern with public opinion. As Andrew Arato discussed in a post to this site yesterday, the military could have tried to cobble together a quasi-legal order that purported to be following in most respects the old order while correcting its so-called abuses. This would actually have been a quite convenient mode for the army to control things, but it is a dangerous path for many reasons. The Egyptian people demanded that that the military take ownership of its effective control over the country and that it start to dismantle some of the old apparatus. The choice formally to suspend the constitution may not have been dictated entirely by the protesters, but their demands were clearly a factor. What paths the military takes as it tries to establish a new constitutional order will also be shaped by public demands–though how much is still unclear. Much depends on how loud the people are and how much Egypt’s allies demand that the military government listens.

In a future post, I hope to bear down a little more upon the ramifications of the fact that the dictator’s resignation did not result, as a formal matter, in a coup in Indonesia, but it did in Egypt. I want to ask whether legality was a culture of formal legality was an essential part of the culture that permitted the types of positive trends that Carothers believes were responsible for Indonesia’s political transtion to be relatively successful. I suspect that a culture of legality facilitated those trends, but was far from necessary. Ultimately, non-legal constraints may have been more important than formally legal ones in promoting the trends that Carothers celebrates. But I need to think more about that. Grist, obviously, for a future post.

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Published on February 13, 2011
Author:          Filed under: Clark Lombardi, constitutional change, coup, Egypt, Indonesia

Andrew Arato on “Egypt’s Transformation: Revolution, Coup, Regime Change, or All of the above?”

Andrew Arato has kindly contributed the following post: “Egypt’s Transformation: Revolution, Coup, Regime Change, or All of the above?”:

Among those who believe that in the modern world democracy is a universal value, all have been inspired, amazed and totally convinced by the Egyptian democratic movement. It has accomplished the country’s liberation from its gerontocratic, kleptocratic, and personalistic dictatorship. Many recognize, however, that the task is half done at best: after liberation comes the hard task of creating free, democratic institutions.

Was Egypt’s liberation part of a genuine revolution? Until a few days ago, regime defenders both inside Egypt and outside were saying that they would tolerate nothing more than “reform”. But, are the events in Egypt a revolution in the sense of 1789, 1917, 1979 involving violent overthrow of old regimes, and the replacement of one sovereign authority by the organized forces of another. Or is it instead like the peaceful, velvet, self-limiting, negotiated revolutions of 1989-1990 in Central Europe or 1990s South Africa, where negotiations between old and new forces produced constitutional democratic outcomes? This hard to say, because while the impressive non-violence and self-discipline of the democratic movement belongs to the self limiting version, the military coup that actually put an end to Mubarak’s government fits in more with the classical version. Indeed, classical revolutions are always linked to coups—whatever their popular character. This is true whether one sees an existing institution like the Estates General in 1789, a civil vanguard with strong military forces like Lenin’s party in 1917, a religious vanguard like that of Iran’s Islamic Revolution, of the military itself as in Egypt in the early 1950s. Given the fact that one sees in Egypt both classical and “velvet” dimensions, it is important for the Egyptian people, ultimately, to determine, which dimension will become dominant. The fate of regime change depends on this choice: A coup led by the military that establishes the military as the controlling power over the nature, timing and forms of participation of the transition may very well block the road to regime change. The ousted Egyptian regime was a military dictatorship, and this is why a military coup could be so silent and so efficient: it had to remove only a few persons from positions of authority.

News reports make clear that a lot of Egyptians see this state of affairs very clearly. Many also realize that the social position of the top officer core makes it conservative. Some even hint that the top officers do not understand what democracy is, and see corruption alone as the problem that needs to be addressed. Few, however, realize that it is precisely the nature of the revolutionary rupture linked to a coup that has now put a specific body of people, the Supreme Military command in a position to speak without any legal limitations in the name of people as a whole or the state. This type of situation, by definition dangerous, is all the more dangerous when that body is a group of conservative military officers.

Historically, such situations have almost always given rise to revolutionary or military dictatorship. We should not expect this inevitably to occur under the watchful eyes of this very great movement and its sophisticated groups, as well as the wider world that has now become deeply interested in Egyptian democracy. There are three possible options that the all encompassing present jurisdiction of the Supreme Command will allow it to take:

  • #1: The conservative, reformist option. The high command can use its power and authority, but only to make the type of minimal changes already discussed while Mubarak was still in office. This would mean lifting the emergency that in any case can be maintained by other means when the ultimate power is in the hands of the military. It will entail making a few constitutional amendments and legal changes that would be submitted to parliament (the amendments will now be illegal with Mubarak gone, unless enough deputies of the old ruling party can be suitably coerced to sponsor them). It will involve also adding a few willing oppositional members as window dressing to an interim military led government. This road would aim at early elections, and the military would probably settle on a candidate to support. One drawback would be the need to admit international observers, and the possibility that the elections would be lost (as in Turkey in 1983 after a coup). A few constitutional changes would not, in that case, give enough guarantees to the gerontocratic top officer core, and its wealth.

  • #2: The radical, authoritarian option. The same power can be used to displace all existing institutions–as was suggested to Al Arabiya, but not later fully confirmed. This may appeal to some revolutionaries of the old stamp. However, they should be careful about dissolving parliament, junking the constitution and replacing the present government by a military led body. While these things need to happen for a transition of the type that El Baradei, among others, has demanded. It would not be good, however, if the sovereign will of one body replaced both the rules and the body that now has the legal right to change them. A full and complete interim constitution could be enacted this way, with or without token participation by experts or the masses, but it could result could in (a) overprotection for the armed forces and possibly undemocratic concessions to them, and (b) insufficient enforcement for those rules that are supposed to guarantee free and fair elections, democratic communications and participation. The world is full of authoritarian provisions, religious and secular, that the experts who do the drafting could imitate. Here too the goal would be to secure the election of a suitable candidate, but beyond that, to hobble any government that is elected against the will of the old power holders—something that happened, for example, in the first decade after Pinochet in Chile.

  • #3: The option of negotiated regime change. Just because a coup has occurred, and the classical revolutionary path seems to have commenced, this does not mean that the choice is irreversible. In Iraq, the United States carried out a much more through revolutionary alteration of power (without any legal legitimacy!) and attempted to impose a top-down constitution-making effort in producing the interim constitution. It was made to back down by the Shiite movement led by the Grand Ayatollah Sistani. I am hardly proposing that it will be a religious movement that would lead such a charge in Egypt. Indeed, I think the military could most easily accommodate religious demands under options 1 and 2, while still fighting the Brotherhood. This would, in fact, replicate a pattern already set by Mubarak. The need here, as in Iraq but more consistently and inclusively, would be to turn a (potentially) top-down, imposed process into a fully negotiated, participatory, open and legitimate process. We know the steps by which such a development has taken place in Central Europe, South Africa, and in a deformed version Iraq: negotiations, interim constitution, free elections, constitutional assembly under some limits, under supervision by a constitutional court, and either a provisional government of national unity, or a power-sharing executive council overseeing the arrangements. It is this scenario that would certainly lead to regime change, even as it has a chance to offer some guarantees (personal rather than institutional) to beneficiaries of the old regime.

I do not think the choice among these 3 options should be a difficult one for democrats. They should prefer #3. Unfortunately, the choice is also easy for the Supreme Command: #1 or #2 but not #3. The Supreme Command must be strongly pushed to accept something other than they prefer and accept the one option that will lead to regime change.

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Published on February 12, 2011
Author:          Filed under: Clark Lombardi, constitutional politics, coup, Egypt, emergency powers

The Constitutional Right to Rebel – advice for Egypt?

The ripple effects from Tunisia’s “Jasmine Revolution” are still making themselves felt throughout the Arab World. Earlier today, Egypt’s Mubarak stepped down after weathering large-scale protests and civil disobedience for over two weeks. Elsewhere in the region Lebanon, Algeria, Yemen, Jordan (and to a lesser extent Mauritania, Sudan, Syria, Libya, and Morocco) have also seen the citizenry rise up to demand democracy and increased self-governance.

Of course we can’t yet know what system will have taken hold in Egypt when the smoke clears, but Middle East watchers around the world have already begun talking about what a new constitution in that country might look like.

So given that revolutionary leaders in Egypt, and perhaps other Arab countries, may soon have a seat (or a pen) at the constitutional table, it is timely to look at one of the potential legalistic ramifications of the popular uprisings that got them there.

Many constitutions include justifying language to the effect that they are a necessary improvement in governance upon whatever came before them. Many more constitutions outline individual rights and guarantees. Yet some constitutions actually combine the legitimizing language with the basic guarantees by creating a constitutional ‘right to rebel.’ This odd revolutionary clause is most often included in national constitutions written in the aftermath of a governmental overthrow by popular uprising or a coup d’état, and are an increasingly popular, but problematic, shortcut to legitimacy for a new regime.

The philosophical idea of a ‘right to rebel’ dates back at least three thousand years to the Zhou dynasty in ancient China. Having violently overthrown the Shang dynasty which preceded them, the Zhou spoke of an imperial ‘Mandate from Heaven’ which was supreme but revocable. Despotic acts were a sure sign of this divine mandate having been removed by the gods, and under those circumstances a ‘right,’ or even a ‘duty’, to rebel existed.

More relevant to the Arab revolts, the Qu’ran extols a sacred duty to: “obey God, obey the Prophet, and obey those who hold authority over you” but two widely accepted pieces of Prophetic dicta qualify that the ones obeyed cannot be acting against divine law. If they are doing so, then a duty to rebel exists.

In modern times, the concept has made the rounds from Locke, Rousseau and Hobbes, to the US Declaration of Independence, to the Universal Declaration of Human Rights. And while the US Constitution does not explicitly guarantee such a right, the state constitutions of North Carolina, Pennsylvania, Kentucky, Tennessee, New Hampshire and Texas all do; with the latter guaranteeing Texans “the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.” Of course the extent to which these state guarantees remain in force is questionable given the events of the American Civil War…

Yet the device does remain highly relevant in the developing world. Currently Benin, Chad, Democratic Republic of Congo, El Salvador, Estonia, Honduras, Liberia, Niger, Peru and Venezuela all contain provisions in their constitutions enshrining the population’s authority to topple the government. All of these countries, save Congo and Venezuela, instituted these constitutional provisions following coup d’état or regime change through massive social upheaval or protests. The two exceptions were drafted by countries whose sitting leaders had previously attempted, but failed, to overthrow a previous sitting government by undemocratic means: Hugo Chavez in a failed 1992 army coup, and President Kabila as a guerrilla warlord for the Alliance of Democratic Forces for the Liberation of Congo-Zaire.

Dozens of countries have experimented with including a right to rebel in previous constitutions, and in a majority of those cases, these constitutions were themselves violently overthrown, often after remaining in place for less than a decade. For example, Ecuador has had two right to rebel constitutions and these lasted for only three years and six years respectively, brief even by Latin American standards.

Far from being a harmless declaration of philosophical ideals, including a revolutionary clause in a new constitution may in fact be a sort of Faustian bargain. The argument can provide a short-term boost to governmental legitimacy in the tense atmosphere following a coup or a revolution, but that argument can just as easily be made with a speech or a press release so why entrench it in a constitution?

Just as the present government is legitimated in having seized power, or destroyed the former system, future revolutionaries are also given a much stronger case for a potential legal defense or a future amnesty. And while some right to rebel constitutions qualify the factors necessary for a righteous revolution — “oppression, corruption, abuse etc.” — these are all highly subjective terms and history is, as they say, written by the victors. In Niger, a Muslim country which guarantees it’s citizens a “right and duty to resist an oppressive regime through civil disobedience,” the government has become a merry-go-round of coups followed by amnesties.

So what does this mean for potential constitutional authors in Egypt and the Arab world?

It’s hard to be sure. While the Middle East produced the first known constitution, issued by the Sumerian Urukagina the King of Lagash around 2300 BC, constitutionalism in the modern Islamic world remains a bit mysterious. Most Arab countries did not have constitutions until the 1960s, and they have had far less constitutional turnover than developing countries in Africa or Latin America. Egypt and Iraq are veritable outliers having had five, and seven constitutions a piece, and some countries such as Qatar or Saudi Arabia have yet to draft even one. Arab constitutions also tend to be comparatively succinct and to draw heavily on religious language, neither of which would likely lend itself to a right to rebel constitution. Perhaps more importantly, it has never happened before in this part of the world (after all Niger, while Muslim, is not Arab). And yet, these protests are also without precedent, and in the wake of a successful revolution much can change can occur in a small amount of time.

Obviously, for a democracy to be born, a non-democratic government must fall. What it will mean for that fall itself to have been “democratic” might not be knowable for a generation, and the only sure way to legitimate an unconstitutional rise will be by building something better.

If these new revolutionaries succeed in creating a democracy where human rights are respected, institutions are independent, the constitution is stable, successions are peaceful, and which can resist undemocratic external pressures (of which there will be many) without betraying its fundamental ideals, then there will be no need to legitimate the revolution that brought it about. And while, in the elation following the fall of admittedly oppressive regimes, it may be tempting to include constitutional language validating revolution; euphoria is fleeting and constitutions, hopefully, are not. Should the fledgling democracy stumble, those words could at best become ironic, and at worst lead to the destruction of all that is being built and fought for now.

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Published on February 11, 2011
Author:          Filed under: constitutional design, Daniel Lansberg-Rodriguez, Egypt, Tunisia

The French Connection

I am about to spend a month teaching comparative constitutional rights at the Univ. Paris II Institute for Comparative Law and have been reading a lot of material related to French constitutional law, as well as about French attitudes towards U.S. constitutional law. I thought I would highlight some great new books. First, Professor Martin Rogoff’s “French Constitutional Law” from Carolina Academic Press is terrific. To start, he performs an invaluable service by translating a great amount of French constitutional material into English. This reminds me of Don Kommers’ crucial work on Germany. Rogoff’s timing could not be better, as well, because French constitutionalism is evolving, especially with adoption of the doctrine of la question prioritaire de constitutionnalite. This 2008 constitutional reform allows a kind of a-posteriori judicial review that is quite different from the French tradition of a-priori abstract review. This moves France a bit more in a U.S. direction, though it is still dramatically different. The casebook contains numerous documents revealing the debates about these changes. It also has fascinating historical material such as speeches by DeGaulle and Sarkozy to provide invaluable context. And it supplies the kind of philosophical and jurisprudential background needed to appreciate what’s occurring there. A really impressive work.

Next there’s Professor George Bilias’ “American Constitutionalism Around the World, 1776-1989.” This book has already received good reviews elsewhere and deals mainly with what the title suggests. Yet starting on page 89, it has a fascinating short historiagraphic section discussing the influences of the American framers on the French revolution and on the French Declaration of Human Rights, as well as regarding the French influences on the U.S. framers. It essentially recounts a chicken and egg debate. There are also discussions of U.S. influence and non-influence on France during other historical periods.

Finally, Professor Elisabeth Zoller has just authored a book containing leading U.S. Supreme Court cases translated into French called “Les grands arrets de la Cour supreme des Etats-Unis.” It’s essentially a casebook but it also contains trenchant and sophisticate commentaries and discussions of scholarship after each case. I think her choices of cases are excellent as is the book overall. Again, just the act of translation is priceless (despite google translate!) My only addition based on a first glance of the table of contents, would have been Youngstown Steel, but that’s just being nit picky.

In addition, there’s a relatively new and interesting French online journal regarding constitutionalism that sometimes addresses U.S. constitutionalism. For example, the latest issue contains a French review of David Strauss’ “Living Constitutionalism” book. The journal can be found at: The journal tables of contents can be viewed in English but it looks like most of the essays are in French. Enjoy the above reading if you can find the time!

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Published on February 11, 2011
Author:          Filed under: hp, Mark Kende

Does Egypt Need a New Constitution?

(cross-posted by Tamir Moustafa from

As street protests in Egypt witnesses its third week, we hear frequent calls for a new Egyptian constitution. The April 6th Youth movement reiterated its demand that Mubarak step down from power immediately and that a transitional coalition government lead a process of transition, including the drafting of a new constitution. Similarly, a statement from the Faculty of Law at Cairo University calls on Mubarak to “comply with the will of the nation,” and, among other actions, to draft a new constitution. Political parties, civil society organizations, and activists of all stripes have voiced the same call, both before January 25 and after. But will a new constitution provide the fundamental break from 30 years of authoritarian rule that Egyptians are calling for? Does Egypt need a new constitution?

While parts of the existing constitution are no doubt regressive, on the whole it is a surprisingly liberal document. Many of the fundamental freedoms that the pro-democracy movement wish to see enshrined in a new constitution are already present in the existing document. These include protections on the freedom of speech (article 47), freedom of the press (article 48), freedom of assembly (article 54), and freedom of association (article 55) among others. The constitution is also clear on the independence of the judiciary (articles 65 and 165), the independence of judges (article 166), and division of powers between the executive and the legislative branches. The state is subject to the law (article 65) and citizens are provided with guarantees to access their rights in a court of law (article 68).

These fundamental liberties, it should be remembered, gave opposition activists the legal tools to challenge the regime throughout the past three decades. When all other avenues of political activism were closed, it was the courts to which human rights lawyers, opposition parties, leftists, liberals, Islamists, and everyday citizens flocked to challenge the state. Egyptians frequently prevailed, at least when the stakes were low. But even in politically charged cases, political activists occasionally scored major victories against the state.

This is not to say that the constitution is a perfect document — far from it. Some of the most egregious problems with the constitution were introduced in the 2005 and 2007 constitutional amendments. Article 76, for example, restricts the nomination of candidates in presidential elections to parties that hold a minimum of 3 percent of the seats in the People’s Assembly and Shura Council. By definition, this narrows the playing field to the formal opposition parties, which are notoriously weak. Even the largest opposition party, the Wafd, currently holds only 6 of 508 seats in the current People’s Assembly, or slightly more than 1 percent. To make matters worse, article 76 of the constitution raises the bar further for subsequent elections, when nomination must be secured from 65 members of the People’s Assembly, 25 member members of the Shura Council, and 10 members of local councils in at least 14 governorates. In other words, article 76 makes it virtually impossible to have a meaningful presidential election.

Other articles that should be amended include article 78 (which sets no limit on successive terms for the Presidency), article 88 (which governs the supervision of elections), article 93 (which prevents the courts from invalidating membership to the People’s Assembly as a result of election irregularities), article 179 (which provides broad powers to a Socialist Public Prosecutor), and articles 112, 113, 136, 167, and 171 (which collectively weaken the People’s Assembly and the judiciary vis-a-vis the Executive Authority).

It was also recently announced that the Constitutional Amendments Committee, which was formed by presidential decree on Tuesday, agreed to amend six articles of the constitution, including article 76. After two weeks of mostly cosmetic changes, this announcement could be the first sign of meaningful concessions from the regime. But proof of concrete reforms must come in the details. To be sure, there are articles of the constitution that can and should be amended. But the pro-democracy movement must not lose sight of the fact that the current constitution already contains most of the liberties and protections that they currently seek.

And this points to a far more ugly and complicated reality: the legal conundrums that Egypt faces are far deeper than the constitution. The regime has spun out illiberal legislation for decades, making constitutional guarantees on fundamental rights ring hollow. Laws regulating the press, political parties, police powers, elections, trade unions, non-governmental organizations, and just about every other area of political and social life are designed to strengthen the hand of the executive. These are precisely the laws that political activists challenged in the courts over the past three decades, but the same dynamic always played out: When litigation succeeded in striking down legislation, the regime would simply use its rubber-stamp People’s Assembly to hammer through new legislation, often times more illiberal than the last iteration.

Even if the constitution is amended and Mubarak steps down, this web of illiberal legislation would remain on the books. It would provide the current regime with all of the same tools to manipulate elections and exert control over other areas of political life in very familiar ways. In other words, if the way forward is through the existing legal system, it will be rough going the whole way. It would be simple and straightforward if a new constitution was all that required to break from past political dynamics, but in some ways, the constitution is the least formidable obstacle to change.

–Tamir Moustafa, Simon Fraser University

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Published on February 10, 2011
Author:          Filed under: Egypt, hp, Tamir Moustafa

Abortion and comparative constitutional politics

Abortion, the hardy perennial of constitutional politics, is back in the headlines. While President Obama recently celebrated the 38th anniversary of Roe v. Wade, conservative governors around the country are preparing new legislation to ensure that the right of a woman to choose will become an increasingly hollow right. It is no accident that the issue has moved back into the center of political debate as we debate providing health care for our citizens.

Starting in the 1960s, sweeping changes occurred in the abortion laws of the nations of the Atlantic world. Mary Ann Glendon made two trenchant observations in a very fine comparative monograph, Abortion and Divorce in Western Law, written over two decades ago that resonate today. The first is that while abortion laws became liberalized throughout the West in the latter half of the twentieth century, the United States was an outlier because it tolerated fewer abortion regulations than other Western democracies. The second is that we could perhaps learn from the approaches taken by democracies abroad since they, unlike the United States, managed to reach messy compromises on abortion.

The first observation has not held up well; the United States seems poised to allow all sorts of obstacles and regulations that will undermine a woman’s right to choose. What is interesting about these changes is that they do not represent any national consensus on abortion but rather the wishes of minorities with intense preferences. We balkanize power to a much greater degree than most other democracies. This does little to prevent tyranny as the framers hoped since other democracies survive nicely with fewer roadblocks to majoritarian lawmaking than we do. Our extreme form of separation of powers does, however, empower minorities with passionate preferences while disempowering majorities with weaker preferences. In the United States, minorities with intense preferences have a disproportionately large voice both in ordinary and constitutional politics.

Glendon’s second observation highlights an important comparative constitutional puzzle. Abortion in the United States was a less divisive issue in 1973 when Roe v. Wade was decided than it is today and is considerably more divisive today than is the case in most western democracies. The reasons for this divergence are complex but an important piece of the puzzle is how our Court dealt with abortion. Rather than focus on preserving important exceptions to safeguard a woman’s health and well-being (which is the path taken by a great many western democracies), our Court sought to fashion a right that could withstand democratic contestation. It failed. Privacy has proven a problematic rationale for the decision as it leaves little room for the elected branches to contest the normative status of abortion as a constitutional right. Carving out exceptions to abortion laws (the path not taken by the Court in 1973) would have made political counter-mobilization more difficult and it would have enabled the Court to ensure that abortion laws did not go too far in harming the rights of women in the real world where access to abortion matters more than an increasingly hollow right inscribed in constitutional cases.

Timing also plays a key role in whether polities liberalize their abortion laws. Latin America remains an outlier with generally restrictive abortion policies. By the time the nations of the region democratized in the 1980s, a trans-national counter-mobilization against abortion had taken root in the region and unsurprisingly found fertile soil given the importance of the Catholic Church. Even while illegal, abortion remains available to the middle and upper classes which cuts down on the willingness of elites to invest capital on such a divisive issue. As constitutional courts have become more powerful in the region, however, they may be starting to undermine restrictive policies. The Colombian Constitutional Court, for example, issued an important decision, C-355/2006, which held that criminalizing abortion in all circumstances was unconstitutional and that there had to be exceptions when a woman’s health was at issue, when there were serious fetal abnormalities, or when pregnancy was the result of a criminal act. An English translation of the case is available at

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Published on February 6, 2011
Author:          Filed under: Uncategorized

What is legality worth in an Egyptian transition?: Some initial thoughts.

In some earlier posts I have described what appears to be a paradoxical state of affairs in Egypt: Given recent amendments to the Constitution, trying to oust the NDP regime in a formally constitutional manner will delay Mubarak’s formal retirement as head of state for a considerable period and might require significant concessions to current NDP elites. Nevertheless, some leading Egyptians with impeccable credentials as liberals, democrats and opponents of the regime have acted as if a legal transition is preferable to an extra-legal one. How can we understand this? Don’t the supporters of legality realize there is something distasteful about planning a transition according to some self-serving rules that the sclerotic elite you are trying to remove wrote during a period when they had you under their thumb? Don’t they see that negotiating with regime elites to ensure that they follow all the steps necessary legally to dislodge themselves may have unpleasant ongoing consequences? For example, showing that you actually care about legality may give that elite leverage to negotiate ongoing immunities or influence.

In fact, the leading Egyptian figures are not crazy to think that legality has some real value for liberal democrats in the current Egyptian transition—though of course there is room to debate exactly how much value it has. The adoption of the current constitution represented a symbolic step towards the rule of law in Egypt. Dismantling it would represent, in some ways, a symbolic step away. In the Egyptian context, taking such a symbolic step away from the rule of law may have some unquantifiable, but real, costs, and one can understand why some Egyptians feel establishing the rule of law is, under some circumstances, worth paying for. Let me explain:

The current Egyptian constitution was enacted in 1971. It was officially named “the Permanent Constitution.” Its ratification was supposed symbolically to represent the end the era of “revolutionary” constitutions that were issued with dreary regularity during the Nasser era. These constitutions could be changed by executive (i.e. army) fiat and were. Nathan Brown in his wonderful book Constitutions in a Non-Constitutional World has described how authoritarian regimes in the Arab world often drafted constitutions for non-liberal purposes, but in this and other works he has also discussed the process by which states with such constitutions have built up a cultures of thin (sometimes very thin) legality that have the ability to evolve into more robustly constitutionalist regimes (i.e., ones that respect not only legality, but democracy and liberal values as well.) A considerable amount of scholarship not just by Brown, but by others as well, has illustrated directly or indirectly, that Egypt has followed this pattern. Works by Tamir Moustafa, Bruce Rutherford, James Rosberg and me have suggested that the Egyptian government and people, even the mainstream Islamist opposition, have fallen into the habit of following the formal dictates of their (often illiberal) laws.

While most have seen this glass as 4/5th empty, we forget that it is 1/5 full. The Egyptian executive since 1971 has in interesting ways acted largely within the range of (admittedly enormous) powers formally granted by the Constitution. When the Constitution constrained presidents too much, they generally did use the relatively cumbersome process that was required to amend the Constitution. When judicial institutions held that the law prevented presidents from doing something they wanted to do, they usually used legal procedures available to them to interfere. Or they made a point to follow legal procedures to change the law. Many observers today focus on the fact that the courts have not been enforcing (and the government has not been obeying) a substantively liberal body of law. But we might be wrong to draw from this conclusion that the courts and the culture of legality is valueless.

Courts and a culture of legality are a form of dual-use technology: what can be used for bad can be used for good. The executive had too much power and the executive could (and did) establish a rule by law that oppressed the people. It did so, however, in a way that allowed people to see how an effective liberal legal system might work. Legal argumentation was permitted, within certain bounds. Litigation was even, on occasion, effective at ameliorating the lives of the people (even if that only meant forcing the government to develop a slightly different, formally legal mode of achieving an oppressive result). In the process, a surprisingly robust interest in law seems to have evolved among the Egyptian populace, including among Islamists.

Given the concerns that are often voiced about the possible rise of the Muslim Brotherhood in a democratic Egypt and about the impact that the Muslim Brotherhood would have on the rule of law, one does need to stress that leading Islamist groups have regularly chosen to contest government policies within the confines of the law—expending considerable time, effort and political capital not in the service of violence, but rather to litigate and agitate, within the letter of the law, for political reform. In the process, Islamists, like other Egyptians, have grown comfortable with judicial institutions, and apparently have come to respect them for their professionalism.

The commitment to contesting the government within legal limits might seem surprising, given the limited results that can be achieved. This commitment is impressive, and it should not be disregarded lightly. The impulse to preserve the respect for legality should be particularly strong among those who wish to expand the legal restraints to which the government is subject in the future. Ultimately, it is much easier to thicken the thin rule of law than it is to create a thick rule of law from scratch.

There is a second, more pragmatic and arguably cynical argument in favor of respecting legality: The price of legal transition is negotiation and compromise with the NDP. It is certainly distasteful to pay this price and it may limit to some extent the flexibility of the new government going forward. At the same time, negotiating as required by the Constitution may in a very real sense buy not just legality, but also peace and stability. The NDP’s power base is ultimately the armed forces, including the powerful intelligence services. The armed forces are themselves not homogenous. The different factions within the armed forces need time to decide what they want and what they can live with—a decision that can and should be made on the understanding that the answers they reach may determine the amount of foreign military aid that they get to play with. Allowing leaders of the NDP to negotiate the terms of their exit is, effectively, negotiating with the army the terms of their returning to the barracks and supporting (or at least not undermining) an incoming regime. This is a smart negotiation in which to engage. Whatever happens over the next few weeks, Egypt still faces severe economic and political challenges. To deal with them, a government will need all the good will and support it can get from all quarters. Neither the Egyptians nor their many well-wishers and friends should want the result of this uprising to be a country in which a huge and powerful army has unwillingly been pushed aside, mistrusts the fledgling democratic regime and actively works behind the scenes at cross purposes with political leaders. Surely, one Pakistan is enough.

In short, then, there are both idealistic and realpolitik-y reasons to try and preserve legality. For those reasons, if the Constitution “must go,” then, all things being equal, it would be better to see it go on its own terms. Indeed, one might even be willing to pay some price to achieve legality in one’s transition. Up to a point, a reasonable person might be willing, in exchange for legality, to slow the process of transition, and also to allow members of the current regime to extract some concessions for their “retirement” from politics. Up to a point . . .

No one believes that the value of legality is limitless. The process of transition must not be too slow, and the concessions demanded by the outgoing Egyptian regime elites must not be too high. Regime elites have craftily drafted a constitution that gives them more power over their departure than most people think fair. They should be grateful that people are willing to negotiate under these circumstances. And they should be encouraged to negotiate in good faith quickly to “close the deal” that will allow a more democratic and liberal Egypt to emerge. It is in their best interest. If there is delay or further violence, the value of legality relative to quick change may diminish in the eyes both of their frustrated people and of the international community and with it the leverage of the current elites.

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Published on February 5, 2011
Author:          Filed under: Clark Lombardi, Egypt, hp, rule by law, Supreme Constitutional Court of Egypt

The Price of Legality in an Egyptian Transition, Part II–some other voices weigh in

As I noted in my last post, under the current constitutional scheme in Egypt, elites in the ruling National Democratic Party can hold hostage the “legality” of any quick regime change.

To recap: Under the current constitution, as soon as the president is forced out, elections must be held within 2 months and must be held in a manner that favors the election of someone associated with the NDP. According to the terms of the constitution, the Constitution cannot be amended within 2 months. The only way to remove the NDP apparatus is through a cumbersome and carefully orchestrated process: One must keep the President on, formally, as the head of state (although, if he is deemed “temporarily” disabled, actual power can be wielded by his vice president.) The President or his stand-in must then be convinced to agree to Constitutional and legal changes that would permit a free and fair election. In my earlier post I may actually have understated the care with which the transition must occur. One thing I did not stress, but should have, is that the amendments would ideally (and perhaps as a practical matter might have to be approved) by a new legislature. For this to occur, the President must be convinced to dissolve the legislature which will bring about the election of a new legislature within 60 days. The President himself must do this, not the stand-in, so if one anticipates President Mubarak resigning effective power under the legal fiction that he is “temporarily disabled” the parliament must be dissolved before the beginning of the “temporary disability.” Would the the President and/or his stand-in be willing to go through this elaborate process of divesting themselves from power. If so, one can be sure that they will demand concessions before they do that—possibly concessions that provide immunities or continuing influence for current regime elites.

So, should anyone feel any obligation to ensure that a transition in Egypt is formally legal? Some seem to think not. My wife tells me that she saw on the BBC website this week, a picture of an Egyptian protestor holding a sign that says in English: ‘The Constitution Must Go.’ One understands the sentiment. Surely, there is something distasteful about planning a transition according to some self-serving rules that the sclerotic elite you are trying to remove wrote during a period when they had you under their thumb. That is particularly true if, as here, the provisions may allow members of that elite to negotiate ongoing immunities and/or continuing influence. Nevertheless, if one takes a step back there may be reasons that counsel against a hasty decision to force regime change through formally illegal channels.

Thus, Harvard Professor Tarek Massoud today published an op-ed in the New York Times that proposed a method that would preserve legality–in a manner analogous to the one I proposed in my post.

Similarly, yesterday, a group of leading Egyptian Democracy activists issued a statement in al-Shuruq calling for a transition that seems also to be trying to propose a path to transition that would ensure that transition occurs in a “legal” mode. For the paper’s Arabic website, click here. . For a translation posted by the Carnegie Corporation click here.

Reading, the activists proposal is illuminating, if only to illustrate how complex the process of transitioning in a legal mode would have to be: As it turns out, the activists’ proposal may not actually satisfy all the requirements to make it fully legal. A short while ago Tarek Massoud pointed out in an e-mail to some people watching the situation that this proposal would still violate article 82 because it has the acting president dissolving parliament and changing the constitution. Nevertheless, it is quite possible that this is an oversight The “Poison Pill” that I describe in my earlier post was added in 2007, but some newspapers and websites still have the pre-2007 Constitution on their websites. Given the number of things going on and the complexity of the provisions at issue, it is possible that people missed this. Furthermore, as Nathan Brown pointed out in a later e-mail, the activists overlooked the flaw in their plan as a mode of legally transitioning away from NDP rule. Furthermore, as Prof. Brown also noted, it needs only a minor change to work. (Mubarak would have to dissolve the parliament prior to handing the reins “temporarily” to his Vice President and at which point new Parliamentary elections would be held with 60 days under an existing law that (when it comes to parliamentary elections) could actually be held fairly.)

Assuming that the statement of the activists, like that of Prof. Masoud reflects a desire to find a formally legal manner of transferring power, one cannot help but be struck by their implicit embrace of a principle of legality–notwithstanding the inconvenience that embracing this principle might cause and, notwithstanding the fact that embracing the principle might force one to grant the members of the outgoing regime some concessions that one would not have to grant them if one simply removed them extra-legally.

In my next post, I want to discuss some of the reasons why a committed proponent of the regime in Egypt might today accept the proposition that a legal transition is preferable to an extra-legal one–even though legality might delay Mubarak’s departure or might require some distasteful concessions. Obviously the preference is not unqualified. I will not speculate about how many Egyptians actually accept this proposition or how-much-delay/how-many-concessions they are willing to endure. This is something that will become clear over time. I do want to make clear, however, that some do accept this principle, and it is worth thinking about why this might be.

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Southern Sudan’s Constitutional Review

On January 21 the Government of Southern Sudan (GoSS) issued a presidential decree for the “formation of the Technical Committee to review the Interim Constitution of Southern Sudan” and to present a final draft of a transitional constitution to the President by April 25. The intention is to have a transitional, as opposed to permanent, constitution adopted by the Southern Sudan Legislative Assembly and signed by the President on July 9, the anticipated date of Southern Sudan’s independence. That it is only a transitional document reflects the strong desire to put in place the necessary provisions to govern effectively and exercise fully the sovereignty of the South, while recognizing the myriad of issues that need to be addressed (both domestically and with the North) and the shortage of time between the referendum and independence preclude a comprehensive constitutional undertaking during the remainder of the CPA’s interim period.

As currently envisioned, over the next three months the Technical Committee will work to draft amendments to the ICSS to transform the existing regional constitution to a (transitional) constitution of a sovereign state – powers that were formerly exercised in Khartoum will be transferred to Juba; the regional government and legislature will become national in character, as will other previously subsidiary institutions such as the regional armed forces and electoral commission; other key institutions, such as a central bank, will be created; and so on, in order to ensure effective governance upon independence. Fractious and more difficult issues, such as power- and wealth-sharing arrangements, federalism and decentralization, will be tabled until after July 9, when a later process to draft a permanent constitution begins.

The process for a permanent constitution is expected to be substantially longer. Based on resolutions of the All Southern Sudan Political Parties’ Conference (ASSPPC) in October 2010, the permanent process may include a National Constitutional Review Commission, a Constitutional Conference (thought to include all political parties and other interests), and an elected Constituent Assembly to adopt the permanent constitution. However, the establishment, composition and exact mandate of each of the bodies remains to be agreed among the parties, and then likely enshrined either in the transitional constitution or law.

To date, divisions within the political fabric of Southern Sudan have been largely overcome by the common goal of independence. With that unity of purpose soon to be fulfilled, many expect deep-seated and long-held political rivalries to re-emerge post-referendum. The challenge for GoSS officials (overwhelmingly from the Sudan Peoples’ Liberation Movement (SPLM) party) will be to manage the expectations and demands of the political opposition, some of whom contested the results of the April 2010 elections and have had an uneasy relationship with the leadership.

Opposition parties refer to the ASSPPC resolutions and call for a role in the preparations for the post-referendum period, including the development of the transitional constitution. The key to GoSS getting buy-in and support for the transitional constitution, therefore, will be including the opposition in the debating and drafting of the transitional constitution, convincing them of GoSS’s unconditional commitment to a comprehensive and inclusive constitutional dialogue after July 9, and discussing with the parties and then incorporating into the transitional constitution or law provisions setting forth concrete time lines and steps for drafting and ratifying the permanent constitution.

Recent statements by the SPLM, perhaps in response to objections by some opposition parties that they are inadequately represented on the Technical Committee, demonstrate confidence building measures and a commitment to a process that will include all major stakeholders. SPLM Secretary-General, Pagan Amum, recently announced that after the referendum results are announced an all parties’ conference will be held to, among other things, “decide on the shape and composition of the constitutional development process and we envisage a process that will be all-inclusive: all the political parties and civil societies in southern Sudan will participate in the development and drafting of the permanent constitution for southern Sudan.”

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Should He Stay or Should He Go: Negotiation as the Price of Constitutional Legality in an Egyptian Transition

In Egypt today, there are demands for the immediate resignation of President Hosni Mubarak. Those who make this demand seem to assume that his immediate resignation will facilitate the collapse of the regime that he heads—the political regime dominated by Mubarak’s National Democratic Party (the NDP). From a political perspective this might be true, though I cannot say for sure. Intriguingly, however, from a purely legal perspective, Mubarak’s immediate departure might have uintended consequences. Ironically, if Mubarak stepped down immediately it would become much harder to have a meaningful campaign period and hold an election in which the most popular leaders could take part and take the presidency—or at least harder to do so in a manner that is consistent with the formal requirements of the Constitution.

There is an ingenious device that one finds in the Egyptian constitution—one analogous to some of the “poison pills” that corporations occasionally adopt to prevent hostile takeover. If a President resigns or is otherwise removed, power will be transferred to high officials appointed to their office by the President. Not surprisingly the people in those offices today are members of the NDP elite. Furthermore, snap elections for a new president must be held under terms that overwhelmingly favor the election of a new President from the NDP. More maliciously still, the amendment provisions of the constitution are drafted in such a way that the Constitution cannot be amended in time to prevent the snap elections or alter the terms under which they are run. In short, even if the demonstrators had the power to force the current government unwillingly from office (something that they probably do not) they would not have the legal authority thereafter to run a fair election for a new President. To arrange for a formally “legal” transfer of executive power away from the NDP, one will have to negotiate with NDP leaders about the terms under which they cede power.

This raises some deeper questions. Among them: should anyone feel any reluctance about ignoring and violating the terms of this constitution? In this post let me just describe the problem and in a later post ruminate about some of the questions that it raises.

The “Poison Pill” in Egypt’s Constitution.

The Egyptian Constitution envisions three possible circumstances under which power might shift from a sitting president to another figure: (A) The President finishes his term, (B) The President is temporarily incapacitated or (C) or The President is permanently removed from office. In each of these cases, the constitution as it exists today provides that the election will be held according to a scheme that is rigged in subtle ways in favor of the current ruling party, the National Democratic Party (NDP). If people want not just a change of President but a change to someone who is not associated with the NDP (as demanded by the Egyptian protesters), the constitution will have to be amended so as to change the terms under which candidates for the presidency are selected and elections for President will be run. One might expect that it would be easier to achieve such an amendment if one forced the current president to resign. But one would be wrong. As a matter of constitutional design, the sudden departure of a President seems to set inexorably in motion a election that will be run under un-amended provisions of the current constitution. Let me explain:

The Egyptian constitution provides that, at the end of a presidential term, a presidential election shall be held either to re-elect the current President or to elect a new one. The Constitution limits, however, the people who can run in this election. Article 76 of the Constitution is a long provision that seems at first glance to allow candidates from multiple parties to run but which has been meticulously crafted to ensure that, in Egypt’s current situation, only candidates supported by the ruling National Democratic Party and could win. The parties with whom the most famous opposition figures (secular or Islamic) are most associated will not be legally permitted to field a candidate. This would need to be amended to allow for truly open elections. But an amendment to the Constitution requires the recommendation of the president or 1/3 of the delegates to the lower house of the legislature, the People’s Assembly. Since the regime has rigged elections to make sure that members of People’s Assembly are overwhelmingly members of the NDP, the People’s Assembly is unlikely to recommend anything the president would not. In short, if one wants free elections one needs to negotiate with the President and strike some bargain that would lead him to call for the amendment of Article 76.

If the president is for any reason, deemed “temporarily” unable to fulfill his duties, the situation remains much the same. Article 82 of the Constitution provides that the powers of the presidency will devolve to the recently Vice President, if there is one and the Prime Minister, if there is not. In this case, it would devolve to the recently appointed vice president of the regime, the head of the intelligence service Omar Suleiman. Article 82 bars the vice president, during the time he is filling in for a temporarily disabled president, from dissolving the People’s Assembly or requesting an amendment to the constitution. However, the Assembly could, on its own propose an amendment. And it is largely beholden to the leaders of the NDP. For the establishment of a truly open election down the line, Gen. Suleiman and his allies in the NDP would “allow” the captive legislature to call for an amendment of the constitution in a way that would lead to truly open elections and, thereafter, a shift of power forever away from the NDP. But they too would surely demand some concessions before they did so.

Things change if President Mubarak were forced to resign permanently. Ironically, however, they do not make it any easier, and perhaps, make it harder to bring a non-NDP person into the Presidency . If the president were to suffer permanent disability or sent a formal letter of resignation to the People’s Assembly the vice president does not become the president. Article 84 instead says that the Presidency is to be assumed by the speaker of the People’s Assembly acts as President for 60 days or, if he is unavailable, the Chief Justice of the Supreme Constitutional Court. During these 60 days, the Speaker or the Chief Justice, as the case might be, are forbidden to dissolve the People’s assembly and neither is permitted to request an amendment to the Constitution. During these 60 days elections for the presidency must be organized and held. It is this provision for quick elections that is so nasty.

Unless the Constitution is amended, the elections held within 60 days will have to be held under the terms of Article 76—the provisions that favor NDP candidates. As it turns out, however, it takes more than 60 days however, to amend the Constitution to ensure that the elections are held in a fair and open manner. Article 189, provides that either the President of the Republic or a one third plurality of the People’s Assembly, may request the amendment of the Constitution. If a majority votes for the proposed amendment there must be a two month delay and then another vote. If a 2/3 supermajority approves, then there must be a popular referendum. In short, elections must be held within 60 days of a President’s departure or resignation and an amendment requires more than two months to go into force. So, paradoxically, Mubarak’s permanent departure might make it very difficult legally to hold a constitutionally valid election for a new president that would be fair and free and viewed as legitimate.

One cannot help but admire the perverse craftsmanship of this scheme. If one wants to satisfy the demands of this constitution AND at the same time satisfy Egyptian protesters demands for a quick transititon to a true multi-party democracy, then one should probably try to keep Mubarak in office (even if through a legal fiction he is considered to be “temporarily” disabled and power rests with a caretaker like Suleiman.) This forestalls the need for an election within 60 days and allows people to negotiate changes to the constitution and law so that open elections can be held. This would involve reforms to Egypt’s laws and administrative regulations, which need to be revised (or perhaps officially placed under a policy nonenforcement) so as to open space for political discussion. Constitutional amendments also need to be negotiated quickly so as to permit a truly open slate of candidates for President. These would need to be approved quickly by a majority of the People’s assembly which would pave the way for a subsequent supermajority vote two months later followed in short succession by a national referendum for a new president.

The Questions This Raises

This situation is intriguing. And it raises a question that one often deals with when trying to dismantle an authoritarian regime without violating the constraints of legality. Is it actually worth contorting oneself to ensure formal legality? Assuming that the protesters acquire the means to compel Mubarak to step down, this is a question they will have to ask themselves. And, I suspect, it is not just with respect to this position. Surely there are other parts of the Constitution that people might be tempted to ignore or violate in the interests of changing power, calling for a new constitutional convention and, in other ways, establishing quickly a more democratic and liberal Egypt.

–Clark Lombardi

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