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.


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

  1. Anonymous Avatar

    The danger of an extra-legal process is that it might set as a bad precedence for the future. Whenever the people starts voicing against the government in power, the military might use that as an excuse to take over the government and suspend the constitution instead of resolving institutional problems through the ballot box or by legal means. Thailand comes to mind.

  2. Patrick S. O'Donnell Avatar

    Are not revolutions by definition “extra-legal” socio-political events? If so, one of the foremost questions we need to ask is if they are, at the same time, “democratic” in the sense that they somehow (perhaps only making the claim to) represent the “will of the people” (or democratic sovereignty). In this case, and without going into the various reasons that lead to the conclusion, I think we can safely answer in the affirmative. The next question, in the instant case, is whether the Supreme Council of the Armed Forces in Egypt can be said to fairly represent in institutional form, the extra-legal yet democratic “will of the people” in the transitional period to a would-be democratic regime. One way to establish its “authority” in this regard would be to assess its commitment to democratic methods and processes during the transitional period, including its capacity and willingness to be, as it were, constitutionally-sensitive, that is, to evidence pre-occupation with amending or modifying the existing constitution or forming a co-ordinating covention by way of making a new constitution giving concrete institutional and representational form to democratic sovereignty or will.

    Constitutional sensitivity is only one of the criteria we might invoke to assess the temporary political authority of the Supreme Council, such authority according it prima facie democratic legitimacy. For the representing the “will of the people” is not, at least in our day and age, simply an aggregative exercise that fairly represents the collective expression of individual “votes,” for the rights of collective self-determination are (at least arguably) constrained by justice and basic moral principles generally, constraints that entail directly or by implication a commitment to basic human rights, such as those rights exercised and advocated by “the people” during the revolution. So alongside “constitutional sensitivity” and “reliance on democratic methods and procedures,” we have “respect for basic human rights” (avoiding here the precise content of any such list) as among the criteria we can use to assess the legitimacy of the democratic political authority assumed by the military during this extra-legal transitional moment.

    “Extra-legal” thus need not denote a lack of respect for legality or even the necessary absence of a “culture of legality,” especially insofar as these are related to democratic legitimacy. After all, it’s such “extra-legal moments” that give birth to exemplary, foundational, or constitutive co-cordinating conventions that result in democratic constitutions, and thus their “extra-legality” is not necessarily an expression of disregard for legality or an indication of the poverty of legal culture (intriguingly, such a culture may have been ‘underground’ in the pre-revolutionary period inasmuch as it existed, normatively and ideally, as an aspirational goal, in the hearts and minds of actors in civil society that were eventually mobilized for the revolution).

  3. Patrick S. O'Donnell Avatar

    Erratum: “coordinating convention(s)”

  4. lindayanti Avatar

    Prof. Lombardi, there are similarities of Indonesia’s situation in 1998 and Egypt 2011. As one of Indonesian students who marched down the street in 1998, we’d like to think what we were advocating was ‘people power’ or taking democracy to the street–because it did not work in the parliament, no checks and balances took place in that time. Now, in 2011 as we, Indonesians look back to what we ‘fought’ for in 1998, although we are still proud that we brought Suharto down, we are not quite sure that we have achieved of what we fought for, of something we called the ‘reformation'(reformasi).
    I am not quite sure whether Egypt would want to take the same path we did, since taking down Mubarak is a good thing to do, but Mubarak (with no doubt) would already built a “Mubarak franchise web” which is strong and volatile. Just like the case of Indonesia, the Suharto franchise web is still going strong and deadly.

  5. lawyerjourno Avatar

    In this way similarities can be sought in every even that happens globally. Some moments in history give us a sense of Deja vu. What is happening in Egypt has happened in Germany too. People are waking up to the new reality and democratic revolution first time indeed in the Islamic History is about to come!

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