HILJ Symposium: A Pragmatist’s Response to “The Democratic Coup d’Etat”

Editor’s Note: This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found on the Opinio Juris website.

The Democratic Coup d’Etat is an important article. First, and most obviously, this Article carries significant policy implications. The political transformations sweeping the Middle East and North Africa – known as the “Arab Spring” – have presented a wide range of conceptual challenges to policymakers and political scientists. Varol’s counter-intuitive argument that self-interested militaries might facilitate democratic transition in order to preserve their own position within the political system provides an important perspective on Egypt’s transformation. Although it is far too early to tell if the Egyptian military will remain an agent of democracy, Varol’s article puts the military’s actions in sharp focus.

Recent developments have also added additional texture to Varol’s concept of the “democratic coup d’état.” Most relevant is the alliance between the military and judiciary that was on show in June when the Supreme Constitutional Court disbanded Egypt’s Muslim Brotherhood-dominated Parliament. Reporting from this event suggests that the military was not simply using legal institutions to pursue its own interests. Instead, key members of the Supreme Constitutional Court had been in close contact with the Egyptian military from the very beginning of Egypt’s political transformation to address how they will handle the risk that the broad popularity of the Muslim Brotherhood will allow it to unilaterally shape the Egyptian state. Tahani el-Gebal, Egypt’s deputy president of the Supreme Constitutional Court, justified this alliance with the military based on the argument that “[d]emocracy isn’t only about casting votes; it’s about building a democratic infrastructure.” This burgeoning relationship helps us better understand the dynamics behind what Varol calls “institutional entrenchment.” In particular, it might suggest that institutional entrenchment is the product of a shared counter-majoritarian interest in curbing any rising electoral tide of political Islam.

Second, Varol’s article represents an important academic contribution: It is part of a growing body of legal scholarship that addresses the “poorly understood” relationship between constitution-making process and constitutional democracy. Tom Ginsburg, Zachary Elkins, & Justin Blount, Does the Process of Constitution-Making Matter? 5 Annu. Rev. Law Soc. Sci. 201, 210 (2009). Varol’s approach focuses not on the theoretical implications of institutional participation in democratic constitutional change but on the tangible interests and effects of these institutions. This switch from a priori theoretical judgment to context-dependent empirical evaluation helps him jettison unhelpful theoretical typologies (“all military coup d’états are undemocratic because militaries are not elected”) and show how an unlikely institution is actually serving as a critical catalyst of democratic and constitutional change.

And, at first glance, Varol’s story of the democratic coup d’état seems as unlikely as it gets – particularly for those of us whose vision of a military coup is of armed soldiers replacing civilian dictatorship with military dictatorship. But Varol convincingly describes how militaries in certain contexts enjoy high levels of public trust (particularly in comparison with the police) and will seize power only to transfer that power to civilian leadership through free and fair elections. This is not a story of civic-minded altruism but instead one where the military transfers power to elected civilian leaders in return for preserving their privileged position as one of the most trusted institutions in society.

Varol’s story of democracy-promoting militaries fits into a larger story of democratic constitutional change. In the recent tidal “wave” of constitutional foundation (over 180 new constitutions have been adopted in the last 30 years), successful constitutional foundations have frequently involved reformist old regime institutions that helped supervise a negotiated process of democratic change. Ulrich Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (1995). In many of these negotiated revolutions, these undemocratic institutions bargained away power in round table talks that led to stable “legal” procedures for a transition to free and fair elections. This approach has been called the “Spanish model”, a nod to how the Franco regime chose to negotiate its own power away legally during constitution-making in the late 1970s. Luis Lopez Guerra, The Application of the Spanish Model in the Constitutional Transitions in Central and Eastern Europe, 19 Cardozo L. Rev. 1937 (1997-1998). This approach spread to the former communist Eastern Europe during the 1990s, where communist-dominated Parliaments became agents of democratic change in order to preserve their privileged position within society. Varol’s democratic coup d’état represents another chapter in this story.

The success of this kind of negotiated or legal revolution can be traced in part to a neglected risk of constitution-making. Constitution-making is not just a moment of constitutional possibility; it is also a period in which the entire institutional apparatus of the state hangs in the balance. See William Partlett, Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution-Making, Brooklyn J. Int’l Law (Forthcoming 2012); David Landau, Constitution-Making Gone Wrong, Alabama L. Rev. (Forthcoming 2012). In this period, a charismatic individual or political party can reassert dictatorship by turning a popular mandate into a reason for unilaterally reshaping the institutional landscape of the state. Perhaps the two best examples of this kind of plebiscitary constitution-making are Russia and Venezuela, where President Yeltsin and President Chavez were able to seize control of the constitution-making process and unilaterally reshape the institutional apparatus in the process by exploiting temporary popular mandates. Old regime institutions solve this problem by maintaining legality and therefore holding unilateralism in check during this transitional phase.

But what does the involvement of old regime institutions mean for lasting democratic constitutionalism? Although the involvement of these institutions might ensure against the risk of plebiscitary dictatorship, are these “Faustian bargains” – as Varol calls them – ultimately creating weak foundations for long-lasting constitutionalism? Varol chooses to leave this question to future projects.

In addressing this issue, Varol will face another highly theoretical literature which is highly suspicious of negotiated revolutions. In fact, the orthodox approach in this literature maintains that the best way to build a stable foundation for constitutionalism is to draft a constitution in a process that maximizes the democratic or popular legitimacy of a new constitution (one of the most influential examples of this orthodox literature is Bruce Ackerman’s Future of Liberal Revolution (1992)). By giving undemocratic institutions a role in constitution-making, the approach goes, these countries are sacrificing key constitutional legitimacy. In essence, this orthodoxy asks: How can a new constitution survive as the new democratic charter when it is also riddled with provisions that are meant to ensure the survival of old regime players?

Varol’s examples of democratic coup d’états hint at one possible response to this question: We are too focused on the significance of the founding moment as a source of legitimacy for constitutional law. Take Varol’s Portuguese example. Although the Portuguese military successfully entrenched itself in the constitution after overthrowing the dictatorship, it created a sunset clause allowing a two-thirds majority of the Parliament to remove this constitutional entrenchment six years later. And this is exactly what happened: The democratically elected parliament later dislodged this military entrenchment. A similar process of gradual democratization happened in Turkey: Over time, elected officials have weakened military control over one of the chief institutions created by the Turkish military to protect its interests: the National Security Council.

Portugal and Turkey are not alone. Two of the countries most successful in building constitutional democracy during the 1990s – South Africa and Poland – did not draft new comprehensive democratic constitutions at their founding. Andrew Arato, Civil Society, Constitution, and Legitimacy 142 (2000). Instead, they both adopted compromise constitutional texts, which served as a bridge between the authoritarian past and the democratic future. These interim constitutions helped preserve legality and institutions, avoiding any dangers of unilateralism that could emerge during periods of constitution-making period. Comprehensive democratic constitutions were only passed later when the vicissitudes of political and economic change had settled down.

In this strategy of staged constitutionalism, the concern about the presence of an undemocratic “taint” during the period of foundation is less pressing: As long as key provisions of the constitution are temporary, the democratic process can allow for a more comprehensive democratic constitution later on. This suggests that a constitutional order does not have to draw its full legitimacy from the moment of founding.

Although a full explanation of staged constitutionalism lies outside the scope of this short response, Varol’s insightful article encourages us to revisit our assumptions about the importance of democratic constitutional foundation at the moment of founding. Although this empirical story of staged constitutionalism conveys a less heroic vision of democratic constitutional foundation, it might present a more realistic one. And this more empirical view might also be one that helps us better understand the relationship between constitution-making process and constitutional democracy in the real world.