—William Partlett, Columbia University Law School & Brookings Institution
[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. ]
Leading analysts have widely criticized Egypt’s transition to constitutional democracy. George Washington University’s Nathan Brown calls it “the stupidest transition in history.” Shadi Hamid of the Brookings Institution calls it a “Democratic Transition in Trouble.”
At the heart of much of this criticism is one concept: democratic legitimacy. These analysts worry that institutions with close links to the old Mubarak regime like the military and the courts are crowding out “the people.” This old regime involvement, they argue, jeopardizes both the democratic legitimacy of the Egyptian revolution and its central symbol: Egypt’s new constitution.
The Dangers of Popular Constitution Making
As I detail in my new Article, this criticism is not new. During the 1990s, commentators criticized the use of pre-existing law and parliaments in constitution making in post-communist Central and Eastern Europe (e.g. Poland, Germany, Czech Republic). Yet, “parliamentary constitution-making” helped to build robust constitutional democracy in these countries.
This criticism persists because it stems from a widespread belief that increasing direct popular participation in constitution making is the best way to build healthy constitutional democracy. In this kind of “popular constitution making,” a democratic constitution “matters” because it is drafted and ratified through “extraordinary” popular mechanisms like constitutional assemblies and referendums. By separating constitution making from ordinary institutions like Parliament and the courts, the true democratic sovereign – the people – become the direct authors of the constitution.
This version of popular constitution making worked in eighteen century American constitution making. In fact, the Framers drafted the United States constitution in a special Convention that existed outside of the ordinary federal institutions created by the Articles of Confederation. Special state constitutional conventions then ratified this new constitutional draft. This extraordinary process helped ensure that the United States Constitution would become a form of higher law.
Popular constitution making, however, is fraught with danger in today’s post-authoritarian world. Post-authoritarian countries lack the dense network of stable institutions or shared beliefs that are were so critical in ensuring compromise and deliberation in American popular constitution making. Instead, these countries have weak institutions, power-hungry politicians who are often hostile to pluralism, and atomized populations looking for a quick fix to the problems of the old regime. In these political landscapes, popular constitution making can quickly degenerate into tyranny. In fact, it provides a perfect opportunity for charismatic politicians to seize on temporary popular mandates to unilaterally reshape the institutional apparatus of the state.
My Article tells this story. Focusing on the former Soviet republics, it describes how power-hungry presidents exploited economic and political crisis to gain temporary popular mandates. These presidents then used these “mandates from the people” to sweep away pre-existing institutions and impose authoritarian constitutions on the populace.
Russia is the paradigmatic example. In his struggle with Parliament, Yeltsin ruthlessly drew on the rhetoric of popular constitution making to attack the role of Parliament and the Constitutional Court in constitution making. In September, 1993, Russian President Boris Yeltsin relied on a popular mandate from a recent referendum to justify a decree disbanding both Parliament and the Constitutional Court. Ruling as a presidential dictator, Yeltsin then pushed through a constitution that concentrated power in the Russian presidency.
This example vividly demonstrates how the mechanisms of direct popular participation can undermine the broad-based deliberation required for democratic constitution making in certain circumstances. The former Soviet world is not the only example. David Landau’s work points out similar dangers of popular constitution making in Venezuela and Bolivia.
This broad phenomenon also helps us better understand the virtues of constitution making in Central and Eastern Europe. In these countries, communist-era constitutions and parliaments dominated by the Communist Party played a major role in the emergence of the new constitutional order. The inclusion of pre-existing legality and institutions sacrificed short-term constitutional legitimacy and, in some cases, allowed old regime institutions to protect their own interests. But, at the same time, it also helped to reduce the chances of unilateralism and encouraged broad deliberation and negotiation.
There is strong evidence that the military is playing a similar role in Egypt. The Egyptian military leadership is clearly seeking to protect its own interests by unilaterally issuing interim constitutional declarations that regulate the process of constitution making. But these declarations have also played a central role in encouraging constitutional deliberation. For instance, one of these constitutional declarations has allowed the Egyptian courts to ensure that Egypt’s constituent assembly is not just a temporary reflection of majoritarian politics but encompasses “Egypt’s diverse social groups.”
Seen as the naked pursuit of institutional self-interest, the limitations that the military is placing on majoritarian politics in Egypt might seem “troubling” at first. But, as long as this old regime institution remains committed to transferring power to elected politicians (as Ozan Varol predicts), these limitations are useful. In fact, without these limitations, you risk transforming constitution making from a period of broad-based democratic deliberation to an opportunity for plebiscitary dictatorship.
Comments
13 responses to “Is Egypt’s Transition to Democracy Really So Stupid?”
Will’s story gets some support from Donald Horowitz’ forthcoming book on Indonesia. He shows how Indonesia “did it all wrong, but it came out all right” to paraphrase a country lyric. After Suharto, Indonesia’s constitution was radically reformed by a parliament dominated by the old elite. there was virtually no public involvement. yet for interesting reasons that he elucidates, having to do with the frames of drafters, their product was democratic.
The Partlett and Landau articles are excellent, and hardly only because they very much support the arguments that I have put forward for a long time.
One caveat, but it is minor: it is important to distinguish reform and what Janos Kis and I have portrayed as regime change. It is above all the institution of the Round Table where the first or interim constitution is negotiated that is the key to the distinction, though historically such an institution is not absolutely necessary. Reform as well as revolution have legitimacy problems that can be solved in the methodology practiced in several counties, but especially South Africa.
I have detailed my views on this in recent articles in Globecon and Constelaltions, that ultimately confirm the perspectives argued for by Partlett and Landau’s incredibly strong pieces. They have been more successful than I in outlining cases that show why extra-ordinary or populist constitution making goes wrong.
Correction. My comment was on the longer articles of Partlett and Landau.
I am however not in agreement with Partlett that the Egyptian military substitute is a legitimate alternative (in either philosophical or empirical senses of legitimacy). Here my stress on the Round Tables would ahve been helpful. the Egyptian scenario was imposed rather than negotiated. The contrast should be with South Africa and not the Ackerman or any other populist model.
The Egyptian transition scenario is indeed incredibly stupid, though there are some correctives that may still make it work.
I see that I have to read these authors very carefully, but it seems to me that they may not pay attention enough two the two sided danger in constituion making, namely imposition and populism. I at least have been clear on this in my book on Iraq cited by Landau.
Thanks to Andrew Arato for his comments on the pieces and posts of both Will and I. I can’t speak for Will on this, but my worry about the Round Table model (with which I am really in great sympathy as a normative ideal, as Arato notes) is that it is difficult to force these debates to happen if political forces don’t line up in certain ways. I’m not sure in Egypt whether we ever could have had the kind of consensual constitutional transition we had in much of Eastern Europe, for example. So to me, the military comes in as a second (or maybe even third or fourth) best. And I’m not sure I’d characterize the role being played by the military as completely being about imposition. The military may instead be the actor that is actually forcing broader social debate, rather than allowing the organized political forces to impose a populist solution.
It’s an interesting point also on legitimacy — we’ll just have to see whether the significant degree of military involvement undermines the legitimacy of the resulting constitutional product. It may, but my sense is that the muddled product coming out of the assembly may have enough of democratic legitimacy to stave those challenges off.
Dear David:
As I said I really enjoyed your piece. In it miss only one element of the Egyptian process, namely the second constituent assembly that outlived and lives its parent, otherwise it is quite excellent on this level of contemporary analysis too.
In my article in Globecon and the Iraq book I do say that the RT form is path and context dependent, depending on equality or apparent equality of forces. in the newer piece I speak of the return of revolution, and lots of places I indicate that populist ideologies of constitution making threaten waht you call internal constraints. I specifically mention the case of venezuela and even of Colombia. In Hungary a sovereign model has returned recently, and in this context what Will says about hungarian success sounds pretty paradoxical. there are big threats even in South Africa to constitutionalism and the courts. Nevertheless these form can be strengthened greatly by initial comprehensive negotiations, that provide normative if not empirical clues how to reinforce them under less favorable conditions. E.G. constitutional principles negotiated mid way. . I disagree that something like the Selmi draft was impossible. as you show it was the SCAF overloading that made it so. But there was a strong demand of loose democratic actors for such principles.
So should context and ideology dependance bring us over to a realist position where we dont care who does it and how as long as imposition of the populist side is blocked, but at the cost of the opposite imposition. The U.S. could be said to ahve blocked the road to Shia imposition in Iraq, at the cost of its own imposition. Great results? Is the Turkish path from 1960, and worse from 1980 the one we prefer? A tradition of military intervention cannot just be turned on and off, and when it can be finally removed it can be through another authoritarian force (AKP or the Brotherhood it now seems).
I am completely against these concessions to non-democracy, either in process or result, that become almost impossible to remove, as in Chile and also turkey where even Erdogan has come to like them. There would be no need for them if liberal democratic actors 1. would be fully organized 2. would be themselves liberated from the populist model. (1 is missing in Egypt, 2 is missing in Latin america) 2 is to some extent our job, and the two of you are making a great contribution, where I mostly failed despite 20 years of efforts.
Finally, having worked on Turkey, I do not think the courts should be regarded in a country like Egypt simply as agents of the military. Tamir Moustafa’s brilliant book should cure us of that even if things have gotten much worse after 2005 as he shows. Their role recently is generally positive, and success depends not so much on military backing as support by a variety of social forces (women, Copts, the young, many parties etc.) that can include the military too. to the extent that a legitimate constitution emerges in Egypt the courts would ahve palyed an important role. Even in Turkey they forced a somewhat more consensual process to emerge, though the cost was their packing. In Latin America bad theory (Sieyes, Schmitt rather than Elster, Ackerman whom noone knows) has made such a role more difficult since the judges seem to share it.
I stop, but could go on for a long time……
Just a few quick thoughts. I think there might be some ways in which the Egyptian transition is actually following the South African model. Although there is no formal round table approach to generate interim constitutional norms in Egypt (as in South Africa), media reports suggest that there are “semi-open negotiations” between high level Brotherhood members and the military about these interim constitutional rules of the game (http://www.aljazeera.com/indepth/opinion/2012/06/2012624183256269777.html). Indeed, despite its monopoly on power, the military is significantly constrained because it does not want to grow unpopular on the street – for this reason, the military is a kind of representative institution. Thus, I agree with David that this is not an example of imposed interim constitutionalism. And this might be as close as the Egyptians can get to this South African “round table” model.
As for the legitimacy point, I wonder how much the *source* of the interim constitutional norms now is really going to effect the long-term legitimacy of the Egyptian constitution. As Tom’s point about Indonesian constitution-making shows, might we be putting too much into the actual process of formation?
Thanks again to everyone for their comments – look forward to keeping this dialogue open.
Yes. there were probably negotiations between SCAF and the Brotherhood. That’s how the initial electoral rule was agreed upon most likely, plus the weird formula on parliament choosing the “constituent assembly”. But these were hardly inclusive negotiations given that the Brotherhood was not even the main force in the mass movement. Nor were the results broadly accepted. There were alwasy many other important groups. Note that this is reflected in the result. The mixd electoral formula, unlike the German type, is potentially quite disproportional, and was actually as well. It has the mark of imposition. Just because the Americans really negotiated with the Kurds in Iraq, it does not mean that the formulae (especailly the referendum rules) were not imposed.
I agree, in the long run it will be the quality of the cosntituion, and early compliance/non-compliance that will matter. In the short run though the thing is racked with legitimation problems. Just read Al Ahram everyday like I do. Walk out after walkout, court session after court session, all dealing with the problems of the assembly, as well as the contents of the draft. This will play a role at least in the beginning of the life of the thing……Moreover, process influences outcome.
Ask yourself the following q: if empirical research would show (it does not) that the method of making does not matter much for eventual acceptance and stability, would you recommend in any given context that any which way of doing will be functionally equivalent to a legitimate method? I hope not.
Let me chime in here with a few thoughts. I agree with Andrew Arato that, ideally, liberal democratic actors would be sufficiently organized to enable the requisite conditions for a transition to democracy. That, unfortunately, often is not the case. An authoritarian government ensures its own survival by stifling political pluralism, so liberal democratic groups in a post-authoritarian society are likely to be weak or nonexistent. It’s therefore unsurprising, though unfortunate, that the establishment of a constitutional democracy remains the least likely outcome of an attempted democratic transition.
So, it may be necessary, at least in some democratic transitions, to enlist the assistance of non-traditional and second best actors. In my last two articles (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)), I’ve explored the role that the military can play in transitioning an authoritarian government to a democracy. Enlisting support from the military is a concession to non-democracy and there are certainly costs associated with it (the primary one being that, once you get the military into politics, it may be difficult to get them out). But, in certain contexts, the military may also be one of the only institutions available to create the requisite conditions for a transition to democracy. Egypt, for example, may have resembled Libya or Syria today had the Egyptian military not pulled the rug out from under Mubarak. Likewise, in three significant transitions to more democratic governance structures in Turkish history (during Sultan Abdulhamit II, the 1923 Independence War, and in 1960 during the term of the authoritarian Democrat Party), the Turks could ask, “If the army doesn’t do this job, who will?”
Once you enlist institutional support from the military, how do you then go about forcing the military’s retreat to the barracks? That is not an easy task, but it doesn’t necessarily take an authoritarian government to accomplish it. Portugal is a great example. The Portuguese military toppled the authoritarian Estado Novo regime in a 1974 coup, installed democratic leaders, ensured stability, promoted political pluralism, and retreated to the barracks relatively quickly after its democratization mission was accomplished. By 1982, the democratic political parties and institutions in Portugal had attained a reasonable degree of stable existence. A coalition of the existing political parties then obtained the necessary two-thirds majority to revise the Constitution and remove the military’s constitutional powers.
The Turkish case wasn’t nearly as successful, as Andrew correctly notes. The 1961 Constitution, though widely accepted as the most liberal constitution in Turkey’s history, is primarily to blame for the failure of Turkey’s democracy. In creating a system of proportional representation and numerous counter-majoritarian checks and balances on the political branches, the 1961 Constitution significantly weakened the elected branches and strengthened the bureaucracy. That constitutional arrangement produced decades of weak coalition governments and legislative impasses in Turkey, which created power vacuums and prompted the military to stage further interventions. It was not until the 2000s, with the ascension to power of stable governments and the legal-constitutional reforms brought by Turkey’s accession process to the European Union, that the Turkish military retreated to the barracks.
If one compares the Turkish and Portuguese transitions, the creation of strong and stable political parties emerges, not only as a crucial step in the creation of a pluralistic political order, but also an important guarantee against future military interventions, which tend to occur when political institutions are weak or unstable. Concessions to non-democracy during the transition process are certainly not ideal, but they might, depending on context, be better than the alternative (i.e., the authoritarian status quo) and may not, as Will and Tom also posit in their responses, prevent the consolidation of the democratic regime in the long term.
Ozan: Do you think there is any connection between your concept of the “interdependent military” that goes back into the barracks after toppling an autocratic regime and the American founding-era civic republican concepts of the citizen-militia. Both seem to share a concept of the citizen military (as opposed to the professionalized military) as having a collective/institutional interest in serving the public good (national unity/countering external threats).. Not sure about this, but something that came to mind when I was reading your most recent piece on the military as guardian of the constitutional democracy.
Will: Certainly. There is a short section in that article that discusses the ways in which the interdependent military model resembles the citizen-soldier model that many of the founders of the United States supported. Madison, for example, thought that professional soldiers (as opposed to citizen-soldiers) were easily turned by corrupt commanders against the interests of the people. In Federalist No. 29, Hamilton likewise detailed his support for citizen-soldiers: “Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits, and interests?” As Bernard Bailyn also observed in The Ideological Origins of the American Revolution, “the colonies demonstrated military effectiveness of militia armies whose members were themselves the beneficiaries of the Constitution and hence not likely to wish to destroy it.”
The conventional theories, which demand a strict separation between the military and civilian realms, often overlook the role that the military played in the founding of the United States and the intermingling that the military and civilian institutions have shown throughout American history. Where it’s doubtful that the existing theories even accurately describe civil-military relations in the United States, we’re doing a disservice by instinctively advocating their wholesale export to these emerging democracies.
Thanks for raising this point.
Thank you for wonderful insight into the Egyptian situation. As a native Egyptian, this type of detailed analysis is always much appreciated.
I was wondering if you had any new thoughts given the recent updates? Morsi’s constitutional decree and the subsequent push to finish drafting the constitution in that all-night session?
Mostafa, I have posted some of my more recent thoughts for Brookings website.
http://www.brookings.edu/blogs/up-front/posts/2012/11/30-constitution-egypt-partlett
As you can see, I am particularly worried that the turn from a deliberative and legalized process to a popular constitution-making path will undermine the judiciary and threaten the long-term durability of the constitution.
[…] recently, Egypt had been following that promising legal direction, allowing the courts to ensure an inclusive process of constitution-making. But the Egyptian […]