HILJ Symposium: A Response to Ozan Varol

[David Landau is an Assistant Professor and Associate Dean for International Programs at Florida State University.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below.

Professor Varol’s article “The Democratic Coup d’Etat” is an important piece of work and a key contribution to the newest wave of literature on democratic transitions. In addition, the piece is nicely crafted and carefully researched — both Professor Varol’s theoretical foundation and his case studies are persuasive. Professor Varol rightly points out that the role of the military during democratic transitions is not uniformly negative, but in fact is complex, and uses a simple assumption, which is that the military will generally try to increase or entrench its own power during transitions, to explain military behavior during transitions. Finally, he presents a series of case studies across both time and place which would otherwise appear to have little in common (Turkey in 1960, Portugal in 1974, and Egypt today) to show that his assumption about military behavior seems to hold broadly. My comments here are not a critique of his central thesis, which I basically share, but rather build off of two of the major points in the piece.

A first key finding is that “coups” are hard events to classify – contrary to conventional usage, they do not always have antidemocratic intent or effects. As Professor Varol shows, sometimes militaries engage in “coups” precisely in order to put in place or restore a democratic order. This raises a broader point: our vocabulary about democratic transitions remains pretty crude. Revolutions, as Richard Albert has argued in recent work, are not uniform events, but often have little in common; the same seems true of events we call “coups.” At the same time, these are loaded terms: to call something a coup is universally to condemn it. The term does not get thrown around in a neutral way, but is used by opponents to classify an event to which they are hostile. Meanwhile, supporters avoid the label like the plague. This is particularly true in regions, like Latin America, with long and largely (but not entirely) negative experiences with military involvement in politics.

A recent example occurred in Honduras, where both sides following the removal of President Zelaya in 2010, as well as international institutions like the OAS, were obsessed with a fight over how to classify the event, even though there was agreement about most of the relevant facts. Supporters of Zelaya argued that the event was a classic coup because the military had taken Zelaya away, flying him to Costa Rica, without any legal authority. The proponents of the removal, in contrast, argued that it was a congressionally ratified action against a dangerous, undemocratic president. The sheer amount of energy put into the label suggests that it is obscuring rather than illuminating important questions. And I am uncertain whether adding the label “democratic coup” to the vocabulary does much to clarify things. Opponents of Zelaya would characterize the removal as a “democratic coup,” if a coup at all, because it had the effect of ousting a president who they argue was on a path to dictatorship and replacing him with another civilian regime that did not have such aims. Supporters of course would argue that it was undemocratic because it removed a democratically-elected president who was governing according to the popular will.

Perhaps politically-charged terms like “coup” and “revolution” should be scrapped and not supplemented. Rather than engaging in a scheme of more exacting classification, or classification with adjectives – “democratic revolutions,” “democratic coups” – what we need is a different vocabulary. Transitions of course differ along various dimensions – which groups lead them, what the goals are, the sorts of constraints faced by the key actors, etc – and we would do better to focus on these variables, in order to study what effects they have on regime outcome in the short, intermediate, and longer terms. The point may seem terminological, but I think it is more than that: the current vocabulary to some extent obscures our ability to offer thorough and accurate explanations of events.

A second point from the piece, which I know Professor Varol is exploring more fully in current and future work, is that different institutional designs of the role of the military may have different effects on the stability and quality of democracy down the road. The implications for constitutionalism are complex but extremely rich.

The basic starting point is this: contrary to much of the recent foreign policy debate, it is not always true that the optimal level of military involvement in politics is no involvement. In many cases some military involvement in politics will be a practical necessity because of its power during a democratic transition. But further, particularly in new and weak democracies, there is something of a tradeoff between allowing the military to supervise the political sphere (which may restrict the domain of democracy, could inhibit party-building, and raises some risk of a regression back to full military rule) and throwing the political order wide open to full competition (where unfettered democratic politics might sow the seeds of its own destruction).

Sam Issacharoff has recently categorized the ways in which “Fragile Democracies” might want to use courts and related institutions to restrict the domain of democratic contestation, in order to prevent democracy from destroying itself. The military might play a somewhat similar role. The military is, of course, much more dangerous than the courts, but it also has far more teeth. Indeed, in some of the countries where “militant democracy” constitutional conceptions have been most advanced, such as Turkey, the model worked because the courts were always backed by the power of the military.

This raises an important question: how might military power be best entrenched in a constitution to attain any benefits while avoiding costs? The question is not theoretical: it is being played out now in Egypt. Further, it lacks any easy answer; the best we can do here is to raise a brief typology.

In one class of provisions, proposed for example in the constitutional principles promulgated by the SCAF in Egypt, the military gets huge amounts of autonomy to set its own budget, to handle crimes and disciplinary matters internally, etc. It is hard to see how these kinds of provisions help to aid democratic development – some of these provisions might be necessary to buy military support for the transition, but some of them (like those taking military officials altogether outside of the civilian courts) also seem to raise significant risks.

A second common set of provisions gives military personnel a kind of guardianship role over the state, investing them with powers to protect the democratic order and the constitution. The vagueness of these sorts of clauses seems troubling; they appear to allow the military to intervene in politics in unpredictable ways that might hinder or reverse democratic development.

A third set of provisions, basically what Professor Varol calls “substantive entrenchment,” gives the military various kinds of direct political power, say to appoint members of a legislature, to staff a National Security Council that dispenses advice or makes policy on certain matters, or to exercise a direct veto over various matters. This strategy too poses significant risks: the military might choke off all development of a political sphere, stopping democratic political development from occurring. Or the uses of power by the military might appear to be too clumsy, leading to a premature ouster of it from power.

Finally, in a fourth set of provisions, the military seeks to entrench its power by putting in place institutions, like constitutional courts and other counter-majoritarian institutions, that are staffed by relatively friendly actors. This was a piece of the “institutional entrenchment” strategy that Professor Varol shows occurred in Turkey; it also was a part of the military’s strategy during some democratic transitions in Latin America, most notably Chile. This type of institutional configuration might be particularly sensible in Egypt, given that the country already possesses a set of fairly high-capacity courts closely linked to the military. Of the various options surveyed here, this one seems to pose the fewest risks. The military stands in the background, lending credibility to the paper orders of the court or other body. Yet it remains somewhat outside the day-to-day political game, thus giving the political system some opportunity to mature. Further, institutions like courts might evolve towards a more limited, normal role as time goes on, thus giving the extraordinary constitutionalism appropriate for “fragile democracies” a built-in expiration date.

Indeed, all of these constitutional solutions are best thought of as temporary measures. We usually envision constitutions as highly durable, long-term instruments; that conception is untrue as applied to much of modern constitutionalism. But we have very little theory on the notion of temporary constitutional provisions. The Portuguese design, where a given provision is made unamendable for some set period, or related notions, such as lowering the threshold for amendment over time, might be appropriate in these circumstances.

The musings here tackle just two of the rich questions that I think are raised by Professor Varol’s important contribution. He notes that this article is the opening piece in a substantial personal research agenda; I would go further and argue that it is a signpost towards theoretically-rich and empirically urgent research for the fields of comparative constitutional law and politics.