HILJ Symposium: Ozan Varol Responds

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.]

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.

I would like to thank David Landau, William Partlett, Brad Roth, and Joel Colón-Ríos for their kind words and insightful comments about my article, The Democratic Coup d’Etat, 53 Harv. Int’l L.J. 291 (2012). These scholars have been instrumental in enhancing our knowledge of constitutional transitions, and I very much appreciate the time they have taken to share their thoughts on my article. In this reply, I will first provide a brief summary of the article’s central claims and then respond individually to the comments.

The article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy.

This article challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.

Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. Throughout the democratic transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. In democratic coups, therefore, the people and the military seem to strike a Faustian bargain where the military extracts a price in the form of constitutional entrenchment in exchange for deposing a dictatorship and turning power over to the people. The article uses three comparative case studies to illustrate the democratic coup phenomenon and the constitutional entrenchment thesis: (1) the 1960 military coup in Turkey, (2) the 1974 military coup in Portugal, and (3) the 2011 military coup in Egypt.

Professor David Landau’s response to the article raises two important points. He notes that terms like “coup” and “revolution” are politically charged and that we might be better served by focusing on the various dimensions of democratic transitions, rather than on terminology. I sympathize with his concerns and agree that, in the long term, we should abandon value-laden terms such as “coup d’état” (French for “stroke of the state”), which automatically evoke hostile reactions. But the erosion of this vocabulary needs to start somewhere. My aim in conceptualizing “a democratic coup,” a seeming oxymoron, is to do just that and demonstrate that military coups are not uniformly negative events. Just like a revolution—a term that tends to generate a more positive reception than a coup—coups may be instrumental in deposing a dictatorship and establishing a democratic regime. I share Professor Landau’s hope that our focus will eventually shift away from politically charged terminology to transitional variables that offer more promise in explaining the occurrence and outcome of these multidimensional events that tend to defy neat legal categories.

Professor Landau’s response raises another salient question that I am exploring in a forthcoming article titled The Military as the Guardian of Constitutional Democracy, 50 Colum. J. Transnat’l L. __ (forthcoming Summer 2013). In his response, Landau argues that “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.” I agree. In The Military as the Guardian of Constitutional Democracy, I challenge the prevailing orthodoxy in constitutional theory that a constitutional role for the military in an emerging democracy always hinders democratic progress. In brief, I argue that certain militaries (what I call “interdependent militaries”) can play, and have played, a democracy-promoting role in the initial phases of a transition from autocracy to constitutional democracy. The interdependent military is ordinarily composed of citizen-soldiers, responsive to international democratic norms, and focused on external, not internal, threats. I argue that the interdependent military is capable of providing institutional support to a nascent democracy because its institutional self-interests often align with the conditions that Madison and others have identified as conducive to the genesis of a constitutional democracy: institutional stability, political pluralism, and national unity. Using comparative case studies, I explore how the interdependent militaries’ self-interested actions have counter-intuitively promoted democratic development and constrained unilateral exercises of power in emerging democracies, which Professor Landau has persuasively argued is the central challenge of constitution-making in a separate article titled Constitution-Making Gone Wrong, Ala. L. Rev. (forthcoming 2012).

William Partlett’s response expands on these theoretical questions and places them within the concrete context of post-communist Europe and, most recently, Egypt. For example, Partlett notes the role that the Supreme Constitutional Court and the military have played in curbing the rise of political Islam in Egypt. I largely agree with Partlett’s observations, but I would argue that the military’s actions are best understood, not as an ideological reaction to political Islam, but through a self-interest paradigm. In fact, in the immediate aftermath of the 2011 coup that toppled the Hosni Mubarak regime, the Egyptian military’s interests were aligned to a large extent with those of the Muslim Brotherhood. From the military’s perspective, the Muslim Brotherhood promised stability after a tumultuous revolution and a turbulent transition period, and the military and the Brotherhood appeared to be in a tacit partnership that would allow the military to maintain order and protect its economic and social privileges. As the democratic transition progressed and the Muslim Brotherhood grew to be overly ambitious and opportunistic, the military’s interests shifted. Instead of supporting the Brotherhood’s electoral prospects, the military began to oppose them. Concerned with the growing threat to its social and economic interests from the Brotherhood, the military launched a campaign, aided by the judiciary, to ensure that the Constituent Assembly and the parliament were not dominated by the Brotherhood and meaningfully represented opposition interests. The military’s protection of its self-interests, therefore, also had the counter-intuitive by-product of promoting political pluralism and effective opposition in Egypt. These recent events in Egypt seem to lend strong support to the arguments that Partlett has convincingly made in a separate article, Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution Making, Brook. J. Int’l L. (forthcoming 2012), where he argues that old regime institutions—even those associated with the deposed regime—can play an important role in constraining the power of charismatic leaders who may attempt to use the newly established democratic processes to undermine democracy.

I largely agree with Professor Brad Roth’s response, so I will focus my reply on one area of slight disagreement. In his response, Professor Roth notes, quite correctly, that the article adopts Samuel Huntington’s definition of democracy and defines democracy in procedural terms. In other words, the article argues that a coup is democratic if it deposes an authoritarian government and establishes a regime in which leaders are selected through free and fair elections. The article acknowledges that it does not make a normative judgment on the quality of the democracy that emerges out of a democratic coup and expressly reserves that question for future projects. My forthcoming article, The Military as the Guardian of Constitutional Democracy, 50 Colum. J. Transnat’l L. __ (forthcoming Summer 2013), is the first piece of that research agenda.

Although I agree with Professor Roth that democracy has both procedural and substantive components and the observance of procedural norms does not necessarily lead to the establishment of a “legitimate” or “constitutional” democracy, I place more value on process than Professor Roth does. After all, the establishment of democratic procedures is the first important step for the genesis of a constitutional democracy. Constitutional democracies are not ordinarily created in one fell swoop and without democratic process, there can be no democratic substance. Democratic procedures are “The Beginning,” as the headline of an Egyptian newspaper aptly observed on the first day of the parliamentary elections there. And as Professor Roth notes in his response, the creation of democratic procedures by coup leaders itself can “set in motion democratic dynamics that they cannot contain.”

Further, the procedural right to elect leaders through free and fair elections itself can have significant substantive consequences. As the article explains on page 306 (footnotes omitted):

Even though democratically elected leaders can abuse and have abused individual liberties, the correlation between democracy and individual liberties is very high. Elected leaders use far less violence on their citizens than authoritarian leaders. In democracies, there are also fewer incentives to resort to violence because accepted avenues exist for the expression of dissent, including the ballot box, where voters may sanction government officials by voting them out of office. Popular participation in elections therefore not only encourages individual autonomy, but also deters government incursions into individual rights. As the U.S. Supreme Court put it, the right to vote is a “fundamental right, because preservative of all other rights.”

Despite the salience of democratic processes, I agree that the ultimate goal is the establishment of a “constitutional” or “liberal” democracy—a regime where political leaders are not only elected through free and fair democratic procedures but also respect the legal-constitutional boundaries that restrain them. How a procedural democracy becomes and remains a constitutional democracy is a truly difficult question that I will continue to explore in future projects.

Finally, in his response, Joel Colón-Ríos offers a number of comments, and I will respond to what I see as his four primary arguments. First, Colón-Ríos criticizes the article’s adoption of Samuel Huntington’s procedural approach to democracy and argues that the article “does not engage in an open defence of this (low-intensity) conception of democracy.” In fact, the article expressly defends that choice on pages 305-306, noting that “[t]he use of Huntington’s dichotomous, procedural approach suits the framework in this Article, which draws a distinction between coups that result in free and fair elections and those that do not” and explaining in some detail why “the procedural right to participate in free and fair elections has important substantive values, especially in societies that have long been denied that right.” (see also the section I quoted above from the article in response to Professor Roth’s comments).

Second, Colón-Ríos argues that a military coup itself is not “democratic” under a set of criteria that he delineates in his response. The article expressly acknowledges and responds to that point on page 299:

I do not mean to suggest that a military coup can ever be democratic in the traditional sense of that word. Free and fair elections are the sine qua non of democracy, and the military assumes power not through elections, but by force or the threat of force during a coup. All coups, including what I call the “democratic coup,” therefore have nondemocratic features. My argument here is that not all coups are equally antidemocratic; some coups are distinctly more democracy-promoting than others because they depose an authoritarian or totalitarian regime and transfer power to democratically elected leaders.

Third, Colón-Ríos criticizes as insufficient the “relative lack of attention” in the article to “the democratic or non-democratic nature of the constitution-making process” following a democratic coup. In fact, the article dedicates Part II (spanning 15 pages) to that precise question and explains in detail why “the military is ordinarily unaccountable for many of its actions during the democratic transition process” (p.317) because the traditional mechanisms for democratic accountability—screening, monitoring, and sanctioning—are ordinarily unavailable under military rule. The article then goes onto show theoretically and through empirical case studies that cover over 20 pages how that democratic unaccountability allows the military to behave as a self-interested actor and entrench its institutional preferences into the new constitution drafted during the transition process. Relatedly, Colón-Ríos asserts the article neglects to recognize that “[i]t makes a world of difference if the new constitution is created by the military, by a group of handpicked persons, or by an elected constituent assembly.” To the contrary, the article discusses that issue under the “procedural entrenchment” thesis, examining, theoretically and empirically, how “the military may design the transition process so that it produces a substantive constitutional outcome favorable to the military.” (p. 320-22). In fact, the article goes a step beyond what Colón-Ríos suggests it fails to do, and explains how even the timing and sequence of the events that take place during the transition process may influence the nation’s constitutional future. (p. 321).

Fourth, Colón-Ríos argues, on a more substantive level, that if the process that leads to the establishment of a democratic regime is undemocratic (to be judged by three criteria he identifies), then the resulting regime is also undemocratic. According to Colón-Ríos, a regime can be democratic only if it meets the following three criteria: (1) “the constitution emerges from a participatory and open process”; (2) “the constitution respects the rights and institutions that allow democracy to take place”; and (3) “the constitution itself can be changed democratically.” He makes it clear that the later amendment of the constitution does not cure an imperfect drafting process; the initial constitution must also result from a “participatory and open process.” If it fails to meet any of these three criteria, the new constitution, according to Colón-Ríos, is undemocratic, “regardless of the system of government it creates.”

If Colón-Ríos is correct, democracy is an exceedingly rare phenomenon. For example, under his definition, the United States is not a democracy because its constitution-making process was hardly “participatory and open”—a prerequisite, according to Colón-Ríos, to the establishment of a democracy. The proceedings of the Constitutional Convention were secret and the drafters were hardly representative of the population at large. Likewise, Portugal and Turkey are also not democracies under Colón-Ríos’s definition because it was a military coup that toppled authoritarian regimes in both countries and established the democratic processes currently in place via an opaque constitution-making process that the military leaders controlled. As William Partlett further observes in his response, “[t]wo 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” and adopted such constitutions only after the “vicissitudes of political and economic change had settled down.”

Colón-Ríos’s approach suffers from its unyielding focus on the founding moment and the desire to create an ideal constitution-making process that will lead to the swift creation of an ideal constitution at that moment. Colón-Ríos’s desire to “get things right” at the founding is understandable, but his approach fails to recognize that any initial democratic defects can be cured later on through, for example, the replacement or revision of the constitution to remove any anti-democratic elements. Portugal’s removal in 1982 of the military’s constitutional entrenchment is a good example, as are the revisions in the past decade to the Turkish Constitution to curb the powers of the military-dominated National Security Council.

In the end, Colón-Ríos expects perfection from inherently imperfect democratic transitions. During a democratic transition, decades-old autocratic governance structures must be torn down and replaced with democratic ones. The resulting power vacuum is ordinarily marked by conflict and attempted power-grabs by various political factions and self-interested institutions, including the military, as described in the article. Emerging democracies tend to lack an ethos of political pluralism, stable legal and political institutions necessary to support a competitive democracy, and effective enforcement mechanisms designed to ensure that political actors do not misbehave. In many democratic transitions, it is therefore prohibitively difficult to create the ideal constitution-making conditions that Colón-Ríos argues are preconditions to the establishment of a democracy.

What is more, in the vast majority of cases, the choice is between a turbulent and imperfect transition process to democracy or the autocratic status quo. Faced with that choice, many would opt for the former, rather than the latter, as the tragic events in Syria continue to exemplify. Indeed, were it not for the Egyptian military’s “undemocratic” seizure of power with the threat of force from the autocratic Hosni Mubarak regime in February 2011, Egypt might very well have been a Syria today. Instead of quixotically attempting to impose perfection on democratic transitions, we would be better served by exploring how these nations can become and remain democracies, despite any democratic deficits that are bound to exist in the transition process.

Many thanks again to David Landau, William Partlett, Brad Roth, and Joel Colón-Ríos for their thoughtful comments on my article. I look forward to future discussions with them as we continue to analyze the difficult and timely questions about democratic transitions and constitutional change.