Varol 9.26.11

8/3/2019 Varol 9.26.11

1/75

8/3/2019 Varol 9.26.11

2/75

THE DEMOCRATIC COUP DTAT 2

DRAFT (September 5, 2011)

entrenchment of its policy preferences in the democratic constitution that results from

the transition process. Constitutional entrenchment may occur in at least three ways: procedural, substantive, and institutional. First, the military may setup the

democratic transition process so that the resulting democratic constitution favors themilitary. Second, the military may reserve substantive constitutional powers for itself inthe democratic constitution. Third, the military may establish counter-majoritarian

institutions in the democratic constitution that continue to enforce the militarys policypreferences even after the military relinquishes power to democratically elected leaders.

INTRODUCTION

Power tends to corrupt, and absolute power corrupts absolutely.-- Lord Acton, 1887

On February 11, 2011, the Egyptian Armed Forces seized power fromPresident Hosni Mubarak in a coup dtat. The coup responded todetermined protests over eighteen days by hundreds of thousands ofEgyptians demanding the ouster of the autocratic and corrupt Mubarakregime and its replacement with democracy. The demonstrations werelargely non-ideological and the protestors hailed from all facets of theEgyptian society. Women and men, Muslims and Christians, secularists andIslamists, the poor and the wealthy all joined hands in the aptly named al-Tahrir, or Liberation, Square in a call for freedom and democracy after

decades of rule by dictators.

1

And that call was answered, not by a foreignpower, but by the countrys own military, which seized power from Mubarakand assumed control of the government.

Mubaraks fall sparked a wave of celebrations around the world. Asthe touchstone for change in the Arab world,2 Egypt gave hope to theoppressed people of Libya, Syria, Yemen, and beyond to revolt against their

1 Robert F. Worth,In Cairo, A Room with a View of the Revolution, N.Y.TIMES, March 4, 2011,available athttp://www.nytimes.com/2011/03/06/magazine/06YouRHere-t.html; David D.Kirkpatrick, Egypt Erupts in Jubilation as Mubarak Steps Down, N.Y. TIMES, Feb. 11, 2011,available athttp://www.nytimes.com/2011/02/12/world/middleeast/12egypt.html?

pagewanted=all (This is a revolution for all Egyptians; there is no room for a single groupsslogans, not the [Muslim] Brotherhoods or anybody else. (quoting Mohamed Saad el-Katatni, a spokesman for the Muslim Brotherhood)).2 Editorial, Egypts Unfinished Revolution, N.Y. TIMES, March 24, 2011, available athttp://www.nytimes.com/2011/03/25/opinion/25fri2.html?ref=middleeast.

8/3/2019 Varol 9.26.11

3/75



oppressors. Credit for the successful overthrow of the Mubarak regime went

in large part to the Egyptian Armed Forces, which refused to fire on theprotestors during the demonstrations and stepped in to assume control of thegovernment when Mubarak stubbornly refused to relinquish his stronghold.President Barack Obama laid heaps of praise on the Egyptian military forhaving served patriotically and responsibly as a caretaker to the state andexpressed his confidence that the military would ensure a transition that iscredible in the eyes of the Egyptian people.3

The Egyptian military coup breaks the traditional mold of militarycoups. After all, military coups are ordinarily perpetrated by power-hungrymilitary officers in South America and Africa seeking to depose an existing

regime to rule the nation indefinitely.

4

The term military coup dtatFrenchfor stroke of the statebrings to mind coups staged by military officers tothe likes of Colonel Muammar Gaddafi and General Augusto Pinochet.Through corrupt backroom plots, military officers in traditional militarycoups abuse public trust and overthrow the existing regimenot to bringabout structural regime changebut to concentrate power in their own handsas dictators.5

The assumption that all military coups fit within this traditional, anti-democratic mold pervades the literature. According to the prevailing view inthe literature, a democratic military coup is an oxymoron. For example,Richard Albert recently wrote that by definition, a coup cannot bedemocratic.6 Military coups, according to Professor Albert, constitute anaffront to the democratic ideals of stability, consent, and legitimacy and areunavoidably motivated by self-interested, inward-looking, or profit-seekingreasons.7 Andrew Janos likewise has argued that a coup dtat is the

3 Steve Benen, Obama: Egyptians Bent the Arc of History Toward Justice Once More,WASHINGTON MONTHLY, Feb. 11, 2011, http://www.washingtonmonthly.com/archives/individual/2011_02/027961.php.4 Jonathan M. Powell & Clayton L. Thyne, Global Instances of Coups from 1950 to 2010: A New

Dataset, 48 J.PEACE RESEARCH 249, 255 (2011) (Coups have been most common in Africa

and the Americas . . . .).5SeeRichard Albert, Democratic Revolutions, DENVERL.REV. at 22 (forthcoming), available athttp://ssrn.com/abstract=1808021 (Apr. 12, 2011).6Id. at 20.7Id.

8/3/2019 Varol 9.26.11

4/75



reversal of the process of revolution.8 Other examples of this academic view

abound.

9

Federal law in the United States also reflects the same disdain formilitary coups by prohibiting any financial assistance to the government ofany country whose duly elected head of government is deposed by militarycoup or decree.10

In this Article, I challenge this conventional intellectual frameworkand its underlying assumptions. I argue that although all military coups haveanti-democratic features, not all coups are equally anti-democratic. Rather,some military coups are distinctly more democratic than others because theyrespond to a popular opposition against an authoritarian or totalitarianregime and overthrow that regime for the limited purpose of transitioning the

state to a democracy and facilitating the fair and free elections of civilianleaders. Drawing on extensive fieldwork that I conducted in Egypt andTurkey during the summer of 2011, this Article calls attention to the largelyneglected phenomenon of a democratic military coup, describes its typical

8 Andrew C. Janos, The Seizure of Power: A Study of Force and Popular Consent, ResearchMonograph No. 16, Center of International Studies, Woodrow Wilson School of Public andInternational Affairs 36 (1964), cited in Albert,supra note 5, at 20.9 See, e.g., Gregory H. Fox, Internationalizing National Politics: Lessons for InternationalOrganizations, 13 WIDENERL.REV. 265, 265 (2007) (noting that the international communityhas universally condemned military coups and has supported democracy as increasinglycentral to a variety of traditional legal concerns);Venkat Iyer, Restoration Constitutionalism inthe South Pacific, 15 PAC. RIM L. & POLY J. 39, 39 (2006) (noting that coups often lead toregimes antithetical to freedom and democracy);Stephen E. Gottlieb, Does What We Know

About the Life Cycle of Democracy Fit Constitutional Law, 61 RUTGERS L. REV. 595, 604 n. 43(2009) (noting that a coup is a non-democratic form of regime change); Enrique Lagos &Timothy D. Rudy, The Third Summit of the Americas and the Thirty-First Session of the OASGeneral Assembly, 96 AM. J. INT'L L. 173, 175 (2002) (noting that a coup constitutesundemocratic behavior); Tayyab Mahmud, Jurisprudence of Successful Treason: Coup Dtat &Common Law, 27 CORNELL INTL L.J. 49, 51 (1994) (Since an incumbent regime forms partof the constitutional order, its extra-constitutional overthrow is not only illegal but amountsto the high crime of treason.); Salvador Maria Lozada, The Successful Appeal from Ballots to

Bullets: The Herculean Hardships of Judicializing Politics in Latin America, 25 N.Y.U.J.INT'L L.&POL. 123, 125 (1992) (The coup d'tat extinguishes democratic government and establishes amilitary dictatorship, which implies the disappearance of legislative power. From then on thelaws are no longer made by peoples representatives, elected politicians under the influence

and control of their fellow citizens. Now, the military makes the laws with the help of civiliancollaborators recruited among the conservative, opportunistic, and reactionary elements ofthe population.).10 See The Consolidated Appropriations Act of 2010, P.L. 111-117, Title VII, Division F,Section 7008.

8/3/2019 Varol 9.26.11

5/75



characteristics, and examines its constitutional consequences using three

comparative case studies: (1) the 1960 military coup in Turkey; (2) the 1974military coup in Portugal; and (3) the 2011 military coup in Egypt.

Although the academia once considered military coups to be a hottopic, scholarship on coups has significantly decreased in recent years.11 Astwo authors recently noted, we continue to lack a basic understanding ofhow coups might have a broad impact on a range of topics.12 That dearth ofscholarly understanding includes the militarys role in constitutional design.13The military thus continues to remain the least studied of the factorsinvolved in new democratic movements.14

This scholarly shortcoming is even more pronounced for democraticmilitary coups, which have been neglected by the literature. The concept of ademocratic coup, its aims, and its constitutional consequences, remain foreignfor academics and politicians alike. We are therefore unable to grasp andpossibly address, ex ante, the potential adverse effects a democratic militarycoup may have on the resulting democratic constitution.15 Especially giventhe recent high-profile coup in Egypt, there is an urgent need for academicattention to the concept and constitutional consequences of a democraticmilitary coup. This Article is an attempt to fill that scholarly void.

In this Article, I argue that democratic coups commonly feature sevenattributes: the military coup is staged against an authoritarian or totalitarianregime; the military responds to a popular opposition against that regime; theauthoritarian or totalitarian leader refuses to step down in response to thepopular opposition; the coup is staged by a military that is highly respectedwithin the nation, ordinarily because of national conscription; the militarystages a coup with the objective of transitioning the authoritarian ortotalitarian government to a democracy; the military facilitates free and fair

11 Powell & Thyne, supra note 4, at 249; see also Mahmud, supra note 9, at 52 (noting that thelast article on judicial responses to coups dtat was published in 1986).12 Powell & Thyne,supra note 4, at 249.13See, e.g., Mahmud, supra note 9, at 103 (A coup dtat, on the other hand, typically aims

only at capturing political power extra-constitutionally. Only that part of the Constitutionwhich bears on the formation of political organs of the state is subverted.).14SeeALFRED STEPAN,RETHINKING MILITARY POLITICS at xi (1988).15 See JUAN J. LINZ & ALFRED STEPAN, PROBLEMS OF DEMOCRATIC TRANSITION ANDCONSOLIDATION 67 (1996).

8/3/2019 Varol 9.26.11

6/75



elections of civilian leaders within a short span of time; and the coup ends

with the transfer of power to democratically elected leaders.During the democratic-transition process in a democratic coup, the

military enjoys a virtual monopoly on coercive power. That monopoly onpower provides the military ample leeway to act as a self-interested agent andmaximize its welfare. In this Article, I focus on one type of welfaremaximization and analyze, by employing a principal-agent framework, howthe military engages in the constitutional entrenchment of its policypreferences in the resulting democratic constitution.16 Constitutionalentrenchment may occur in at least three ways: procedural, substantive, andinstitutional. First, the military may setup the democratic transition process

so that the resulting democratic constitution favors the military. Second, themilitary may reserve substantive constitutional powers for itself in thedemocratic constitution. Third, the military may establish counter-majoritarian institutions in the democratic constitution that continue toenforce the militarys policy preferences even after the military relinquishespower to democratically elected leaders.

The Article proceeds in three parts. Part I sets forth the theory of ademocratic military coup dtat by analyzing its typical characteristics. Part IIlays out the constitutional-entrenchment thesis using a principal-agentframework. In Part III, I apply the democratic-coup theory and theconstitutional-entrenchment thesis to three case studies. Part III.A examines

16 The literature has frequently applied the principal-agent framework to analyze therelationship between the citizens/voters (the principal) and politicians (the agents). See, e.g.,TIMOTHY BESLEY, PRINCIPLED AGENTS?: THE POLITICAL ECONOMY OF GOODGOVERNMENT 36-38 (Oxford Univ. 2006); HANS GERSBACH, DESIGNING DEMOCRACY:IDEAS FORBETTERRULES 13-14(2005) (advocating a combination of incentive contracts andelections to motivate politicians to pursue socially desirable down-up policies); DAVIDAUSTEN-SMITH & JEFFREY S. BANKS, POSITIVE POLITICAL THEORY II: STRATEGY ANDSTRUCTURE 326 (2005); WILLIAM H.RIKER &PETER C.ORDESHOOK,AN INTRODUCTIONTO POSITIVE POLITICAL THEORY (1973); Robert J. Barro, The Control of Politicians: An

Economic Model, 14 PUBLIC CHOICE 19 (1973); John Ferejohn, Incumbent Performance and Electoral Control, 50 PUBLIC CHOICE 5, 8 (1986); Terry M. Moe, The New Economics of Organization, 28 AM.J.POL.SCI. 739 (1984);Markus Muller,Motivation of Politicians and Long-Term Policies, 132 PUBLIC CHOICE 273 (2007). To my knowledge, however, the frameworkhas never been applied to examine the relationship between the citizens/voters and themilitary.

8/3/2019 Varol 9.26.11

7/75



the 1960 military coup in Turkey, Part III.B studies the 1974 military coup in

Portugal, and Part III.C examines the 2011 Egyptian military coup.I. THE THEORY OF ADEMOCRATIC COUP DTAT

The purpose of a military is to protect the state from internal andexternal threats.17 To achieve that purpose, the state must employ the militarywith the means to use coercive power via military equipment and personnel.18That capability for coercive force, though necessary to defend the nationagainst threats, also allows the military to turn its weapons on the very regimethat empowered its existence.19 In a seminal article on what he termed thecivil-military problematique, Peter Feaver succinctly summarized this

fundamental tension in maintaining a military within a civilian government:The very institution created to protect the polity is given sufficient power to become a threat to the polity.20 Although most nations employ legal andadministrative measures to keep the military subservient to the civiliangovernment, those measures are effective only insofar as the military choosesto follow them.21 When the military disregards those measures and unleashesits coercive power to topple the civilian government, the result is a coupdtata French expression for a stroke of the state.

The literature is rife with competing definitions for a coup dtat. Todate, the academic discussion has primarily centered on defining a coup in

terms of its targets, perpetrators, tactics, and success or failure.

22

Forexample, scholars disagree on whether the target of a coup is the entiregovernment or only the chief executive.23 Likewise, scholars have debatedwhether the perpetrator of a coup should be limited to the armed forces orinclude any part of the state apparatus (e.g., security services, civilian

17 Peter D. Feaver, Civil-Military Relations, 2 ANN.REV.POL.SCI. 211, 214 (1999).18Id.19 Id.; see also WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING ANDMAINTAINING A JUST POLITICAL ORDER 148 (2007) (For any political system, at leastpassive acceptance by the armed forces is an absolute precondition. If those who virtuallymonopolize violence instruments are ready to turn their weapons against a regime, that

regime will either conform to military demands or become a civil war victim.).20 Feaver,supra note 17, at 214.21Id.22 Powell & Thyne,supra note 4, at 250.23Id.

8/3/2019 Varol 9.26.11

8/75



members of the government, etc.).24 Scholars also disagree on whether the

coup must be illegal or legal,

25

whether the definition should include coupplots and rumors, as well as how success should be defined.26

The definitional morass in the existing literature has an importantshortcoming. The definitions focus solely on the processwith which the couptakes place. The literature thus reduces coups dtat to mechanical proceduralterms, while neglecting possible substantive components that focus on theobjectives and the outcome of the coup.27 This Part is an attempt to addressthis scholarly shortcoming by developing a theory for a democratic coup byfocusing primarily on the militarys objectives in staging the coup and theresulting change to the structure of the regime.

In staging a coup, the military may have a number of differentobjectives and outcomes in mind. I focus on two here. The first objective isespoused by the perpetrators of the typical coup, which, for ease of reference,I call the anti-democratic coup. In an anti-democratic coup, the objectiveof the military officers is to concentrate power in their own hands and rule thenation indefinitely as dictators. This type of coup typically brings about onlypersonified change, not structural or regime change.28 In other words, the

24Id. at 250-51.25Id. For example, Samuel Finers definition of a coup includes the militarys interventioninto political affairsregardless whether that intervention is legal or extra-legal. SeeSAMUEL

FINER,THE MAN ON HORSEBACK: THE ROLE OF THE MILITARY IN POLITICS 3 (1988). Incontrast, Jonathan Powell and Clayton Thyne restrict their definition to illegal attempts.Powell & Thyne, supra note 4, at 251. Under Hans Kelsens seminal theory of revolutionarylegality, the success of a coup determines its legality. SeeHans Kelsen, GENERAL THEORY OFLAW AND STATE 118 (Anders Wedberg trans. 1961) ([If the revolution] succeed[s], if the oldorder ceases, and the new order begins to be efficacious, because the individuals whose

behavior the new order regulates actually behave, by and large, in conformity with the neworder, then this order is considered as a valid order.); see also Mahmud, supra note 9, at 106-07; see id. at 90-91 ([N]othing succeeds like success. (internal quotation marks omitted)).For a criticism of Kelsens theory, see Albert,supra note 5, at 21-22.26 Powell & Thyne, supra note 11, at 251. Under the prevailingalbeit arbitraryline drawn

by the existing literature, a coup is successful if the post-coup ruling arrangement remains inplace for at least a week. Id. (internal quotation marks omitted).27 Richard Albert recently addressed a similar problem in the context of revolutions. See

generallyAlbert, supra note 5. Professor Albert argues that the existing revolution theoriesmechanically focus on a revolutions procedural components, while lacking a normative lensthrough which to evaluate the purpose that a revolution serves. Id. at 8.28See id. at 23.

8/3/2019 Varol 9.26.11

9/75



politics leaders of the pre-existing regime are replaced with military officers,

but the form of the government and the political system remain unaltered.The only motivation of the military in an anti-democratic coup is self-interest,profit-seeking, or greed.29 Some of the most infamous examples of anti-democratic coups dtat include Muammar al-Gaddafis overthrow of theLibyan regime, General Augusto Pinochets ouster of the Chileangovernment, and Omar Hasan Ahmad al-Bashirs coup in Sudan.

But there is a second type of military coup, neglected in the existingliterature, where the objectives of the military are substantively different thanthe military in an anti-democratic coup. In this type of coup, the purpose ofthe military is to overthrow a totalitarian or authoritarian regimenot for the

purpose of indefinite personified changebut for the limited purpose oftransitioning the regime to a democracy and holding fair and free democraticelections within a short span of time. The end of this coup is marked by thetransfer of power by the military officers to democratically elected civilianleaders. For ease of reference, I call this the democratic coup.

Before I describe the typical characteristics of a democratic coup, threecaveats are in order. First, I do not mean to suggest that a military coup canever be democratic in the traditional sense of that word. Free and fairelections are the sine qua non of democracy.30 And the military assumespowernot via electionsbut by force or the threat of force during a coup.All coups, including what I call the democratic coup, therefore have anti-democratic features. My argument here is that not all coups are equally anti-democratic; some coups, for the reasons I discuss below, are distinctly moredemocratic than others.

Second, I do not address whether a democratic coup is desirable as anormative matter. In most cases, a military coup should be a desperate lastresort for overthrowing an authoritarian regime and transitioning the nationto a democracy. Even a democratic coup strikes a blow to stability and might

29SeeAlbert,supra note 6, at 19-20.30See LINZ &STEPAN, supra note 14, at 4; see also YOSSI SHAIN &JUAN J.LINZ,BETWEENSTATES: INTERIM GOVERNMENTS AND DEMOCRATIC TRANSITIONS 9 (1995) (As long asthose who hold power during the interim period do not organize themselves as a contendingparty and win a mandate in free and fair elections, they have no democratic legitimacy.).

8/3/2019 Varol 9.26.11

10/75



have potentially adverse constitutional consequences that prevent democratic

consolidation.Third, my focus here is on the typical attributes of a democratic coup

from the initial spark for the coup to the handoff of power to democraticallyelected leaders. I do not discuss whether the regime that results after themilitary hands over power to democratically elected leaders is democraticin the traditional sense of that word or whether the militarys entrenchment ofits policy preferences in the resulting constitution, which I discuss in the nextPart, prevents democratic consolidation. The answer to that question must beanalyzed on a case-by-case basis. For example, while some nations (e.g.,Portugal) are able to abolish the vestiges of a coup from their constitutions

relatively quickly, in other nations (e.g., Turkey), constitutional entrenchmentby the military may prevent democratic consolidation.

With these three caveats, how does one determine whether a militarycoup fits within the second, more democratic prototype described above? Ademocratic military coup typically features the following seven attributes: (1)the coup is tagged against an authoritarian or totalitarian regime; (2) themilitary responds to a persistent popular opposition against that regime; (3)the authoritarian or totalitarian regime refuses to step down in response to thepopular uprising; (4) the coup is staged by a military that is highly respectedwithin the nation, ordinarily because of national conscription; (5) the military

stages the coup with the objective of transitioning the authoritarian ortotalitarian government to democracy; (6) the military facilitates free and fairelections of civilian leaders within a short span of time; and (7) the coup endswith the transfer of power to democratically elected leaders.

First, a democratic coup seeks to overthrow a totalitarian orauthoritarian regime. In a totalitarian system, the ruling party has eliminatedalmost all political, social, and economic pluralism that existed pre-totalitarianism.31 The official party of the state has a virtual monopoly onpower that it exercises to further a unified utopian ideology.32 The politicalleaders of the ruling party govern the nation, usually charismatically, with

31 LINZ &STEPAN,supra note 14, at 40, 43.32Id.

8/3/2019 Varol 9.26.11

11/75



undefined limits on their authority and great vulnerability and

unpredictability for both members and non-members of the ruling party.

33

In an authoritarian regimewhich is a watered-down version of

totalitarianismthere is little or no responsible political pluralism.34 Theruling party often acts affirmatively, via legal or extra-legal means, to suppresspolitical opposition. Although an authoritarian regime lacks responsiblepolitical opposition, fairly extensive economic and social pluralism exists thatpre-dates the establishment of the authoritarian regime.35 The ruling leader orleaders often lack an elaborate and guiding ideology and exercise powerwithin ill-defined norms.36

Second, in a democratic coup, the military responds to a persistentpopular opposition against a totalitarian or authoritarian leader. That

opposition ordinarily takes the form of a popular uprising.37 A popularuprising, as I use that term here, refers to a massive gathering of citizens frommany facets of the society united by a common political causein thiscontext, the overthrow of the authoritarian or totalitarian regime.38 Citizensusually gather in a symbolic placee.g., al-Tahrir Square in Cairo orTiananmen Square in Beijingto call for the resignation of an autocraticleader and the ushering in of democracy.39 The gathering continues over aperiod of time and crowds grow in size, density, and fervor each day,indicating broad popular support for regime change.40 The citizens regard

themselves as the vanguard of a better future, one in which they control their

33Id.34Id. at 38, 43.35Id.36Id.37 The popular opposition, however, need not take the form of a popular uprising. Forexample, in the case of Portugal, there was no massive popular uprising against the regime,primarily due to the oppressive practices of the secret police that crushed any opposition

before it blossomed. The popular uprising came after the coup, when thousands poured intothe streets of Portugal to lend their support to the military officers who perpetrated the coup.

I discuss the Portugal coup infra Part III.B.38SeeRandolf S. David,People Power and the Legal System: A Sociological Note, in REFLECTIONSON SOCIOLOGY &PHILIPPINE SOCIETY 241, 242 (Randolf S. David ed. 2001).39See id.40See id.

8/3/2019 Varol 9.26.11

12/75



own destiny without the stronghold of an oppressive regime.41 They are

united by a common will for democracya will that has been denied to themat the ballot box. Although united by the common cause of democraticreform, the crowds typically lack a coherent blueprint for achievingdemocratic reform and rarely see far beyond the singular goal of theoverthrow or resignation of the autocratic leader.42

During the popular opposition, the citizens, lacking the coercive powerto effect regime change themselves, might expressly call upon the nationsmilitary to intervene. For example, the people and the army are one handwas a frequently invoked chant during the popular uprising that occurred inEgypt in early 2011 against the Mubarak regime.43 An Egyptian who took

part in the al-Tahrir protests described to me how the crowds erupted incelebration at the sight of the first military tank that entered the Square. Thecrowds knew that the military was there either to shield the protestors fromthe state riots police who had been firing live ammunition upon them, use theSquare as the initial stage of a coup intended effectuate regime change, or

both.44 Mohamed ElBaradei, former head of the International Atomic EnergyAgency and a well-known opposition leader in Egypt, expressly called for amilitary coup on his Twitter page: I ask the army to intervene immediatelyto save Egypt.45 Likewise, following the Portuguese coup in 1974, crowdsflocked to the streets to cheer on the military officers and a banner that readTHANK YOU, ARMED FORCES was unfurled in a soccer stadiumpacked with a crowd of 200,000.

The popular support for the coups in nations such as Egypt andPortugal also calls into question the prevailing view in the literature that a

41 See id.; Randolf David, The Third Time as Farce, PHILIPPINE DAILY INQUIRER, Apr. 29,2001, at A7; See Dante B. Gatmaytan, Its All the Rage: Popular Uprisings and Philippine

Democracy, 15 PAC.RIM L.&POLY J. 1, 29-30 (2006) (That public officials actually leaveoffice cannot make popular pressure for their resignation undemocratic. These popularuprisings are, at their core, a reflection of adherence to democratic principles.).42SeeGatmaytan, supra note 41, at 22.43 Kirkpatrick, supra note 1.44 See also Hosni Mubarak Resigns as President, ALJAZEERA.NET, Feb. 11, 2011 (noting thatEgyptian protestors were calling on the army to side with them and remove Mubarak).45 Anthony Shadid & David D. Kirkpatrick,Mubarak Refuses to Step Down, Stoking Revolts Furyand Resolve, N.Y. TIMES, Feb. 10, 2011, available at http://www.nytimes.com/2011/02/11/world/middleeast/11egypt.html.

8/3/2019 Varol 9.26.11

13/75



coup can never enjoy popular support. For example, Richard Albert has

argued that a coup is more than simply a revolution without popular support. . . . It is an arrogation of power by unlawful means.46 Likewise, DouglasLitowitz writes that a coup is a mere seizure of the state apparatus by therevolutionary party without popular support.47 Contrary to the prevailingview, when citizens are unable to effectuate structural regime changethemselves for lack of coercive power, they may express popular support for amilitary coup intended to do the same.

Third, in response to this sustained popular opposition, the autocraticleader remains defiant and refuses to relinquish power. The moment of finaltriumph awaited by the crowds does not come, at least not voluntarily. The

citizens thus must rely on another body capable of employing coercive forceor the threat of coercive forcee.g., a foreign power, the military, etc.tooverthrow the authoritarian or totalitarian regime.

Fourth, democratic military coups tend to happen in nations where themilitary is a highly respected institution, ordinarily because of mandatorynational conscription. The military forces are comprised primarily of sons,daughters, neighbors, relatives, and friendsnot by paid professionals. Afterdecades of national conscription, the military, in a very real sense, becomesthe society. The military earns a reputation as the only uncorrupt and pureinstitution impenetrable by the other arms of the corrupt and autocratic state

apparatus. Democratic coups also tend to pit the uncorrupt military againstthe corrupt state police. In a democratic coup, the military represents thepeople, and the state police represents the corrupt and autocratic regime. Forexample, during the 2011 Egyptian coup, the much-despised black-cladEgyptian riot police brutally opened fire on the protestors to end the protestsagainst the regime, whereas the military refused to fire on the protestors,instead shielding them from the riot police, and eventually staged a coupdtat to overthrow the Mubarak government.

Fifth, the military answers the peoples call for regime change andstages a coup with the objective of overthrowing the authoritarian or

totalitarian regime and transitioning the nation to a democracy. Theliterature assumes that the purpose of a coup dtat is to maintain continuity

46 Albert,supra note 5, at 20.47 Douglas Litowitz, Gramsci, Hegemony, and the Law, 2000 BYU L.REV. 515, 521 (2000).

8/3/2019 Varol 9.26.11

14/75



in the legal system and bring about only personified change in the political

leadership through the usurpation of political offices, and not structuralregime change.48 In fact, Edward Luttwaks seminal definition of a coupthe infiltration of a small but critical segment of the state apparatus, which isused to displace the government from the control of the remainderassumesthat a coup does not alter the governing structure of the state.49

In my view, that assumption is incorrect. The perpetrators ofdemocratic coups dtat intend to bring about structural regime change bytearing down an authoritarian regime to forge a path to democracy. Ofcourse, the transition to democracy does not happen simultaneously with thecoup. At the outset, the only change is to the leadership of the regimei.e.,

personified change. The unyielding autocratic leaders must necessarily bedethroned to transition the nation to democracy. Personified change becomesthe means with which the military achieves its ultimate purpose in ademocratic coupi.e., to facilitate the fair and free elections of civilians.

How does one determine whether the militarys objective is theestablishment of democracy and not, for example, the continuation of theexisting autocratic regime under a new set of leaders? The military oftenissues a statement after a successful coup dtat setting forth the objectives ofthe coup. If the military declares a purpose other than the establishment of ademocratic regime, the coup cannot be democratic. But coup leaders often

conceal their subjective, and potentially anti-democratic, motivations bycouching their objectives as the promotion of democracy and freedom.50 Andit is virtually impossible to know the exact subjective motives of the coupleaders.51

Here, the old adage that actions speak louder than words holds true.The seventh attribute of a democratic coup, discussed below, is that themilitary actually transfers power to democratically elected leaders. If thathandoff does not happen and the military perpetuates its rule, the stated

48See, e.g.,Albert, supra note 5, at 22-23 (noting that the purpose of a coup is to change the

hands controlling the state and to hijack it by commandeering the reigns of itsinstitutions); Mahmud,supra note 9, at 107.49SeeEdward Luttwak, COUP DTAT: APRACTICAL HANDBOOK 27 (1979).50 Powell & Thyne,supra note 11, at 252.51Id.

8/3/2019 Varol 9.26.11

15/75



democratic purpose for the coup was likely a sham and the coup cannot be

democratic. The statement of a democratic objective for the coup is thus anecessarybut not sufficientcondition for a democratic coup.

Sixth, the military holds fair and free elections of democratic leaderswithin a short span of time. As Juan Linz and Alfred Stepan have noted, thestrongest democratic countervailing power to the nondemocratic dynamic ofan interim government is free elections with a set date.52 The promise ofelections presupposes a democratic regime in formation.53 A fixed date forelections is also necessary to create a new marketplace for democratic politicalactors, organizations, and institutions.54 Elections also provide somelegitimacy to the interim military government. By setting a fixed date for

elections, the temporary military government acknowledges the limited natureof its role and signals that its term is, in fact, temporary.

One of the militarys first priorities in a democratic coup is therefore toset a quick date for elections and to serve as a relatively neutral caretaker forthose elections.55 As a neutral caretaker, the military does not repress the pressor use intimidation or fraud to rig the elections. The military also allowspolitical parties to freely organize and participate in the elections, except thepolitical party associated with the deposed authoritarian or totalitarianregime. In most cases, that party is dissolved by the military junta or the

judiciary following the coup and therefore does not participate in thedemocratic electionsat least not under the same name.

In democratic coups, elections tend to happen within a short span oftimeusually one to two years.56 A military determined to transfer power to

52 LINZ & STEPAN, supra note 15, at 120; see also GIUSEPPE DI PALMA, TO CRAFTDEMOCRACIES: AN ESSAY ON DEMOCRATIC TRANSITION 85 (1990) (arguing that swiftelections during the transition process tend to curb chaos and even when variouslythwarted, confined, manipulated, or just not in the cards, once they are called, elections canstill energize and possibly protect democratization beyond the hopes or fears, and indeed

beyond the understanding, of the principal actors).53SeeThomas C. Bruneau,From Revolution to Democracy in Portugal: The Roles and Stages of the

Provisional Governments, in SHAIN &LINZ,supra note 30, at 152.54 LINZ &STEPAN,supra note 14, at 120.55See id. at 71.56Cf. SHAIN &LINZ,supra note 30, at 8 n.16 (Provisionality in our work . . . begins with theexplicit promise of transitional regimes to hold free and contested elections within areasonable frame of timeup to two years.).

8/3/2019 Varol 9.26.11

16/75



democratically elected leaders typically wants to get out of the unfamiliar

business of governing a country and get back to what it knows bestdefending the nation from internal and external threats. During the transitionperiod, a number of housekeeping tasks necessary to holding free and fairelections may occur. For example, the military may create the requisitepolitical infrastructure for political parties to organize and free and fairelections of democratic leaders to take place (e.g., the formation of an electioncommission, the enactment of election laws and regulations, etc.). Themilitary may hold elections for a constituent assembly to draft a democraticconstitution before parliamentary or presidential elections, or itself handpick agroup of persons to draft a new constitution. A referendum to ratify the newconstitution might take place before the elections of democratic leaders. But

regardless of what events transpire during the transition process, the militarydoes not attempt to perpetuate its time in power and stays in power no longerthan necessary to transition the nation to democracy.

Seventh, following fair and free elections, the military promptlytransfers power to democratically elected leaders. The military does not alteror void the election results and ensures that the results are promptly certified.The military then hands power to the leaders selected by the peopleregardless of their identities and regardless whether their policy preferencesare in line with those of the military.

* * *For the first time in the literature, this Part began to develop a theory

of a democratic coup dtat by calling attention to that largely neglectedphenomenon and outlining its seven typical characteristics. As the next Partshows, however, what begins as a democratic coup may have anti-democraticconsequences. Under the constitutional-entrenchment thesis discussed in thenext Part, the military, during a democratic coup, acts as a self-interestedagent and engages in the entrenchment of its own policy preferences in theresulting democratic constitution.

8/3/2019 Varol 9.26.11

17/75



II. THE CONSTITUTIONAL-ENTRENCHMENT THESIS

It is always dangerous for soldiers, sailors, or airmen to play at politics.They enter a sphere in which the values are quite different.

-- Winston Churchill

Following a democratic coup, a transitory period follows during whichthe military leadership rules the country as part of an interim or provisionalgovernment. During the transition period, the military must oversee anumber of housekeeping tasks before democratic elections may be held. Ifocus on one task in this Part: the preparation of a new constitution to replace

the constitution that governed the authoritarian or totalitarian regime.

57

In drafting a new constitution, the military leadership has three

primary options. First, it can reinstate a previous democratic constitution thatgoverned the nation before the introduction of totalitarianism orauthoritarianism.58 Second, the leadership may amend the existing non-democratic constitution to eliminate the autocratic elements and introducenew democratic governing structures.59 Third, the military may scrap thenon-democratic constitution and rewrite a new constitution with or withoutthe aid of a democratically elected and independent constituent assembly.60In addition to the first three options, if the military chooses to suspend the

57 The military also has the option of retaining the authoritarian or totalitarian constitutionwithout altering it. The military is unlikely to opt for that option in a democratic coup, whichis aimed at structural regime change and the abolishment of the authoritarian components ofthe existing regime. In contrast, the leaders of an anti-democratic coup are more likely toretain the existing authoritarian constitution and the attendant autocratic political and legalstructures since their aim is to concentrate power in their own hands and rule the nationindefinitely as dictators.58SeeLINZ &STEPAN,supra note 14, at 83. Although the restoration of a previous democraticconstitution avoids a potential stalemate over the drafting of new constitutional provisions, itpresents two primary problems. Id. First, if the nation has undergone significant changesduring the authoritarian regime, a previous democratic constitutional arrangement may notreflect existing societal norms and desires. Id. Second, the previous democratic constitution

may have been responsible, at least partially, for the breakdown of democracy and theintroduction of autocracy. Id. If that is the case, it might be more desirable start anew with anew and improved constitution less susceptible to democratic breakdown. See id.59Id.60Id.

8/3/2019 Varol 9.26.11

18/75



pre-existing authoritarian constitution, it may also draft an interim

constitution that fills the constitutional void during the transition period.In this Part, I argue that if the military chooses to draft an interim

constitution, amend the existing non-democratic constitution, or rewrite anew constitution, it engages in the constitutional entrenchment of its policypreferences. Before explaining how constitutional entrenchment works, I firstdiscuss what makes constitutional entrenchment possible during the transitoryperiod. This is a classic case of the principal-agent problem. Section A setsout the principal-agent framework and describes its application in a closelyanalogous contextthe relationship between politicians and the electorate.Section B then applies the principal-agent framework to describe the

conditions that make it possible for the military to act as a self-interestedagent during the transition process following a democratic coup and why thetraditional methods for reducing the principal-agent problem in democraticpolitics are generally unavailable during military rule. Section C sets out theconstitutional-entrenchment thesis and explains how the military, as a self-interested agent, engages in the constitutional entrenchment of its policypreferences in the resulting democratic constitution.

A. The Principal-Agent Problem in Democratic Politics

In simple terms, a principal-agent relationship is an agreement under

which the principal engages another person, the agent, to perform a service onthe principals behalf by delegating some decision-making power to theagent.61 As relevant here, the principal may employ an agent because theagent enjoys a comparative advantage on a task (e.g., specialized knowledge,manpower, etc.).62 The formation of a principal-agent relationship may beexpress or implied through the conduct of the parties.

There is no guarantee, however, that the agent, once employed by theprincipal, will pursue the principals best interests or do so efficiently.63Conflicts of interest and information asymmetries between the agent and theprincipal cause agency problems, which deter the agent from acting in the best

61 Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, AgencyCosts, and Ownership Structure, 3 J.FINAN.ECON. 305 (1976).62 Moe,supra note 16, at 756.63Id. at 756.

8/3/2019 Varol 9.26.11

19/75



interests of the principal.64 During the principal-agent relationship, the agent

will thus tend to follow her own interests (e.g., power, security, prosperity,etc.) and will benefit the principal only insofar as the incentive structure of therelationship renders such behavior advantageous.65

The relationship between politicians and citizens is frequentlycharacterized in the literature in principal-agent terms and provides a closeanalogy to the relationship between the military and the citizens during ademocratic transition period.66 In democratic politics, the principals are thecitizens and the politicians their agents.67 And politicians, like all otheragents, are self-interested individuals.68 As early as 1742, David Hume wrotethat in contriving any system of government and fixing several checks and

controls of the constitution, every man ought to be supposed a knave and tohave no other end, in all his actions, than private interest.69

In more recent seminal works, Robert Barro and John Ferejohn haveconstructed theories of political behavior on the assumption that politiciansare self-interested agents. For example, in developing an economic model forthe control of politicians, Professor Barro assumes that the public officeholderacts to advance his own interests, and these interests do not coincideautomatically with those of his constituents.70 Likewise, ProfessorFerejohns model of incumbent performance and electoral control is basedupon the possibility that the politicians preferences may diverge from thoseof his constituents and that he may therefore choose policies at variance withhis platform.71 Professor Ferejohn assumes that officeholders desirereelection in order to take advantage of the perquisites of office as well as topursue their own ideas about policy.72

64Id. at 761.65Id. at 756.66Seeauthorities citedsupra note 16.67See, e.g., Moe,supra note 16, at 765; Ferejohn,supra note 16, at 8.68 Ferejohn, supra note 16, at 38-39.69 DAVID HUME,OF THE INDEPENDENCY OF PARLIAMENT (1742).70 Barro,supra note 16, at 19.71 Ferejohn, supra note 16, at 5.72Id. at 11; see also ANTHONY DOWNS,AN ECONOMIC THEORY OF DEMOCRACY 28 (1957)(assuming that politicians act solely in order to attain the income, prestige, and power whichcome from being in office); Moe, supra note 16, at 761 ([P]oliticians are not primarilymotivated by productive efficiency or the public interest in making [their] decisions. Mostobviously, electoral considerations prompt concern for constituency service, pleasing interest

8/3/2019 Varol 9.26.11

20/75



At least three mechanisms exist in democratic politics to reduce theprincipal-agent problem and create an incentive structure so that the agent(i.e., the politician) acts, to the extent possible, in the best interests of theprincipal (i.e., the citizenry): (1) screening politicians before electing theminto office; (2) monitoring the politicians conduct to mitigate the extantinformational asymmetry; and (3) sanctioning politicians by voting them outof office. As discussed in the next Section, these mechanisms are ordinarilyunavailable during military rule, which heightens the agency problem duringthe democratic-transition process and provides the military ample leeway toengage in the constitutional entrenchment of its policy preferences. Beforeexplaining why these mechanisms are unavailable during military rule, I first

discuss how they work in democratic politics to reduce agency costs.First, the voters may screen the politicians before electing them into

office by using rough proxies to predict whether the politician is likely todiverge from the voters interests. These rough proxies include politicalideology, competence, honesty, and work ethic as demonstrated by priorexperience in politics and other fields.73 Politicians who lack these roughproxies desired by the electorate will not be elected into office. Screening thusprovides a method to the voters for filtering out politicians whose interestsdiverge from the citizenry before they even take office.

Second, the voters may employ monitoring devices to observe thepoliticians behavior and mitigate the extant informational asymmetry in theprincipal-agent relationship.74 Transparency is critical in ensuring thatpoliticians conform their behavior to the voters interests.75 As early as 1765,John Adams wrote that [l]iberty cannot be preserved without a generalknowledge among the people who have a right . . . and a desire to know . . .the characters and conduct of their rulers.76 If voters can observe the

groups, rewarding contributors, avoiding conflict, taking symbolic stands, and claiming creditfor popular outcomes.).73 Cf. Moe, supra note 16, at 767. These rough proxies are no more than mere predictors.Although they provide the voters with an imperfect method for screening politicians, they do

not guarantee, of course, that politicians will behave as predicted once they take office.74Id. at 766.75 BESLEY, supra note 16, at 37; id. at 203 (Transparency is fast becoming the motherhoodand apple pie of good governance.).76 JOHN ADAMS,ADISSERTATION ON THE CANON AND FEUDAL LAW (1765).

8/3/2019 Varol 9.26.11

21/75



politicians actions and have sufficient information about the reasons behind

those actions, they can more effectively reward or punish political behavior.

77

In promoting transparency, the media, non-profit organizations, think tanks,and other independent watchdogs play an important role by providinginformation on the quality of politicians and their policies.78 But even with afree media and civil society, the electorate may be unable to observe manypolitical activities and instead judge political performance based on its effectson their own well-being.79

Third, the citizens may employ sanctioning mechanisms designed topunish the politician when the politicians performance diverges from thecitizens best interests. The primary mechanism for sanctioning self-interested

politicians is to vote them out of office.

80

Voters delegate political authority topoliticians through elections.81 If politicians engage in self-interested actionsdetrimental to the voters during their term, voters may punish them by

77 BESLEY, supra note 16, at 37, 99; Ferejohn, supra note 16, at 10 (With perfect informationthe voter is able to extract most of the rents in the transaction. . . . Intuitively, the greater theinformational advantage that officials hold, the greater their ability to earn rents from office-holding.).78 BESLEY,supra note 16, at 37, 203.79 Ferejohn, supra note 16, at 11.80 BESLEY, supra note 16, at 36 (The main sanction of poor performance [by politicians] iselectoralthose who perform badly will not be re-elected.); GERSBACH,supra note 16, at 32;Ferejohn, supra note 16, at 8 (The natural mechanism to transmit . . . incentives is the factthat elections take place repeatedly and that officeholders desire to retain office. Under thesecircumstances, voters can adopt strategies that can affect the incentives of officeholders invarious ways.). In Federalist No. 57, James Madison similarly noted the role of popularelections in policing politicians:

[T]the House of Representatives is so constituted as to support in themembers an habitual recollection of their dependence on the people. Beforethe sentiments impressed on their minds by the mode of their elevation can

be effaced by the exercise of power, they will be compelled to anticipate themoment when their power is to cease, when their exercise of it is to bereviewed, and when they must descend to the level from which they were

raised; there forever to remain unless a faithful discharge of their trust shallhave established their title to a renewal of it.

THE FEDERALIST NO.57 (James Madison).81 BESLEY,supra note 16, at 36.

8/3/2019 Varol 9.26.11

22/75



denying them reelection.82 The politicians desire to retain office thus

motivates them to conform their behavior to the interests of the electorate.

83

B. The Principal-Agent Problem During Military Rule

The principal-agent framework provides a useful mechanism withwhich to address the basic questions of military governance and performanceduring a democratic coup, as well as the constitutional costs generated bymilitary rule during the transition to democracy.84 Although frequentlyinvoked in the context of democratic politics, to my knowledge, the principal-agent framework has never been applied to the relationship between themilitary and the citizens. In the case of a democratic military coup, the

people (the principal), through persistent popular opposition against anauthoritarian regime, impliedly empower the military (the agent) to deposethe regime and transition the nation to a democracy.85 Where anauthoritarian or totalitarian leader is unwilling to relinquish power despitepopular and persistent revolts, transitioning the nation to a democracy

becomes a specialized task in which the militaryarmed with the capabilityof coercive force or the threat of coercive forceenjoys a comparativeadvantage over the people. To reap the benefits of that comparativeadvantage, the people employ the military to overthrow the authoritarianregime on their behalf.

The principal-agent problem is particularly pronounced during militaryrule because the primary methods for reducing agency costs in democraticpoliticsscreening politicians before electing them, monitoring their

82Id.83 GERSBACH, supra note 16, at 32. Even electoral control is only a partially effective way ofmotivating the politicians to advance the interests of their constituents. SeeBarro, supra note16, at 20; Muller, supra note 16, at 273 (Democratic elections alone cannot motivatepoliticians to undertake long-term, socially beneficial projects that do not perform well in theshort run, when politicians are short-term oriented or future elections do not sufficientlyreflect the success of past policies.).84Cf. Moe,supra note 16, at 766.85 I assume here that a popular opposition against an authoritarian regime is sufficient to

create an implied principal-agent relationship between the military and the citizens. Theassumption is in place because the principal-agent framework provides a useful method fordescribing the functioning of a democratic coup and the resulting constitutionalconsequences. My focus therefore is on the application of the framework and not on itsinitial formation.

8/3/2019 Varol 9.26.11

23/75



performance, and sanctioning self-interested politicians by voting them out of

office

86

are generally unavailable. I discuss each in turn below.First, in electoral politics, the selection of the most competent

politicians whose motives are most likely to be in line with the public interestreduces agency costs.87 But there is little or no competition in the market foragents capable of overthrowing an authoritarian or totalitarian regime. Inmost cases, it is either a military coup or the authoritarian status quo.Autocratic governments ordinarily resist extralegal change, which necessitatesthe use of force or the threat of force to pursue structural regime change.88With the states power apparatus, such as the police forces, supporting theregime, ordinary citizens are frequently incapable of gathering sufficient

manpower and arms to overthrow a government by themselves. The citizenstherefore must often rely on a third party with coercive power to depose theregime. That third party may be a foreign power willing to come to the aid ofthe revolutionaries. Or citizens themselves make gather arms and start aviolent revolution against the regime. But in many cases, no willing foreigngovernment exists or the citizens are unwilling or incapable of commencingan armed revolution. The citizens then have little choice but to rely on thenations armed forces to overthrow the authoritarian or totalitarian regime ontheir behalf. That absence of choice renders the citizens virtually incapable ofmeaningful selection between competing agents.

Second, the opportunity of the people to monitor the actions of themilitary is significantly curtailed by a lack of transparency during thedemocratic transition period. Much happens in relative secrecy duringmilitary rule. The military junta, due in large part to the hierarchicalcommand structure of its regular operations, rarely feels the need to justify orexplain the reasons behind its actions during the transition process. Laws,proclamations, interim constitutions are often drafted behind closed doorsthrough a largely opaque process with little or no participation from ordinarycitizens.89 What is more, the voices of the organizations that play an

86SeeTom Ginsburg & Eric A. Posner, Subconstitutionalism , 62 STAN.L.REV. 1583 (2010).87 BESLEY,supra note 16, at 99.88SeeAlbert,supra note 6, at 10.89 For example, among the most common complaints in the ongoing democratic transition inEgypt is that the military is utterly opaque, issuing edicts from behind closed doors andwith no sense of popular consultation. Neil MacFarquhar, Protestors Scold Egypts MilitaryCouncil, N.Y.TIMES, Apr. 1, 2011.

8/3/2019 Varol 9.26.11

24/75



important role in ensuring transparency in democratic politicse.g., the

media, non-profit organizations, think tanks, and other independentwatchdogsmay be curtailed or even completely silenced, at least on certainsubjects, by the military during the democratic-transition process.90 Thecitizens thus lack meaningful monitoring mechanisms to observe the conductof the military.

The primary monitoring method available to the citizens is directobservation of the resultsof the militarys actions. Although the populace inmost cases cannot monitor, for example, the internal debates over the contentof an interim constitution, the citizenry can observe whether the military hasannounced a schedule for the transition to democracy (e.g., a date certain for

democratic elections) and whether the deposed despots from the authoritarianregime have been put on trial. That provides an avenue for a modicum ofmonitoring to the citizenry, but, as discussed below, there is very little by wayof sanctions that the citizenry can impose on the military for what theyobserve as self-interested conduct.

Third, in most cases, the primary mechanism for sanctioning self-interested politiciansvoting them out of officeis unavailable for themilitary. Ordinarily, the military does not seek reelection at the end of ademocratic coup. Its purpose is limited to transitioning the nation to ademocracy and returning to the barracks. Although the military remains in

power until the transition is complete, the people cannot vote the military outof office before the transition ends. Further, the imposition of sanctions onthe military after the transition to democracy may also be difficult, if notimpossible. The military usually negotiates immunity from prosecution as acondition for relinquishing power to democratically elected leaders, whichprohibits the imposition of criminal sanctions on the military after the coup.The military thus has little fear of present or future sanctions for self-interested

behavior.

90 See, e.g., Torrid Post-Revolutionary Times, THE ECONOMIST, July 30, 2011, available athttp://www.economist.com/node/21524851 (noting attempts by the ruling Egyptianmilitary to plant plain-clothes agitators in protests and to mute the thriving independentpress while encouraging state-owned media to portray protesters as hooligans).

8/3/2019 Varol 9.26.11

25/75



The availability of sanctions is also limited because there exists no

external enforcer of the bargain between the people and the military.

91

Uponseizing power, the military ordinarily disbands the Parliament, annuls theConstitution, and suspends judicial review,92 providing itself a virtualmonopoly on coercive power.93 The people cannot invoke the power of thecourts to ensure that the military remains faithful to the best interests of thepopulace. And even where judicial review is available, the judiciary lacks thepower to enforce any judgment against the military.94 The military mayignore the judiciarys rulings, abolish or suspend judicial review, or evenimpeach uncooperative judges.95

The one limited avenue for sanctions is through protests, akin to what

the political-science literature labels the decibel meter.

96

In political science,the decibel meter refers to the feedback that politicians receive from theirconstituents about bureaucratic performance.97 The military likewise receivesfeedback from the citizens in the form of protests. When unhappy about themilitarys performance during the transition, the frustrated masses rush backto the symbolic square in which the initial uprising against the autocraticregime began and to force the ruling military to accede to their demands. Forexample, in the ongoing transition process in Egypt, the crowds returned toal-Tahrir Square to protest the slow pace of the transition and the militarysfailure to speedily prosecute the members of the Mubarak regime.98 One ofthe organizers of the al-Tahrir Square protests told me during an interview

that a crowd of about 100 to 200 protestors would remain in the Squareindefinitely just so the military knows we are still here and will take over the

91SeeGinsburg & Posner,supra note 86.92SeeMahmud,supra note 9, at 104.93SeeGinsburg & Posner,supra note 86; Mahmud,supra note 9, at 104 (Because the militaryenjoys a preponderance, even a monopoly, of coercive power in the society, it can enforce itswill on any section of the state or civil society while it remains relatively immune fromcountervailing pressure from any other quarter.).94 Mahmud,supra note 9, at 104.95Id.96Cf. Moe,supra note 16, at 767.97Id. at 767.98The Arab Awakening: Revolution Spinning in the Wind, THE ECONOMIST, July 14, 2011 (Inthe absence of parliaments a sort of rolling dialogue has unfolded [in the Arab world],whereby public anger builds at the lack of progress, resulting in protests that prompt interimgovernments to further concessions.), available at http://www.economist.com/node/18958237?fsrc=scn/fb/wl/ar/revolutioninthewind.

8/3/2019 Varol 9.26.11

26/75



Square again if things go awry.99 As another Egyptian protestor put it:

Protests and popular pressure [against the military] must return because theyare only the real method of realizing the peoples demands.100 By invokingthe power of or the threat of protests, the citizens thus provide feedback to themilitary about their wishes.101

In addition to providing feedback, protests also serve a limitedsanctioning function. They divert the militarys resources from other areas ofconcern to respond to the protests. The power of the people expressedthrough persistent protests therefore may also motive the military to act. Forexample, the Egyptian Supreme Council of Armed Forces hastened to bringto trial several members of Mubaraks deposed cabinet in response to

determined protests in al-Tahrir Square demanding accountability for theMubarak regime. The decibel meter that measures the voice of the people isthus relevant in policing the conduct of the military, but ultimately, the powerof the protests is limited. The military possesses the coercive power to quellthe protests, arrest the protestors, and continue on its self-interested path.102And in response, there is very little, if anything, that the people can do.

With little or no opportunity for screening, monitoring, and sanctions,the military is virtually unaccountable for many of its actions during thedemocratic-transition process.103 The military is not obliged to act on behalfof the people, and the people have no legal mechanism for sanctioning orrewarding the military for its performance during the transition.104 Thisvirtual monopoly on power, with little mechanisms for mitigating the

99 See also Kirkpatrick, supra note 1 (Even if [the protestors] leave, any government willknow that we can get them to the streets again in a minute. (quoting Shady el-GhazalyHarb, one of the organizers who guided the Egyptian revolution)).100 MacFarquhar,supra note 89.101Cf. The Arab Awakening: Revolution Spinning in the Wind,supra note 98.102 Indeed, the Supreme Council of Armed Forces in Egypt outlawed demonstrations and sit-ins in response to continued protests. Michael Slackman,Islamist Group Is Rising New Force ina New Egypt, N.Y. TIMES, March 24, 2001; MacFarquhar , supra note 89 (noting a heavymilitary hand in breaking up demonstrations and credible allegations of torturing arrestedprotestors).103 BESLEY, supra note 16, at 101 ([A]chieving accountability is one of the key roles ofelections.).104 See James D. Fearon, Electoral Accountability and the Control of Politicians: Selecting GoodTypes Versus Sanctioning Poor Performance, in DEMOCRACY, ACCOUNTABILITY, ANDREPRESENTATION (Bernard Manin, Adam Przeworski & Susan Stokes, eds. 1999).

8/3/2019 Varol 9.26.11

27/75



principal-agent problem, provides the military ample leeway to maximize its

welfare during the transition process. In the next Section, I focus on onespecific welfare maximization, perhaps the one with the greatest potential forsignificant and long-lasting effects: constitutional entrenchment.

C. Constitutional Entrenchment During Military Rule

Constitutional entrenchment refers to the militarys placement into theinterim constitution or the resulting democratic constitution provisions thatfavor the militarys institutional or policy preferences or seek to perpetuate themilitarys voice in the nations political affairs beyond the end of thedemocratic transition period. Constitutional entrenchment may occur in

three ways: substantive, institutional, and procedural.

105

I discuss each inturn.

First, the military may reserve substantive powers for itself in thedemocratic constitution. At its most extreme, as in the case of Portugaldiscussed infra Part III.B, the military may provide itself the power to enactlaws and regulations or judge the constitutionality of laws passed by thedemocratically elected legislature. To a lesser extent, and as in the case ofEcuador and Turkey, the military may include a guardian of the nationclause in the democratic constitution, expressly declaring itself to be theprotector of the state.106 At first blush, this provision may seem innocuous;

after all, the military is authorized to guard the state from internal andexternal threats. But in many cases, the military inserts a guardian-of-the-state clause to protect what the military deems to be the fundamentalprinciples of the state from democratically elected governments. This clausemay thus provide the military constitutional authority to have an ongoingvoice in political affairs and to dictate what democratically electedgovernments may or may not do. For example, as discussed infra Part III.A,the Turkish military has frequently intervened in political affairs to protect thesecular nature of the state against theocratic-leaning governments.

105 Juan Linz and Alfred Stepan previously mentioned, in a political-science work, the

possibility of a hierarchical military imposing reserve domains on an elected government.LINZ &STEPAN,supra note 15, at 67.106 Aurel Croissant, David Kuehn, Paul Chambers & Siegfried O. Wolf, Beyond the Fallacy ofCoup-ism: Conceptualizing Civilian Control of the Military in Emerging Democracies, 17DEMOCRATIZATION 964 (2010).

8/3/2019 Varol 9.26.11

28/75



Second, the military may create counter-majoritarian institutions in thedemocratic constitutione.g., a national security council, a constitutionalcourt, etc.that continue to enforce the militarys institutional or policypreferences after the military relinquishes power to democratically electedleaders. Institutionalized prerogatives allow the military to exercise effectivecontrol over its internal governance, to play a role within extra-military areaswithin the state apparatus, or even to structure relationships between the stateand political or social society.107 For example, a national security council,designed as a forum for exchange of views between the civilian and militaryleaders, may allow the military to influence political policy-making.Likewise, a constitutional court, comprised of judges aligned with the

militarys policy preferences, may strike down democratically enactedlegislation contrary to those preferences.

Tom Ginsburg and Ran Hirschl have developed theories on thecreation of institutional prerogatives in a separate but closely analogouscontext: the establishment of a constitutional court to preserve the politicalprerogatives of civilian political leaders threatened to lose power. Accordingto Professor Ginsburgs insurance model of judicial review, if politiciansdrafting a new constitution foresee themselves losing power in post-constitutional elections, they may entrench judicial review in the constitutionas political insurance.108 The form of the constitutional court empowered

with judicial review, argues Professor Ginsburg, will tend to reflect theinterests of the constitutional drafters.109 Even if the constitutional drafterslose the elections, another avenuei.e., judicial reviewremains available tochallenge legislation passed by their opponents.110 Likewise, ProfessorHirschl has argued that threatened political elites transfer power from politicalinstitutions to the judiciary to preserve their political hegemony and entrusttheir policy preferences to unelected judges who share the elites ideology and

107 ALFRED STEPAN,RETHINKING MILITARY POLITICS: BRAZIL AND THE SOUTHERN CONE

93 (1988).108 See TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONALCOURTS IN ASIAN CASES 18 (2003).109Id.110Id.

8/3/2019 Varol 9.26.11

29/75



shield the elites policies from the vagaries of domestic politics.111 Even if the

political elites lose power, the unelected judges continue to enforce the elitespolicy preferences via judicial fiat.112

In a democratic coup, by definition, the military leaders will eventuallyhand over power to democratically elected leaderswhich, in most cases, willnot be the members of the military junta that staged the coup. In that case,the military has an incentive, in line with Professors Ginsburg and Hirschlstheories, to create counter-majoritarian institutions that will perpetuate theirpolicy preferences long after they relinquish power.113 In fact, the militarysincentive to create counter-majoritarian institutions during a democratictransition is greater than civilian elites.114 Although civilian elites may re-run

for office and possibly win elections after the transition, military leaders donot ordinarily run for election following democratic coups.115 In most cases,the only option for the military to perpetuate its policy preferences is toentrench those preferences in a counter-majoritarian institution before themilitary leaders relinquish office.116

A particularly attractive option for institutional entrenchment is theestablishment of a constitutional court. Unlike an institution such as anational security council comprised partly of military officers, a constitutionalcourt ordinarily has no military members. The creation of a constitutionalcourt thus allows the military to enforce its interests through a separateinstitution with no overt military involvement.117 By entrenching its policypreferences in a judiciary, the military can let a different branch do its dirty

111 Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales,82 TEX. L. REV. 1819, 1857 (2004); see generallyRAN HIRSCHL, TOWARDS JURISTOCRACY:THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004).112 Hirschl,supra note 111, at 1857.113 As A.W. Pereira has also noted, military strength and autonomy cannot be achieved bythe military alone but must be nurtured and sustained by legal and legislative projects thatconvert parts of the judiciary and the congress into defenders of the status-quo. A.W.Pereira, Virtual Legality: Authoritarian Legacies and the Reform of Military Justice in Brazil, theSouthern Cone, and Mexico, 34 COMP.POL.STUDIES 557 (2001).114 Hootan Shambayati, The Guardian of the Regime: The Turkish Constitutional Court inComparative Perspective, in CONSTITUTIONAL POLITICS IN THE MIDDLE EAST 99, 103 (SadAmir Arjomand ed. 2008).115See id.116See id.117See id.

8/3/2019 Varol 9.26.11

30/75



work, so to speak, and avoid accountability in the process.118 The creation of

an independent and sympathetic judiciary might thus be the best insurancepolicy for the military.119

Third, the military may setup the transition process so that theresulting democratic constitution favors the militarys institutional or policypreferences. Procedural entrenchment is most likely to happen when theConstitution is drafted, not under military rule, but by a democraticallyelected legislative branch or constituent assembly. If that is the case, themilitary does not have the power to directly dictate the content of theresulting democratic constitution and may thus resort to proceduralentrenchment to influence the constitutions content. For example, the

military may decide to hold elections within a short time frame that makes itvery difficult for new parties to effectively organize and mount an electoralcampaign. The military may have an incentive to protect established politicalparties against new and unfamiliar one, believing that the established partieswill better protect the militarys preferences when drafting the democraticconstitution. As discussed infra Part III.C, the Egyptian Armed Forces, forexample, may have setup a speedy timeline for elections following theFebruary 2011 coup to favor the more established and organized partiesincluding the Muslim Brotherhoodagainst newly formed parties comprisedprimarily of the Egyptian youth.

In addition to controlling the timeline for the elections, the militarymay also alter the sequence of the elections that take place during thetransition so that the electoral process produces a substantive constitutionaloutcome favorable for the military.120 Three primary types of elections maytake place in various different orders during the democratic-transitionprocess.121 Presidential elections may be held first, with the newly electedPresident holding power for a fixed period of time and without any check byan independent parliament.122 Second, parliamentary elections may be heldfirst with the legislature giving its confidence to the government executive

118See id.119See id.120 SHAIN &LINZ, supra note 30, at 9 (noting that the determination of the electoral sequence

by an interim government can be critical).121SeeYossi Shain & Juan J. Linz, Timing of First Democratic Elections, in SHAIN &LINZ,supranote 30, at 83.122Id.

8/3/2019 Varol 9.26.11

31/75



such as a prime minister or a cabinet.123 Third, elections for a constituent

assembly to draft a new constitution may be held before presidential orparliamentary elections.124

The determination of which institution is elected firstthe president,the parliament, or the constituent assemblyis of major importance to therelationship between the legislative and the executive branches, the role ofpolitical parties, and the nature of political life in general.125 For example,the decision to elect a president first may have a profound effect on thenations constitutional future.126 With a popularly elected president already inplace, the constitutional drafters are much less likely and able to alter thestatus quo and opt for a parliamentary, as opposed to a presidential, design.127

In contrast, if elections for a constituent assembly or the parliament are heldfirst, then the establishment of a parliamentary system remains a possibility.128And the military, as in the case of Egypt discussed infra Part III.C, may favora presidential system over a parliamentary one on the basis that a strongpresident will better preserve its policy and institutional preferences.

* * *

This Part set forth the theory of a democratic military coup and,employing a principal-agent framework, analyzed how the military engages inthe constitutional entrenchment of its policy preferences during thedemocratic-transition process. The next Part will apply the democratic-couptheory and the constitutional-entrenchment thesis to case studies.

123Id.124Id. The ongoing democratic transition in Tunisia is on track to follow this third sequence.125Id. at 84.126See id.127Id. If presidential elections occur first, the constitutional drafters have to work with an

elected leader who is not accountable to the legislature and whose term is fixed and mayextend beyond the ratification of the new constitution. Id. The President also may exertpressure on the constitutional drafters to prevent the replacement of the existing presidentialstructure with a parliamentary system, as President Sarney did in Brazil. Id.128Id.

8/3/2019 Varol 9.26.11

32/75



IV. CASE STUDIES

In this Part, I use three comparative case studies to test the democratic-coup theory and the constitutional-entrenchment hypothesis. Part III.Aanalyzes the Turkish coup of 1960; Part III.B studies the Portuguese coup of1974; and Part III.C examines the Egyptian coup of 2011.

These coups present ideal case studies under the prototypical casesmethodology for comparative-law scholarship.129 Prototypical cases are thosethat feature as many key characteristics as possible that are akin to thosefound in as many cases as possible.130 The prototypical-cases approachserves as a method for using a limited number of case studies to test the

validity of a thesis because a prototypical case serves as a representative ofother cases exhibiting similar pertinent characteristics.131

The case studies of Turkey, Portugal, and Egypt are prototypical because they each represent a major, distinct legal and political tradition.132Turkey serves as the prototypical example of a young, democratic, andsecular Republic located in the Middle East. Portugal represents theprototype of a democratic, modern European nation with a majority-Christian population and an established history that stretches back to the 12thcentury. Egypt is the prototype of a very different regime. Located inNorthern Africa, it has a long-standing authoritarian past, a majority-Muslim

population, and a constitution that expressly enshrines Islamic Sharia law asthe principal source of legislation. Despite the dissimilarities in these casestudies, the coups that occurred in each nation all fit within the democratic-coup model and conform to the constitutional-entrenchment thesis. That, inturn, suggests that the conclusions in this Article are likely to travel welland apply widely to other cases.133

129See Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 AM.J.

COMP.L. 125, 142-45 (2005).130Id. at 142.131Id.132See id. at 143.133Seeid. at 142.

8/3/2019 Varol 9.26.11

33/75



A. THE TURKISH COUP OF 1960: INSTITUTIONAL ENTRENCHMENT

For at least the past fifty years, the Turkish Armed Forces have exerteda formidable influence in Turkish political affairs. The Armed Forces havestaged four coups, forced political leaders to resign, and acted as a de facto, ifnot de jure,fourth branch of the Turkish government. The political influenceof the Turkish Armed Forces has its roots in counter-majoritarian institutionsthe military established in a constitution drafted following a coup on May 27,1960. I first discuss the prelude and aftermath of the coup and then analyzehow the military engaged in the institutional entrenchment of its policypreferences.

1. The Prelude and Aftermath of the CoupBetween Turkeys founding in 1923 and 1950, the Republican Peoples

Party (Cumhuriyet Halk Partisi) (CHP) governed Turkey in a single-partyframework.134 CHP had been established by Mustafa Kemal Ataturk, the firstPresident of Turkey, and the rest of the nations founding elite.135 Duringthose 27 years of single-party rule, the party and the state were one and thepartys ideology was the states ideology.136 CHPs ideology based onKemalism, which espoused Mustafa Kemal Ataturks beliefs onmodernization, national unity, and, above all, secularism.137

When Turkey transitioned from a single-party regime to a multi-partyregime during 1946-1950, the Democrat Party ( Demokrat Parti) (DP) wasestablished.138 CHP and DP split over a cultural and political fault line. CHPcontinued to represent the nations secular elite, but DP emerged as apopulist, anti-bureaucracy party, representing a largely rural constituency.139In 1950, DP won a sweeping majority in the Parliament and ousted CHPfrom the government seat it had occupied for the past 27 years.140 For the first

134 Ceren Belge, Friends of the Court: The Republican Alliance and Selective Activism of theConstitutional Court of Turkey, 40 LAW &SOCY REV. 653, 659 (2006)135Id.136Id.137Id.138Id.139 Id.; OZAN ERGUL, TURK ANAYASA MAHKEMESI VE DEMOKRASI [THE TURKISHCONSTITUTIONAL COURT AND DEMOCRACY]219-21 (Ankara 2007).140 Belge,supra note 134, at 659-60.

8/3/2019 Varol 9.26.11

34/75



time since the Republics formation, the founding secular elite did not govern

the nation. Although CHP was no longer in power, the military and the civilbureaucracy remained firmly loyal to CHP and its Kemalist ideology.141 Themilitarys support for CHP was buttressed by the fact that CHPs leader, IsmetInonu, served as a well-respected general in the Turkish Revolution alongsideAtaturk.142

Well aware of the sturdy support CHP still enjoyed among manycircles, DP quickly took an authoritarian and repressive turn after it assumedpower.143 During the ten years it governed the Republic (1950 1960), DPsuppressed the CHP-friendly press, forced disobedient civil servants, judges,and professors into early retirement, passed laws to quell political opposition,

and exploited religion to influence the public.

144

For example, DPempowered the Ministry of Finance to audit CHPs internal finances andfroze a substantial portion of CHPs assets pending the audit.145 Itmonopolized the state radiothe primary news source at the timeanddenied CHP access to air opposition commentary.146 It passed a lawprohibiting university professors from engaging in political activities, whichcut off political speech by a large portion of the intelligentsia aligned primarilywith CHP.147 In December 1954, shortly before the general parliamentaryelections, the DP-led Parliament voted to confiscate all financial assets ofCHP, which significantly curtailed CHPs capability to mount an electioncampaign.148 Despite its authoritarian tendencies, DP managed to winanother term in office, buoyed primarily by a booming economy andimproved social welfare.149

Following its reelection, DP continued its authoritarian streak. Itimposed criminal penalties on journalists whose writings were deemed to

141Id. at 660.142 FEROZ AHMAD, DEMOKRASI SURECINDE TURKIYE 1945-1980 TURKEY IN THE PATH TODEMOCRACY 1945-1980],at63.143 Belge,supra note 134, at 660.144Id.; Susanna Dokupil, The Separation of Mosque and State: Islam and Democracy in ModernTurkey, 105 W.VA.L.REV.53, 76 (2002).145 AHMAD,supra note 142, at 63.146Id. at 68.147Id. at 73.148Id. at 74.149Id. at 75.

8/3/2019 Varol 9.26.11

35/75



damage the political or economic prestige of the government.150 It passed a

law that authorized the government to force into retirement professors andjudges who had served for 25 years or were over the age of 60.151 In responseto DPs growing authoritarian tendencies, a group of protestors took to thestreet against the DP government in September 6-7, 1955 in Istanbul.152 DPresponded by swiftly declaring martial law in three metropolitan citiesIstanbul, Izmir, and Ankaraas a knee-jerk reaction to quell the protests.153

Despite the comfortable majority it enjoyed in the Parliament, the DPgovernment, led by Prime Minister Adnan Menderes, remained uncertain anduneasy about its political prospects.154 To ensure his political future,Menderes advocated a new type of democracy that would allow

suppressing the opposition in the name of preserving national security andpreventing destructive activities.155 Menderess dogma smacked of a desireto establish authoritarian rule and eliminate political pluralism. UnderMenderess leadership, DP established a McCarthy-style parliamentarycommissioncomprised entirely of DP membersto investigate subversiveactivities by the opposition parties.156 DP authorized the commission tocensor the press and to impose criminal sanctions, including up to three yearsimprisonment, against those who prevented or undermined the commissionsactivities.157 During its investigation, the commission prohibited all politicalactivities by the investigated parties for three months and prohibited the pressfrom reporting on the subjects of the investigations.158

The establishment of this investigatory commission promptedwidespread protests beginning on April 19, 1960.159 On April 26th, a group oflaw professors issued a declaration arguing that the investigatory commissionviolated the Turkish Constitution.160 The next day, DP, in a defiant attempt to

150Id. at 75.151Id. at 80-81.152Id. at 81-82.153Id. at 82.154Id. at 93.155Id. at 132.156 Belge,supra note 134, at 660; AHMAD,supra note 142, at 97.157 AHMAD,supra note 142, at 98.158Id. at 97-98.159 Belge,supra note 134, at 660; AHMAD,supra note 142, at 98.160 AHMAD,supra note 142, at 98.

8/3/2019 Varol 9.26.11

36/75



flex its political muscles, passed a law increasing the powers granted to the

commission.

161

DP then prohibited the leader of CHP, Ismet Inonu, fromattending the Parliament for 12 days on trumped-up charges of inciting th

Varol 9.26.11

Documents