Assessing the Democratic Legitimacy of the Supreme Council of the Armed Forces during the Transition to Democracy in Post-Revolutionary Egypt

The following are a few (very) tentative and thus preliminary thoughts regarding the assessment of the democratic legitimacy and political authority of the Supreme Council of Armed Forces* in Egypt during the post-revolutionary transition to democracy. At a later point I would hope we can articulate more systematically and in a generalizable fashion, the criterial standards essential to assessing the behavior of actors and institutions during “extra-legal” transitions to (constitutionally) democratic regimes.

Are not revolutions by definition “extra-legal” socio-political events? If so, one of the foremost questions we need to ask is if they are, at the same time, “democratic” in the sense that they somehow (perhaps only making the claim to) represent the “will of the people” (or democratic sovereignty). In this case, and without going into the various reasons that lead to the conclusion, I think we can safely answer in the affirmative. The next question, in the instant case, is whether the Supreme Council of the Armed Forces in Egypt can be said to fairly represent in institutional form, the extra-legal yet democratic “will of the people” in the transitional period to a would-be democratic regime. One way to establish its “authority” (and by implication its legitimacy) in this regard would be to assess its commitment to democratic methods and processes (e.g., reliance on consultation, representation, bargaining, negotiation, and so on) during the transitional period, including its capacity and willingness to be, as it were, constitutionally-sensitive, that is, to evidence pre-occupation with amending or modifying the existing constitution or forming a coordinating convention by way of making a new constitution giving concrete institutional and representational form to democratic sovereignty or will, a will that took on revolutionary form and thus extra-legal character only as a necessary means toward attaining long-term democratic embodiment, institutional and otherwise.

Constitutional sensitivity is only one of the criteria we might invoke to assess the temporary political authority of the Supreme Council, such authority according it prima facie democratic legitimacy. For the representation of the “will of the people” is not, at least in our day and age, simply an aggregative exercise that endeavors to fairly represent the collective expression of individual “voices/votes,” for the right to collective self-determination is (at least arguably) constrained by justice and basic moral principles generally, constraints that entail directly or by implication a commitment to basic human rights, such as those rights exercised and advocated by “the people” during the revolution. So alongside “constitutional sensitivity” and “reliance on democratic methods and procedures,” we have “respect for basic human rights” (avoiding here the precise content of any such list) as among the criteria we can use to assess the legitimacy of the democratic political authority assumed by the military during this extra-legal transitional moment. One immediate question raised in this vein is whether or not the Supreme Council should permit organized labor’s “right to strike,” a right it seems, at this point at any rate, reluctant to grant. In addition, the Supreme Council’s willingness to acknowledge if not represent the myriad groups and movements of the organized democratic opposition in civil society provides tangible evidence of whether or not it is meeting (or shows signs of attempting to meet) our aforementioned “democratic” and “legal” criteria for the transition to democracy of some sort. Thus, for example, the Council should accord serious consideration of the proposals proffered by the Forum of Independent Human Rights Organizations: Roadmap for a Nation of Rights and the Rule of Law.

“Extra-legal” thus need not denote or connote a lack of respect for legality (either ‘authoritarianism’ or ‘mob-rule’) or even the necessary absence of a “culture of legality,” especially insofar as these are related to democratic legitimacy. After all, it’s such “extra-legal moments” that give birth to exemplary, foundational, or constitutive coordinating conventions that result in democratic constitutions, and thus their (temporary) “extra-legal” character is not necessarily an expression of disregard for legality or an indication of the poverty of existing legal culture. Intriguingly, such a culture may have been “underground” in the pre-revolutionary period inasmuch as it existed, notionally, that is to say, normatively and ideally, as an aspirational goal in the hearts and minds of those actors in civil society who mobilized of behalf of the revolution.

Jonathan Wright examines some myths about the Egyptian military here.

*As to the public political intentions and policies of the military, all we have to rely on to date are the following five communiqués:

The 1st Communiqué of the Supreme Council of the Armed Forces (2/10/2011)
Statement of the Supreme Council of the Armed Forces:

Based on the responsibility of the Armed Forces, and its commitment to protect the people, and to oversee their interests and security, and with a view to the safety of the nation and the citizenry, and of the achievements and properties of the great people of Egypt, and in affirmation and support for the legitimate demands of the people, the Supreme Council of the Armed Forces convened Thursday, 10 February 2011, to consider developments to date, and decided to remain in continuous session to consider what procedures and measures that may be taken to protect the nation, and the achievements and aspirations of the great people of Egypt.
* * * * * * * * * * * *

The 2nd Communiqué (2/11/2011)
The Supreme Council of the Egyptian Armed Forces

Due to the consecutive developments in current incidents and which define the destiny of the country, and in context of continuous follow up for internal and external incidents, and the decision to delegate responsibilities to the vice president of the country, and in belief in our national responsibility to preserve the stability and safety of the nation.

The Supreme Council of the Egyptian Armed Forces decided to secure the implementation of the following procedures:

First: End the state of emergency as soon as the current circumstances are over.
Decide on the appeals against elections and consequent measures.
Conduct needed legislative amendments and conduct free and fair presidential elections in light of the approved constitutional amendments.
Second: The Armed forces are committed to sponsor the legitimate demands of the people and achieving them by following on the implementation of these procedures in the defined time frames with all accuracy and seriousness and until the peaceful transfer of authority is completed towards a free democratic community that the people aspire to.
Third: The Armed Forces emphasize on no security pursuit of the honest people who refused the corruption and demanded reforms, and warns against touching the security and safety of the nation and the people. And emphasizes the need for regular work in state facilities and regaining of life to normal to preserve the interests and possessions of our great people.
God protect the nation and the people.
* * * * * * * * * * * *

The 3rd Communiqué of the Supreme Council of the Armed Forces (2/11/2011)

At this historical juncture in the history of Egypt, and in light of the decision by President Mohamed Hosni Mubarak to relinquish the office of the presidency of the Republic and the tasking of the Supreme Council of the Armed Forces with the administration of the affairs of the nation , and with awareness of the seriousness of the demands of our great people everywhere for fundamental change , the Supreme Council of the Armed Forces is examining this matter, asking the aid of God Almighty, to fulfill the aspirations of our great people. The Supreme Council of the Armed Forces will issue further statements that will announce forthcoming steps, measures and arrangements, and it affirms at the same time that it is not a replacement for the legitimacy that is acceptable to the people.

The Supreme Council of the Armed Forces extends its highest salutations and appreciation to President Mohamed Hosni Mubarak for his services over the course of his career in war and peace, and for the patriotic decision he took in choosing the supreme interests of the nation. In this respect, the Supreme Council of the Armed Forces extends its highest salutations and admiration to the souls of the martyrs who sacrificed their lives for the freedom and security of their country, and to every one of our great people.

May God grant us success.
May God’s Peace, mercy and blessing be upon you.
* * * * * * * * * * * *

The 4th Communiqué of the Supreme Council of the Armed Forces (2/12/2011)
In the name of God the Most Gracious, the Most Merciful,
The fourth statement of the Supreme Council of the Armed Forces:
In light of the conditions that exist in the country, and the difficult times that have placed Egypt at a juncture that demands of us all to defend the stability of the nation, and the achievements of the people; And due to the fact that the current phase requires a reordering of the priorities of the state with the objective of meeting the legitimate demands of the people, and of delivering the nation from the current situation; And as the Supreme Council of the Armed Forces is aware that the rule of law is not only necessary for the freedom of the individual, but rather it is the only legitimate basis for authority; And with determination, clarity, and faith in all our national, regional and international responsibilities, and with recognition of God’s rights and in the name of God, and with His support, the Supreme Council of the Armed Forces announces the following: First: The Supreme Council of the Armed Forces is committed to all matters included in its previous statements.
Second: The Supreme Council of the Armed Forces is confident in the ability of Egypt’s people and institutions to get through this critical situation, and to that end, all agencies of the state, and the private sector must play their noble and patriotic role to drive the economy forward, and the people must fulfill their responsibility towards that goal.
Third: The current government, and governors shall continue as a caretaker administration until a new government is formed.
Fourth: The Supreme Council of the Armed Forces aspires to guaranteeing a peaceful transition of authority within a free and democratic system that allows for the assumption of authority by a civilian and elected authority to govern the country and the build of a democratic and free state.
Fifth: The Arab Republic of Egypt is committed to all regional and international obligations and treaties.
Sixth: The Supreme Council of the Armed Forces calls on the great people to cooperate with their siblings and children in the civilian police forces, for affection and cooperation must exist between everyone, and it calls on the civilian police forces must be committed to their slogan “the police serve the people.”
God is the source of success.
* * * * * * * * * * * *

The 5th Communiqué (2/13/2011)
In the name of God, the Merciful and the Compassionate!
The following is a constitutional statement:

Given the requirements of this crucial phase in the history of the homeland, and being faithful to its historic and constitutional duties to protect the country and its territorial integrity and to ensure its security, the Supreme Council of the Armed Forces is well aware that the real challenge faced by our dear homeland, Egypt, is to make progress by releasing the creative energies of all sons of our great people. This will be done by preparing the ground for freedom and by facilitating the route for democracy through constitutional and legislative amendments which will realize the legitimate demands expressed by our people during the past days. It [the Supreme Council of the Armed Force] will go even further in a way that suits the stature of Egypt whose people outlined the first lines of human civilization.

The Supreme Council of the Armed Forces strongly believes that the freedom of people, the rule of law and entrenchment of the values of equality, multiparty democracy, social justice and uprooting corruption are legitimate foundations for any political system which will lead the country in the coming phase.

The Supreme Council of the Armed Forces also strongly believes that the dignity of the homeland is a reflection of the dignity of every individual in the country. The free citizen who is proud of his humanity is the cornerstone of the edifice of a strong homeland.

Proceeding from and on the basis of the aforementioned, and hoping to achieve the progress of our people, the Supreme Council of the Armed Forces has taken the following decisions:1. To suspend operation of the provisions of the constitution.2. The Supreme Council of the Armed Forces will take over management of the country’s affairs provisionally for six months; or until the election of the People’s Assembly, of the Consultative Council and of the President of the Republic.3. The head of the Supreme Council of the Armed Forces will represent the council in the country and abroad.4. To dissolve the People’s Assembly and the Consultative Council.5. The Supreme Council of the Armed Forces will issue decrees during the transitional phase.6. To Set up a committee to amend some of the articles of the constitution and to determine the rules of a people’s referendum on these amendments.7. To task Dr Ahmad Muhammad Shafiq with running affairs until a new government is appointed.8. To hold elections to the People’s Assembly and the Consultative Council, as well as a presidential election.9. The state commits itself to implementing international conventions and treaties to which it is party.

God is the One from Whom we seek help and success.

Signed: Commander in Chief of the Armed Forces and Chairman of the Supreme Council of the Armed Forces Field Marshal Husayn Tantawi.
* * * * * * * * * * * *

Update: Jonathan Wright also provides us with a “full translation of the informal minutes of a meeting between two members of the Egyptian ruling military council and eight of the young people who helped organise the protest movement that brought down President Hosni Mubarak. The minutes, a historic document, were drafted by Wael Ghonim and Amr Salama from the youth movement, and so they are not endorsed by the generals.” See here.