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 (e.g., 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.
Addenda: Jonathan Wright examines some myths about the Egyptian military here. He 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.
[cross-posted at the Ratio Juris blog]