A theory of legitimate, ideal transitional government

There are always many questions in how best to transition a non-democratic country to democracy — particularly because these transitions often occur during periods of unrest and instability, if not outright war or revolution.

Moreover, the outgoing regime has usually worked hard to stamp out formal opposition leadership/membership as well as any likely interim replacements and lower levels of legitimate authority that could present an alternative to the regime’s continued existence. And rarely is there any workable means of conducting free and fair elections without first overhauling the entire system.

This creates a chicken-and-egg paradox: Which comes first — the new system to find leaders or the new leaders to create a system?

Key questions

So, with most popularly legitimate authorities destroyed by the outgoing regime and no way to immediately replace it, what is the next best alternative in an ideal situation? Here are some guiding philosophical questions that suggest preferable alternatives:

• In a transition to representative democracy from a non-democracy without a functioning voter system for immediate transitional elections, should interim power derive from the lowest available popular representatives? This seems likely to provide it with the most broad-based support from the public and authorities alike.
• Or should interim power rest with a self-identified cadre of internal regime reformers and external academics/technocrats? Or a cadre identified by a supranational political organization (such as the United Nations, African Union, or Arab League)? Can a truly legitimate constitution and electoral system be developed by a representative cross-section cadre of non-elected transitional leaders? To all these, I suspect the answer is no because it risks limiting public cooperation.
• Or should interim power devolve immediately to the local level to organize and oversee ad hoc transitional elections for a constitutional assembly to the best of their ability? Even in a non-democratic system without much of a civil society, there is nearly always some subsidiary local level of governance where popular will is not totally repressed and unrepresented. Absolute power eventually runs out of steam somewhere close to the bottom of the government structure in a country of any substantial size, thus leaving some level of officials relatively untainted. Can that level of government legitimately select useful transitional leaders? I believe so.
• How can transitional leaders be made impartial and secured against the corruption of power? How do we ensure they will leave at the end of their transitional mandate? Strict checks, short timetables, and separation of transitional roles should resolve these issues.
• During a transition, is it preferable to hew closely to the existing constitutional order and reform it through its formal mechanism, despite its corruption — or is it better to abandon it in favor of a creative vacuum that can rebuild the system from scratch? There are advantages and disadvantages to either course. To leave it entirely courts chaos, but to keep it risks failed or stunted transition (tearing down the master’s house with the master’s tools).

Goals

I have endeavored below to develop an idealized system that addresses as many of these concerns as possible while offering a regulated roadmap with clear guidelines for conducting a responsible and true transition in as many different countries as possible.

Desired qualities of the transition guide proposal, therefore, include: broad applicability, maximal interim stability, brevity of and limitations upon extraordinary conditions, thoroughness of overhaul, manageable democratic characteristics, and prevention of backsliding.

This roadmap discards the existing system and constitution at the national level but uses its local organs to form temporary replacements for the national government and select drafters of a new, permanent order. That initial approach returns governing and drafting legitimacy as close to the people as possible in an orderly fashion but without the need for infeasible, immediate nationwide elections.

Proposed transitional order to maximize stability, reforms, and interim legitimacy:

1. Go to the lowest, most local body of government that is free of regime appointees and have that body (in every part of the country, collectively) nominate two separate assemblies with different mandates. (N.B. This step may require alteration if a single-party state exists and all members of the local bodies nationwide are from the same party.)
2. Each of the two transitional assemblies has 1 representative per smallest local district level inclusive of the whole country (e.g. county, canton, department). The first assembly is just constitutional drafters. The second assembly is tasked only with naming and monitoring a caretaker cabinet and its leader, with no role in drafting.
3. The caretaker cabinet is given a 3 month term, and its members are drawn from outside both assemblies to insulate drafting & governing roles. The cabinet leader — e.g. an interim Prime Minister — cannot be re-nominated to the cabinet at the end of a 3-month caretaker cabinet term.
4. For transitional executive simplicity, the cabinet rules by decree (voted through by cabinet majority), but the nominating assembly holds veto power by 2/3rds vote to deter grievous abuses of power. Decrees hold effect until the expiration of 6 months and cannot effect elections or the drafting of the constitution. Even during the 6 months they hold effect, all decrees are not binding on next caretaker cabinet or permanent government elected later, but they can be renewed if desired.
5. The constitutional assembly drafts the constitution on a 9-month non-extendable timeline. It also establishes first election procedures for a permanent legislature (or any other elective national offices under the new constitution) and supervises the first election. Both transitional assemblies go out of existence as soon as the permanent government and legislators are sworn in.
6. The country’s security forces are tasked only with maintaining order, borders, and election safety during the transition. No official role is permitted in the political transition, both in the cabinet and the drafting process. Security forces answer to the civilian caretaker cabinet.
7. Constitutional drafters and the final interim cabinet leader are automatically barred from all offices for 1 cycle under the new, permanent system. The other assembly’s members and other cabinet officials are not barred from running and serving in any elective or appointed offices under the new constitution.

 
Optional additional points:

8. A yes-no referendum could be held on ratification of the constitution prior to the first election of permanent officials. However, this risks exposing the new constitution to significant challenges to its authority and supremacy even if successfully ratified. It also risks no constitution being adopted within a concise timeframe.
9. A temporarily higher threshold for amending the constitution could exist for the first two cycles to promote stabilization of the new order, encourage inter-party cooperation, and provide a cooling off period on proposed early major changes.