Constitutional coup

A constitutional coup occurs when a person or group seizes political power in a way consistent with their country's constitution, as opposed to a traditional violent coup d'état, often by exploiting loopholes or ambiguities in said constitution.^[1] Supporters of constitutional coups exploit their political power to semi-legally seize more.^[2] Constitutional coups can be carried out in many ways, including removing term or age limits, changing electoral rules to hinder opposing candidates, and postponing elections indefinitely.^[3]

Constitutional coups are often facilitated by weak democratic institutions and an absence of "democratic culture" within countries.^[4] Struggles between rival factions, particularly between ethnocultural or religious groups, are a common facilitator of constitutional coups.^[4] Constitutional coups often involve willing and participatory parliaments and changes to term limits are often accompanied by other constitutional changes which are meant to weaken political opposition and ensure election victories.^[3] These coups are considered a relatively recent occurrence in global democracies

Examples

In Africa

Blaise Compaoré in public

In Africa, constitutional coups typically entail the expansion of executive power through the extension or elimination of constitutional term limits.^[4][5][6] Another common strategy is for an incumbent to invalidate the candidacy of their opponent, making themselves the de facto winner.^[3] As many as 30 African heads of state have attempted to extend their mandates through constitutional changes since the early 1990s, when many African countries began democratizing.^[3]

African heads of state have developed a preference for constitutional coups over military coups, in part, because they are less likely to anger foreign aid partners.^[6] In addition, there are greater safeguards against traditional coups, incentivizing political leaders to hold on to power through constitutional coups instead. For example, the African Union and its predecessor, the Organization of African Unity, have developed effective policies to deal with military coups, but have so far been ineffective at discouraging constitutional coups.^[3] Documents published by the AU/OAU to create a framework for intervention after coups, including the Lomé Declaration, the African Charter on Democracy, Elections and Government, and the Constitutive Act of African Union, only consider unconstitutional regime change, not constitutional coups.^[3]

Many African Presidents have changed their country's constitutions to extend their term-limits. These include Presidents Gnassingbé (Togo), Museveni (Uganda), Déby (Chad), Biya (Cameroon), Kagame (Rwanda), Nkurunziza (Burundi), and el-Sisi (Egypt).^[4]

In 2005, the president of Burkina Faso, Blaise Compaoré, exploited a quirk of the 1991 constitution to stay in power after he had expended the term limits. Compaoré argued that, because he was elected to office before term limits were first instituted in 2000, they did not apply to him. The Constitutional Council of Burkina Faso, which was controlled by Compoaré and his political party, the Congress for Democracy and Progress, ruled in his favor. Compaoré then ran for and won a third term in office.^[3]

Pakistan, 1953

Main article: 1953 Pakistani constitutional coup

Governor-General Ghulam Mohammad dismissed Pakistani Prime Minister Khawaja Nazimuddin's government in 1953 despite the Prime Minister enjoying the support of the Constituent Assembly and, subsequently, dismissed Pakistan's first constituent assembly in 1954.^[7]

Finland, 1973

In 1973, the Finnish Parliament extended Urho Kekkonen's presidential term by four years with a derogation law.^[8]

Malaysia, 1976

On April 15, the Bersatu Rakyat Jelata Sabah (Berjaya – Sabah People's United Front) was victorious in the state elections over the ruling Sabah Alliance party by persuading dissent members of the Sabah Alliance party to abandon their leader, Tun Mustapha bin Datu Harun.^[9]

Tunisia, 1987

On November 7, the Prime Minister of Tunisia, Zine el-Abidine Ben Ali, deposed the president for life, Habib Bourguiba, and assumed the position of chief executive.^[10]

United States, 2000

Attorney General Bob Butterworth (left) speaking at a news conference with Governor Jeb Bush (right) on the initial Florida recount during the 2000 Presidential election

During the United States presidential election recount in Florida, then-governor Jeb Bush called on the state legislature to simply ignore the contested vote count and give Florida's electoral college votes to candidate George Bush, a fellow Republican and Jeb Bush's brother. This is theoretically constitutional, as the US constitution does not guarantee the right to vote in presidential elections. Rather, it authorizes each state to determine how its electors should be chosen, although it is ambiguous whether, having already selected electors by vote in accordance with state law, the legislature can then overrule that determination. However, the move was ultimately blocked by the US Supreme Court.^[11]

The Supreme Court striking down a constitutional coup may seem like a contradiction in terms, as the coup no longer seems constitutional, per se. However, it is important to note that the "constitutional" element of constitutional coups refers more to the exploitation of ambiguity within democratic rule of law, not a truly legal process. This ambiguity, combined with enough political power, allows anti-democratic seizures of power to occur under the guise of constitutionality.

Nepal, 2020

Khadha Prasad Sharma Oli, Prime Minister of Nepal, had attempted to dissolve the Nepalese parliament. The dissolution was being challenged under three different petitions in the Supreme Court, and it was contested whether or not the Prime Minister actually has the power to dissolve parliament. K P Oli attempted the power grab during a legitimacy crisis, as rival factions seek his resignation due to poor governance and authoritarian impulses.^[12]

United States, 2020

See also: Eastman memos and Attempts to overturn the 2020 United States presidential election

Following his loss in 2020 United States presidential election, President Donald Trump repeatedly made false claims that widespread electoral fraud had occurred and that only he had legitimately won the election. Although most resulting lawsuits were either dismissed or ruled against by numerous courts,^[13][14][15] Trump nonetheless conspired with his campaign team to submit documents in several states (all of which had been won by Biden) which falsely claimed to be legitimate electoral certificates for President Trump and Vice President Mike Pence.^[16] After the submission of these documents, the Trump campaign intended that the presiding officer of the United States Senate, either President of the Senate Pence or President pro tempore Chuck Grassley, would claim to have the unilateral power to reject electors during the January 6, 2021 vote counting session; the presiding officer would reject all electors from the several states in which the Trump campaign had submitted false documents, leaving 232 votes for Trump and 222 votes for Biden, thereby overturning the election results in favour of Trump.^[17][18][19] The plans for January 6 failed to come to fruition after Pence refused to follow the campaign's proposals.^[20][21]

Central in the efforts to overturn the election were a series of memos written by lawyers John Eastman and Kenneth Chesebro, who were both cooperating with the campaign, which have been described by some as a road map for a constitutional coup.^[22] It was argued that the Twelfth Amendment of the United States Constitution granted the President of the Senate complete unilateral authority over the counting of electoral votes on January 6, thereby allowing him to reject any and all electors or electoral votes which he deems illegitimate.^[18][19] Eastman argued that Vice President Pence, who served as President of the Senate, had the power to "send the electors home" and nullify the count. With the certification of the election delayed, the alleged evidence of widespread electoral fraud would then be investigated and discovered, and the slates of Trump-Pence electors would be approved to certify the president's victory.^[22] The fringe interpretations of the constitution offered by Eastman and Chesebro have been contradicted by numerous legal scholars.^[23][24][25]

Romania, 2024

On 6 December 2024, the Constitutional Court of Romania annulled the results of the presidential election, resulting in condemnations from across the political spectrum of the judicial coup d'etat.

References

1. Scheppele, Him (2014). "Constitutional Coups and Judicial Review: How Transnational Institutions can Strengthen Peak Courts at Times of Crisis (With Special Reference to Hungary)". Transnational Law & Contemporary Problems. 23: 51 – via Hein Online.
2. Newman, Katja (May 7, 2011). "Constitutional Coups: Advancing Executive Power in Latin American Democracies" (PDF). Department of Political Science University of California, Irvine.
3. Mbaku, John Mukum. "Constitutional Coups as a Threat to Democratic Governance in Africa" (PDF). International & Comparative Policy and Ethics Law Review: 78–129.
4. Mbaku, John Mukum (October 30, 2020). "Threats to democracy in Africa: The rise of the constitutional coup". Brookings.
5. Yarwood, Janette (July 2016). "The Power of Protest". Journal of Democracy. 27 (3): 51–60. doi:10.1353/jod.2016.0041. S2CID 156790577 – via MUSE.
6. Oved, Marco (2015). "The art of the constitutional coup". Toronto Star.
7. "Pakistan Constitutional Beginnings" Pakistan – A Country Study
8. "Chronology 1973". The World Book Year Book 1974. Chicago: Field Enterprises Educational Corporation. 1974. p. 8. ISBN 0-7166-0474-4. LCCN 62-4818.
9. Han, Sin Fong (1979). "A Constitutional Coup D'Etat: An Analysis of the Birth and Victory of the Berjaya Party in Sabah, Malaysia". Asian Survey. 19 (4): 379–389. doi:10.2307/2643858. JSTOR 2643858.
10. Ware, L.B. (1988). "Ben Ali's Constitutional Coup in Tunisia". Middle East Journal. 42 (4): 587–601. JSTOR 4327834.
11. Ackerman, Bruce (2001). "Anatomy of a Constitutional Coup" (PDF). Yale Law Report. 48 (2).
12. Nanjappa, Vicky (2020-12-22). "Constitutional coup: Oli's decision to dissolve Nepal's Parliament challenged in Supreme Court". www.oneindia.com. Retrieved 2021-03-16.
13. Borter, Brad Brooks, Gabriella (2021-01-19). "Trump fraud claims open Republican rift in Texas and other red states". Reuters. Retrieved 2021-01-19.{{cite news}}: CS1 maint: multiple names: authors list (link)
14. Carney, Jordain; Chalfant, Morgan (January 13, 2021). "Security concerns mount ahead of Biden inauguration". The Hill. Archived from the original on January 14, 2021. Retrieved January 13, 2021.
15. Fandos, Nicholas; Shear, Michael D. (2019-12-18). "Trump Impeached for Abuse of Power and Obstruction of Congress (Published 2019)". The New York Times. ISSN 0362-4331. Retrieved 2021-01-19.
16. Breuninger, Kevin (June 22, 2022). "Trump had a direct role in plan to install fake electors. Key takeaways from the fourth Jan. 6 hearing". CNBC. Archived from the original on June 22, 2022. Retrieved July 29, 2022.
17. Haberman, Maggie; Savage, Charlie; Broadwater, Luke (August 8, 2023). "Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden's Win - The House Jan. 6 committee's investigation did not uncover the memo, whose existence first came to light in last week's indictment". The New York Times. Archived from the original on August 9, 2023. Retrieved August 10, 2023.
18. Chesebro, Kenneth (December 13, 2020). "Brief notes on 'President of the Senate' strategy". Politico. Retrieved September 29, 2023.
19. "John Eastman's second memo on 'January 6 scenario'". Washington Post. Retrieved 2024-07-03.
20. Swan, Betsy Woodruff; Cheney, Kyle (March 30, 2022). "Inside Pence-world's preparation for a Jan. 6 legal showdown". Politico. Retrieved 2022-06-10.
21. Glantz, Aaron; The Center for Investigative Reporting (January 6, 2021). "Read Pence's full letter saying he can't claim 'unilateral authority' to reject electoral votes". PBS NewsHour. Associated Press. Archived from the original on January 6, 2021. Retrieved January 8, 2021.
22. Pilkington, Ed (2024-09-11). "'A roadmap for a coup': inside Trump's plot to steal the presidency". The Guardian.
23. Seligman, Matthew (2021). "The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes". SSRN Electronic Journal. doi:10.2139/ssrn.3939020. ISSN 1556-5068. SSRN 3939020.
24. Bessette, Joseph; Schmitt, Gary (2023-04-19). "Counting Electoral Votes: How the Constitution Empowers Congress—and Not the Vice President—to Resolve Electoral Disputes". American Enterprise Institute. Archived from the original on 2024-09-27. Retrieved 2024-12-20.
25. Berry, Thomas (2022-02-22). "The Legitimate Role of Congress in the Electoral Count". Cato Institute. Archived from the original on 2022-02-22. Retrieved 2024-12-20.