Separation of powers

It is extremely significant that Prime Minister Recep Tayyip Erdoğan has complained about the principle of the separation of powers; this has to be focused on seriously, because in a regime without the separation of powers one cannot talk about a democracy.

The prime minister said the “system was established incorrectly,” complained about the bureaucracy and criticized the judiciary’s control of legitimacy. These are possible discussion points in any democracy; but it is not possible not to be irritated by these words of Erdoğan: “This phenomenon, what they call the separation of powers, comes and stands as an obstacle in front of you.”

Can these be ordinary, casual expressions?

In the ruling Justice and Development Party’s (AK Party) election manifesto of 2011 named “Target 2023,” there is precisely the following paragraph:

“In the new constitution, relationships between the legislature, executive and judiciary that have the power to use sovereignty should be restructured based on the principle of the separation of powers.”
This was a public commitment and it was good. So, now, where has this complaint about the separation of powers come from?

Again, in the AK Party’s own 2007 election manifesto, it was stated that the president’s powers should be reconstituted “based on the parliamentary system” - in other words they were going to be reduced. This was also a public commitment and was very good.

Well, now, what would you say to the draft submitted by AK Party to the Constitution Conciliation Commission to abandon the parliamentary system and change to a presidential system? Moreover, this draft hugely over-authorizes the president. These are developments that fuel concern of “authoritarianism” not only among the opposition, but also among liberals.

Gentlemen of the robe in the AK Party

Gentlemen of the robe in the AK Party such as Professor Burhan Kuzu, Professor Mustafa Şentop and Professor İdris Bal have defended the presidential system by saying, “in this system, the separation of powers is even stronger.” This is true in theory, but in practice an enormously over-authorizing presidential draft has emerged. It is a draft in which the principles that are the fundamentals of democracy – “the separation of powers” and “checks and balances” - are bent and twisted in favor of the president.
 

Altogether wrong?

In Turkey, the judiciary checking legitimacy - in other words not only reviewing the legality of acts but also ruling after reviewing the correctness of acts - is a long standing and misguided tendency in our judicial culture, even though now it has diminished. There were also criticisms of this by former presidents Süleyman Demirel and Turgut Özal, and Erdoğan’s criticisms cannot be regarded as totally wrong today. Even in advanced democracies debates over “judicial activism” are experienced.
However, it is one thing to criticize the judiciary for checking legitimacy; it is completely different to say: “the separation of powers is an obstacle for us.” The latter is a troubling expression.

Justice Minister Sadullah Ergin gave a very correct statement when he said recently: “The authorization of legitimacy does not belong to the judiciary; it belongs to the executive body. In the event that the principle of the separation of powers was implemented in its true sense there would be no problem.”
Truly, if the judiciary and the government that dominates both legislation and execution totally complied with the separation of powers principle then there would be no problem.