The Turkish Debate Over Separation Of Powers

As has been happening with increasing frequency, President Gül and Prime Minister Erdoğan are having a passive aggressive public disagreement, this time over whether separation of powers is a necessary element for democracy or a hindrance to democratic development. It began with Erdoğan’s comments on Monday fingering separation of powers as the biggest obstacle facing Turkey’s government. According to the PM, there is a bureaucratic oligarchy that hinders efficient provision of services, and projects are unnecessarily stalled due to judicial objections. Erdoğan’s preference would be for the executive, legislature, and judiciary to all work together in order to eliminate “errors within the system” that he feels slow things down. In response today, Gül said that separation of powers is absolutely fundamental to the success of Turkish democracy and said that Erdoğan must have misspoken. This is of course a proxy fight for the larger argument that is taking place over whether the AKP is going to revise the constitution in a way that creates a powerful presidency in a presidential system, and whether Erdoğan is then going to become Turkey’s first directly elected and newly empowered president or whether Gül is going to remain in his post and finish out his term.

The debate over separation of powers is an interesting one historically. Most people – including the folks at Wikipedia – ascribe the principle to Baron de Montesquieu, but this is actually incorrect. As my former professor Jack Rakove lays out in his excellent book Original Meanings, the idea behind separation of powers arose during the 17th century in Britain out of the upheaval caused by the English Civil War and the battle between the monarchy and the parliament. Parliamentary supporters in the 1640s came up with the principle of separation of powers as a way of distinguishing it from the concept of mixed government, which advocated for having representatives of the monarchy, aristocracy, and the people in the legislature as a way of avoiding tyranny, oligarchy, and anarchy. Separation of powers was an effort to draw lines between the different functions of government so that one particular branch of government would not overwhelm the others, as opposed to being concerned with one branch of society becoming dominant. Supporters of the monarchy under Charles I advocated mixed government since it allowed the king to dominate the parliament, and thus his opponents began to emphasize separation of powers as a way of leveling the playing field and eliminating the king’s power to govern without Parliament and abrogate legislation. Once Charles was beheaded and the monarchy was suspended, the separation of powers crowd turned on Parliament, as it was now Parliament under Oliver Cromwell that had enormous and unchecked powers.

This debate was picked up in the American colonies not as a response to the government in Britain but because of the constant feuding between colonial legislatures and colonial governors, who were battling over parliamentary rights and executive power and what the proper balance would be between the two. Colonial governors were actually viewed as a bigger problem than the British Parliament, and that led to the Congress eventually being granted something of a privileged position, as seen by the fact that Article I is about Congress rather than the president or the courts. As Gordon Wood has written, the reason separation of powers was given such a prominent place in the Constitution was not because the framers wanted to check Congress, but because they wanted to protect Congress and the judiciary from the president.

I bring this up because the Turkish debate over separation of powers is playing out in reverse, demonstrating just how extreme Erdoğan’s complaints are. Whereas the British and American concept of separation of powers arose out of a desire to check and limit a powerful executive and give the legislature more of a free reign,  Erdoğan is bringing up separation of powers because he believes that the executive does not currently have enough power and that it is the judiciary that is hindering the proper functioning of government. The English-speaking men of the 17th and 18th centuries immersed in the philosophy of government would have found this situation absurd, since nobody really contemplated that separation of powers would create a situation of judicial or bureaucratic tyranny, as Erdoğan is alleging, or buy into the idea that separation of powers should be eliminated in order to empower an executive even further. Despite controlling a near super majority in the Grand National Assembly and operating under a system in which real power is vested in the prime minister rather than the president, Erdoğan is still claiming that it is not enough and that separation of powers has to go, when in fact he is vested with a huge degree of autonomy despite separation of powers. This is precisely why separation of powers is so important, and Gül is correct to point out that it is the foundation of Turkish democracy. Eliminating it in the name of efficiency will lead very quickly to a complete erosion of Turkish democracy, since democracy is not about efficiency but about the ability for a diverse set of parties and interests to contest power while allowing the people to participate in civic life. As I’ve said before and will keep on saying, if you are focused on Erdoğan’s Islamist background rather than on his familiar Turkish authoritarian tendencies, you are missing what is actually going on in Turkey right now.