The Turkish Debate Over Separation Of Powers
December 21, 2012 § 1 Comment
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.
Israeli Checks and Balances
April 9, 2012 § Leave a comment
The U.S. is not the only place where there is currently a dispute between the government and the courts over the proper scope of judicial review. Israeli Justice Minister Yaakov Neeman has proposed a bill allowing the Knesset to reintroduce and pass laws that have been invalidated by the High Court with a majority of 65 MKs (the Knesset has 120 members, so this more than a simple majority but far from a supermajority). According to the bill, during the first period following its passage, only a regular majority of 61 would be required to overrule the High Court, and the duration of the “first period” is not defined which means that the higher number of 65 might potentially not ever kick in.
The philosophy behind such a bill might seem problematic at first glance, but the notion that the High Court should have the absolute final say is not an ironclad rule of democratic governance. As of now, there is no mechanism to annul an Israeli High Court decision, which gives an unelected body an enormous degree of power and upsets the principle of checks and balances. In the U.S., for instance, a Supreme Court ruling on the unconstitutionality of a law can be undone through a constitutional amendment which then puts the law beyond the scope of the Court’s authority. This means that the judiciary is able to check legislative excesses that violate the Constitution, but a mechanism remains to make a popular measure constitutional if it can clear the extremely high bar of passing by a vote of 2/3 in both the House and Senate and being ratified by 38 out of 50 states. In Israel, however, there is no written constitution and therefore such a process is unavailable. In Britain, the Supreme Court only has limited judicial review and cannot overturn many forms of parliamentary legislation, which is essentially the opposite of the current state of checks and balances in Israel. The proposed Justice Ministry measure is an effort to move Israel away from the extreme pole of judicial supremacy that it currently occupies and closer to the U.S. model of having a legislative override.
Of course, the glaring problem with this comparison to the U.S. is that the specifics of the bill do not create a presumption of a final say for the High Court since the standard for override is barely higher than what is required to pass a bill in the first place, and due to the ambiguity of the proposal may not be higher at all. The principle behind this proposal is a good one given that the balance of power is currently tipped entirely away from the legislature and toward the judiciary, but the devil is in the details, which in this case arise due to the nature of the Netanyahu coalition. The High Court has recently weighed in on some high profile issues – the Tal Law, the Migron evacuation, etc. – which puts pressure on Netanyahu and Likud to do something to mollify both the ultra-Orthodox and settler coalition partners, and this seems to be their best bet. It will also be popular with right wingers who abhor the High Court in general and want to put it in its place. In many ways the specifics of the proposal make it clear that this is less about creating a democratic balance between two branches of government and more about punishing the High Court for its recent decisions.
The other important point to note here is that Ehud Barak has come out strongly against the proposal, adding further strain to the relationship between him and Netanyahu that is already in the news over their clashing statements on Israel’s position toward the P5+1 nuclear talks with Iran. As I noted last week, events are coming to a head in the Netanyahu-Barak partnership that call into question how much longer it can survive, and the High Court proposal is just the latest wedge that is creating a fissure between the prime minister and the defense minister.
