Democracy illusion in the shadow of the separation of powers

This study concentrates on to examine the general grounds of the reinforcement of executive as a particular political power of the system against the legislature, to detect whetever this issue sources from the theory of the separation of powers itself or from the present necessary after. Therefore, the relationship between the executive and the legislature is the main problematic and Europe where the democratic state of law exists with its constitutional guarantees and the United States of America are the main area of this work. The judicial power, whose independence is "indisputable" in the rule of law and doesn't participate in taking political decisions, isn't included in the scope of this study. The impact of the reinforcement of executive upon the democratic institutions is abandonded, if this issue is taken with the perspective of the economic and social requirements. Hence, in order to examine the strengthening of the executive against the legislature from a legal perspective, it is required to consider the status of the executive together with the ultimate principles of the liberal state and the legal order. The protection of the basic rights and freedoms and democracy are among this ultimate principles. This study consists of three chapters. In the first chapter, the occurrence of the theory of separation of powers and its historical implementations are discussed. The theory of the separation of powers may develop in a society where laws are based on human will, where no external agent can limit legislative act. This determination take a stand against the agreement in literature that base the theory of separation of powers on the tradition of ancient Greek and Rome. Because a Legislative act, which is considered to be distinctive for the separation of powers, succeeds in getting rid of external sources (custom or religious restrictions); it became possible with the acceptance of the theory of sovereignty, in other words with the modern state. The idea pursued in ancient Greek and Rome is the tradition of "mixed constitution". The idea of "mixed constitution" which is pursued especially through the political history of Rome, is hold on the distribution of participation in political decisions among different classes in societies with economic and social differentiation. Thereby, the "mixed constitution" is a theory of allocation of political power among the different classes. After clarifiyning this basement, it can be clearly seen that the idea of "mixed constitution" in the meaning of ancient Greek and Rome is not a proper theory for the organization of the constitutional organs of the nation state. Because, as it is known, the nation state is built on the assertion of an indiscrete society in which the differences between citizens are extinguished. In a nation state; social, cultural and economic differences are not the obstacles to political participation. The conflict of legitimacy between constitutional organs has vanished with the nation state. Parliaments, which assume the function of being "democratic" institution representing the people versus the king, now shall share this purpose/function with the executive. Both the legislature and the executive are institutions determined by the people, in the nation state. It is known that even in cases where the executive is not directly elected, voting is used to determine the prime minister/head of government by the people. In the first chapter; the distinguishing characteristic and the first constitutional implementation of the parliamentary, semi-presidential and presidential government systems are included. In the second chapter, the current condition of government systems in democratic pluralist European societies, which constitutes the study area, is examined. In this chapter, the method which provides an opportunity to reveal the strengthening of executive and to allow empirical examination has been followed. Since the relationship between legislature and executive is regulated differently in the parliamentary government system and presidental system, the factors supporting the executive's superiority upon the political system have been examined under several titles. For instance, political scrutiny of government is distinctive of the parliamentary government system. However, instruments related to the responsibility of the executive are not used in current societies. It is known that the "convergence" caused by the political parties that constitute the legislative and executive organs has led to the executive being free from legislative scrutiny. This determination can be concreted thanks to statistics on the use of control mechanisms in parliamentary government systems where the legislative majority and the executive are comprised of the same political parties. Hovewer, in presidential systems where the executive is not subject to political scrutiny by the legislature, the disuse of the control mechanism cannot be decisive factor. In a similar way, "impact of the executive in the making law process" is excluded from the examination, because of the rigid separation of powers between the legislature and the executive in the presidential system. Besides these differences, there is also common titles to clarify the strengthing of the executive both in parliamentary and presidential government systems. The determination of the executive, the elements related to the term in office and "expansion of the function area" are the common points that can illuminate of the reinforcement of executive against legislature both in parliamentary and presidential systems. The expansion of the function area of the executive has been researched on two different grounds, depending on the developments that emerged at different times. With the adoption of the principle of the social state, the first distinction is the interference of the executive in economy in order to bring into balance in order to support socially and economically disadvantaged groups and/or to protect the status quo. This development is the result of a process that started with the acceptance of the general suffrage. Hovewer, especially after the Second World War, "new threats" to economic, environmental and health emerged with the effect of globalization. This situation has increased international co-operation as it has creatad bigger problems than states can handle; it even caused a change on international co-operation. The supra-national organizations have changed the relationship between national institutions. One of the most discussed examples of this is the shift caused by the European Union against the national legislature. The European Union establishes the binding rules for its members in different ways according to its founding treaties. The national legislatures cannot directly participate in this rule-making institutions, but the national executive can. The inequality created by this issue, has been mentioned not only in the literature, but also the German Constitutional Court through its jurisprundence proceeding on the dispute of constitutional organs (Organstreit). In the first two chapters of the study; I searched for a holistic explanation of the executive becoming the dominant agent of the political system, within the development line of the theory of the state, without prioritizing the social and historical conditions of any state. The nation-state organization that emerged in the history of European political thought and expanded to other countries, made the study like this possible to conduct. Therefore, the goal of this study is to provide a theoretical explanation within the modern theory of the state, which is ground on the acquisition of the power of "supreme power of command" through the theory of secular legitimacy and sovereingty in its historical development that can be started with Nicolo Machiavelli. This method followed above is abandonded in the third chapter, which addresses with the relationship between the legislative and executive powers in Turkey. The relationship between the legislative and executive powers in Turkey has been discussed broadly since the Ottoman modernization period, which can be considered as the legator of Turkish constitutional developments. In this context, the Ottoman's intellectuals' approach to the theory of the separation of powers and the transfer style to the public; the meaning of sovereignty in clasical Ottoman thought and its manner of handling in 1876 Constitution and its amendments in 1909, are studied. The political power structure, which could not be considered separately from its religious fountain in classical Ottoman thought, was not altered. In the first chapter of this study, it is detected that the separation of powers is based on a legislative authority liberated from religious restrictions. Whereas, neither the Constitution of 1876 nor the the amendments of 1909, succeeded in establishing a modern political power with secular legitimacy. Rather, there was not an intention to building a political power, which based on the national sovereignty, with the constitutional limitations, until the beginning of the Turkish constitutional development started with the War of Independence. While Turkish constitutional developments are discussed, it is generally considered that the political system was built on the superiority of legislative power, until the Constitution of 1961. However, considering the exercise of constitutional/legal regulations as shown in this study; during the War of Independence, the executive was the first constitutional institution protected its stability, which can be followed its functioning and continuity through the person of Mustafa Kemal. Heyet-i Temsiliye (Committee of the Representative), whose authorities and members were finalized at the end of the Sivas Assembly (4- 11 September 1919), took the executive on during the War of Independence and after the dismissal of the last Ottoman parliament (Meclis-i Mebusan) led the meeting of the National Assembly in Ankara. The keynote speech of Mustafa Kemal in the first meeting of the National Assembly about requirement of undertaking the executive function from the Heyet-i Temsiliye by the National Assembly, has not been given enough importance. When this speech and some of the members of the National Assembly's resistance about the "takeover the executive" and the "urgency" of this issue evaluates together, the relationship between the executive and the legislature would be reviewed accurately. The relationship between the legislature and the executive, namely the goverment system in Turkey, cannot be understood just looking at the legal texts. The practice may refer to the existence of a system of government different and sometimes even the opposite from the government system which is regulated by the constitution. The parliamentary government system through the constitutional provisions in Turkey was regulated for the first time by the Constitution of 1961. The Constitution of 1982 also regulated a parliamentary system of government. But, it has been discussed that in its original provisions, the Constitution of 1982 authorized the head of the state broader authoritiy than a classical parliamentary system. This debate was waken in 2007 with the amendments that envisaged the direct election of the president of the republic by the people. Although, the procedure of election was changed in 2007, there was not any amendments on the authority of the president of republic. But, a new system of government was adopted with the constitutional amendments made in 2017. In this new system, the executive power is left to a single person, just like the presidential system. Unlike the presidential system, the election of the National Assembly and the president is made on the same time; the president is granted to the authority to set general regulatory rules independently from parliament delegation and the president is not to subject of parliamentary control. If this historical development examine carrefully, it is easily recognized that the authority and function area of the executive was expanded, especially about the economy, just like the process of other countries. The difference of the process in Turkey is that the amendments of 2017 hold comprehensive constitutional/governmental system changes that made the executive the principal actor of the system. The separation of powers has a recent history, just like the modern state. The institutions of the modern state were also formed by the transition of the medieval political institutions. These early modern institutions' powers and duties got their current form with a long historical transformation. The constitutions limit the institutions' scope of authority by adopt this political heritage and put it into writing them. Early theories of the separation of powers (including, John Locke and Montesquieu) were also shaped in a society that was formed of different classes and the political participation was depended on these classes. These different bases of legitimacy that disappeared with nation state, were replaced by national sovereignty. Thus, the legislature and the executive, which used to have different bases of legitimacy, has become an identical representative institutions. When political parties, which shape by the people gathered around the same aim and hope, use the powers of the legislature and the executive in the same way; the head of executive/president, who is mostly the leader of the political party, has become stronger. The strength gained by the executive shall be considered with the economic function of the state. This function requires the legal and political assurances for the protection of economic order through agreement between the parties of manufacture and trade. Extensive powers that will expand the executive's area of action in current societies show themselves up in international relations and economy. Therefore, we can see that the economic conditions created by globalization lead to the reinforcement of the executive. But, this issue shall be considered that it is born the gap in the basement of the theory, not a deviation from the theory of the separation of powers. It should be noted that the reinforcement of the executive power to dominate different opinions and the failure to exercise its political responsibility damages democracy. It causes a democracy illusion based only numerical superiority.