Separation of powers or the privilege of the powerful

The parliamentary system is based on the separation of powers between the legislative, executive, and judicial branches. In this system, the concentration of power/authority in a single hand is not permitted. The parliamentary system, which distributes and balances power among three focal points/pillars, relies on free elections that allow the free will of the people to emerge.

Until the recent past, specifically in Turkey, the legislative organ, the TBMM (Grand National Assembly of Turkey), the executive, the political power/government, and the judiciary were carried out by independent courts. Despite having many aspects that could be criticized and serious shortcomings, Turkey was considered a country in the democracy league with its parliament, constitutional history, and judiciary. In this respect, it also held a privileged position in the Islamic world.

It should be known that what we have described above is a story of the recent past, not the present. Following the constitutional referendum that introduced the Presidential government system, and the subsequent regulations that neutralized the TBMM, intertwined the judiciary with the executive, and tied all dynamics to the President, Turkey is now characterized as a country governed by a "reis" (leader) system that has fallen out of the democracy league.

By transitioning from the separation of powers to the unity of powers—or in other words, from the separation of powers to the privilege of the powerful—Turkey has radically parted ways with democracy. The speeches made at the “New Judicial Year” opening ceremony held at the Court of Cassation on September 2 should be read as the highest-level expression of Turkey's transition from the democracy league to the leader's league.

The consensus formed between the executive and the judiciary regarding a “New / Civil Constitution,” which is voiced to legitimize the President's de facto situation and provide it with a legal shield, is thought-provoking. The discourse in the new judicial year, which replaced legal terminology with religious rhetoric consistent with a madrasa culture, has been sufficiently explanatory in showing the state of a judiciary under the shadow of the executive.

Following the opening of the judicial year, the speech made by the President of the Constitutional Court at the swearing-in ceremony of the newly elected member carries a feature that confirms our assessment above. The judiciary, shaped around and under the executive—that is, under the initiative of the executive—provides a striking snapshot of the new legal order that Turkey has transitioned into. 

Those who are confused about what is actually intended by the “New and Civil Constitution,” which is constantly voiced at the highest levels of power and for which an attempt is being made to create public demand, should look at the process we are experiencing. One should also look at the current process regarding freedom of thought and expression, the right to a fair trial, and whether the judiciary is independent.

It is a historical necessity for Turkey to abandon the unity of powers—which has shown negative results in a short time, increases problems instead of reducing them, and makes them more complex—as soon as possible and return to the separation of powers. This stands before Turkey as its most important and burning issue. Turkey is experiencing a full-blown regime crisis, a state of regime deadlock.

It is difficult to say that our bar associations, which should always make democracy, law, and judicial independence their first agenda item, have passed this test well. Professional organizations, especially our bar associations, must never forget that they have duties and responsibilities stemming from the nature of the profession and its honorable history, such as defending democracy, the rule of law, human rights, and freedom of thought and expression, just as much as protecting and defending the professional rights and interests of their members.

In the process we are living through, the answer our bar associations will give to the question of whether to stand with the separation of powers or with the powerful, and the practice they will exhibit, will undoubtedly be recorded in the grade book of history!