Is the constitutional preparation sufficient for a presidency? by Levent Köker*

Is the constitutional preparation sufficient for a presidency? by Levent Köker*

Photo: Cihan

May 20, 2012, Sunday/ 14:56:00

Discussions surrounding the presidential system, which from time to time have found their way into the topics of discussion in Turkish politics, have once again come into the spotlight, albeit in different dimensions and with a stronger emphasis.

During the period that stretches from late President Turgut Özal's presidency until today, this topic has become one of the most intense polemics between the leading power and its opposition.

A presidential system, like all political systems, is not a system that can be defined simply by its constitutional and other laws, nor can it be merely confined to this. From this perspective, the system's legal aspects, the political and cultural traditions and the characteristics, as well as its societal structure must all be taken into account together.

Also, the presidential system, legally, does not necessitate that the head of state must be in a strong position. And referencing my earlier point regarding polemics and their deceiving messages, anytime the presidential system is discussed within Turkey, an oppressive system with a “one-man dictatorship” is what is understood. However, the idea of a dictatorship is incorrect. It is in actuality the complete opposite; the presidential system allows for a weaker presidential role than the parliamentary system does for its prime minister. In the presidential system, legislative power, like in the parliamentary system, comes from the people by way of elections. Apart from this, executive power (that is to say the government) in the parliamentary system is derived from and subservient to legislative power. This control, if the necessary conditions exist, could lead the legislative branch to facilitate the fall of the government.

The executive branch's influence on legislative activities

Counter to this, it is possible for the executive branch to influence the legislative activities and this system, generally speaking, functions in this way. In the parliamentary system, the executive is required to receive a “vote of confidence” from the legislative body. In the presidential system, for the “president” to function as the executive no vote is necessary. For secretarial appointments the legislative body's (in this example it is more accurate to say “senators”) approval is required. This approval is not only important for the president's appointments but also for important executive decisions like the government budget. Reflecting on what has been said up to this point, I would again like to raise the point that the president is weaker than the prime minister of a parliamentary system or that he is at least under more rigorous supervision.

The prime minister in a parliamentary system (excluding coalition periods), as the leader of the political party holding the most seats in parliament, can have control of both legislative and executive branches. As such, the politician in that position of power can be described by the title of Maurice Duverger's masterpiece translated into Turkish 40 years ago: an “elected king.” Within a system of “checks and balances” that has definite separation of the legislative and executive branches, the legislative body's function is of course performed through the political process and the executive does not have the ability to control the legislature legally or through the political culture.

Let me elaborate on this matter further. The differentiation between the legislature and executive is different in the presidential system as compared to the parliamentary system. The presidential system's differentiation is noted as the “differentiation of power,” while the parliamentary system's is labeled as “duty (or functional) differentiation" or at times even division of labor.

This difference in terminology also shows that both systems, in their essence, are founded on different mindsets. While the presidential system foresees a definite and fundamental separation of power, it has thought of this as a manifestation of a “checks and balances” system which it sees as necessary for the protection of freedoms. Accordingly, “individual freedom,” is the most basic of values, and the greatest threat to this value comes from political power. As such, as worrisome as the power of one person is to the threat of freedoms, the bullying of the majority is just as threatening and real a threat at that.

As such, legislative and executive powers must with certainty be separated from one another as two important components of state power and should be granted the resources to inspect and balance any extremity that will threaten one another's freedoms. This understanding of differentiation of power based on the basis of “inspecting and balancing for freedoms” also encompasses the division of the legislation into two within itself.

The most vibrant and functional example of this is the US Congress, a legislative body comprising the House of Representatives and the Senate.

It is necessary to point out here that the fact that the legislative system is divided into two in this manner is not an attribute unique to the presidential system.

Whether the system is a presidential one or a parliamentary one, or a system in between wherein there is a half-presidential system, there can be a “senate” in the legislative power. For example, England, the cradle of the parliamentary system, has the “House of Lords.” Germany has its “Bundesrat,” while France, Spain and Italy all have senates. However, with the exception of France, which practices a semi-presidential system, all have parliamentary systems.

Difficulties without a senate

With that said, it is possible to say that a legislative power without a senate will experience a great deal of trouble in fulfilling its role of maintaining checks and balances as required by the presidential system. In my opinion, even if a “parliamentary system without a parliament” is possible, we cannot say the same about a presidential system. To paraphrase, there cannot be a presidential system without a senate, or there should not be one.

If a “senate” is indispensible for the presidential system, then we must talk about the principle on which the senate should be thought of. This topic is particularly important for Turkey, and the experiences of the republican senate of the 1961 constitutional era need to be considered to this end. Let me say that in the constitution of 1961, which had libertarian elements, the senate had a structure that highlighted the tutelage element which underscored the feeling of distrust that the state elite had for the majority of the people. We can see this in the conditions that were set forth, such as the existence of the coup instigators of 1960 as the “natural senators,” the “quota senators” who were appointed by way of the presidential quota and from the requirement of being over 40 years of age and having a post-secondary education in order to be chosen or appointed to the senate. However, the senate, which is an element of a political system, has become an institution that is an assurance of freedoms against political power in contemporary democratic republics. In this regard, if the presidential system is to be considered an option for Turkey, it is mandatory that it is thought of with a senate that is structured and based not upon the system of tutelage but on the assurance of freedoms.

Just as important as the attributes of the organizational structure which shape the presidential system is the general understanding of the state which the system is a part of, as well as the features of the political culture that it is based upon. It has frequently been stressed that the success of the US, which is the only system that has proven to be successful in maintaining a democratic and pro-freedom-based system, is based on a political culture wherein political party life is nested in individual freedom, decentralization and a more “laid-back" discipline that differentiates itself from the continent of Europe based on the principle of individual representation. The discussion taking place in Turkey on this matter must not overlook this. One wonders whether there is such political ground that is libertarian in Turkey.

*Professor Levent Köker is a lecturer at Gazi University.

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