Looking Through Drawbacks and Hobbles: Not on How Democracies Die, But on How Liar Democracies Will Survive in Third World Countries

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Looking Through Drawbacks and Hobbles: Not on How Democracies Die, But on How Liar Democracies Will Survive in Third World Countries
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  Looking Through Drawbacks and Hobbles: Not on How Democracies Die, But on How Liar Democracies Will Survive in Third World Countries? A Comparative Analysis between Weimar Constitution and Turkish Constitutional Shifts I.   Introduction The Weimar Constitution of 1919, the first parliamentary democracy on German was established. Although it is dominated by the downfall of this republic in National Socialist terror, it was not only important for political science, but also law, constitution making  pr  ocess and its intersections with each other. “  All research on the Weimar Republic more or less constitutes an examination of the reasons for the failure of this democracy .” says Klaus Tanner. 1  The Weimar Constitution shows us that constitution-making process and democracy have been closely interdependent each other. As Tanner states that all research on the Weimar Republic more or less constitutes an examination of the reasons for the failure of democracy. Therefore it also opens the way for other countries to serve as a model to understand the regime politics, shifts, turnovers and turmoil from democracy through constitutions. Turkey could be an example for this comparison particularly after 2016 Constitutional Referendum in which political regime shifts from so-called democracy to authoritarianism. Constitutional institutions have been dissolute from that day on and electoral rights have been in jeopardy aftermath of referendum and following elections. The political and administrative process experienced by Turkey since the establishment of the Republic is a constitutional process narrow sense. The political changes and developments in society have been finally reflected in the constitution and collective social rights. The roots of Turkey’s constitutional history are found in the late years of the Ottoman Empire and the 1876 Ottoman Constitution, moreover constitution-making in the late Ottoman Empire and 1  Klaus Tanner, Protestant Revolt against Modernity, in the The Weimar Moment: Liberalism, Political Theology and Law, edited by Leonard Kaplan, Rudy Koshar, Lexington Books, 2012, p.3  republican Turkey has been a top-down process. 2  Populism and regime shits are at the centre of these processes however as we know from the Weimar Constitution not only politics play an important role this kind of deeply-rooted changes. But also institutionalism of law and human rights have been turned into a target of these regimes in order to enable efficacious  political results of the authoritarians would like to success. According to Ergun Ozbudun, who is one of the prominent Constitutional Law professors in Turkey, called this period “delegative democracy” coming from the O’Donnell’s description which co mes to mean that  president is seen as only represent of blessed mission. 3  It also paves the way for the populist regimes to dominate all impediments that they may possibly be confronted. All democratic checks and balances have been considered as drawbacks and hobbles. As Grigoriadis states that populism and majoritarian views dominated the government discourse and constitutional reform was now framed in terms of introducing a strong  presidential system. Nevertheless, especially in the aftermath of the abortive coup of 15 July 2016 and the declaration of state of emergency, the debate moved beyond the majoritarianism. 4  The new contested issue in Turkey is, therefore, whether there is a competitive authoritarian system or not. 5  Moreover and finally, 31th March Local Elections and position of the Supreme Committee of Election takes the issue one step further and although there is no reason for annulment and re-run of the mayor elections, Turkish authorities have scrapped the result of a vote for Istanbul mayor that was lost by the candidate  backed by the president, Recep Tayyip Erdoğan, in response to calls by his AK party for a rerun. In a move that hit the lira and drew opposition accusations of “dictatorship“, the high election board (YSK) ruled that a fresh Istanbul mayoral contest must be held on 23 June. All these shows that single-rule authoritarian regimes may have possibly consider elections that they would not won is kind of impediment in front of them, although this kind of election would have enable them to come to a power in 2002. All these resemblances remind me something political and legal in Weimar Republic and aftermath. As a result, I would like to make an analogy and comparison in this paper. How democracies die is a question asked by Levitsky and I have an answer that democracies die fragmentary 2  Ioannis N. Grigoriadis, Democratic Transition and The Rise of Populist Majoritarianism: Constitutional Reform in Greece and Turkey, Palgrave Macmillan, 2018, p. 27. 3  Ergun Ozbudun, Constitutionalism and Democracy, Yetkin Press, 2018, p.144. 4  Lucan A. Way, Steven Levitsky, The Rise of Competitive Authoritrianism, Journal of Democracy, Vol.13, no.2. (2002) 5  Berk Esen and Sebnem Gumuscu, Rising Competitive Authoritarianism in Turkey, Third World Quarterly, Vol.37., no.9. (2016) pp.1582-1584.  and in small pieces. Turkey is just one of the small pieces of democracy throughout the world, however in today’s world called as “big regression”, this fragmentary example shows very spectacular model for rest of the world. From my point of view, the only way to understand this small fragment is only possible by looking through constitutional changes and shifts. In this paper, I would like to look at this process by comparison of Weimar Republic and ask questions on transition not from authoritarian regimes to democracy, from so-called/ half-measure representative parliamentary democracy to authoritarianism by thinking long and hard the function of the law in society. I would like to go down deep of the legal institutions such as elections, constitution, referendum, court packing strategies, Constitutional Courts and Election Boards as a cover of authoritarianism by comparing them with Weimar Republic. II.   What Happened in Turkey: A Case Study Through Authoritarianism I would like to highlight only the most crucial cruxes of the last ten years: 1. The constitutional amendments of 2010 (court packing and restructuring the judiciary) 2. The de-constitutionalized state of emergency 2014-2016 in the Southeast of Turkey (the meaningless of the constitutional rules) 3. The elections of June 2015 / November 2015 (“we will elect until the result satisfies the AKP or we cannot guarantee for the public security!”)  4. The constitutional amendment of May 2016: Exceptional lifting of the parliamentary immunity of the deputies (or “we have no time for constitutional guarantees!”)  5. The attempted Coup d’Etat of July 15th, 2016: The storm of state of emergency decrees (and abandonment of the prevailing case law since 1991) 6. The criminal proceedings against high judges and dismissals from the courts (2016-ongoing) 7. The constitutional amendments of 2017 (The last shot of the rule of law? ) 8. The Declaration of Judicial Independency of the Council of Judges and Prosecutors from March 14th, 2019: Attempts to convince the public or himself? 9. Do elections still matter?  The Weimar Constitution is prepared to be able to over democratic principles and continutity. 6  It is kind of memorandum of understanding according to the Storer which makes correlation between liberal democracy and conventionalist conservbative political culture. The idea behind the constitution is reconciliation between classess which is proletariat and  bourjouvazi. 7  Article 48 of the Weimar Constituion enshrined below:  Artikel 48    Article 48  Wenn ein Land die ihm nach der Reichsverfassung oder den Reichsgesetzen obliegenden Pflichten nicht erfüllt, kann der Reichspräsident es dazu mit Hilfe der bewaffneten Macht anhalten. In the event of a State [14]  not fulfilling the duties imposed upon it by the Reich [15]  Constitution or by the laws of the Reich, the President of the Reich may make use of the armed forces to compel it to do so. Der Reichspräsident kann, wenn im Deutschen Reiche die öffentliche Sicherheit und Ordnung erheblich gestört oder gefährdet wird, die zur Wiederherstellung der öffentlichen Sicherheit und Ordnung nötigen Maßnahmen treffen, erforderlichenfalls mit Hilfe der bewaffneten Macht einschreiten. Zu diesem Zwecke darf er vorübergehend die in den Artikeln 114, 115, 117, 118, 123, 124 und 153 festgesetzten Grundrechte ganz oder zum Teil außer Kraft setzen. If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153. Von allen gemäß Abs. 1 oder Abs. 2 dieses Artikels getroffenen Maßnahmen hat der Reichspräsident unverzüglich dem Reichstag Kenntnis zu geben. Die Maßnahmen sind auf Verlangen des Reichstags außer Kraft zu setzen. The President of the Reich must inform the Reichstag without delay of all measures taken in accordance with Paragraphs 1 or 2 of this Article. These measures are to be revoked on the demand of the Reichstag. Bei Gefahr im Verzuge kann die Landesregierung für ihr Gebiet einstweilige Maßnahmen der in Abs. 2 bezeichneten Art treffen. Die Maßnahmen sind auf Verlangen des Reichspräsidenten oder des If danger is imminent, a State government may, for its own territory, take temporary measures as provided in Paragraph 2. These measures are to be revoked on the demand of the President of the Reich 6  Colin Storer, Weimar Cumhuriyeti’nin Kısa Tarihi, İletişim Press, 2015, İstanbul, p . 78. (A Short History of Weimar Republic, 2013 I.B. Tauris & Co. Ltd.) 7  Storer, ibid, p.79.  Reichstags außer Kraft zu setzen. or of the Reichstag. Das Nähere bestimmt ein Reichsgesetz. Details are to be determined by a law of the Reich The text of the Article neither precisely defined the kind of emergency that would justify its use nor expressly granted to the President the power to enact, issue, or otherwise promulgate legislation. However, such an inherent Presidential legislative power was clearly implied, as the Article expressly gave the Reichstag the power to cancel the emergency decree by a simple majority vote. That parliamentary power implied that a decree could, either by its express terms or its operation, impinge on the Reichstag's constitutional function. 8  It is very important to make this correlation between Weimar Constitution Art.48 and the Turkish Constitution’s articles related to state of emergency. Storer states that Weimar Constitution was trying to make a balance between legislative function and powerful executive 9  however it was obliged to be fall since it constituted a policy which is predicated on concessions. Although there is an article 4 stated “The generally recognized rules of international law are valid as bining constituent parts of the law of Germany.”   as a  propagandist function as well as a symnbolic one since it reveals the democratic constitution  beyond positive law itself. 10  This article showed that law is not passive element that binds state actors, but alw creates state actors actively and it is kind of acception that international legal order would have been prevailed over the national one. However there is another reality and legal gap in the constitution itself and it took us to the Reichstag Fire which allowed to application of article 48 of the Weimar Constitution. Haffner narrated this transition period by stating that Reichstag Free Decrees by Hindenburg allowed suspension of freedom of thought and privacy of communication, limitless authority to the police officers in terms of search and seizure. 11  Within that period, going on the stumpt of left parties had been prohibited. Haffner 8   Mommsen, Hans (1998). The Rise and Fall of Weimar Democracy. UNC Press. pp. 57  – 58. ISBN 0-8078-4721- 6.  (" Mommsen ")(confirming that only a simple majority of Reichstag was necessary to overturn an emergency decree)   9  Storer, ibid, p.236. 10  Peter Caldwell, Sovereingty, Contitutionalism and the Myth of the State: Article Four of the Weimar Constitution, in the Weimar Moment: Liberalism, Political Theology and Law, Edited by Leonard Kaplan and Rudy Koshar, Lexington Books , p.345. 11   Sebastian Haffner, Bir Alman’ın Hikayesi, İletişim Press, 2018, p.108. (Sebastian Haffner, Geschichte eines Deutchen. Die Erinnerungen 1914-1933, Deutcshe Verlags-Anstalt/ Random House GmbH. Münche, Germany, 2000)
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