Updated: Oct 7
Ms Begumhan Simsir
Junior Associate Editor, Legit
Shritama Saha(Graphic Intern)
Separation of powers, which also known as "checks and balances", is one of the most relevant constitutional doctrines, which affects the democratic systems we live in. On many occasions, during the history of humanity, it was seen that unlimited and uncontrolled power almost always resulted in human tragedies. To prevent this kind of abuse, and other risks power carried, the idea of separation of powers was created. The main idea of the separation of powers is to make the branches of the government, executive, judiciary, and legislature, responsible to each other and find the balance between these three. The separation of powers doctrine is an essential element of the Rule of Law. Even though the separation of powers shows itself in various systems, the ideals it represents and the goals it sets are similar. One of these goals is to protect and ensure the fundamental rights of the people against a much stronger actor, which is the State.
Fundamental rights are mentioned almost in every constitution in the world, and they are ordered to be respected and protected. However, when it realizes the fundamental rights and their effective protection mechanism, the percentage is less low. As it was mentioned before, and as it is known, individuals are less powerful actors in legal meaning when they are against a state, and the State has many occasions where it can harm, limit or take away an individual's or a group's fundamental rights. When this kind of violation occurs, individuals have several legal options in front of them. They can take legal action in a domestic court, a regional court or a human rights body (such as European Court of Human Rights, African Court of Human and Peoples' Rights or Inter-American Court of Human Rights) or an international human rights body (such as Individual Complaint Mechanism under United Nations). In many countries, it is a precondition to exhaust domestic remedies before applying for a regional or international one. Thus, in many cases, domestic courts are responsible for deciding on human rights matters in which State might have violated a person's fundamental right with active conduct or negligence.
There are fundamental elements a court has to fulfil to be able to answer to the needs of people, whose rights have been violated by the State. Individuals should be able to access independent and impartial courts, which provide fair trials and effective decisions. To achieve independent and impartial courts, separation of powers and balance should be established between the three branches of the government. The amount of separation depends on the type of government, and the branches have more influence on each other in a parliamentary system. At the same time, their connection is less existent in a presidential one. The type of system, of course, is not the only determinant that would affect independence and impartiality of a court, the political traditions of the country also have a significant influence on this particular situation.
The political tradition in Middle Eastern countries tends to give the executive branches extensive governing privileges and independence, which carries the risk of power abuse or privilege misuse. The checks and balances system in this scenario does not constitute three equal branches but of one stronger than the other two, with the risk of influencing and exercising power on the other two. This inequality of powers can easily result in the judiciary not being able to institute limitations and preventions to restrain the powers of the executive and provide effective protection to the rights of the individuals. The existence and practice of the fundamental rights depend on a functioning separation of powers system, where the legislature provides the laws outlining the rights and limits of the individual, while also enumerating on the duties of the State. The onus, therefore, lies with the judiciary to monitor the possible violations of these rights and act accordingly. All three branches are to check and balance each other and each other's powers and limits.
Constitution of a country is the document that provides the basic structure of its government and fundamental rights regime. Every constitution carries the sights of the legal, political, and cultural traditions of the society they rule. No one is or should be above the constitution, no matter if they are a natural person or a juridical person. The constitution is also above the three branches, of course, in certain situations with specific procedures, one or more of the branches can change the constitution. However, still, they would be doing this in the limits that were created in the constitution. As mentioned previously, the fundamental rights of the individuals, the duties and limits of the state power, and the rights' protection mechanisms are usually mentioned in the constitution, which means the executive branch as a priority has to respect the constitution to avoid human rights violations.
The extensive privileges of the Middle Eastern executive branches, usually demonstrate limited respect for the constitution. As mentioned before, one branch having more power restricts others' power as a natural outcome. This usually gives the executive the chance to set influence on the agenda of the legislature and restrict its power and actions. This power has similar effects on the judicative, which means even when the executive breaches provisions of the constitution; it rarely faces a legal consequence. The power an executive branch has on a judicative is more clearly seen in countries where the selection of constitutional judges is made solely by the executive, without the participation of any other actor in this process, to achieve the independence or impartiality of the court is not very possible. Either the judges would already be selected from the candidates who are already sympathetic to the executive and its policies, or they will think that they owe their position to the executive and would not want to contrast with the executive in their judgments. It is not uncommon in the MENA region for the executive branch to have a significant influence over the constitutional courts. What is even more effective in making executive more influential on judges is the power of deposition of the judges. In the presence of such authority, judges become even more vulnerable against the influence of political actors.
Lack of the firm standards established in a country's constitutions or legal codes that define the number of the judges of the courts or having easy to amend rules on the number of justices creates vulnerability against the executive. In these circumstances, the executive will be able to change the number of judges whenever it seems fit. It can cause the executive to always having the majority of judges by adding more or forcing an opponent judge off the bench. Courts, whose members are appointed by a single actor, executive, are under a high risk of acting under the influence of said actor.
Even though balancing the power dynamics is crucial for the whole governmental system, when it comes to the protection of fundamental rights of the individuals, strengthening the judicial branch and making it competent of monitoring violations and providing protections for the individuals is of vital importance for human rights. The main priority in these countries should be the strengthening of the rule of law by constitutional and legal norms, which would make it possible for the Judiciary and Legislature to be free of the pressure from the executive or each other. The certain guarantees should be provided for the judges, for them to be free of outer influence in fear for their lives, jobs, or social status. It is even more critical to reorganize the appointment procedure of the court members, to create impartial, independent, and inclusive courts. The appointment process should not only be under the decision of a single actor, but it should also be made as widespread as possible to create a diverse group of judges who will be able to understand and include every member of the society and will not only represent a particular major group. Similar to the appointment process, the decision of the removal of the judges should not be given to a single actor due to similar reasons. A meritocratic approach should be adopted in the selection process of the judges rather than letting political reasons affect this process. Judges should be selected because of their high level of legal expertise and knowledge rather than their political opinions.
Regional human rights mechanisms should be made more accessible to every individual who has faced a violation of their fundamental rights, and a regional minimum for human rights protection should be established, which will not better the protection of rights in only one country but the whole region and encourage cooperation between the states. The usage of exceptional and military courts should be limited or better, ended, as they are the courts that have the most tendency to make decisions above the norms of the constitution and arbitrary rulings which might cause even more violations of fundamental rights.
Currently, there are various national and international projects, organizations and social movements encouraging these states to strengthen the rule of law and respect towards constitutionalism, their inclusion in the reform process and the creation of new human rights mechanisms will only make these more durable and stronger.
Grote, Rainer; Röder, Tilmann J. Constitutionalism, Human Rights, and Islam After the Arab Spring. New York: Oxford University Press, 2016, ISBN 9780190627645
Fahed Abul-Ethem, The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective, 26 Fordham Int'l L.J. 761 (2002). Available at: https://ir.lawnet.fordham.edu/ilj/vol26/iss3/8
Sujit Choudhry, Katherine Glenn Bass. Constitutional Courts after the Arab Spring: Appointment mechanisms and relative judicial independence. New York: International IDEA, 2014, ISBN: 978-91-87729-40-9
Abdalhadi Alijla, Executive Power in the Middle East. Gothenburg: University of Gothenburg, 2016
Özkan Duvan A. Possible Effects of the Constitutional Complaint Mechanism on Human Rights Practices. Annales de la Faculté de Droit d’Istanbul. 2015; 45(62): 29-42
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Legit Originals, Volume 1, Issue 1 (September 2020)