Why the Rule of Law is fundamental

We used to take the Rule of Law for granted in Britain – although we were aware that it was a privilege unknown to billions of people throughout the world. Gradually, however, we have been disabused of the trust that we had previously put in our legal and judicial system and in the police – let alone our political class and “the fourth estate”.

That’s why I chose to lead, in what is becoming another mini-series, with the post about the latest UK “sleaze” in a government for whom corruption has become nothing short of systemic. If the UK were still a member of the European Union, it would now be in danger of being named and shamed in the same breath as Hungary and Poland to which the previous post briefly referred - and whose transgressions are well summarised by the Commission in its latest (32 pages) report on Hungary and then its 2021 report on Poland (38 pages)

 I had mentioned an excellent report - Binding the Guardians - commissioned by an Irish member of the Left grouping in the European Parliament which gives fascinating case studies of three member countries – France, Spain and Bulgaria. The French judicial system is ultimately controlled by the Executive – which is inconsistent with the separation of powers; is hugely underfunded; and terrorist incidents have given the French State latitude to increase its powers to a worrying extent.

The MEP’s report is authored by Albena Azmanova who was initially educated in Bulgaria – and suggests 4 useful tests to use in the assessment of the quality and scope of the European Commission’s analysis; applies these tests to the Commission commentary; and finds the following problems

·       A dangerous conflation of “rule of Law” with aspects of procedural democracy

·       Vague, overly-diplomatic language

·       Restricted focus - The Commission report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’.

·       Failing to include the operations of the private sector 

A Blurred conceptualisation; In the 2020 Report, the Commission stipulates that all public powers should not only act within the constraints set by law but also in accordance with democracy and fundamental rights, and defines legality as implying a democratic process for enacting laws. The fallacy of conditioning rule of law on democracy is present explicitly even in some of the constitutions of EU member-states – something the Commission as guardian of the rule of law should be criticizing rather than condoning.

Thus, the preamble of the Spanish Constitution registers a commitment to “consolidate a State of Law which ensures the rule of law as the expression of the popular will” (emphasis added). Thus, the rule of law is reduced to legal provisions of democratic origin. This grave conceptual fallacy in the codification of the rule of law has already had nefarious political consequences. Thus, when trying to suspend the Catalan Independence referendum of 2017 with police violence (which was condemned by Human Rights Watch), Spanish Prime Minister Mariano Rajoy justified his actions as a matter of defending the law (namely, the Constitutional provision stipulating the “indissoluble unity of the Spanish Nation”) itself an expression of the will of the Spanish people. The European Commission at the time openly endorsed this 

As an aficionado of good clear English, I very much appreciated the way Azmanova dealt with the second issue – 

Vague/diplomatic language; while the authority of the Commission is based in its non-political nature and administrative professionalism, it tends to use diplomatic language in which criticism is delivered through euphemisms and understatements. Typically, it speaks about ‘weaknesses’ and ‘needed improvements’ to refer to grave problems.

This vagueness diffuses both the responsibility of the perpetrators and that of the Commission. Thus, in its chapter on Bulgaria, the Commission writes that a “lack of transparency of media ownership is considered as a source of concern”, and “Bulgaria’s regulatory process is considered to be lacking predictability and stability due to frequent changes of the legislation.” Who considers this to be of concern? Does the Commission judge that this is a rule of law breach? The wording leaves doubts about the Commission’s stance.

To help address this, as a minimum, a clarification of the difference between violations of the law and violations of the rule of law should be offered. As we noted earlier, threats to the rule of law emerge not when the law is violated, but when breaking the law is not punished, when the sanction is not uniform, and when there is no legal and institutional framework to enable that inequities be challenged and corrected. As the Report fails to draw this distinction, it covers an indiscriminate selection of issues: from violations of the law to flawed accountability mechanisms. On the one hand, making this distinction explicit would help dispel a common misperception—that any violation of the law is a rule of law violation—especially if this monitoring mechanism is to play an educational role. 

The final two issues can really be rolled into one 

Restricted focus of the Commission report; The Report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’. Of course, the Commission is right to exercise its discretion in delimiting the range of the Report. However, to avoid arbitrariness in making such a decision, logical argumentation needs to be offered in justifying this choice—none is given. The Commission’s failure to offer either a thorough or well-justified selection of rule of law violations, is evidence in the following features of the Report

The Commission has chosen, without explicit justification, not to address in a systematic way “accountability mechanisms for law enforcement, the role and independence of public service media, as well as measures taken to ensure that public authorities effectively implement the law and to prevent abuse of administrative powers.” (p.5, ft20). It also states that “the country chapters do not purport to give an exhaustive description of all relevant elements of the rule of law situation in Member States but to present significant developments” (p.5).

This is already problematic, as no criterion is offered for how the significance of the chosen developments is established. The Commission thus grants itself an undefined (arbitrary) mandate that enables an arbitrary use of its power. 

Letting the Private Sector off the hook; The definition of the rule of law in the Report correctly places an emphasis on the abuse of power but unfortunately it unduly restricts this to public authority (“Under the rule of law, all public powers always act within the constraints set out by law” -p.1) While concerns with rule of law indeed originated in efforts to constrain the arbitrary power of central governments, threats to the rule of law nowadays come also from powerful economic actors. This is why the Venice Commission uses in its Rule of law checklist a more expansive language: “everyone has the right to be treated by all decision-makers with dignity” (#15), noting that “individual human rights are affected not only by the authorities of the State, but also by hybrid (state-private) actors and private entities” (#16).

Thus, the Venice Commission updates the rule of law conception to the realities of the 21st century by stating that “all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of the rule of law” (#17) (Venice Commission 2016). 

I haven’t finished! Future posts will put the European discussions in the wider context of a revival of global interest in the issue of the Rule of Law