Tag Archives: Rule of law

The rule of law: a simple phrase with exacting demands

If the finger is to be pointed—rightly—at Hungary and Poland, then the EU must insist on compliance by all with universal norms.
By Albena Azmanova and Kalypso Nicolaidis – That the European Union, in its moment of public healthcare emergency and acute economic plight, should find itself paralysed over such a seemingly abstract matter as the rule of law is one of the great paradoxes of our times. And yet this is exactly the conundrum plaguing approval of the EU’s seven-year budget and recovery fund, totaling €1.81 trillion, which Poland and Hungary have been blocking over rule-of-law conditionality for the funds’ disbursement.

Respect for the rule of law is one of those self-evident truths—the absolute minimum requirement of decent political rule—which should be unproblematic in the family of liberal democracies that is the EU. It is equally beyond doubt that the prompt approval of the pandemic recovery fund is in everyone’s interest.

Many commentators assert that the EU should stand up to the defiant governments, in the name of its fundamental values. We do too. But our hope is that we, in Europe, can use this moment as an opportunity to question ourselves further.

Most of us may believe that the arguments put forward to resist rule-of-law conditionality are disingenuous. And they are. But we must still take them seriously when they are presented in line with … the rule of law.

Hungary and Poland are claiming that, by being poorly defined, the rule-of-law principle opens the door to discretionary decisions and thus to the abuse of power.

The rule of law as a political principle and legal norm was indeed born of the ambition to constrain the arbitrary power of central authority. This was why the English barons forced King John to adopt the royal charter of rights, the Magna Carta, on June 15th 1215. The specification of basic freedoms, codified not as privileges for a handful of aristocrats but as abstract and unconditional rights, was meant to ensure that no authority could place itself above these rights in pursuit of its political ends

It is true that the EU should make no compromises with the very foundation of the liberal political order. But the EU itself has complied with these principles erratically and selectively, thus violating the spirit of the rule of law.

This has been evident in several instances—from lack of concern with the Silvio Berlusconi media monopoly in Italy to France’s semi-permanent state of emergency, Malta’s and Slovakia’s complacency with political murder and the Spanish government’s response to the 2017 independence referendum in Catalonia. Often, the EU is content with narrowly reducing the remit of the rule of law to a simple matter of legality—ignoring routine violations of core values, such as the right to peaceful assembly, freedom of speech or even the right to liberty and life itself.

Has the EU not thereby set itself up for the current crisis, supplying the ammunition for autocrats to try to absolve themselves from compliance with the rule of law? more>

The EU’s credibility is at stake

By Otmar Lahodynsky – In July, after a four-day marathon summit in Brussels, there was agreement on the EU budget for 2021-2027 and a recovery fund for the EU’s 27 members following the COVID-19 crisis.

Together, almost €2 trillion have been reserved for this purpose. The €750 billion corona aid package is intended to help those countries that have been the most affected by the disease, including as Italy, Spain and France, but also the other Member States as they will need to rebuild their economies.

At the EU summit, a typical Brussels-style compromise was reached – each head of government presented themself as a winner at home if they will receive a lot of money for economic recovery. It was then that the so-called “frugal four” – Denmark, the Netherlands, Austria and Sweden (plus Finland) – forced a reduction in the number of grants in exchange for an increase in the share of loans and a cut in their membership fees. The heads of Poland and Hungary also celebrated at home after the successfully de-linked their access to EU funding from their records on the rule of law.

Subsequently, however, the other EU states introduced this clause by a clear majority.

The Poles and Hungarians felt pressured and they vetoed the seven-year EU budget, which requires unanimity despite the fact that they were not bothered that they had previously approved it.

In his explanatory statement, Polish Prime Minister Mateusz Morawiecki railed against an “attack on Polish sovereignty” and adding that the EU was no longer the same as when Poland had joined the bloc in 2004, a generation after the end of Communism. Morawiecki said the Polish economy was so strong that it no longer needed any subsidies from Brussels (more than €12 billion each year). Morawiecki said that Poles were even considering an EU withdrawal along the lines of Brexit.

Hungarian Prime Minister Viktor Orban, Brussels’ bête noire, went even further. In his view, the EU is acting like the Soviet Union once did. It wants to blackmail Hungary and force it to accept Middle Eastern refugees. In the future, Orban added, the European Commission would have the power to meddle in the internal politics of all of the Member States, as it sees fit. Orban also emphasized that the EU’s previous accusations against Hungary were all unfounded and that the concept of the rule of law was not precisely or universally defined.

The reality is that these core concepts of the bloc were long-ago enshrined in the EU treaties and in Europe’s charter of fundamental rights. Conditions for EU accession were already laid down in the 1993 Copenhagen criteria and include the stability of institutions, democracy, the rule of law, respect for human rights and respect and protection of minorities.

The Commission has, for too long, turned a blind eye to the transgressions of the nationalistic populists in Poland, Hungary and other Eastern European countries. The isolated attempts to bring about punitive proceedings under Article 7 of the EU Treaty did not act as a deterrent, because sanctions were not imposed. For this reason, the governments of Hungary and Poland mutually helped each other.

But now the basic principles of the EU, above all the rule of law, are being put to the test. more>

Evaluating democracy, the rule of law and fundamental rights in the EU

The defense of universal norms needs to be broadened beyond Hungary and Poland and beyond the rule of law.
By Birgit Sippel – There is currently a lot of discussion in Europe about democracy, the rule of law and fundamental rights. The European Commission and the European Parliament have submitted their proposals, on what should examined, in what framework—and by whom.

But to understand what is at issue, the concept of ‘rule of law’ must first be considered more closely. The English term seems clearly expressed: laws lay down what is permissible—and what is not.

This is a definition favored especially by the Hungarian prime minister, Viktor Orbán, the leader of the Polish Law and Justice party, Jarosław Kaczyzński, and their supporters. In every case, it is said, appropriate Hungarian or Polish laws exist for all that is criticized by the European Parliament and the commission, by the Council of Europe and indeed by many judges, lawyers and citizens in their own countries.

In reality such a definition falls short. In the narrow sense, it could apply to many autocracies and dictatorships, which none too seldom have laws for discrimination, exclusion and persecution.

But the European Union is an association of democratic states. Of course, laws determine what is possible—and what is not. At the same time, however, our laws also have the function of protecting democracy and the democratic rules of the game, as well as the fundamental rights of all.

Today, coalitions of two or more parties rule in many European countries. Orbán and Kaczyzński can rely on absolute majorities in their parliaments. Yet, wherever they are, democratic governments are bound by the rules of the game—for example, orderly procedures, which pay attention to the rights of the opposition, the parliamentary minority, sustaining democracy and diversity of opinion.

The same applies to the allocation of funding. Public monies must only be used for the purposes envisaged in each case. And all municipal and social organizations must be able to receive such funds—independent of whether they affiliate to the governing party, support it or associate with the opposition, adopting a stance critical of the government.

In this context, the judiciary has a special role to play. On the one hand, it must be able to apply the laws of a democratically constituted state in a manner independent of parties and governments. On the other hand, it must be able, in the light of the constitution, to examine independently whether new instruments protect its principles, the democratic rules of the game and the rights of the citizenry.

The media also have a special responsibility on all these issues. They should report freely and critically, ask questions, highlight abuses and where necessary touch a raw nerve. This is an important element of democratic control and an important contribution to an informed public. more>

The rule of law is under duress everywhere

By Ted Piccone – Anyone paying attention to major events of the day in the United States and around the world would know that the basic social fabric is fraying from a toxic mix of ills — inequality, dislocation, polarization, environmental distress, scarce resources, and more. Signs abound that after decades of uneven but steady human progress, we are digging a deeper and muddier hole for ourselves. The principal reason for this pessimism is not the material facts of decline — we have lived through worse times before — but the crumbling consensus around how to overcome such crises. The outbreak of the COVID-19 pandemic is fast becoming the latest stress test for whether the social contract can hold.

The roadmap for climbing out of the trough should begin with the understanding that the rule of law is the sine qua non of more successful societies. Societies with strong rule of law have built-in mechanisms for mediating conflicts through open and inclusive debate, in which all voices are treated equally, and outcomes are perceived as fair and reasonable.

Unfortunately, as documented by the latest findings of the World Justice Project’s Rule of Law Index, the rule of law is declining around the world for the third year in a row. The trends are widespread and persistent: The majority of countries that declined in the 2020 rule of law scores also deteriorated in the previous year, and weaker or stagnating performance occurred in the majority of countries in every region and across every income group.

Of particular concern is that countries experienced the biggest declines over the past year in the areas of fundamental rights (54 countries declined, 29 improved), constraints on government powers (52 declined, 28 improved), and absence of corruption (51 declined, 26 improved). These three factors of the World Justice Project (WJP) Index saw the worst performance globally over a five-year time period as well.

In short, the key rule of law elements that undergird accountable governance, and relatedly, citizens’ trust in their leaders, are in retreat, in both established democracies like the United States, and in entrenched autocracies, from Russia to China to Venezuela. In this context, the rise of populist anger and social protests should come as little surprise. more>

The EU’s rule-of-law test

By Tytti Tuppurainen – In his book The Origins of Political Order, the political scientist Francis Fukuyama argued that the rule of law is the most difficult pillar for a successful modern society to construct.

Organizing government administration and staging elections to a legislative body is relatively easy, and only a small number of failed states have no functioning public administration or legislature. But in far more countries, the absence of the rule of law is the primary source of instability and political decay.

For the EU, the rule of law is of central importance, because the EU is not simply a joint economic undertaking (although, as the economist Hernando de Soto has emphasized, the rule of law is also a prerequisite for a developed market economy). The EU’s raison d’être, like that of its predecessors, is to guarantee peace between European countries and to safeguard human rights within its member states. And the bloc is founded on common values enshrined in its treaties.

The EU’s commitment to the rule of law, set out in Article 2 of the Treaty on European Union, is straightforward. It stands for legality, legal certainty, the prohibition of arbitrary exercise of authority, the separation of powers, and an effective and independent judiciary. Respect for the rule of law affects different layers of society in very practical ways: at the level of the Union, the nation-state, companies, and citizens.

Within the EU, the rule of law is not a political statement or unattainable moral ideal, but a principle that public officials and courts are responsible for upholding. more>

Donald Trump and the Rule of Law

By Jeffrey Toobin – Richard Nixon earned eternal disgrace for keeping a list of his political enemies, but he, at least, was ashamed enough of the practice to know that he had to keep it secret. Trump, in contrast, is openly calling for the Department of Justice, which he controls, to put his political opponents in jail.

This kind of behavior is a trademark of the authoritarians he admires, like Vladimir Putin and Recep Tayyip Erdoğan.

Trump’s contempt for the rule of law infects his entire Administration, as illustrated by Jeff Sessions’s newly announced guidance on marijuana policy.

Under the new policy, in much of the country federal marijuana enforcement will be run by officials who are only accountable to Sessions and Trump, not to the broader public.

Senators have a right to ask prospective U.S. Attorneys how they plan to enforce federal law on marijuana, and, of course, the legislators have the right to vote these officials down if they don’t like their answers. But Sessions has installed acting U.S. Attorneys in much of the country—including in such high-profile locations as Manhattan and Los Angeles—and senators can’t exert any oversight of them.

This gesture of contempt for the Senate’s role in confirmations is reflected well beyond the Justice Department. Throughout the government, Trump has nominated many fewer officials to Senate-confirmed positions than his predecessors; instead, Cabinet secretaries have filled these crucial positions with acting or temporary officials who avoid scrutiny from senators. more>

Make Congress Great Again

By Matthew Spalding – Today, the primary function of government is to regulate.

When Congress writes legislation, it uses very broad language that turns extensive power over to agencies, which are also given the authority of executing and often adjudicating violations of their regulations in particular cases. The result is that most of the actual decisions of lawmaking and public policy – decisions previously the constitutional responsibility of elected legislators – are delegated to bureaucrats whose “rules” have the full force and effect of laws passed by Congress.

The modern Congress is almost exclusively a supervisory body exercising limited oversight over administrative lawmakers.

If the development of the rule of law and constitutional government is the most significant accomplishment of the long history of human liberty, the greatest political revolution in the United States since the establishment of the Constitution has been the shift of power away from the lawmaking institutions of republican government to an oligarchy of experts who rule by regulation over virtually every aspect of our lives.

The result is an increasingly unbalanced structural relationship between what amounts to an executive–bureaucratic branch that can act with or without Congress to pursue common goals, and an ever-weakening legislative branch unable or unwilling to exercise its powers to check the executive or rein in a metastasizing bureaucracy. more> https://goo.gl/Jp3xRz

Donald Trump’s drive for “law and order” undermines the rule of law

By Dara Lind – The Trump administration does not value the rule of law. It values law and order. It values law enforcement as a weapon to be wielded in a particular direction: against social disorder, real and feared. It respects the “front lines” of conflict to protect order, but sees less need to preserve the independence of investigators or prosecutors to choose which violations of law to pursue.

In other words, it’s embracing the brute reality of power — while obliterating one of its most important constraints.

Both “rule of law” and “law and order” are tossed around as political slogans more often than not — and often by the same people. But in practice, they represent slightly different sets of values.

The “rule of law” is a procedural value: It says that the right thing for the government to do is to set, and adhere to, proper processes in all cases, without favor or prejudice to where those processes might lead.

“Law and order,” by contrast, is a substantive value: It says something about what sorts of results the government ought to be getting out of its activity (namely, a reduction in crime and social disorder, and the assurance of a safe and loyal populace). more> https://goo.gl/B0pnlP

Americans aren’t as attached to democracy as you might think

By Austin Sarat – While we have been focused on partisan divides over government policy and personnel, an almost invisible erosion of the foundations of our political system has been taking place. Public support for the rule of law and democracy can no longer be taken for granted.

While President Trump’s behavior has riveted the media and the public, our eyes should not only be focused on him but on this larger – and troubling – trend.

If the rule of law and democracy are to survive in America we will need to address the decline in the public’s understanding of, and support for both. While we celebrate the Ninth Circuit’s decision on Trump’s ban, we also must initiate a national conversation about democracy and the rule of law. Civics education, long derided, needs to be revived.

Schools, civic groups, and the media must to go back to fundamentals and explain what basic American political values entail and why they are desirable. Defenders of democracy and the rule of law must take their case to the American people and remind them of the Founders’ admonition that:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

more> https://goo.gl/q5VdsE

Iran Case Is So Secret It Can’t Go On

By Noah Feldman – Dismissing a lawsuit between private parties without giving a reason is the very opposite of the judicial function, which relies fundamentally on reason-giving. Where no reasons are given, we aren’t in the realm of legal decision-making. We’re in the universe of absolutism or autocracy.

What makes matters worse is the lingering possibility, indeed probability, that what the government fears is not a true threat to national security, but a severe case of embarrassment.

This is the first time a U.S. court has dismissed a lawsuit on the basis of state secrets when the case didn’t involve either the government or a defense contractor deeply enmeshed with classified government contracts.

It’s also a marvelous example of how secrecy fundamentally distorts the legal process and subverts the rule of law. more> http://tinyurl.com/ov2fekc

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