INTRODUCTION

In August 2021, the Taliban swept into the capital city of Kabul and toppled the Western-backed government of Ashraf Ghani. To those uninformed of developments in Afghanistan, these events would have come as an enormous surprise. Nevertheless, they were years in the making. The only question was how the realignment of power in Afghanistan would occur. Several commentators were optimistic that it would happen more organically and peacefully.

To understand the present, there is a need to examine the past. The Taliban is a fundamentalist Islamist group formed by the Afghan mujahideen in the early 1990s. After decades of different wars, the Taliban established a hard-line government in Afghanistan in 1996. Despite its harsh practices, the Taliban Government had adequate local support in its initial years. This was because Afghans saw some semblance of stability at last. However, in 2001, the Taliban Government was overthrown post the American invasion of Afghanistan. To fill the power vacuum in Afghanistan, the United States and other Western forces quickly helped establish a new government headed by an ally of the West, Hamid Karzai. Despite widespread optimism, this did not bring an end to the problems in Afghanistan.

The new government that was established with the help of the West was arguably always bound to fail. While the precise reasons for this are beyond the scope of this report, it is essential to note that the system established with the help of Western powers was a highly centralised one in a country where the central government barely had control of 30% of the entire territory. Afghanistan was (and is) a country with deep ethnic cleavages and is run primarily by warlords who rely on the illegal opium trade for their finances.11

FORMAL FRAMEWORK OF THE RULE OF LAW IN THE CONSTITUTIONAL ORDER

The rule of law is a complex phenomenon combining different legal, political, moral, ethical and democratic principles. In other words, it cannot be sensibly detached from the wider normative context of a community's history, politics, morality, ethics and culture. There needs to be a shared commitment from the side of the government and appropriate governance is necessary to uphold the dictate of the law. It is difficult to ascribe a precise meaning to the term of the rule of law as it is an interpretative concept without a clear plain meaning. Despite this, the rule of law is the guiding principle of legitimate governance and, as a ground of liberal constitutionalism, integrates the theory of constitutional government.

Hence also the rule of law constitutes one of the basic and central constructs of the constitutional order. The provision of the rule of law along with the concept of the democratic and socially fair state creates one of the pillars of the constitutional polity of the Republic of Poland expressed directly in Chapter I of the Constitution (1997), consistently with its Article 2: ‘The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice’. The rank and significance of the principle expressed in that regulation can be demonstrated not only by the fact of occurrences of attributing the chief role to the meaning of this principle within the doctrine and jurisprudence of the courts, but also the particular mode for introducing amendments to it, enshrined in the Constitution.

INTRODUCTION

From an institutional perspective, Romania is a young country. The (modern) state emerged at the middle of the 19th century and it struggled through the stormy 20th, an essential background for understanding the current debates on the rule of law.

The legal basis of modern Romania was laid down by a group of revolutionaries involved in the events that shaped Europe in 1848.1 Most of them belonged to wealthy families and they all studied abroad, particularly in Paris. When they returned to Romania, their immediate goal was to erase the existing political system and replace it with the French one, which they did by enacting legislation based on the Napoleonic Codes. However, the constitutional framework was not ready for a republican construct, and they turned to the (then modern) Belgian Constitution. This drastic legal transplant was difficult to assimilate, and it took at least half a century before the new design became functional, so the politicians considered it their duty to lead the process, while law became a mere instrument to achieve their goals.

The second half of the 20th century saw the rise of communism, where the Marxist blueprint already defined law as a simple ‘superstructure’ meant to guide the people towards the single beacon of following the state.

THE RULE OF LAW: FORMAL FRAMEWORK AND DEFINITION

In South Africa, the Constitution is the supreme law of the country. Section 1 of the Constitution provides for the values of the Constitution. It is to the effect that:

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

It is evident that the rule of law is one of the founding values of the Constitution. The inclusion of the rule of law as one of the values in the Constitution means that ‘the rule of law is entrenched as part of our Constitution’. It other words, the rule of law ‘is embedded in our Constitution by section 1(c), as the nerve-centre of our constitutional democracy’. Likewise, the ‘rule of law’ is referred to in many pieces of legislation. However, neither the Constitution nor any pieces of legislation define or describe the ‘rule of law’. The concept of ‘rule of law’ can be interpreted broadly or narrowly and ‘[i]ts content has been expanded in a long line of cases’.

INTRODUCTION

Currently, Egyptians live under the cruel, tyrannical grip of President ‘Abdel Fattah al-Sisi's Government. In 2020, the World Justice Project (WJP) ranked Egypt 125th among 128 nations in their Rule of Law Index. Egypt's disturbingly low ranking is possibly a result of al-Sisi's attempts to progressively establish tyranny in Egypt's legislation, steadily eroding the rule of law. In 2019, the Egyptian Constitution was amended and, inter alia, allows the President to appoint district attorneys and justices who are not qualified and with no integrity or transparency in his selection, just to serve the regime. Hence, the Government has been oppressing and persecuting political opponents by breaching fundamental human rights, stifling political dissent, weakening judicial independence, and passing statute(s) that authorise(s) arbitrary charges and the denial of fair trial (due process) guarantees.

During the Covid-19 pandemic, President al-Sisi extended the emergency status, engendering (sentencing in) mass trials and illegitimately delayed pretrial detentions, denying civilians fair trial assurances and exposing inmates to prison conditions marred by overcrowding and an increased risk of Covid-19. Considering Egypt's legal and political reality, this report eventually finds that expressively challenging the regime and supporting democratic reform entails the international community sanctioning high-ranking officials and making their military and economic assistance more conditional (on hold) on the administration's conduct. There could be severe ramifications if Egypt does not upgrade the current legal, judicial, human rights status. In the long run, this situation could become part of a greater movement of a gradually politicised judiciary and a prevalent decline of human rights.

INTRODUCTION

Australia is governed by a written, entrenched constitution, which makes no mention of the rule of law. Yet the rule of law is said to be one of its most fundamental ‘assumptions’. The Australian Constitution places clear constraints on both legislative and executive power, which are rigorously enforced by an independent judiciary, though these limits are relatively ‘thin’. There is no constitutional bill of rights, nor any overarching constitutional requirement that government act in a way that is reasonable or proportionate. As then-Chief Justice Gleeson observed:

This distinction between legal and political limits on government power is one key to understanding the way the rule of law is conceptualised in Australian constitutional law. The latter has come to shape the former, as the High Court has derived implied constitutional rights to political equality, to vote in federal elections and to engage in political communication from the system of representative and responsible government that the Constitution provides. But the other key is to recognise that a great amount of work is done by non- (or perhaps, small ‘c’) constitutional norms and principles. Many principles and values associated with the various competing conceptions of the rule of law are protected by the principles of statutory interpretation developed by the courts. Yet it remains largely open to Parliament to confer broad executive powers and erode individual liberties, if it so chooses.

INTRODUCTION

The rule of law, in Brazil, is a challenge to the legal construction of equality. The words of Benvindo are the ones that best describe the main past, current and future challenges for the rule of law in Brazil. This report aims to present the basic structure of the rule of law in this country, having, as the main normative source, the 1988 Constitution. Here, it will be argued that a scientifically rigorous approach to the rule of law must not only consider normative, dogmatic and philosophical accounts of that political and juridical concept but also adopt an empirical assessment of sociological factors that affect the way that law is enforced by institutions and genuinely shared by the citizens of a specific jurisdiction. This is the caveat that shall be made by anyone who aims at understanding the rule of law in Brazil.

The structure of this report is as follows. Section 2 is dedicated to the constitutional delimitation of the rule of law: its terminological definitions, the constitutional norms that provide for it, statutory provisions related to the rule of law, and its relationship with the principle of legality. Section 3 delves into what could be the normative substance of the rule of law: fundamental rights and the rule of law and, especially, how proportionality has influenced the way courts rule upon matters connected to it. Sections 4 and 5 present, albeit briefly, how constitutional scholars in Brazil have treated the rule of law and how they relate it to democratic procedures.

The comparative material presented in this volume encompasses a broad spectrum of legal systems belonging to various legal families, both European and non-European, the latter including the US American, Canadian and Australian systems and selected systems of South American, African and Asian countries. The analyses contained in the special reports draw on the experiences and activities of significant organisations and institutions that develop international standards related to the rule of law, such as the European Union, the Council of Europe (Venice Commission) and the OSCE.

The framework for these studies was defined in a questionnaire with problem-based questions, attached at the end of the volume. The central idea inspiring the undertaking of this topic are encapsulated in the following questions: where are we today concerning the development of the rule of law principle? Is there indeed a basis to formulate the thesis that, in recent years, there is a trend that could be described as the ‘revival of the rule of law principle’? Paradoxically, a factor indicating the extraordinary relevance and importance of this issue, as evidenced by the wide-ranging debate occurring around these matters at both national and international levels, is the crisis of the rule of law emerging in many countries, accompanied by attempts to undermine key elements of this principle.

INTRODUCTION

The rule of law is a contested concept; on one hand, it can be studied formally by focusing on how a legal system may function effectively and be implemented impartially by an independent court, regardless of the ideology or political system underlying the aforementioned legal system. On the other hand, the rule of law can also be seen substantively as elements containing, or at least relating to, political morality or certain ideologies – such as communism and liberalism – used by its implementing country. However, the modern concept of the rule of law is usually associated with the ideology of liberalism that comes from Western practices, which emphasises the role of law as a limitation to arbitrary exercise of power, protection of individual rights, and multi-party democracy. The emergence of these views actually cannot be separated from the character of the law itself, as argued by Fernanda Pirie. Throughout its history since the law was first known 4,000 years ago, law always had two contested faces, either as an instrument of the ruler to control his/her people and justify their actions, or as an instrument of the people to limit and control the rulers. It was the end of the Cold War, followed by the success of Western liberalism in becoming the most dominant ideology in the world, that created a myth that the latter was the most legitimate character of the law, even though some societies still emphasised its former characteristics.

INTRODUCTION

Lithuania enjoys overall high rankings in rule of law indices. The country's law is steadily adjusted by means of constitutional construal, legislative enactments, or changes in law application practice. The efficiency of the Lithuanian judicial system is noted for its ‘good results’; judicial independence is gauged as ‘average to high’; the level of corruption in the public sector is estimated as ‘relatively low’; transparency and stakeholders’ involvement is assessed as ‘ensured’ in the checks and balances underlying the legal and institutional framework of the legislative process; media pluralism and freedom are qualified as ‘guaranteed’; the framework for access to information is assessed as ‘gradually improving’; and the civil society space is considered to be ‘open’. At the same time, the need for the improvement of measures pertaining to the quality of law-making, enhancement of media ownership transparency and effectiveness, and impartiality of media self-regulatory bodies are noted. The overall favourable assessment should not outshine setbacks, such as delays in appointment of heads of courts, allegations of judicial corruption, insufficient protection of the advocates’ secrets, or of non-discrimination of vulnerable groups (e.g. LGBTQI+).

This report deals with the perception of the rule of law in the Lithuanian legal system. It has been developed, above all, in the Constitutional Court's case law, which therefore is the main focus of attention.

THE FORMAL FRAMEWORK OF THE RULE OF LAW

The Constitution (1992, amended) declares, in its preamble, the Nation ‘striv[es] for an open, just, and harmonious civil society and a State under the rule of law [teisinė valstybė]’. The latter expression translates as a ‘law-based state’, Rechtsstaat.

INTRODUCTION

Having evolved from a series of sectoral integration agreements between six European countries into a truly autonomous legal order comprising 27 Member States and their nationals, the European Union epitomises the idea of multilevel polity building through law. Its fundamental premise, expressed in Article 2 of the Treaty on European Union (TEU), is that each Member State shares with all the others a set of common values. One of these values is the rule of law. Concisely understood as the idea of constraining public powers by norms beyond their control, it assembles a number of formal and substantive requirements ensuring fairness and accountability.

A meaningful definition of the rule of law in the EU legal order needs to capture its particular constitutional identity and reflect the intertwinement of national and Union levels of power. Indeed, the Member States have not only founded the EU and relinquished sovereign rights to the latter, but they also have their say in its policy- and rule-making and, for the most part, implement and enforce the rules thus made. Based on EU law and mutual trust, they cooperate with each other in a wide range of administrative and judicial matters. While collectively involved in a variety of formal or informal consultations, accords and agreements on issues of EU relevance, the Member States may, finally, defend their interests4 in litigation before the EU Courts on the application, interpretation or validity of EU law, as well as each other's respect for (the rule of) EU law.

INTRODUCTION

The Organization for Security and Co-operation in Europe (OSCE) is a political organisation. Established by the Helsinki Final Act in 1975,1 during the depths of the Cold War, it sought to bring together the East and the West as a platform for dialogue. It established a new multilateral framework for Europe, the United States and the Soviet Union with the aim of managing conflict. It conceived rules of engagement, ensuring that no country's actions were any longer solely a matter of ‘internal affairs’ and established a peer-to-peer review between states of their performance in adherence to human rights through the prism of security. It introduced structures, institutions and processes to bring to life the political commitments which the participating states undertook in Helsinki and thereafter. Today it has 57 members (all in the Northern Hemisphere), as well as ‘partners for cooperation’ in North Africa and the Middle East. Since 1975, it has taken a number of important decisions and developed new commitments, also in the realm of the rule of law.

Its participating states have undertaken political commitments in three major fields called ‘dimensions’, that is, security, environmental and economic and human rights. They are based on the premise that without the respect for human rights, there can be no security. Without environmental/economic stability, security is also not possible. Indeed, all three dimensions of its work are theoretically interconnected and codependent – while operationally separate.

INTRODUCTION

The rule of law has been a fundamental value in the legal, historical, and normative order of the United States of America since the birth of the Republic and remains so today. Yet the rule of law has also been under threat from the beginning and will never be fully secure. An unachievable ideal, the rule of law sets the standard against which Americans measure the progress of their law and government. The Revolution, the Constitution, and the legal institutions of the United States all seek ‘the empire of laws and not of men’. Despite its mixed success, this search has been and remains the unifying thread in the history of American law.

This commitment to the rule of law was most prominently and directly made in the Fifth Amendment to the Constitution of the United States, which promises that no person shall ‘be deprived of life, liberty, or property, without due process of law’. The Fourteenth Amendment added that:

Similar guarantees already existed in the constitutions of each of the separate states of the Union. The Declaration of Rights of the Inhabitants of the Commonwealth of Massachusetts (1780) put this shared commitment simply and clearly when it embraced the universal right to enjoy ‘a government of laws and not of men’.

THE RULE OF LAW REPORT AND CHECKLIST

The Venice Commission (VC) is an expert body working under the auspices of the Council of Europe (CoE) and is engaged in constitutional consulting and standard setting. Its main outputs consist of country-specific opinions and general studies, reports and guidelines. Country-specific opinions are issued only on the initiative of the country at issue or an international body or organisation, such as the various organs of the Council of Europe. The guidelines and opinions of the Venice Commission have played an important role in the rule of law monitoring of the EU.

According to their founding treaties, the rule of law is the third pillar of the value foundation underpinning both the CoE and the EU. The rule of law is invoked in practically all country-specific opinions of the Venice Commission; references to the rule of law are probably even more frequent than to democracy or human rights. The aspects of the rule of law appealed to in VC opinions vary, in the eyes of some observers, perhaps in a confusing way. Consequently, the primary sources for the following reconstruction of the Commission's rule of law doctrine consist of two documents where the rule of law is examined in a comprehensive way: the 2011 ‘Report on the Rule of Law’ (the Report) and the 2016 ‘Rule of Law Checklist’ (the Checklist), arguably the most important and influential soft law document adopted by the Commission. The Report and the Checklist form a continuum, with the Checklist specifying and complementing the groundwork achieved by the Report.

INTRODUCTION

En contexte canadien, comme sans doute dans bien d’autres systèmes nationaux, toute discussion de la primauté du droit (rule of law), parfois appelée le principe de légalité et, occasionnellement, l’État de droit, est une entreprise notoirement complexe. D’emblée, les dispositions de la Constitution canadienne n’en font nulle mention. Néanmoins, la primauté du droit y est reconnue ou y a été incorporée par interprétation. Ainsi, le préambule de la Charte canadienne des droits et libertés de 1982 déclare que « le Canada est fondé sur des principes qui reconnaissent la suprématie de Dieu et la primauté du droit ». Selon la Cour suprême du Canada, le principe de la primauté du droit est aussi implicitement consacré en droit canadien par le préambule de la Loi constitutionnelle de 1867, lequel réfère à une « constitution reposant sur les mêmes principes que celle du Royaume-Uni ».1 Dans l’arrêt Colombie-Britannique (P.G.) c. Christie, la Cour a déclaré que la primauté du droit est aussi reconnue implicitement à l’article premier de la Charte, qui prévoit que les droits et libertés y énoncés ne peuvent être restreints que par une règle de droit, dans des limites raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.2 Plus généralement, la Cour a affirmé que ce principe était « nettement implicite de par la nature même d’une constitution ».

THE PRINCIPLE OF THE RULE OF LAW AND ITS NORMATIVE RECEPTION IN ARGENTINA

The rule of law can be briefly understood as the obstacle against the abuse of power and is considered one of the essential characteristics of the constitutional order. Although the idea of the ‘rule of law’ is not accepted in any positive norm in the Argentine legal system, it is possible to reconstruct it based on various elements or principles that constitute it. In this regard, it is worth mentioning, in the first place, the principle of limitation of power, embodied in the organic part of the National Constitution, which structures the state as a federal and representative republic and distributes power among the three organs of government. Ultimately, what the organic part is about is the limitation of power, since the same rationalist foundation that justifies the sanction of a written constitution is the one that also justifies that limitation, because it was precisely the libertarian ideology of the great revolutions – the end of tyrannies to give the people the exercise of controlled and limited power through the practice of political representation. Thus, the concept of rule of law translates into limiting power, with the fundamental purpose of protecting individuals against the arbitrariness of the state or other individuals.

In Argentina's republican system, this division implies the horizontal limitation of the classic separation of powers and federalism's vertical dimension.

INTRODUCTION

Hong Kong is regularly cited as an example where the rule of law could flourish without democracy. As a former British colony for 150 years, it has inherited the legacy of the British common law. It is a major international financial centre and one of the largest capital markets in the world. It is a vibrant, dynamic, cosmopolitan city where the rule of law flourished, and fundamental rights were respected. In 1997, it became a special administrative region (HKSAR) of the People's Republic of China (PRC), enjoying a high degree of autonomy under the unique constitutional model of ‘One Country, Two Systems’. Under this model, it retains its previous legal, social and economic systems. The rule of law lies at the core of its constitutional values, which are well grounded in Western liberalism and the doctrine of separation of powers. Yet it is embedded within an ambitious, powerful and authoritarian socialist sovereign power which rejects separation of powers and individual liberalism, and which is sceptical about judicial independence. At the same time, as a former British colony and a special administrative region of the PRC, Hong Kong has made little progress in developing its democratic system. The demand for democracy was initially accommodated, but as events unfolded, it was perceived to be a threat to national security. The Central Government responded by the imposition of a new National Security Law (NSL) on Hong Kong in 2020.