Rule of Law

   

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

EUOECD
 
Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
10
Estonia
The rule of law is fundamental to Estonian government and administration. In the period of transition from communism to liberal democracy, most legal acts and regulations had to be amended or introduced for the first time. Joining the European Union in 2004 caused another major wave of legal reforms. These fast and radical changes, which occurred over a short period of time, produced some inconsistencies. Today, a consistent and transparent system ensuring legal certainty is in place.
Finland
The rule of law is a basic pillar of Finnish society. When Sweden ceded Finland to Russia in 1809, the strict observation of prevailing Swedish laws and legal regulations became one of the most important tools for avoiding and circumventing Russian interference in Finnish affairs. From this emerged a political culture that prioritizes legal certainty, condemns any conflation of public and private interest, and prevents public officeholders from abusing their position for private interests.
Germany
Germany’s Basic Law (Art. 20 sec. 3) states that “the legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.” In reality, German authorities do live up to this high standard. In comparative perspective, the country generally scores very highly on the issue of rule of law in indices whose primary focus is placed on formal constitutional criteria.

In substantive terms, German citizens and foreigners appreciate the predictability and impartiality of the German legal system, regard Germany’s system of contract enforcement and property rights as being of high quality, and put considerable trust in the police forces and courts. Germany’s high courts have significant institutional power and a high degree of independence from political influence. The Federal Constitutional Court’s (FCC) final say on the interpretation of the Basic Law provides for a high degree of legal certainty. Concerning the rule of law index of the World Justice Report Germany ranked 8 out of 113 countries (World Justice Project 2016).
Citations:
World Justice Project 2016: https://worldjusticeproject.org/sites/default/files/documents/ROLIndex_2016_Germany_eng%20%282%29.pdf
New Zealand
Although New Zealand, following the British tradition, does not have a codified constitution but instead a mix of conventions, statute law (Constitution Act 1986, Bill of Rights Act 1990, Electoral Act 1993 and the Treaty of Waitangi) and common law, the executive acts according to the principles of a constitutional state. A number of independent bodies, such as the Office of the Ombudsman, strengthen accountability.

In “A Constitution for Aotearoa New Zealand,” former prime minister Sir Geoffrey Palmer proposed a codified constitution for New Zealand. As of the end of September 2016, comments on the proposals were being sought from the public. However, based on previous responses to written constitutions, the level of public interest is low, being restricted largely to the legal and academic communities.
Citations:
Annual Report of the Ombudsman 2015/2016 (Wellington: Office of the Ombudsman 2015/2016).
Constitutional Advisory Panel, 2013. New Zealand’s Constitution. A Report on a Conversation, http://www.ourconstitution.org.nz/store/doc/FR_Full_Report.pdf (accessed November 11, 2014).
Draft Constitution for New Zealand proposed in new book. The Constitution Unit. UCL. 27 September 2016. https://constitution-unit.com/2016/09/27/draft-constitution-for-new-zealand-proposed-in-new-book/ (accessed 28 September, 2016).
Norway
Norway’s government and administration act predictably and in accordance with the law. Norway has a sound and transparent legal system. Corruption within the legal system is a rather marginal problem. The state bureaucracy is regarded as both efficient and reliable. Norwegian citizens generally trust their institutions.
Sweden
The Swedish legal framework is deeply engrained and the rule of law is an overarching norm in Sweden. With a Weberian-style public administration, values of legal security, due process, transparency and impartiality remain key norms. The only disturbing observation in this context is the growing emphasis on efficiency in public administration that has arisen in the context of a recent public management reform. This focus on efficiency potentially jeopardizes the integrity of legal certainty and security, in particular with respect to migration processes. Recent media reports have shown that pressures on migration staff to process a given number of asylum applications within a specific timeframe undermines the legal certainty and fairness of case work.

There are now signs emerging that market-based administrative reforms may have peaked in Sweden; there is now a search for a “post-NPM” or “neo-Weberian” model of administration. Again, the tension between efficiency goals in public administration and legal security is well-known but still looms large in the context of administrative reform. Most recently, the red-green government announced plans to downplay New Public Management as a philosophy of public sector reform and to re-emphasize trust (“tillit”) as a normative foundation of the public administration. A series of “experiments,” replacing performance management with various types of trust-based management, have been carried out in 2017, primarily at the local and regional level. A series of reforms is scheduled for 2018.

The clients of the administration and the courts also expect and appreciate these values. The legal system is characterized by a high degree of transparency. The ombudsmen institution (a Swedish invention) remains an important channel for administrative complaints. The Ombudsman of Justice keeps a close watch on the application of the rule of law in Sweden.

Different arrangements to protect and strengthen the position of whistleblowers came into force in 2017 and are now being implemented.
Citations:
Petersson, O. (2014), Den offentliga makten (Lund: Studentlitteratur).
9
Australia
There is strong judicial oversight of executive decisions. Judicial oversight occurs through a well-developed system of administrative courts, and through the High Court. That said, jurisdictional uncertainty between the federal and state governments continues to be an issue. Two recent cases highlighting this uncertainty are a 2013 High Court challenge of the constitutionality of the Minerals Resources Rent Tax (MRRT) introduced by the federal government in 2012 and a 2014 High Court challenge of the constitutionality of federal funding of school chaplains. The High Court ruled the MRRT constitutional, but ruled the chaplaincy program unconstitutional.

Though a relatively minor development, in 2016, the Attorney General issued a direction blocking the Solicitor-General, who advises the government on legal questions, from providing legal advice to anyone in the government without the permission of the Attorney General. This has compromised the independence of the Solicitor-General and contributed to resignation of the Solicitor-General in October 2016.
Citations:
Michael Crommelin, ‘The MRRT Survives, For Now: Fortescue Metals Group Ltd v Commonwealth’ on Opinions on High (16 September 2013)

Gabrielle Appleby ‘Commonwealth left scrambling by school chaplaincy decision’ The Conversation, 19 June 2014: https://theconversation.com/commonwealth-left-scrambling-by-school-chaplaincy-decision-27935

http://www.abc.net.au/news/2016-10-24/justin-gleeson-resigns-as-solicitor-general/7960632
Denmark
Denmark has a long tradition of a rule of law. No serious problems can be identified in respect to legal certainty in Denmark. The administration is based on a hierarchy of legal rules, which of course gives administrators certain discretion, but also a range of possibilities for citizens to appeal decisions. Much of the Danish administration is decentralized and interpretation of laws, rules and regulations can vary from one municipality or region to another. Acts passed by the parliament, as well as administrative regulations based on these acts, are all made public. They are now widely available on the internet. Openness and access to information, and various forms of appeal options, contribute to strengthening legal certainty in administration.
Citations:
Henning Jørgensen, Consensus, Cooperation and Conflict: The Policy Making Process in Denmark. Cheltenham: Edward Elgar, 2002.
Iceland
Icelandic state authorities and administration respect the rule of law, and their actions are generally predictable. However, there have been cases in which verdicts by Icelandic courts and government actions have been overruled on appeal by the European Court of Human Rights. There have also been examples of Supreme Court verdicts that have been overruled by the European Court of Justice. Some of these cases have dealt with journalists’ free speech rights – the latest example is the case of journalist Erla Hlynsdóttir.

A relatively recent case of a different kind has a bearing on legal certainty. The Supreme Court ruled, first in June 2010 and more recently in April 2013, that bank loans indexed to foreign currencies were in violation of a 2001 law. As such, the asset portfolios of Icelandic banks contained invalid loans. These examples demonstrate that the banks acted contrary to the law. Neither the government nor any government institution, including the central bank and the Financial Supervisory Authority, paid sufficient attention to this violation. A governor of the central bank was even among those who had drafted the 2001 legislation. Even after the Supreme Court ruled that these loans were null and void, the banks have been slow to recalculate the thousands of affected loans. Individual customers have had to sue the banks in an attempt to force them to follow the law.
Citations:
Lög um vexti og verðtryggingu (Law on interest and indexation) no. 38 2001.

https://www.innanrikisraduneyti.is/raduneyti/starfssvid/mannrettindi/mannrettindadomstoll-evropu/nr/29388
Latvia
Latvia’s government and administration generally act in a predictable manner. Government decisions have in some cases been challenged in court on the basis of a breach of the principle of legal certainty. For example, a group of Administrative Court judges approached the Constitutional Court to protest austerity measures targeting planned judicial-salary increases, arguing a breach of legal certainty. The Constitutional Court ruled against the judges in 2012.

Dissenting judges of the Constitutional Court published an opinion in 2014 indicating that the majority had erred in applying the principle of legal certainty during the financial crisis. They emphasized that legal certainty can be applied differently in different settings.

The Foreign Investors’ Council in their FICIL Sentiment Index 2015 noted two issues with legal certainty. First, the legal system delivers unpredictable results, which negatively affect the foreign investment climate in Latvia. Second, the legislative environment and tax regime has been inconsistent since the 2008 crisis, undermining investor confidence.
Citations:
1. The Constitutional Court of Latvia (2012), On Termination of Proceedings, Ruling available at (in Latvian): http://www.satv.tiesa.gov.lv/upload /2011_10_01_lemums.pdf, Last assessed: 21.05.2013

2. FICIL Sentiment Index 2015. Available at: http://www.sseriga.edu/en/centres/csb/sentiment-index/. Last assessed: 20.11.2017.
Switzerland
Switzerland’s federal government and administration act predictably. This predictability is partially reduced by the very pragmatic administrative culture at the cantonal and local levels. The country’s division into small administrative districts, the tradition of decentralized local government and a partially non-professional administration system (“Milizverwaltung,” militia administration, referencing the non-professional army) provide for a substantial amount of leeway in Switzerland’s public administration activity. The pragmatic administrative culture ensures flexibility and efficiency on the one hand, but reduces legal certainty on the other.
 
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
8
Austria
The rule of law in Austria, defined by the independence of the judiciary and by the legal limits that political authorities must respect, is well established in the constitution as well as in the country’s mainstream political understanding. The three high courts – the Constitutional Court (Verfassungsgerichtshof), which deals with all matters concerning the constitution and constitutional rights; the Administrative Court (Verwaltungsgerichtshof), the final authority in administrative matters; and the Supreme Court (Oberster Gerichtshof), the highest instance within the four-tier judicial system concerning disputes in civil or criminal law – all have good reputations. Judicial decisions, which are based solely on the interpretation of existing law, can in principle be seen predictable.

The role of public prosecutors (Staatsanwälte), who are subordinate to the minister of justice, has raised some controversy. The main argument in favor of this dependency is that the minister of justice is accountable to parliament, and therefore under public control. The argument to the contrary is that public prosecutors’ bureaucratic position opens the door to political influence. To counter this possibility, a new branch of prosecutors dedicated to combating political corruption has been established, which is partially independent from the Ministry of Justice. However, this independence is limited only to certain aspects of their activities, leading some to argue that the possibility of political influence remains.

The rule of law also requires that government actions be self-binding and predictable. And indeed, there is broad acceptance in Austria that all government institutions must respect the legal norms passed by parliament and monitored by the courts.

The decision of the Austrian Constitutional Court to cancel the second round of the presidential election in the summer of 2016 is a clear example of how the rule of law is accepted. The decision has been widely criticized but nevertheless absolutely accepted. Similarly, respect for the rule of law was demonstrated by the widespread response to the government changes at the end of 2017, when one major party (the Social Democrats) moved from government to opposition and a (former) opposition party (the far-right FPÖ) joined the government in coalition with the conservative Austrian People’s Party (ÖVP). There has been an occasionally heated debate concerning the impact of this significant change within the government’s power structure. However, there is no fear that the new situation will have an impact on the independence of the judiciary. The rule of law in Austria does not seem to be influenced by political changes.

On the other hand, laws are becoming so complex that even renowned experts struggle to understand them. This relates in particular to issues of immigration and asylum (Fremdenrecht).
Canada
Canada’s government and administration rarely make unpredictable decisions. Legal regulations are generally consistent, but do sometimes leave scope for discretion. Of course, the government can be expected to be challenged in court if its executive actions are not consistent with the law, which provides an incentive to comply.
Czech Rep.
Executive actions are predictable and undertaken in accordance with the law. Problems arise because of the incompleteness or ambiguity of some laws with general declarations, notably the Charter of Fundamental Rights and Freedoms, requiring backing from detailed specific laws. However, points are gradually being clarified as case law builds up on freedom of information and general discrimination. Government bodies then learn to comply with established practices.
Spain
The general administrative procedure in Spain is consistent and uniform, assuring regularity in the functioning of all administrative levels. During 2015, a new piece of legislation (Ley 39/2015, del Procedimiento Administrativo Común de las Administraciones Públicas) was passed with the aim of modernizing basic administrative law and improving legal certainty. In theory, this principle holds across the Spanish public sector, but it is also true that citizens and the business sector sometimes complain about unpredictable decisions. At the political level, for example, some policy reversals have undermined Spanish credibility among foreign investors (e.g., the government’s changes in taxation and the decision to cut the regulated revenue rates received by renewable-energy generators). Within the administrative bureaucracy, however, there is still some scope for discretion and less transparency than what one might infer from the formal provisions (see “Access to Government Information”). Furthermore, even if the executive acts on the basis of and in accordance with the law, strict legal interpretations may in fact produce some inefficiency in certain aspects of the administration. This can be observed in the rigid system of personnel recruitment; working methods that depend on clear departmental command rather than flexible cross-organization teams; a preference for formal hierarchy rather than skills when making decisions; and the reliance on procedure regardless of output effectiveness, for example. This prevailing legalistic approach also serves to perpetuate abuses in some cases, since citizens are generally reluctant to appeal administrative acts in the courts as a consequence of the high costs and long delays associated with this process.

Within the Catalonia crisis, the government focused exclusively on the legal and constitutional framework to defend its point of view, failing to consider any political initiative other than lawsuits against the secessionists. Judicial action in the case of Catalonia has generated some confusion and legal uncertainty.
Citations:
Ley 39/2015, del Procedimiento Administrativo Común de las Administraciones Públicas
www.boe.es/diario_boe/txt.php?id= BOE-A-2015-10565
7
Belgium
The rule of law is relatively strong in Belgium. Officials and administrations typically act in accordance with the law. Nevertheless, the federalization of the Belgian state is not yet fully mature, and the authority of different government levels can overlap on many issues; this state of affairs renders the interpretation of some laws and regulations discretionary or unstable, and therefore less predictable than might be desired.

For example, Belgium has since 2009 failed to implement many of its fiscal treaties with foreign partners (for a list, see the Belgian Service Public Federal Finances website). The discussions around the EU-Canada Comprehensive Economic and Trade Agreement (CETA), in which the Walloon government threatened to block the agreement, illustrated this issue quite clearly. The primary reason for this state of affairs is that all levels of power (federal, regional, etc.) must agree; when they do not, deadlock ensues.
Chile
Acts and decisions made by the government and official administrative bodies take place strictly in accordance with legislation. There are moderately effective autonomous institutions that play an oversight role with regard to government activity, including the Office of the General Comptroller (Contraloría General de la República) and the monitoring functions of the Chamber of Deputies. Government actions are moderately predictable and conform largely to limitations and restrictions imposed by law.
Greece
The state administration operates on the basis of a legal framework that is extensive, complex, fragmented and sometimes contradictory. Formalism dominates legislation. Legal regulations are often not consistently applied. Acts passed by parliament often have seemingly extraneous items added, which only confuses things further.

Since the start of the economic crisis, because of the pressing need to achieve fiscal consolidation, the government repeatedly adapted past legislation to changing circumstances. Many changes have been made to areas such as taxation which, though necessary, have not fostered an institutional environment conducive to attracting foreign investment. Moreover, because of the need to effect reforms rapidly, the government resorted to governing by decree after passing legislation which left ample room for discretion. This practice, already used by previous governments, was exacerbated in 2014 by the ND-PASOK coalition government and has been vigorously continued by the Syriza-ANEL government since early 2015. In short, the practice of frequent and further amendments to recently passed legislation and legislative amendments has continued unabated. On average, a new law is voted on by the Greek parliament every week (research by the Athens-based organization “Dianeosis”). Because of such uncoordinated over-regulation, the legal framework in major policy sectors, such as taxation and foreign investments, still bears loopholes and contradictions.
Citations:
The research report of the Athens-based privately owned research organization “Dianeosis” is available (in Greek) at https://www.dianeosis.org/wp-content/uploads/2016/07/polynomia_final2.pdf, last accessed on 03.10.2017.
Ireland
Politicians are prohibited by law from interfering with the course of justice and attempts to do so appear to be very rare. Government and administrative units generally act predictably and in accordance with known rules. The use of ministerial orders can be to some extent arbitrary and unpredictable, but they are liable to judicial review.

A significant degree of discretion is vested in the hands of officials (elected and non-elected) in relation to infrastructure projects as well as town and rural planning. Following the collapse of the housing market in 2009, there has been much less scope for corruption in relation to development and public contracts; public concern about these issues has waned. This may change as activity in the construction industry gathers pace.
Citations:
The report of the Inquiry into the behavior of the police in relation to allegations of misconduct and corruption is available here:
http://www.merrionstreet.ie/wp-content/uploads/2014/05/Final-Redacted-Guerin-Report-OCR.pdf

The inquiry into the circumstances surrounding the resignation of the Garda Commissioner was conducted by a former Supreme Court judge, Justice Fennelly, and is available here:
https://doc-0s-bs-docs.googleusercontent.com/docs/securesc/ha0ro937gcuc7l7deffksulhg5h7mbp1/bjfn1u1n4ifdcsekb8vsaf0a2nnd850m/1442836800000/10437822469195814790/*/0B2B2HUQaR5vwUnpJRTZnMU1tbWc?e=download
Italy
The actions of the government and administration are systematically guided by detailed legal regulations. Multiple levels of oversight – from a powerful Constitutional Court to a system of local, regional and national administrative courts – exist to enforce the rule of law. Overall the government and the administration are careful to act according to the existing legal regulations and thus their actions are fundamentally predictable. However, the fact that legal regulations are plentiful, not always consistent and change frequently reduces somewhat the degree of legal certainty. The government has backed efforts to simplify and reduce the amount of legal regulation but has yet to obtain the results expected.

The complexity of regulations (which are sometimes contradictory) opens up opportunities for corruption.

The excessive burden of regulations and inefficiency of local authorities too often requires that, in order to face critical situations, exceptional powers are granted to special authorities (“commissari”) who are not properly monitored. This often results in arbitrary decisions being made.
Lithuania
Overall, the regulatory environment in Lithuania is regarded as satisfactory. Its attractiveness was increased by the harmonization of Lithuanian legislation with EU directives in the pre-accession period, as well as by good compliance with EU law in the post-accession period. In the World Bank’s 2016 Worldwide Governance Indicators, Lithuania scored 85 out of 100 for the rule of law, up from 78.4 in 2014. The Lithuanian authorities rarely make unpredictable decisions, but the administration has a considerable degree of discretion in implementation. Although administrative actions are based on existing legal provisions, legal certainty sometimes suffers from the mixed quality and complexity of legislation, as well as frequent legislative changes. For instance, during its 2012 to 2016 term, the parliament passed more than 2,500 legislative acts. A substantial number of laws (e.g., 40.4% of all the laws adopted by the 2012 to 2016 parliament) are deliberated according to the procedure of special urgency, which limits the possibility to thoroughly discuss proposals during the legislative process.

The unpredictability of laws regulating business activities, especially the country’s tax regime, increased at the start of financial crisis in 2008 – 2009 when taxes were raised to increase budget receipts. However, since that time, successive governments have put considerable focus on creating a stable and predictable legal business environment. The Ministry of Justice provides methodological advice on the legislative process, submits conclusions on draft legal acts, and coordinates and monitoring existing legislation. The 2015 OECD report on regulatory policy in Lithuania recommended several measures to improve the regulatory environment for businesses. In addition, the new coalition government has pledged to introduce more predictable policies, for example, by applying a six-month rule to any proposed tax regime changes.

Nevertheless, in some cases, laws are amended during the last stage of parliamentary voting, generally due to the influence of interest groups, a process that increases legal uncertainty. In addition, state policies shift after each parliamentary election (e.g., in autumn 2016, the adoption of the new Labor Code was suspended), reducing predictability within the economic environment. This is particularly true for major infrastructural projects and social policy. For example, pension system rules are frequently amended, increasing uncertainty and reducing trust in the state. In addition, as parliamentary elections approach, legislators frequently become more active in initiating new, often poorly prepared legal changes meant to attract public attention rather than being serious attempts to address public issues. Although most such initiatives are rejected during the process of parliamentary deliberations, they often cause confusion among investors and the public. Furthermore, 80 out of 144 members of parliament were newly elected in October 2016. Their lack of experience and procedural expertise is likely to undermine economic policymaking.
Citations:
The Worldwide Governance Indicators of World Bank are available at http://info.worldbank.org/governance/wgi/#home
OECD, Regulatory Policy in Lithuania: Focusing on the Delivery Side, OECD Reviews of Regulatory Reform, OECD Publishing, Paris, 2015 http://www.oecd-ilibrary.org/governance/regulatory-policy-in-lithuania_9789264239340-en.
Portugal
Portugal is an extremely legalistic society, and legislation is often tedious, long and complex. In combination with pressure for reform arising from Portugal’s structural problems and ongoing political change, this causes some legislative uncertainty. During the review period, this was evident in the Costa government’s reversal of several measures passed by its predecessor, the Passos Coelho government.
Slovenia
Legal certainty in Slovenia has suffered from contradictory legal provisions and frequent changes in legislation. The number of newly adopted regulations increased from 1,360 in 1991 to almost 20,000, including 800 laws, in February 2017. Many crucial laws are amended on a regular basis, and contradictions in legislation are frequently tested in front of the Constitutional Court. The procedures of rule-making are misused or side-stepped by making heavy use of the fast-track legislation procedure. In the first years of the Cera government (September 2014 to December 2015), 61.1% of the 131 legislative acts proposed to the National Assembly were subjected to the fast-track or shortened legislation procedure. In 2016, 30 out of 76 legislative acts (39.5%) were adopted using fast-track or shortened legislation procedure. In the vast majority of cases, however, government and administration act on the basis of and in accordance with the law, thereby ensuring legal certainty.
Citations:
National Assembly, Research Department (2016): Report on the parliamentary work between 1 January 2016 and 31 December 2016. Ljubljana (http://fotogalerija.dz-rs.si/datoteke/Publikacije/Letno_porocilo/Porocilo_o_delu_drzavnega_zbora_v_obdobju_2014_-_2018_-_drugo_leto_mandata_-_januar_2016_-_december_2016__Report_on_National_Assembly%E2%80%99s_work_in_the_Parliamentary_term_2014_-_2018_second_year_January_2016_-_December_2016.pdf).

Haček, M., S. Kukovič, M. Brezovšek (2017): Slovenian Politics and the State. Lanham, Boulder, New York, London: Lexington Books.
South Korea
The Park Geun-hye scandal, and particularly the Choi Soon-sil scandal, revealed a level of collusion and a degree of rule through private networks that most Koreans believed they already left behind. In October 2016, it was revealed that Choi – a longtime friend of President Park – apparently wielded substantial influence over government affairs despite having no formal office. Although the degree of her influence was still not fully clear by the close of the review period, the scandal further undermined the administration’s credibility. The personalization of state affairs by an individual without any official credentials brought South Koreans to the streets to protest in large numbers, ultimately leading to President Park’s impeachment. President Moon is expected to return to a more predictable governance style based on the rule of law.

When it comes to the legal system more generally, courts in South Korea are highly professional and judges are well trained. On the other hand, the unpredictability of prosecutors’ activities remains a problem. Unlike judges, prosecutors are not independent, and there have been cases when they have used their power to harass political opponents, even though independent courts later found the accusations to be groundless.
Citations:
“South Korean Leader Says She Will Submit to Scandal Inquiry,” New York Times, Nov. 3, 2016
Sang-young Rhyu, “Catastrophe 2016 in South Korea: A Tale of Dynamic History and Resilient Democracy,” EAF Policy Debates, No.63, November 22, 2016.
Netherlands
Dutch governments and administrative authorities have to a great extent internalized legality and legal certainty on all levels in their decisions and actions in civil, penal and administrative law. In the World Justice Project, the Netherlands ranked 5 out of 113 countries in the 2016 rule of law index. However, experts have warned that the situation is deteriorating.

In a recent “stress test” examining the state’s performance on rule-of-law issues, former ombudsman Alex Brenninkmeijer argued after a comprehensive review that particularly in legislation, but also within the administrative and judicial systems, safeguards for compliance with rule-of-law requirements are no longer sufficiently in place. In legislative politics, no appeal to the Constitutional Court is possible, making the Netherlands (along with the United Kingdom) an exception in Europe. The trend is to bypass new legislative measures’ rule-of-law implications with an appeal to the “primacy of politics” or simply “democracy,” and instead await possible appeals to European and other international during policy implementation.

The country’s major political party, the conservative-liberal People’s Party for Freedom and Democracy (VVD), has proposed to abolish the upper house of the States General, and with it the legal assessment of Dutch bills on the basis of the legal obligations assumed under international treaties. Within the state administration, the departmental bureaucracy too often prioritizes managerial feasibility over political and legal requirements. Paradoxically, fiscal and social-security agencies have become exceptionally punitive toward ordinary citizens, not just in cases of fraud, but also in cases of forgetfulness or error. There is evidence that the accumulation of so-called administrative sanctions has driven people into poverty.

Within the judicial system, the lack of system-level support for normal application of the rule of law is apparent in the increase in court-registry fees for citizens seeking legal-dispute settlements, the considerable financial cutbacks and incoherent reforms throughout the entire judicial infrastructure, and the weak application of administrative-law criteria in areas where administrative agencies have discretionary power. The High Court has been accused of systematically disregarding cases of complaints by individual citizens.

All in all, there are strong tendencies in the House of Representatives and within the political parties toward seeking to override, in the name of the primacy of politics and democracy, judges’ right to veto or annul political decisions on the basis of rule-of-law principles.
Citations:
A. Brenninkmeijer, Stresstest rechtsstaat Nederland, in Nederlands Juristenblad, 16, 24 April 2015, pp. 1046-1055

NRC-Handelsblad, “De rechtsstaat is doof, blind, en ‘alles zit vast’,” 28 March 2017

NRC-Handelsblad, “De strafrechtspraak staat er niet goed voor,” 21 April, 2017

NRC-Handleblad, “Vooral de VVD zet de grootste stap achteruit,” 12 March 2017
UK
In the United Kingdom, the government and public administration apparatus act in line with legal provisions. This is facilitated by the government’s extensive control over the legislative process, which enables the government to alter provisions if they constitute a hindrance to government policy objectives. Media and other checks on executive action deter any deviation.

Nevertheless, current political events around the United Kingdom’s planned withdrawal from the European Union have led to some uncertainty about how it will unfold. A “Great Repeal Bill,” which will in the first instance bring all legislation derived from the European Union back into the UK legal order, had been promised by the government and had reached the committee stage by November 2017 – now named “European Union (Withdrawal) Bill 2017-19.” The dispute over whether the executive was entitled to trigger Article 50, which initiated the process of leaving the European Union, or whether the decision had to be affirmed by the parliament was settled by the supreme court in January 2017. The supreme court ruled that parliament had to be heard before the government could start the EU negotiations, which the government accepted. Shortly afterwards the UK government introduced a bill which parliament accepted on 1 February 2017 and the House of Lords accepted in March 2017. However, the government’s majority remains precarious and will likely be prone to rebellions during the whole process.
6
France
Generally French authorities act according to legal rules and obligations set forth from national and supranational legislation. The legal system however suffers still from a number of problems. Attitudes toward implementing rules and laws are rather lax. Frequent is the delay or even the unlimited postponement of implementation measures, which may reflect a political tactic for inaction or sometimes because pressure groups successfully impede the adoption of implementation measures.

Another factor is the discretion left to the bureaucracy in interpreting existing regulations. In some cases, the administrative official circular, which is supposed to facilitate implementation of a law, actually restricts the impact or the meaning of existing legislation. In other cases, the correct interpretation of an applicable law results from a written or verbal reply by a minister in parliament. This is particularly true in the field of fiscal law.

Finally, the most criticized issue of legal uncertainty derives from multiple and frequent legislative changes, particularly fiscal legislation. The business community has repeatedly voiced concerns over the instability of rules, impeding any rational long-term perspective or planning. These changes usually are legally solid, but economically debatable. It is not unusual that a fiscal measure adopted on the occasion of the vote of the annual budget is repealed or substantially modified one year later. A costly example is provided by the additional tax on dividends imposed in 2012 by the Hollande administration in spite of strong legal reservations. The measure was later struck down both by the European Court of Justice and the constitutional court in October 2017. The courts’ decisions imposed an unexpected expense of €9 billion – 10 billion, which the government will have to pay back to the companies. This has forced the government to set up an exceptional tax on those companies, which are supposed to be paid back. At the end, the new tax will represent half of the due reimbursement.
Japan
In their daily lives, citizens enjoy considerable predictability with respect to the workings of the law and regulations. Bureaucratic formalities can sometimes be burdensome but also offer relative certainty. Nevertheless, regulations are often formulated in a way that gives considerable latitude to bureaucrats. For instance, needy citizens have often found it difficult to obtain welfare aid from local-government authorities. Such discretionary scope is deeply entrenched in the Japanese administrative system, and offers both advantages and disadvantages associated with pragmatism. The judiciary has usually upheld discretionary decisions by the executive. However, the events of 3/11 exposed the judicial system’s inability to protect the public from irresponsible regulation related to nuclear-power generation. Some observers fear that similar problems may emerge in other areas as well.

The idea of the rule of law itself does not play a major role in Japan. Following strict principles without accounting for changing circumstances and conditions would be seen as naïve and nonsensical. Rather, a balancing of societal interests is seen as demanding a pragmatic interpretation of the law and regulations. Laws, in this generally held view, are supposed to serve the common good, and are not meant as immutable norms to which one blindly adheres.
Citations:
Carl F. Goodman: The Rule of Law in Japan: A Comparative Analysis, The Hague: Kluwer Law International, 2003
Luxembourg
While Luxembourg is a constitutional state, citizens are sometimes confronted with judicial vagueness or even a lack of legal guidance in administrative issues. Luxembourg’s administrative culture is based on pragmatism and common sense. This means that some matters are decided on an ad hoc basis, rather than with reference to official or established rules. Most people seem to accept this, trusting that the prevalent legal flexibility leads to regulations or compromises that favor their own interests. Thus, the interpretation of laws can vary.

The government is working on completely reforming the constitution. In 2009, the Christian Social People’s Party had stated in its election program that they would submit the constitutional reform “to the people by a referendum.” The referendum on the constitutional reform, which was initially planned for 2012, has been delayed until after the 2018 elections.

Courts are overloaded, understaffed and slow, taking far too long to settle cases brought before them. The government has begun to address this problem by hiring more judges. Since the creation of independent administrative courts and the Constitutional Court nearly 20 years ago, the number of pending cases has considerably increased. The European Court of Human Rights in Strasbourg frequently criticizes Luxembourg for its lengthy legal procedures.
Citations:
Cames, Michel. “Pragmatisch, flexibel, schnell – Wirtschaftspolitische Besonderheiten von Kleinstaaten am Beispiel Luxemburg.” Forum.lu, Sept. 2013, www.forum.lu/pdf/artikel/7692_332_Camest.pdf. Accessed 21 Feb. 2017.

Trausch, Gilbert. “Die historische Entwicklung des Großherzogtums – ein Essay.” In: Das politische System Luxemburgs: Eine Einführung, edited by Wolfgang H. Lorig and Mario Hirsch, VS Verlag für Sozialwissenschaften, 2008, pp. 13 – 30.

“Referendum.” Forum.lu, www.forum.lu/constitution/index.php/reformprojekt/referendum/. Accessed 21 Feb. 2017.

“Die Parteien haben Angst.” Luxemburger Wort, 11 June 2017, https://www.wort.lu/de/politik/zwei-jahre-nach-dem-referendum-die-parteien-haben-angst-593d6249a5e74263e13c1c74. Accessed 21 Dec. 2017.
Malta
The Maltese constitution states that the parliament may make laws with retrospective effect, although acts are not permitted to impose obligations on citizens retroactively. Court judgment upholding this principle have been particularly common in areas dealing with taxation and social services. However, governments do generally respect the principles of legal certainty, and the government administration generally follows legal obligations; the evidence for this comes from the number of court challenges in which government bodies have prevailed. However, reports from public bodies, such as the Ombudsman and the Auditor General, demonstrate that government institutions do sometimes make unpredictable decisions. In 2014, the National Audit Office further criticized a ministry’s intervention in a tender process for a legal-services contract related to concessions for the operations of casinos. The use of direct orders in ministries has also been prevalent. In one instance from the first half of 2017, direct orders totaling €640,000 were made by the European Affairs Ministry. Parliament is also slow to legislate on articles of the law that have been declared unconstitutional and need to be revised. Since Malta joined the European Union, however, the predictability of the majority of decisions made by the executive continues to improve as discretion becomes more constrained. Overall, legal certainty is robust, though there continue to be instances where the rule of law is misapplied by state institutions. Several laws and practices are in breach of the Maltese constitution or the European Convention on Human Rights: the Justice Sector Act 2016, Standards in Public Life Act 2017, continued use of direct orders by public administration, passing of subsidiary laws that breach primary laws, lack of a sentencing policy to ensure legal certainty in the application of punishment, and ignoring clear provisions in the constitution and instead basing judgments on inferior laws. The Coordination of Government Inspections Act 2017 restricts the number of inspections undertaken by government departments. The act does not exempt independent institutions such as the auditor general and data protection office, potentially restricting these institutions. The recent practice of placing members of parliament on regulatory boards is also unconstitutional.
Citations:
http://www.timesofmalta.com/articles/view/20150224/local/210000-commission-paid-in-cafe-premier-buyback-audit-office-slams.557475
http://www.timesofmalta.com/articles/view/20150104/local/Dalli-case-prompts-Ombudsman-action.550497
http://www.timesofmalta.com/articles/view/20150813/local/updated-some-diabetes-patients-denied-treatment-ombudsman.580496
Minister reacts as auditor criticizes re ranking of bidding firms Times of Malta 5/03/14
Updated; Government asks AG to amend unconstitutional industrial tribunal law Independent 12/02/16
http://www.maltatoday.com.mt/news/national/76165/maltese_perceive_judicial_independence_to_be_fairly_good#.WesFh1uCyM8
The Independent 20/12/17 Kevin Aquilina, The Rule of Law a La Maltaise
Malta Today 9/10/17 Former Planning and lands minister is now lawyer for both planning and lands authority
Times of Malta 7/10/17 Ombudsman queries positions of trust
Times of Malta 11/11/17 Ministry spends almost 30,000 euros on Liquor for EU Presidency
Interview with Prof Kevin Aquilina Dean of Law 12/17
Slovakia
Government and administration in Slovakia largely act on the basis of the law. However, legal certainty has suffered from frequent legal amendments and opaque laws. The high level of political polarization in Slovakia, combined with frequent changes in government, has made many laws rather short lived. A second problem has been the growing complexity of laws. As a result of frequent amendments, many laws have come opaque and inconsistent. This situation was widely criticized by many NGOs and watchdog organizations (e.g., Via Iuris, TIS, SGI). In response, parliament in November 2015 approved two important amendments to improve things. First, it changed the act on lawmaking, introducing the public’s right to participate in lawmaking and stipulating that each governmental legislative draft has to be submitted for public discussion. Second, the rules of procedure for parliament were changed to prohibit “legislative adjuncts,” that is, the opportunity to change existing legislation by amending drafts that are currently under discussion, a practice often used to avoid lengthy parliamentary readings.
USA
There is little arbitrary exercise of authority in the United States, but the legal process does not necessarily provide a great deal of certainty either. Some uncertainty arises as a consequence of the country’s adversarial legal system. Policy implementation is one area that suffers. Adversarial tendencies have several negative effects, such as supplanting the authority of elective policymaking institutions, reducing administrative discretion, causing delay in decision-making, and increasing reliance on courts and judges to design policies and/or administrative arrangements. On important issues, a government agency will undertake a lengthy, highly formalized hearing before issuing a decision. The resulting action will be appealed (often by multiple affected parties) to at least one level of the federal courts, and firms will not know their obligations under the new regulation for at least several years.

In recent years, certain constitutional issues have increased uncertainty across a range of issues. Citing Congress’s failure to resolve major issues, President Obama has acted unilaterally, taking an expansive view of executive discretion, in a variety of areas. In 2015 and 2016, federal courts nullified Obama’s expansive executive actions on undocumented immigrants and coal-fired power plants, indicating that unilateral presidential action can result in legal uncertainty. In 2017, President Trump adopted an even more aggressive approach to unilateral action, canceling many Obama-era regulations, especially on the environment. Because these actions will be subject to judicial appeals, businesses and individuals will have difficulty assessing their regulatory obligations for at least several years.
Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs
 
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
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Bulgaria
Bulgaria’s government and administration refer heavily to the law and take pains to justify their actions in formal and legal terms. However, two features of the legal environment reduce legal certainty. First, the law gives the administration sizable scope for discretion. Second, the existing legislation suffers from many internal inconsistencies and contradictions that make it possible to find formal legal justifications for widely varying decisions. For both reasons, executive action is not only relatively unpredictable, but may involve applying the law differently to different citizens or firms, thus creating privileges for some and disadvantages for others.
Croatia
The Croatian legal system puts heavy emphasis on the rule of law. In practice, however, legal certainty is often limited. Regulation is sometimes inconsistent and changes often, administrative bodies frequently lack the necessary legal expertise, and executive ordinances do not always comply with the original legal mandate. As a result, citizens often lack confidence in administrative procedures and frequently perceive the acts of administrative bodies to be arbitrary.
Cyprus
The foundations of the state apparatus inherited from the period of British colonial rule have been weakened over the years, but operational capacities and adherence to the law have remained consistent. Following the collapse of bi-communality in 1964 and exclusive exercise of power by Greek Cypriots, constitutional arrangements render a very strong executive (president).

The legal soundness of some laws and policies, either aimed at meeting obligations toward the country’s creditors or regulating other issues, is often contested. Several laws passed by parliament in 2016 were subsequently referred by the president to the supreme court for review and many were found unconstitutional. Action on important matters (e.g., foreclosures) have been delayed, which undermines citizens’ perceptions of legal certainty.

Avoidance or delays of action by the government and administration, or actions in ways inconsistent with the rule of law, persisted in 2017. The executive clashed repeatedly and for long periods with the auditor general and attorney general. The clientelistic rather than meritocratic selections of appointees has continued. These practices undermine the powers of, independence of, and trust in state bodies’ decision-making capacities, administrative efficiency, and law-enforcement consistency.
Citations:
Cyprus Mail, Finance ministry accused of not respecting the public good, http://cyprus-mail.com/2017/05/16/finance-ministry-accused-not-respecting-public-good/
Israel
A number of institutions are responsible for legal review of government and administration activities. The State Comptroller, the Attorney General of Israel and the Supreme Court (ruling as the High Court of Justice) conduct legal reviews of the actions of the government and administration. The Attorney General represents the state in courts. The officeholder participates regularly in government meetings, and in charge of protecting the rule of law in the public’s interest. His or her legal opinion is critical, and even mandatory in some cases. The Supreme Court hears appeals from citizens and Palestinian residents of the West Bank and Gaza Strip (even though Israeli law is not officially applied in the latter). These petitions, as filed by individuals or civic organizations, constitute an important instrument by which to force the state to explain and justify its actions.

The judiciary in Israel is independent and regularly rules against the government. For example, in September 2017, the Supreme Court struck down the government’s policy on recruiting ultra-orthodox Jewish citizens into the Israel Defense Forces (IDF). Although the state generally adheres to court rulings, the Association for Civil Rights in Israel (ACRI) reported in 2009 that the state was in contempt of eight rulings handed down by the Supreme Court since 2006, including a 2006 rerouting of the West Bank security and separation barrier in the OPT.

Some legal arrangements provide for ad hoc state action when security threats emerge. The Emergency Powers (Detention) Law of 1979 provides for indefinite administrative detention without trial. According to a human rights group, there were 475 Palestinians incarcerated under such charges at the end of May 2017. A temporary order in effect since 2006 permits the detention of suspects accused of security offenses for 96 hours without judicial oversight, compared with 24 hours for other detainees. Israel outlawed the use of torture to extract security information in 2000, but milder forms of coercion are permissible when the prisoner is believed to have vital information about impending terrorist attacks.

The current government has been criticized for seeking to weaken the so-called gatekeepers of democracy, both through verbal attacks on the entities most closely associated with maintaining the rule of law, and through legislative initiatives seeking to undermine these entities’ powers in fact. In a speech at the opening of the winter session of the Knesset, Israeli President Reuven Rivlin stated that, “Today, we are witnessing the winds of a revolution… This time, the rule of the majority – is the sole ruler…everything is political – the media is political, the democratic institutions, all of them – from the professional clerks to the State Comptroller – are political, the Supreme Court is political, the security forces are political, and even the IDF, the Israel Defense Forces, is political. The entire country and its institutions – political. This revolution wants to finally tear the supposed masks of hypocrisy from the faces of all the gatekeepers.”
Citations:
“Administrative detention,” B’tselem http://www.btselem.org/administrative_detention/statistics

Barzilay, Gad and David Nachmias,” The Attorney General to the government: Authority and responsibility,” IDI website September 1997 (Hebrew)

Bob, Y. J. “Court orders Government to pass new law or draft all Haredim,” Jerusalem Post, 12.9.2017, http://www.jpost.com/Israel-News/Politics-And-Diplomacy/Court-orders-govt-to-pass-new-law-or-draft-all-haredim-504901

“Knesset opens Winter Assembly; Speaker Edelstein: ”Parliament`s status eroded due to lack of separation of powers,” The Knesset Website, 23.10.2017: https://www.knesset.gov.il/spokesman/eng/PR_eng.asp?PRID=13599

Weitz, Gidi. “In Israel, No Gatekeepers to Stop Netanyahu’s War on Media,” Haaretz, 02.04.2017: https://www.haaretz.com/israel-news/.premium-1.780680
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Poland
Under the PiS government, legal certainty has strongly declined. Some of the government’s many legal initiatives have been so half-baked that they had to be amended or suspended. On several occasions, high-ranking PiS politicians have shown their disrespect for the law. The protracted conflicts between the government and important parts of the judiciary have meant that justices and citizens have had to deal with opposing interpretations of the legal status quo.
Citations:
Szuleka, M., M. Wolny, M. Szwed (2016): The Constsitutional Crisis in Poland 2015-2016. Warsaw: Helsinki Foundation for Human Rights.
Romania
In order to make the law more consistent, the High Court of Cassation and Justice introduced two new mechanisms in 2015, namely preliminary rulings and appeals in the interest of the law. However, legal certainty has continued to suffer from frequent changes in the judiciary and frequent amendments to the law, as well as from the widespread use of government emergency ordinances (OUG), which continued in the period of review. Since Article 115 of the constitution provides for OUGs only in exceptional circumstances, their frequency represents an abuse of the government’s constitutional powers and undermines legal certainty. In some cases, however, OUGs have helped to clarify the situation and have served as the first step toward a harmonization of legislation.
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Hungary
As the Orbán government has taken a voluntaristic approach toward lawmaking, legal certainty has strongly suffered from chaotic, rapidly changing legislation. The hasty legislative process has regularly violated the Act on Legislation, which calls for a process of social consultation if the government presents a draft law. The government’s instrumental use of the law is illustrated by the Act on the Protection of Settlements’ Images (Act CIV 2017 on 23 June 2017), since in order to ban the use of billboards by the other parties this act was passed as a simple majority law, even though most experts deemed a two-third majority necessary. As many laws are contradictory, it is increasingly difficult to implement them in the system of deconcentrated state administration and the institutions of municipal self-administration.
Mexico
The rule of law continues to be undermined by an ineffective judicial system. This point was illustrated forcefully by Mexico’s abysmal ranking in the 2017 Global Impunity Index. Mexico received the worst score of all Latin American countries included and fourth from the bottom globally.

Regarding the rule of law, Mexico faces continuous impediments due to violence and corruption. The adoption of a new National Anti-Corruption System in July 2016 was seen by many observers as a major formal step toward improving the rule of law. The objective of the new system is to improve the coordination of anti-corruption efforts of all governmental bodies (on the federal, state and municipal levels). Even though further legislation to regulate bribery by companies was approved this year, implementation of the reform has been undermined by a lack of political will. Key positions remain vacant, such as the special anti-corruption prosecutor.

Beyond the problem of corruption, the rule of law in Mexico has been seriously hampered by the increasing violence associated with the war on drugs. Even though there has been a process of judicial reform, the justice system continues to work in opaque and Kafkaesque ways. Criminal courts lack transparency, which further undermines trust and confidence in the judicial system. Overall, the system is particularly ineffective when it comes to prosecuting powerful individuals, such as former public officials. In this context, and also due to the security crisis, existing legal regulations often do not effectively constrain government and administration.
Citations:
Latin American Regional Report: Mexico & Nafta (September 2017). “Mexico retains poor position in impunity rankings.”
 
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
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Turkey
Several articles in the Turkish constitution ensure that the government and administration act in accordance with legal provisions, and that citizens are protected from the despotism of the state. Article 36 guarantees citizens the freedom to claim rights, and Article 37 concedes the guarantee of lawful judgment. According to Article 125, administrative procedures and actions are subject to administrative review. In 2016, the Council of State, the country’s highest administrative court, received more than 272,211 files and reviewed 135,741 cases. There is no available data about the average length of time spent on each case or how many procedures and actions were annulled by administrative courts.

The main factors affecting legal certainty in the administration are a lack of regulations on particular issues, the misinterpretation of regulations by administrative authorities (mainly on political grounds), and unconstitutional regulations that are adopted by parliament or issued by the executive. In addition, the high frequency of amendments to some basic laws under certain circumstances lead to a lack of consistency. High-profile prosecutions can follow unpredictable courses. For example, after prisoners associated with the clandestine Ergenekon network were released, they were called back for a retrial. Legal as well as judicial instruments are sometimes used against government opponents, especially those in the media.

The 15 July failed coup attempt caused a major uncertainty in legal and practical terms. The governmental decrees issued during the state of emergency are not subject to judicial review. Moreover, at least 110,000 public servants mainly from the military, judiciary, health sector and universities were dismissed. The restructuring of the public service will take time and lead to further uncertainty, especially given the need to harmonize the current legal framework and constitutional amendments. More importantly, the government regulated some public matters by the state of emergency decree instead of through legislation, as is required by the constitution. During the review period, the practice of detaining and releasing journalists and pro-Kurdish politicians without clear legal cause became a regularity. The State of Emergency Procedures Investigation Commission has been established and is expected to publicize its decisions by the end of 2017.
Citations:
European Commission, Turkey 2016 Report, Brussels, 9.11.2016, http://ec.europa.eu/enlargement/pdf/key_documents/2016/20161109_report_turkey.pd f (accessed 1 November 2016).
Yargı Reformu Strateji Belgesi 2015, http://www.sgb.adalet.gov.tr/yargi_reformu_stratejisi.pdf (accessed 27 October 2015)
‘Turksat to remove opposition channels,’ Broadband TV News, 23 October 2015, http://www.broadbandtvnews.com/2015/10/21/turksat-to-remove-opposition-channels/, (accessed 13 November 2015)
Turkey’s economy tsar warns of deteriorating rule of law, Hürriyet Daily News, 14 May 2015, http://www.hurriyetdailynews.com/turkeys-economy-tsar-warns-of-deteriorating-rule-of-law.aspx?pageID=238&nID=82394&NewsCatID=338 (accessed 27 October 2015)
“1 yıla damga vuran 26 KHK,” 20 July 2017, https://www.gazeteduvar.com.tr/gundem/2017/07/20/1-yila-damga-vuran-26-khk/ (accessed 1 November 2017)
“TÜSİAD Başkanı Bilecik: OHAL’in mümkün olan en kısa sürede sonlandırılması önemlidir,” 5 February 2017, https://www.ntv.com.tr/ekonomi/tusiad-baskani-bilecik-ohalin-mumkun-olan-en-kisa-surede-sonlandirilmasi-onemli,qgu1SW97uUqtTBH4lthayg (accessed 1 November 2017)
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