RULE OF LAW

The rule of law is one of the basic pillars of Finnish society. When Finland was ceded by Sweden 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 which demands legal certainty, condemns any fusion of public and private interest and prevents public officeholders from abusing their position for private interests.

Although New Zealand, following the British tradition, does not have a codified constitution but 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 Ombudsmen, strengthen accountability.

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 not a significant problem. The state bureaucracy is regarded as both efficient and reliable. Norwegian citizens generally trust their institutions.

Sweden is a strong constitutional state (“Rechtsstaat”). Lawfulness, transparency and procedural fairness are core values of the Swedish democracy. Sweden belongs to a group of countries where the law is the key instrument of public decision-making. Corruption is all but non-existent.
As in many countries, however, market-based administrative reforms in the past challenged to a certain extent the legality of public administration. Redefining citizens into “customers” challenges much of the individual’s legal basis for his/her interaction with public services . These reforms may threaten entrenched norms such as equal treatment. During the period of review, no evidence can be reported that these reforms undermined legal certainty and predictability of the government and public administration. Additionally, the Ombudsman of Justice surveys the rule of law in Sweden.

During the review period, there has been no change in the strong judicial oversight of executive decisions at the Commonwealth level and at the level of the six states and two territories.
Jurisdictional uncertainty between the federal and state governments continues to be an issue. The most recent example of this uncertainty concerns a new resource tax on mining proposed by the federal government in 2010, which some legal experts believe may be unconstitutional because mineral resources are owned by the states.

Executive actions are generally 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, as in the areas of freedom of information and discrimination. Government bodies then learn to comply with an established practice. An important example is the right to strike, which is referred to only as a fundamental right and in the context of collective bargaining law. For some time, government official tried to declare strikes that were not connected with collective bargaining illegal. However, no such issue was raised when trade unions in transport prepared to stage a strike in March 2010 against changes that would have taxed benefits in kind they were receiving from employers.

Denmark has a long tradition of a rule of law. Traditionally, government officials had law degrees and many still do. 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 can vary from one municipality or region to another. In recent decades more officials have been trained in political science or other social sciences. This may have contributed to making the administration more strategic in thinking, instead of legal, but in reality the Danish administration tends to rely on common sense and be rather pragmatic in its approach. But there is no doubt that political considerations do enter administrative decisions to a certain degree.
Acts passed by the People’s Assembly as well as administrative regulations based on these acts are all made public. They are now widely available on the Internet.

According to the Basic Law, Germany is a constitutional state, and German authorities live up to this high standard in constitutional reality as well. One indicator illustrating the trust among German citizens and foreigners is the particular confidence shown in the quality of contract enforcement, property rights, the police and the courts. According to the Global Competitiveness Report 2009 – 2010, foreign investors appreciate Germany’s positive legal environment very much.
In addition, Germany’s judicial branch is in an inarguably strong position with regard to the assessment of administrative legality. In general, the more independent courts are from political influence, the more powerful they are with respect to competences and resources, and the easier it is for citizens to get access to the courts, the more that the government and administration are bound to act on the basis of and in accordance with legal provisions to provide legal certainty. Doing otherwise under these conditions would risk being continually overruled, which would undermine institutional legitimacy. Germany’s supreme court stands out due to its substantial institutional powers in combination with a high degree of independence from political exertion of influence (cf. Kneip 2009: 647p.). For instance, as in most countries in the SGI report, public authorities as well as legislative acts are bound by Federal Constitutional Court (FCC) verdicts; neither government nor parliament can overrule a decision (unless the Basic Law itself is changed). The FCC’s final say on the interpretation of the Basic Law secures the high degree of legal certainty that holds in Germany.
Nevertheless there have been some incidents that raise doubts about governments’ willingness to act in accordance with legal provisions at all times. An example is the alleged promotion of a party colleague to a top police position the state of Hesse by Volker Bouffier, the Hessian secretary of state. This action was found to be faulty and “grossly illegal” by the Higher Administrative Court of Hesse, and had to be retracted. But this incident also demonstrates that the rule of law works and is protected by the courts.

The Icelandic state authorities and the state administration respect the rule of law, and as a rule make decisions accordingly. Therefore, their actions are generally predictable. However, there have been cases where court verdicts and government actions have been appealed to and overruled 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.
A recent case of a different kind has a bearing on legal certainty. The Supreme Court ruled in June 2010 that bank loans indexed to foreign currencies rather than to domestic prices were in violation of a law passed by parliament in 2001. This means that the asset portfolios of the failed Icelandic banks after their collapse in 2008 contained loans that turned out to be illegal. The amounts at stake are large. How the matter will be resolved remains to be seen. The example shows that the entire banking system broke the law without attracting the attention of the government or any of its institutions, including the Central Bank and the Financial Supervisory Authority.

There can be no doubt that legality and legal certainty, applied equally to civil, penal and administrative law, are standards that Dutch governments and administrative authorities on all levels have internalized in their decisions and actions. Even the autonomous administrative authorities that, for a while, threatened to become exceptions to the rule of law have been brought “back on board,” that is, ministerial responsibility and parliamentarian oversight of their decisions has formally been restored. Yet, a small number of glaring miscarriages of justice has demonstrated that legal certainty is, in fact, traded off against, on the one hand, timeliness and efficiency in legal procedures in addition to a desire to produce outcomes (convictions) and, on the other, the risk of incidental injustices.” A heavy (and growing) case load and increased work pressure leads justices to poor, incomplete, and sometimes erroneous argumentation of verdicts. The significance of this is clear in light of the fact that only 3% to 4% of legal cases result in acquittals or release from prosecution. Furthermore, the Netherlands is characterized by a closed system of appeal and judicial review. In cases under civil and criminal law, decision by regular courts can be appealed in higher courts and cassation by the Supreme Court (Hoge Raad), in rare cases even by appeal to international law, such as the European Court for Human Rights in Strasbourg. This exhausts possibilities for appeal, except for very rare Supreme Court decisions for retrials.

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 partial “militia administration” system 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.

The UK’s government and administration act predictably and in line with legal provisions. This is facilitated by the fact that the government has a large degree of control over the legislative process, and can amend legislation that proves to be a hindrance to government policy objectives, though this can occasionally trigger opposition from the House of Lords or other sources, as occurred with attempts in 2008 to extend the period that the police could hold suspects in custody.

Administrative and executive action has generally been firmly and often narrowly bound by law. It is subject to judicial review, with courts having broad authority to overrule executive action on statutory or constitutional grounds. In areas of controversy, such as environmental regulation, all major administrative actions are appealed by various affected parties and thus are extensively reviewed by courts. In addition, because of the separation of powers and the independence of the legislature, Congress has closely monitored executive behavior. It has also tended to enact massively detailed statutes, leaving relatively few matters to agency discretion. The extensive monitoring and review arguably does not provide a high level of legal certainty, however, because procedural requirements and judicial appeals routinely take several years to complete. Once appeals in a rule-making process are completed, agency decisions in individual cases are highly predictable. In the years since 2001, a particular source of uncertainty has been the scope of presidential power, particularly in matters of national security. The Bush administration asserted extraordinary unilateral authority, under the novel constitutional doctrine of the “unitary executive.” It also ordered major expansions of surveillance policies, secretly, without statutory authority. The increasingly partisan Congress has been less aggressive in monitoring executive action during periods of unified party control of the government. Although generally more committed to the separation of powers, the Obama administration has maintained some of the Bush administration’s claims of executive privilege with respect to information and issues of national security.

The Austrian constitution is based on a specific understanding of legality. Any administrative act must be based directly or indirectly on a specific law, and any law must be in line with the constitution. The constitution also guarantees the courts’ independence. Judges cannot be dismissed or transferred against their will. No government institution may interfere in court decisions. The government (i.e., the president) appoints judges – with the exception of the high courts – based on nominations from the courts themselves. This independence is monitored by the three high courts, the High Court for Civil and Criminal Law, the Administrative Court and the Constitutional Court.
The Constitutional Court is by far the most important body in terms of guaranteeing the rule of law. It can suspend laws already passed by parliament if the law violates the constitution. The Constitutional Court is also tasked with monitoring the fairness of electoral procedures. The federal president appoints members of the Constitutional Court based on nominations by the federal parliament or by the federal government. But the court as such has the reputation of independence. The most significant issue in terms of possible underperformance is the delay of decisions resulting from an overload of cases, most of which deal with asylum issues.
Another factor negatively affecting the Constitutional Court’s effectiveness is the ambiguity of the implementation process. In principle, it should be the federal government making sure that the court’s decisions are executed. But as the case of Slovene minority rights in Carinthia clearly outlines, the Constitutional Court has its limitations. Referring to the constitution, the Court has ruled that the number of bilingual local signs in Carinthian communities must be increased. This decision has not been implemented due to resistance among parts of the majority population and fears of political reprisals among the regional and federal government.

Government and administration rarely make unpredictable decisions. Legal regulations are generally consistent, but do sometimes leave scope for discretion. The best known recent example of lack of legal certainty was when the federal government violated its own law on fixed election dates, calling an election before the predetermined date. Many believe that an election was unnecessary, and that the government acted only to gain political advantage. In general, Canadians appeared little troubled by this failure to respect legal certainty. The constitutionality of this early election was unsuccessfully challenged in court, although is the issues is pending appeal as of this writing.

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 relative to government activity, including the Office of the General Comptroller (Contraloría General de la República) and the monitoring functions of the Chamber of Deputies (Cámara de Diputados). Government actions are moderately predictable, and conform largely to limitations and restrictions imposed by law.

Executive actions are largely in accordance with the law. However, legal certainty sometimes suffers from the poor preparation and low quality of legislation. Sometimes, legislation is hectic and single legislative acts address rather different issues. This undermines the coherence of legislation and grants the administration considerable discretion in deciding concrete matters.

No important changes occurred regarding legal certainty in the period under review. The Spanish executive rarely makes unpredictable decisions, and normally acts on the basis of and in accordance with legal provisions. Spanish administrative law and practice is grounded in the principle of legal certainty (and, to a much lesser extent, the principle of transparency, as discussed under Access to Government Information). Strict legal interpretations may in fact produce some inefficiency in certain aspects of the administration, such as the rigid system of personnel recruitment, working methods that depend rigidly on clear departmental command rather than flexible cross-organization work teams, a preference for formal hierarchy rather than skills when making decisions, the reliance on procedure regardless of output effectiveness, and other such effects. In addition, the legalistic approach is also a source of abuse in some cases, since citizens are generally reluctant to appeal administrative acts to the courts as a consequence of the high costs and long delays associated with this process. Nevertheless, basic administrative law is consistent and uniform, assuring regularity in the functioning of all administrative levels.
It is true that subnational levels of administration engage in a higher level of discretion or even arbitrary action, for example concerning licenses for housing construction and in urban planning decisions. However, the recent collapse of the real estate bubble and changes to the land use planning regulations (Legislative Decree 2/2008) have helped inaugurate a trend of increasing legal certainty in this domain as well.

In general, the Belgian government and its administration is expected to follow state laws, and therefore be predictable in its actions. Nevertheless, since the federalization of the Belgian state is still young and the authority of different government levels overlaps on many matters, the interpretation of laws and regulations can be discretionary or potentially unclear and therefore less predictable than what would be desirable in an advanced democracy.
Immigration policy is one area where the government’s discretionary power is relatively high and decisions rather unpredictable. The government administration (legally, the minister) must decide on every individual case whether an asylum demand is acceptable or not.
Linguistic disputes present another example. To a growing extent, rules and laws are interpreted differently by French-speaking and Flemish-speaking authorities and administrations. This relates, for instance, to the legality of electoral procedures or to the “sufficient knowledge” of the other language to obtain an administrative service or position. Increasingly, these disputes are brought in front of higher courts (including the Constitutional Court), which are often divided into Flemish and French “chambers.” Depending on the chamber, the interpretation of a dispute may vary significantly.
Therefore in the current context, the level of legal certainty is diminishing.

Executive actions are largely guided by law. Compared to its predecessor, the Tusk government has shown a much stronger respect for the law and the established institutional arrangements. However, the difficult relation between the government and the president and the latter’s frequent use of vetoes have reduced legal certainty by complicating the implementation process. Moreover, the predictability of administrative behavior in Poland is sometimes limited by complex and contradictory regulations.

Portugal is an extremely legalistic society. However, as highlighted in the 2009 SGI report, the legal environment is very complex, allowing considerable decision-making discretion to the government and public administration.
There is currently a debate over whether the laws are being applied consistently and predictably in the financial sector. However, while the PS majority held its majority in parliament, the government did not act at all times fully in accord with the spirit of the law.

There have been few changes in terms of legal certainty in the last two years, and signs of both improvement and deterioration can be found. On the one hand, there are fewer complaints from investors and businesses about government intervention, a trend that reflects the government’s generally business-friendly attitude.
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 the political opposition even though independent courts later found accusations to be groundless. In South Korea’s “prosecutorial judicial system” this is particularly important, because it is the public prosecutor who initiates legal action. The most prominent case in recent years, in which critics argued that the prosecutor’s office acted as a “political weapon” of the executive branch, was the case against former President Roh Moo-hyun. Roh committed suicide in May 2009, deeply shamed by accusations of corruption, following a 13-hour session of questioning by state prosecutors. Prosecutors never provided proof for their accusations.

Usually public authorities act in line with the existing legal framework. However, government discretion remains high, even if France has been moving toward a “rule of law state” since the 1970s. The legal system suffers of at least two defects. First, many pieces of legislation cannot be enforced or are delayed due to the lack of implementing measures, such as government decrees or by-laws. This tactic is sometimes deliberately used by the government, in particular when active lobby groups manage to put a brake on reforms voted by parliament. Second, it is not infrequent that the executive branch’s interpretation of legislation restricts, changes or extends the meaning of the initial legislation. Interpretations might change over time through the publication of internal directives or “circulaires” which actually become more important than the initial law. In addition, in the Fifth Republic, the supremacy of the executive allows many successive changes to be made over short periods of time.

By and large, government and administrative units act predictably and in accordance with known rules. However, ministers have the discretion to use ministerial orders that might be regarded as arbitrary and unpredictable. These orders are liable to challenge and judicial review, which places an effective limit on the discretion that ministers may exercise. The Law Reform Commission is an independent statutory body established under the Law Reform Commission Act, 1975 that keeps this issue under review. A recent commission report cites the limits placed on administrative discretion, the judicial power to compel disclosure of administrative files and the right to a fair hearing, and concludes that while “(t)here can be little doubt about the courts’ power to give relief in appropriate cases, the means of access to that relief is capable of improvement.”
Politicians are prohibited by law from interfering with the course of justice. In February 2010, former Green Party leader Trevor Sargent resigned as minister of state in the Department of Agriculture after accepting that he had made “an error of judgment” in contacting the police (the gardaí) about a case involving a constituent.
A significant degree of discretion is vested in the hands of officials (elected and non-elected) in relation to infrastructure projects and town and rural planning. These issues became very significant and controversial during the economic boom of the late 1990s and early 21st century. In some cases, decisions regarding land use may be unduly influenced by negotiations and bargaining between vested interests rather than the outcome of the application of objective rules and regulations. However, these decisions can be appealed to an independent planning board. In the current severe economic contraction, very few significant infrastructural projects are being initiated, so these issues are of less concern. Nonetheless, the number of judicial investigations (tribunals) currently under way is evidence that in the past there was widespread misuse of discretionary power by ministers and governments.
By far the most conspicuous and longest-running tribunal is the “Tribunal of Inquiry into Certain Payments to Politicians and Related Matters” (commonly referred to as the Moriarty Tribunal). This is a public inquiry established in 1997, focused on the financial affairs of certain politicians. However, since 2007, the inquiry has focused on the circumstances surrounding the awarding of the second GSM mobile phone license in 1996 (the biggest contract ever awarded by the state to a private company). The tribunal is investigating whether this award was influenced by payments to politicians. The tortuous inquiry is still ongoing.
While the thoroughness of this investigation offers some support for a belief in the accountability of ministers to the judicial system, the scale of the suspected wrong-doing and the delays in obtaining a clear verdict in the case are disturbing evidence that, at least in the past, administrative procedures in some important areas were not performed in accordance with the law. Further evidence of the problems associated with the tribunal process emerged in March 2010, when the chairman of the Moriarty Tribunal admitted to significant errors in his draft report, ensuring further delay.

In their daily lives, citizens enjoy considerable predictability with respect to law and regulations. Bureaucratic formalities can sometimes be burdensome, but they also offer relative certainty. Nevertheless, regulations are often formulated in a way that gives considerable latitude to administrators. For instance, needy citizens have often found it difficult to get welfare aid from local government authorities. Such scope of discretion is deeply entrenched in the Japanese administrative system, which holds both the advantages and disadvantages of pragmatism. The judiciary has usually upheld the discretionary decisions of the executive.

Luxembourg has a long-standing tradition of being a lawful state. Nevertheless, citizens are too often confronted with judicial vagueness or even a lack of legal guidance. Luxembourg’s administrative culture is based on pragmatism and common sense rather than judicial subtleties. This means that many matters cannot be decided with reference to well-known or established rules. Administrative decisions are sometimes arrived at in a decidedly ad hoc manner. Still, most people accept this method of operation for government and administrative matters, trusting that the legal flexibility in any given situation may result in a compromise favoring their own interests.
Courts are overloaded and take far too long to settle cases brought before them. The government has only recently begun to address this problem by hiring more judges. Since the creation of independent administrative courts and a constitutional court 10 years ago, the number of pending cases has dramatically increased, which clearly underscores the government and its administrative office’s lack of respect for legal regulations.

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 and national administrative courts – exist to enforce the rule of law. To some extent, however, the bulk and complexity of legal regulations can produce the paradoxical effect of reducing rather than increasing the certainty of the legal framework. Moreover, the length of judicial procedures can undermine the implementation of legal rules.

Legal certainty has suffered from contradictory legal provisions and frequent amendments. The government’s amendments to the pension system represent a good example of this. By twice changing the rules regarding the second pillar (which is mandatory, but private and fully funded), the Fico government undermined the trust in the reliability of the rules, thus complicating attempts to plan and provide pensions for old age. In general, the Fico government showed little respect for the law and ignored it several times. It violated the procedures of rule-making by making heavy use of the fast-track legislation procedure, which limits the parliamentary scrutiny of bills. It also reneged on commitments made to investors and intervened in the pricing of utilities.

According to the constitution (Article 123), the administration forms a whole with regard to its structure and functions, and is regulated by law. All administrative procedures and actions must comply with the constitution and legal principles, and are subject to administrative review (Article 125). However, the government has the power to exercise a considerable amount of discretion in the implementation process, through decrees that have the force of law (Article 87), circulars and statutes. Moreover, double standards in the implementation of laws persist. The lack of due process is sometimes neglected by higher authorities, and is not subject to legal investigation. Prosecutions of bureaucratic ill-treatment are rare. As of April 2010, there were 172,654 pending cases at the Council of State (a superior administrative court dealing with disputes between natural or legal persons and the state administration). The number of appeals to the European Court of Human Rights which have been decided against the Turkish state is another evidence of the lack of due process in the executive and/or judicial spheres. In 2009, the total number of cases at the European Court of Human Rights against Turkey reached 4,474, and the court ruled 341 times against Turkey.
As an example, even the constitution of 1982 contains serious contradictions and is far from contributing to legal certainty. Article 24, Clause 1 grants religious freedom and states that nobody shall be forced to reveal his or her religious confession. But Clause 2 of the same article makes religious instruction obligatory. Exemption is granted only to pupils of the Christian and Jewish faiths, through a decree of the Education and Training Commission. Thus, pupils and their parents are forced to reveal their religion, and the constitutional right is qualified by an administrative judgment. This is only one of the striking cases illustrating the lack of legal certainty. The previously mentioned tax judgment (see Media Pluralism) against the politically influential Doğan Media Holding provides another telling example. According to the law, the fine was justified, but the strict tax laws of Turkey regularly go unapplied in such a strict manner to big holdings, which are thus supported indirectly by the government against their foreign competitors. The business group had expected a continuation of the established practice, but was confronted instead with strict application of the law.
There are basically three factors affecting uncertainty in the administration: lack of regulation (or failure of the legislature to regulate in a timely manner), flexible or restrictive interpretation of the regulations by the administrative authorities, mainly on political grounds (a lack of due process in the administration), and unconstitutional regulations adopted by the parliament or issued by the executive authority (which may subsequently result in annulment).

Greece displays a problematic mix of heavy regulation with an ill-coordinated process by which to cross-check other relevant legislation. This problem is evident throughout the regulatory process, from the drafting of legislation to the application of laws.
There is a plethora of regulations, including laws, presidential decrees and ministerial ordinances covering the same subject. Even though decrees and ordinances are necessary in order to interpret and specify laws passed by the parliament, the end result is an unmanageable and self-contradictory body of regulation. This pattern is very evident in taxation and town-planning legislation.
The large number and often contradictory substance of regulations contributes to the unpredictability of government decisions. The same holds for the tendency of ministers taking office after a cabinet reshuffle to amend or even reverse legislation passed by their predecessors, even if they come from the same political party.
The bulk and complexity of existing legislation dampens legal certainty, as middle- and low-ranking civil servants can be left with contradictory guidelines as to which regulation applies. In certain extreme occasions, civil servants have opportunities to negotiate with citizens and their legal representatives the exact meaning of the letter of the law. Paradoxically, with so much regulation and legalism, scope is created for corruption.
Often, courts are called upon to resolve issues stemming from contradictory and inconsistent legislation. Even though courts play a corrective role, at the end of the day the Greek government and administration have ample room to make unpredictable decisions.

Mexico’s central government mostly acts predictably on the basis of legal norms. This is true of the majority of state governments and municipal authorities as well, although some local and state governments do act in defiance of legal predictability. It is important to note that Mexico is in the process of changing – albeit slowly – from a society governed largely through the exercise of personal discretion to one based more on legal norms. This process is uneven, and has been seriously hampered by the increasing violence associated with the war on drugs. Thus, the rule of law is definitely in the process of strengthening in most areas, but the war on drugs has also led to a state of extreme legal uncertainty with regard to one of the most pressing problems of Mexican society. With more than 20,000 killings associated with the drug trade in the last several years, one cannot speak of Mexico as a country effectively governed by the rule of law.
Moreover, there are still areas in which bureaucratic regulation is insufficient or simply ignored. The law is also sometimes vague and unspecific. For example, Mexico’s federal system has led to many disputes over which levels of government are responsible for what tasks. These differences are resolved by the Supreme Court, but there are inevitable delays in the process.