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?

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
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.
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’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 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 for 2017/18, Germany ranks 6 out of 113 countries, an improvement of two positions compared to the 2015/16 report.
New Zealand
New Zealand follows the British tradition and, therefore, its constitution is not found in a single constitutional text. Instead, the constitution includes a mix of conventions, statute laws and common laws within the framework of a largely unwritten constitution. In addition, the Treaty of Waitangi is increasingly seen as the founding document of New Zealand. The Constitution Act 1986 is a key formal statement of New Zealand’s system of government, in particular the roles of the executive, legislature and the judiciary. Other important legislation includes the Electoral Act 1993, the State Sector Act 1988, the Supreme Court Act 2003, the Judicature Act 1908, the Treaty of Waitangi Act 1975, the Official Information Act 1982, the Ombudsmen Act 1975, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993.
The scattered and incomplete nature of these documents notwithstanding, New Zealand constantly receives the highest scores in comparative measures of the quality, consistency and transparency of the rule of law.
McLean, Janet and Alison Quentin-Baxter. 2018. The Realm of New Zealand: The Sovereign, The Governor-General, The Crown. Auckland: The University of Auckland Press.
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.
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 reemphasize trust (“tillit”) as a normative foundation of the public administration. A series of “experiments,” replacing performance management with various types of trust-based management were carried out in 2017 and 2018, primarily at the local and regional levels.

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.
Petersson, O. (2014), Den offentliga makten (Lund: Studentlitteratur).
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 to the constitutionality of the Minerals Resources Rent Tax (MRRT) introduced by the federal government in 2012, and a 2014 High Court challenge to the constitutionality of federal funding of school chaplains. The High Court ruled the MRRT constitutional, but ruled the chaplaincy program unconstitutional.
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:
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.
Henning Jørgensen, Consensus, Cooperation and Conflict: The Policy Making Process in Denmark. Cheltenham: Edward Elgar, 2002.
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. In 2018, the FICIL Sentiment Index highlighted similar issues and emphasized issues of uncertainty in bureaucratic bodies.
1. The Constitutional Court of Latvia (2012), On Termination of Proceedings, Rulings available at:, Last assessed: 04.01.2019

2. FICIL Sentiment Index 2015 and 2018. Available at:, Last assessed: 05.01.2019
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.
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).

While all governments are interested in influencing the system of judicial appointments, especially concerning more senior positions within the court system, no government has yet crossed the line into political intervention and violated judicial independence.
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.
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.
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.

Alleged violations of the law by public officials are less likely to be prosecuted than allegations involving private individuals. Several recent cases involve the decisions of central bank officials during and after the 2008 financial collapse, which were not investigated or prosecuted at the time. In particular, the authorities never investigated the dubious circumstances surrounding a €500 million loan, which was lent by the central bank to Kaupthing at the height of the financial crash. The dubious nature of the loan came to light following a leaked transcript of a telephone conversation between the central bank governor and the prime minister, which was kept secret until 2017. The statue of limitations for this alleged violation took effect in early October 2018.
Lög um vexti og verðtryggingu (Law on interest and indexation) no. 38 2001.

European Court of Justice Verdict Against Iceland (Dómur MDE í máli Erlu Hlynsdóttur gegn Íslandi), Accessed 22 December 2018.
The general administrative procedure in Spain is consistent and uniform, assuring regularity in the functioning of all administrative levels. In 2016, a new piece of legislation (Ley 39/2015) came into force aiming to modernize the country’s basic administrative law and improve legal certainty. In theory, this policy holds across the Spanish public sector, but it is also true that citizens and the business sector sometimes complain about unpredictable decisions. And 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 ad government.

The events in Catalonia during the period under review (the unilateral declaration of independence by parties representing less than 50% of the population, against the recommendations of the clerks of the regional parliament and despite the prohibitions issued by the Spanish Constitutional Court) can be considered an outstanding example of an arbitrary decision that lacked legal basis and ignored the constitution. However, this was a quite exceptional and unusual development that the central institutions (the Senate, the government and the higher courts) managed with response based on the rule of law; direct rule in Catalonia was imposed, and secessionist leaders were prosecuted in connection with the breakaway bid. Even if this approach can be criticized as legalistic and lacking in political vision, it was explicitly designed with the aim of underlining that public authorities should act according to legal regulations.
Ahumada, (coord.) (2018), Informe sobre la Democracia en España 2017, Fundación Alternativas.
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.
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.
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 was exacerbated in 2014 by the ND-PASOK coalition government and has been vigorously continued by the Syriza-ANEL government since early 2015 (i.e., after the change in government). 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”). Given such uncoordinated over-regulation, the legal framework in major policy sectors, such as taxation and foreign investments, still bears loopholes and contradictions that have negatively impacted legal certainty.
The research report of the Athens-based privately owned research organization “Dianeosis” is available (in Greek) at
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. The third interim report of the Disclosures Tribunal by Judge Peter Charleton, on 11 October 2018, revealed a considerable amount of corruption and inappropriate behavior with respect to the handling of statements by police whistleblowers at the higher levels of the police force.
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.
The report of the Inquiry into the behavior of the police in relation to allegations of misconduct and corruption is available here:

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:*/0B2B2HUQaR5vwUnpJRTZnMU1tbWc?e=download
Disclosures Tribunal (Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters following Resolutions). Third interim report by Mr. Justice Peter Charleton, October 11, 2018.
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 2017 Worldwide Governance Indicators, Lithuania scored 81 out of 100 for rule of law, down from 82 in 2016. 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 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 as well as lack of adequate understanding of responsibility is likely to undermine economic policymaking. The most controversial case in 2018 was a comment by the chairman of the Budgetary and Financial Committee of the parliament that one of the owners of the two biggest Swedish banks in the country should consider selling its shares because of the high concentration of Swedish banks in Lithuania. He was criticized by the president as incompetent and even the prime minister and head of the Farmers and Greens Union distanced themselves from his position.
The Worldwide Governance Indicators of World Bank are available at
OECD, Regulatory Policy in Lithuania: Focusing on the Delivery Side, OECD Reviews of Regulatory Reform, OECD Publishing, Paris, 2015
Portugal is an extremely legalistic society. Legislation is abundant, prolix and complex. Moreover, combined with an ever-present pressure for reform arising from Portugal’s structural problems and a political tradition for new governments to dismiss the measures of previous governments, legislation is also subject to frequent changes.

The combination of overabundant and changing legislation with comparatively weak mechanisms for policy implementation further accentuates legal uncertainty.

The passing of the law on legal certainty during the period under review will ultimately improve the predictability of executive actions.
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 December 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 2017, 48.4% of the 111 adopted legislative acts in the National Assembly were subjected to the fast-track or shortened legislation procedure (compared with 39.5% in 2016). 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.
Haček, M., S. Kukovič, M. Brezovšek (2017): Slovenian Politics and the State. Lanham, Boulder, New York, London: Lexington Books.
South Korea
While government actions are generally based on the law, the scope of discretion is quite large, and unpredictable decisions are not uncommon. When new laws are introduced, the way they are to be interpreted is often not clear until courts have made a decision. Foreign companies often complaint about inconsistent interpretation of regulations, and “opaque regulatory decision-making remains a significant concern” according to the U.S. Department of State. Corruption also remains an impediment to improving legal certainty. After former President Park was jailed in 2017, her predecessor Lee Myung-bak was sentenced to 15 years in prison for corruption in October 2018. He is accused of collecting bribes from a variety of sources, including Samsung (for a total of about KRW 6.1 billion, or $5.4 million). In Korea, personal relationships generally play an important role in decision-making, while legal rules are sometimes seen as an obstacle to flexibility and quick decisions.
“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.
Choe, Sang-hun. 2018. “Former South Korean President Gets 15 Years in Prison for Corruption”. The New York Times, October 5. Retrieved October 17, 2018 (
US Department of State, Investment Climate Statements for 2018, Korea, Republic of
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 Law Index 2016 – 2017, the Netherlands again ranked 5 out of 113 countries. However, this ranking curiously disregards warnings from legal experts that the situation is rapidly deteriorating and nearing crisis levels.

In a recent “stress test” (2015) 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, appeal to a national Constitutional Court is impossible and contested among experts. 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 legal bodies 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 laws 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. For example, fiscal and social-security agencies have become exceptionally punitive toward ordinary citizens, not just in cases of suspected 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.

The Council of Jurisprudence was established in 2002 as an independent boundary advisory commission between the Ministry of Justice, parliament and the supposedly politically independent judicial branch. As a boundary spanning mechanism the council proved to be an outspoken failure in 2017 to 2018. Its chair declared that the judiciary was outdated for a modern, rapidly changing society. Citizens and businesses both state that judicial procedures are too expensive, too complex, too time consuming and too uncertain in their outcome. Meanwhile, the digitalization of routine judicial procedures has been a failure and has cost the government dearly. Political debates on the issue of judicial reform focus on the budget for the judiciary (€900 million) and how to structurally reduce the deficit, for example, by “outsourcing” judicial tasks to private mediation. Judges have demanded the right to determine their own budget, but this appears politically unacceptable. In an exceptional move, lawyers, judges and prosecutors wrote a joint letter to the government expressing their “fear for the future of the judiciary branch.”
A. Brenninkmeijer, Stresstest rechtsstaat Nederland, in Nederlands Juristenblad, 16, 24 April 2015, pp. 1046-1055

NRC-Handleblad, “Vooral de VVD zet de grootste stap achteruit,” 12 March 2017

NRC-Handelsblad, de financiële tekorten bij de rechtspraak zijn nog groter dan gedacht, 23 April 2018.

NRC-Handelsblad, De rechtspraak is terrein aan het verliezen, 6 October 2018

Volkskrant, Rechters willen voortaan eigen begroting, 27 March 2018

NOS, Nieuwsuur, Brandbrief rechters: wij vrezen voor de toekost van de rechtspraak, 8 November 2018
Generally French authorities act according to legal rules and obligations set forth from national and supranational legislation. However, the legal system 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. In addition, prosecutors enjoy the discretionary power to prosecute or not, if in their opinion the plaintiff’s complaint is minor and not worth taking to the court (e.g., a person complaining about a neighbor’s dog barking at night or, more seriously, some cases of marital violence). About one-third of all complaints do not trigger action from the public prosecutor’s office.

In addition, a considerable discretion is 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. At the end, the new tax will represent half of the due reimbursement.
Several institutions were established in Israel in order to review the activities of government and public administration. 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 2018, the High Court struck down the state’s decision to refuse Lara Alqasem, a BDS supporter, entrance into Israel. However, regarding the dismissal of laws, Israel ranks relatively low compared to other countries.

Some legal arrangements provide for ad hoc state action to deal with security threats. The Emergency Powers (Detention) Law of 1979 provides for indefinite administrative detention without trial. According to a human rights group, at the end of August 2018, there were 465 Palestinians incarcerated under such charges. 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.
“Administrative detention,” B’tselem

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,” JPost, 12/9/17,

“Knesset opens Winter Assembly; Speaker Edelstein: ”Parliament`s status eroded due to lack of separation of powers,” The Knesset Website, 23/10/2017:

Luria, G “How many Laws are dismissed in the world?” IDI, 22.4.18:

Weitz, Gidi. “In Israel, No Gatekeepers to Stop Netanyahu’s War on Media,” Haaretz, 02/04/2017:

Transparency International, “Israel releases first ever National Integrity System report on Israel’s government, institutions,” 11.11.2014:
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 complexity of regulations (which are sometimes contradictory) creates opportunities for corruption.
The government has backed efforts to simplify and reduce the amount of legal regulation but has yet to obtain the results expected.

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.
The increasing use by ministers of social media (e.g., Twitter and Facebook) to communicate decisions before they are formally announced creates a degree of legal uncertainty.
Recent announcements of the new government are questioning whether the government will always act in accordance with legal provisions.
In their daily lives, citizens enjoy considerable predictability with respect to the rule of law. 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.

In a more abstract sense, the idea of the rule of law per se does not command much of a following 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.
Carl F. Goodman: The Rule of Law in Japan: A Comparative Analysis, The Hague: Kluwer Law International, 2003
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. The text of the reform has already been published. During the current legislative period (2018 – 2023), a referendum is supposed to be held on the constitutional reform. Public consent for the reformed constitution is not certain. Nevertheless, it is true that a reform of the constitution is urgently needed. However, many Luxembourgers are concerned that the constitution is supposed to be written in French rather than in Luxembourgish, the national language of Luxembourg.

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.

Many citizens in Luxembourg are annoyed that they cannot understand the laws and procedures in court. Many Luxembourgers are not familiar with the Standard French used in court. Another major problem is the bad acoustic in Luxembourg City’s courtrooms. Visitors and journalists regularly cannot understand what is being said in the hall because microphones are not used. This embarrassment was also taken up by the international press.
Zenthöfer, Jochen: “Ein Prozess wie im Stummfilm,” Frankfurter Allgemeine Zeitung, 11 April 2017. Accessed 22 Oct. 2018.

Cames, Michel: “Pragmatisch, flexibel, schnell – Wirtschaftspolitische Besonderheiten von Kleinstaaten am Beispiel Luxemburg.”, September 2013. Accessed 22 Oct. 2018.

Trausch, Gilbert (2008): “Die historische Entwicklung des Großherzogtums – ein Essay,” in: Wolfgang H. Lorig/Mario Hirsch (eds.): Das politische System Luxemburgs: Eine Einführung, Springer VS Verlag, pp. 13–30.

“Referendum.” Accessed 22 Oct. 2017.
Since Malta joined the European Union, the predictability of the majority of decisions made by the executive has steadily improved, with discretionary actions becoming more constrained. Overall, legal certainty is robust, though there continue to be instances where the rule of law is misapplied by state institutions. 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. The rule of law is what one might consider a work in progress. The judicial system has been strengthened and more legislation put into place. The Ombuds Office and the National Audit Office (NAO) continue to provide strong oversight over many aspects of public administration. After much delay, the officer who will be in charge of the Standards in Public Life Act was appointed with full agreement by both major political parties.

However, reports from public bodies such as the Ombuds Office and the National Audit Office demonstrate that government institutions do sometimes make unpredictable decisions, notably in the use of direct orders by ministries in concessions of public land to private business operators. Moreover, there is a lack of transparency in the allocation and terms of public contracts. In October 2018, the NAO issued a damning report on a 2011 concession of public land made to a consortium with plans to build a national aquarium. Parliament is also slow to legislate on articles of the law that have been declared unconstitutional and need to be revised. Several laws and practices enacted before EU membership are now in breach of the Maltese constitution or the European Convention on Human Rights, notably in the case of property acquired by the government decades before membership. There is no overarching sentencing policy that ensures legal certainty; instead, sentences that ignore clear provisions in the constitution and which are instead based on other laws still take place. 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.
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
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
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. As a result of frequent amendments, many laws have come opaque and inconsistent. This situation was widely criticized by many NGOs and watchdog organizations. 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. Legal certainty has suffered also from the fact that the Constitutional Court has lacked a unifying normative background. While many court decisions have been inspired by the case law set by the European Court of Human Rights and the rulings of other European constitutional courts, particularly the German one, others have been based on specific and not always transparent views of individual justices.
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.

However, the government has struggled to implement Brexit and (at the time of concluding this assessment) uncertainty about how it will unfold persists, despite bold promises made in the immediate aftermath of the 2016 referendum. A “Great Repeal Bill,” the European Union (Withdrawal) Act 2018 promises to bring all legislation derived from the European Union back into the UK legal system. However, parliament has still not approved the bill. Further, the act, being a national British law, is limited to EU laws that apply only to UK territory and will therefore be unable to replace international deals previously included in the United Kingdom’s EU membership. The uncertainty is a source of great concern for the business community and international investors in the United Kingdom. An unusually harsh remark came from Hiroaki Nakanishi, chairman of Keidanren the largest Japanese business association, who deplored the lack of clarity about what the UK government expects the future UK-EU relationship to be.

Similarly, the post-Brexit status of the three million EU citizens currently living and working in the European Union has still not been reliably clarified. Even though the UK government has signaled its willingness to uphold EU citizens’ residential status beyond March 2019, no law has been passed to ensure the pledge. Statements given by Immigration Minister Caroline Nokes when questioned by the Home Affairs Committee have not helped to clarify the situation.

There is also a lack of legal certainty regarding the many statutory instruments still to be scrutinized by parliament that are necessary to give force to certain provisions of the EU Withdrawal Act. There are strong doubts that these statutory instruments will all be passed in time for the 29 March deadline for the United Kingdom to exit the European Union. More generally, the all-consuming nature of Brexit has inhibited the conduct of other areas of policy, including the roll-out of Universal Credit, and the necessary reforms of health and social care, and transport policies.

Fore Keidanren source:
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 indecision-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 may not know their obligations under the new regulation for several years.

Donald Trump and his associates have been criticized massively for their overt and sustained efforts to undermine investigations into possible misconduct. In the most important investigation, Special Counsel Robert Mueller investigated Russian interference in the 2016 election campaign, possible collusion with the Russian interference by the Trump campaign, and possible obstruction of justice. In the course of the various investigations into his activities, Trump has fired the FBI director, threatened to fire Special Counsel Robert Mueller, leveled numerous false accusations against investigators, and repeatedly discussed offering presidential pardons to his associates whom he feared would testify against him. For the most part, Congressional Republicans have either supported Trump’s conduct or have at least avoided engaging in a direct confrontation with him. Some Republicans, however, have managed to keep Trump from taking the most drastic steps (e.g., firing the Special Prosecutor).
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.
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. A clear example of such an abuse of discretion are two decisions by the Commission for the Protection of Competition in the summer of 2018 in which the commission stopped two acquisitions on the basis of mutually exclusive arguments.
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.

The number of pending criminal cases in the court system can be used as an indicator of the efficiency and predictability of the court processing system. According to Eurostat data, this number was on the decline in the period leading up to EU accession, falling from 819 pending criminal cases per hundred thousand people to 456 in 2013. Since then, the number has crept back up to 578. This is far greater than in many other EU countries. For civil and commercial cases, the situation is even worse with as many as 6,158 pending cases per hundred thousand people, which amounts to the second highest logjam in the EU.
The sound foundations of the state apparatus have been weakened over the years, with an impact on adherence to the law. More serious are the effects of the collapse of bi-communality in 1964. The law of exception leaves a very strong executive and some independent officials with powers subject to very little or no control.

The legal soundness of some laws and policies to face the crisis are frequently contested. There are also frequent incidents where laws passed by the parliament are judged unconstitutional by the Supreme Court. Action on important matters is either delayed or has the character of semi-measures that are inefficient or unjust. Long overdue action on non-performing loans is promoted by the government plan ESTIA, which the European Commission and ECB warn of “moral hazard risks and fairness issues.”

Thus, delays and actions inconsistent with the rule of law persisted in 2018. Clashes with the auditor general and attorney general also continued. Specific practices resulted in undermining meritocracy, administrative efficiency and consistent law enforcement.
EU green light expected for contentious bad loan payback scheme, Cyprus Mail, 29 October 2018,
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. Frequent conflicts between the judges’ association and the new partisan Constitutional Tribunal have created a situation in which many citizens are simply bewildered in trying to assess which legal institutions are legitimate and which are not.
As the Orbán governments have taken a voluntarist 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. Legal certainty will be further weakened by the planned establishment of administrative courts, a new branch of the judiciary that is entirely under governmental control. As a result, Hungary is not characterized by the rule of law, but by rule by law.
The rule of law continues to be characterized by an ineffective judicial system. Violence and crime, corruption and impunity undermine the rule of law.
In corruption-related crimes impunity reaches 98% and in homicides 97%. The adoption of a 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 between all governmental bodies (on the federal, state and municipal levels), but implementation of the reform has been undermined by a lack of political will. More than two years after approval, 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. 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. This dramatic situation is not expected to change quickly under the new government.
Legal certainty has strongly suffered from the tug-of-war over the reform of the judiciary between the government on the one hand and President Iohannis, Prosecutor General Augustin Lazar and the Supreme Council of Magistrates on the other. Moreover, the government has continued its widespread use of government emergency ordinances (OUG) 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.
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.
Simplifying administrative procedures and cutting red tape has been hindered by the absence of a law on general administrative procedures, which would provide citizens and businesses with greater legal certainty.

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 2016 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, over 130,000 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 transition to a presidential institutional model was introduced by a series of decrees (i.e., state of emergency decrees and presidential decrees) rather than through legislation, as is required by the constitution. The restructuring of public administration will take some time and increase uncertainty.
European Commission, Turkey 2018 Report, Brussels, 17.4.2018, report.pdf (accessed 1 November 2018)
World Justice Project, Rule of Law Index 2017-2018, -Online-Edition_0.pdf (accessed 1 November 2018)
M.Z: Sobacı et al., “Türkiye’nin Yeni Yönetim Modeli ve Cumhurbaşkanlığı Teşkilatı,” June 2018, (accessed 1 November 2018)
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