Rule of Law

 

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

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

In substantive terms, German citizens and foreigners appreciate the predictability and impartiality of the German legal system, regard Germany’s system of contract enforcement and property rights as being of high quality, and put considerable trust in the police forces and courts. Germany’s high courts have significant institutional power and a high degree of independence from political influence. The Federal Constitutional Court’s final say on the interpretation of the Basic Law provides for a high degree of legal certainty. In the World Justice Project’s Rule of Law Index 2019, Germany was ranked sixth out of 128 countries; this was an improvement of two ranks compared to the 2015 – 2016 report, but was the same rank achieved in the 2017 – 2018 report.
Citations:
https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019
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.
Citations:
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
Norway’s government and administration act predictably and in accordance with the law. Norway has a sound and transparent legal system. Corruption within the legal system is a rather marginal problem. The state bureaucracy is regarded as both efficient and reliable. Norwegian citizens generally trust their institutions.
Sweden
The Swedish legal framework is deeply engrained and the rule of law is an overarching norm in Sweden. With a Weberian-style public administration, values of legal security, due process, transparency and impartiality remain key norms. The only disturbing observation in this context is the growing emphasis on efficiency in public administration that has arisen in the context of a recent public management reform. This focus on efficiency potentially jeopardizes the integrity of legal certainty and security, in particular with respect to migration processes. Recent media reports have shown that pressures on migration staff to process a given number of asylum applications within a specific timeframe undermines the legal certainty and fairness of case work.

There are now signs emerging that market-based administrative reforms may have peaked in Sweden; there is now a search for a “post-NPM” or “neo-Weberian” model of administration. Again, the tension between efficiency goals in public administration and legal security is well-known but still looms large in the context of administrative reform. Most recently, the red-green government announced plans to downplay New Public Management as a philosophy of public sector reform and to 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.
Citations:
Petersson, O. (2014), Den offentliga makten (Lund: Studentlitteratur).
9
Australia
There is strong judicial oversight of executive decisions. Judicial oversight occurs through a well-developed system of administrative courts, and through the High Court. That said, jurisdictional uncertainty between the federal and state governments continues to be an issue. Two recent cases highlighting this uncertainty are a 2013 High Court challenge 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.
Citations:
Michael Crommelin, ‘The MRRT Survives, For Now: Fortescue Metals Group Ltd v Commonwealth’ on Opinions on High (16 September 2013)

Gabrielle Appleby ‘Commonwealth left scrambling by school chaplaincy decision’ The Conversation, 19 June 2014: https://theconversation.com/commonwealth-left-scrambling-by-school-chaplaincy-decision-27935
Denmark
Denmark has a long tradition of a rule of law. No serious problems can be identified in respect to legal certainty in Denmark. The administration is based on a hierarchy of legal rules, which of course gives administrators certain discretion, but also a range of possibilities for citizens to appeal decisions. Much of the Danish administration is decentralized and interpretation of laws, rules and regulations can vary from one municipality or region to another. Acts passed by the parliament, as well as administrative regulations based on these acts, are all made public. They are now widely available on the internet. Openness and access to information, and various forms of appeal options, contribute to strengthening legal certainty in administration.
Citations:
Henning Jørgensen, Consensus, Cooperation and Conflict: The Policy Making Process in Denmark. Cheltenham: Edward Elgar, 2002.
Latvia
Latvia’s government and administration generally act in a predictable manner. Government decisions have in some cases been challenged in court on the basis of a breach of the principle of legal certainty. For example, a group of Administrative Court judges approached the Constitutional Court to protest austerity measures targeting planned judicial-salary increases, arguing a breach of legal certainty. The Constitutional Court ruled against the judges in 2012.

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

The Foreign Investors’ Council in their FICIL Sentiment Index 2015 noted two issues with legal certainty. First, the legal system delivers unpredictable results, which negatively affect the foreign investment climate in Latvia. Second, the legislative environment and tax regime have 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, labeling it a “chronic problem” for the business environment.
Citations:
1. The Constitutional Court of Latvia (2012), On Termination of Proceedings, Rulings available at: http://www.satv.tiesa.gov.lv/en/press-release/the-constitutional-court-terminated-proceedings-in-the-case-on-judge-and-public-prosecutors-remuneration-reform/, Last assessed: 28.10.2019.

2. FICIL Sentiment Index 2015 and 2018. Available at: https://www.sseriga.edu/centres/csb/sentiment-index, Last assessed: 28.10.2019.
Switzerland
Switzerland’s federal government and administration act predictably. This predictability is partially reduced by the very pragmatic administrative culture at the cantonal and local levels. The country’s division into small administrative districts, the tradition of decentralized local government and a partially non-professional administration system (“Milizverwaltung,” militia administration: referencing the non-professional army) provide for a substantial amount of leeway in Switzerland’s public administration activity. The pragmatic administrative culture ensures flexibility and efficiency, on the one hand, but reduces legal certainty, on the other.
 
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
8
Austria
The rule of law in Austria, defined by the independence of the judiciary and by the legal limits that political authorities must respect, is well established in the constitution as well as in the country’s mainstream political understanding. The three high courts – the Constitutional Court (Verfassungsgerichtshof), which deals with all matters concerning the constitution and constitutional rights; the Administrative Court (Verwaltungsgerichtshof), the final authority in administrative matters; and the Supreme Court (Oberster Gerichtshof), the highest instance within the four-tier judicial system concerning disputes in civil or criminal law – all have good reputations. Judicial decisions, which are based solely on the interpretation of existing law, can in principle be seen predictable.

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

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

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

On the other hand, laws are becoming so complex that even renowned experts struggle to understand them. This relates in particular to issues of immigration and asylum (Fremdenrecht).

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 direct political intervention and has not (yet) violated judicial independence.
Canada
Canada’s government and administration rarely make unpredictable decisions. Legal regulations are generally consistent but do sometimes leave scope for discretion. Of course, the government can be expected to be challenged in court if its executive actions are not consistent with the law, which provides an incentive to comply.
Czechia
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.
Greece
The state administration operates on the basis of a legal framework that is extensive, complex, fragmented and sometimes contradictory. Formalism dominates legislation. Legal regulations are often not consistently applied. Acts passed by parliament often have seemingly extraneous items added, which only confuses things further.

Since the start of the economic crisis, because of the pressing need to achieve fiscal consolidation, the government repeatedly adapted past legislation to changing circumstances. Many changes have been made to areas such as taxation which, though necessary, have not fostered an institutional environment conducive to attracting foreign investment. Moreover, because of the need to effect reforms rapidly, the government resorted to governing by decree after passing legislation which left ample room for discretion. This practice 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). After the government turnover of July 2019, the new, single-majority government passed a law reorganizing the top echelons of the government and the monitoring of public services with the intention of bolstering the rule of law across the administration (law 4622/2019). This campaign appears to be far better planned than previous haphazard efforts in this area, but its results remain to be seen.

The practice of frequently amending recently passed legislation has continued unabated. On average, a new law is voted on by the Greek parliament every week (according to research by the Athens-based Dianeosis organization). Given such uncoordinated overregulation, the legal framework in major policy sectors, such as the regulations governing taxation and foreign investment, still exhibits loopholes and contradictions that have negatively impacted legal certainty.
Citations:
The research report of the Athens-based privately owned research organization “Dianeosis” is available (in Greek) at https://www.dianeosis.org/wp-content/uploads/2016/07/polynomia_final2.pdf
Iceland
Icelandic state authorities and administration respect the rule of law, and their actions are generally predictable. However, there have been cases in which verdicts by Icelandic courts and government actions have been overruled on appeal by the European Court of Human Rights. There have also been examples of Supreme Court verdicts that have been overruled by the European Court of Justice. Some of these cases have dealt with journalists’ free speech rights.

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 were 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 statute of limitations for this alleged violation took effect in early October 2018.

In late 2019, huge bribes to Namibian ministers and others paid by Iceland’s largest fishing firm, Samherji, to secure fishing rights in Namibian waters were exposed by Wikileaks. This revelation led to the immediate arrest of two ministers and four other individuals in Namibia. In contrast, the reaction of political and judicial authorities in Iceland to this scandal has been more muted than in Namibia. However, the case is still under investigation. At the time of writing, it is not clear whether the Wikileaks accusations are correct.
Citations:
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), https://www.innanrikisraduneyti.is/raduneyti/starfssvid/mannrettindi/mannrettindadomstoll-evropu/nr/29388. Accessed 22 December 2018.
Spain
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 were a prominent example of an arbitrary decision by a regional decision-maker that lacked a legal basis and ignored the constitution. However, this was an exceptional and unusual development that the central institutions managed with response based on the rule of law. 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.
Citations:
Ahumada, (coord.) (2018), Informe sobre la Democracia en España 2017, Fundación Alternativas. http://www.fundacionalternativas.org/public/storage/publicaciones_archivos/c4ce50790447eaa82d49984032c55b91.pdf
7
Belgium
The rule of law is relatively strong in Belgium. Officials and administrations typically act in accordance with the law. Nevertheless, the federalization of the Belgian state is not yet fully mature, and the authority of different government levels can overlap on many issues; this state of affairs renders the interpretation of some laws and regulations discretionary or unstable, and therefore less predictable than might be desired.

For example, Belgium has since 2009 failed to implement many of its fiscal treaties with foreign partners (for a list, see the Belgian Service Public Federal Finances website). The discussions around the EU-Canada Comprehensive Economic and Trade Agreement (CETA), in which the Walloon government threatened to block the agreement, illustrated this issue quite clearly. The primary reason for this state of affairs is that all levels of power (federal, regional, etc.) must agree; when they do not, deadlock ensues.
Chile
Acts and decisions made by the government and official administrative bodies take place strictly in accordance with legislation. There are moderately effective autonomous institutions that play an oversight role with regard to government activity, including the Office of the General Comptroller (Contraloría General de la República) and the monitoring functions of the Chamber of Deputies. Government actions are moderately predictable and conform largely to limitations and restrictions imposed by law.
Ireland
Politicians are prohibited by law from interfering with the course of justice and attempts to do so appear to be very rare. Government and administrative units generally act predictably and in accordance with known rules. The use of ministerial orders can be to some extent arbitrary and unpredictable, but they are liable to judicial review. 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.
Citations:
The report of the Inquiry into the behavior of the police in relation to allegations of misconduct and corruption is available here:
http://www.merrionstreet.ie/wp-content/uploads/2014/05/Final-Redacted-Guerin-Report-OCR.pdf

The inquiry into the circumstances surrounding the resignation of the Garda Commissioner was conducted by a former Supreme Court judge, Justice Fennelly, and is available here:
https://doc-0s-bs-docs.googleusercontent.com/docs/securesc/ha0ro937gcuc7l7deffksulhg5h7mbp1/bjfn1u1n4ifdcsekb8vsaf0a2nnd850m/1442836800000/10437822469195814790/*/0B2B2HUQaR5vwUnpJRTZnMU1tbWc?e=download
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.
Lithuania
Overall, the regulatory environment in Lithuania is regarded as satisfactory. Its attractiveness was increased by the harmonization of Lithuanian legislation with EU directives in the pre-accession period, as well as by good compliance with EU law in the post-accession period. In the World Bank’s 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 the financial crisis in 2008 – 2009, when taxes were raised to increase budget receipts. 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 serving coalition government pledged to introduce more predictable policies. However, in late 2019, business associations criticized the debates over potential new tax-code changes as being chaotic, and as violating a two-year-old agreement with the social partners in which the government had promised to ensure the stability of the tax regime.

Laws are often 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.
Citations:
The Worldwide Governance Indicators of World Bank are available at http://info.worldbank.org/governance/wgi/#home
OECD, Regulatory Policy in Lithuania: Focusing on the Delivery Side, OECD Reviews of Regulatory Reform, OECD Publishing, Paris, 2015 http://www.oecd-ilibrary.org/governance/regulatory-policy-in-lithuania_9789264239340-en.
Portugal
Portugal is an extremely legalistic society. 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.
Slovenia
Legal certainty in Slovenia has suffered from contradictory legal provisions and frequent changes in legislation. The number of newly adopted regulations increased from 1,360 in 1991 to almost 20,000, including 800 laws, in 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 2018, 81.3% of the 25 adopted legislative acts in the National Assembly were subjected to the fast-track or shortened legislation procedure (compared with 48.4% in 2017). In the vast majority of cases, however, government and administration act on the basis of and in accordance with the law, thereby ensuring legal certainty.
Citations:
Haček, M., S. Kukovič, M. Brezovšek (2017): Slovenian Politics and the State. Lanham, Boulder, New York, London: Lexington Books.

National Assembly. (2019). Report on the work of National Assembly for 2018. (https://fotogalerija.dz-rs.si/datoteke/Publikacije/PorocilaDZ/Porocilo_o_delu_Drzavnega_zbora_v_obdobju_2018_%E2%80%93_2022__prvo_leto_mandata_2018__22__6__2018_%E2%80%93_31__12__2018.pdf).
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 complain that regulations are interpreted inconsistently, and “opaque regulatory decision-making remains a significant concern” according to the U.S. Department of State. 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.
In 2019, the substantial discretionary power exercised by prosecutors in Korea became a major political issue. Prosecutors in South Korea lead the investigation of criminal cases, and also have considerable flexibility in deciding whether to prosecute a suspect or not. Together with prosecutors’ limited degree of independence from the government (see “Judicial Review”), this broad discretion has politicized the legal system, with prosecutors appearing more reluctant to investigate acting government officials than the representatives of previous governments.
Citations:
“South Korean Leader Says She Will Submit to Scandal Inquiry,” New York Times, Nov. 3, 2016
Sang-young Rhyu, “Catastrophe 2016 in South Korea: A Tale of Dynamic History and Resilient Democracy,” EAF Policy Debates, No.63, November 22, 2016.
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 (https://www.nytimes.com/2018/10/05/world/asia/lee-myung-bak-south-korea-convicted.html)
US Department of State, Investment Climate Statements for 2018, Korea, Republic of
6
France
French authorities usually 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 tax on dividends imposed in 2012 by the Hollande administration despite the strong reservations of legal advisers. 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 €10 billion, which the government had to pay back to the companies. This forced the government to set up an exceptional tax on those companies amounted to half of the reimbursement due.
Israel
Several institutions in Israel are responsible for reviewing the activities of the government and public administration. The State Comptroller, the attorney general 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, the Israeli Supreme Court has struck down only 18 laws since 1992, a relatively low number 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.
Citations:
“Administrative detention,” B’tselem http://www.btselem.org/administrative_detention/statistics

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

Bob, Y. J. “Court orders Government to pass a new law or draft all Haredim,” JPost, 12/9/17, http://www.jpost.com/Israel-News/Politics-And-Diplomacy/Court-orders-govt-to-pass-new-law-or-draft-all-haredim-504901

The Israel Democracy Institute. “Q&A on the Override Clause,” 17.5.2018: https://en.idi.org.il/articles/23521

“Knesset opens Winter Assembly; Speaker Edelstein: ”Parliament`s status eroded due to lack of separation of powers,” The Knesset Website, 23/10/2017: https://www.knesset.gov.il/spokesman/eng/PR_eng.asp?PRID=13599

Luria, G “How many Laws are dismissed in the world?” IDI, 22.4.18: https://www.idi.org.il/articles/23326

Weitz, Gidi. “In Israel, No Gatekeepers to Stop Netanyahu’s War on Media,” Haaretz, 02/04/2017: https://www.haaretz.com/israel-news/.premium-1.780680

Transparency International, “Israel releases first ever National Integrity System report on Israel’s government, institutions,” 11.11.2014: https://www.transparency.org/news/pressrelease/tlisrael_releases_first_ever_national_integrity_system_report_on_israels_go
Italy
The actions of the government and administration are systematically guided by detailed legal regulations. Multiple levels of oversight – from a powerful Constitutional Court to a system of local, regional and national administrative courts – exist to enforce the rule of law. Overall the government and the administration are careful to act according to the existing legal regulations and thus their actions are fundamentally predictable. However, the fact that legal regulations are plentiful, not always consistent and change frequently reduces somewhat the degree of legal certainty. The 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.

Minister’s increasing use of social media (e.g., Twitter and Facebook) to communicate decisions before they are formally announced creates a degree of legal uncertainty. Under the first Conte government, Minister of the Interior Salvini engaged in this practice with particular frequency. Moreover, he had a strong tendency to trespass into other ministries’ turf, especially on matters of rescuing immigrants at sea. However, some of Salvini’s decisions have been overturned by the courts.
Japan
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.

In a more abstract sense, the idea of the rule of law per se does not command much of a following in Japan. 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 meant to serve the common good, and are not regarded as immutable norms to which one blindly adheres.
Citations:
Carl F. Goodman: The Rule of Law in Japan: A Comparative Analysis, The Hague: Kluwer Law International, 2003
Luxembourg
While Luxembourg is a constitutional state, citizens are sometimes confronted with judicial vagueness or even a lack of legal guidance in administrative issues. Luxembourg’s administrative culture is based on pragmatism and common sense. This means that some matters are decided on an ad hoc basis, rather than with reference to official or established rules. Most people seem to accept this, trusting that the prevalent legal flexibility leads to regulations or compromises that favor their own interests. Thus, the interpretation of laws can vary.

The government is working on completely reforming the constitution. 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. It is not certain that the public will give its consent for the reformed constitution. 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. The bad acoustics in Luxembourg City’s courtrooms present another problem. Visitors and journalists regularly fail to understand what is being said in the hall because microphones are not used. The international press has also covered this embarrassing state of affairs.
Citations:
Trausch, Gilbert (2008): “Die historische Entwicklung des Großherzogtums – ein Essay,” in: Wolfgang H. Lorig/Mario Hirsch (eds.): Das politische System Luxemburgs: Eine Einführung, Wiesbaden, pp. 13–30.
Zenthöfer, Jochen: “Ein Prozess wie im Stummfilm,” Frankfurter Allgemeine Zeitung, 11 April 2017. http://www.faz.net/aktuell/feuilleton/debatten/prozess-gegen-holocaustleugner-in-luxemburg-14966362.html. Accessed 22 Oct. 2018.
Cames, Michel: “Pragmatisch, flexibel, schnell – Wirtschaftspolitische Besonderheiten von Kleinstaaten am Beispiel Luxemburg.” Forum.lu, September 2013. www.forum.lu/pdf/artikel/7692_332_Camest.pdf. Accessed 22 Oct. 2018.
“Gaël Arellano: New Luxembourgish constitution project scrapped in favor of ‘substantial revision’.” RTL Today, 27.11.2019. https://today.rtl.lu/news/luxembourg/a/1437408.html. Accessed 15 Dec. 2019.
“Cordula Schnuer: Constitutional reform hits new hurdle as lawmakers shelve draft law.” Luxembourg Times, 27.11.2019. https://luxtimes.lu/luxembourg/39150-constitutional-reform-hits-new-hurdle-as-lawmakers-shelve-draft-law. Accessed 14 Dec. 2019.
Malta
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. The appointment of a commissioner for standards in public life has already began to bear fruit.

However, reports from public bodies such as the Ombudsman 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 and a lack of transparency in the allocation and terms of public contracts. In 2019, the courts ruled that restrictions imposed on the Ombudsman in the investigation of complaints from armed forces personnel were unlawful, thereby extending its jurisdiction. The work of these two offices together have afforded greater transparency in the allocation and terms of public contracts. Parliament is 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. The government has in some cases made subsidiary law that violates primary law. 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. However, the higher courts have become stronger in enforcing constitutional provisions. Since the Maltese legal system does not include the doctrine of judicial precedent, this may also mitigate against legal certainty. The length of court cases also undermines the process. The recent practice of placing members of parliament on regulatory boards is also unconstitutional, and has been condemned by the commissioner for standards in public life.
Malta has become the first jurisdiction to provide legal certainty to the cryptocurrency field.
Citations:
http://www.timesofmalta.com/articles/view/20150224/local/210000-commission-paid-in-cafe-premier-buyback-audit-office-slams.557475
http://www.timesofmalta.com/articles/view/20150104/local/Dalli-case-prompts-Ombudsman-action.550497
http://www.timesofmalta.com/articles/view/20150813/local/updated-some-diabetes-patients-denied-treatment-ombudsman.580496
Minister reacts as auditor criticizes re ranking of bidding firms Times of Malta 5/03/14
Updated; Government asks AG to amend unconstitutional industrial tribunal law Independent 12/02/16
http://www.maltatoday.com.mt/news/national/76165/maltese_perceive_judicial_independence_to_be_fairly_good#.WesFh1uCyM8
The Independent 20/12/17 Kevin Aquilina, The Rule of Law a La Maltaise
Malta Today 9/10/17 Former Planning and lands minister is now lawyer for both planning and lands authority
Times of Malta 7/10/17 Ombudsman queries positions of trust
Times of Malta 11/11/17 Ministry spends almost 30,000 euros on Liquor for EU Presidency
Interview with Prof Kevin Aquilina Dean of Law 12/17
https://www.timesofmalta.com/articles/view/20181003/local/aquarium-only-cost-developer-one-fifth-of-its-value-nao-finds.690656
https://www.timesofmalta.com/articles/view/20180911/local/maltas-whistleblower-laws-rank-second-in-the-eu-ngo.688903
bitcoinist.com Malta becomes first world jurisdiction with legal certainty in cryptocurrency field
Grima, J., (2017) Legal Certainty and the Constitution: is Malta ready for the doctrine of Judicial Precedent?
Slovakia
Government and administration in Slovakia largely act on the basis of the law. However, legal certainty has suffered from frequent legal amendments and opaque laws. The increasing level of political polarization has made many laws rather short lived. As a result of frequent amendments, many laws have become inconsistent, even contradictory. 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 EU member state constitutional courts, particularly the German one, others have been based on specific and not always transparent views of individual justices.

In the period under review, the debate on the low quality of laws in Slovakia again intensified. While in the past, this concern was primarily raised by lawyers and political scientists, this time the warning has come from the business sector and from the European Commission. Contradictory laws, with different ministries adopting different interpretations, and the resulting lack of predictability are increasingly seen as a problem for the business environment.
Citations:
Minarechová, R.(2019): Quality instead of quantity. members of parliament should think about the laws they submit, businesses say, in: Slovak Spectator, August 30 (https://spectator.sme.sk/c/22199157/businesses-call-for-more-predictable-legislation.html).
Netherlands
Dutch governments and administrative authorities have to a great extent internalized legality and legal certainty on all levels in their decisions and actions in civil, penal and administrative law. In the World Justice Project Rule of Law Index 2019, the Netherlands was again ranked fifth out of 126 countries. However, the no more than slight decline in its score curiously disregards previous warnings from legal experts that the situation is rapidly deteriorating, and that it was indeed nearing crisis levels in 2019.

In a “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. Moreover, there has been a considerable quantity of unambiguous failures. For example, there is evidence that the accumulation of so-called administrative sanctions has driven people into poverty, and additional evidence that tax authorities have illegally stopped tax benefits for childcare to eligible families. The process of seeking compensation for physical or psychological harm is called a “tombola” (a kind of lottery-based gambling game), with widely divergent outcomes in terms of whether and when victims are granted funds. Police and the judicial system are losing the war on drugs.

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 a clear failure in 2017 and 2018. Its chair declared that the judiciary was outdated for a modern, rapidly changing society. Citizens and businesses alike stated that judicial procedures were 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 have focused on the budget for the judiciary (€900 million), and on 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; this has not happened, but the judicial-affairs budget was increased in 2018. 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.”
Citations:
A. Brenninkmeijer, Stresstest rechtsstaat Nederland, in Nederlands Juristenblad, 16, 24 April 2015, pp. 1046-1055

https://www.binnenlandsbestuur.nl/bestuur-en-organisatie/nieuws/algoritmes-kunnen-grondrechten-flink-aantasten.9595151.lynkx

NRC Handelsblad, 24 September 2019. Top fiscus wist van toeslagstop.

NOS, 28 August, 2019. Drugscrmininaliteit Amsterdam heeft vrij spel

NRC Handelsblad, 13 June 2019. Onhoudbare situatie bij forensische opsporing.

NRC Handelsblad, 26 February 2019. De pijlers van de rechtsstaat voelen zich terecht verwaarloosd.

NRC Handelsblad, 30 July 2019. Rechtbanken verliezen zeggenschap.

NRC Handelsblad, 13 March 2019. Hoe de kritiek op onterechte straffen werd weggepoetst.

NRC Handelsblad, 18 January 2019. Kamer, kijk niet toe bij afbraak rechtsbijstand.
UK
In the United Kingdom, the government and public administration apparatus act in line with legal provisions. This is facilitated by the government’s extensive control over the legislative process, which enables the government to alter provisions if they constitute a hindrance to government policy objectives. Media and other checks on executive action deter any deviation.

An interesting test case arose as a result of the fraught stand-off between Parliament and the government during the autumn of 2019 when the former passed an act obliging the government to send a letter requesting an extension to the Article 50 deadline. The government did comply, albeit with bad grace and with two accompanying letters, saying it disagreed with the obligation. Despite these theatrics, the law was followed and an extension agreed with the European Union.

The process of delivering Brexit has seen considerable uncertainty about whether successive deadlines would be met and how different interests would be affected. The “Great Repeal Bill,” the European Union (Withdrawal) Bill 2018, promised to bring all legislation derived from the European Union back into the UK legal system. Although the bill finally achieved a second reading at the end of October 201 9, its further progress to becoming an Act of Parliament was interrupted by the calling of a general election. Completing Brexit will also entail a large number of statutory instruments, a form of legislation that limits the legislature’s ability to scrutinize. There were also concerns that a large proportion of the legislation necessary to implement Brexit would be introduced in this way – with critics deploring so-called Henry VIII Clauses, referring to the 16th century English monarch’s propensity to over-ride Parliament. Given the volume of legal changes needed, the balance between primary legislation and a resort to statutory instruments is a delicate matter, but it would be incorrect to regard the government as not acting in accordance with legal provisions.

The uncertainty has long been 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 more than three million EU citizens currently living and working in the United Kingdom has still not been reliably clarified.
Citations:
https://www.gov.uk/eu-withdrawal-act-2018-statutory-instruments

Fore Keidanren source: https://www.ft.com/content/37e87630-a9eb-11e8-94bd-cba20d67390c
 
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
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Bulgaria
Bulgaria’s government and administration refer heavily to the law and take pains to justify their actions in formal and legal terms. Legal certainty is diminished by the fact that laws usually give the administration sizable scope for discretion, while also suffering from internal inconsistencies and contradictions that make it possible to find ad hoc legal justifications for virtually any decision. Thus, executive action is not only relatively unpredictable, but may involve applying the law differently to different citizens or firms, thus creating privileges and inequality before the law.
Croatia
The Croatian legal system puts heavy emphasis on the rule of law. In practice, however, legal certainty is often limited. Regulation is sometimes inconsistent and changes often, administrative bodies frequently lack the necessary legal expertise, and executive ordinances do not always comply with the original legal mandate. As a result, citizens often lack confidence in administrative procedures and frequently perceive the acts of administrative bodies to be arbitrary.
Cyprus
Following the collapse of bi-communality in 1964, the law of exception leaves the State with very powerful executive and “independent officers,” whom are subject to very little or no control. Decisions often exploit excessive discretionary powers of the Council of Ministers and other authorities, which show limited concern for rule of law principles.

A number of recent court decisions have confirmed the validity of questions raised regarding the legitimacy of measures to face the crisis. The latest (2019) court decision declared the cuts to pensions and salaries unconstitutional. Many laws passed by the parliament are ultimately judged unconstitutional by the Supreme Court. Action on important matters is either delayed or consists of partial measures that are inefficient or unjust. The ESTIA scheme designed to mitigate the impact of non-performing loans on the Cypriot banking system was amended after the European Commission and ECB warned of “moral hazard risks and fairness issues” and against some amendments being pursued by the parliament.

Revelations about the granting of citizenship to the Cambodian dictator’s family and a Malaysian citizen wanted by Interpol are indicative of actions that violated basic rules and legality.

Thus, actions inconsistent with the rule of law persisted in 2019. Clashes between various high-level state officials continued. These factors contributed to further undermining people’s trust, meritocracy, administrative efficiency and law enforcement.
Citations:
1. Estia scheme rewards strategic defaulters, Cyprus Mail, 3 September 2019, https://cyprus-mail.com/2019/09/03/our-view-estia-scheme-rewards-strategic-defaulters/
2. Data watchdog ‘duty-bound to report audit boss’ over whistleblower, Cyprus Mail, 21 December 2018, https://cyprus-mail.com/2018/12/21/data-watchdog-duty-bound-to-report-audit-boss-over-whistleblower/
3.More questions raised about Malaysian businessman’s passport, Cyprus Mail, 5 November 2019, https://cyprus-mail.com/2019/11/05/more-questions-raised-about-malaysian-businessmans-passport/
USA
There is little arbitrary exercise of authority in the United States, but the legal process does not necessarily provide a great deal of certainty. 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. These include supplanting the authority of elective policymaking institutions, reducing administrative discretion, causing delays in decision-making, and increasing reliance on courts and judges to design policies and/or administrative arrangements. When it comes to 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 heavily criticized 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. The Trump administration has ignored clear legal obligations on some investigation-related matters, which includes refusing to provide Trump’s tax returns to Congress, and failing to forward a whistleblower’s report that had been referred by the intelligence community’s inspector general. Trump has also invoked emergency powers, without credible grounds, to transfer funds from military construction projects to the construction of his proposed wall on the Mexican border. In his letter of resignation as secretary of defense, James Mattis criticized Trump for ignoring the limits of his legal authority in multiple matters.

At the time of this writing (early 2020), on the heels of Trump’s impeachment by Congress, it seems clear that the United States is in the midst of a constitutional crisis in which there is severe uncertainty regarding assured adherence to the rule of law within the executive in particular.
Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs
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Mexico
Legal certainty is formally guaranteed by the Mexican constitution. With the government of López Obrador holding a majority in Congress, legal procedures are formally well-respected. De facto, 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%. 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.

In other areas of the law, for instance in the realm of business and the broader economy, the situation regarding legal certainty is much less dire.
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Hungary
As in other countries with authoritarian tendencies, the Orbán government believes that the law is subordinate to government policies, with the latter reflecting the “national interest,” which is sacrosanct and exclusively defined by the government majority. As the Orbán governments have taken a voluntarist approach toward lawmaking, legal certainty has 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.
Poland
Under the PiS government, legal certainty has strongly declined. Some of the government’s many legal initiatives have been so half-baked that they had to be amended or suspended. On several occasions, high-ranking PiS politicians have shown their disrespect for the law. The protracted conflicts between the government and important parts of the judiciary have meant that justices and citizens have had to deal with opposing interpretations of the legal status quo. Frequent conflicts between the judges’ association and the 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. Despite numerous complaints about and international criticism of this issue, nothing has changed. The controversial creation of a new disciplinary chamber in the Supreme Court, which has the power to initiate disciplinary investigations and sanctions against ordinary court judges on the basis of the content of their judicial decisions, has further increased legal uncertainty.
Romania
Legal certainty has strongly suffered from the tug-of-war over the reform of the judiciary. Moreover, the Dăncilă government made widespread use of government emergency ordinances (OUG). To cite but two examples, it used them both for its hectic tax reforms at the end of 2018 and for controversial reforms of the judiciary in early 2019. 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. The use of emergency government ordinances (EGOs) remains a routine mechanism for the Romanian government to pursue legislative or judicial reforms, without appropriate preparation or consultation that often results in considerable controversy.

In February 2019, the American Chamber of Commerce in Romania issued a statement asserting that the pace of changes to legislation by emergency ordinance is unjustifiably fast and non-transparent, sounding the alarm on what the Chamber considered to be “accelerated degradation” of the quality of public policies, regulation and governance in Romania. The Chamber stated that emergency ordinances have “turned the National Reform Program into an obsolete document for outlining nationwide reform priorities,” and called on the government to ensure predictability and align with the EU’s “better regulation” approach.
Citations:
American Chamber of Commerce in Romania (2019): Warning Signal: Counterproductive Measures Adopted without Impact Assessments and without Observing the Legal Requirements for Transparency Reach an Alarming Level at the Beginning of 2019. Bucharest, February 1 (https://www.amcham.ro/communication/amcham-press-releases/warning-signal-counterproductive-measures-adopted-without-impact-assessments-and-without-observing-the-legal-requirements-for-transparency-reach-an-alarming-level-at-the-beginning-of-2019).

European Commission (2019): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2019) 499 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2019-com-2019-393_en).
Turkey
Turkey is in an unsettled state of political transformation, as the executive system transitions from a state of emergency to a presidential system.

Under the state of emergency, 36 decrees were issued, which restricted civil, political and defense rights, and expanded powers for the police and prosecutors. These decrees facilitated the dismissal of more than 152,000 civil servants, including academics, teachers and public officials. 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.

Following the state of emergency and during the ongoing transition toward presidentialism, the absence of a law concerning general administrative procedures, which would provide citizens and businesses with greater legal certainty, complicates administrative procedures and exacerbates administrative burdens. The main factors affecting legal certainty in public administration are a lack of issue-specific regulations, 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 large number of amendments made to some basic laws under certain circumstances have led 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 retrial. Legal as well as judicial instruments are sometimes used against government opponents, especially those in the media.

The number of cases annulled by the Constitutional Court has been increasing since 2015. In 2018, the court annulled 87 out of 119 cases. Unconstitutional laws cause double standards and lead to unfair practices in daily life.
Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

TC Anayasa Mahkemesi Yıllık Rapor 2018, https://www.anayasa.gov.tr/tr/yayinlar/yillik-raporlar/ (accessed 1 November 2019)

World Justice Project, Insight on Access to Justice 2019, https://worldjusticeproject.org/sites/default/files/documents/WJP-A2J-2019.pdf (accessed 1 November 2019)

“TÜSİAD’dan yeni vergilere tepki: Eşitlik ve adalet ilkesine uygun değil,” Milli Gazete, 13 November 2019, https://www.milligazete.com.tr/haber/3306324/tusiaddan-yeni-vergilere-tepki-esitlik-ve-adalet-ilkesine-uygun-degil (accessed 1 November 2019)
 
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
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