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.
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.
During the state of emergency in 2020, the primary modes of contacting the judicial authorities were telephone, email and electronic services. Agencies in the Ministry of Justice’s administrative branch continued to inform the public about current issues in their areas of responsibility and the level of preparedness in their respective sectors. Courts postponed hearings and canceled some already scheduled hearings. These changes in the operating environment lengthened the average duration of proceedings (Ministry of Justice, 2020).
As outlined in Martin Scheinin’s article (see “Civil Rights”), the problem with declaring the state of emergency in Finland was that there was no parliamentary scrutiny of the decision. The cabinet, acting jointly with the president of the republic, declared that Finland was in a double emergency: a health emergency and an economic emergency. The emergency declaration itself was not reviewed by parliament, but when the cabinet issued a decree to use specific powers under the Emergency Powers Act (EPA), this decree was subject to parliamentary scrutiny (Scheinin 2020).
Finland does not have a Constitutional Court, but does have a parliamentary constitutional committee that consists of politicians and in which the government has a majority. As outlined in Finnish legislation, the Constitutional Law Committee (CLC) of the parliament has reviewed the constitutional compatibility of special legislation and government decrees. The CLC highlighted shortcomings in the government’s compliance with the EPA.
The chancellor of justice is tasked with scrutinizing the legality of law reforms proposed by the government before they are debated in parliament. During the COVID-19 crisis, the issue of the independence of the chancellor of justice was raised. However, among legal scholars there is a “consensus that the principles of democratic decision-making have been respected in the handling of the pandemic, as parliamentary oversight functions well, and the parliament still wields the highest legislative power in Finland” (Kimmel and Ballardini, 2020). Most of the measures implemented to contain the spread of the virus in Finland took the form of recommendations (e.g., regulations concerning the right to assembly, contact restrictions) (Tiirinki et al. 2020).
During the state of emergency in 2020, the primary modes of contacting the judicial authorities were telephone, email and electronic services. Agencies in the Ministry of Justice’s administrative branch continued to inform the public about current issues in their areas of responsibility and the level of preparedness in their respective sectors. Courts postponed hearings and canceled some already scheduled hearings. These changes in the operating environment lengthened the average duration of proceedings (Ministry of Justice, 2020).
As outlined in Martin Scheinin’s article (see “Civil Rights”), the problem with declaring the state of emergency in Finland was that there was no parliamentary scrutiny of the decision. The cabinet, acting jointly with the president of the republic, declared that Finland was in a double emergency: a health emergency and an economic emergency. The emergency declaration itself was not reviewed by parliament, but when the cabinet issued a decree to use specific powers under the Emergency Powers Act (EPA), this decree was subject to parliamentary scrutiny (Scheinin 2020).
Finland does not have a Constitutional Court, but does have a parliamentary constitutional committee that consists of politicians and in which the government has a majority. As outlined in Finnish legislation, the Constitutional Law Committee (CLC) of the parliament has reviewed the constitutional compatibility of special legislation and government decrees. The CLC highlighted shortcomings in the government’s compliance with the EPA.
The chancellor of justice is tasked with scrutinizing the legality of law reforms proposed by the government before they are debated in parliament. During the COVID-19 crisis, the issue of the independence of the chancellor of justice was raised. However, among legal scholars there is a “consensus that the principles of democratic decision-making have been respected in the handling of the pandemic, as parliamentary oversight functions well, and the parliament still wields the highest legislative power in Finland” (Kimmel and Ballardini, 2020). Most of the measures implemented to contain the spread of the virus in Finland took the form of recommendations (e.g., regulations concerning the right to assembly, contact restrictions) (Tiirinki et al. 2020).
Citations:
Finnish Business and Policy Forum, 2020. Coronan and Politicial Views. Finnish Business and Policy
Forum (EVA). Accessed, 28.12. 2020. https://www.eva.fi/en/blog/2020/06/11/covid-19-crisis-had-anexceptional-
impact- on-finnish-political-views/
Ministry of Social Affairs and Health, 2020. Corona Virus Informations. Accessed, 28.12. 2020.
https://valtioneuvosto.fi/en/information-on-coronavirus/ministry-of-social-affairs-and-health
Kimmel, Kaisa-Maria and Ballardini, Rosa Maria, 2020. Restrictions in the Name of Health During
COVID-19 in Finland. Harvard Law Blog. Accessed 11.1. 2021.
https://blog.petrieflom.law.harvard.edu/2020/05/14/finland-global-responses-covid19/
Scheinin, Martin, 2020: The COVID-19 Emergency in Finland: Best Practice and Problems, VerfBlog,
2020/4/16. Accessed 18.12. 2020. https://verfassungsblog.de/the-covid-19-emergency-in-finland-bestpractice-
and-problems/, DOI: 10.17176/20200416-092101-0.
Tiirinki H, Tynkkynen LK, Sovala M, et al. COVID-19 pandemic in Finland – Preliminary analysis on
health system response and economic consequences. Health Policy Technol. 2020;9(4):649-662. doi:
10.1016/j.hlpt.2020.08.005
Finnish Business and Policy Forum, 2020. Coronan and Politicial Views. Finnish Business and Policy
Forum (EVA). Accessed, 28.12. 2020. https://www.eva.fi/en/blog/2020/06/11/covid-19-crisis-had-anexceptional-
impact- on-finnish-political-views/
Ministry of Social Affairs and Health, 2020. Corona Virus Informations. Accessed, 28.12. 2020.
https://valtioneuvosto.fi/en/information-on-coronavirus/ministry-of-social-affairs-and-health
Kimmel, Kaisa-Maria and Ballardini, Rosa Maria, 2020. Restrictions in the Name of Health During
COVID-19 in Finland. Harvard Law Blog. Accessed 11.1. 2021.
https://blog.petrieflom.law.harvard.edu/2020/05/14/finland-global-responses-covid19/
Scheinin, Martin, 2020: The COVID-19 Emergency in Finland: Best Practice and Problems, VerfBlog,
2020/4/16. Accessed 18.12. 2020. https://verfassungsblog.de/the-covid-19-emergency-in-finland-bestpractice-
and-problems/, DOI: 10.17176/20200416-092101-0.
Tiirinki H, Tynkkynen LK, Sovala M, et al. COVID-19 pandemic in Finland – Preliminary analysis on
health system response and economic consequences. Health Policy Technol. 2020;9(4):649-662. doi:
10.1016/j.hlpt.2020.08.005
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.” German authorities also live up to this high standard in practice. Relative to other countries, Germany generally scores very highly on the issue of the 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 2021, Germany was ranked fifth out of 139 countries (World Justice Project 2021).
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 2021, Germany was ranked fifth out of 139 countries (World Justice Project 2021).
Citations:
World Justice Project (2021): Rule of Law Index, 2021 Insights, Highlights and Data Trends from
the WJP Rule of Law Index 2021.
World Justice Project (2021): Rule of Law Index, 2021 Insights, Highlights and Data Trends from
the WJP Rule of Law Index 2021.
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. For example, Freedom House’s 2021 Freedom in the World report awarded New Zealand a perfect score of 4/4 on the rule-of-law dimension (Freedom House 2021).
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. For example, Freedom House’s 2021 Freedom in the World report awarded New Zealand a perfect score of 4/4 on the rule-of-law dimension (Freedom House 2021).
Citations:
Freedom House (2021) Freedom in the World 2021: New Zealand. https://freedomhouse.org/country/new-zealand/freedom-world/2021
McLean and Quentin-Baxter (2018) The Realm of New Zealand: The Sovereign, The Governor-General, The Crown. Auckland: The University of Auckland Press.
Freedom House (2021) Freedom in the World 2021: New Zealand. https://freedomhouse.org/country/new-zealand/freedom-world/2021
McLean and 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. In principle, the Supreme Court may test the constitutional legality of a government decision, though it has not done so for many years.
Sweden
The Swedish legal framework is robust, and the rule of law is a fundamental norm. The country is governed by a Weberian-style public administration and the prevalent values of legal security, due process, transparency and impartiality.
Administrative reforms privileging performance and effectiveness have the potential to threaten legal certainty. For example, Greve, Lægreid and Rykkja (2016) observed that the third generation of administrative reforms in the Nordic countries foreground state-centered solutions in the context of a complicated set of governmental mechanisms and institutional complexity.
Generally, there is a tension between New Public Management as a philosophy of public sector reform, and efforts to reemphasize trust (“tillit”) as a normative foundation of the public administration. A recent commission of inquiry (Regeringskansliet, 2018) reported that the interface between administrative personnel and citizens requires a stronger focus on citizen needs, increased attention to a holistic approach, better leadership, increased competence levels, and more openness.
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 ombuds 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.
Administrative reforms privileging performance and effectiveness have the potential to threaten legal certainty. For example, Greve, Lægreid and Rykkja (2016) observed that the third generation of administrative reforms in the Nordic countries foreground state-centered solutions in the context of a complicated set of governmental mechanisms and institutional complexity.
Generally, there is a tension between New Public Management as a philosophy of public sector reform, and efforts to reemphasize trust (“tillit”) as a normative foundation of the public administration. A recent commission of inquiry (Regeringskansliet, 2018) reported that the interface between administrative personnel and citizens requires a stronger focus on citizen needs, increased attention to a holistic approach, better leadership, increased competence levels, and more openness.
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 ombuds 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.
Citations:
Greve, Carsten, Per Lægreid, and Lise H. Rykkja. (eds.) 2016. “Nordic Administrative Reforms: Public Sector Organizations, Public Sector Organizations.” London: Palgrave Macmillan.
Regeringskansliet (Government Offices of Sweden). 2018. “Tillitsutredningen. Med tillit Växer Handlingsutrymmet – Tillitsbaserad Styrning och Ledning av Välfärdssektorn.” SOU, 2018:47. https://www.regeringen.se/rattsliga-dokument/statens-offentliga-utredningar/2018/06/sou-201847/
Greve, Carsten, Per Lægreid, and Lise H. Rykkja. (eds.) 2016. “Nordic Administrative Reforms: Public Sector Organizations, Public Sector Organizations.” London: Palgrave Macmillan.
Regeringskansliet (Government Offices of Sweden). 2018. “Tillitsutredningen. Med tillit Växer Handlingsutrymmet – Tillitsbaserad Styrning och Ledning av Välfärdssektorn.” SOU, 2018:47. https://www.regeringen.se/rattsliga-dokument/statens-offentliga-utredningar/2018/06/sou-201847/
9
Australia
Governments and administrations generally adhere to existing laws and respect court decisions. That said, jurisdictional uncertainty between the federal and state governments is an issue that means the legality of some actions by the executive is tested in court and on occasion found not to be legal. 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.
The COVID-19 pandemic saw state governments assert their considerable powers under the constitution. Notably, state governments closed their borders to residents of other states and territories, which many people had thought was unconstitutional, but which the High Court found was in fact constitutional.
The COVID-19 pandemic saw state governments assert their considerable powers under the constitution. Notably, state governments closed their borders to residents of other states and territories, which many people had thought was unconstitutional, but which the High Court found was in fact constitutional.
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
https://www.abc.net.au/news/2020-11-06/clive-palmer-loses-high-court-challenge-against-wa-border-close/12855286
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
https://www.abc.net.au/news/2020-11-06/clive-palmer-loses-high-court-challenge-against-wa-border-close/12855286
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.
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, 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. In 2021 however, the FICIL commended amendments to the Law on Residential Properties, which previously had prohibited the division of a residential house into residential properties if it shared the same land parcel with other residential houses, a provision that violated the principle of legal certainty.
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. In 2021 however, the FICIL commended amendments to the Law on Residential Properties, which previously had prohibited the division of a residential house into residential properties if it shared the same land parcel with other residential houses, a provision that violated the principle of legal certainty.
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-caseon-judge-and-public-prosecutors-remuneration-reform/, Last accessed: 09.01.2022.
2. FICIL Sentiment Index 2015 and 2018. Available at: https://www.sseriga.edu/centres/csb/sentimentindex, Last assessed: Last accessed: 09.01.2022.
3. FICIL (2021) FICIL welcomes the amendments to the Law on Residential Properties, Available at: https://www.ficil.lv/2021/07/14/ficil-welcomes-the-amendments-to-the-law-on-residential-properties/, Last accessed: 09.01.2022.
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-caseon-judge-and-public-prosecutors-remuneration-reform/, Last accessed: 09.01.2022.
2. FICIL Sentiment Index 2015 and 2018. Available at: https://www.sseriga.edu/centres/csb/sentimentindex, Last assessed: Last accessed: 09.01.2022.
3. FICIL (2021) FICIL welcomes the amendments to the Law on Residential Properties, Available at: https://www.ficil.lv/2021/07/14/ficil-welcomes-the-amendments-to-the-law-on-residential-properties/, Last accessed: 09.01.2022.
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 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 counter argument is that public prosecutors’ bureaucratic position opens the door to political influence. To counter this possibility, a new branch of prosecutors dedicated to combat 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. In light of recent investigations, which featured prominent members of Austria’s leading government party ÖVP, the political corruption branch of the prosecutors (WKStA) has come repeatedly under heavy verbal fire from high-ranking members of government.
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 and do respect the legal norms passed by parliament and monitored by the courts. The inquiries by corruption prosecutors into possible illegal activities of Chancellor Kurz in 2021, which eventually led to his downfall, became an impressive example of the power of the judicial branch in Austria (or its anticipatory effects for that matter).
This overall favorable assessment is in line with recent assessments in the European Commission’s 2021 Rule of Law Report’s chapter on Austria.
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 counter argument is that public prosecutors’ bureaucratic position opens the door to political influence. To counter this possibility, a new branch of prosecutors dedicated to combat 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. In light of recent investigations, which featured prominent members of Austria’s leading government party ÖVP, the political corruption branch of the prosecutors (WKStA) has come repeatedly under heavy verbal fire from high-ranking members of government.
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 and do respect the legal norms passed by parliament and monitored by the courts. The inquiries by corruption prosecutors into possible illegal activities of Chancellor Kurz in 2021, which eventually led to his downfall, became an impressive example of the power of the judicial branch in Austria (or its anticipatory effects for that matter).
This overall favorable assessment is in line with recent assessments in the European Commission’s 2021 Rule of Law Report’s chapter on Austria.
Citations:
https://ec.europa.eu/info/sites/default/files/2021_rolr_country_chapter_austria_en.pdf
https://ec.europa.eu/info/sites/default/files/2021_rolr_country_chapter_austria_en.pdf
Canada
Canada’s government and administration rarely make unpredictable decisions. Executive action is generally guided and bounded by legislation. 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. In a minority government situation, the House of Commons can also make the government fall if it feels it has not authorized a policy or course of action.
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.
The events in Catalonia during the 2012 – 2017 period offered a high-profile 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.
In July 2021, the Constitutional Court declared the first state of alarm to have been unconstitutional, and concluded that the government should have resorted to a state of emergency – which requires prior parliamentary approval – to limit fundamental rights for the nationwide lockdown. In October 2021, the Constitutional Court also declared that the second state of alarm was unconstitutional. All fines had to be refunded, but these rulings also led to a broad debate about the legal certainty of the government’s actions.
The events in Catalonia during the 2012 – 2017 period offered a high-profile 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.
In July 2021, the Constitutional Court declared the first state of alarm to have been unconstitutional, and concluded that the government should have resorted to a state of emergency – which requires prior parliamentary approval – to limit fundamental rights for the nationwide lockdown. In October 2021, the Constitutional Court also declared that the second state of alarm was unconstitutional. All fines had to be refunded, but these rulings also led to a broad debate about the legal certainty of the government’s actions.
Citations:
Ombudsman of Spain (2021): Impact of 2020 rule of law reporting, available at https://ennhri.org/rule-of-law-report-2021/spain/
Ombudsman of Spain (2021): Impact of 2020 rule of law reporting, available at https://ennhri.org/rule-of-law-report-2021/spain/
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.
Completing Brexit entailed 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. However, it would be incorrect to regard the government as not acting in accordance with legal provisions. Uncertainty has long been a source of great concern for the business community and international investors in the United Kingdom. Since the passing of the EU-UK Trade and Cooperation Agreement, the situation has improved considerably in terms of legal certainty, even if details still need to be clarified.
Some of the measures introduced to cope with the pandemic relied on statutory instruments after the Coronavirus Act was passed (for England), with a similar law in Scotland, while Northern Ireland and Wales used regulations. Parliaments have to agree to an extension of the duration of lockdown powers. These powers include a mix of obligations with (as the Boris Johnson may find) potential fines for breaches and guidance to citizens. Latterly, the balance has shifted back toward guidance.
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.
Completing Brexit entailed 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. However, it would be incorrect to regard the government as not acting in accordance with legal provisions. Uncertainty has long been a source of great concern for the business community and international investors in the United Kingdom. Since the passing of the EU-UK Trade and Cooperation Agreement, the situation has improved considerably in terms of legal certainty, even if details still need to be clarified.
Some of the measures introduced to cope with the pandemic relied on statutory instruments after the Coronavirus Act was passed (for England), with a similar law in Scotland, while Northern Ireland and Wales used regulations. Parliaments have to agree to an extension of the duration of lockdown powers. These powers include a mix of obligations with (as the Boris Johnson may find) potential fines for breaches and guidance to citizens. Latterly, the balance has shifted back toward guidance.
Citations:
https://www.gov.uk/eu-withdrawal-act-2018-statutory-instruments
Fore Keidanren source: https://www.ft.com/content/37e87630-a9eb-11e8-94bd-cba20d67390c
https://www.gov.uk/eu-withdrawal-act-2018-statutory-instruments
Fore Keidanren source: https://www.ft.com/content/37e87630-a9eb-11e8-94bd-cba20d67390c
7
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.
Czechia
In Czechia, executive actions have tended to be predictable and undertaken in accordance with the law. Government adherence to the law was stretched by the COVID-19 pandemic. During the initial phases, the publication of government directives on pandemic mitigation was chaotic, with numerous ad hoc changes and in a number of cases independent courts concluded that the restrictions on individual liberties had not been adequately justified. These included a judgment in April 2020 by the Prague Municipal Court against the limits imposed on freedom of movement and the compulsory closure of large shops, and a judgment in February 2021 by the Constitutional Court against part of the government ban on some retail and services due to the pandemic. The Supreme Administrative Court also rejected numerous directives by the Ministry of Health.
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 COVID-19 pandemic in February 2020, the government has repeatedly passed new legislation to adapt to changing circumstances, particularly public health risks and the pandemic’s negative economic impact. In the period under review, the government resorted to governing by decree to prevent the spread of COVID-19 in the country.
Regardless of the pandemic, a law passed in July 2019 helped reorganize the top echelons of the government and monitor all central public services with the intention of bolstering the rule of law across public administration. For example, in contrast with the pre-2020 period, ministries are now obliged to schedule the drafting of any new legislation in advance and publish every December their legislative plans for the year to come. The law established a Westminster-style, centralized body (the General Secretariat of Legal and Parliamentary Affairs) to be the “gatekeeper” for quality regulatory, parliamentary and legislative drafts, as well as two intra-governmental committees, the Committee of Scrutiny of Legislative Process (tasked with ensuring the regulatory quality of new bills) and the Committee for Codification (tasked with scrutinizing existing legislation).
Nevertheless, the practice of frequently amending recently passed legislation has continued. Given the overproduction of regulations, the legal framework in major policy sectors, such as regulations governing taxation and pensions, still suffer from loopholes and contradictions that negatively impact on legal certainty.
Since the start of the COVID-19 pandemic in February 2020, the government has repeatedly passed new legislation to adapt to changing circumstances, particularly public health risks and the pandemic’s negative economic impact. In the period under review, the government resorted to governing by decree to prevent the spread of COVID-19 in the country.
Regardless of the pandemic, a law passed in July 2019 helped reorganize the top echelons of the government and monitor all central public services with the intention of bolstering the rule of law across public administration. For example, in contrast with the pre-2020 period, ministries are now obliged to schedule the drafting of any new legislation in advance and publish every December their legislative plans for the year to come. The law established a Westminster-style, centralized body (the General Secretariat of Legal and Parliamentary Affairs) to be the “gatekeeper” for quality regulatory, parliamentary and legislative drafts, as well as two intra-governmental committees, the Committee of Scrutiny of Legislative Process (tasked with ensuring the regulatory quality of new bills) and the Committee for Codification (tasked with scrutinizing existing legislation).
Nevertheless, the practice of frequently amending recently passed legislation has continued. Given the overproduction of regulations, the legal framework in major policy sectors, such as regulations governing taxation and pensions, still suffer from loopholes and contradictions that negatively impact on legal certainty.
Citations:
The law passed in July 2019 to reorganize the central public administration and the planning and implementation of laws is L. 4622/2019
International Association for Legislation, Innovative Drafting Strategy and Manuals in Greece, 15 May 2020 (https://ial-online.org/innovative-drafting-strategy-and-manuals-in-greece/)
The law passed in July 2019 to reorganize the central public administration and the planning and implementation of laws is L. 4622/2019
International Association for Legislation, Innovative Drafting Strategy and Manuals in Greece, 15 May 2020 (https://ial-online.org/innovative-drafting-strategy-and-manuals-in-greece/)
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 concerned journalists’ freedom of speech.
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 late 2019, Iceland’s largest fishing firm, Samherji, was accused of paying huge bribes to Namibian ministers and others in order to secure fishing rights in Namibian waters. This was 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. The case remains under investigation and the defendants are still held in police custody in Namibia, where the state prosecutor – having without success asked the Icelandic government to extradite three senior Samherji managers in order for them to be interrogated – has asked Interpol to intervene.
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 late 2019, Iceland’s largest fishing firm, Samherji, was accused of paying huge bribes to Namibian ministers and others in order to secure fishing rights in Namibian waters. This was 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. The case remains under investigation and the defendants are still held in police custody in Namibia, where the state prosecutor – having without success asked the Icelandic government to extradite three senior Samherji managers in order for them to be interrogated – has asked Interpol to intervene.
Citations:
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.
Sigmundsdóttir, Alda (2019), “Of political corruption and misdeeds in Iceland and Namibia,” https://aldasigmunds.com/of-political-corruption-and-misdeeds-in-iceland-and-namibia/. Accessed 3 February 2022.
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.
Sigmundsdóttir, Alda (2019), “Of political corruption and misdeeds in Iceland and Namibia,” https://aldasigmunds.com/of-political-corruption-and-misdeeds-in-iceland-and-namibia/. Accessed 3 February 2022.
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. Notably, prior to the pandemic, 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.
There were many examples of emergency legislation being introduced within the context of the government’s response to the COVID-19 pandemic throughout 2020 and 2021. Such legislation – pertaining, for example, to the curtailment of economic and social activity and to the administration of the healthcare service – were subject to parliamentary scrutiny and were time limited.
Notably, an active COVID-19 special parliamentary committee has provided legislative oversight throughout the COVID-19 pandemic (Colfer & O’Brennan, 2021). In its final report in October 2020, the committee called for an inquiry into coronavirus-related deaths in care homes, which accounted for more than half of all COVID-19 deaths in 2020 (Oir, 2020).
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.
Questions around planning and access to housing returned to the top of the political agenda in 2022, especially in Dublin where the cost of an average home now exceeds €500,000 (Burke-Kennedy, 2022).
There were many examples of emergency legislation being introduced within the context of the government’s response to the COVID-19 pandemic throughout 2020 and 2021. Such legislation – pertaining, for example, to the curtailment of economic and social activity and to the administration of the healthcare service – were subject to parliamentary scrutiny and were time limited.
Notably, an active COVID-19 special parliamentary committee has provided legislative oversight throughout the COVID-19 pandemic (Colfer & O’Brennan, 2021). In its final report in October 2020, the committee called for an inquiry into coronavirus-related deaths in care homes, which accounted for more than half of all COVID-19 deaths in 2020 (Oir, 2020).
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.
Questions around planning and access to housing returned to the top of the political agenda in 2022, especially in Dublin where the cost of an average home now exceeds €500,000 (Burke-Kennedy, 2022).
Citations:
Burke-Kennedy, E. (2022) €500,000 price tag for ‘average’ Dublin property, The Irish Times, 16 February, available at: https://www.irishtimes.com/business/economy/500-000-price-tag-for-average-dublin-property-1.4804058#:~:text=Dublin%20prices%20%E2%80%93%20where%20the%20average,price%20under%20Central%20Bank%20rules.
Colfer, B. & O’Brennan, J. (2021) Ireland Report – Sustainable Governance in the Context of the COVID-19 Crisis, Bertelsmann Stiftung (Ed.), available at: https://www.bertelsmann-stiftung.de/en/publications/publication/did/ireland-report-en
Oir (2020), ‘Final report of the special committee on Covid-19’, Houses of the Oireachtas, October 06, https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/special_committee_on_covid_19_response/reports/2020/2020-10-09_final-report-of-the-special-committee-on-covid-19-response-sccr004_en.pdf
The report of the Inquiry into the behaviour 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.
Burke-Kennedy, E. (2022) €500,000 price tag for ‘average’ Dublin property, The Irish Times, 16 February, available at: https://www.irishtimes.com/business/economy/500-000-price-tag-for-average-dublin-property-1.4804058#:~:text=Dublin%20prices%20%E2%80%93%20where%20the%20average,price%20under%20Central%20Bank%20rules.
Colfer, B. & O’Brennan, J. (2021) Ireland Report – Sustainable Governance in the Context of the COVID-19 Crisis, Bertelsmann Stiftung (Ed.), available at: https://www.bertelsmann-stiftung.de/en/publications/publication/did/ireland-report-en
Oir (2020), ‘Final report of the special committee on Covid-19’, Houses of the Oireachtas, October 06, https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/special_committee_on_covid_19_response/reports/2020/2020-10-09_final-report-of-the-special-committee-on-covid-19-response-sccr004_en.pdf
The report of the Inquiry into the behaviour 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 2020 Worldwide Governance Indicators, Lithuania scored at the 82nd percentile with respect to the rule of law – a rank that has not changed appreciably throughout the 2015 – 2020 period. 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. An OECD report in 2021 noted a problem with the “inflation of legal norms.” A substantial number of laws (e.g., 40.4% of all laws adopted by the parliament between 2012 and 2016) are deliberated according to the procedure of special urgency, which limits the ability to discuss proposals thoroughly 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 previous coalition government had 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.
The pandemic introduced profound levels of unpredictability and has – arguably inevitably – resulted in frequent and substantial regulatory changes. Nevertheless, it would be inappropriate to conclude that the quality of the rule of law or the regulatory regime has deteriorated, as the pandemic itself represented a major exogenous shock. Furthermore, its management required balancing predictability on the one hand and acting flexibly in adapting governmental rules and responses to the rapidly changing circumstances on the other. However, the use of government decrees instead of laws adopted by the parliament for managing the pandemic and in introducing important restrictions on citizens’ activities has been criticized.
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.
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 previous coalition government had 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.
The pandemic introduced profound levels of unpredictability and has – arguably inevitably – resulted in frequent and substantial regulatory changes. Nevertheless, it would be inappropriate to conclude that the quality of the rule of law or the regulatory regime has deteriorated, as the pandemic itself represented a major exogenous shock. Furthermore, its management required balancing predictability on the one hand and acting flexibly in adapting governmental rules and responses to the rapidly changing circumstances on the other. However, the use of government decrees instead of laws adopted by the parliament for managing the pandemic and in introducing important restrictions on citizens’ activities has been criticized.
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.
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.
OECD, Lithuania: Indicators of Regulatory Policy and Governance 2021,
https://www.oecd.org/gov/regulatory-policy/lithuania-country-profile-regulatory-policy-2021.pdf
OECD, Mobilising Evidence at the Centre of Government in Lithuania. Strengthening decision-making and policy evaluation for long-term development. Paris: OECD 2021.
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.
OECD, Lithuania: Indicators of Regulatory Policy and Governance 2021,
https://www.oecd.org/gov/regulatory-policy/lithuania-country-profile-regulatory-policy-2021.pdf
OECD, Mobilising Evidence at the Centre of Government in Lithuania. Strengthening decision-making and policy evaluation for long-term development. Paris: OECD 2021.
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.
The combination of overabundant and changing legislation with comparatively weak mechanisms for policy implementation further accentuates legal uncertainty.
South Korea
While government actions are generally based on the law, discretionary interpretation and application of laws (particularly new laws) remains a challenge. Foreign companies sometimes complain that regulations are interpreted inconsistently because they lack sufficient detail. In Korea, personal relationships influence decision-making, while legal rules are sometimes seen as an obstacle to flexibility and quick decisions. While Korea has consistently scored 0.73 (on a scale of 0-1) on the World Justice Project Rule of Law Index since 2016, its government corruption score (0.67) is one of the lowest components of its score.
Throughout his tenure, President Moon took steps to strengthen the rule of law, including by “completely separat[ing] powerful institutions from domestic politics and install[ing] systems to make any such institutions unable to wield omnipotent power.” In December 2020, the National Assembly adopted three legislative reforms to this effect. These included: 1) a major police law revision that introduces a local autonomous police system and allows the establishment of a national investigation office; 2) a revision of the National Intelligence Service Act which strips the National Intelligence Service of its authority to conduct criminal investigations into violations of the National Security Law; and 3) a bill establishing the new Corruption Investigation Office for High-ranking Officials (CIO). The establishment of the CIO is part of Moon’s efforts to check the power of the Supreme Prosecutor’s Office, while also preventing it from interfering in politics. Prosecutors in South Korea lead the investigation of criminal cases, and also have considerable flexibility in deciding whether to prosecute a suspect or not. Unlike judges, prosecutors are not independent, and there have been cases in which they have used their power to harass political opponents. Typically, prosecutors appear more reluctant to investigate acting government officials than the representatives of previous governments. Under President Moon’s directive, two ministers of justice (Cho Kuk and Choo Mi ae) pursued prosecutorial reform in 2019 and 2020. Having been chosen expressly to lead this reform, former Minister of Justice Cho was forced to resign after only a few weeks in office after the Supreme Prosecutors Office turned the tables and charged several members of Cho’s family with corrupt and illicit activities. Cho‘s replacement, Minister Choo, then sought to suspend Prosecutor General Yoon Seok Youl on grounds of ethical misconduct. Yoon successfully challenged his suspension; but eventually resigned, as did Minister Choo. Thus far, the establishment of the CIO (to which prosecutors are now to cede some of their investigative authority) is the most concrete step toward prosecutorial reform.
Throughout his tenure, President Moon took steps to strengthen the rule of law, including by “completely separat[ing] powerful institutions from domestic politics and install[ing] systems to make any such institutions unable to wield omnipotent power.” In December 2020, the National Assembly adopted three legislative reforms to this effect. These included: 1) a major police law revision that introduces a local autonomous police system and allows the establishment of a national investigation office; 2) a revision of the National Intelligence Service Act which strips the National Intelligence Service of its authority to conduct criminal investigations into violations of the National Security Law; and 3) a bill establishing the new Corruption Investigation Office for High-ranking Officials (CIO). The establishment of the CIO is part of Moon’s efforts to check the power of the Supreme Prosecutor’s Office, while also preventing it from interfering in politics. Prosecutors in South Korea lead the investigation of criminal cases, and also have considerable flexibility in deciding whether to prosecute a suspect or not. Unlike judges, prosecutors are not independent, and there have been cases in which they have used their power to harass political opponents. Typically, prosecutors appear more reluctant to investigate acting government officials than the representatives of previous governments. Under President Moon’s directive, two ministers of justice (Cho Kuk and Choo Mi ae) pursued prosecutorial reform in 2019 and 2020. Having been chosen expressly to lead this reform, former Minister of Justice Cho was forced to resign after only a few weeks in office after the Supreme Prosecutors Office turned the tables and charged several members of Cho’s family with corrupt and illicit activities. Cho‘s replacement, Minister Choo, then sought to suspend Prosecutor General Yoon Seok Youl on grounds of ethical misconduct. Yoon successfully challenged his suspension; but eventually resigned, as did Minister Choo. Thus far, the establishment of the CIO (to which prosecutors are now to cede some of their investigative authority) is the most concrete step toward prosecutorial reform.
Citations:
Pak, Bo-ram. “(Lead) Assembly Passes Revised Spy Agency Law after Eliminating Opposition Filibuster.” Yonhap News Agency, December 13, 2020. https://en.yna.co.kr/view/AEN20201213003751315.
“South Korea’s Anti-Corruption Campaign so Far: An Honest Crusade or Is It ‘Naeronambul’?” Ropes & Gray, August 27, 2021. https://www.ropesgray.com/en/newsroom/alerts/2021/August/South-Koreas-Anti-Corruption-Campaign-So-Far-An-Honest-Crusade-or-Is-It-Naeronambul.
U.S. Department of State. „Investment Climate Statements for 2021, Korea, Republic of Korea.“ https://www.state.gov/reports/2021-investment-climate-statements/south-korea/.
Yu, Jae-yun. “Prosecution Challenges Structural Reform Plan by Justice Ministry.” Yonhap News Agency, June 8, 2021. https://en.yna.co.kr/view/AEN20210608004500315.
Pak, Bo-ram. “(Lead) Assembly Passes Revised Spy Agency Law after Eliminating Opposition Filibuster.” Yonhap News Agency, December 13, 2020. https://en.yna.co.kr/view/AEN20201213003751315.
“South Korea’s Anti-Corruption Campaign so Far: An Honest Crusade or Is It ‘Naeronambul’?” Ropes & Gray, August 27, 2021. https://www.ropesgray.com/en/newsroom/alerts/2021/August/South-Koreas-Anti-Corruption-Campaign-So-Far-An-Honest-Crusade-or-Is-It-Naeronambul.
U.S. Department of State. „Investment Climate Statements for 2021, Korea, Republic of Korea.“ https://www.state.gov/reports/2021-investment-climate-statements/south-korea/.
Yu, Jae-yun. “Prosecution Challenges Structural Reform Plan by Justice Ministry.” Yonhap News Agency, June 8, 2021. https://en.yna.co.kr/view/AEN20210608004500315.
6
Belgium
The rule of law is generally strong in Belgium. However, the COVID-19 crisis created the necessity for frequent changes in legal rules, making law enforcement particularly difficult, and occasionally nigh impossible. Many decisions were challenged, sometimes successfully, in court. Different courts actually interpreted newly passed measures differently. For instance, the digital COVID certificates granted to those who had been vaccinated, received negative tests or recovered from the coronavirus (called “Covid-Safe Tickets” in Belgium) either should be or could not be subjected to examination by the police, depending on the local interpretation of the law. Earlier in the crisis, the question of whether citizens had the right to buy their food in a store outside their own city was also interpreted differently by different police zones.
However, such chaotic circumstances are the exception rather than the rule. Traditionally, officials and administrations act in accordance with the law. The most salient weakness of the country is probably its evolving devolution of responsibilities from the federal to the regional governments, which complicates the homogeneity of the law, and hence its application by citizens and authorities alike.
However, such chaotic circumstances are the exception rather than the rule. Traditionally, officials and administrations act in accordance with the law. The most salient weakness of the country is probably its evolving devolution of responsibilities from the federal to the regional governments, which complicates the homogeneity of the law, and hence its application by citizens and authorities alike.
Citations:
https://www.lesoir.be/art/d-20211118-GR04MC
https://www.lesoir.be/art/d-20211118-GR04MC
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, amounting to half of the reimbursement due.
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, amounting 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 is in charge of making sure that government actions are conducted in accordance with the rule of law. The Supreme Court hears appeals from citizens, and Palestinian residents of the West Bank and Gaza Strip, which force the state to explain and justify its actions.
The government of Israel can make extensive use of emergency regulations to determine its policies, since Israel has been under a state of emergency since its founding in 1948 (Gross & Kosti 2021). Emergency regulations can change Knesset legislation, temporarily expropriate legislation or set different conditions for a limited period of three months. In addition, some legal arrangements provide for ad hoc state action to deal with security threats and the Emergency Powers (Detention) Law of 1979 provides for indefinite administrative detention without trial.
The government of Israel can make extensive use of emergency regulations to determine its policies, since Israel has been under a state of emergency since its founding in 1948 (Gross & Kosti 2021). Emergency regulations can change Knesset legislation, temporarily expropriate legislation or set different conditions for a limited period of three months. In addition, some legal arrangements provide for ad hoc state action to deal with security threats and the Emergency Powers (Detention) Law of 1979 provides for indefinite administrative detention without trial.
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, 2022. “2021 Israeli Democracy Index: Israel’s Legal System.” Retrived from: https://en.idi.org.il/articles/37856
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
“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, 2022. “2021 Israeli Democracy Index: Israel’s Legal System.” Retrived from: https://en.idi.org.il/articles/37856
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 highly discretionary decision-making and the conditions 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 pandemic emergency has led to the introduction of many new rules and regulations, which are often confusing for the authorities that are responsible for applying them and for citizens.
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 government has backed efforts to simplify and reduce the amount of legal regulation, but has yet to obtain the results expected. The pandemic emergency has led to the introduction of many new rules and regulations, which are often confusing for the authorities that are responsible for applying them and for citizens.
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.
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.
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
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.
Discrimination on the basis of race, religion, disability, age, sex, gender identity or sexual orientation is prohibited by law. The rights of LGBT+ people are generally protected and respected. In recent years, women have increased their participation in working life, and have benefited from reductions in the gender pay gap.
Discrimination on the basis of race, religion, disability, age, sex, gender identity or sexual orientation is prohibited by law. The rights of LGBT+ people are generally protected and respected. In recent years, women have increased their participation in working life, and have benefited from reductions in the gender pay gap.
Citations:
“Press release by the Prime Minister, Minister of State, on the result of the signature collection for a referendum on the proposal to revise Chapter VI of the Constitution.” Official elections website of the Grand Duchy of Luxembourg (5 January 2022). https://elections.public.lu/en/actualites/2022/resultat-signatures-referendum.ht ml. Accessed 14 January 2022.
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.
“Press release by the Prime Minister, Minister of State, on the result of the signature collection for a referendum on the proposal to revise Chapter VI of the Constitution.” Official elections website of the Grand Duchy of Luxembourg (5 January 2022). https://elections.public.lu/en/actualites/2022/resultat-signatures-referendum.ht ml. Accessed 14 January 2022.
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.
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. These shortcomings are generally highlighted by NAO and Ombuds Office reports. 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 begun to bear fruit. These reports from public bodies 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. The publication of an annual report by the head of the public service, setting out how the service has implemented the recommendations of the NAO and the Ombuds Office, is a significant step forward.
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. There has also been a critique of the arbitrary issuance of freezing orders in courts. 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. Two recent decisions by the courts, which ruled that the defendants did not enjoy legal standing, are said to have set a dangerous precedent for NGOs, which rarely have a direct interest in any matter that is the subject of judicial proceedings instituted by them. The main opposition party (Nationalist Party) has recently set up its own injustice commission to become operative once in government. Kevin Aquilina (an academic and legal expert) states that these commissions contribute to subverting the ombudsman and commissioners, which harms the rule of law and the principle of legal certainty by undermining rulings given by these institutions.
Malta has become the first jurisdiction to provide legal certainty to the cryptocurrency sector.
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. There has also been a critique of the arbitrary issuance of freezing orders in courts. 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. Two recent decisions by the courts, which ruled that the defendants did not enjoy legal standing, are said to have set a dangerous precedent for NGOs, which rarely have a direct interest in any matter that is the subject of judicial proceedings instituted by them. The main opposition party (Nationalist Party) has recently set up its own injustice commission to become operative once in government. Kevin Aquilina (an academic and legal expert) states that these commissions contribute to subverting the ombudsman and commissioners, which harms the rule of law and the principle of legal certainty by undermining rulings given by these institutions.
Malta has become the first jurisdiction to provide legal certainty to the cryptocurrency sector.
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
https://timesofmalta.com/articles/view/civil-service-head-fires-barb-at-ombudsman-on-persons-of-trust.919864
Times of Malta 05/02/22 Two steps forward two back
Times of Malta 19/02/22 Freezing orders and the arbitrary face of justice
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
https://timesofmalta.com/articles/view/civil-service-head-fires-barb-at-ombudsman-on-persons-of-trust.919864
Times of Malta 05/02/22 Two steps forward two back
Times of Malta 19/02/22 Freezing orders and the arbitrary face of justice
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. Like its predecessors, the center-right government has passed many laws following a fast-track procedure that is at odds with the constitution. Legislative disorder has been increased by conflicts between the coalition partners. Sme-Rodina in particular has frequently broken previous agreements.
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 over 20,000, including 840 laws, in December 2020. Many crucial laws are amended on a regular basis, and contradictions in legislation are frequently tested in front of the Constitutional Court. The procedures of rule-making are misused or side-stepped by making heavy use of the fast-track legislation procedure. In the 2018–19 period under the Šarec government, 67% of the 91 adopted legislative acts in the National Assembly were subjected to the fast-track or shortened legislation procedure. In 2020, under the Janša government, 59% of the 78 adopted legislative acts were subjected to the fast-track or shortened legislation procedure, most of those with relation to so-called anti-COVID-19 legislation.
Attacks by the prime minister on the judiciary have been known and documented since March 2020. In March 2021, the Slovenian Association of State Prosecutors told the Council of Europe division for the independence and efficiency of justice that Prime Minister Janša and pro-government media (Nova24TV.si and Demokracija) exert “inadmissible pressure” on prosecutors. The government has been holding up the appointment of state prosecutors, including two European delegated prosecutors. The Slovenian Association of Prosecutors suspects that the selected candidates “fell out of favor with the SDS and its chairman Janez Janša.” That is why the government rejected the Ministry of Justice’s amendment to the law regulating the status of seconded prosecutors.
Attacks by the prime minister on the judiciary have been known and documented since March 2020. In March 2021, the Slovenian Association of State Prosecutors told the Council of Europe division for the independence and efficiency of justice that Prime Minister Janša and pro-government media (Nova24TV.si and Demokracija) exert “inadmissible pressure” on prosecutors. The government has been holding up the appointment of state prosecutors, including two European delegated prosecutors. The Slovenian Association of Prosecutors suspects that the selected candidates “fell out of favor with the SDS and its chairman Janez Janša.” That is why the government rejected the Ministry of Justice’s amendment to the law regulating the status of seconded prosecutors.
Citations:
Haček, M. and M. Brezovšek (2021): Thirty Years of Slovenian Statehood: Institutionalisation of Slovenian Democracy. Ljubljana: FSS Publishing House.
National Assembly. (2021). Report on the work of National Assembly for 2020. (https://fotogalerija.dz-rs.si/datoteke/Publikacije/PorocilaDZ/Mandat_2018%E2%80%932022/Porocilo_o_delu_Drzavnega_zbora_v_letu_2020.pdf).
Alenka Krasovec/Damjan Laijh 2021: Slovenia: Tilting the Balance? In: Verheugen, Günter/Vodicka, Karel/Brusis, Martin (Hrsg.): Demokratie im postkommunistischen EU-Raum. Wiesbaden: Springer, p. 166.
Ottavio Marzocchi 2021: The situation of Democracy, the Rule of Law andFundamental Rights in Slovenia. Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 690.410
https://www.europarl.europa.eu/cmsdata/231906/SLOVENIA%20IDA%20DRFMG.up date.pdf
Haček, M. and M. Brezovšek (2021): Thirty Years of Slovenian Statehood: Institutionalisation of Slovenian Democracy. Ljubljana: FSS Publishing House.
National Assembly. (2021). Report on the work of National Assembly for 2020. (https://fotogalerija.dz-rs.si/datoteke/Publikacije/PorocilaDZ/Mandat_2018%E2%80%932022/Porocilo_o_delu_Drzavnega_zbora_v_letu_2020.pdf).
Alenka Krasovec/Damjan Laijh 2021: Slovenia: Tilting the Balance? In: Verheugen, Günter/Vodicka, Karel/Brusis, Martin (Hrsg.): Demokratie im postkommunistischen EU-Raum. Wiesbaden: Springer, p. 166.
Ottavio Marzocchi 2021: The situation of Democracy, the Rule of Law andFundamental Rights in Slovenia. Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 690.410
https://www.europarl.europa.eu/cmsdata/231906/SLOVENIA%20IDA%20DRFMG.up date.pdf
Netherlands
Dutch governments and administrative authorities have allegedly 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 2021, the Netherlands was again ranked sixth out of 129 countries. However, the no more than slight decline in its score since 2016 curiously ignores the dominant opinion in politics, civil society and legal academic circles in the country itself.
In a “stress test” examining the state’s performance on rule-of-law issues in 2015, 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 were no longer sufficiently in place. The trend was 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. As one commentator aptly observed: rule-of-law considerations have become a mere footnote to desirable policies proposed by the government and rubberstamped by coalition political parties in parliament. Many of the recent scandals (the childcare benefits scandal; the mess around earthquake damages compensation in the former gas-producing areas of the province of Groningen; the illegal collection and linking of large data sets about citizens by the police, anti-terrorism organizations, and the military) boil down to violations of fundamental human and citizen rights or of legal rules, and to an obstinate perseverance in implementing merciless and badly designed laws.
This mood or attitude exploded into political crisis when the childcare benefit affair came to light during the fall of 2020, eventually causing the entire Rutte III government to step down in January 2021. The childcare benefit affair is a policy catastrophe demonstrating that over the past decade, all branches of government have been complicit in negligence and indifference to rule-of-law considerations in public policy. Parliament insisted on an “all-or-nothing” fraud hunt, disregarding signals from whistleblowers in the tax services, and neglecting warnings from lawyers and a deputy minister that strict law enforcement would make many eligible and deserving families suffer because of a small number of rule-breakers. In the end it was clear that tax authorities had legally stopped tax benefits for thousands of families, and required huge recovery payments sometimes amounting to many years of benefits received for trivial errors like spelling mistakes, errors in birth dates and response deadlines that had been missed by just a few days. The large repayment sums demanded pushed poor and frequently second-generation Dutch families into debt and poverty, often leading to the loss of housing, divorce and even loss of parental custody. Because judges and the Supreme Court routinely ruled in favor of the tax authorities in the cases brought against them, a parliamentary investigation concluded that the judiciary had for too long been looking the other way. It took the foreign eyes of the Council of Europe’s international rule-of-law inspectorate, in a report on Dutch practice by the Venice Commission, to humble the Dutch parliament into admitting that it was its own insistence on hardline fraud control that had initiated and maintained a process with a catastrophic outcome.
Many other serious concerns about the state of the judiciary as a branch of government have also been raised in recent years. In an exceptional move, lawyers, judges and prosecutors recently wrote a joint letter to the government expressing their “fear for the future of the judiciary branch.” The chair of the Council of Jurisprudence, a body established in 2002 as an independent advisory commission sitting between the Ministry of Justice, parliament and the judiciary, publicly admitted that the judiciary as constituted 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. Indeed, the penal code required a complete modernizing overhaul. Meanwhile, the digitalization of routine judicial procedures has been a failure, and has cost the government dearly.
Judging by the coalition agreement for the Rutte IV government, reform of the judiciary is finally high on the political agenda. Not for nothing does the agreement open with an entire chapter on rule-of-law issues. The new government has promised to overhaul legislation, implementation practices and case law in order to prevent another childcare benefit scandal. Improved implementation institutions will be more reliable, just and serviceable, it says. The state will not rely on impersonal algorithms alone to render mass decisions on benefits in social security policies. Respect for general principles of “decent” governance (beginselen van behoorlijk bestuur) like appropriateness and proportionality will be strengthened, and the people implementing policies will be granted more discretionary power. An inspectorate for algorithms (Algoritmetoezichthouder) and an equivalent of the U.S. Taxpayers Advocate Service will be set up. More money will be available for police forces in their combat with organized crime, especially the illegal drugs trade.
In a “stress test” examining the state’s performance on rule-of-law issues in 2015, 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 were no longer sufficiently in place. The trend was 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. As one commentator aptly observed: rule-of-law considerations have become a mere footnote to desirable policies proposed by the government and rubberstamped by coalition political parties in parliament. Many of the recent scandals (the childcare benefits scandal; the mess around earthquake damages compensation in the former gas-producing areas of the province of Groningen; the illegal collection and linking of large data sets about citizens by the police, anti-terrorism organizations, and the military) boil down to violations of fundamental human and citizen rights or of legal rules, and to an obstinate perseverance in implementing merciless and badly designed laws.
This mood or attitude exploded into political crisis when the childcare benefit affair came to light during the fall of 2020, eventually causing the entire Rutte III government to step down in January 2021. The childcare benefit affair is a policy catastrophe demonstrating that over the past decade, all branches of government have been complicit in negligence and indifference to rule-of-law considerations in public policy. Parliament insisted on an “all-or-nothing” fraud hunt, disregarding signals from whistleblowers in the tax services, and neglecting warnings from lawyers and a deputy minister that strict law enforcement would make many eligible and deserving families suffer because of a small number of rule-breakers. In the end it was clear that tax authorities had legally stopped tax benefits for thousands of families, and required huge recovery payments sometimes amounting to many years of benefits received for trivial errors like spelling mistakes, errors in birth dates and response deadlines that had been missed by just a few days. The large repayment sums demanded pushed poor and frequently second-generation Dutch families into debt and poverty, often leading to the loss of housing, divorce and even loss of parental custody. Because judges and the Supreme Court routinely ruled in favor of the tax authorities in the cases brought against them, a parliamentary investigation concluded that the judiciary had for too long been looking the other way. It took the foreign eyes of the Council of Europe’s international rule-of-law inspectorate, in a report on Dutch practice by the Venice Commission, to humble the Dutch parliament into admitting that it was its own insistence on hardline fraud control that had initiated and maintained a process with a catastrophic outcome.
Many other serious concerns about the state of the judiciary as a branch of government have also been raised in recent years. In an exceptional move, lawyers, judges and prosecutors recently wrote a joint letter to the government expressing their “fear for the future of the judiciary branch.” The chair of the Council of Jurisprudence, a body established in 2002 as an independent advisory commission sitting between the Ministry of Justice, parliament and the judiciary, publicly admitted that the judiciary as constituted 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. Indeed, the penal code required a complete modernizing overhaul. Meanwhile, the digitalization of routine judicial procedures has been a failure, and has cost the government dearly.
Judging by the coalition agreement for the Rutte IV government, reform of the judiciary is finally high on the political agenda. Not for nothing does the agreement open with an entire chapter on rule-of-law issues. The new government has promised to overhaul legislation, implementation practices and case law in order to prevent another childcare benefit scandal. Improved implementation institutions will be more reliable, just and serviceable, it says. The state will not rely on impersonal algorithms alone to render mass decisions on benefits in social security policies. Respect for general principles of “decent” governance (beginselen van behoorlijk bestuur) like appropriateness and proportionality will be strengthened, and the people implementing policies will be granted more discretionary power. An inspectorate for algorithms (Algoritmetoezichthouder) and an equivalent of the U.S. Taxpayers Advocate Service will be set up. More money will be available for police forces in their combat with organized crime, especially the illegal drugs trade.
Citations:
Worljusticeproject.org. The Netherlands, 2021
A. Brenninkmeijer, Stresstest rechtsstaat Nederland, in Nederlands Juristenblad, 16, 24 April 2015, pp. 1046-1055
Orde van Advocaten, Nieuwsberichten, 10 maart 2021, Staatkundige hervorming vormt een terugkerend thema
Jesse Frederik, De Correspondent, 2021. Zo hadden we het niet bedoeld. De tragedie achter de toeslagenaffaire.
Ellen Pasman, Kafka in de rechtsstaat. De gevolgen van een leesfout: de toeslagenaffaire ontleed. Amsterdam, Prometheus, 2021.
NRC-H, Jensma, 30 October 2021, Opinie uit Europa: Kamer is zelf schuldig aan ‘Toeslagen’
Ministerie van Financiën, Staatssecretaris Vijlbrief, 21 March 2021.
Betreft Overzicht van wetten waar de Belastingdienst zich niet aan gehouden heeft
De Correspondent, Chavannes, ca. 20 November 2021, Geen wonder dat de burgers afhaken bij een overheid die regelmatig de eigen wet overtreedt
NRC-H, Jensma, 18 December 2021. Rutte IV herstelt de rechtshulp en wil grondwet aan de rechter vrijgeven
Worljusticeproject.org. The Netherlands, 2021
A. Brenninkmeijer, Stresstest rechtsstaat Nederland, in Nederlands Juristenblad, 16, 24 April 2015, pp. 1046-1055
Orde van Advocaten, Nieuwsberichten, 10 maart 2021, Staatkundige hervorming vormt een terugkerend thema
Jesse Frederik, De Correspondent, 2021. Zo hadden we het niet bedoeld. De tragedie achter de toeslagenaffaire.
Ellen Pasman, Kafka in de rechtsstaat. De gevolgen van een leesfout: de toeslagenaffaire ontleed. Amsterdam, Prometheus, 2021.
NRC-H, Jensma, 30 October 2021, Opinie uit Europa: Kamer is zelf schuldig aan ‘Toeslagen’
Ministerie van Financiën, Staatssecretaris Vijlbrief, 21 March 2021.
Betreft Overzicht van wetten waar de Belastingdienst zich niet aan gehouden heeft
De Correspondent, Chavannes, ca. 20 November 2021, Geen wonder dat de burgers afhaken bij een overheid die regelmatig de eigen wet overtreedt
NRC-H, Jensma, 18 December 2021. Rutte IV herstelt de rechtshulp en wil grondwet aan de rechter vrijgeven
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.
President Trump was impeached twice by the House of Representatives: the first time in December 2019, for obstruction of Congress and the abuse of power, and again in January 2021, barely a week before the end of his presidency, for incitement of insurrection in the aftermath of the January 6 attack on the U.S. Capitol. In both cases, however, the Republican-controlled Senate acquitted President Trump. Yet, in July 2021, the U.S. House Select Committee on the January 6 Attack began its work. This Committee is discussing “whether to recommend that the Justice Department open a criminal investigation into the former president” (Hamburger et al. 2021).
The Biden Administration came into office on a promise to strengthen democratic institutions again and has taken several critical steps to revitalize norms that have been violated by the Trump Administration. Biden issued an Executive Order requiring an ethics pledge from all executive branch appointees. Biden also returned to pre-Trump norms by voluntarily disclosing his tax returns. In addition, Biden issued a memorandum laying out standards and procedures to prevent the politicization of scientific research at government agencies. More recently, the White House Counsel’s Office and the Department of Justice issued policies limiting contacts between the two, ending a problematic relationship between the two institutions under the Trump Administration.
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President Trump was impeached twice by the House of Representatives: the first time in December 2019, for obstruction of Congress and the abuse of power, and again in January 2021, barely a week before the end of his presidency, for incitement of insurrection in the aftermath of the January 6 attack on the U.S. Capitol. In both cases, however, the Republican-controlled Senate acquitted President Trump. Yet, in July 2021, the U.S. House Select Committee on the January 6 Attack began its work. This Committee is discussing “whether to recommend that the Justice Department open a criminal investigation into the former president” (Hamburger et al. 2021).
The Biden Administration came into office on a promise to strengthen democratic institutions again and has taken several critical steps to revitalize norms that have been violated by the Trump Administration. Biden issued an Executive Order requiring an ethics pledge from all executive branch appointees. Biden also returned to pre-Trump norms by voluntarily disclosing his tax returns. In addition, Biden issued a memorandum laying out standards and procedures to prevent the politicization of scientific research at government agencies. More recently, the White House Counsel’s Office and the Department of Justice issued policies limiting contacts between the two, ending a problematic relationship between the two institutions under the Trump Administration.
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Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs
Hamburger, Tom, Jacqueline Alemany, Josh Dawsey and Matt Zapotosky. 2021. “Thompson says Jan. 6 committee focused on Trump’s hours of silence during attack, weighing criminal referrals,” The Washington Post, December 23. https://www.washingtonpost.com/politics/january-6-thompson-trump/2021/12/23/36318a92-6384-11ec-a7e8-3a8455b71fad_story.html
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs
Hamburger, Tom, Jacqueline Alemany, Josh Dawsey and Matt Zapotosky. 2021. “Thompson says Jan. 6 committee focused on Trump’s hours of silence during attack, weighing criminal referrals,” The Washington Post, December 23. https://www.washingtonpost.com/politics/january-6-thompson-trump/2021/12/23/36318a92-6384-11ec-a7e8-3a8455b71fad_story.html
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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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. Frequent changes in criminal laws have also had a negative impact on legal certainty in Croatia. Some amendments to acts have been implemented even without the much-needed majority in the parliament, which further negatively affected the level of legal certainty.
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.
Judicial reforms have been a key focus for the López Obrador government. Several have been undertaken so far, and more have been announced. Am important reform in December 2020 gave the Consejo de la Judicatura Federal (CJF) more power.
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.
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.
Judicial reforms have been a key focus for the López Obrador government. Several have been undertaken so far, and more have been announced. Am important reform in December 2020 gave the Consejo de la Judicatura Federal (CJF) more power.
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.
4
Bulgaria
Bulgaria’s government is legalistic and favors a strict interpretation of the legal code in justifying its actions. Another problem is the legal consistency of the content of the law. Executive action is not only relatively unpredictable, but may be applied ad hoc, thus creating privileges and inequality before the law.
Deficiencies in the area of the rule of law crowd out FDIs. There were attempts led by prosecutors and individual judges to redistribute market and economic influence in 2014, 2016-2017 (against foreign interests) and 2019-2020. These efforts failed, however, thanks to the fact that EU ambassadors, investigative journalists and NGOs targeting corruption made this information public. It is anybody’s guess what the situation was with local companies that have no foreign ambassadors to speak out for them.
In the period from 2015 to 2019, Bulgaria’s prosecutor general, who was able to act without accountability, created and/or gained control over specialized organs of the justice system (i.e., commissions tasked with special investigations, prosecution and forfeiture, anti-corruption efforts and conflict of interests). These “reforms” were ostensibly pursued in an effort to fight high-profile cases of corruption, terrorism and organized crime but, in fact, served instead as an instrument of protection and racketeering.
The situation deteriorated after the election of Ivan Geshev as prosecutor general in December 2019, who has proven to be inefficient, demonstrated clear bias in his interpretation of certain cases, failed to presume innocence until proven guilty in specific cases and has publicly taken issue with the division of powers. In June 2020, prosecutors raided the offices of two advisors to then-President Radev. The prosecutors explained the action as part of their investigation of suspected influence peddling and disclosure of state secrets. Many protesters viewed the raids as attacks carried out by the prosecutor general and motivated by an escalating conflict between Radev and Borissov.
Marking a setback for prosecutorial reform in Bulgara, the Constitutional Court ruled in 2021 against a new law designed to establish accountability and criminal liability for the office of the prosecutor general, stating that the law was in violation of the constitution.
The first months of the COVID-19 pandemic in 2020 saw increased activity on the part of the prosecutor general. The non-parliamentary opposition, NGOs and independent journalists increased their criticism and disseminated factual evidence of embezzlement, extortion and abuse of public office with the help of individual prosecutors.
Deficiencies in the area of the rule of law crowd out FDIs. There were attempts led by prosecutors and individual judges to redistribute market and economic influence in 2014, 2016-2017 (against foreign interests) and 2019-2020. These efforts failed, however, thanks to the fact that EU ambassadors, investigative journalists and NGOs targeting corruption made this information public. It is anybody’s guess what the situation was with local companies that have no foreign ambassadors to speak out for them.
In the period from 2015 to 2019, Bulgaria’s prosecutor general, who was able to act without accountability, created and/or gained control over specialized organs of the justice system (i.e., commissions tasked with special investigations, prosecution and forfeiture, anti-corruption efforts and conflict of interests). These “reforms” were ostensibly pursued in an effort to fight high-profile cases of corruption, terrorism and organized crime but, in fact, served instead as an instrument of protection and racketeering.
The situation deteriorated after the election of Ivan Geshev as prosecutor general in December 2019, who has proven to be inefficient, demonstrated clear bias in his interpretation of certain cases, failed to presume innocence until proven guilty in specific cases and has publicly taken issue with the division of powers. In June 2020, prosecutors raided the offices of two advisors to then-President Radev. The prosecutors explained the action as part of their investigation of suspected influence peddling and disclosure of state secrets. Many protesters viewed the raids as attacks carried out by the prosecutor general and motivated by an escalating conflict between Radev and Borissov.
Marking a setback for prosecutorial reform in Bulgara, the Constitutional Court ruled in 2021 against a new law designed to establish accountability and criminal liability for the office of the prosecutor general, stating that the law was in violation of the constitution.
The first months of the COVID-19 pandemic in 2020 saw increased activity on the part of the prosecutor general. The non-parliamentary opposition, NGOs and independent journalists increased their criticism and disseminated factual evidence of embezzlement, extortion and abuse of public office with the help of individual prosecutors.
Citations:
https://acf.bg/en/osemte-dzhudzheta/
https://acf.bg/en/osemte-dzhudzheta/
Cyprus
Under the law of exception since 1964, the state features a very powerful executive and “independent officers,” who take decisions that frequently exploit excessive discretionary powers. In many instances, the Council of Ministers and other authorities show limited concern for principles of the rule of law.
Court decisions before 2019 confirmed that measures to tackle the economic crisis of 2013 were not consistent with the law. In recent years, laws passed by the parliament were declared unconstitutional by the Supreme Court. Various measures promoted by the government and/or the parliament to deal with non-performing loans are also problematic.
Revelations about the so-called Cyprus Investment Program, linked with the granting of citizenship, showed that basic rules and legality were violated. The inquiry committee found that more than half of the passports granted to “investors” were in violation of the law.
In July 2020, President Anastasiades appointed two of his ministers to be attorney general and deputy attorney general, positions that are responsible for handling cases related to government decisions in which they participated.
Sustained clashes between the president, who stated that the “strict application of regulations can harm public interests,” and his government, on the one hand, and the auditor general, on the other, also took the form of threats that the auditor general would face prosecution.
Court decisions before 2019 confirmed that measures to tackle the economic crisis of 2013 were not consistent with the law. In recent years, laws passed by the parliament were declared unconstitutional by the Supreme Court. Various measures promoted by the government and/or the parliament to deal with non-performing loans are also problematic.
Revelations about the so-called Cyprus Investment Program, linked with the granting of citizenship, showed that basic rules and legality were violated. The inquiry committee found that more than half of the passports granted to “investors” were in violation of the law.
In July 2020, President Anastasiades appointed two of his ministers to be attorney general and deputy attorney general, positions that are responsible for handling cases related to government decisions in which they participated.
Sustained clashes between the president, who stated that the “strict application of regulations can harm public interests,” and his government, on the one hand, and the auditor general, on the other, also took the form of threats that the auditor general would face prosecution.
Citations:
1. More than half citizenships given through investment unlawful, inquiry concludes (updated), Cyprus Mail, 16 April 2021, https://cyprus-mail.com/2021/04/16/more-than-half-citizenship-given-through-investment-unlawful-inquiry-concludes/
2. Ministry defends decision to green light multi-story building in down town Nicosia, Cyprus Mail, 21 December 2021, https://cyprus-mail.com/2021/12/21/ministry-defends-decision-to-green-light-multi-story-building-in-down-town-nicosia/
1. More than half citizenships given through investment unlawful, inquiry concludes (updated), Cyprus Mail, 16 April 2021, https://cyprus-mail.com/2021/04/16/more-than-half-citizenship-given-through-investment-unlawful-inquiry-concludes/
2. Ministry defends decision to green light multi-story building in down town Nicosia, Cyprus Mail, 21 December 2021, https://cyprus-mail.com/2021/12/21/ministry-defends-decision-to-green-light-multi-story-building-in-down-town-nicosia/
Romania
The 2021 EU Rule of Law report indicated favorable trends in Romania’s commitment to reforming its legislative and judicial frameworks, and its political environment to favor the rule of law.
While parliamentary and legislative activity was limited due to parliamentary elections, and the pandemic in 2020 and 2021, the Constitutional Court retains an active role in reviewing legislative activities to ensure legal frameworks are consistent with the Romanian constitution. In 2020, a significant ruling by the Constitutional Court found that the government’s emergency ordinance that established fines for non-compliance with the restrictions during the pandemic was unconstitutional, leading to an exodus of patients from government-mandated quarantines. By July 2020, the health minister had estimated that up to 30,000 people might have left isolation, quarantine or medical surveillance. While the court’s decision may have impeded the government’s ability to respond effectively to the pandemic, which continued to ravage the country at the end of 2021, the government’s respect for abiding by the order reflects positively on trends in legal certainty.
In addition, since the May 2019 referendum, which limited the government’s ability to issue emergency ordinances (a practice that was criticized for circumventing normal legislative procedures), there have been very few cases of emergency ordinances being used. Further, the number of emergency procedures concerning the justice laws, criminal code and criminal procedure code, the legal framework on integrity, and the fight against corruption has significantly decreased since the 2019 EU Commission Cooperation and Verification Mechanism report. This shift introduces enhanced stability into political and legislative procedures, and has a positive impact on legal certainty.
While parliamentary and legislative activity was limited due to parliamentary elections, and the pandemic in 2020 and 2021, the Constitutional Court retains an active role in reviewing legislative activities to ensure legal frameworks are consistent with the Romanian constitution. In 2020, a significant ruling by the Constitutional Court found that the government’s emergency ordinance that established fines for non-compliance with the restrictions during the pandemic was unconstitutional, leading to an exodus of patients from government-mandated quarantines. By July 2020, the health minister had estimated that up to 30,000 people might have left isolation, quarantine or medical surveillance. While the court’s decision may have impeded the government’s ability to respond effectively to the pandemic, which continued to ravage the country at the end of 2021, the government’s respect for abiding by the order reflects positively on trends in legal certainty.
In addition, since the May 2019 referendum, which limited the government’s ability to issue emergency ordinances (a practice that was criticized for circumventing normal legislative procedures), there have been very few cases of emergency ordinances being used. Further, the number of emergency procedures concerning the justice laws, criminal code and criminal procedure code, the legal framework on integrity, and the fight against corruption has significantly decreased since the 2019 EU Commission Cooperation and Verification Mechanism report. This shift introduces enhanced stability into political and legislative procedures, and has a positive impact on legal certainty.
Citations:
European Commission (2021): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2021) 370 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2019-com-2019-393_en).
European Commission: 2021 Rule of Law Report. Country Chapter on the rule of law situation in Romania, Brussels 20 July 2021 SWD(2021) 724 final
European Commission (2021): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2021) 370 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2019-com-2019-393_en).
European Commission: 2021 Rule of Law Report. Country Chapter on the rule of law situation in Romania, Brussels 20 July 2021 SWD(2021) 724 final
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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. Moreover, ever since the 2015 “refugee crisis,” the government has relied on special decree powers (ICJ 2022). On 20 March 2020, the government’s two-third supermajority in parliament adopted the so-called Coronavirus Defense Act (also known as the Authorization or Enabling Act) that came into force the next day. The act gave the government the right to suspend or override any law. In mid-June 2020, the state of emergency, which stirred massive criticism both within and beyond the country’s borders was lifted, but then transformed into a “medical emergency.” In November 2020, parliament then declared a new state of emergency, which was later extended several times. All three states of emergency gave the government more powers than foreseen in the Fundamental Law, the Hungarian constitution, before its ninth amendment in December 2020.
Citations:
International Commission of Jurists (ICJ)(2022): A Facade of Legality: COVID-19 and the Exploitation of Emergency Powers in Hungary. Geneva (https://www.icj.org/hungary-authorities-must-halt-abuse-of-emergency-powers-in-hungary-during-covid-19/).
International Commission of Jurists (ICJ)(2022): A Facade of Legality: COVID-19 and the Exploitation of Emergency Powers in Hungary. Geneva (https://www.icj.org/hungary-authorities-must-halt-abuse-of-emergency-powers-in-hungary-during-covid-19/).
Poland
Under the PiS government, legal certainty has strongly declined. Some of the government’s many legal initiatives, including major parts of the “Polish Deal” announced in May 2021, have been so half-baked that they had to be amended or suspended. 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 (Baczyńska 2021). 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. The controversial creation of a new disciplinary chamber in the Supreme Court, which has the power to initiate disciplinary investigations and sanctions against justices of ordinary courts judges based on the content of their judicial decisions, has further increased legal uncertainty. Legal uncertainty has been further exacerbated by the ignorant responses of PiS politicians to critical rulings by the Court of Justice of the European Union and the European Court of Human Rights, and the October 2021 ruling by the Constitutional Tribunal that questioned the supremacy of EU over national law (Łazowski/ Ziółkowski 2021).
Citations:
Baczyńska, B. (2021): Zwischen Verfassung und Präsidentenwillen. Der Umbau des Justizsystems in Polen, in: Polen-Analysen Nr. 283, 2-8 (https://www.laender-analysen.de/polen-analysen/283/zwischen-verfassung-und-praesidentenwillen-der-umbau-des-justizsystems-in-polen/).
Łazowski, A., M. Ziółkowski (2021): Knocking on Polexit’s door? Poland, the Constitutional Tribunal and the battle over the primacy of EU law. CEPS, October 21 (https://www.ceps.eu/knocking-on-polexits-door/).
Baczyńska, B. (2021): Zwischen Verfassung und Präsidentenwillen. Der Umbau des Justizsystems in Polen, in: Polen-Analysen Nr. 283, 2-8 (https://www.laender-analysen.de/polen-analysen/283/zwischen-verfassung-und-praesidentenwillen-der-umbau-des-justizsystems-in-polen/).
Łazowski, A., M. Ziółkowski (2021): Knocking on Polexit’s door? Poland, the Constitutional Tribunal and the battle over the primacy of EU law. CEPS, October 21 (https://www.ceps.eu/knocking-on-polexits-door/).
Turkey
The transition to a presidential system of government was introduced by a series of decrees (i.e., state of emergency decrees and presidential decrees) rather than via legislation, as is required by the constitution. The restructuring of the 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.
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.
Citations:
European Commission. “Turkey Report 2021. Commission Staff Working Document.” October 19, 2021. https://ec.europa.eu/neighbourhood-enlargement/turkey-report-2021_en
European Commission. “Turkey Report 2021. Commission Staff Working Document.” October 19, 2021. https://ec.europa.eu/neighbourhood-enlargement/turkey-report-2021_en
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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