Rule of law - our daily bread?

Friday 26 May 2023

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A monthly contribution by the IBA President

Rule of law: our daily bread?

The chessboard has moved. We are living in times of great change and significant challenges, times governed by uncertainty. Stability is of increasing value and the best instrument, maybe the only one to achieve it, is reinforcing the rule of law. 

However, rule of law is suffering constant erosion in recent years, to the point that some already refer to the risk of the rule of lawlessness. Attacks on rule of law proliferate all over the world. There are flagrant cases, diametrically opposed to rule of law, which require a complete reversal of the situation: Russia's reckless invasion of Ukraine, with total disdain for the most sacred principles of international law and of human rights (there shouldn’t be a crime without  punishment), as the IBA has repeatedly denounced; Myanmar, following the takeover by the military in 2021, has entered into a cycle of violence, repression and human rights violations; in Afghanistan, the systemic attacks on women and girls’ rights are creating a gender-based apartheid.

Next to such dramatic situations, others appear in more acceptable environments. They reveal attempts by governments to narrow down the scope of rule of law: Israel proposed a judicial reform which significantly reduced its independence last March (which we also denounced); in Mexico, also in recent months, threats and insults were levelled by the president of their government against the members of its Supreme Court, which the IBA again, condemned

A more subtle attrition but equally dangerous adds to those evident examples. This happens in most countries around us, with democratic governments, where politics are winning the rule of law's hand. It may even be the case in our own. And in so many others: in Europe, Poland and Hungary show a decrease in the independence of the judiciary as well as increased corruption, causing the European Commission to trigger the relevant procedures due to serious risk of violation of the EU common values which have justified the blocking of EU funds to those states. 

Allow me to recall that the rule of law is grounded in the supremacy of the law, a law enacted by a democratically elected parliament, a law which must apply without arbitrariness, and to which we all submit – governments, institutions, citizens. It is the rule of law that allows democracy to operate, and human rights to be protected. Imagine for a moment our society without rule of law: there would be no independent media, no right to assemble and protest, no freedom of expression, no independence of the judiciary, no independence of the legal profession. Our society would be a dark and dangerous place. In short, what we are talking about when discussing rule of law regards the good society, the one promoting progress and individual development, I almost dare to say, promoting our happiness. 

We shouldn’t take for granted that rule of law is guaranteed and that, moreover, it enjoys good health. The reality differs. To start, the legislative activity corresponding to the parliament is huge and often is enacted directly by governments. Ignorance of the law is no excuse, but even us legal practitioners must make a significant effort to encompass the increasing regulatory magma. A piece of legislation cross refers to others, amendments happen too soon, such changes are often included in omnibus legislation impairing their identification. Rules are enacted hastily. There is no time for the higher courts to identify them creating jurisprudence and thus promoting the essential legal certainty. 

The independence of the judiciary, a cornerstone of the rule of law, is suffering increased threats, becoming a recurrent phenomenon in the EU and in so many other jurisdictions. Independence needs an appointment body or a system ensuring the political disengagement of judges and magistrates. There are different ways to achieve this: lifetime appointments of justices of the Supreme Court in the USA, or through independent commissions, or by means of the direct appointment of part of the members of the governing body by judges and magistrates. 

It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Trust by society in justice being correctly administered is of essence. There may be no trace of doubt. Appearances matter. If citizens see judges as politicians in a gown, the confidence in the system will decline, with the risk of judgements not being enforceable, of losing accountability. 

Such weakening elements are causing a backslide of the rule of law, precisely at the time when we need it more. There is a solution. If we aim for a solid rule of law, society may and should take an active role. The legal profession has a fundamental role to play. We must contribute to the credibility of the legal system demonstrating our own professionality, our integrity; we must be spokespersons for the rule of law’s values, educate about them, increase awareness of their importance, and finally, denounce the failures of the system. 

We are doing so at our Association. The promotion of the rule of law, in fact, permeates all our activities. The IBA Rule of Law Forum has an excellent plan for 2023-2024, the sessions dedicated to the rule of law at the Annual Conference in Paris are impressive and so is the work by task forces such as the one on lawyer–client confidentiality. I also participated in an interesting debate on rule of law with the President of the ICC Arbitration Court last 9 May. 

We still have a way to go. I look forward to walking that path together with all of you, ensuring that more and more societies may benefit from the rule of law daily..