I am writing to respond to the disappointingly unsubstantial article written by Hungarian Minister of Justice, Judit Varga entitled “Facts You Always Wanted to Know about Rule of Law but Never Dared to Ask” and published by Euronews, not for its own sake but in consideration of the significance of the subject and upon request.
Minister Varga makes several statements concerning the ongoing debate between the European Union and the Hungarian state over the rule of law. However, she presents no arguments, unless we consider two comments quoted from the Hungarian prime minister expressing his annoyance with the operation of the European Union that are absolutely meaningless in this context as such.
The rule of law, as opposed to what the minister writes, is not one of the current “buzzwords” but a constitutional foundation for our civilization, the operation of the state and our daily life.
According to Article 2 of the Treaty on European Union, “[t]he Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
It is true that the relationship between this article and Article 4 Section 2 is disputed, however, these foundational values define the identity of the European Union. At the same time, it is not questioned that the rule of law includes the principles of legality and legal certainty, the prohibition of the arbitrary exercise of executive power, effective judicial protection by independent and impartial courts, and equality before the law.
Countries governed by the rule of law resemble each other in many respects (including the guarantee of freedom of the press, free and fair elections, the almost identical formulation and effective protection of fundamental rights etc.) but the rule of law does not mean uniform institutions and rules. Thus, while such countries strongly resemble each other in their constitutional life, they are also naturally different in terms of their institutional systems and the regulations designed for the operation of such systems.
This is because freedom is exciting and diverse, while servility is dull and grey. For example, it represented a complete misunderstanding of the rule of law and the Scandinavian legal system when upon the criticism of Hungary by the Finnish government at the time of Finland’s Presidency of the EU, the Hungarian prime minister reacted (and based on that, the extensive government propaganda argued) that the Finnish politicians had better keep silent as in Finland, as opposed to Hungary, there is no constitutional court at all. At the same time, we should not forget either, as it is a general trend in countries governed by the rule of law, that in European countries reorganised after the Second World War in reaction to the trauma of the Communist and Nazi systems, constitutional courts do operate everywhere.
Minister Varga argues that there is no set of universally applicable objective criteria for rule of law. This is false. In reality, the rule of law is discernible, not in the presence of identical rules but the general adherence to principles identified as universal, which does not manifest itself in completely identical institutional systems in every country.
This is what the world is like. The rule of law is diverse but the unimaginative and oppressive authoritarian systems are not uniform either; they are certainly not prone to be criticised for diversity. Moreover, as no human creation is perfect, we may also claim that the rule of law is usually imperfect. No flawless rule of law operates anywhere, although we may find some countries following its principles better while others less so. And while there are effective legal protection mechanisms under the rule of law, these are often threatened at the time of crises, war and by the sinister interest of those who wield political power, as argued by philosopher John Stuart Mill.
Although there are also cases when an authoritarian system is transformed with the rule of law by democrats (and not so rarely it happens that a country formerly under the rule of law deteriorates into an authoritarian system), we may claim that it is a clear-cut question whether there is the rule of law in a country or not. Thus, even countries with a rule of law of a weaker quality can clearly be distinguished from authoritarian systems.
How can one then decide if a state is already governed by the rule of law or if such principles have already disappeared?
In every country governed by the rule of law, the principles of separation of powers and division of powers are enforced with a complex system of legal institutions and rules. Montesquieu argued that the constitutional requirements specified by him had already worked in England, while the parliament in that case also operated as a court and the king had strong legislative powers. What Montesquieu saw clearly was that in England, nobody had absolute power. He wished to realise this in a more radical form in his own country and all over the world.
Taking a contemporary example, if a state embraces the principle of the division of powers in its constitution but, contrary to this, it strives to enforce the unity of power, it clearly deviates from the ideals of constitutionality and the rule of law. In case such an endeavour is successful, there is no rule of law any more. Power should always be set against power. Thus, where government power has a monopolistic or hegemonic position, and it is not limited effectively by other branches of power, there is no rule of law.
Under the rule of law, election regulations in a broad sense aim to guarantee equal opportunities for opposition and governing parties. For example, political messages of the opposition should reach the voters with an equal chance to those of the governing parties. If in a country elections are only partly free and/or not fair, most probably there is no rule of law in the country.
The independence of judges is a core principle of the rule of law. By means of the administration of courts, the independence of the judges cannot be influenced by governments indirectly, including any interference in judicial careers by means of external-political intervention or the selection of court leaders. Political attacks against the self-governing institutions of courts make the independence of judges questionable. The review of public administrative decisions by independent judges also represents an elemental requirement of the rule of law.
We do not receive human rights from the state but it is the state that must guarantee these to its citizens. Any state that gives or withdraws human rights at its own pleasure or that unconstitutionally limits such rights is not governed by the rule of law. It is certainly possible, as hinted at by the minister also, that one country is helpful towards refugees while another is not, but under the rule of law, the state cannot threaten NGOs that provide legal information for refugees with prosecution.
Under the rule of law. academic freedom and the autonomy of universities are also respected and not limited.
The task of the constitutional court is to review actions of and not serve the government and the parliamentary majority. If in any country, the independence of the constitutional court is abolished, there is no rule of law anymore in that state.
Although the rule of law is not entirely free of corruption either, it always persecutes and never organises corruption. Similarly, there is no rule of law in the absence of freedom of the press. A government pursuing the rule of law never aims to end or curb the opposition press or quarantine its leftovers. The public media operated under the rule of law shares the relevant opinion of opposition parties and critical civilian (e.g. human rights or environmental) groups just as much as that of the government. A government under the rule of law does not conduct hate campaigns against its critics in the media controlled by it.
Under the rule of law refugees are not starved and homelessness is not attacked; rather, the state generally strives for mitigation.
One might think that this many requirements, not even listed comprehensively, might even prove to be too much. In reality, however, the situation is that the state politics mentioned above damaging or even ending the rule of law appear not in an isolated manner but more or less simultaneously. In a declining democracy, that is in an evolving autocracy, the government usually does not dismantle one or the other element of the rule of law structure mentioned above but strives to weaken and terminate all of them.
László Majtényi is the President of Eötvös Károly Institute.
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