Rule of Law: A Key Governance Indicator in Comparative Government and Politics Suzanne Bailey APAC Presentation July 16, 2010 Contact: firstname.lastname@example.org Define: Rule of Law ▫ Set of rules either written or based on precedence that is applicable to all constituents of a society. ▫ Rules of game don’t change—nobody is above the law. ▫ A set of laws/procedures/rules that governs society and are consistently enforced, equally to all to all citizens regardless of status. ▫ All people are treated equally under the country’s legal procedures. Sample Textbook Definitions: • Almond/Powell, Comparative Politics Today: ▫ Process which protects individual rights by limits on arbitrary state power. • Hauss, Comparative Politics: ▫ People are governed by clear and fair rules rather than by the arbitrary, personal exercise of power. Sample Textbook Definitions: • Kesselman, Introduction to Comparative Politics: • O’Neil, Essentials of Comparative Politics: ▫ A system in which all individuals and groups, including those in government, are subject to the law, irrespective of their power or authority United Nations Definition of Rule of Law: • A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. AP Comparative Course Outline: • Introduction to Comparative Politics • Sovereignty, Authority, Power • Political Institutions: • Citizens, Society and the State • Political and Economic Change • Public Policy: Democratization: • Almond/Powell: ▫ Democracy: political system in which citizens enjoy a number of basic civil and political rights, and in which their most important political leaders are elected in free and fair elections and are accountable under a rule of law. Liberal Consolidated Democracy: • Protect: ▫ Basic Freedoms (substantive rights) ▫ Competitive Elections (procedural rights) ▫ Rule of Law Freedom House • Freedom in the World: ▫ Measurement of political rights and civil liberties • http://www.freedomhouse.org/template.cfm?pa ge=351&ana_page=362&year=2010 Freedom House World Justice Project: Rule of Law Index • Four Principles: ▫ The government and its officials are accountable under law. ▫ The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property. ▫ The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient. ▫ Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representative, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. ▫ http://www.worldjusticeproject.org/rule-of-law-index/ World Justice Project Development: World Bank: Policymakers, civil society groups, aid donors, and scholars around the world increasingly agree that good governance matters for development. Included in six Indicators of Governance: Rule of Law: the extent to which agents have confidence in and abide by the rules of society, including the quality of contract enforcement and property rights http://info.worldbank.org/governance/wgi/index.asp Rank AP Comparative 6: • On a scale of 1-6 with 1 being the highest— rank the AP Comparative 6 core countries on their adherence to rule of law. 1. 2. 3. 4. 5. 6. World Bank Governance Indicators: • http://info.worldbank.org/governance/wgi/inde x.asp Rule of Law Indicator Governance Indicator: AP Comparative Course Outline: • Judiciaries: ▫ Degrees of autonomy Independent courts ▫ Judicial Review (Including European Union in relation to states, citizens) ▫ Types of law Code or common law Religious Law Law: Collection of rules laid down by government • Common Law: (case law): judicial decisions based on precedent (stare decisis). Emphasis on judicial independence to interpret the law. • Code Law: detailed statutes produced and interpreted by the government. Code is authority not previous judicial decisions. • Religious Law: Sharia (Islamic Law) Common Law Countries Sharia Law Judicial System: • Independent Court: The ability of judges to decide cases as they think appropriate, regardless of what other people, and especially powerful officials or institutions, desire. Judicial Review: • Ability of a court to overturn legislation or executive action. ▫ Centralized v. decentralized: ▫ Abstract v. concrete: Great Britain • Rule of law tradition: ▫ Magna Carta 1215 Common law (case law): precedent: Independent court • Measures: ▫ World Bank Governance Percentile Rank: 92.3 ▫ Freedom House: PR-1, CL-1 Great Britain: Institutions • Human Rights Act 1998: Rights guaranteed in the European Convention on Human Rights are secured in British courts. • Supreme Court of the United Kingdom: ▫ No power of judicial review = may issue a declaration of incompatibility ▫ http://www.supremecourt.gov.uk/ The Supreme Court of the UK Great Britain: European Union • For the purpose of European construction, the Member States (now 27 in number) concluded treaties establishing first the European Communities and then a European Union, with institutions which adopt legal rules in specific areas. • The Court of Justice of the European Union is the judicial institution of the European Union and of the European Atomic Energy Community (Euratom). It is made up of three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Their primary task is to examine the legality of European Union measures and ensure the uniform interpretation and application of European Union law. • Through its case-law, the Court of Justice has identified an obligation on administrations and national courts to apply EU law in full within their sphere of competence and to protect the rights conferred on citizens by that law (direct application of EU law), and to disapply any conflicting national provision, whether prior or subsequent to the EU provision (primacy of European Union law over national law). European Court of Justice China: • Rule of Law Tradition: ▫ Mao: minimize law (1949-1976 = few laws)—rely on party doctrine ▫ Deng: greater reliance on code law ▫ Jiang, Hu: increased emphasis on code law http://www.pbs.org/wnet/wideangle/episodes/the- peoples-court/introduction/162/ China: • Measurements: ▫ Worldbank Governance Percentile Rank: 45 ▫ Freedom House: PR-7, CL-6 • Institutions: ▫ Supreme People’s Court: no judicial review/not an independent court Nigeria • Rule of Law Tradition: ▫ British common law tradition ▫ Parallell system in Northern States since 2000 = sharia law adopted. • Measurements: ▫ Freedom House: PR-5 CL-4 ▫ World Bank Governance Percentile: 11.5 • Institutions: ▫ Supreme Court Nigeria: Current Example • LAGOS — The Supreme Court of Nigeria upheld the election of President Umaru Yar'Adua on Friday after more than a year and a half of legal battles and despite claims by two opposition leaders that he had gained the country's highest office by fraudulent means. • In a 4-3 decision, the court dismissed the final challenge brought against the president and ruled that the prosecution, led by the former military leader Muhammadu Buhari and the ex-Vice President Atiku Abubakar, had not presented sufficient evidence to overturn the election. • "The president and vice president remain the president and vice president of this country," lead judge Niki Tobi said in a statement after the ruling was handed down in the capital, Abuja. • Local and international observers condemned the April 2007 elections as deeply flawed, citing nonexistent voting booths, stolen ballot boxes, intimidation by hired thugs, and at least 200 deaths in post-election violence. • Despite Nigeria's long history of corruption and misrule, opposition leaders had some reason to hope this time; 10 state governors saw their elections overturned in the past year. Most of the re-run gubernatorial elections still went for the ruling party, however, and few expected the Supreme Court to rule against a president who had already been in office for 19 months. Mexico: • Rule of Law Tradition: ▫ Napoleonic code law tradition ▫ Zedillo reforms: 1994 Supreme Court Judges: fixed 15 year terms to increase independence Expanded judicial review powers of Supreme Court to declare acts of Congress and other federal actions unconstitutional by supermajority • Measurements: ▫ Freedom House: PR-2, CL-3 ▫ World Bank Governance Percentile Rank: 29.7 Mexico: Institutions (CIA Factbook) • The judiciary is divided into federal and state court systems, with federal courts having jurisdiction over most civil cases and some major felonies. Under the constitution, trial and sentencing must be completed within 12 months of arrest for crimes that would carry at least a 2-year sentence. In practice, the judicial system often does not meet this requirement. Trial is by judge, not jury. Defendants have a right to counsel, and public defenders are available. Other rights include defense against self-incrimination, the right to confront one's accusers, and the right to a public trial. Supreme Court justices are appointed by the president and approved by the Senate. (See "Reforms" below for comments on judicial reform currently underway.) Iran: • Tradition of rule of law: ▫ Rule by Shah ▫ Sharia law adopted in 1979 Constitution • Measurement: ▫ Freedom House: PR-6, CL-6 ▫ World Bank Governance Percentile Rank: 23 • Institutions: ▫ Chief Judge, Minister of Justice ▫ Supreme Court, special courts (revolutionary, clerical) Iran Example: • Shirin Ebadi: ▫ Book: Iran Awakening: One Woman’s Journey to Reclaim Her Life and Country. 2007. • http://www.guardian.co.uk/commentisfree/201 0/jun/08/brutal-crackdown-iran-women- protest • http://www.pbs.org/wgbh/pages/frontline/tehr anbureau/ Russia: • Tradition of rule of law: ▫ Rule by Czar ▫ Rule by CPSU ▫ Gorbachev: goal: law-governed state: code law ▫ Putin: dictatorship of law • Measurements: ▫ Freedom House: PR-6, CL-5 ▫ World Bank Governance Percentile Rank: 19.6 • Judicial Institutions: ▫ Constitutional Court(judicial review), Supreme Court ▫ The Procuracy, Advocates Russia • Mikhail Khodorkovsky: ▫ http://topics.nytimes.com/top/reference/timesto pics/people/k/mikhail_b_khodorkovsky/index.ht ml • Putin’s Plan: • http://www.pbs.org/frontlineworld/stories/russ ia703/ Concept/Country Comparison Legal System Judicial Review Independent China Code law No No Great Britain Common law No Yes Iran Sharia No No Nigeria Common law Yes Yes Sharia Russia Code law Yes No Mexico Code law Yes Yes AP Exam Questions: Multiple Choice • Which of the following groups of countries all have code-law legal systems? • A. Great Britain, Nigeria, Iran • B. Great Britain, Russia, Nigeria • C. China, Mexico, Iran • D. China, Russia, Mexico • E. Russia, Mexico, Great Britain AP Exam Questions: Multiple Choice • The political systems of Mexico, Nigeria, and Russia all have: • A. Common-law legal systems • B. Two-ballot systems for presidential selection. • C. Effective independent judiciaries with judicial review • D. Unitary systems with strong states and a weak central government • E. Bicameral legislatures based partly on regions and partly on population. AP Exams: • Free Response: • 2010 ▫ Explain changes made during Putin’s presidency to make the Russian political system more authoritarian. ▫ Explain challenge to sovereignty of the parliament in Great Britain ▫ Identify and explain one specific condition within a political system that would enable civil society to thrive. ▫ Explain why citizens in both countries (Great Britain and Nigeria) might choose violent acts over more conventional forms of political participation. Resources: The Economist: Economics and the rule of law: Order in the jungle, March 13, 2008. http://www.economist.com/node/10849115?sto ry_id=10849115 Baker/Glasser. Kremlin Rising: Vladimir Putin’s Russia and the End of the Revolution. 2005. --Chapter 12: Dictatorship of the Law Pan, Philip. Out of Mao’s Shadow. 2008 --Chapter 10: The People’s Trial. Resources: • Bogdanor, Vernon. The New British Constitution. 2009. • ---Chapter 3: The Human Rights Act • Drogus/Orvis. Introducing Comparative Politics: Concepts and Cases in Context. 2009.
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