The comparative material presented in this volume encompasses a broad spectrum of legal systems belonging to various legal families, both European and non-European, the latter including the US American, Canadian and Australian systems and selected systems of South American, African and Asian countries. The analyses contained in the special reports draw on the experiences and activities of significant organisations and institutions that develop international standards related to the rule of law, such as the European Union, the Council of Europe (Venice Commission) and the OSCE.

The framework for these studies was defined in a questionnaire with problem-based questions, attached at the end of the volume. The central idea inspiring the undertaking of this topic are encapsulated in the following questions: where are we today concerning the development of the rule of law principle? Is there indeed a basis to formulate the thesis that, in recent years, there is a trend that could be described as the ‘revival of the rule of law principle’? Paradoxically, a factor indicating the extraordinary relevance and importance of this issue, as evidenced by the wide-ranging debate occurring around these matters at both national and international levels, is the crisis of the rule of law emerging in many countries, accompanied by attempts to undermine key elements of this principle.

INTRODUCTION

The rule of law is a contested concept; on one hand, it can be studied formally by focusing on how a legal system may function effectively and be implemented impartially by an independent court, regardless of the ideology or political system underlying the aforementioned legal system. On the other hand, the rule of law can also be seen substantively as elements containing, or at least relating to, political morality or certain ideologies – such as communism and liberalism – used by its implementing country. However, the modern concept of the rule of law is usually associated with the ideology of liberalism that comes from Western practices, which emphasises the role of law as a limitation to arbitrary exercise of power, protection of individual rights, and multi-party democracy. The emergence of these views actually cannot be separated from the character of the law itself, as argued by Fernanda Pirie. Throughout its history since the law was first known 4,000 years ago, law always had two contested faces, either as an instrument of the ruler to control his/her people and justify their actions, or as an instrument of the people to limit and control the rulers. It was the end of the Cold War, followed by the success of Western liberalism in becoming the most dominant ideology in the world, that created a myth that the latter was the most legitimate character of the law, even though some societies still emphasised its former characteristics.

INTRODUCTION

Lithuania enjoys overall high rankings in rule of law indices. The country's law is steadily adjusted by means of constitutional construal, legislative enactments, or changes in law application practice. The efficiency of the Lithuanian judicial system is noted for its ‘good results’; judicial independence is gauged as ‘average to high’; the level of corruption in the public sector is estimated as ‘relatively low’; transparency and stakeholders’ involvement is assessed as ‘ensured’ in the checks and balances underlying the legal and institutional framework of the legislative process; media pluralism and freedom are qualified as ‘guaranteed’; the framework for access to information is assessed as ‘gradually improving’; and the civil society space is considered to be ‘open’. At the same time, the need for the improvement of measures pertaining to the quality of law-making, enhancement of media ownership transparency and effectiveness, and impartiality of media self-regulatory bodies are noted. The overall favourable assessment should not outshine setbacks, such as delays in appointment of heads of courts, allegations of judicial corruption, insufficient protection of the advocates’ secrets, or of non-discrimination of vulnerable groups (e.g. LGBTQI+).

This report deals with the perception of the rule of law in the Lithuanian legal system. It has been developed, above all, in the Constitutional Court's case law, which therefore is the main focus of attention.

THE FORMAL FRAMEWORK OF THE RULE OF LAW

The Constitution (1992, amended) declares, in its preamble, the Nation ‘striv[es] for an open, just, and harmonious civil society and a State under the rule of law [teisinė valstybė]’. The latter expression translates as a ‘law-based state’, Rechtsstaat.

INTRODUCTION

Having evolved from a series of sectoral integration agreements between six European countries into a truly autonomous legal order comprising 27 Member States and their nationals, the European Union epitomises the idea of multilevel polity building through law. Its fundamental premise, expressed in Article 2 of the Treaty on European Union (TEU), is that each Member State shares with all the others a set of common values. One of these values is the rule of law. Concisely understood as the idea of constraining public powers by norms beyond their control, it assembles a number of formal and substantive requirements ensuring fairness and accountability.

A meaningful definition of the rule of law in the EU legal order needs to capture its particular constitutional identity and reflect the intertwinement of national and Union levels of power. Indeed, the Member States have not only founded the EU and relinquished sovereign rights to the latter, but they also have their say in its policy- and rule-making and, for the most part, implement and enforce the rules thus made. Based on EU law and mutual trust, they cooperate with each other in a wide range of administrative and judicial matters. While collectively involved in a variety of formal or informal consultations, accords and agreements on issues of EU relevance, the Member States may, finally, defend their interests4 in litigation before the EU Courts on the application, interpretation or validity of EU law, as well as each other's respect for (the rule of) EU law.

INTRODUCTION

The Organization for Security and Co-operation in Europe (OSCE) is a political organisation. Established by the Helsinki Final Act in 1975,1 during the depths of the Cold War, it sought to bring together the East and the West as a platform for dialogue. It established a new multilateral framework for Europe, the United States and the Soviet Union with the aim of managing conflict. It conceived rules of engagement, ensuring that no country's actions were any longer solely a matter of ‘internal affairs’ and established a peer-to-peer review between states of their performance in adherence to human rights through the prism of security. It introduced structures, institutions and processes to bring to life the political commitments which the participating states undertook in Helsinki and thereafter. Today it has 57 members (all in the Northern Hemisphere), as well as ‘partners for cooperation’ in North Africa and the Middle East. Since 1975, it has taken a number of important decisions and developed new commitments, also in the realm of the rule of law.

Its participating states have undertaken political commitments in three major fields called ‘dimensions’, that is, security, environmental and economic and human rights. They are based on the premise that without the respect for human rights, there can be no security. Without environmental/economic stability, security is also not possible. Indeed, all three dimensions of its work are theoretically interconnected and codependent – while operationally separate.

INTRODUCTION

The rule of law has been a fundamental value in the legal, historical, and normative order of the United States of America since the birth of the Republic and remains so today. Yet the rule of law has also been under threat from the beginning and will never be fully secure. An unachievable ideal, the rule of law sets the standard against which Americans measure the progress of their law and government. The Revolution, the Constitution, and the legal institutions of the United States all seek ‘the empire of laws and not of men’. Despite its mixed success, this search has been and remains the unifying thread in the history of American law.

This commitment to the rule of law was most prominently and directly made in the Fifth Amendment to the Constitution of the United States, which promises that no person shall ‘be deprived of life, liberty, or property, without due process of law’. The Fourteenth Amendment added that:

Similar guarantees already existed in the constitutions of each of the separate states of the Union. The Declaration of Rights of the Inhabitants of the Commonwealth of Massachusetts (1780) put this shared commitment simply and clearly when it embraced the universal right to enjoy ‘a government of laws and not of men’.

THE RULE OF LAW REPORT AND CHECKLIST

The Venice Commission (VC) is an expert body working under the auspices of the Council of Europe (CoE) and is engaged in constitutional consulting and standard setting. Its main outputs consist of country-specific opinions and general studies, reports and guidelines. Country-specific opinions are issued only on the initiative of the country at issue or an international body or organisation, such as the various organs of the Council of Europe. The guidelines and opinions of the Venice Commission have played an important role in the rule of law monitoring of the EU.

According to their founding treaties, the rule of law is the third pillar of the value foundation underpinning both the CoE and the EU. The rule of law is invoked in practically all country-specific opinions of the Venice Commission; references to the rule of law are probably even more frequent than to democracy or human rights. The aspects of the rule of law appealed to in VC opinions vary, in the eyes of some observers, perhaps in a confusing way. Consequently, the primary sources for the following reconstruction of the Commission's rule of law doctrine consist of two documents where the rule of law is examined in a comprehensive way: the 2011 ‘Report on the Rule of Law’ (the Report) and the 2016 ‘Rule of Law Checklist’ (the Checklist), arguably the most important and influential soft law document adopted by the Commission. The Report and the Checklist form a continuum, with the Checklist specifying and complementing the groundwork achieved by the Report.

INTRODUCTION

En contexte canadien, comme sans doute dans bien d’autres systèmes nationaux, toute discussion de la primauté du droit (rule of law), parfois appelée le principe de légalité et, occasionnellement, l’État de droit, est une entreprise notoirement complexe. D’emblée, les dispositions de la Constitution canadienne n’en font nulle mention. Néanmoins, la primauté du droit y est reconnue ou y a été incorporée par interprétation. Ainsi, le préambule de la Charte canadienne des droits et libertés de 1982 déclare que « le Canada est fondé sur des principes qui reconnaissent la suprématie de Dieu et la primauté du droit ». Selon la Cour suprême du Canada, le principe de la primauté du droit est aussi implicitement consacré en droit canadien par le préambule de la Loi constitutionnelle de 1867, lequel réfère à une « constitution reposant sur les mêmes principes que celle du Royaume-Uni ».1 Dans l’arrêt Colombie-Britannique (P.G.) c. Christie, la Cour a déclaré que la primauté du droit est aussi reconnue implicitement à l’article premier de la Charte, qui prévoit que les droits et libertés y énoncés ne peuvent être restreints que par une règle de droit, dans des limites raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.2 Plus généralement, la Cour a affirmé que ce principe était « nettement implicite de par la nature même d’une constitution ».

THE PRINCIPLE OF THE RULE OF LAW AND ITS NORMATIVE RECEPTION IN ARGENTINA

The rule of law can be briefly understood as the obstacle against the abuse of power and is considered one of the essential characteristics of the constitutional order. Although the idea of the ‘rule of law’ is not accepted in any positive norm in the Argentine legal system, it is possible to reconstruct it based on various elements or principles that constitute it. In this regard, it is worth mentioning, in the first place, the principle of limitation of power, embodied in the organic part of the National Constitution, which structures the state as a federal and representative republic and distributes power among the three organs of government. Ultimately, what the organic part is about is the limitation of power, since the same rationalist foundation that justifies the sanction of a written constitution is the one that also justifies that limitation, because it was precisely the libertarian ideology of the great revolutions – the end of tyrannies to give the people the exercise of controlled and limited power through the practice of political representation. Thus, the concept of rule of law translates into limiting power, with the fundamental purpose of protecting individuals against the arbitrariness of the state or other individuals.

In Argentina's republican system, this division implies the horizontal limitation of the classic separation of powers and federalism's vertical dimension.

INTRODUCTION

Hong Kong is regularly cited as an example where the rule of law could flourish without democracy. As a former British colony for 150 years, it has inherited the legacy of the British common law. It is a major international financial centre and one of the largest capital markets in the world. It is a vibrant, dynamic, cosmopolitan city where the rule of law flourished, and fundamental rights were respected. In 1997, it became a special administrative region (HKSAR) of the People's Republic of China (PRC), enjoying a high degree of autonomy under the unique constitutional model of ‘One Country, Two Systems’. Under this model, it retains its previous legal, social and economic systems. The rule of law lies at the core of its constitutional values, which are well grounded in Western liberalism and the doctrine of separation of powers. Yet it is embedded within an ambitious, powerful and authoritarian socialist sovereign power which rejects separation of powers and individual liberalism, and which is sceptical about judicial independence. At the same time, as a former British colony and a special administrative region of the PRC, Hong Kong has made little progress in developing its democratic system. The demand for democracy was initially accommodated, but as events unfolded, it was perceived to be a threat to national security. The Central Government responded by the imposition of a new National Security Law (NSL) on Hong Kong in 2020.

ÉTAT DE DROIT ET CONSTITUTIONNALISME FRANÇAIS

LE CADRE CONSTITUTIONNEL DE L’ÉTAT DE DROIT

L’absence de consécration et de définition explicites de l’État de droit

En France, l’expression « État de droit » n’est pas une notion de droit positif. En effet, à la différence de la Loi fondamentale de la République fédérale d’Allemagne de 1949 (article 28), de la Constitution espagnole de 1978 (préambule) ou de la Constitution du Portugal de 1976 (préambule), on ne retrouve pas cette expression dans le texte même de la Constitution, ni dans ceux auxquels elle renvoie et qui ont valeur constitutionnelle, à savoir la Déclaration des droits de l’homme et du citoyen de 1789, le préambule de la Constitution de 1946, les principes fondamentaux reconnus par les lois de la République et la Charte de l’environnement de 2004. De plus, la notion d’« État de droit » n’apparaît pas non plus en tant que telle dans les décisions du Conseil constitutionnel rendues dans le cadre du contrôle de constitutionnalité des lois. Eu égard à l’absence de référence explicite à ce principe et, a fortiori, de définition normative expresse de l’État de droit au plus haut niveau de la hiérarchie des normes, il est difficile de considérer, à première vue, que celui-ci constitue une caractéristique fondamentale de l’ordre constitutionnel français, comme cela l’est, par exemple, en Allemagne ou en Espagne.

Ce premier constat est corroboré par l’analyse du niveau infraconstitutionnel. Dans la loi, tout d’abord, l’expression « État de droit » s’avère peu utilisée.

FORMAL FRAMEWORK OF THE RULE OF LAW IN THE CONSTITUTIONAL ORDER

1. Is the principle of the rule of law one of the fundamental features of the constitutional order?

2. Is there a normative definition of the rule of law:

• a) at the level of constitutional provisions?

• b) in the absence of a normative definition, by means of a direct reference to this principle in the text of the Constitution?

• c) in other legal provisions?

3. If there is no normative definition, is this principle decoded by case law and/or constitutional doctrine on the basis of a set of constitutional arrangements, such as, in particular, the principle of separation of powers and check and balance mechanism, the hierarchy of legal norms, the independence of the judiciary, constitutional review of laws, etc.?

SUBSTANTIVE CONCEPT OF RULE OF LAW

1. What is the dominant concept as regards the essential elements necessary to consider the legal order as compatible with the rule of law?

a) subordination of individuals, private entities and public authorities to the law (e.g. prerogatives of public authorities cannot be presumed; all their actions should be based on the law)?

b) equal treatment of everyone before the law and clear definition of the sphere of freedom of every person (according to the principle – everything not prohibited by law is allowed)?

c) separation of powers between the executive, legislative and judicial branches and mechanism of checks and balances?

d) hierarchical review of the law by an independent body such as a Constitutional Court/Supreme Court in order to ensure the primacy of fundamental rules in the legal system?

INTRODUCTION

The framing of a topic as one of a ‘revival’ can be interpreted in different ways. With respect to the rule of law, it could point to an increasing awareness of its importance as well as to mounting challenges to the rule of law. This report interprets the common theme in the latter sense. Arguably, the current time is one in which the rule of law is no longer necessarily seen to be an ‘unqualified, universal good’. Attacks against the rule of law come from different corners. To some critical academics, the rule of law – and related notions like the Rechtsstaat and l’État de droit – are only a form of bourgeois camouflage, a veneer for protecting the interests of those who control the means of production in liberal-capitalist societies. Others seem to speak out against the rule of law – or act against its spirit – out of a sense of populist entitlement. A sentiment of ‘we the people’ may challenge various forms of elite rule – and the rule of law seems to be perceived by some as just another form of rule which has allegedly become detached from democratic decisions.

Approaching this topic from a German perspective might, at first sight, invite some complacency. The idea of the Rechtsstaat seems to be almost unchallenged, an unqualified success story of German constitutional law. For a long time, German constitutional traditions were leaning more towards a rule of law orientation than towards one of democracy

INTRODUCTION

Writing extrajudicially in 2019, Judge Safjan identified a new, unprecedented and worrying trend in the EU: the ‘undermining, eliminating and distorting the rule of law’, which he presented as ‘one of the key challenges, if not the key challenge, facing’ the EU today. This report shares this diagnosis and will outline the lack of a prompt, forceful and systemic answer by the EU institutions in the face of a top-down, sustained and systemic process of rule of law backsliding which is continuing to spread and accelerate to this day. One may note in this respect a recent and unprecedented step: the lodging of four annulment applications by four organisations representing European judges against the Council's decision to endorse Poland's Recovery and Resilience Plan on the ground that the Council, and indirectly the Commission, disregards the Court of Justice's rulings.

Rule of law backsliding represents a critical challenge for the EU because it represents an existential threat to the EU: it structurally undermines the fundamental premise on which the EU's interconnected legal order is based. In light of the continuing deterioration of the situation on this front – which was entirely predictable and was indeed anticipated by the European Parliament in 2015 in light of the Commission and Council's persistent mix of denials and lack of meaningful actions – the President of the European Court of Justice was forced to publicly warn in November 2021 about the ‘extremely serious situation’ the EU finds itself in which ‘leaves the Union at a constitutional crossroads’ with the EU's ‘foundations as a Union based on the rule of law’ now ‘under threat’.

Résumé

L’idée principale de ce volume dédié à la thématique de la « renaissance de l’État de droit » consiste, d’une part, à faire état de la diversité des approches retenues en matière d’État de droit dans les systèmes juridiques contemporains et, d’autre part, à identifier les éléments sous-tendant l’essence même de la notion de « l’État de droit », c’est-à-dire les éléments indispensables qui permettent de considérer que le système juridique d’un pays respecte le principe de l’État de droit. Cette analyse comparative vise aussi à identifier les principaux déficits et menaces qui mettent en péril le fonctionnement correct et efficace d’un système basé sur ce principe, de même qu’à fournir des pistes de réflexion sur ce que pourrait être l’évolution future de celui-ci. De manière générale, la thématique abordée dans le présent volume tente de répondre à la question de savoir s’il est possible, dans le monde contemporain, de soutenir la thèse d’une renaissance dudit principe et, dans l’affirmative, dans quel sens cette renaissance s’effectue.

Cet ouvrage présente des rapports relatifs non seulement aux systèmes nationaux européens et extra-européens, mais aussi à des analyses élaborées par des organisations internationales, telles que l’Union européenne, l’OSCE et le Conseil de l’Europe (Commission de Venise). La première et principale conclusion que l’on peut tirer d’une telle analyse est que le principe de l’État de droit ne peut être, conformément à l’approche dominante répandue dans le monde contemporain, réduit au respect purement formel des dispositions du droit positif ; d’autres exigences tout aussi importantes doivent également être satisfaites, comme le respect des droits fondamentaux, le mécanisme de séparation des pouvoirs (checks and balances) et les mécanismes démocratiques d’exercice du pouvoir.

INTRODUCTION

In recent years, Turkey has faced a ‘constitutional crisis’ which has been asserted to be amounting to a process of ‘de-constitutionalization’. However, given the various authoritarian tendencies across the globe, Turkey may not be the only country going through this crisis. Then, the questions arise: are there any specific issues concerning the democratic constitutional system peculiar to Turkey which can explain its own constitutional crisis, such as political factors or lack of democratic structures adhering to the rule of law? If so, what are they?

To answer these questions and adequately examine Turkey's struggle with the rule of law, this report will begin with the constitutional texts and rulings. In doing so, the report will argue in line with the prominent doctrine that the legal texts need to be interpreted within wider contexts such as the democratic and political climate. By shedding light on specific political/legal problems which appear to be both interesting and illuminating for those interested in the rule of law, the report will try to demonstrate that, while the Turkish Constitution has its own deficiencies concerning the rule of law, Turkey's so-called constitutional crisis arises from structural political/legal problems much wider than the Constitution itself.

CONSTITUTIONAL DEFINITION OF THE RULE OF LAW

The Turkish Constitution declares in Article 2 that the Republic of Turkey is, in exact Turkish wording, ‘hukuk devleti’, which could be translated as a Rechtsstaat. However, in the official English translation of the Constitution, it is written that the Republic of Turkey is a state ‘governed by rule of law’.

INTRODUCTION

What is the ‘other’ side of the rule of law coin in Europe, as opposed to the story of the fight for the values of Article 2 of the Treaty on European Union (TEU) at the national level, explored by Pech in this volume? It is the deployment of the principle of the rule of law by the European Court of Justice (ECJ) to pre-empt necessary dialogue and to disqualify substantive arguments of principle originating in other legal orders. The rule of law, on this count and as used by the Court, emerges as a trump card making the vital dialogue on which the rule of law directly depends impossible. Such deployment of the rule of law ruins the basic coherence of the EU legal system, as the Court does not measure itself by the same standards that it applies to the national courts, while embracing a multitude of conflicting approaches to the rule of law and judicial independence, steeply departing from EU law's own established principles, as well as European Convention on Human Rights (ECHR) standards in rule of law cases. Such use of the principle is both dangerous and directly opposed to the very essence of European constitutionalism. It is an attack on the procedural side of EU law, as it undermines coherence, as well as on the substance of the rule of law, as this approach opposes vital checks on the arbitrary power of the sovereign – in this case the Herren der Verträge. This is all particularly dangerous given the huge question marks concerning the ECJ's own structural independence.