The rule of law: understanding it better to defend it better

"The rule of law: why should we care?" was the thought-provoking question put to participants in a hearing jointly organised by the EESC Fundamental Rights and Rule of Law Group and the International Bar Association (IBA) on 6 July 2022 in Bratislava, Slovakia.

Discussions were moderated by Katarina Čechová, member of the IBA. Opening the discussion, Cristian Pîrvulsecu, EESC member and president of the Fundamental Rights and Rule of Law Group (FRRL group), addressed one of the challenges inherent in this question: defining the rule of law. The term itself translates into concepts such as "Rechtsstaat" in German and "état de droit" in French, which are related but not identical due to differences in political cultures and legal contexts.

George Artley, Bar Issues Commission (BIC) lawyer at the IBA, pointed to the need to increase public awareness of the rule of law. This is why the IBA launched a large-scale campaign in 2018 entitled Look after the Rule of Law, and it will look after you. The objective was to improve the understanding of the concept and humanise the discussion, in particular in relation to specific target groups. Mr Artley emphasised the importance of the rule of law in ensuring social progress and the social contract between the people and the State. Fundamental rights and the rule of law are interconnected. Fundamental rights would remain mere words on paper if institutions were not in place to protect and fulfil them. 

The discussions focused on the importance of the rule of law in the EU. Gregory Fabian, member of the Bar in the State of New York, said that while there is no legal definition of the rule of law, working definitions exist and are based on the case law of the European Court of Justice. Taking into account the common constitutional traditions of EU Member States, the Court considered that the rule of law entails the principles of legality, legal certainty, the prohibition of arbitrariness in executive powers, the right to a fair trial before independent and impartial courts, separation of powers and equality before the law. When asked how to improve the assessment of the rule of law, Mr Fabian advocated for a human rights approach to the rule of law. States commit to respect, protect and fulfil economic, social, cultural, civil and political rights through their adhesion to international human rights law instruments such as conventions. This serves as the basis for the development of human rights indicators which accurately measure States' compliance with their international human rights commitments, in terms of legal and political will, process and outcome.

After referring to the main features of the rule of law, Vlastka Kunová, Associate Professor of Law at the University of Matej Bel, stressed the importance of early prevention in order to avoid challenges in the area of the rule of law becoming more complicated to address once they develop into critical situations. The EU rule of law toolbox enables a wide range of actions, from the Article 7 procedure to rule of law dialogues and budget conditionality.

Peter Varga, Chair of the Administrative Board, Slovak National Centre for Human Rights, spoke about transparency in political and public life. As a representative of a national human rights institution, he said that it was important that governments accept criticism from such independent organisations as well as from civil society. Mr Varga also highlighted the link between human rights, the rule of law and the fight against discrimination. Anti-discrimination and equality are central concepts of legal culture, and democracy cannot exist in a State that does not value diversity. In this regard, Mr Varga considered that Slovakia benefitted greatly from EU membership, which had encouraged the consolidation of its anti-discrimination framework. 

Ján Ivančík, Legal Counsel at Transparency International Slovakia, focused on the relationship between transparency and the rule of law. He said that the watchdog role played by CSOs is essential in both difficult countries and those with high standards, and cited money laundering as an example of the paradox whereby countries with high rule of law standards are not always the most transparent ones. Mr Ivančík also mentioned the need to focus on monitoring the actual implementation of the law rather than the content of legislation. For example, Slovakia had good legal frameworks on topics like freedom of information and transparency of public contracts, but what mattered was their implementation. 

Several speakers commented on the effect of the rule of law on people's daily lives. Helena de Felipe Lehtonen, EESC member and vice-president of the FRRL Group, explained that the rule of law has become an essential concern for social partners, employers and workers alike. In 2019, the European social partners adopted a statement, emphasising their full commitment to the rule of law. Ms de Felipe Lehtonen also brought up the link between the rule of law and growth, citing the 2020 EESC opinion on the topic. The rule of law is important from an economic perspective because it ensures security of property, enforces contracts and stipulates checks on governments and on corruption and private capture. 

Ozlem Yildirim, EESC member and vice-president of the FRRL group, then turned to the role of the rule of law in protecting and promoting workers' rights and non-discrimination. The social partners have a direct interest in the rule of law because the right of association, the right to collective bargaining and the autonomy of social partners can only thrive in full-fledged democracies. Ms Yildirim therefore considered it crucial for the EU to acknowledge how social dialogue, collective bargaining and democracy at the workplace contributes to the stability of democracy. With the rise of populism and its pattern of attacks on fundamental rights, civil society and institutions putting democracy under threat, Ms Yildirim advocated for EU action through all available means.

Closing the discussions, Mr Pîrvulsecu emphasised the essential role of civil society in defending the rule of law, especially in the context of the illiberal model that is currently attacking rights, civic space and the protection of the rule of law. 

Background

The hearing on The rule of law: why should we care? took place on Wednesday 6 July at the Representation of the European Commission in Bratislava, Slovakia. It was jointly organised by the EESC Fundamental Rights and Rule of Law Group (FRRL group) and the International Bar Association (IBA) and brought together EESC members of the FRRL group, Slovak law practitioners and other stakeholders. The public event took place before the FRRL group country visit to Slovakia on 7 and 8 July. That country visit is the 17th country visit organised by the FRRL Group after Romania, Poland, Hungary, Austria, France, Bulgaria, Italy, Denmark, Germany, Ireland, Czech Republic, Spain, Cyprus, Lithuania, Greece and Finland. Country visit reports are available on the web section of the FRRL group.

The FRRL group was created in 2018 as a horizontal body within the European Economic and Social Committee. It was tasked with enhancing the contribution of organised civil society to strengthening fundamental rights, democracy and the rule of law and responding to the shrinking civic space for civil society organisations. Its work is structured around an approach that covers areas that are considered particularly important and relevant to the work of the EESC: fundamental rights of the social partners, freedom of association and assembly, freedom of expression and freedom of the media, the right to non-discrimination and the rule of law. 

Established in 1947, shortly after the creation of the United Nations, the International Bar Association (IBA) is the foremost organisation for international legal practitioners, bar associations and law societies. It was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice. In the 75 years since its creation, the organisation has evolved from an association made up exclusively of bar associations and law societies, to one that incorporates individual international lawyers and entire law firms. The present membership is comprised of more than 80 000 individual international lawyers from most of the world's leading law firms and some 190 bar associations and law societies spanning more than 170 countries.

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The rule of law: understanding it better to defend it better