Is the rule of law under threat?

As the world struggles to navigate the unsettling reality of COVID-19, there has been considerable debate around special emergency legislation, which has restricted individual rights and freedoms in the interests of public health.

The membership of the European Union is based upon shared common values, one of which is the rule of law. Article 2 of the Treaty on European Union provides that the union is founded on values such as freedom, democracy, equality, and respect for human rights, as well as protection of the rule of law.

While many agree on the importance of the rule of law, much debate exists over a definitive definition, and its precise elements may prove somewhat elusive, even for those working within the law.

In a communication, Further Strengthening the Rule of Law within the Union (3 April 2019), the European Commission set out an EU definition of the rule of law.

In doing so, it acknowledges the growing pressure it faces, and also the steps to be taken to protect and strengthen it.

The definition affirms that “all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts”.

It also includes, among other things, a prohibition on arbitrary exercise of executive power, legal certainty, transparency, respect for fundamental rights and equality before the law.

As we have all witnessed, however, the rule of law has faced considerable threat in recent times, even in societies such as Hungary, Poland and the United States.

Populist rhetoric and policy have gained ground, placing further pressure on the rule of law, democracy and human rights.

The new reality

The current pandemic has created a situation ripe for abuse, where the rule of law may be irreversibly broken down under the guise of emergency powers.

As the world struggles to navigate the new and unsettling reality that COVID-19 has brought, there has been considerable debate around special emergency legislation that has restricted individual rights and freedoms in the interests of public health as a whole.

Many governments around the world now have significantly enhanced powers to restrict the movement and freedoms of citizens, affecting how each of us live our day-to-day lives.

While emergency legislation gives the Irish Government the power to restrict movement and travel, people still enjoy the protection of rights contained, not only under the Constitution, but also under international instruments, including the European Convention on Human Rights.

The measures taken must be legitimate, proportionate and necessary. In a recent podcast by the International Bar Association, Rule of Law in the Time of COVID-19, the director of the IBA’s Human Rights Institute (IBAHRI) commented on the balancing act that was being undertaken between the constraint of individual freedoms and that of the public-health interests of society at large.

She urged that, in exercising special powers, there were three key elements that had to be followed:

• They must be limited in time,
• They must be kept under review, and
• The use of the power has to be independently monitored.

In this regard, the announcement by the Dáil of the establishment of a special COVID-19 Committee to provide effective oversight and accountability was a welcome development.

Wolf in sheep’s clothing

The UN has warned of the risk of the pandemic being used as a pretext to undermine democracy and quash legitimate dissent. It emphasises that fairness, justice, and the rule of law are essential to strengthen and support efforts against COVID-19.

In a recent declaration High Representative Josep Borrell, on behalf of the EU, affirmed “the need to pay special attention to the growing impact of the pandemic on all human rights, democracy and the rule of law”, and cautioned that it “should not be used as a pretext to limit democratic and civic space, the respect of the rule of law and of international commitments”.

Recently, Hungarian Prime Minister Viktor Orban, who has faced considerable criticism during much of his time in office, introduced emergency legislation without a time limit and with no capacity for review or monitoring.

This effectively created rule by decree, with no end date, introducing excessive prison sentences for those breaching quarantine restrictions or for spreading false information.

The government has advised that this will be brought to an end by the end of June. However, it remains to be seen what the long-lasting effects are on the rule of law in Hungary.

The IBAHRI issued a statement urging the Hungarian Parliament not to pass the legislation, as it declared that it is in clear contravention of international human rights standards. The real fear is that these powers will not be relinquished once the pandemic has passed.

Unprecedented step

Poland has also faced significant criticism, not least for its treatment of the judiciary, with numerous attempts to diminish their independence and power through repressive disciplinary measures.

In January, in an unprecedented step, European judges joined their colleagues to march outside Poland’s Supreme Court to lend their support and solidarity. At at the end of April, the European Commission launched an infringement procedure regarding the new disciplinary regime for judges.

In response to developments such as those in Poland, the Council of Bars and Law Societies of Europe issued a resolution on the rule of law, asserting that “breaches of democracy, the rule of law, and the violations of fundamental rights will not be tolerated”.

In the US, President Donald Trump has faced substantial criticism over his handling of the pandemic.

This has ranged from minimising the risks of the virus, to cutting funding of the World Health Organisation (WHO) and, more recently, claiming that he alone as the president had the power to make the decision to reopen the country early.

While he has now reneged on that last assertion, he has since announced that the US will terminate its relationship with the WHO, as well as authorising sanctions and additional visa restrictions against International Criminal Court personnel in light of an investigation into war crimes in Afghanistan.

In April, the Department of Foreign Affairs published a joint statement with other European countries expressing deep concern that principles, including the rule of law, are at risk of violation with the adoption of extraordinary measures.

It also expressed support for the initiative of the European Commission to monitor the application of these measures. Notably, neither Hungary nor Poland were among the cosignatories.

What lies ahead

As we continue to acclimatise to the new world that COVID-19 has thrust upon us, concern grows around how emergency measures will continue to be implemented.

This is not only in terms of how the law itself has been drafted and is being implemented by the executive, but also the manner in which the restrictions are being policed and enforced, and justice is being delivered.

Access to the courts and to justice remains a very real concern and, hopefully, novel solutions will be found that ensure the right is effectively protected.

The European Commission has committed to conducting a ‘Rule of Law Review Cycle’, including an annual report, with the first report monitoring the situation in each member state expected in autumn 2020.

In light of the uncertainty currently faced by the world, and the measures already taken in some countries, it remains to be seen whether steps such as this to strengthen and protect the rule of law will succeed.

Nevertheless, it is clear that the rule of law is something that is vital, perhaps even more so in a post-COVID world.