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This paper explores the concept of the rule of law and how it has been applied by nations in transition. The rule of law is understood in broad terms incorporating democratic ideas such as supremacy of law, equality, and separation of powers as well as human rights principles.
Consideration has been given as to whether there is in fact a revival. The paper demonstrates that the rule of law is increasingly being used as a tool by the international community through incorporation into mission statements and aims in addition to terms of aid. This however has not pointed to the fact that all States in transition are embracing the rule of law in its true sense. On the contrary, what is apparent is the use of the concept by some States to restrict the rights of its citizens and consolidate semi-authoritarian powers that are in control.
The rule of law project should ideally focus on performance, integrity, transparency and accountability, and treatment of members of vulnerable groups, when analyzing the level of rule of law within a State. This can further be broken down into the procedural elements and the substantive elements.
In terms of procedural elements, the focus is on the systemic mechanisms in place which help solidify the rule of law within the State. While constitutional, judicial, legislative and prison reform play a vital role in transforming the procedural aspects of a State’s rule of law, economic reform is seen to be playing a part in increasing the rule of law. This is based upon the new economic investment and opportunities which are opened up through clear, enforced and predictable commercial laws and procedures.
On the substantive elements of the rule of law approach, it is argued that the rule of law should address normative aspects governing how citizens relate to each other and the government. The environment within a State is vital to successfully utilizing any mechanisms dealt with under the systemic dimensions of the concept. Through ending corruption, restoring faith in the system and overcoming the misconception of the elite who are apprehensive of losing their position in society, it will be possible to have a democratic society governed by the rule of law.
Distinctions have been made between the rule of law and the rule by law. Rule by law is considered to be when those in power are using the laws within a State to strengthen their position of power while marginalizing and preventing democratic reform. This distinction is important when considering the true extent to which a State is willing to reform itself or whether they are merely employing the rhetoric to appease citizens and the international community.
Finally, best practices and recommendations are provided if undertaking a study of the rule of law within a State. The checklist approach is advised if consideration is to be given to the ordinary person’s perspective especially those marginalized groups within a State. It is further advised that this should then be utilized to identify areas where improvement is needed together with the attendant strengths and weaknesses. Such an approach will be useful for advocacy and policy work in understanding what areas need to be targeted and will inform the devising of approaches to increase political will.
Lead authors: Salma Yusuf and Dominique Mystris
Date: March 2012
Published by the Consortium of Humanitarian Agencies, Sri Lanka