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The Misrule of Law

MADRID – Once upon a time, despots simply acted like despots. Nowadays, they dress up their dictatorships in the trappings of the rule of law. Consider Ukrainian President Viktor Yanukovych. Less than a year after his narrow victory over opposition leader Yulia Tymoshenko in the 2010 presidential elections, Tymoshenko was arrested on trumped-up contempt charges. She is now serving a seven-year prison sentence for supposedly abusing her position as Prime Minister by signing a gas deal with Russia – and awaits the completion of two more trials.

Unlike most politically motivated trials, Tymoshenko’s case benefits from the oversight of the European Court of Human Rights (ECHR), which recently ruled that her pre-trial detention violated the European Convention on Human Rights. But Yanukovych continues to feign respect for the rule of law, insisting that he cannot consider granting her a presidential pardon until the legal proceedings have been concluded.

This type of “misrule of law” is not unique to Ukraine. Russian President Vladimir Putin has consistently used the courts to neutralize his opponents. Currently, the anti-corruption activist Alexei Navalny, a prominent critic of Putin’s regime, is being prosecuted for allegedly conspiring to embezzle from a state-owned timber firm, while Sergei Magnitsky, a lawyer who died in prison after accusing several Russian officials of large-scale embezzlement, is being tried posthumously on conspiracy charges.

Similarly, opposition leaders in Zimbabwe have been prosecuted for treason; sodomy charges were leveled against the Malaysian opposition leader Anwar Ibrahim; and former Belarusian presidential candidate Andrei Sannikov was imprisoned for allegedly organizing mass protests. Iran pursued mass prosecutions of government critics following President Mahmoud Ahmadinejad’s controversial reelection in 2009, and it now appears that some of Ahmadinejad’s allies may themselves become collateral damage in his conflict with Supreme Leader Ayatollah Ali Hosseini Khamenei, facing politically motivated criminal trials.

Of course, history is replete with examples of autocrats perverting justice: Stalin had his Moscow Trials, and Hitler had his People’s Court. But the authority of those dictators did not rest primarily on the rule of law; that of their modern counterparts does.

The sociologist Max Weber described three bases of authority: traditional, charismatic, and rational (legal). The first has fallen away, its accompanying social structures superseded by industrialization, urbanization, and feminization of the workforce, while the oft-seen link with despotism has delegitimized the second.

As a result, legality has emerged as the main source of political legitimacy in the modern world. Consequently, those who are more interested in arbitrary authority than legality are using the language of law to legitimize their actions – and weakening the rule of law in the process.

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Barely a week after prosecutors accused Tymoshenko – based, yet again, on mere hearsay – of organizing the 1996 assassination of a member of parliament, Yanukovych proclaimed: “Our goal is to ensure real economic and political independence, strengthen democracy and the rule of law, and establish Ukraine as [a] young, powerful, and modern state.” This disturbingly common disconnect between official words and deeds devalues the rule of law in the eyes of the public.

Two separate discussions about the rule of law are currently underway: an erudite, theoretical debate among elites at think tanks and universities, and a more general – and more consequential – popular “conversation” predicated on frustration with legal abuses. From southern Europe to Malaysia and China, citizens are taking to the streets to demonstrate their desire for equity and justice. They may not be able to define the rule of law precisely, but they know when it is being perverted.

In countries with an engaged civil society and room for debate, the discourse on the rule of law can be wide-ranging and substantive. Too often, however, governments ignore or distort public aspirations, stripping the discussion of all but officially approved platitudes. In order to reverse this trend, a third discussion, one that engages the international community, is needed. While such a discussion is beginning to emerge in response to the Tymoshenko case, the ECHR is a lonely voice, and the international community has so far hesitated to challenge violations of the rule of law publicly.

At the same time, some institutions that could provide effective international oversight have been coopted, as demonstrated by Libya’s leadership of the United Nations Commission on Human Rights while under the control of deposed dictator Muammar el-Qaddafi. And others have been far too willing to accept at face value submissions from countries where the rule of law is routinely abused. For example, while Interpol recently rejected Russia’s request to pursue the investment banker William F. Browder (a fierce critic of the Russian government since the death of his lawyer, Magnitsky), it should apply Article 3 of its constitution, which bars it from participating in political matters, much more scrupulously.

The response to legal abuses has often been timid or declaratory, carried out by individual countries or communities like the European Union in response to specific violations. For example, the United States recently banned 18 Russian officials, most of whom were allegedly linked to Magnitsky’s death, from traveling to the US and froze all assets that they hold there.

But, while unilateral pressure can make a difference, the rule of law’s defenders must be willing to apply it convincingly. The EU’s talks with Ukraine on a proposed Association Agreement, for example, provide some leverage, which the EU should not hesitate to use.

At the same time, the potential impact of targeted action by individual governments is not enough. Protection of the rule of law must become an international priority – and that will require strong leadership. The EU – which was not only founded on the rule of law, but is also among its most vocal defenders in its diplomatic relationships – should fill this role. Beyond the ECHR and its rulings in cases like that of Tymoshenko, a strong European voice would go a long way toward galvanizing broader international action.

Copyright: Project Syndicate, 2013.

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