Saturday, 13 June 2009

• Democracy and Rule of Law in Fiji

  At the beginning of the twenty-first century, two sets of phenomena are challenging our understanding of democracy and democratization.

  At a bare minimum democracy requires: sovereign elected institutions; universal adult suffrage; free, competitive, fair and recurring elections; multiple serious political parties and a plurality of sources of information.

  The basic conditions for democracy, in other words, involve institutionalized guarantees for participation in public contestation for power.

  In contrast, when we approach the issue of democratic substance – what makes a good democracy – we can identify eight dimensions on which an empirical determination of quality can be made: (1) the rule of law; (2) Participation (3) Competition; (4) Electoral Accountability; (5) Inter-institutional Accountability; (6) Responsiveness to the needs, interests and expectations of citizens; (7) Freedom (consisting of political, civil and socioeconomic rights); (8) Equality/solidarity

  Prima inter pares among the dimensions of democratic quality is the rule of law, the degree to which the rule of law exists in a given polity reflects the entire democratic quality of that regime.

  Indeed, the rule of law may be understood as the foundation upon which every other dimension of democratic quality ultimately rests.

  For Dicey, who coined and popularized the phrase, the concept represented one of the two legs upon which the constitutional order of England consistently rested since the Norman Conquest of 1066 (Dicey 1908).

  In contemporary use, as Kleinfeld (2006) observes, the phrase is commonly brandished by politicians, practitioners and scholars to imply at least five meanings that are in fact distinct, but seldom clearly differentiated by those who invoke the term: (1) government bound by law; (2) equality before the law; (3) law and order; (4) predictable, efficient justice, and (5) public power respectful of fundamental rights.

  We can divide conceptions of the rule of law into two broad types: thin and thick.

  Thin, formal, or negative conceptions of the rule of law demand the essential separation of law from politics (or ‘autonomous law’), and focus on the minimal conditions necessary for law to restrict sheer arbitrariness in the ruler’s use of power.

  The constitutive attributes of a thin conception, therefore, stress formal or procedural aspects of the rule of law: laws must be open and public so that they can act as a guide to people (there should be no secret laws); the meaning of laws must be reasonably clear so that ordinary people can be guided by them; laws should be relatively stable, so that people can plan their lives by them; laws must be prospective, not retroactive; and the making of laws themselves must be governed by known, clear and relatively stable rules.

  In contrast, a thick, substantive or positive (though anti-positivist) conception of the rule of law, accepts all the constitutive attributes of the thin definition, but at the same time insists that the rule of law cannot be divorced from fundamental elements of political morality and institutional practicality.

  A substantive democracy, accordingly, is characterized by the presence of a democratic rule of law, which itself embodies five main dimensions:
  (1) protection of civil freedoms and political rights;
  (2) independent judiciary and a modern justice system;
  (3) institutional and administrative capacity to formulate, implement and enforce the law;
  (4) effective fight against corruption, illegality and abuse of power by state agencies;
  (5) security forces that are respectful of citizens rights and are under civilian control.

  Though the two concepts are not synonymous, the affinity between the democratic rule of law and liberal democracy is clearly profound and multidimensional.

  Even a minimal, electoral democracy cannot exist unless rulers comply with at least one rule – that which regulates who should occupy the position of ruler given the outcome of general elections.

  More broadly, the virtues of the rule of law are substantially the same as those of the democratic process, in three key respects: the rule of law upholds the political rights of a democratic regime; it protects the civil liberties and rights of the entire population (including minority and other disadvantaged groups); and it establishes ‘horizontal accountability’ – networks of responsibility ‘which entail that all public and private agents, including the highest state officials, are subject to appropriate, legally established controls on the lawfulness of their acts’ (O’Donnell 2005, 7).

  Indeed, as Carothers suggests, properly conceived the interrelation between the rule of law and liberal democracy goes beyond democratic processes to permeate institutions and spheres across society: The rule of law makes possible individual rights, which are at the core of democracy. A government’s respect for the sovereign authority of the people and a constitution depends on its acceptance of law. Democracy includes institutions and processes that, although beyond the immediate domain of the legal system, are rooted in it. (Carothers 2006, 4–5).

  At the turn of the twenty-first century, in sum, the rule of law is most appropriately conceptualized not merely as a check on naked tyranny, an elixir for sustainable economic growth, or a set of institutional attributes, but as a key dimension (arguably the key dimension) of democratic quality.

  The banana republic of Frank Bainimarama fails the bare minimum definition of a “Democracy” and fails both the thin and thick definitions of the “Rule of Law”, whether conceptualized back in 1908 by its originator Dicey or by his present time contemporaries namely Magen & Morlino; it is simply NAKED TYRANNY.

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