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Editorial
8-9/2004 |
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From arbitrary to constitutional government
Nowhere in the world does reality conform with the letter of the law absolutely. Jurists like Antonio di Pietro in Italy, Baltasar Garzón in Spain and Wolfgang Schaupensteiner in Germany have become famous for investigating crime in high places. Their campaigns against corruption and abuses of power show that even in the European Union not everything is done by the book.
But the difference between the law on paper and the law in practice is particularly marked in poor countries – and a painful experience for vast populations. Anyone comparing life in Lagos and London, Manila and Minneapolis or Bogotá and Barcelona will soon realise that citizens of the former colonial powers enjoy an exceptionally high level of security provided by reliable law enforcement. For most people living in poor countries, such a state of affairs must appear utopian beyond imagination. Nonetheless, successful migrants are in a position to report its reality.
Living in a state of lawlessness does not only imply fear of violence, torture and murder. It also means having to pay bribes to deal with endless harassment and having no chance or hope of bringing about change (Martina Sabra, p. 320). Such conditions cannot be corrected from outside. In no other area of development policy is ownership as crucial as in the field of good governance.
For a legal system to work, the judiciary needs to be independent. It must not appear to be influenced and definitely not controlled. Judicial authority is thus a particularly sensitive element of modern statehood. Therefore, governmental development policy can only give advice where such advice is explicitly requested and does not call into question the integrity of local institutions. Only under these conditions does capacity building and exchange of experience make sense. But even where an authoritarian regime shows no interest in juridical advice, development policy is not totally impotent. In today's increasingly networked global society, civic organisations can sometimes provide support and exert cross-border pressure for reform (Marie-Christine Johannes, p. 324).
Public vigilance, freedom of speech and transparency of official action help construct a state defined and controlled by a constitution. Indeed, they are imperative. The case of India provides evidence. It shows that an active and responsible judiciary alone is not enough to ensure the rule of law.
South of the Himalayas, judges have for decades ruled against state authorities and passed orders in favour of civil society organisations such as human rights campaigners. In doing so, they have sparked intense debate and changed perceptions of the law. But their judgements need to be implemented by the very administrations the courts repeatedly rule against. Therefore, India is still far from becoming a model functioning state, even though its courts do set standards and send out signals of democratic credibility (interview with law professor Upendra Baxi, p. 326).
It is a well-known fact that India’s courts are rooted in Anglo-Saxon legal tradition. But the Supreme Court in Delhi rejected the British notion that the sovereign power in any democracy is the elected parliament. In view of the authoritarian tendencies of Indira Gandhi, who was prime minister at the time, the country’s top judges ruled that the constitution had a basic structure. Its norms included features such as democracy and the rule of law. According to the Supreme Court, even an elected parliament has no authority to change these fundamental principles. Making this decision, the judges had in mind the basic law/constitutional court model adopted in Germany and Austria.
Where the law is a product of centuries of steady, democratic evolution, as in Britain, such institutions are not urgently needed. Case law provides precedents for guidance. It is a different matter, however, in societies which have undergone the traumatic experience of colonial rule or dictatorship. They need a court of last resort capable of monitoring all state agencies, defining the limits of their powers and systematically expunging any legal traditions or norms incompatible with democracy.
The German and Austrian model – similarly adopted in Spain – has proven useful in many democratisation processes in Latin America since the 1980s (Anja Schoeller-Schletter, p. 330). That is no coincidence. After all, the model was specifically designed to overcome the systematic injustice of the Nazi era – and the corresponding institutions in Spain were established for a related purpose after Franco’s regime had ended.
Dr. Hans Dembowski
Editor in Chief D+C
euz.editor@fsd.de
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