Legislators Above the Law: The Erosion of Rule of Law in Today’s Politics

Article By: Lucia Galvan / Graphic By: Naya Moukabary

The principle of the Rule of Law has been a guiding principle of governance in societies for centuries. Diverging from "Rule by Law," whereby authorities make use of rules of law as instruments of control, placing themselves above such rules of law, the Rule of Law provides that all individuals and institutions, regardless of their powers, are subject to the jurisdiction of a law. This principle is widely accepted as a cross-cultural asset. Interdependence among human rights, democracy, and the rule of law is repeatedly emphasized by the United Nations General Assembly as a foundational principle. Additionally, the UN has made the Rule of Law a central goal among its Sustainable Development Goal 16 (SDG16) as it calls for promoting peace, justice, and strong institutions. Among its outlines of SDG16, the Rule of Law is viewed as critical to promoting equitable and inclusive societies as well as ensuring sustainable development. Central to this is an aim to strengthen the rule of law nationally and internationally to promote equal access to justice for all citizens.

In a genuine democracy, it is the citizens who select their representatives, and those representatives are held accountable to the same laws they apply to the populace. The sustenance of democracy hinges on this fundamental principle, particularly in terms of honoring electoral outcomes and ensuring that public officials are elected in accordance with the people's will. However, adherence to the Rule of Law solely during electoral cycles is insufficient. For democracy to endure and remain robust, a self-reinforcing equilibrium must exist. This necessitates that political leaders acknowledge the constraints that democracy imposes on their authority, especially regarding the safeguarding of citizens' rights. Institutions functioning independently of individual influences play a critical role in maintaining this equilibrium. In such frameworks, disputes are resolved according to pre-established regulations, guaranteeing that stability is anchored in institutional integrity rather than individual character. When governmental bodies legislate based on these principles, it is imperative that they also adhere to those same laws. Nevertheless, the endurance of democracy under the auspices of the Rule of Law is increasingly precarious. Its continuation is ultimately contingent upon the actions of the citizenry. Should voters elect leaders who overtly flout the law, the entire democratic structure could swiftly disintegrate. This precariousness is particularly pronounced in societies experiencing conflict, where mere laws and regulations are insufficient to alter behaviors, restore societal order, or secure democratic principles. In such contexts, enhancing the Rule of Law encompasses more than merely reforming judicial and legislative bodies. It also necessitates that military, policing, and correctional systems are firmly anchored in legal tenets. Absent this foundational support, the Rule of Law remains at risk, and democracy cannot prosper.

Examples from recent history demonstrate the natural weakness of the Rule of Law. In America, President Richard Nixon's actions in the Watergate crisis revealed a leader's potential to exploit government powers to prevent justice and raise himself above the bounds of law. While Nixon stepped down before he could be subject to actual impeachment proceedings, he himself never faced criminal charges, and the presidential pardon he received exempted him from overall responsibility. This example caused many Americans to wonder if political power confers exemption from those same laws that apply to regular citizens. Similarly, more recent events such as the Capitol attack of January 6th document again the penchant among political authorities to defy democratic bounds. Many of those politicians responsible either through incitement or facilitation of events that day escaped severe consequences, thus reaffirming an appearance that some people operate outside a system of legal responsibility. Such events chip away at faith in institutions and demonstrate how delicate that self-enforcing balance is when leadership is exempt from responsibility for its acts.

On the other hand, there have been situations when accountability has been maintained and the Rule of Law strengthened. In South Korea, ex-presidents Park Geun-hye and Lee Myung-bak were tried and later imprisoned following charges of corruption. These prosecutions sent a clear signal that having a political office does not make a person above the reach of legal responsibility and consequently improved South Korea's democratic institutions in terms of legitimacy. Another example is that of Brazil's Operation Car Wash, which resulted in investigations and convictions of many politicians, including a sitting president for corruption-related crimes. As controversial as it is, such prosecutions reinforced that those in public office remain subject to the same standards as those whom they serve as constituents and consequently sustained some credibility in democratic leadership.

The presented contrasting instances exemplify the vulnerability inherent in the Rule of Law. When transgressions remain unaddressed, the foundational structures of democracy begin to deteriorate. Citizens may start perceiving laws as malleable instruments for the elite, instead of as universal doctrines designed to safeguard all individuals. Conversely, when institutions effectively hold leaders responsible for their actions, the Rule of Law strengthens, thereby reinforcing democracy's commitment to equality under the law. The endurance of democracy relies not solely on the codified tenets of the Rule of Law but also on the proactive engagement of both institutions and citizens in demanding accountability from those in positions of authority. In the absence of such a dedication, democracy risks devolving into a mere formality.

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