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Issues: Importance of Rule of Law in a Democracy Underlined

Washington -- Ensuring fundamental independence of the judiciary and legislature from the executive branch of government "are crucial," to any society based on the rule of law, according to Edward Errante, a leading expert on rule of law issues in emerging democracies.

In a recent telephone interview from Paris, Errante, who teaches law at the University of Paris, said that the "American system is not the only way," of ensuring the rule of law. The important point is that "rule of law values" be embedded in the political system.

Errante has lectured on rule of law issues in many parts of Africa, especially Francophone Africa, and is about to visit Kazakhstan and, possibly, Tajikistan, Uzbekistan and Turkmenistan. Although Africa and Eastern Europe have vastly different histories and problems, he said many of the countries in both continents share an important task in common -- building democracy.

In Francophone Africa, for example, the legal and political system has been influenced "by the Fifth Republic in France which is democratic, but based on a tradition of a strong executive and weaker parliament, although France has amended its constitution this summer and increased the power of the legislature," Errante remarked. In Central Europe and the former Soviet Union, by contrast, "the legacy is the Soviet model," with its tradition of rubber stamp legislatures, he added.

As far as building an independent judiciary is concerned, Errante said a number of elements are important including:

-- A commitment to the idea both constitutionally and in practice.

-- The need to provide adequate funds and resources to the judiciary.

-- A requirement for other branches of government to provide the judiciary with relevant information and other materials.

-- Sufficient insulation from political pressure from both the legislature and the executive. For example, in the United States Errante pointed out that federal judges have lifetime tenure, which can only be taken away for certain specific, rare offenses.

-- Giving the judiciary fundamental powers to govern and police itself rather than giving that authority to other branches of government. In some countries, "judges are civil servants," who can be hired and fired according to the same procedures as other government employees, Errante said.

Maintaining the independence of the legislature against unreasonable encroachment from the executive requires attention to a number of important constitutional provisions, Errante noted, including:

-- Ensuring that the legislature is not "just a deliberating body, but an institution with real powers" to challenge the executive. These powers should be "spelled out in detail."

-- Providing the legislature with the means "to conduct oversight of the executive branch, most importantly through a system of legislative committees," with the authority to question executive leaders.

-- Enabling the legislature "to originate and pass its own bills," and not to just rely on the executive to introduce its own proposals for passage into law.

In addition to the specific protections cited above, Errante stressed the importance of encouraging "a democratic culture with accepted, enforceable standards of ethical behavior." Laws to enforce those standards, consistent with a country's culture, are needed at every level of government, he added.

Such legal protections would include campaign finance laws, statutes to regulate lobbying, procedures for regulating politicians' use of government funds and the purposes of such use, and a requirement for general transparency in government to ensure the public that these standards are being followed, Errante explained.

Above all, citizens must be assured that their basic civil and human rights are protected, rather than violated by government, Errante argued. "A bill of rights, or similar constitutional provision, must be a basic component of every democracy," he added.

The scale of the task involved in democracy building and ensuring the rule of law is evidenced by the fact that even mature democracies are still dealing with many of these issues, Errante concluded.

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