x Abu Dhabi, UAETuesday 25 July 2017

To enforce 'rule of law', the law must first be defined

A new survey has revealed that the UAE's public institutions are among the most well-developed and corruption-free in the world. But increased clarity on regulation would attract more foreign investors.

The UAE ranks first in the Middle East and North Africa, and 13th in the world, in adherence to the rule of law, according to the recently released World Justice Project (WJP) rankings.

The 2011 Rule of Law Index, covering 66 countries, makes a number of conclusions but says public institutions in the UAE are for the most part well developed and corruption-free, and government officers are held accountable for misconduct.

But in another new report on the UAE, the Arab Centre for the Development of the Rule of Law and Integrity (ACRLI) finds that several legal hurdles still deter investors from considering the UAE as their ultimate business hub. Among these are the lack of regulations in certain crucial fields such as labour, alternative dispute resolution and immigration.

These differing interpretations of the UAE's legal climate add to the unpredictability of legal interpretations and raise a number of questions: first and foremost, how will the nation respond?

But the conclusions may also be related to a more fundamental issue, namely, ambiguity in the use of the term "rule of law" among legal scholars.

To understand why we must first consider the history of the legal concept.

The distinguished British judge and scholar Tom Bingham wrote the 2010 book The Rule Of Law because, he said, while "the expression was constantly on people's lips" its meaning was poorly understood and misconstrued.

The "rule of law" concept is traced originally to Aristotle, who said it is better for the law to rule than any of the citizens. But credit for coining the term is usually given to professor AV Dicey of Oxford, who used it first in 1885.

Dicey said "rule of law" is the principle that no one is above the law. The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted. More, it is enforced in accordance with established procedural steps known as due process, the constitution and the constitutionality of all laws.

Mr Bingham adopted a rather broad definition, insisting that the rule of law has many essential components, including legal certainty, equality and fairness.

In his reading, certainty meant that laws must be applied in a precise and predictable manner. Equality implied that all cases which are alike should be treated the same, a notion which protects every citizen from unjust discrimination by the state, including discrimination based on ethnicity, sexual identity and religious views. And fairness required that laws must be published for each citizen to see, to prevent unfair discrimination and uneven enforcement.

But the question arises, what if such a definition is too loosely stretched? Does "rule of law" mean that the law must afford adequate protection of fundamental human rights at all times in all places?

A so-called narrow definition of the rule of law was promulgated by Joseph Raz of Oxford. He argued that a non-democratic legal system, based on the denial of human rights, conforms to the requirements of rule of law better than any of the legal systems of the most democratised systems in the world.

It is not difficult to notice that in this narrow definition, civil liberties have no place. Rather, the essence of this definition is adherence by the state to its own laws.

These two opposite definitions of the same concept can not easily be merged to form a fair and just definition. That said, most experts do prefer a definition that includes inclusions of democratisation, respect of human rights and civil liberties, and good governance.

The UAE ranking in the World Justice Project index is a triumph to the country's legislative and regulatory authorities, yet it seems that the project's index parameters used the narrow definition rather than the broad one. As such, the UAE's legal system could benefit from using the wider definition, which in turn could provide the much needed confidence in that nation's markets that long-term investors seek.

Economic development can occur in societies where the thin version of the rule of law exists. But deep-rooted and robust economies such as the UAE's depend on clear laws and a strong, independent impartial judiciary so that citizens, institutions and foreign investors can be free from arbitrary forces which only the wider and thicker definition can uphold.

Thick or thin, the rule of law enables people the opportunity to fulfil their dreams, individually and collectively.

But the first step is to define it. The challenge then is to maintain it and to widen its scope and reach.

 

Diana Hamade is an Emirati lawyer and legal consultant. She is the founder of International Advocate Legal Services in Dubai