Rule of Law and Separation of Powers

Democracy is often equated with a lot of things which don’t necessarily result from it. When stripped to its essentials, it is a derivative of two Greek words “demos” – the people and “cratia” – power. How this people power translates into a progressive republic is more complex than merely holding referenda or elections. Two central pillars would be “Rule of law” and “Separation of powers”. Often times, since these seem to coexist in the West today, it is assumed that implementing an elected democratic form of government automatically brings these about. But if we look at several developing world democratic experiments, this does not hold true. These are not a result of democracy but a basic foundation upon which a progressive democracy can sustain. Going back to their origin, both the fundamentals originated in the West in times of autocracies and democracy got added on much later, in fact centuries later. Though today when democracy is implemented be it in the Middle East or Africa, it is sort of done the shotgun way – multiparty system and elections with little focus on much else and violent chaos is often the result. Perhaps it is time to revisit these ideas as ‘founding principles’ and not something to be overlaid as an after thought. And to briefly revisit their history, here is a go at that.
 

‘Rule of Law’ as is well known is an old concept and many nations claim early precedents to it but the most famous one is the ‘Magna Carta’ which was drafted in England in the early 13^th century. This was a time when kings ruled nations and the charter was a law meant to ensure that the King ruled as per some laws and not as per arbitrary decrees. This charter did not remain in force for too long as the Kings did not like their hands tied down by some laws when they truly wanted to enjoy absolute authority. However the charter was revoked several times throughout the English history and ‘Rule of Law’ became a reality only in the 16^th or 17^th century. Democracy as we know today with voting rights though happened much later in the 20th century only. So that was a pretty long road. Today all nations write a constitution which essentially is the law laid down for that country. But in most developing countries this law remains on paper and there is really no enforcement in reality. People in power often manipulate the system to suit their needs. In effect there is no rule of law and that leads to a downward spiral of increasing lawlessness, violence and crime. In no way such a society can enjoy the positive side of liberty as democracy becomes a free for all anarchy. The first anchor for all progressive nations is the rule of law implying both in terms of the ruling classes learning to respect and abide by the constitution as well as the common people having a fair and easy recourse to their lawful rights. Once the rule of law is well entrenched in the social psyche, a progressive democracy can take root else it becomes a form of elected autocracy or worse still pure mobocracy. The constitution ought to have a great deal of sanctity not just on paper but in day to reality for a peaceful and just nation.

The second founding principle for a progressive republic is ‘Separation of powers’. Again going back to its roots, the idea was really popularized by Montesquieue few centuries back. Once again, it was under a Kingdom where the King was the full and final authority but under him, there was separation of powers between the three branches - the Executive, the Legislative and the Judiciary. For some reason, the idea has been directly transported to a democracy, of course minus the King. In a democracy there are several checks on a government – regular elections and media being two critical ones. While there is a strong case for Judiciary being independent, it is not clear to me why the Legislative and the Executive have to be separate. In most Westminster style democracies, the Upper House is a mere formality and is not even elected. In some nations like the US where both houses are elected although for different terms, they don’t serve any good purpose. If the same party controls both the houses there is too much collusion and if different parties control them, there is unnecessary conflict often meant to stall the Executive for political rivalry. Perhaps realizing the futility of such a system, many nations have already switched to a Unicameral system. In diverse nations, a federal system with power division between Center and States tends to provide a good degree of checks and balances. Other than that, the more independent and autonomous the various functions or power centers in a nation are, the better will be the checks. High degree of judicial independence is crucial also for the Rule of law. Likewise higher the independence of Central bank, investigative Agencies etc. the more likely that a nation will have balanced progress. Concentrated power tends to subvert systematic governance. Separation of powers is another founding principle of a truly progressive Republic.

Once such founding principles are in place and deeply entrenched in a nation’s collective and individual psyche, a decentralized and evolved system like Democracy can take root and be liberal. Even if a nation is not on the road to democracy, these two founding principles can go a long way in enabling sustained good governance as checked power creates a balanced society.

One of the mistakes made in most turns to democracy in the last few decades is a copying of election format without the requisite understanding of such deeper ideas or a need to build a foundation on these first. That is why several of them are grand failures like the Arab Spring, the Democratic Republic of Congo, Nigeria, Iraq etc. well the list is endless.   Other than these, there are several other factors that will make a democracy progressive but I’d say these are the two founding principles. A democracy must have a strong foundation for it to really work “for the people”.