Are we entering an era when rule of law is giving way to rule by law? The perversion of supposedly independent legal systems for overtly political and anti-democratic ends is becoming a favourite practice of many governments – as we can see in Ukraine and China.
In Ukraine, President Viktor Yanukovich has attempted to cement his iron grip on the country with an election on Oct. 28 whose results, more than a week later, are still not fully known. Opposition parties have organized mass protests in Kiev on Monday against voting results that seem fraught with irregularities and sometimes outright fraud. Canadian election observers reported this weekend that the vote tally has "serious problems." Unfortunately, voters and parties are unlikely to be able to get redress from their country's legal system, as it is being used by Mr. Yanukovich to prevent opposition parties from functioning.
Earlier this year, the European Commission warned about "the degradation of the rule of law" and the curtailment of the freedom of expression and assembly in Ukraine.
In its list of concerns the commission included the imprisonment of four former Ukrainian ministers and the jailing and alleged mistreatment of former prime minister Yulia Tymoshenko in what the commission called "politically motivated selective justice."
The former prime minister was prosecuted and given a seven-year jail sentence after being convicted of criminal abuse of powers for signing an overly lucrative gas deal with Russia. In the view of many observers, including the European Commission, the goal of the prosecution was to prevent her from running in Sunday's election.
Mr. Yanukovich is widely seen as being promoted and supported by Russian president Vladimir Putin, who is keen to draw Ukraine back into Russia's fold. There are parallels between the selective justice meted out to Ms. Tymoshenko and to Mikhail Khodorkovsky, who was once Russia's richest oligarch. Like his hapless Ukrainian counterpart, he has paid a heavy price for being a financial backer of an opposition party and posing a political threat to Mr. Putin. He was also tried for economic crimes and sentenced to 14 years in prison.
In China, a formal criminal probe has begun against Bo Xilai, a former top leadership contender and former top party official in Chongqing, with accusations of corruption, abuse of power and "improper sexual relations." While, in comparison to Ms. Tymoshenko and Mr. Khodorkovsky, there may well be more substance to the charges of corruption and bending the law to cover the alleged murder of a British businessman by his wife, the suspicion of rule by law hangs in the air here also.
Given the widespread allegations of corruption and abuse of power by China's political elites, the charge of selective justice seems also very present in this case. There is much to confirm the suspicion that other top leaders could also face corruption charges if the rule of law was practised in China. China moved quickly to block access to the New York Times and ban any social-media discussion of the newspaper after it reported that the family of Premier Wen Jaibao had amassed a fortune of $2.7-billion.
While those who adhere to the rule of law must accept that all are innocent until proven guilty, the clamping down so quickly of any possible discussion of more widespread corruption triggers legitimate suspicions.
The rule by law, by applying selective justice and undermining universally accepted rights – especially freedom of expression – makes a mockery of the rule of law.
It is thus important to ask whether these practices, used by rule-by-law states against their citizens, can sometimes be carried into the global trade and investment spheres. The mounting trade complaints against China for subverting the intellectual property and global trade rules seem to confirm this thesis. With Russia's recent accession to the World Trade Organization will we soon see a similar practice? Should we reconsider trading with countries that have turned the rule of law on its head?
Errol Patrick Mendes is a professor of constitutional, corporate and international law at the University of Ottawa.