By:

Feri Amsari

Student at LLM Program, William Mary Law School

Constitutional Law Lecturer at Faculty of Law, Andalas University, Indonesia

 

I. Introduction

Like a seed, the concept of rule of law (RoL) spreads in various ways. It is brought through “the wind of discourse” by philosopher from ancient time to the post-modernist thinkers. Those RoL concept can be traced through many manuscripts, modern debate, fairy tales,[1] and religions.[2]

The seed turned into a tree which has shaded RoL implementation in the society. It is undeniable that each country builds its own concept of the rule of law. Because RoL concept is not always deploying with writing manuscript, we cannot find certain source of RoL.

Although there are experts who argue that RoL originally concept from ancient Greece,[3] but there are others strong argument refuting that classical opinion. Brian Z. Tamanaha elegantly explains that it is difficult to argue that the ancient Greeks provide an important role for RoL concept but He said the concept can not be identified as belonging to any country.[4]

Tamanaha above viewpoint is supported by looking at the historical record thinkers. The role of the great Greek thinkers such as Socrates, Plato, and Aristotle does not show that RoL concept found only in the people of Athens where the ancient Greek civilization lived. But other experts in different era also mention that RoL concept is always rooted by the culture of each country. Albert Venn Dicey, British thinker, loudly mentions that RoL concept is a concept that just fits into force in United Kingdom.[5] Another statement is also conveyed by the German expert about a special application on the concept of “rechtsstaat” (German, mean: the state of law). According to Lorenzo von Stein, rechtsstaat concept is an idea that was conceived specifically for Germany (1869).[6] So that specificity in every statement shows RoL concept is developed by “the taste” of each country where the concept is applied.

Nonetheless, Tamanaha argues that each country is also influenced by the idea of popular philosopher in the world. According to Tamanaha, the ideas of John Locke in “The Second’s Treatise of Government (1690)”, the idea of ​​Montesquieu in his “Spirit of the law (1748)”, and the thought of James Madison, Alexander Hamilton, and John Jay through their work on “the Federalist Papers,” are the important masterpiece that give effect to the development of RoL concept in the West.[7]

Tamanaha’s opinion reinforces the view that initiators of RoL concept in every country design their RoL new concept based on ideas from other thinkers. So RoL concept can not be declared as belonging to a single specific thinker or a particular country.

In this post-modern era, each country’s RoL concept shows a universal elements of RoL because every concept is interplay. Firstly, it will be easy in this essay if RoL universal elements is determined based on constitutional law impelementation in civilized country in the world.

 

The Rule of Law Elements

Stipulation of RoL universal element is not easy. Moreover, it is not a tangible element but an idea that can only be traced from the enactment of law and its daily application. The difficulty is quite similar when we try to homogenize RoL definition which can be accepted by all parties.[8] But to define RoL can be easily done when the universal elements of RoL can be agreed. Obviously, it is impossible to find a single agreement in law.

That condition make we realize that an efforts to define and to find similarity in defenition and universal elements of RoL cannot be implemented. Although there are some experts who formulate the universal elements of RoL but still their opinion may not be mutually agreed. Moreover, it must be understood that it is concerned with the formulation of each country’s socio-political conditions. However, some experts believe the law is political product.[9]

Law enforcement is often determined by political interest. If politician play the games by using good manner, it will make RoL implementation will be easily implemented. Whilst, good politician came from good society. In sum, any universal element of RoL will be nothing if politician and people activity have been damaged.

So in that condition, stipulation of RoL will be incorrect and any effort to evaluating the implementation of RoL will be improper. But decision what universal element of RoL must be appointed to help analyzing the object of research. I decided to compare any element of RoL from several experts. Thomas Carothers explains that RoL can be conceived broadly or narrowly elements dependent to the system of such country.[10]

Dicey explains there are four essential elements that must be owned by British to be RoL country which are: (a) the protection of human rights, (b) no one above the law, (c) the separation and limitation of government power, and (d) independent judicial power.[11]

Similar elements are also expressed by John Locke which are: (1) individuals enjoyed perfect freedom and equality, and (2) governed by natural . According to these natural laws, one must preserve oneself, and not harm others in their ejoyment of life, health, liberty, and possessions… (3)…form a government and accord it the power to make, execute, and apply laws for public good….[12]

World Justiced Project is explaining the elements of the rule of law as (1) the level of legal accountability of government officials; (2) whether laws are enacted and administered in a fair and efficient manner; (3) the degree to which law are clear and stable and protect fundamental rights; and (4) whether access to justice is administered by fair and independent judicial officers.[13]

Daniel Hall and John Feldmeier explain three fundamental elements that any legal system will achieve the rule of law if the following elements are present:

–          There is fundamental law;

–          That limits the authority of government and;

–          Is enforceable by citizens.[14]

Every expert will be giving different opinion about which elements that should present in the rule of law countries, so I need to decide which universal elements that will be accepted generally in many countries. According to Neil MacCormick, although there are two poles of RoL: rechtsstaat in Germany and the rule of law in the UK, but both of them have similarities in terms of substance. MacCormick explains the equation is as follows: (i) the principle of legality, the which is the same in the different context, (ii) the principle of the general validity of legal precepts, (iii) the principle of the public nature of laws; and (iv) the principle of non- retroactivity.[15]

Historically, the concept of the rule of law and the rechtsstaat is different, but for Hasso Hofmann both idea come from liberal thinkers in Europe and North America. Hofmaan explains both idea basically came from the Western’s root. So according to Hofmaan, when there is an attempt to apply the idea of RoL in any country, it is not necessary to observe constitutional background of Western countries history, but it will be better to construct with considering the culture where the new RoL country will be formed.[16] Hofmaan’s statement explains any RoL concept may be different to each country in the world because it is influenced by their own cultures.

Consequently, the determination of RoL universal elements will end in a edge of crossroad. In this study, the determination of the elements will be very subjective of the writer. However, the determination will be directed to elaborate experts’ opinion above. Elaboration of selected universal element of RoL will be done subjectively, but it is based on the universal values. According to J. Jowell, elaboration of RoL elements is important because it relates to the practical conditions of each generation of executing the law states.[17]

The disadvantage, a clash of cultures will remain an obstacle for the determination of the universal elements. Moreover, RoL elements that are specified above by experts are highly sensitive element in a particular culture such as human rights.

Even though universality of RoL elements may be happened, the restrictions need to be done. But it does not mean the violation of certain RoL elements can be ignored because the cultural factors. Culture should be understood as an initial value of a living community, respected, and well-regarded application in the development of social civilization.

Restriction becomes important to enclose the discussion of RoL elements that can be studied universally in each country. Moreover, this papers has limitations that require the restriction of RoL elements in order to focus the study. So although it would be highly subjective, I define some elements that can be considered as an universal element of RoL as follows:

(1)      Protection of human rights and equality before the law. Protection of human rights and equality before the law become an important element which is helping the country is not turned into an authoritarian state. Moreover, it should be understood that the establishment of RoL stems from the bitter history of authoritarian kings/rulers which provides a certain types of people that can determine the fate of other citizens;

(2)      Separation and limitation the power of government. This element is important to induce officials government to work for people benefit. It will help to protect any misusing governing powers which acts in the name authoritarianism;

(3)      The country is governed by the law. The whole thing in the state should be run by the will of the law and is not dependent on the will of individual. In this point, any law which is created by state authoritarianism regim can not be regarded as a law but it is placed as political tools;

(4)      An independent judiciary which is staffed by competent judges. The other three elements can be distorted due to the human factor that tends to diverge as stated by Lord Acton that power tends to corrupt, absolute power corrupts absolutely. In that condition, an improvement should be done by competent judges. Placement of competent judges is necessary because an independent judiciary will be formed if it is filled by people who has credibility and good integrity. This element is very important to remain the state on track. From the economic point of view, Stefan van Hemmen and Frank H. Stephen argue that the state which limit its power and has independent judiciary will be able to create a comfortable environment for economic transactions and financial developments.[18]

 

 

II . Rule of Law in Russia, Qatar, and Indonesia

Russia, Qatar, and Indonesia are selected with several reasons. It will be explain directly in this chapter. Even though this study did not explore the application RoL in Western countries due to many research already established about it, this research still discuss the Western idea of RoL as compatative data.

Russia is selected because it was a former of superpower country where the implementation of RoL in that country is always debatable in the worldwide media. Moreover, after the dissolution of the Soviet Union, Russia is “a new country” that is trying to find the right form of RoL to be applied. Two possibilities can occur: either the concept of rule of law can be applied or this country will go back to the authoritarian concept ever be chosen.

The selection of Qatar is a challenging option for me. I never read anything about Qatar previously before my study in America. This is a rich country in the Arabian Peninsula that had been in the “shade” of British rules. As a country that is predominantly Muslim Arab, observasing RoL in this country will be so much interesting. Is British civilization affect the country in the establishment of RoL or domination of cultural values​​and religion are stronger to influence the idea of RoL?

Whereas, Indonesian is selected by many factors. In emotionally, I am the citizen of this thousand islands country so it involves personal experiences.  Indonesia also has many interesting histories if we study and explore it further. Indonesia was founded in 1945 from the ruins of the colonial Dutch, Portuguese,[19] British, and Japan. Alternation among Western countries and Japan to colonize Indonesia took Indonesian founding fathers and mothers choosen a new flavors RoL. Indonesian-self RoL. However, that idea did not work properly after the country crashed due to corruption and failed law enforcement. That conditions created a wave of protest and reform movements was occurred in 1998. The statement echoed in 1998 reformation is quite similar with Indonesian declaration of independence in 1945 which is realizing the rule of law cannot be ruled by individual but it would be run by the law itself. However, despite more than 15 years of reformation regim, Indonesia is still trapped in unimplemented of RoL concepts.

So it will be interesting to assesse extension of RoL in those three countries which has been influenced by Western powers. Does RoL can be realized as the Western design or it had been born a new concept of RoL which is wothy considered.

 

A. Russia

Russia is a country with a long past history of Union of Soviet Socialist Republics (USSR). Stretching from the two continents of Europe and Asia (Eurosian) makes Russia becomes important country in the world civilization.

This great country suffered “defeat” in the political cold war with America and its allies. The defeat was also due to internal political turmoil in USSR unstable government. Reformation efforts from President Michail Gorbachev proposed to introduce new ideas about economy and democracy which was known as Glasnost (government transparency) and Perestroika (restructuring political and economic system). But it also sparked crisis of democracy.[20] It was not easy to apply the new idea and be accepted by the USSR which was systematically already corrupt. As a result, the USSR grew increasingly unstable and wobbly . The split USSR countries ensued. Russia remains one of the major countries of that split.

Defeat the cold war made ​​Russia chose to carry the values ​​of democracy. Under the new constitution, the Russian Federation had chosen the form of mixed system of government (hybrid system). That new system allowed people made new political party. Suddenly, the number of parties in Russia exploded. Election by using a multi-party system is the only way for person can get a seat in parliament (State Duma).[21] In the context of multi-party, the new Russia was very different from the single power-controlled at USSR era by Communist Party. Russia has its own interpretation to RoL which is called: pravovoe gosudarstvo (a law based state).[22]

But the freedom of democracy does not produce a significant improvement in new Russia. The transition process of authoritarian state to a democratic country does not run smoothly. The constraints due to the strength of the conservative stronghold of Russian politicians in government. Putin is a former intelligence and a former member of the communist party. Putin’s reign led the idea of ​​a new democratic Russia moved to wrong direction. Adam Czarnota describes the condition of Russia is very similar to the conditions of Belgium, the Netherlands, France, and Germany in the process of power transition after communism.

Even Stephen E. Hanson explains there is not much progress in Russia today. As a new constitutional democracy country, Russia’s democratic values ​​and the rule of law is only contained in the constitution, but the facts say otherwise. In particular, Hanson says that Russia under Putin’s reign does not show progress as a democratic country. To see what is happened in Russia, I tried to collect data about Russia’s rule of law by using elements RoL that I have been specified above.

 

 

A.1. Human rights protection

Hanson’s opinion states Russia’s RoL goes far away from the value of human rights which is based on the facts in recent years. If we take a look at to several human rights cases, we will find a lot of questin about protecting human rights in the constitution.

Under Putin control, Russia started to move to authoritarian regime. As a result, human rights enforcement process runs backwards. Although the Constitution of the Russian Federation provides human rights protection rules, but the rules are weak in practical level. Chapter 2 of the Rights and Freedom of Man and Citizen is almost meaningless. Some cases show that Russia government fails is one of perpetrators of human rights abuse.

 

Pussy Riot Case

As a former member of military intelligence (KGB), Putin is not easy to accept any difference opinions. Pussy Riot is a punk-rock band that actively criticize Putin’s administration. One of their biggest actions was protesting Russian Orthodox Church that support Putin’s regime. They was singging a song in the Orthodox Church which is titled: “Virgin Mary, Mother God, put Putin away.” Putin became agry and imprison the member of Pussy Riot.[23]

Pussy Riot’s action are charged violating Article 29 Paragraph 2 of the Constitution of the Russian Federation for being associated with religious hate propaganda. Actually the action was not related to abuse religious believe but rather to criticize the church political decision. Whilst Putin’s reign ignored freedom of expression under Article 29 Paragraph 1 of the Constitution. Pussy Riot movement is also related to freedom of thought because under Article 10 European Convention on Human Rights explains that freedom of expression can not be separated from freedom of thought.[24]

Human rights violations was also occured when that case was not through a fair trial. This case indicted the members of Pussy Riot with the demands of 3,000 pages thick but the defendant’s lawyer were given only two days to read the file.[25] If we read the provisions of Article 19 of Russian Constitution which states equality of each person before the law, we will be understand that the court proceedings in Pussy Riot case were very odd.

 

Khodorkovsky case

Mikhail Khodorkovsky is an opposition of Putin administration. He was one of richest person in Russia. Through his oil business (Yukos Oil Company), Khodorkovsky contributed to fund the opposition political party. Putin does not like competitions.

Suddenly, Khodorkovsky was accused of fraud in their business activities. Under Putin’s influenced, the court sentenced 9 years in prison to Khodorkovsky. However, the most interesting in this case, before Khodorkovsy finished his sentences, Putin’s reign returned a new indictment for embezzlement and money loundering to make this Russian wealthy businessman more suffered.

According to Lord Justice Stephen Sedley, he says: one major imponderable is the measure of the courts’ receptivity to human rights issues.[26] If the court becomes human rights violators, justice seekers will be the victim of the court itseld. In this condition, we cannot say the protection of human rights is occured.

Based on Stephen E. Hanson explanation, it was commonly in Russia where “Kremlin” (President palace) ordered to the court to punish President’s enemies. Hanson says “telephone justice” is usually happened especially in political cases as a part of Joseph Stalin’s legacy.[27] In Yukos case, Kathryn Hendley explains that Khodorkovsky was railroaded into a criminal conviction and his company was bankrpted with the proceeds mysteriously ending up in the hands of Kremlin insiders.[28]

 

Torture of prisoners

Pussy Riot case was also opening another human rights violations. Based on information from one imprisoned member of Pussy Riot, Putin Government had been abusing prisoners rights. She told her experience in prison. She witnessed how the prison guards treated the prisoners to be slavery. Even more terrifying, she told that She showed a female prisoner who was beaten to death by the guard.

That violation have been harassing Article 21 Paragraph 2 of the Russian Constitution which prohibits government to conduct all torture, violence or attempts to hurt or embarrass humanity in the form of treatment or punishment. In these conditions, the Russian government have misused their power to violate prisoners rights.

What Putin’s reign did it is quite similar with USSR Communist Party in the past. They used government power to imprison somebody who criticize the government. If human rights abuse is already done in Russia, we cannot say Russia applies the rule of law concept but they begin to dictatorship country. New Russia looks very similar with old USSR. W.W. Rostow explains that USSR usually used the dictatorship power to interfere the society.[29]

 

A.2 . Separation and limitation of power

Russian Federal Constitution divides executive power into two institutions. The head of state is belonging to President authority and the head of government is put on the Chairman of  Government (Prime Minister). This makes Russia is classified as a mixed system of government which is very similar with France.

The President has authority to regulate foreign relations and to represent the state in foreign affairs. Meanwhile, Prime Minister becomes executor for government policy. But in Putin’s way, President’s power seems to be very powerful. This kind of power is possible because the constitution allows the President to lead every aspect of the government under Article 112 the Constitution of Russian Federation. Any structures of government under the authority of Prime Minister should be proposed by the President. Actually, similar condition is also applied in any countries that embrace hybrid system of government.

Consequently, we should look differently the separation and limitation of power in Russia than American presidential system. Edward S Corwin explains that the President’s power is the power that will naturally be opposite with the legislature.[30] President becomes the Head of State, Chief Legislator, Chief Administrator, Head of Foreign Relations, Commander in Chief, and Head of his Political Party, Chief Prosecutor, and a more recent nominee.[31] If we see Russian constitution, we will find its totally different concept with American system of government. But what we are looking any facts under Putin’s reign, we see Putin’s authority is more powerful than Presidential system itself. It seems he already broke constitutional rules. Based on Vladimir Gel’man’s article, Russia suddenly becomes a dictatorship country under Putin’s regime when he campaigned about the dictatorship of law.[32]

These several cases will explain how Russian reign brakes the idea of separation and limitation the power in RoL idea.

 

Putin’s tenure case

Putin’s tenure case is interesting to assess because it is related to irregularities political power that is set by constitution and universal idea of RoL. After serving as acting president because Presiden Yeltsin’s unexpectedly resign (1999), Putin served two terms as an elected president (2000-2004 and 2004-2008). Because constitution limits for any incumbent candidate to run in presidential election after to term in office, Putin did run in 2008 presidential election. An amazing political decision was happened when Dmitry Medvedev who was elected as president appointed Putin as prime minister (2008-2012).

After he controlled Medved, Putin run again to be Presiden on 2012 election. He won the election through many controversies which was criticized by opposition because intransparancy election result. He argues the constitution is limiting incumbent to run third time if the incumbent candidate run interruptedly without a pause. Because he already became Prime Minister after two terms on Presidential office, he assumed he did not against any constitution articles. It showed how the limitation tenure idea can be mocked by corrupt political power.

 

Kremlin decides who become Governor

In 1995, President Boris Yeltsin made ​​great strides for Russian democracy. He changed centralization concept in the governor election that was determined by the Kremlin political decision. Yeltsin decided to change governor election by using regional citizen direct election.

But after Putin took over the power, Yeltsin’s concept was dumped. Putin determines all Governors are nominated by the Kremlin.[33] Whereas Article 32 Part 2 Russian Constitution rules that the citizens have the rights to elect and to be elected in election. For governor election, Article 130 and Article 131 Part 2 Part 1 in constitution requires that regional leaders election is determined by local communities. Putin ignores these provisions by selecting centralized concept and changes Russia to be authoritarian country where the leader power is not limited by the constitution. Richard Sakwa says Vladimir Putin’s reign attempts to ensure that the exercise of popular sovereignity remains within controlled limits.[34]

 

A.3. Independent Judiciary

Peter H. Russel explains judicial independence varies because: (1) it involves relationships between potential sources of pressure (external and internal) and the judge, and (2) it has to be balanced against demands for a greater accountability of judges.[35] It is difficult to make Russian judicial institution independently under Putin’s abusive power. Even the constitution regulates Judge shall be independent and submit only to the constitutin and the federal law (Article 120 Part 1). In political cases, Stephen Hanson believes Kremlin always uses its power to control judicial’s verdict. He assumes it is happened because external pressure by Putin’s telephone justice.[36]

The constitution has been giving any requirements for the judiciary to be independent. Article 121 Part 1 rules that judges shall be irremovable and Article 122 Part 1 says judges shall possess immunity. But Putin can control the judges in Supreme Court and Constitutional Court because he has political represive mindset. In Russia, Richard Sakwa tells any important constitutional issues appeared to be resolved by bullying tactics and administrative means.[37]

 

A.4. Governed by the law

It is easy to summarize in this part that Russia is a kind of country which is not governed by the law. Three elements above describes how that conclusion can be delivered. Under Putin’s reign, Russia is trapped to be autoritarian country where the law had been mocked by politician. Alexandra V. Orlova explains how Putin’s reign uses forcing its authoritarian power to suppress government opposition such as separtive movement in Chechnya.[38]

We can see how any Russian constitution’s articles cannot be implemented because Kremlin autoritarian’s power makes its impossible. How Putin rules the country is categorized as a classic case by Richard Sakwa where individual leadership can stamp its preferences on a period.[39]

 

 

B. Qatar

Qatar is a small (12.000 square kilometres) country in Persian Gulf. It was ruled by British but later gained independence on September 3, 1971.[40] As common in Arabic country which is ruled by monarchy system, Qatar has been led by Sheikh Abdullah bin Jassim Al Thani family since the 19th century.[41]

These wealthy family power had been shaken by internal coup d’etat. On June 27, 1995, Sheikh Hamad bin Khalifa attempted a bloodless coup against his father Emir Khalifa. However, the dispute can be ended with a reconciliation between the Father and the Son. But it was changing Qatar to be the next Arabic country rising sun on economic development. Wisely, Emir Hamad who had been educated in Sandhurst Royal Military Academy and Cambridge University decided to reform this country through a new constitution. Through the April 2003 referendum, the people approved the constitution and it became the door to the new era of democracy in this petroleum nation.[42]

The rule of law concept shortly became option to manage themselves.  How does the application RoL elements in Qatar? Do western influence in Qatar past history will give benefit to apply RoL idea? What does Qatar do to combine cultural values ​​and religion with the new idea of new democracy administration? I try to see it by using RoL elements above.

B.1 . Human rights protection

As a befits of the richest country in the world,[43] Qatar becomes a destination for job seekers. Employer and employees relation are the most prominent in labor human right issues.[44] Most of the employee who come from Phillipines and South East Asia have different perception and tradition value about that relationship. Arabic country had been related to traditional slavery as a culture in their ancient story and most Asian countries already experienced to be colonized country in the past.

But Qatar realized, they need to improve their law system on the protection of human rights if they do not want to be blamed in this current modern civilization. Step by step,  Emir Sheikh Hamad ensures human rights protection in his leadership regime. As an example, Qatar begin to forbid using children as camel jokeys and prohibits to employ kid.[45]

In another human rights problem, Emir’s policy related with religious minorities was quite remarkable. He donated 7 million dollars to reform the Anglican church in April 2006. As muslim nation, that policy will change how minority see Emir’s tycoon power.

Even Emir tries to change Western perception about women rights in his Arabic country.[46] Emir Hamad also called himself as a knight for women equal rights. He decided to allow women have the rights to vote and the rights to be elected as a member of the legislative institution (Majlis Al Shura).[47] Those rights have been warranted in Article 35 of the Qatar’s Constitution which expressly states that : “all persons are equal before the law and there shall be no discrimination whatsoever on grounds of sex, race, language, and religion.” Julia Breslin and Toby Jones say if women still remain underrepresented in workplace, it may be because a result of social and cultural rather than legal norms.[48]

Emir proves during his leadership that women’s rights are equated with men in matters of salary and position in the work place. However, it does not mean every women’s rights issue have been done after the new constitution. Because in the constitution itself Islamic law is stated as a main source of its legislation, disagreement among modern constitutional law idea (one of the idea is RoL) and Islamic law is happened in Qatar. For example, inheritance law of Islamic rules woman’s rights is only a half of the rights of man.[49] Even though it will be debatable rule for feminism human rights view, women’s rights in Qatar must be avowed more progressive than other Arabic speaking countries.

Freedom of religion is also included in the constitution. Although Qatar is classified as Wahabiah Sunni Muslim’s country, there is no prohibition in the Constitution against other religion believer. According to Article 50 of the constitution, freedom of religion will only be banned when associated with interest and public morality. That kind of article is common in every country in the world to put in their constitutions to guarantee public safety firstly in order to fight danger thought.

However, even Qatar has better rules to protect human rights but they also have problem with several matters relating to the elements of RoL. For example in the constitution: first, the government cannot be criticized by the people. The freedom of speech is limited if its relates to demonstrations and public meeting which is considered as a part of complaint to government or Emir’s tribe. They only can do demonstration as long as to be permitted.  Not only that, the topic of demonstration is limited to certain things even for scientific result.[50] Based on Article 47 of the Qatar’s constitution, freedom of expression and scientific result are limited.

Freedom of speech/thought limitation is also happened in political field. The emir does not allow people to develop political party which is clearly banned in the constitution.[51] If we look at the prohibition to the idea of freedom of speech or thought, we can feel the prohibition in Qatar’s constitution seems very odd based on the idea of human rights protection.

Secondly, domination of noble and merchant families in acquisition economic rights is very higher in Qatar. It can be seen from the authority to control the oil sector, labor, housing, water, and goods.[52]

Thirdly, the freedom of media is also limited by the government through the constitution. The media will be censored if they inform negative proclaim to the royal family and religion matters.[53] It may be debatable in Islamic world to complain the religion’s value and it can make contention in the society. In this side, Qatari royal family can be arguing any debate about that media limitation but the royals cannot be arguing any complaint related to media limitation in order to inform the public about the royal bad attitude. Whereas media function to fence the royals from corrupting their power.

That three constitutional problems about human rights protection are not standing alone. There are several cases that will explain human right protection problem in Qatar.

 

Human trafficking cases

As a country with tremendous economic development, Qatar becomes a target for the seeker of economic blessing. But in the another side, the labor will be the victim of human traffickers. Almost of them are used to be prostitution and slavery.[54]

Those conditions are easily happened because the rules are enacted by the government. Qatar uses the concept of sponsorship system (Kafeel) which causes potentially occurred human rights violations. Kafeel law organizes a labor can only come to or leave from Qatar if they have permission from the employer.[55]

 

World Cup labor case

Qatar had been already elected as the host of World Cup 2022. It made ​​this country needs labor supply to build facilitation related to that big ceremony. Qatar spur efforts to be a great host country that makes the contractors maximize their employee to achieve the target. But in another side, Qatar is criticized by many human rigts watch organization about this nation’s eligibility which is regardless on the employee living standards.[56]

Even the problem becomes more complicated when the workers are experiencing tremendous pressures of life as the contractor is late or does not pay their wages. General Secretary of the International Trade Union Confederation ( ITUC ) Sharan Burrow stated that it could lead to 4,000 workers dying because of poverty due to their unpaid wages.[57]

 

B.2 . Separation and limitation of powers

Although Qatar is based by the constitution, it does not adhere Western’s idea about separation and limitation of power. Most of the power is still attached to the Al Thani family.

It sounds a bit of contrary to Article 59 of Qatar’s Constitution which states that : “the people are the source of power.” But when I try to search about Qatari’s culture (it is not Islamic rules), I find when the people believe to be ruled by Al  Thani’s clan because it is such a Arabic tradition. According to Jill Crystal, aristocratic power (Shaik and Merchants) in Qatar politics has been going on far away before the “oil seizure” contested involving Western people who modernize Qatari tribes.[58]

However, Western influence is quite dominant in this oil and gas country. But on the other hand, the role of Emir is also very prominent to create change in Qatar until present.[59] The constitution is combaning Western’s values in separation of power and Qatari tradition which is giving the power to their leader.

The Emir is the highest executive leader and determines who will sit in his cabinet. In carrying out its executive functions, Emir Hamad is assisted by a prime minister who heads the cabinet (Council of Ministers).[60] The position of Prime Minister is occupied by his brother Abdallah Al Thani. Emir is not only the leader of cabinet but also determining foreign affairs, finance and petroleum, education and culture, police and military. If we see those authorities, I can say it looks very similar with President’s power in the presidential system of government.

But unlike the presidential system, Qatar’s system to elect their leader is determined by the heir male Al Thani family. It is set out in Article 8 of the Qatar’s Constitution. Furthermore, Article 9 of the Constitution states that the Emir will choose his substitute by asking an input from the royal family and people of wisdom (Ahal Alhal wal agd). The heir must be a Muslim male from the female Muslim mother. This pattern is basically not Islamic pattern. In Islamic law, the determination of the leadership is not based on lineage.[61] So, what is practiced in Qatar may be similar with the pattern of the British monarch system.

In another side, the Emir appoints the prime minister to help him managing the government. When one of government separates its head of government and the chief of cabinet, that country should be categorized using mixed government system. Absolutely, a type of Qatar’s mixed system is not similar with France or Russia hybrid system. The difference is also happened in other branches of government.

In the legislative branch, the constitution regulates the formation of 45 advisors (Majlis Al Shura). Two thirds are directly elected through election and one third are appointed by the Emir from ministers or other people. Their tenure are 4 years. Majlis Al Shura’s function is only concerned to watch the government under the Prime Minister. They do not watch the Emir. It indicates the superpower of Emir. There is no one can watch him except himself.

Through the Constitution, the Majlis can review any legislation and budget. Majlis can submit a “no confidence motion” to a certain minister. It will be applied if the no confidence motion is approved by two thirds of the Majlis members.[62]

 

B.3 Independent judiciary

Under Article 129 Qatar’s Constitution, explained that the judiciary has an important role. Its tasks are protecting the people rights and freedom which are submitted in the hands of the judges.

To protecting the independence of judges, constitution rules that the judges cannot be affected by any other powers. Article 130 of the Constitution confirms that the judicial power shall be independent and only guided by the rule of law. This mecahnism can be help the country to limite the power of Emir. Based on World Economic Forum score for Judicial Indpendence in several countries in the world through 1 to 7. The scale of scores is 1 indicates that the judiciary system is heavily influenced by the political influences of members of government, citizens or firms, and a score of 7 indicates its entirely independent. Qatar’s score is 6.3.[63]

B.4 . Governed by the law

The Qatar’s concept to put the Emir in the peak of power is not parallel with the idea of RoL. To protect the country from the corrupt power, RoL puts the law above the man. Fortunately,  after the constitutional reform, Emir is still able to manage Qatar becomes wealthy country but it may be different when his heir will continue to lead his nation. Ali Khalifa Al Kuwari says Emir’s reign is “a more than absolute authority and a less than powerless people.”[64]

Obviously, Qatar’s concept depends on individual condition. The possibility of Qatar’s future problems will be open widely if the transition of new Emir is happened. Commonly, disputes in many countries that use similar concept with Qatar are often occurred when the power is substituted by next leader. Based on historical bacground, Qatar had experienced on dispute power crisisin in the past. Moreover, potential friction will be possible when the Emir who has three wives and children will appoint his successor.

C. Indonesia

Indonesia is a new country which was declared its independecy on August 17, 1945. One day after that declaration, Indonesian new constitution (UUD 1945) was enacted and said Indonesia as rechsstaat (state law, Dutch). Under two regimes, President Sukarno[65] and President Suharto,[66] Indonesia was controlled by autoritarian President and political parties. Corruption, starvasion, expensive goods were becoming massive and unstable political situation could not help that situation. After bloody coup, General Soeharto took the power from Presiden Soekarno who has many wives and luxury lifestyle.

This new regime was using brutality power to protect Suharto’s presidency for more than 32 Years. His regime carried out every money and power to his cronies which was named Cendana’s circle (Soeharto’s palace address).[67] In 1998, Soeharto regime was enforced by millions of people and students to resign from his office. The people movement asked for tranparency, anti corruption, and the rule of law.[68] After 15 year of reformation movement, I will explain how Indonesia does not move froward to a better RoL country by using several practical cases.

 

C.1 . Human rights protection

We can find through the history that Indonesia is the field of human rights violations. Colonized by the Dutch for 350 years and 3.5 years by Japan, Indonesia does not stop “begetting” new human rights violence. Over 32 years in power, Suharto’s regime became the perpetrators for massively practical human rights violation. Killing millions of people without knowing their grave are stored in Indonesian book of history. After reformation era, the mystery of human rights violation is not opened but is added.

Munir case[69]

Munir is a human rights activist who actively criticized the government. He pointed out that government  is the mastermind of human slaughter and the perpetrator of human rights violations. Munir knew he became the main target of military operations. As an advocate of human rights, Munir’s conduct was not preferred by military. When Munir continued his study in the Netherland, State Intelligence Agency (BIN) acted an operation to stop Munir’s life.

Munir had died in the air when he was carried by Indonesia Airlines to the Netherland.[70]  Many friends and his wife were suspicious with his sudden death. It was proven when the Netherlands autopsy showed Munir’s body contained arsenic from food which is served by the airplane. The perpetrator who was arrested is BIN’s agent under camouflage as airline’s pilot. The defendant remained silent who commanded him and for what purpose to kill Munir. Even President never did something to open this mystery case.[71]

 

Murdered at the jail by Elite Force

Heru Santoso is a member of the Indonesian Army Special Forces (Kopassus). Tuesday March 19, 2013, Heru came to Hugo’s Café, one of the entertainment venues in Jogjakarta. He was involved in a confrontation with some bandits and killed. Four perpetrators was arrested by the Police.[72]

Suddenly, the four actors was transferred from police’s jail room to general civilian prison on Friday afternoon March 22, 2013. The next day, Saturday midnight, an unidentified trained group invaded the civilian prison.[73] The whole turnkey was arrested by the group in a minutes. They asked where the turnkey put the four perpetrator in jail. One of the turnkeys showed their room which was dwelled by 35 people.

One of unindetified group shouted to the four perpetrators who killed Heru Santoso. The other jail dweller alienated the four perpetrator into the middle room. Then a group of unidentified men shooted all of their bullets to the four men to death.

After the incident, the Jogjakarta Army Commander suddenly stated none of that sadistic murder were his troops even the police investigation was not doing yet. But investigation showed that the bullets had connection to the Army. Special investigation was committed by the government and it found involving Kopassus elite members. The whole elite group was charged with murder but none of the Kopassus commanders whose responsible to that sadistic murder had been charged by the law.

 

Another case

Those two cases show how human rights enforcement is too complicated. In another case, human rights protection is also related to political issues. As an example, one case involved big political party (Golkar Party) who is known as government coalition party member. The chief of that party has big mining company in East Java, Indonesia. That mining company made one mistake when they digged soil. As as result, from the bowels of earth spurted million cubic dirty mud which then submerge one whole village area in Sidoarjo. But the government explained that a natural disaster errot that compensation for the victim would be submitted to the country budget.[74] This case never ended, thousand of victim still search their compensation. Meanwhile, the chief of that party run as president candidate for 2014 election. It is an illustration of how crimes against humanity in Indonesia mingling with politics.

C.2 . Separation and limitation of power

Indonesian politic is “very dark”. It is related to the separation and limitation of power.

The Constitution has several weaknesses in the separation and limitation of state power article. For example, legislative can determine many government projects budget and what kind of company will accept the project. It makes the house of representative member (DPR) set their own companies or cronies that accepts the project.[75]

DPR has a lot of power which are related to specify some government/independet agency post positions. Starting from the anti corruption institution,[76] Constitutional Court Justice, Supreme Court Justice, and other positions. So they can make bargaining to that position to other party members. It makes political parties have the absolute power to control the country.

 

Sells the power

DPR has the power to enact any law expanding a province or district in Indonesia. They use the power to get a lot of money. Any group who want to expand their territorial must bribe each member of DPR to ratify the new law for that purpose.

In another case, playing money is also involving executive administration. For example, when DPR enacted Health Law approving that tobacco is an addictive substance. It means all cigarette are drugs and it was forbidden. Obviously, all cigarette companies will be closed by the new law. However, before the law was passed it will be first signed by the President. Surprisingly, the law which was signed by President did not have any article banning tobacco as an addictive substance. Presumably, it was mistake the president administration. Amazingly, the President was never angry and fired the Minister concerned. And the law is never revoked.

Meanwhile, one journalist wrote his experience when reported President’s palace that he oftenly saw a car from the owner of the largest tobacco companies in the parking lot of the palace.

C.3. Governed by the law

When we read what were happened in Indonesia about how many mysterious murder related to human rights enforcement, we can presumably assume that Indonesia is not governed by the law but by corrupted political party.

Even a law or policy can be produced to satisfy the desire of political party members. For example, Indonesia wanted to import cattles from many other countries and the largest Islamic party leader used his power to take many gains from that business. Which was later known that he stole the budget to buy a car and house for his third wife.

 

C.4. Independence of Judiciary

Based on Indonesian Legal Roundtable’s data about index perspective in the rule of law, judicial independence has score: 4,72. Score 10 is the highest number which means really good. So judicial independence in Indonesia still has many problems.[77] One of the problems is Justices in Constitutional Court.

Indonesian Constitution determines the Justices of Constitutional Court are chosen by three institution: the Parliament, the President, and the Supreme Court. Each institution entitled to file 3 of 9 Justices.

The three institutions are choosing by using the political party background. As a result, many Constitutional Court Justices are filled from the former members of political parties. Whereas, the Constitutional Court has autority to determine who will be the winner in elected dispute. It is clearly any verdict will be related to the Justice political party background.[78]

The fact was later revealed the Chief Justice of the Constitutional Court was caught accepting a bribe by his former political party member. This case is explaining how complicated judicial independence in Indonesia.

 

D. Conclusion

Many factors will make three countries cannot apply the elements of RoL. I can conclude that several factor are related to authoritarian leadership, cultural, mentality, and many other factors depending in which country those elements are applied. What were happened in those three countries cannot be generalized to another country. But if the elements of RoL cannot apply, its means that country is not the rule of law country. May be Dicey is correct that the rule of law is not belonging to another country except for British (and other common law countries).


[1]               Katherine J. Roberts explains relationship between the law and the fairy tales. She argues fairy tales such as “A Thousan and One Arabian Arabian Nights” has influenced to the idea of of law in people mindset. See. Katherine J. Roberts, Once Upon the Bench: Rule under the Fairy Tale, Yale Journal of Law & the Humanities, Volume  13, Issue 2, Article 5, p. 500.

[2]               Many studies explain the connection among law and religion. Obviously, as a moral guideline, religion has impressioned to the application of law in many countries. See. Gad Barzilai (edt), Law and Religion, Ashgate Publishing Company, 2007, p.251.

[3]               Edward M. Harris, Democracy and the Rule of Law in Classical Athens, Essays on Law, Society, and Politics, Cambridge University Press, 2006, p. xviii.

[4]               Brian Z. Tamanaha, On The Rule of Law: History, Politics, Theory, Cambridge University Press, New York, 2004, p. 7.

[5]               Tom Bingham, The Rule of Law, Penguin Books, 2011, p.4.

[6]               Gustavo Gozzi, Rechtsstaat and Individual Rights in German Constitutional History, at: Pietro Costa and Danilo Zolo (Edt), The Rule of Law: History, Theory, and Criticism, Springer, 2007, p. 237.

[7]               Opcit, Brian Z. Tamanaha, p. 47.

[8]               Geoffrey de Q. Walker, The Rule of Law, Foundation of Constitutional Democracy, Melbourne University Press, 1988, p. 5.

[9]               Mauro Zamboni, Law and Politics, A Dilemma for Contemporary Legal Theory, Springer, 2008, p. 49.

[10]             Thomas Carothers, the Rule of Law Revival, it can be searched at:

http://carnegieendowment.org/files/CarothersChapter11.pdf

[11]             Opcit, Tom Bingham.

[12]             Opcit, Tamanaha, p. 48-49.

[13]             Daniel E. Hall and John P. Feldmeier, Constitutional Law, Governmental Powers and Individual Freedoms, Pearson Education Inc., 2012, p. 2.

[14]             Ibid.

[15]             Opcit, Gustavo Gozzi.

[16]             Ibid, p. 238.

[17]             Opcit, Geoffrey de Q. Walker, p. 8.

[18]             Stefan van Hemmen and Frank H. Stephen, Rule of Law, Finance and Economic Development: Cross-Coutry Evidence, at: Alain Marciano dan Jean-Michel Josselin (Edt), Law and the State, A Political Economy Approach, Edward Elgar, 2005, p. 187.

[19]             See. Ivo Carnairo de Sousa, the Portuguese Colonization and the Problem of East Timorese Nationalism, Lusotopie, 2001, p. 183-194. East Timor was a part of Indonesia before reformation. This papers can be searched at: http://www.lusotopie.sciencespobordeaux.fr/carneirosousa.pdf. The Portuguese colonized East Indonesia also can be observed at: http://en.wikipedia.org/wiki/Portuguese_colonialism_in_Indonesia.

[24]             Helen Fenwick, Civil Liberties and Human Rights, Cavendis Publishing Limited, London, 2002, p.74.

[25]             Opcid, http://www.cnn.com.

[26]             The Rt. Hon. Lord Justice Stephen Sedley, Freedom, Law and Justice, Sweet & Maxwell, London, 1999, p. 20.

[27]             Interviewing Stephen E. Hanson, On November 7, 2013. Utterance of Telephone Justice is varying. Kathryn  Hendley names it “Telephone Law”. See. Kathryn Hendley, ‘Telephone Law’ and ‘the Rule of Law’: the Russian Case, Hague Journal on the Rule of Law, 2009, 1:241-262. It can be searched at: https://media.law.wisc.edu/m/nmytc/

[28]             Ibid. p. 242.

[29]             W.W. Rostow, the Dynamics of Soviet Society, Volume I, Center for International Studies Massachusetts Institute of Technology, Cambridge, Massachusetts, 1952, p. 136.

[30]             Jerome A. Barron, etc, Constitutional Law: Principles and Policy Cases and Materials, Eighth Edition, LexisNexis, 2012, p. 291.

[31]             Ibid.

[32]             Vladimir Gel’man, The Dictatorship of Law in Russia: Neither Dictatorship, Nor rule of Law, PONARS Policy Memo 146, 2000, can be searched at: http://www.ponarseurasia.org/sites/default/files/policy-memos-pdf/pm_0146.pdf

[33]             Leon Aron, Russia’s Revolution, Essays 1989-2006, the American Enterprise Institute, Washington, D.C., 2007, p. 239.

[34]             Richard Sakwa, Constitutionalism and Accountability in Contemporary Russia: The Problem of Displaced Sovereignity, at: Gordon B. Smith and Robert Sharlet (edt), Russia and Its Constitution, Promise and Political Reality, Martinus Nijhoff Publishers, 2008, p.2.

[35]             Alexei Trochev, Judging Russia, Constitutinal Court in Russian Politics 1990-2006, Cambridge University Press, 2008, p. 32-33.

[36]             Opcit, Stephen E. Hanson.

[37]             Richard Sakwa, Putin: Russia’s Choice, Routledge, 2007, p. 91.

[38]             Alexndara V. Orlova, Organized Crime and the Rule of Law in the Russian Federation, It can be searched at: http://projects.essex.ac.uk/ehrr/V2N1/Orlova.pdf

[39]             Ibid, p. 90.

[40]             Christopher M. Blanchard, etc, Qatar: Background and U.S. Relations, CRS Report for Congress, 2006, p.2.

[41]             http://www.1.next.westlaw.com

[43]             Lina Khatib, Qatar’s Foreign Policy: the Limits of Pragmatism, Blackwell Publishing Ltd, 2013, p. 417. It can be searched at: http://iis-db.stanford.edu/pubs/24060/INTA89_2_10_Khatib.pdf

[44]             Norwegian Peacebuilding Resource Centre (NPRC), Qatar’s human Rights Record, August 2013, It can be searched at:

http://www.hrw.org/sites/default/files/related_material/MENA_2013_September_Qatar%27s%20human%20rights%20record.pdf

[45]             en.wikipedia.org/wiki/Human_rights_in_Qatar

[46]             Allen J. Fromherz, Qatar, A Modern History, I.B. Tauris & Co, 2012, p. 84.

[47]             Opcit, Christopher M. Blanchard.

[48]             Julia Breslin and Toby Jones, Qatar, it can be searched at: http://www.freedomhouse.org/sites/default/files/inline_images/Qatar.pdf

[50]             Opcit, Christopher M. Blanchard, p.3.

[51]             Ibid.

[52]             http://lcweb2.loc.gov/cgi-bin/query

[53]             Ibid.

[54]             en.wikipedia.org/wiki/Human_rights_in_Qatar

[55]             Ibid.

[56]             Human Rights Watch, Building a Better World Cup: Protecting Migrant Workers in Qatar ahead of FIFA 2022, USA, 2012, p. 51-77.

[57]             rt.com/news/qatar-worker-rights-slavery-585/

[58]             Jill Crystal, Oil and Politics in the Gulf: Rulers and Merchants in Kuwait and Qatar, Cambridge University Press, 1995, p. 4.

[59]             Opcit,  Allen J. Fromherz, p. 42.

[60]             Opcit, Christopher M. Blanchard.

[62]             Ibid.

[64]             Ali Khalifa Al Kuwari, Qataris for Reform, it can be searched at:

http://dr-alkuwari.net/sites/akak/files/qatarisforreform-translation.pdf

[65]             Guy J. Pauker, Indonesia in 1964: Toward A “People’s Democracy”?, it can be searched at: http://www.rand.org/content/dam/rand/pubs/papers/2008/P3056.pdf

[66]             Muhamad Daud Berueh, Practice of torture during Soeharto’s regime, it can be searched at: http://www.humanrights.asia/resources/…/04/asPlainPDF

[75]             Feri Amsari, “Menghapus” Banggar DPR, Koran Tempo, Wednesday, March 27, 2013.

[76]             Feri Amsari, Penyamun di Sarang KPK, Koran Tempo, Friday, March 1, 2013.

[77]             Indonesian Legal Roundtable, Indeks Persepsi Negara Hukum Indonesia 2012, ILR, 2013, p. 60.

[78]             Feri Amsari, Kuda Troya bagi MK, Kompas, Thursday, April 4, 2013.