This text is based on a version that I wrote in my capacity as Head of the European Union Police Mission in Bosnia&Herzegovina, in 2012. I replaced the specific links to this amazing and so much torn country on the Western Balkans with more general contexts. What came out of it has deep relevance to everything I am doing these days.
“The rule of law is a principle basing the relationship between citizens and authorities on a legal framework rather than the arbitrary execution of power. It ensures that any government action is based on law and legality. As the late British Judge Tom Bingham describes it: “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.“
Law is made by a political process. The application of law is ensured by an apolitical system of governance. Actions of police and other parts of the executive are governed by this law. These laws are the only basis and set the limits of democratic policing. The limits of policing are also to be found in international human rights norms, such as the European Convention of Human Rights which is directly applicable law in Bosnia and Herzegovina. When police interacts with citizens, all actions have to be within the legal framework set for those interaction. No questioning of a witness or a suspect, no arrest, no seizure of evidence may happen without a legal framework providing for it. No arrest, interrogation or search must happen on political request or undue influence.
It is the very fact that interactions of the police with citizens are bound by law which constitutes the basis for the principle of “operational independence”. Because the law has no space for political interpretation, the police applies the law without political interference, but based on the principle of legality.
The police must also act on concerns and requests of citizens. Setting policing policies is part of government action and requires strategic political decisions. The professional conduct of police is based on modern values cultivated by leadership. Leadership has to lead by example.
This requires responsible education and training. Policing as a service is consuming public resources. For all this, and more, the police must account for. Thus, operational independence and adherence to the law does not exempt the police from being accountable on administrative and managerial levels, within a larger system of governance. All parts of
public administration, including the police, are part of the executive branch, and as such, policing is also subject to legitimate policy discussions. This is necessary to reflect the interests and demands the citizens channeled through the democratic process. Police action is therefore also subject to the scrutiny of the courts.
Appropriate solutions must integrate the police into a reliable framework of accountability. In all situations where the International Community assists in the reestablishment of governance, affected by conflict, broken down as a consequence of conflict, or having been part of the conflict, a home-grown solution ensuring accountability has to be found. In our assistance to the establishment of sustainable policing arrangements and the rule of law in countries affected by conflict, international policing is monitoring and advising on the establishment of a better system of law enforcement.
Such a system is the true cornerstone of the rule of law. We respect the political discussions about the legal framework that govern the work of the police. Law is never static. Its development is an important element of democratic life. In the resulting democratic discourse, international policing assistance is not party and cannot take sides.
Our role relates to whether a law meets requirements, standard, and best practice. A political discussion whether lawmakers are motivated by the right spirit, or not, is not a discussion in which international policing has a public place. However, we raise our voices internally, in true partnership with those who we assist.
Publicly, we may assess whether any of the laws in question does contribute to a legal framework in a manner that is reflecting international standards, and international principles. We also monitor and assess whether practical action of authorities, be it police, criminal justice system, or ministries, adhere to text and spirit of the law, to the rule of law and to the principles of democratic governance.
We encourage that the actors in the political arena lead a discussion in an open, fair, factual and transparent manner. A meaningful discussion needs to involve consultation of all stakeholders, and the general public. This will allow for a discussion about substance which should replace rhetoric. This applies also to stakeholders from the police. We expect and see that police is invited to contribute their opinion as experts.
Experts should limit their contributions to expertise and refrain from participating in the political exchange of arguments. Otherwise, important factual contributions get blurred in political rhetoric undermining the credibility of the arguments.
The area of justice, liberty and security is a particularly important field for the rule of law. The ability to discuss and pass relevant legislation remains an important test for the maturity of any democracy.”