The Factors of Constitutional Support for the Rule of Law in the System

of Public Authorities

MYKOLA M. STADNYK

Department of Public Policy and Political Analytics, National Academy for Public Administration under

the President of Ukraine

3A Zarichna Street, 02132, Kyiv

UKRAINE

SERHII B. CHEKHOVYCH

Legal Policy Directorate, Office of the President of Ukraine

11 Bankova Street, 01220, Kyiv

UKRAINE

HANNA S. YERMAKOVA

Institute of Legislation of the Verkhovna Rada of Ukraine

4 Nestorivsky Lane, 04053, Kyiv

UKRAINE

and

Private Joint-Stock Company “Higher Education Institution ”Interregional Academy of Personnel

Management” ”

2 Frometivska Street, 03039, Kyiv

UKRAINE

VALERIY V. KOLYUKH

Department of Political Sciences, Faculty of Philosophy, Taras Shevchenko National University of Kyiv

60 Volodymyrska Street, 01033, Kyiv

UKRAINE

ILKIN S. NURULLAIEV

Department of International Law and Comparative Law, Faculty of International Relations, National

Aviation University

1 Liubomyra Huzara Avenue, 03058, Kyiv

UKRAINE

Abstract: - The article examines the factors that ensure the constitutional provision of the rule of law in the system

of public authorities. The aim of this study was to analyse the factors that ensure the constitutional provision of the

rule of law in the system of public authorities. The constitutional design provides for the creation of rational

structures for the functioning of public authorities, which should ensure democratic standards, economic

development, anti-corruption policy by implementing the principles of the rule of law. The study used data on

indicators that describe the state of the rule of law (Rule of Law Index), democracy (Democracy Index) and

corruption (Corruption Perceptions Index). Methods of graphical comparison, scattering diagrams, classification of

countries by categories were used. A graphical model of the dependence of the rule of law on the development of

democracy and perceptions of corruption for 25 European countries is built on the basis of these factors. It is

proved that the studied indicators are dependent: countries with a high Rule of Law Index (high level of restrictions

on the powers of government institutions, protection of fundamental rights, law enforcement, security) have a high

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DOI: 10.37394/232015.2022.18.20

Mykola M. Stadnyk, Serhii B. Chekhovych,

Hanna S. Yermakova, Valeriy V. Kolyukh,

Ilkin S. Nurullaiev

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Corruption Perceptions Index (high level of anti-corruption) and Democracy Index. It is concluded that it is

necessary to develop the constitutional provision of the rule of law by strengthening democratic values, improving

economic growth and competitiveness, increasing control over corruption. Further research should analyse the

impact of rule of law factors in low- and middle-income countries.

Key-Words: Rule of Law, Public Administration, Democracy, Constitutional design, Corruption Perceptions Index.

Received: May 17, 2021. Revised: November 7, 2021. Accepted: December 17, 2021. Published: January 13, 2022.

1 Introduction

The Constitution as the basic law forms certain limits

that should regulate social relations. The core of

these relations are issues related to economic and

political organisation; establishment and functioning

of government institutions and the relationship

between the citizen and the state. Based on the

functions of the Constitution, the main directions of

its organising influence are the economic, political

and social spheres of public relations. The

Constitution plays a key role in the formation of a

democratic, legal state with the establishment of the

rule of law, the priority of human rights and

freedoms. Voting rights affect the openness of the

electoral process, political restrictions, and the

freedom of establishing parties. In addition to the

right to vote, there are broad electoral rules related to

the quality of political and socio-economic

institutions: accountability and representation.

Accountability allows voters to identify decision-

makers and policy makers. It is believed that greater

representation generates policies that benefit the

general population and increase public goods [1].

The rule of law, human rights and democracy are

European values that define the concept

“constitutional democracy”. The rule of law has

become a central task of strategies in the field of

state-building, conflict resolution and economic

development. Modern constitutional systems have a

wide variety of models that use party systems,

governance structures, consensus democracy, and

opposition activities. Democratic constitutions limit

the powers of public authorities and protect

fundamental human rights, which generally shape a

free and open society. This is mainly realised through

the creation of elected and representative institutions

of governance, guaranteeing human rights

(demonstration of one’s views, freedom of assembly,

right to confidentiality, property rights, freedom of

movement, upholding the right to a fair trial) [2].

According to [3] the rule of law is important for

economic development, justice, conflict, crime and

violence prevention and containment, increasing

accountability, reducing corruption, strengthening the

equitable distribution of services. The main aspect of

constitutions that affects political and socio-

economic institutions relates to the form of

government, in particular the distinction between

parliamentary and presidential regimes. It is believed

that presidential regimes show more responsibility

because they single-handedly concentrate executive

powers, reporting directly to voters. Parliamentary

democracy is less accountable because policy

outcomes are not embodied with specific decision-

makers, given the parliamentary nature of the

negotiations. Personal rights enshrined in

constitutions can form political institutions through

political competition and participation in elections.

Discussion of existing theories identifies broad

categories of constitutional variables that should

influence political and socio-economic institutions:

electoral rules, the system of checks and balances,

the rule of law and human rights [1].

The concept “separation of powers” is defined as

a state system which involves three branches of

government, being in balance defined by law and

provided with legal regulations, with the right to

control the compliance with the law. The rule of law

is becoming the centre of a modern democratic

system in which none of the powers of the state has

precedence and in which each form of government

balances the other [4]. By ensuring the rule of law,

the main tasks in the system of public administration

aimed at political and socio-economic development

are implemented, and corruption is curbed.

The constitution is based on a modern

institutional design with a certain distribution of

power between different political institutions. The

emergence of constitutions as a key element in the

transition from autocracy to democracy has increased

the spread of various institutional decisions regarding

the separation of powers. As this spread leads to the

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Ilkin S. Nurullaiev

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creation of unique constitutional hybrids, it is

important to understand the degree of internal

coherence of constitutional provisions. Institutions

that balance each other through checks and balances

are necessary for the development of democracy.

These results have significant implications for

institutional design and the issue of the best

institutional solution in democratic consolidation [5].

Based on the above, the key issue is the

implementation of the principles of the rule of law in

the system of interaction of public authorities, which

provide democratic institutions and exercise control

over corruption. So, the main purpose of this study is

to analyse the formation of factors of constitutional

support for the rule of law in the system of public

authorities. The main objective of the study is to

identify key factors related to the rule of law and to

determine the impact of individual factors on

strengthening the rule of law as a key basis for the

functioning of the public administration system.

2 Methodology

The methodology and practical approach of the work

uses the available data on the indicators of the rule of

law, democracy and corruption perception in 2020

[6-8]. The study is based on selected results from

previous studies [9]. The research by [1] proves the

connection between the constitutional construction of

electoral systems and the guarantee of human rights

with the rule of law. Other researchers confirm

possible relationships between the rule of law, anti-

corruption policy and democratic institutions [10].

Using this approach, we proposed our own

characteristics of the rule of law, democracy and

corruption perception. The next step was to

determine the relationship between these indicators.

Informational and analytical sources were used as an

empirical basis, which contain processed data on the

peculiarities of the modern processes for the

establishment of the rule of law, development of

democracy and anti-corruption activities. The study

used some approaches used in the correlation

analysis of data [11-12]. The Rule of Law Index

assesses the rule of law through several indicators.

Restrictions on powers and transparency of

government institutions, absence of corruption,

protection of rights, order and security, observance of

laws, and justice are determined. The Rule of Law

Index is the main source of independent data on the

rule of law. The Index is designed to promote

political reforms, development programmes, and

inform researchers to strengthen the rule of law [8].

In order to determine the perception of public sector

corruption in different countries around the world,

the Corruption Perceptions Index was used [13]. The

last factor used is the Democracy Index developed by

[6], which is a well-known indicator of the state of

democracy in the country. The Democracy Index

determines the democratic manifestations based on

the following categories: civil liberties; electoral

process and pluralism; functioning of the

government; political participation; political culture.

Based on the available data on the Rule of Law Index

for individual European countries, existing empirical

studies on democracy and corruption, the study is

based on an assessment of the impact of these

predictors on the rule of law. Based on the obtained

data, graphical models of ensuring the rule of law

and the changes that took place in 2015-2020, as well

as the dependence of the rule of law on democracy

and the corruption perception index for 25 European

countries, which will allow identify the degree of

influence of certain factors on the constitutional

formation of the rule of law.

3 Results

The task of the Constitutions is to mitigate the

influence of government in different ways, through

different orders in society, institutional separation,

multi-party systems and the role of the opposition.

The need to express different public views through

constitutions, the embodiment of ideas and interests

through institutionalised, open and representative

political processes has positive consequences. This is

determined by the rational formation of governments

by political coalitions, which must ensure sustainable

economic development and a decent standard of

living. Analysis of the relationship of the rule of law

with the high economic level of the country shows

certain trends. Figure 1 shows the values of the Rule

of Law Index in 2020 of 25 European countries

covered in the study and the level of GDP per capita.

As the above data shows, we can talk about a certain

trend: countries with a higher level of GDP per capita

mostly have a higher Rule of Law Index. Tracking

the progress of European states in building the

various components of the rule of law, it can be noted

that positive changes have not taken place in all

countries. The chart (Figure 2) classifies European

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countries taking into account the increase or decrease

in their assessments of the rule of law in 2020 and the

results of the indicator compared to 2015 (increase,

stable value, decrease).

Fig. 1: Rule of law index and GDP per capita, 2020 [8, 14]

Fig. 2: Ensuring the rule of law and the changes that took place in 2015-2020 [8, 15]

The most negative results should be noted.

Indicators of the rule of law of Hungary for 5 years

decreased in the areas of: limitation of powers of

government institutions (-0.09), protection of

fundamental rights (-0.08), civil and criminal justice

(-0.08). Poland reduced its indicators in the areas of:

limitation of powers of government institutions (-

0.19), protection of fundamental rights (-0.13),

criminal justice (-0.14). Over the last decade, the

growth of electoral autocracy has been largely the

result of the gradual disintegration of democracies.

From 2018 to 2019, Hungary began to be classified

as an authoritarian regime, which is a significant

example of democratic regression in recent times.

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Hungary was classified as a liberal democracy in

2009, but in 2014 the rate of freedom and fairness of

elections declined, and the media, civil society and

civil liberties became significantly limited. Similarly,

Poland has deepened its autocratic position over the

past 10 years. The events in Poland testify to the

gradual elimination of media freedom and the

collapse of civil society, given the laws on the media

in 2015-2016.

The concept of democracy includes various

elements: competition in elections, constitutionalism,

discussion and political equality. Democratic norms

in society should be accompanied by increased

freedom of speech and the press, which publishes

information about participation in political life and

competition in the election race. European countries

surveyed in terms of democracy development on the

basis of the Democracy Index have different

indicators: from 5.89 (Northern Macedonia) to 9.81

(Norway). The relationship between the Rule of Law

Index and the European Democracy Index is shown

in Figure 3. The scatter chart proves the relationship

between the Rule of Law Index and the Democracy

Index. The scatter plot shows that there is a linear

relationship with a positive correlation, ie an increase

in the value of the Democracy Index corresponds to

an increase in the value of the Rule of Law Index.

The quality of the model according to the coefficient

of determination (R2) is 0.872, which is an acceptable

level. There are countries with the highest level of

democratic environment and the highest indicators of

the rule of law.

Fig. 3: The relationship between the Rule of Law Index and the Democracy Index [6, 8]

Another approach was to determine the perception of

the level of corruption in the public sector. The

methodological approach was based on the use of the

Corruption Perceptions Index as an indicator of

corruption control. This index quite objectively

determines the anti-corruption policy in the country.

In this case, assessments of the following issues are

used: bribery, misuse of budget funds, state

opportunities to curb corruption, mechanisms of

criminal liability for corruption, disclosure of

financial information. European countries surveyed

in terms of the Corruption Perceptions Index vary

from 35 in Northern Macedonia to 88 in Denmark.

The relationship between the Rule of Law Index and

the Corruption Perceptions Index in Europe is shown

in Figure 4. The scatter chart shows the relationship

between the Rule of Law Index and the Corruption

Perceptions Index. The scatter plot shows that there

is a linear relationship with a positive correlation, ie

an increase in the value of the Corruption Perceptions

Index corresponds to an increase in the value of the

Rule of Law Index. The quality of the model

according to the coefficient of determination (R2) is

0.952, which is an acceptable level. There are

countries with the highest level of anti-corruption

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environment and the highest indicators of the rule of law.

Fig. 4: The relationship between the Rule of Law Index and the Corruption Perceptions Index [8,13]

Corruption also affects democratic rights and the rule

of law. Some approaches to tackling corruption could

be to improve the quality of education, increase

women’s participation in public administration,

delegation, freedom of the press and the rule of law.

It is important to find out the influence of the

peculiarities of the constitutional separation of

powers on the rule of law. If we analyse the forms of

government in Europe on the basis of data [16] we

can note the following: the vast majority of countries

with the highest level of rule of law are parliamentary

constitutional monarchies. This suggests that the

constitutionally defined form of separation of

powers, where the executive branch is headed by a

prime minister.

4 Discussion

The results prove that the rule of law is one of the

foundations for ensuring the development of

countries with a high standard of living. Moreover, it

can be noted that strengthening the rule of law is one

of the effective elements of economic development,

which ensure the competitiveness of the state and

shape the quality of life. This confirms the

conclusions of scholars that the needs of the

comprehensive development of society and the

citizen, the constitutional provisions, provide

effective global rules. These approaches encourage

the state to finance, control and implement poverty

reduction policies [17]. Another study demonstrates a

direct empirical relationship between the rule of law

and key economic indicators [1]. Effective rule of

law reduces poverty, strengthens the social protection

system, and is the foundation of justice, opportunity

and peacekeeping, accountable government and

respect for fundamental rights for communities [8].

Analysis of the factors that ensure the rule of law

on the basis of strengthening democratic values and

expanding anti-corruption activities, proves the

importance of these factors in strengthening the rule

of law in European countries. Despite significant

efforts to ensure governance through the rule of law,

there is a mismatch between expectations from

political declarations and actual results [18]. Some

researchers [19] argue that the ineffectiveness of rule

of law reforms may stem from a mismatch between

the legal aspects of governance and the social norms

that govern citizens and officials; that is, ignoring

system effects.

The limitation of the study is the coverage of only

certain European countries, mostly with a high level

of development. Besides, the results contain available

data for 2020 and 2015. For a more complete

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analysis, it is advisable to involve more countries

with different levels of economic development. There

is one more issue of the methodological approach to

the use of an expanded set of indicators that shape

the factors of the rule of law. Some studies claim that

the level of corruption is lower in more affluent

countries than in poorer countries [7], which is

reflected in the results. Combined with higher

economic growth, wealthy countries tend to have

strong legal, institutional, and educational

mechanisms to reduce corruption. The findings point

to clear reform priorities, as stronger democratic

institutions and the rule of law improve control over

corruption. Evidence suggests the need for freedom

of expression, improved regulation and a stable

political climate to further strengthen the capacity of

political institutions to control corruption.

Strengthening political institutions can reduce

corruption by creating favourable conditions for

sustainable economic development [10].

Improving the efficiency of public authorities and

ensuring positive changes in the institutional

environment is possible by intensifying anti-

corruption activities [20]. Corruption influence

creates negative consequences in the system of public

authorities; narrows the constitutional rights and

freedoms of citizens; violates the principles of the

rule of law; inhibits and distorts political and socio-

economic reforms [21]. Research mainly shows that

corruption increases the misallocation of economic

resources, reduces economic growth, slows down

productivity and increases income inequality [22].

The theory of political competition states that the

strength of democratic institutions is closely linked to

the ability to control corruption. In strong

democracies, political competition (elections,

citizens’ own rights and freedom of the press)

improves transparency. This ensures that public

authorities are responsible for making decisions. The

rule of law is associated with higher control of

corruption, other things being equal [10].

In the study of the links between the strength of

democratic institutions and the control of corruption;

between government efficiency and control of

corruption, as well as between legal institutions and

control of corruption, high-quality state and political

institutions are important and positively associated

with a strong anti-corruption policy. Freedom of the

press strengthens the link between the government

and the political institutions that control corruption.

This conclusion confirms the assumption [23] that

the introduction of freedom of the press should be

accompanied by information on the detection of

fraud and corruption. The quality of regulation and

political stability significantly enhances the ability of

government and political institutions to control

corruption [10].

The authors of [24] identify their own

determinants of the anti-corruption environment with

direct policy tools: education, freedom of trade, rule

of law, political rights. The quality of government

and political institutions is positively related to

efficiency and public development, determining

control over corruption [10]. Based on the meaning

of the rule of law, the key factors may be democratic

principles (openness of society, respect for rights)

and the absence of corruption [25]. Another model

covers the systemic features of corruption in most

countries: adaptive government, which sets budget

priorities (resource allocation) in several decision-

making bodies; civil servants who decide on the use

of resources, and a network of externalities among

policy issues (e.g., health, education, infrastructure,

public administration, etc.) [18].

Democracy in the modern world is seen as a

system of state organisation in which the rule of law

is ensured by concrete means, and all aspects of

political and social life are dictated by the rule of the

majority through legal institutions [4]. Another study

of the factors of democracy focuses on general

indicators of democracy: the level of freedom, the

combination of political rights and civil liberties, as

measured by the V-Dem Liberal Democracy Index

[26]. The approach used (horizontal accountability

V-Dem) specifically aims to demonstrate the element

of prevention of abuse of power, which changes the

relationship between the president, parliament and

government [5]. According to some data, the link

between economic development and democracy is

observed only in relation to the electoral component

of democracy (the competitive national elections and

the procedural integrity of the electoral process) [9].

Research shows that in countries with a higher

quality of democracy, the state refrains from taking

measures that are potentially contrary to democratic

principles. Political institutions limit policy choices

in times of crisis: previous decisions about models of

political institutions reduce the decision-making

space for political actors. Countries that develop

personal freedoms continue to do so even in

emergencies [27].

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It should be noted that the indicators used in this

study (Corruption Perceptions Index, Democracy

Index) confirm the theses of the above scholars about

the level of rule of law depends on the general state

of democracy in the country and the effectiveness of

anti-corruption policy. The indicators used in the

study (as a characteristic of the factors ensuring the

rule of law) proved the correctness of the

methodology on the example of 25 developed

European countries. The proposed approaches may

describe the need to ensure the rule of law by public

authorities, developing democracy, strengthening

control over corruption and improving the quality of

life. The analysis of the influence of factors was

carried out separately for each area. Further research

needs to use more predictors that influence the rule of

law (gender gap, human development index,

competitiveness index), and develop a methodology

that takes into account the impact of political and

socio-economic institutions on the rule of law.

5 Conclusion

Thus, modern models of the constitutional

organisation of the system of public authorities

provide for the functioning of high-quality political

and socio-economic institutions. These institutions

are aimed at establishing the rule of law, democratic

foundations of public policy and guaranteeing human

rights. A study of individual European countries has

identified the impact of the level of democracy and

the level of corruption perception on the rule of law.

The consequences of a high level of the rule of law

are significant economic growth, increased

competitiveness of the country, social justice and

increased confidence in government institutions.

Unfortunately, not all processes of ensuring the rule

of law strengthen the positions. The experience of

European countries in recent years proves the

possibility of regression in ensuring the rule of law

through the introduction of certain undemocratic

legislative provisions. In the context of the research

topic, it is proved that the development of the rule of

law involves the factors that allow the introduction of

democracy in the state and strengthening anti-

corruption activities. Democratic values allow

maintaining political culture, ensuring civil liberties

and political participation, and exercising the right to

electoral process and pluralism. Anti-corruption

activities are based on public awareness, civic

control, accountability and openness. It is determined

that the constitutional distribution of powers of

public authorities with a strong executive branch

headed by the Prime Minister ensures a significant

level of the rule of law. The study proves that the

combination of the constitutional provision of certain

models of power, the development of democratic

values and anti-corruption principles of political and

socio-economic institutions allow achieving high

levels of the rule of law. Further research should

focus on determining the impact of factors that form

the rule of law in low- and middle-income countries.

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Hanna S. Yermakova, Valeriy V. Kolyukh,

Ilkin S. Nurullaiev

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