The ‘Rule of Law’ in Burma
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The ‘Rule of Law’ in Burma


By STEPHEN BLOOM Wednesday, February 1, 2012


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Over the past several months, Burma’s pro-democracy icon and opposition leader Aung San Suu Kyi has constantly repeated the refrain that the government must establish the “rule of law.”

That’s a worthwhile goal, as well as a necessary achievement if Burma is going to raise the quality of life and standard of living for its 54 million long-oppressed and impoverished people.

In the words of William H. Neukom, the president of the World Justice Project (WJP), “The rule of law is the foundation for communities of opportunity and equity—it is the predicate for the eradication of poverty, violence, corruption, pandemics and other threats to civil society.”

But what does the “rule of law” mean?

The answer is important, because if Suu Kyi cannot articulate, communicate and get general agreement on what the “rule of law” means to the Burmese people, it threatens to become just a political slogan rather than a tangible goal towards which objective progress can be measured.

This is easier said than done, however, because just like the term “democracy,” there are many different interpretations of the “rule of law.” As a result, for Suu Kyi to both define and gain a shared understanding of the rule of law may be the political equivalent of rounding up a school of fish with her bare hands. But it is important that she try.

Even legal scholars and political scientists cannot agree on the meaning of the rule of law. On a macro level, the people wishing to nail down the concept fall into two camps: the proponents of a “thick” definition and the proponents of a “thin” definition.

A thick definition of the rule of law would include both adequate procedures to ensure that Burma is “a government of laws and not of men,” as well as substantive laws that protect fundamental human and democratic rights.

The UN secretary-general’s definition of the rule of law provides an example:

The rule of law is “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

This is a good definition, and if broken down could be one useful way of measuring Burma’s progress towards the rule of law.

But the problem with adopting a definition which is too “thick” is that it allows a great deal of discretion by both authorities and citizens, uses terms that are vague and difficult to define, and therefore runs counter to important aspects of the rule of law.

The risk is that anyone who believes a law is unfair or was not democratically adopted could choose not to abide by it and argue that the action is justified.

For this reason, the advocates of a “thin” definition say that the term “rule of law” should apply to procedures only—i.e., that a law must be prospective, well-known and have characteristics of generality, equality, and certainty, but the content of the law and how it was adopted are irrelevant.

The “thin” definition, however, would allow the Burmese government to argue that the rule of law exists even if democracy and individual rights do not, which is clearly problematic.

The former chief justice of South Africa, Arthur Chaskalson, had a persuasive response to those who argue for a strictly “thin” definition.

He pointed out that the apartheid government was accountable in accordance with laws that were clear, publicized, and stable, and were upheld by law enforcement officials and judges. But the process by which the laws were made in South Africa under apartheid was not fair because only whites, a minority of the population, had the right to vote, and the laws themselves were not fair because they institutionalized discrimination, vested broad discretionary powers in the executive and failed to protect fundamental rights.

Without a substantive content, Chaskalson said, there is no answer to the criticism that the rule of law is “an empty vessel into which any law could be poured.”

Even the US could be used as an example of what happens when a definition that is too “thin” is adhered to.



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COMMENTS (12)
 
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KML Wrote:
07/02/2012
There are variety “Rule of Law” in ad hoc societies such as gambling dens, drug cartels and youth gangs. There are set of rules must follow irrespective of legality of the establishment and failure to do so may results in prescribed penalty. If a “drug mule” tips off the authority, then the heads of him and his dearest would be chopped off. If someone withdraw from an illegal youth gang member and he is considered hypocrite! If the “Daing” failed to pay illegal “Che Hti” prize, he may be slashed to death. To avoid such kind of confusion, I would like to reframe this topic as “Rule of Law under International Norms”.
We also need to recall “Draconian Law” in early days comparable with existing laws in Burma. We do not forget that someone was prosecuted and jailed in Rangoon in 1996 just because of owning a fax machine without permission.

janet benshoof Wrote:
07/02/2012
Former Senior General Than Shwe, working in concert with former Chief Justice U Aung Toe, perfected using court orders of imprisonment as “weapon of fast destruction” against perceived regime threats, including Aung San Sui Kyi. There can be no rule of law in Burma until this ultimate perversion of law is addressed; criminal judges must be removed from office and held criminally accountable for crimes against humanity and war crimes as were top judges under Hitler, Emperor Hirohito, and Saddam Hussein. Given constitutional amnesties and the lack of an independent judiciary, only the ICC can ensure they are prosecuted. However, pending that happening, these judges should be prosecuted by other states when they travel outside of Burma under universal jurisdiction. Former political prisoners and other victims are entitled to both reparations and to see “the jailers—and their military bosses-- jailed”.

timothy Wrote:
07/02/2012
This is very good article. It is simple truth. If Burma does not have Rule of Law, it will never see the democracy. The people had suffered nearly half a century under successive military regimes with corrupted bahaviours and mindset simply for suvival in the ruin of No-Trust Society. The military regime had conciously built up the corruption habbits to make sure that everyones under the big brother`s society are with stigmata of crime. They had systematically dismantle all the rules. They had taught the people to break the rule and hate the honesty. I do honour those who do not participate in this circus of corruptions, and accept the their failed lives. Lack of Rule of Law would bring burma back to Dictatorial state even if it gains the democracy.

Tom Tun Wrote:
04/02/2012
There are 2 good novels when it comes to rule of law.(1) Le Miserables, particularly the police man Javare, he thinks he know what is crime and justice. (2) Crime and Punishment, Rushkulnikov, the murderer, who thinks lone shark old lady (murder victim) is the scum of the society. On the other side, Rushkulnikov did not see society outcast old people. How would old people survive with their limited physical strength without social support? One sided point of view without public discussion for wisdom and common sense sometime can drive the whole society into the darkness. It is a great article, I love it.

Htet Wrote:
04/02/2012
Stephen
Thank you for your article. It's good. One vital linguistic aspect to add.
You failed to touch upon the meaning of the term 'rule of law' in Burmese. The term is "tayar-oo-ba-de soe moe yay" and literally means 'justice and laws above everyone' which arguably encompasses some elements of both thick and thin definitions of the term. Thick in that it includes the word 'justice' and not just 'laws'. In other words the basic concept is there already in that loaded term.

KML Wrote:
03/02/2012
During the time of Hammurabi, only two classes of people in the country: MASTERS ( free man) & SLAVES. As SLAVE and FREE man differs according to Hammurabi code, it clearly indicates responsibilities and privileges during that time. But Ne Win and subsequent era, at least six types of people in Burma according to 1982 citizenship Law. The responsibilities and privileges of all six types are not clearly mentioned in 2008 Constitution.
Dear President U Thein Sein, will you still be keeping the 1982 Citizenship Law , which is very much inferior to the Hammurabi code? If not, it is the right time to clean up the Ne Win era crap.


KML Wrote:
03/02/2012
The first documented law in the human history seems to be “The Code of Hammurabi”
http://en.wikipedia.org/wiki/Code_of_Hammurabi
{The Code of Hammurabi, dating back to about 1772 BC. It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code. The Code consists of 282 laws, with scaled punishments, adjusting "an eye for an eye, a tooth for a tooth" as graded depending on social status, of SLAVE versus FREE man.}

Do we Burmese have any … such as code of Ne Win, Than Shwe, Khin Nyunt etc.. if not, we need to have one or more to fulfill the daily need of Burmese people.. ..

2008 constitution is just “Constitution Law”, one specialty out of 200- 400. It took 20 long years.. and how about other laws?
Remember! The law in making or at hand must be enforceable.. Otherwise it would just fuel the existing notorious ranking of corruption in Burma.

Myanmar Patriots Wrote:
03/02/2012
Rule of law? Whose law? My law? Our law? Your law? Law for democracy to deceive people and get power, tax them, live on the proceeds and make laws to exploit them?

Come on. Rule of law is so very vague.It is social justice and human rights that will usher in prosperity. The law is an ass. It must be broken sometimes.

Unless you understand the doctrine of the separation of the powers, you cannot understand the meaning of 'rule of law'.

Oo Maung Gyi Wrote:
02/02/2012
Majority Burmese peoples knows that what is rule of law, because they are staying nearly 49 years under a country where does not exist rule of law. Therefore now Suu Kyi under her political campaign rule of law is one agenda. Second agenda is PEACE and the third is amendment of present constitution. Therefore whole Burmese society's duty is that to support her party NLD candidates in coming by-election.

KML Wrote:
02/02/2012
I would like to know whether “1982 Burma Citizenship Law” applied to any of “Thick”, “Thin”, “UNSG”, “people on the street” meaning of “Rule of Law”? If not, abolishing that discriminatory and shameful Law must be a precondition for the Democracy and Rule of Law in Burma.

References :
1. Burma Citizenship Law
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6b4f71b
2. General Ne Win Speech ( translation) Meeting held in the Central Meeting Hall, President House, Ahlone Road, 8 October 1982, ,The Working People’s Daily, 9 October 1982, explaining the 1982 Citizenship Law
http://www.burmalibrary.org/docs6/Ne_Win's_speech_Oct-1982-Citizenship_Law.pdf

Ko Ye Wrote:
02/02/2012
I think you better come to Burma and be the leader! Mind you, Burmese people might be poorly educated under successive military rules, but not idiots. They might not speak English but know what is right and wrong.

Whatever you call it 'rule of law' or something else, we don't bother. We have one word and one meaning that everyone understands well. If you think you are so smart and have better ideas than the Lady, you better run for an office against Obama but not in Burma.

It is unbelievable that the Irrawaddy gave you a space. If you want to have a tongue-lashing piece at such a length, you better write for a scholarly journal.

Roland Watson Wrote:
02/02/2012
Mr. Bloom's presentation is brilliant. Please keep it on the Irrawaddy website for years to come.

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