The ‘Rule of Law’ in Burma

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.