The ‘Rule of Law’ in Burma
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Monday, November 30, 2020
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The ‘Rule of Law’ in Burma


By STEPHEN BLOOM Wednesday, February 1, 2012


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Before the Bill of Rights was adopted, could it really be said that the US had the rule of law?

In any event, even if certain fundamental rights are not technically within the definition of the “rule of law,” they are still factors worth striving for, and so measurement of them should go hand in hand with measurement of the rule of law and should not be dismissed on a legal technicality.

It remains important, however, to understand the competing concepts of the rule of law, because if members of Burma’s political opposition fail to understand the debate, they risk being manipulated by those with personal vested interests on one side or the other.

The WJP has endeavored to strike a fair and measurable balance between the two definitions, and has fleshed out the components and meaning of the rule of law in an index that any opposition politician or activist in Burma would be well-served to become familiar with.

The Rule of Law Index developed by the WJP is based on four universal principles that incorporate ten different dimensions of the rule of law, all of which will be critical to Burma’s political, legal and economic development.

The WJP’s first universal principle is that a government and its officials are accountable under the law.

This means that government officials are subject to the law the same as any citizen, their powers are limited by laws, checks and balances, an independent judiciary and the freedom of the press, and they are punished for misconduct.

It also means that the government is not corrupt—i.e. that government officials exercise their functions without improper influence and do not request or receive bribes or misappropriate public funds or other resources.

The WJP’s second universal principal is that the laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.

If the factors making up this second principal are in place, the general public knows what the law is and what conduct is permitted and prohibited.

In addition, if the rule of law is in place and enforced, then the general public does not fear for their safety or their property. Crime is under control and people do not resort to violence to redress personal grievances.

Finally, the second universal principle says that the fundamental rights of equal treatment and non-discrimination under the law are guaranteed and applied, as well as the right to due process of law, freedom of opinion and expression, freedom of assembly and association, fundamental labor rights and other similar rights that bear an essential relationship to the rule of law.

The principle does not include, however, all of the social, economic, and cultural rights that could be found, for example, in the Universal Declaration of Human Rights. This does not mean these rights are unimportant, just that they should not be included in measuring progress towards the rule of law.

The third WJP principle is that the process by which the laws are enacted, administered and enforced is accessible, fair and efficient.

This means that government proceedings are open to the public and official information is reasonably available. It also means that regulations are effectively enforced and applied fairly, equally and without improper influence, and that the government does not expropriate private property without adequate compensation.

This principle does not address, however, the question of whether the laws are enacted by democratically elected representatives, and therefore implies that countries without Western-style democracies can still have the rule of law.

Access to government must still be present, however, and the indications of whether this is the case include whether lawmaking proceedings are held with timely notice and are open to the public; whether the lawmaking process provides an opportunity for diverse viewpoints to be considered; and whether records of legislative and administrative proceedings and judicial decisions are available to the public.

Fairness in the administration of the law includes the absence of improper influence by public officials or private interests, the adherence to due process of law in administrative procedures and the absence of government takings of private property without adequate compensation.

The fourth and final WJP principle is that access to justice is provided by competent, independent and ethical judges and attorneys who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

This means that the general public is aware of available remedies and can access and afford legal counsel in civil disputes. It also means that civil justice is impartial, free of improper influence and unreasonable delays, and is effectively enforced.

With respect to the criminal justice system, it means that the system of adjudication is timely, effective, impartial and free from outside influence.



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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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