The ‘Rule of Law’ in Burma

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.