The ‘Rule of Law’ in Burma

The WJP Rule of Law Index provides a series of benchmarks for measuring a government’s progress towards the rule of law. While its 2011 Rule of Law Index assessed 66 countries, the WJP has never measured Burma.

The World Bank, however, includes the rule of law in its World Governance Indicators project that assesses the quality of good governance in 213 countries, and has rated Burma in the bottom 5 percent of those countries with respect to the rule of law in every year since 2002.

Even without any outside reports, the clear reality to any Burmese citizen or Burma observer is that the country does not presently have anything approaching the rule of law, and the Burmese government would abjectly fail almost every aspect of an assessment using the WJP’s universal rule of law principles and their components.

Blame for this could easily be assessed, and would no doubt lie with many of those currently in charge of Burma’s government. But although justice may require an assessment of blame, it is not necessary for the purpose of determining where Burma stands today, what reforms are needed and how much progress the government is making in the future.

As the WJP points out, no country is perfect when it comes to the rule of law, and what is an acceptable outcome for Burma depends on circumstances and cultural factors that its citizens have the right to determine.

Under any definition, however, it is clear that Burma is starting from scratch when it comes to the rule of law, and that practices and habits that are deeply embedded in the government, the military and even the society will have to change if anything approaching the rule of law is to be achieved.

This will be a long and arduous process, but it should begin with as much of a shared understanding as possible among the Burmese people as to what the ultimate goal is and what the benchmarks along the way will be.

For this to happen, Suu Kyi and her opposition colleagues need to educate the public about what exactly they mean when calling for the rule of law in Burma.

Therefore, while effective politics must be concise and not get bogged down in academic nuances, it would be a good idea for Burma’s opposition leaders to add a few more details to their stump speeches.

For example, Suu Kyi could explain to her supporters that that her call for the rule of law means that :

• Government officials are accountable to the people, subject to the same laws as everyone else and not corrupt.

• Everyone is treated equally under the law, is given due process of law and is protected by the law.

• The people’s freedoms of expression, assembly and belief are protected.

• All laws are clear, public and prospective, and every person has access to the justice system.

• The judiciary is independent and free from outside influence.

• All laws are enacted in a transparent process that every citizen can witness and participate in.

If Suu Kyi fleshes out the rule of law with basic statements such as these and repeats them often enough so that everyone understands what she means by the term, she will have developed a platform for progress rather just a slogan for political victory.

In addition, she will put those in power on clear notice of what the opposition expects from them. Making specific proposals shines a spotlight on the ruling powers, because every proposal that is rejected can be framed as a rejection of the rule of law in Burma’s quest for democracy.

In that respect, if President Thein Sein really wants reform, then he would be well-advised to actually invite the WJP into Burma to perform an independent assessment. This would not only demonstrate his commitment to rule of law, but give his government an objective understanding of where Burma stands today.

Although many factors will determine how fast the country can progress towards the rule of law, if power players can be convinced it is in their own best interest, rule of law reforms will move faster. As a result, it may ultimately be the demands of potential investors that spur rule of law reform efforts in Burma.

Care should be taken, however, to ensure that rule of law reforms happen across the board and protect the rights of all citizens, not just the economic rights of the powerful, the elite and the foreign investment community.

It must be also stressed that while democracy is not necessarily a component of the rule of law, it is one of the best ways of ensuring that the rule of law exists. In addition, while it may be possible to have the rule of law without true democracy, Burma cannot have a true democracy without the rule of law.