The ‘Rule of Law’ in Burma
By STEPHEN BLOOM Wednesday, February 1, 2012

(Page 3 of 4)

In other words, the due process of law and rights of the accused are effectively protected.

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.

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KML Wrote:
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:
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:
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:
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:
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:
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:
The first documented law in the human history seems to be “The 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:
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:
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:
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
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's_speech_Oct-1982-Citizenship_Law.pdf

Ko Ye Wrote:
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:
Mr. Bloom's presentation is brilliant. Please keep it on the Irrawaddy website for years to come.

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