What does rule of law actually mean for Burma?

What does rule of law actually mean for Burma?

This is the second article in a two-part series examining calls for constitutional revisions and ‘rule of law’ rhetoric in Burma. The first part can be read here.

Even if Aung San Suu Kyi and the cadre of international rights activists institute their ideal rule of law system – formally establishing checks and balances, granting ‘human rights,’ providing mechanisms for judicial review – these institutions still have to be invested with specific political meanings.

Left alone, it can merely serve the existing vested interests.

As British colonial officer John Furnivall said in 1948 about the colonial-era regime, “The rule of law becomes, in effect, the rule of economic law.” Furnivall went on to argue that the rule of law “naturally expedites the disintegration of the customary social structure.”

As legal scholar David Kennedy reminds us, this is still true today: “The idea that building ‘the rule of law’ might itself be a development strategy encourages the hope that choosing law in general could substitute for all the perplexing political and economic choices that have been at the center of development policy for half a century. The politics of allocation is submerged. Although a legal regime offers an arena to contest those choices, it cannot substitute for them.”

Hence, in order to avoid such naturalised outcomes, the rule of law must be infused with those values that will speak to issues like resource allocation and conflict resolution that matter to normal people. In other words, the rule of law will have to be made real to people in Burma given their own particular experiences, values, and visions for the future.

This is actually not a new problem in Burma.

Burmese scholar Andrew Huxley’s 1998 article on Burmese law elaborates the challenges that post-independence Burmese jurists faced while attempting to reconstruct Burmese law. Given the way the British intentionally destroyed Burma’s robust legal culture, jurists like Maung Maung and E Maung asked whether it was possible to reanimate those institutions, which could return to the glorious Buddhist tradition (especially after the formal incorporation of non-Buddhists).

Moreover, Maung Maung inquired as to what precisely were the political and social values that would animate these institutions. As he wrote back in 1962, “for although it is acknowledged that the laws must conform to the customs and march together with them, it is not always clear what are the customs of the peoples of Myanmar (Burma) today.”

Both Huxley and Maung Maung could be writing about Burma right now: the military prevented the Burmese polity from collectively expressing, debating, and refining goals and values for a half-century. The irony is that rule of law talk now risks shutting down this conversation before it could again get started.

It tells the people, in essence, that there’s a certain perfect and prescribed way to do things that can come readily packaged from the outside – Suu Kyi explicitly asks Yale Law School for help designing Burmese law, she requested that Columbia professors help Burmese parliamentarians – and that hence the role for the people in politics is as silent partner.

This point came through alarmingly clearly less than a month after Suu Kyi’s US tour, and from an unlikely source. At the annual Burma Studies Conference (BSC) at Northern Illinois University, I witnessed a representative of Burma’s government speaking publicly on US soil for one of the first times in nearly a half-century.

What was striking is that Ko Ko Hlaing, one of Thein Sein’s chief advisors, also mentioned rule of law, almost as often, and with almost as little specificity, as did Suu Kyi. But because the crowd of Burmese scholars was less deferent than the rights crowd is to Suu Kyi, questions from the floor helped clarify Hlaing’s position.

Hlaing was asked directly about political prisoners, and to his credit, he spoke directly about a topic that the military-state has for years simply denied. Mistakes were made, he said; the whole system needs reform, let’s look forward. But picking up on that last idea, many asked how could former dissidents be sure that they would not be re-arrested when returning, that Burma would be a place for free politics?

For example, how did the government explain and defend the then-recent arrest of activists peaceful protesting against the Kachin conflict?

Here Ko Ko Hlaing’s responses were illuminating: those people arrested on Peace Day were not arrested for their politics, but simply because they had broken the law. The protesters did not fill out the proper paperwork before their rally. And, he asked the assembled BSC crowd, doesn’t the USA and Britain incarcerate protesters all the time? “They have broken the law, you cannot call these people political prisoners because they are arrested for this.”

Rule of law here is the method of effectively containing unruly politics. While Ko Ko Hlaing’s expression is perhaps an extreme iteration of this logic, his and Suu Kyi’s are actually perhaps more similar than many would want to admit: politics as clean, quiet, tranquil, and disciplined (the ever-present sii-gaan – the discipline in Burma’s “disciplined democracy”).

What both Suu Kyi and Ko Ko Hlaing perhaps underestimate is the extent to which breaking the law is necessary to change a society, the way they might miss the fact that law can get in the way of justice.

Politics as possibility, rule of law as police

All this said, in a recent speech at Hawaii’s East/West Center, Suu Kyi demonstrated that the constitution might not be her ultimate goal. While she remained vague, to me this implies that Suu Kyi is leaving space for real politics. The vagueness suggests that she and other democrats in Burma are attempting to find their way in a new political landscape, which is much as it should be.

This is why what comes from the ‘international community’, represented by Eck and Malinowski and too many others, is relevant. Because Burmese democrats for years grounded their appeals in the legitimising discourses of Western liberalism, this discourse still has great appeal. And when opposing a capricious and abusive regime, it was perhaps appropriate to appropriate such rights-based appeals.

But now, when it actually comes time for Burmese people to govern themselves, the challenge becomes to develop political approaches that are appropriate to the specific context, that don’t simply mimic the platitudes of the human rights regime. And hence, Western observers can assist Burmese politics only by elaborating and supporting conceptions of justice that emerge from within, that respond to local conditions.

To the extent that “rule of law” is filled with political meanings, then support of it is warranted. But right now, it remains an empty intonation – something that gets in the way of the important political work that the needs to be done.

Elliott Prasse-Freeman is Founding Research Associate Fellow of the Human Rights and Social Movements Program at Harvard Kennedy School’s Carr Center for Human Rights. He is also a PhD candidate in Anthropology at Yale University

-The opinions and views expressed in this piece are the author’s own and do not necessarily reflect DVB’s editorial policy.

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