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In defence of the rule of law

This article contests the arguments made Elliott Prasse-Freeman in his opinion piece published in the DVB in two parts on 15 and 18 March in relation to the rule of law and the value of constitutional reform in Burma. His case, in a nutshell, is that the rule of law is not as important as Aung San Suu Kyi has been making it out to be, that she has in fact been using the term as a ‘cover for cynical or incoherent political actions’, that constitutional reform is ‘superfluous’, and that ‘political work’ is more important.

Aung San Suu Kyi has long been asserting that the rule of law is key to the successful development of Burma. Prasse-Freeman describes this as a ‘curious mantra’, and complains that she has not discussed in a substantive way what the term ‘rule of law’ actually means. That point has some validity; the term is used with increasing frequency by Suu Kyi and others, and a large proportion of the public who hear or read the words ‘rule of law’ will not know precisely what they stand for.

However, Prasse-Freeman does not attempt to set out a definition of the ‘rule of law’ himself either. He also concedes, in the second part of his opinion, that both Suu Kyi and the ‘cadre of international rights activists’ see the rule of law as including such things as ‘checks and balances’, ‘human rights,’ and ‘mechanisms for judicial review’.

So what does the ‘rule of law’ really mean?

In truth, the majority of contemporary definitions of the rule of law are very similar to each other. Most conform with the six principles set out by the EU’s Venice Commission: legality (people should only be punished under laws, and laws should be enforced); legal certainty (laws should be accessible, clear and precise, and made only after public consultation); no arbitrary decisions (judges should apply the law rather than exercise their personal discretion); access to justice before independent and impartial courts (it must be affordable for people to access a court when they need to without excessive delay, and judges should be independent from government); non-discrimination and equality before the law (people should be treated the same by the law, unless objective differences justify different treatment); and respect for human rights.

A useful way to understand the rule of law is to differentiate it from rule by law. In a society where there is rule by law, the law is used by the government as a tool of control and oppression. In a democratic society, the rule of law trumps rule by law, and law is used not as a tool of oppression but as a guarantor of justice and fundamental rights.

Without the rule of law in society, practices such as bribery and corruption will thrive in a legal system because judges will rely on hidden or overly broad laws that were made without public consultation, and will exercise their personal discretion when deciding on a case, based on factors such as the highest bribe received.

Poor, vulnerable, and minority groups will continue to be subject to discrimination, and those who contest the prevailing government view will tend to experience unfair treatment in court, if they can afford to make it to court at all.

Sadly, these characteristics have defined the Burmese justice system for many years, and they continue to do so, as I have seen first hand from my work with community lawyers. This is precisely because of the military junta’s extended practice of disregard for the rule of law. The current government – still heavily influenced by the military as guaranteed by the constitution – has not yet managed to shake this habit.

Because human rights form a vital element of the rule of law, these rights must be protected in a country’s legal system if the rule of law is to prevail. The best way for a country to do this is to sign up to international human rights laws such as the International Covenant of Civil and Political Rights (which Burma has not yet signed), and to put in place a constitution that provides proper protection for human rights.

A constitutional necessity

The purpose of a constitution is to enshrine a fundamental set of rights, freedoms and principles that underpin a country’s core values, and ensure that human rights are respected, despite the inevitable changes in legislation that occur as governments and circumstances change and evolve.

A constitution also has the important function of acting as a standard with which all other laws have to comply – that includes pre-existing laws and new laws made by the government.

Burma has a constitution, which includes mention of certain rights, but it does not provide adequate protection for human rights. Prasse-Freeman argues that changing Burma’s constitution would be ‘superfluous and illogical’, ‘wasting time and effort’, and will ‘risk undermine improving relations between the opposition and the military’, when ‘it is not apparent that changing the constitution will improve political outcomes’.

Instead of just trying to achieve a ‘beautiful constitution’, he says, the National League for Democracy (NLD) should just work with the government on ‘important things’, and try to reform ‘specific legislation’. But if you want to make new and better laws, you need a good constitution in place to make sure that the new laws are going to protect human rights, before they come into force. And if you want to get rid of old, bad laws, which do not protect human rights, you also need a good constitution in place to show that those laws are illegitimate and need to be repealed.

What happens if you let a bad constitution remain in place, and focus on making new ‘specific legislation’, which only has to be assessed for its conformity to the bad constitution? The result is likely to be more bad laws that do not protect human rights.

Take as an example the new draft Printing and Publishing Enterprise Law recently released by the Ministry of Information and sent to parliament five days later. This was done without any consultation, not least with the Interim Press Council that had been tasked with drafting such laws and was already in the process of consultation. The MOI’s new draft law prohibits printing or publication of ‘writings and material that violates or is contrary to the prescriptions in the Constitution’.

Any distribution of material deemed by an officer of the Registration Office (within the MOI) to be ‘unlawful’ can result in a prison sentence and a fine. The registration office has the power to issue, suspend and revoke ‘certificates of acknowledgment’: a thinly veiled disguise for licenses, which is clearly contrary to international press law standards on freedom of expression.

So how does this link back to the constitution? The constitution contains inadequate protection for freedom of expression. For one thing it only protects that right for ‘citizens’. A citizen is defined as a person ‘born of parents both of whom are nationals of the Republic of the Union of Myanmar’; and ‘already a citizen according to law on the day this constitution comes into operation.’

Not the Rohingya then, who are not considered citizens, or anybody with one foreign parent. The constitution purports to protect free expression in one article, in amongst several other rights, but gives no detail as to what that protection means, unlike the right to freedom of expression as defined in human rights instruments such as the International Covenant of Civil and Political Rights (to which Burma is not a signatory).

[pullquote] “In a democratic society, the rule of law trumps rule by law” [/pullquote]

It limits that right in circumstances such as where the expression is contrary to ‘community peace and tranquility’: a broadly worded concept, which could apply to any protest or uprising. The meaning of the right to free expression in the constitution is further undermined by the constitution’s other articles.

For instance, the provision that: ‘Every citizen has the duty to uphold: (a) non-disintegration of the Union’ and ‘(b) non-disintegration of national solidarity’. What exactly is an act of publishing that is contrary to national solidarity? Any article, story or poem expressing support for any act of a resistance movement, or criticism of oppression of non-citizens who are not considered conducive to national solidarity?

Because of the way the constitution is drafted, new legislation that is restrictive of freedom of expression, like the MOI’s new draft, can be considered constitution-compliant, even though they are highly problematic and fall far short of providing protection for fundamental human rights in conformity with rule of law principles. How does this translate to real consequences?

If this draft law were implemented by parliament, then any published opinion piece, which expresses support for any act by a Kachin group during the conflict, for example, could be deemed ‘unlawful’ by the government’s registration office and then the license to publish (‘certificate of acknowledgment’) of the person could be revoked. And if any further material of any kind were to be published by that person they could be sent to prison.

The goal of the NLD, and the numerous other parties and organisations pressing for constitutional reform, is not – as I understand it – achieving a ‘beautiful’ constitution. It is achieving a constitution that conforms with rule of law principles, protects fundamental rights, prevents abuses of power by government, and ensures that new and existing legislation cannot do otherwise.

Prasse-Freeman suggests that Suu Kyi’s reliance on rule of law is ‘cover for cynical or incoherent political actions’, and names as an example her refusal to defend the country’s abuse of the Rohingya ethnic minority. But this is an illogical step in his argument.

If one agrees that the Rohingya are subject to unfair discrimination and have suffered abuse at the hands of the authorities, and even that Suu Kyi should have spoken up in their defence, then a rule of law approach, and amendments to the constitution that bring it in line with rule of law principles, are precisely the way to address this. The constitution actually enshrines such discrimination against the Rohingya, as I have shown above. The same applies to the copper mine controversy, since the constitution does not provide sufficient protection for freedom to protest.

The core of the problem with Prasse-Freeman’s argument is that he has not defined what the ‘rule of law’ means, and has wrongly equated it with ‘rule by law’: the use of law as a tool of control and oppression, not as a protector of fundamental rights. His chosen quotation that the rule of law in Burma ‘naturally expedites the disintegration of the customary social structure’ is from a British colonial officer in Burma in 1948, before the concept of human rights even existed (the UN’s Universal Declaration of Human Rights was adopted on 10 December 1948): such a view of what the rule of law means is long out of date.

He seeks to prove the inadequacy of the rule of law through an example of the Burmese Government’s recent, controversial assessment of the peace day protesters. They were described by Thein Sein’s advisor, Ko Ko Hlaing, simply as people who had ‘broken the law’ because they did not fill out the proper paperwork before protesting.

From this, Prasse-Freeman concludes: ‘The rule of law here is the method of effectively containing unruly politics’, whereas ‘political work is more important’. But what this example actually demonstrates is the urgent need for the rule of law in Burma. If the peace day protesters have indeed broken the law on advance paperwork-filling before a peaceful protest, that demonstrates that existing protest law in Burma is defective and in need of reform to comply with international standards, as Article 19 and other organisations have argued.

That legal reform needs to take place both through an open, consultative process, and though substantive legal change whereby the right to free of expression is enshrined within the country’s protest laws: in other words, legal reform is needed, and that legal reform needs to conform with rule of law principles.

The reality is that the rule of law, and constitutional change in line with the rule of law, is the key to a fair and democratic society in Burma. This is the way to transform the country into a place where ethnic minorities’ rights are respected, and where conflicts in states such as Kachin and Arakan, and incidents of excessive violence used against peaceful protesters such as those at Latpadaung, are not only more likely to resolve more quickly and peacefully, but are less likely to flare up in the first place.

Changing the constitution might well be an ‘enormous effort’. An even greater effort is achieving the rule of law, with all its facets, in a country that has been without it for so long. But constitutional change is a vital and important step towards that goal, and the effort will almost certainly be worth it.

Ellen Wiles is a British barrister and writer, who has trained community lawyers in Burma on the rule of law for the NGO Justice Base and advised on media law reform

-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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