Tuesday, December 5, 2023
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The rule of law will not save Burma

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

When long-standing Burmese opposition leader Aung San Suu Kyi toured Western Europe and America last fall, thousands thrilled to catch a glimpse of the oft-imprisoned dissident and Nobel Laureate; many were curious, given that the government of former general Thein Sein was making reforms, to hear Suu Kyi’s vision for Burma’s future.

Often they received just this – at Harvard University Suu Kyi discussed in incisive and specific terms the challenges that villagers face and ways that political attitudes might be changed; at the World Economic Forum, Suu Kyi warned against rapid investment without proper safeguards. But sometimes these insights were drowned out by a curious mantra: Suu Kyi repeating the phrase “rule of law” dozens, maybe hundreds, of times. At the London School of Economics the entire panel discussion was on rule of law; at Suu Kyi’s lecture at Yale University I counted her mention “rule of law” over thirty times. What was missing throughout these talks was a substantive discussion of what ‘rule of law’ actually meant.

It is possible that Suu Kyi was just playing things close to the chest. After all, she was on a victory lap; these were hardly the moments for sophisticated policy ruminations. But it also appears as if Suu Kyi really believes that the rule of law is her country’s savior: not only has she helped create and now chairs Burma’s Rule of Law and Tranquility Parliamentary Committee, she has made building the rule of law the central tenet of her NLD party. During my own conversations with members of the NLD in Rangoon in December and January, I was told repeatedly about the importance of first changing the constitution, of the need to devote party resources to amending the rule that guarantees the military 25 percent of the seats.

It is here that things become troubling. Because not only will changing the constitution take an enormous political effort given the opposition that will come from Burma’s military, not only will it risk undermining improving relations between opposition and that military, but it is not apparent that changing the constitution will improve political outcomes in Burma.

As I have argued before, countries with good constitutions often have terrible politics; indeed, a good constitution can provide cover – can act as the saving lie or the compensatory distraction – for any number of odious things: imperialism, militarism, massive social stratification. (To take just one example from this week: when US President Obama declares infinite prerogative to spy on civilians without due process, America’s vaunted Constitution and its putative checks and balances fail, yet still allow Americans to still believe that rule of law rules). Alternatively, bad constitutions may actually allow relatively good politics – if, say, that constitution in question allows a military clique to feel safe enough to acquiesce to reforms. In other words, if one’s goal in politics is to have a beautiful constitution, then by all means try to change Burma’s. If the goal is to change conditions in the country, given the current political realities, then it may not be.

Wasting time and effort with the constitution

In fact, trying to change Burma’s constitution is a superfluous and actually illogical exercise, given the current parameters of power. To see how this plays through, let’s take Suu Kyi’s own description of the challenges. While at LSE, she admitted that given the contours of the current ruling dynamics that changing the constitution will be difficult. She then elaborated her rationale:

“so you can imagine how difficult it’s going to be to have the constitution amended. Perhaps then you might want to ask me: do we think it can be amended? Yes, we think it’s possible… it’s possible to work with the military, to make them understand why we think this constitution won’t move us in a positive direction.”

But if, as Suu Kyi claims, the military can be worked with, then why does the constitution need to be changed before this can happen? Why not just work with it on important things that the country needs to have changed?

[pullquote] “It is not apparent that changing the constitution will improve political outcomes in Burma” [/pullquote]

Indeed, let’s imagine instead that one does not care so much about a beautiful constitution, that rather the goal is to accomplish a piece of meaningful social policy (such as making Burma’s natural resource revenues transparent, or developing an efficient port and road system, or designing pro-poor agricultural assistance policies – all endeavors an under-capacitated party like the NLD cannot pursue while fighting over the constitution).

Now, one could focus all efforts on first changing the legal architecture, so that, perhaps, chances of passing the meaningful law may improve. Or, one could just focus on trying to mobilise support for the specific legislation. Journalist Thomas Kean’s analysis shows that military personnel and the USDP both do not vote as blocks. Moreover, Kean describes former-political-prisoner-turned-MP Zaw Myint Maung as believing “that [the military] presence has provided a ‘good opportunity’ for the NLD to engage with the Tatmadaw military party on a daily basis.”

But while they are pliable on daily policy issues it is likely that on the question of military involvement in politics they would rally around the flag. Why galvanise their support? Why not continue to split it, by getting on with actual policy reforms in the process?

With friends like the international community, who needs enemies?

Why then is the “rule of law” mantra so attractive? First, it provides cover for cynical or incoherent political actions. Indeed when Suu Kyi refused to defend the abuse of the country’s abject Rohingya ethnic minority she used the rationale that legal standards must be established before real politics could emerge or even justice could be imagined. When Suu Kyi chooses to remain quiet until the ‘rule of law’ is instituted, rule of law acts here as an ever-receding ideal that deflects action now.

A second reason is that rule of law is so universally lauded; indeed, when Suu Kyi invoked the need for Rule of Law as a way to defend her silence, somehow no one found this nonsensical. Like human rights and democracy, not only is no one against the rule of law, but it works as a way to foreclose further conversation. But by becoming an end in itself, it elides the fact that politics exist before and continue after laws are written.

This plays out in a recent al Jazeera article, in which Uppsala University (Norway) Professor Kristine Eck notes that formal democratic processes have difficulty constraining violence that emerges from within the state (or the law): “the president’s power to make promises is severely circumscribed by the lack of governmental control over the military.”

But then, as if frightened by the radical consequences of that thought (a thought that applies to all states, not just Burma’s), Eck flees to the non-sensical “Change the Constitution!” chant. Because if the fundamental problem is an unconstrained military (or entrenched crony-elites, or on-going ethnic animosity), how precisely is changing the constitution going to address it?

Pushing this further, even if the military suddenly agrees to a revised constitution, why not take this as direct evidence that the constitution is irrelevant (does not rein in the military)? Isn’t it possible that the military will dominate the “rule of law” rather than the other way around – especially if the military does not see the political reasons for abdicating authority to those laws? Eck will not entertain any of these questions.

Human Rights Watch’s Tom Malinowski displays the same myopic legal fetishism. When asked why Aung San Suu Kyi has remained silent about the Kachin conflict, Malinowski replied that Suu Kyi is:

“preparing for constitutional change, hopefully after 2015, and maintaining a relationship of trust with the army to ensure that they support the constitutional change that is needed for Burma to become a democratic state. And I understand why she feels that that’s important. Because the great prize in Burma, for anyone who has been fighting for democracy in Burma, is a change in the constitution.”

While Malinowski goes on to gently rebuke Suu Kyi for what he implies is her opportunistic silence, my critique lies in the fact that Malinowski thinks changing the constitution can be made commensurate with opposing the slaughter in Kachin. Indeed, while Suu Kyi herself has claimed that there is not adequate knowledge to condemn the fighting (see here at 48 minutes when she reproaches a Kachin activist), Malinowski’s organization has been quite clear on the matter. So while he’s not ecstatic about it, Malinowski does “understand’ that the defense of victims of aggressive wars is expendable when dealing with issues of such great import. After all, the constitution is “the great prize” in Burma.

But here again is the blind spot. The ‘great prize’ is not a piece of paper. The prize is to direct the political conversation about what values will shape the country’s future, how resources will be allocated, how conflicts will be resolved.

This may or may not have anything to do with the constitution.

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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