Myanmar's Transition: Openings, Obstacles and Opportunities

12. Critical Issues for the Rule of Law in Myanmar

12 CRITICAL ISSUES FOR THE RULE OF LAW IN MYANMAR Kyaw Min San Jurists debate the meaning of the rule of law, and define it from various points of view, yet for centuries the basic principle has rested in the idea that the law applies to all. In The Republic, written in the first century BC, Cicero condemned the king who does not abide by the law as a despot who is the foulest and most repellant creature imaginable (Tamanaha 2004, pp. 11–12). The Magna Carta reinforced this idea of the ruler bound to the law along with his subjects. For some scholars today these traditional ideas of the rule of law would be classed as “rule by law”, now that a distinction is being drawn between the two concepts. According to a 2004 report of the UN Secretary-General, rule of law requires measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decisionmaking , legal certainty, avoidance of arbitrariness, and procedural and legal transparency (United Nations 2004). Similarly, Kleinfeld Belton has argued that the rule of law “is not a single, unified good but is composed of five separate, socially desirable goods, or ends: (1) a government bound 218 Kyaw Min San by law (2) equality before the law (3) law and order (4) predictable and efficient rulings, and (5) human rights” (Kleinfeld Belton 2005, p. 27). On the other hand, according to Kirsti Samuels: Rule by law requires the use of legal rules in order to assure the uniformity and regularity of an existing legal system. Thus, even an authoritarian legal system, or one which does not protect human rights, will qualify as ruling by law if it uses and enforces legal rules routinely through the use of officials and some form of a judiciary, as long as it achieves a relative degree of certainty and predictability (Samuels 2006, p. 3). Political science professor Li Shuguang puts it more bluntly: “The difference … is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion” (Tamanaha 2004, p. 3). Indeed, some dictatorial regimes associate rule of law with suppression, and justify their actions on the grounds of law and order, oriented towards an insistence on harmony and security, rather than towards justice and fundamental human freedoms. The point of view that I adopt in writing this chapter is that the rule of law in its true sense means that everybody is equal before the law and no one is above the law. It means that the government, which is responsible for the writing of law, cannot also be a violator of the law. The rule of law in its true sense can coexist only with democracy, and depends upon respect for citizens’ fundamental rights. It means that a fair trial and due process of law are guaranteed according to international standards and norms recognized by the United Nations. Now Myanmar is in a period of transition to democracy, and the rule of law is of prime importance for the country’s future. Newly-elected President U Thein Sein said in his first address to government officers on 31 March 2011 that: Another important task is to ensure the rule of law, which is essential for building up a modern and developed democratic nation. It is the duty of not only judicial bodies but also legislative bodies to ensure the rule of law. It is required of judicial bodies to carry out judicial tasks in accord with the provisions of the constitution such as openly handling judicial affairs and the right to pass judgment in the presence of the public except legislative constraints [sic], and the rights to defence and appellate jurisdiction in criminal cases (NLM 2011, p. 7). Critical Issues for the Rule of Law in Myanmar 219 Subsequently, Thura U Shwe Mann, President of the Pyithu Hluttaw (lower house of parliament), reinforced the message by stating in the Yangon Region parliament that, “No one is above the law and all persons must live under the law according to the saying ‘No one can stay beyond the law’” (Weekly Eleven 2011, p. 3). The question that...