This article was originally published by Fair Observer.
By Tanvi Mani
As Burmese citizens prepare to cast their vote in October 2015, Myanmar is stuck in a discernible shroud of anticipation. In a country that has been embattled in the residue of a disintegrating democracy, the prospect of a free and fair election is more of a foregone ideal than a prospective reality.
The democratic process in Myanmar has been ridden with a multitude of conflicting ideologies with no clear collaboration, and as a result, the violation of civil and political rights is undertaken with relative ease. It is in this context that the safeguards of human rights, civil liberties, and socioeconomic empowerment have lost their ground and the populace is left at the mercy of an almost floundering government.
Myanmar’s Rule of Law
The term “rule of law” has been used vociferously by political opposition groups in Myanmar. It has captured the imagination of the population as an almost mystical instrument of effectuating positive change in a political milieu that has long stood steadfast in its rejection of a just and equitable process.
But what exactly does the opposition seek to obtain through the incorporation of this “rule of law” in all systems of administration?
William H. Neukom, the president of the World Justice Project, has propounded the concept of the rule of law as: “The foundation for communities of opportunity and equity—it is the predicate for the eradication of poverty, violence, corruption, pandemics, and other threats to civil society.”
This definition, although articulate in its subtext, falls short of characterizing a tangible goal toward which objective progress can be measured.
In an alternative definition, United Nations Secretary General Ban Ki-Moon provides a more attainable description. He suggests that the rule of law is “a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”
The central idea that seeks to be propounded by both definitions is an idea of the rule of law as a system of governance that is not determined by the whims of men, but by a measurable standard of normative justice. This standard cannot be altered by a majoritarian opinion or by the exercise of executive action within the higher echelons of power. Rather, it must remain unwavering in the face of political change.
Burmese President Thein Sein
The Thick and Thin of It
The contextual debate that surrounds the nature and the extent of the rule of law is integral to aiding members of Myanmar’s political opposition to actualize their demands without being influenced by competing political factions. In this regard, there have been contradictory opinions over “thick” and “thin” interpretations of the rule of law. While an expansive interpretation allows a significant amount of discretion by both citizens and authorities, a restrictive one delimits the ambit of its application to merely procedural matters.
For example, during the era of apartheid in South Africa, the law itself institutionalized discrimination, and therefore, state action could not be criticized for being devoid of justice in its rejection of the human rights and civil liberties. The Honorable Arthur Chaskalson, former president of the Constitutional Court of South Africa and former chief justice of South Africa, aptly notes: “Without a substantive content, there is no answer to the criticism that the rule of law is an empty vessel into which any law could be poured.”
The rampant violation of fundamental freedoms and civil liberties in Myanmar has been similarly institutionalized to a large extent. The pandemic increase in forced labor, the recruitment of child soldiers, sexual violence, and extrajudicial killings, combined with torture, have resulted in over a million displaced asylum seekers. These acts cannot simply be condemned. Rather, they require concrete efforts to effectuate systemic change in governance, or what is now being portrayed at least as a free and fair democratic process.
As observed by UN Special Rapporteur Rasjoomer Lallah on the situation of human rights in Myanmar in 1998: “These violations have been so numerous and consistent over the past years as to suggest that they are not simply isolated or the acts of individual misbehavior by middle and lower-rank officers but are rather the result of policy at the highest level, entailing political and legal responsibility.”
The World Justice Project, in its Rule of Law Index, has developed four universal principles, each of which are critical to the economic, political and legal development within the country.
First, the government and its officials are accountable under the law. Second, the laws must be clear, publicized, stable, fair, and be able to protect fundamental rights, including the security of persons and property. Third, the process by which the laws are enacted, administered, and enforced must be fair, accessible and efficient. Fourth, there must be unrestricted and equitable access to justice, provided by a competent, independent and ethical collegium of judges, who have sufficient resources and bear in mind the ideologies of the communities they serve.
The Opposition in Myanmar
In the run up to the 2015 election, Myanmar has come under international scrutiny as the world waits with bated breath for a long oppressed populace to cast their vote and make their voice heard. This election is not only reflective of new hope, reinstated vigor, and restored faith in the democratic process. Rather, it is also instrumental in aiding the establishment of an accountable and legitimate institutional leadership.
President Thein Sein, in his October 2014 radio broadcast, said: “If the ceasefire is not signed and political dialogue cannot start before 2015, the chance of political stability, transition and a general election in 2015 would be slim.”
This almost seemed to confirm suspicions of a postponement or cancellation of the general elections and reverberated with a tone of autocratic usurping of power that was almost reminiscent of the regime of the military junta. The lack of a nationwide ceasefire agreement seems to be fueling fears of a return to an almost post-anarchic state, where the power of might supersedes the institutional veracity of justice and equity.
The Union Election Commission (UEC) did, however, confirm that the elections will be undertaken as planned.
The dubiousness of the president’s statement has hardly gone unnoticed. As with every election across the world, there have been contentious aspects that have come to the fore. These have, at least up until now, been resolved in keeping with a just and fair process.
As political parties prepare themselves to contest in the political rigmarole that is the general elections, the battleground already seems tilted. In July 2014, the UEC issued a directive stipulating specific restrictions for campaigning during the elections. The time period of 30 days, which was objected to by political parties, was eventually extended to 60 days.
However, other restrictions remain enforced: candidates are required to seek permission from the township election commission office before holding any campaign events, and they must provide a proposed lists of speakers, the location, and number of participants. These details would be vetted by both the commission and the regional government, and permission must be sought at least 15 days in advance.
Toward the end of October 2014, Myanmar’s lower house started debating the voting systems proposed by the Electoral Review Commission. The commission indicated two systemic proposals to be incorporated within the election process which, according to them, would be most appropriate for the Burmese sociopolitical milieu. These proposals sought to combine the “first-past-the-post” (FPTP) system, as well as the proposed “proportional representation” (PR) for the 2015 elections. The Union Solidarity and Development Party supports the PR system, within which voters select political parties, not individual candidates, subsequent to which parties nominate their candidates depending upon the percentage of votes secured.
The National League for Democracy (NLD) opposes the system. It believes a referendum should be held to validate a change in the system. However, the issue is still to be decided through a parliamentary vote.
Beyond Aung San Suu Kyi
The United States has called for an “inclusive and credible process.” However, in the interest of maintaining the basic tenets of state sovereignty, it has refrained from advocating the inclusion of prime contender Aung San Suu Kyi who, although having declared her ambitions, would be eligible only if Article 59(f) of the constitution is amended before the election. Under Article 59(f), an individual whose spouse or children “owe allegiance to a foreign power” cannot become president. Her children retaining foreign citizenship thus makes Suu Kyi ineligible to contest the election.
Another candidate, Thura Shwe Mann, the speaker of the Union Parliament and the leader of the Union Solidarity and Development Party (USDP), has maintained a working relationship with Suu Kyi and has taken an active interest in constitutional amendments, as well as the government’s peace initiatives with ethnic groups.
The other two candidates, Senior Gen. Min Aung Hlang and President Thein Sein, present an alternative narrative to the future of the democratic process within Myanmar. Hlang has been more forthcoming politically and has initiated the military in peace talks with ethnic groups. President Sein has been lauded as a reformist and hopes to sign the ceasefire agreement before the commencement of the upcoming elections.
The conclusion to this almost inspirational political evolution remains to be seen. It is, however, a noteworthy and rather commendable step forward in the establishment of a just, fair, and equitable system of governance in Myanmar; one that seeks to mitigate instances of institutionalized violence and deprivation of human life, liberty, and dignity.
The world thus waits with bated breath as democracy is allowed to take shape within the contours of a formerly oppressive regime that once turned its back on the most significant manifestation of normative justice: the rule of law.
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Tanvi Mani is an Associate Editor (Asia Pacific) at Fair Observer.
[Photos courtesy of Fair Observer]