LEGAL ISSUES ON BURMA JOURNAL No. 8, APRIL 2001 
BURMA LAWYERS' COUNCIL


Burma’s Transition to Rule of Law in Different Contexts

B.K. Sen*

As Burma views the transition in Palestine, the first quarter of the 21st century has witnessed dramatic developments in the global scenario. The democratic community has been making an assessment of the situation in the context of Rule of Law. The Arab-Israel conflict has been raging for decades. Considerable progress to resolve the conflict peacefully gained momentum. But the negotiations have suddenly broken down with violence as the tragic result. This proves that conflict resolution is a difficult path of peaceful democratic transition.

The time has come for major international initiatives in domestic situations where the Rule of Law is thwarted, or its legitimate restoration is obstructed, or when its denial pushes a country to the brink of civil war, or when its suppression endangers a regional conflict. That initiative of course has to be peaceful, responsible, and dignified, and such things cost hardly anything. The United Nations and the international community must intervene to facilitate a solution. Israel has resisted the Palestinian request to the UN Security Council to dispatch unarmed military observers (or an unarmed peace-keeping force) to monitor the violence. It is argued that without explicit Israeli permission such cannot be done.

Under International Law, civilians under military fire are entitled to immediate protection against state-sanctioned aggression. It is to the interest of the aggressor to complicate this. Countries with a commitment to democracy must devise options for a force or organization to restore the peaceful right of selfdetermination of the Palestinian people. The UN General Assembly’s Resolutions on the conflict have to be implemented, otherwise the faith of the people, struggling for peaceful transition, will be shaken. The reputation of the UN, when it comes to conflict resolution, should not be the one it had among the Cambodians, who referred to the organization as “United Nothing”. Because the disastrous result will be violence, leaving the struggling people confused.

In the case of Burma, the UN has successfully brought about on-going confidence-building talks between the military junta and the democratic opposition. The UN must continue to play this crucial role. Restoration of the Rule of Law in Burma cannot destroy the concerned parties; on the contrary, Rule of Law essentially provides the mechanism to resolve conflicts. If the domestic mechanism does not work, the only other option for the International Community is to take initiatives to prevent the outbreak of violence. The key to change (in Burma as well as in the Israeli-Palestinian conflict) by and large is in the hands of the International Community. Democratic transition can only emerge peacefully if there is interaction between the domestic and international forces. Rule of Law is without borders.


Transition in the Philippines: A Burmese Perspective

Burma and the Philippines share several common features, including a history of colonialism and authoritarian rule, a large ethnic population, and a legislative and administrative framework which has allowed social inequalities to become entrenched.

The democratic transition and restoration of the Rule of Law in the Philippines have been matters of great interest to the legal fraternity. The authoritarian Marcos regime was overthrown by people’s power. The military sided with the people and the country could take peaceful transition. A democratic constitution was put in place, and the Philippines took the road to democratic reforms. However, President Estrada was indicted on charges of corruption while the Rule of Law was about to take its normal course. Impeachment proceedings were opened. Estrada refused to budge, but the People forced him out with the support of the military. Recently a sort of rebellion was started by Estrada’s supporters to bring him back to power. This attempt has again been foiled by the people, again with the help of the military. The role of the army has become crucial in the democratic transition of the country. In this case, the army played a double role to uphold the Rule of Law.

On the first occasion the army intervened to topple a dictator. On the second occasion it intervened when the due process of Law was on its course. This could be a lesson to the military in Burma. If the army sides with forces promoting the Rule of Law, it will get full support of the people. The army would retain its intervention role throughout the democratic transition when the transition emerges from a compromise. The basic conflict in Burma is between the forces of Rule of Law and authoritarianism. The key players have to resolve the conflict through negotiation and compromise. The 1990 elections in Burma have given legitimacy to both players; now they have to find their way on the broad principles which emerged out of the elections. The way out of trouble need not necessarily be exactly in terms of the result, that is, so long as the spirit of the result is adhered to.

In such a difficult situation, Law is the tool to break the impasse. Of course it is not suggested that lawyers are the only competent persons to conduct negotiations, but the Law finally puts the negotiation process in place. Like in the Philippines, the Burmese army will have to play a positive role, but it must not replace civilian rule. The Burmese army should not have a double role. It should only sustain democratic transition. This transition will face lots of challenges, as can be seen from the Philippines and Indonesia. It looks like a gentleman’s agreement form of power sharing, while Civilian Rule is the norm. The army leaders in Burma need not have any fear about their role during the transition. In many countries the army forms a bulwark of democracy and Rule of Law. There is, however, a difference between Burma and the Philippines. Brian Joseph wrote, “There is no shortage of democrats in Burma. What’s missing is democracy”¹. In the Philippines it’s the other way round.


Burma’s Transition: About Corruption and Abuse of Power

These two elements, which the emerging democracies of today have inherited from the authoritarian regimes in the course of transition, are perverting the Rule of Law. Corruption and abuse of power are the twin dangers to sustainable growth of society. The big question is how a democracy can fight these two viruses. In Burma’s context this question has become highly critical because of its four decades of lawlessness and military rule. The essential requirement to rescue a country like Burma is accountability.² Constitution is at the top of her agenda. The constitutions of 1947, 1974, and the one has being framed by the junta since 1993, have not provided any safeguards against the dangers of corruption and abuse of power. The same goes for the constitution drafted by the National Council of the Union of Burma (NCUB). The future constitution of Burma must provide institutional mechanisms for accountability. The scandals in Indonesia, around the limitless corruption of Soeharto and his cronies, should have a place in the Guinness Book of Records. Similar corruption scandals around top political leaders in the Philippines, Pakistan, India, Thailand, and a lot of other countries are a tragic reminder that corruption is the result of abuse of power. This has become a global disease, which happens when the Rule of Law is undermined. Rule of Law therefore ordains that the constitution must enshrine accountability. The mechanisms toward accountability relate to the reinforcement of transparency, and public accountability of all those who wield power. Burma’s junta has curbed a system for themselves (with no constitution) which shields them from these mechanisms. Currently there is no medium which can play the critical role. Although Burma has an Anti-Corruption Act, this has been kept in cold storage while rampant corruption sustains the regime.


Endnotes

* The author is an Executive Committee Member of Burma Lawyers’ Council.

1. Far Eastern Economic Review, 22 June 2000, p. 37.

2. See: Pranay Gupte, Newsweek, 25 October 1999, p. 4.