Bringing the rule of law to Burma

aug2012burmaDavid Wurtzel on listening to Daw Aung San Suu Kyi in a panel discussion on the rule of law organised by the LSE and the Burma Justice Committee.

‘We cannot escape from the rule of law’, Daw Aung San Suu Kyi stated when taking part in a ‘roundtable discussion’ in a packed Peacock Theatre on June 19, during her historic visit to the United Kingdom. She was one of the six people who appeared on the panel and what she had to say was heard last. ‘I will listen’ she declared at the beginning.

The event was organised jointly by the London School of Economics and the Burma Justice Committee (the Committee), whose Chair, Sappho Dias of 5 King’s Bench Walk, introduced the session. When the Committee, largely made up of barristers, was launched in November 2006, a major aim was to ‘keep up the pressure’ by presenting petitions to the United Nations Working Group on Arbitrary Detention to get declarations of unlawful detention in respect of those detained by the Military Junta which had been in power since 1962. Now it is able to offer training for judges and advocates abroad about the primacy of law. Sappho Dias praised Daw Aung San Suu Kyi who has ‘used her life to better the lives of others and at great cost to herself’. ‘We are honoured that lawyers and the law have been her first port of call’.  

In the current climate of world insecurity peppered by invasions from stronger nations into weaker ones, Burma is perhaps the small but hopeful exception. A peaceful transition from military rule seems to be occurring with Aung San Suu Kyi’s National League for Democracy being permitted to fight a by-election, in which they gained 42 seats. The Army are still in control but the fact that Aung San Suu Kyi has been allowed to contest a seat and to take it up may mean that these are the first small steps towards change. Moreover, she has been allowed to leave the country beset still by almost constant eruptions of ethnic violence.

The panel was chaired by Professor Mary Kaldor, Professor of Global Governance at the LSE. She first called on Professor Nicola Lacey, Senior Research Fellow at All Souls, who explained how recognising the difference between procedure and substance in law can help Burma. Thanks in part to Lord Bingham’s writings we now see that procedure has to encompass respect for human rights and the duty to treat people with dignity. Crucial is our understanding of what the rule of law requires in a particular country and in ‘institution building’. Inevitably Professor Lacey turned to the analogy of South Africa, which offered a positive model. The move to democracy ‘involved all groups in consultation of what a post-apartheid South Africa would look like’. The rule of law is ‘always a work in progress’ and one can ‘always improve compliance’.

Sir Geoffrey Nice, QC came to the topic from his years of experience prosecuting at the International Criminal Tribunal for the former Yugoslavia. He did not think that the ‘retributive justice’ for Yugoslavia had been very successful at bringing about reconciliation. In theory, a ‘ruler could be willing to break with his past without coming to terms with his past; but ‘in practice, no’. The ‘passage of time is rarely enough’. Something else has to occur. The survivors will always want to know what happened to the victims and the perpetrators thus know that they must acknowledge what they have done. ‘How can I have done that?’ can lead to an apology. As for Burma, it is matter for them, though ‘the modern age has handed over power to individuals in an information age’. However people there will want to know what happened to their loved ones. ‘Collective knowledge becomes part of the history of the people’.

Professor Christine Chinkin, Professor of International Law at the LSE, underlined the need for compliance with human rights as a matter of political will. She favoured a Commission of Inquiry for Burma, an independent mission to see what happened and which would make ‘denial and obfuscation that much harder’. She noted that sexual violence had been used for intimidation especially against ethnic minorities.

Dr. Maung Zarni, research fellow at the LSE and founder of the Free Burma Coalition, spent many years in a stateless limbo thanks to the junta regime. Statelessness, he explained, is produced by the state itself, not by individuals. As Buddhists, his countrymen must foster compassion and must not deny illiberal tendencies in their society, not just in the regime.

Daw Aung San Suu Kyi both replied to what had been said and added her own thoughts. Yes, one has to recognise that there is both procedure and substance in law. Justice must be done through procedure; in terms of substance, many Burmese laws are obsolete. She acknowledged that time alone will not heal the wounds. Statelessness can be dealt with by the rule of law—with just laws for citizenship and just procedures for how immigration authorities work.

‘I emphasise the rule of law because that is what we all need for democracy’. Justice ‘must be done and be seen to be done’. Unless people see that, they cannot believe in reform.

She mentioned the controversial Myitsone dam, which had inspired an earlier question in the morning. It was being built by Chinese at a cost of £2.3 billion but work was halted in September 2011. That was a matter of governance, she said, but also of the rule of law: ‘what is in those contracts?’ between the government and the Chinese? ‘I don’t know’. Although she welcomes foreign investment in Burma, which needs both investment (there is no employment) and training (the education is ‘very poor’), those who come to Burma must take responsibility for what they do in the country.

One hurdle is the need to amend the existing constitution. Unfortunately that requires approval of over 75 percent of the National Assembly but 25% of the seats are reserved for military officers. So one would need the unanimous agreement of all the civilian MPs (some of whom belong to the ruling party) as well as at least one military officer. Nevertheless ‘we think we can work with the military’. She did not imagine that they would accept any advice and input from civilians but one could envisage training both the police and the courts. ‘There are [already] good rules for the military and the police but they haven’t been followed’.

She was asked from the floor why she was reluctant to condemn the military for their crimes against the Kachin people. ‘I condemn all violence’, she firmly declared, but one needs independent (e. g. United Nations) observers to find out just what is going on in that region. Resolving conflict ‘is not about condemnation’. It is necessary to find the roots of conflict and to show how it can be resolved.

The last question asked Daw Aung San Suu Kyi how she had found the strength to carry on over the years. ‘I have found great support all over the world’, she thanked us, ‘and I suppose I do have a stubborn streak in me’.

At the end, the LSE presented her with a certificate, an LSE baseball cap (a tradition since the visit of Nelson Mandela) which she gamely tried on, and a photograph of her late father taken on a pre-war visit by him to London. As it happened, June 19 was the day Daw Aung San Suu Kyi turned 67. In a change of mood from the seriousness of the discussions, the audience rose and sang Happy Birthday to her. Nevertheless one left with the feeling (and the hope) that the radar in the West would be more attuned to the vast task which lies ahead of Daw Aung San Suu Kyi.

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.