Beware of Dogs, and Aung San Suu Kyi's "rule of law". “The problem in Rakhine state is extremely delicate and care is needed in responding. The Myanmar government is responding to the issue of Rakhine state based on the principles of the rule of law”, Aung San Suu Kyi was quoted in this 3 Nov 2016 Reuters article.
I was with her on the Rule of Law Roundtable at the London School of Economics in June 2012. There she refused to address the issue of our country’s genocidal persecution of Rohingya minority people in Western Burma. And I was preassigned by the chair of the roundtable Professor Mary Kaldor to address the unwelcome Rohingya question from the floor. So, when Aung San Suu Kyi barks "rule of law" in connection with the genocide of the Rohingya it got me worried – very worried. For she is “not a human rights defender, but a politician” through and through. She has made this abundantly clear in many an international fora and media interviews.
But her "rule of law" in Burma is deeply criminalistic, not different from the laws of the Third Reich (Hitler's Germany). No genocide can be addressed “through the principles of the rule of law”. I am not sure if Aung San Suu Kyi is intellectual dishonest or simply naïve when she said the “delicate” matter is handled through the rule of law principles.
It is imperative that activists and human rights defenders understand the criminal nature of Aung San Suu Kyi’s 'rule of law' mantra, when pushed in the context of a state that is, in both its nature and modes of operations, CRIMINAL.
What type of government or state is a criminal?
When the State breaks its own laws
When the State fails to ensure human rights or breaks international law
When the State behaves in a way that the people think is wrong and the people resist, protest or sabotage and by doing so define what types of state behaviour are criminal
RULE OF LAW FOR ACTIVISTS vs 'Rule of law' by Repressive Rulers
Two insightful quotes may be in order: one by the late Thomas Bingham, an eminent British judge who held the position of Britain's Chief Justice, and a white South African anti-apartheid activist and world renowned novelist the late Nadine Godimer.
“The hall marks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock at the door, the sudden disappearance, the show trial, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war.”
- Lord Bingham 2010.
“The greatest veneration one can show the rule of law is to keep watch on it, and to reserve the right to judge unjust laws and the subversion of the function of the law by the power of the state. That vigilance is the most important proof of respect for the rule of law.”
- Nadine Gordimer.
Aung San Suu Kyi's mantra "rule of law" is extremely dangerous in the Burmese context where the State is the biggest criminal.
Empirically, Burma is ruled by the same old repressive Tatmadaw (army) military regime, with the pretty facade of Aung San Suu Kyi, backed by outside investors and institutions including the United Nations and ‘liberal’ regimes such as USA and UK, or EU.
Here are the 3 ways to understand 'rule of law':
Who uses the term “Rule of Law”?
What do they mean by “Rule of Law”?
Doctrinal. Law is understood as a set of rules that is fundamentally unchangeable and unchallengeable. It exists outside of those us and outside of those in power. Activists use existing national or human rights law to challenge those in power or tweak existing laws. (From inside the existing legal framework).
Oppressive. Law is understood as a method by which the state oppresses the masses. The only way to stop it being used against us is for activists to overthrow those in power.
Changeable The way law is produced, understood and practiced can be challenged and changed by activists from outside of the legal system as well as inside. People can make, legitimise, challenge and change laws based on their own collective morals.
“Rule of Law” is sometimes understood as making sure that existing national laws are implemented correctly according to the law and that those in power should follow the existing laws as well as others. (Doctrinal)
“Rule of Law” is a concept used by the state to legitimise its laws so people in authority can maintain their power. (Oppressive)
“Rule of Law” is a idea which can be redefined by the people. Rule of Law is used to make sure that people in authority are put in check and that law is fair and equitable – this includes the laws themselves, the legal systems and the way law is practiced. (Changeable)
Principles for the Rule of Law
a) Equality – Everyone should be equally subject to the law, including those in power, who should be tried in the same courts as anyone else. Everyone should receive equal benefit from the law including, for example, those who are not citizens should still be able to seek justice if they are victims of crime.
b) Clarity and Predictability- The law should be clear and predictable so it cannot be used for the wrong reasons, such as extorting money from people or silencing protest. People in power should not be able to use too much discretion when applying the law because discretion can be used for benefit of individual officials or government.
c) Exercise of Power – the law should not be used to oppress. The powers of those implementing laws should be kept in check to prevent them from using their powers unfairly for benefit of themselves or state organisations.
d) Access to justice and fair trial – everyone should have access to a fair and impartial trial and to good legal advice. This applies even if you are poor, or from a minority group, or if you are not a citizen, or if you are an activist.
e) Law should protect human rights and comply with international law to make sure that laws are not created for the sole benefit of state organisations. For the sake of the Rohingya victims of Myanmar genocide, Aung San Suu Kyi urgently needs to be reminded of what the late Martin Luther King Jr pointedly said, “remember that everything Hitler did was legal” (in accord with the Nazi Laws).
Author: Zarni. Credit for the background research on the rule of law goes to Ms Natalie Brinham, Economic and Social Research Council PhD scholar in Law, with the International State Crime Initiative, Queen Mary University.