12 - Critical Issues for the Rule of Law in Myanmar

Summary

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 decision-making, 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 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).