Reinventing the Rules
Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Citizens in Burma Share Ideas on How to Build Rule of Law
Earlier this year, the United States Institute of Peace (USIP) held workshops for a wide range of citizens and government officials to discuss their concerns about rule of law in Myanmar (Burma). What was particularly unique and eye-opening were the recommendations citizens provided on how rule of law should be strengthened and how the international community could provide useful assistance. Learn about this and other challenges to promoting rule of law below!
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Rule of Law Priorities Identified By Myanmar Citizens
- The development within government and society of a deeper understanding of the fundamental principles of democratic governance and the rule of law;
- The creation of a national strategic plan-of-action and effective implementation mechanisms for rule of law reform;
- Assistance in reviewing, drafting and reforming priority laws, including through the provision of legislative drafting and law reform training for the executive and legislative branches of government;
- Establishment of mechanisms to enhance communication and collaboration between government, civil society and local communities around rule of law reform efforts;
- Developing and implementing policies and systems that enhance access to information and government transparency;
- Providing community legal education regarding the law, rights and responsibilities, and ensuring increased access to justice particularly for vulnerable individuals and groups.
Participants identified the following fundamental challenges to promoting rule of law:
- There is no common understanding of the term ‘rule of law’;
- There is a disconnect between the perception of government officials’ and lawmakers’ regarding current rule of law needs and priorities and the experiences and views of the local populace;
- There is a deep-rooted lack of trust and perceived and/or actual lack of respect between groups and social sectors that inhibit strategic collaboration to promote the rule of law, including between people and the government (including security forces), among ethnic and religious groups, and even within these groups/sectors.
- Entrenched corruption
- Institutional and systemic barriers threaten to impede government progress in implementing rule of law reforms;
- There is a perception that laws are not applied equally to all and that current law-making processes do not provide for any meaningful level of public participation;
- Support is needed to ensure a strategic approach is taken to rule of law reform that includes, for example, identifying needs, prioritization and sequencing, and participation of a broad array of stakeholders;
- Communities lack knowledge of basic laws, legal procedures and mechanisms for accessing their rights; and
- Civil society organizations (CSOs) and religious leaders may be able to play a greater role in empowering communities to engage in rule of law reform.
A deep disconnect between top-level (government) decision-makers and the population was viewed as a top priority in all locations. Reasons for the disconnect were identified as resulting from:
- A lack of capacity at the top-level to effectively communicate new policies to the local populace;
- Resistance to engagement with the public by those fearful of losing their political or economic power;
- A lack of trust and respect across all sectors in the reform efforts;
- A lack of transparency in decision-making – participants were divided on whether this results from lack of government capacity and mechanisms to report decision-making or from intentional obfuscation;
- Members of parliament who fail to or are unwilling to listen to and convey the messages of their constituents to the higher levels;
- The existence of old habits and mind-sets that have been in place for decades and will take time to change;
- The lack of awareness of the general population about the law, political processes and their role in the political process;
- The existence of bribery and corruption;
- A lack of understanding or a lack of interest by the authorities about what is really happening at the grassroots level; and
- A lack of existing mechanisms and institutionalized avenues for engagement between civil society, local communities, and government decision-makers
Suggestions to address the disconnect between government and the people:
- Constitutional change
- Free and fair elections – particularly at the state level
- Clarification of the role of the military – 25% of Union parliamentarians are appointed military officers. The military must treat people with respect.
- Networking – the need to create networks, bring people together and allow all voices to be heard. This will promote national unity and help to build trust;
- Support must be given to ending the conflicts that are currently underway and to ensuring genuine and lasting ceasefire agreements;
- Decentralization must take place and all ethnic groups should be represented in parliament. The long-term aim must be for full political participation;
- Strengthened linkages between the central government and local authorities, civil society and the media, as well as recognition of how each party can support and be of benefit to the other;
- There should be a focus on improving the education, political and economic situation
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Workshop participants identified the following drivers of corruption:
- Low government staff salaries, contributing to lack of motivation and professionalism;
- Complicated and lengthy bureaucratic processes;
- The desire of government staff for personal and job security and for promotion within the system;
- Misuse of the cultural tradition of paying respect to older or higher ranked persons;
- Failure of the government to provide basic services – education, health care etc.;
- Personal greed;
- The disconnect between the government and the people;
- Disregard for the law – government officials have worked for decades under ‘direction’ rather than in accordance with the law;
- Weak governance;
- General population lacks awareness of cost to lodge case in court. People repeatedly provide money hoping that action will be taken to address their issue;
- Cross-border immigration and border trade.
Suggestions to address corruption:
- The establishment of a social welfare system;
- Increased government salaries (to ASEAN recommended levels) and benefits;
- Training of government staff;
- Enforcement of existing anti-corruption laws i.e.: adequate investigation by police and prosecution by the judiciary of those involved in corrupt practices;
- Use of media and social media to raise the issue of corruption, identify corrupt officials (name and shame) and educate all people about why corruption is wrong;
- Provision of adequate financial and human resources to allow the police to investigate corruption claims;
- Religious and moral development programs to develop new mindsets and social norms against corruption.
A number of barriers to accessing justice were identified in the workshops and other meetings:
- People are fearful and face intimidation if they try and take action through the formal justice system;
- Witnesses fear testifying, as they do not know what consequences there could be from the authorities or other powerful persons;
- Access to the courts is costly due to lawyers’ fees, high administration costs, and bribes or incentives that must be paid to judicial staff;
- Lack of consumer protection – people have no recourse to justice if they are sold faulty products or are cheated by merchants etc;
- In remote areas armed groups unlawfully extort money from citizens with impunity;
- Armed groups establish their own courts and adjudicate cases without any accountability;
- Armed groups are able to undertake criminal activities with impunity because the government is concerned that if it takes action against the armed group it will be accused of reneging on the peace process, and/or will set back the peace process;
- Weak law enforcement in border areas by the government means that whichever group/person administers the area is able to act arbitrarily and in their own interest.
Suggestions to address the lack of legal awareness within the population:
- The legislature should undertake outreach to the population to explain its role and the laws it has passed. The executive branch and all its departments, including the land department and police, have the same obligation to inform the public about relevant laws;
- When a law is passed, both government and private media should publish the new law;
- Internet, radio, or satellite television broadcasting of parliamentary sessions would help to distribute information and increase transparency;
- The government should be transparent about its budgetary allocations to departments and ministries;
- The government must increase the knowledge and capacity of government officials;
- The Ministry of Information should provide adequate information to the media (television, radio and newspapers);
- The Ministry of Education should include basic knowledge of the legal system and laws in high school curricula;
- Civil society organizations (CSOs) should provide training for people on the laws, their rights, including the right to participate in the legislative process, and the processes they need to navigate in order to realize those rights;
- CSOs should be given the operational space to carry out activities and training to promote legal awareness. A persistent climate of fear still leaves many wary of the repercussions from government if they engage in activities such as raising legal awareness.
- Members of Parliament would benefit from capacity building to help them perform their role more effectively, to better engage with constituents and to better understand community level problems.
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Other Challenges to Strengthening Rule of Law
Accountability Mechanisms:
For many communities, a key barrier to the implementation of the rule of law has been the lack of mechanisms for holding institutions and individuals at all levels accountable for their actions or for fulfilling their responsibilities – from the executive, parliament and the judiciary, to the police and military, down to local-level decision-makers
Constitution & Devolution of Power
State level officials emphasized there is confusion in the Constitution regarding the devolution of power on the issue of law-making. As state authorities try to draft and pass laws, at times, police have not enforced these state-made laws because they are accustomed to taking their orders from the top level and do not recognize the legitimacy of state-level legislation.
Community legal awareness:
Particularly in rural areas, people do not see the law as relevant or of any benefit to their daily lives where their main priority is economic survival i.e.: being able to support their families, educate their children and repay loans etc. In Mon State, most people do not think the rule of law exists.
Women:
Participants commented that the law does not adequately provide for the security and needs of women. The majority of the women are housewives who do not have any knowledge about the rule of law. Being a member of the judiciary is not a highly regarded or sought after position, as was emphasized by some participants, who stated as evidence the relatively high percentage of women judges.
Identity cards & citizenship:
Muslims noted that it can be a challenge to meet the stringent demands for proof of ancestral lineage in the country in order to receive identity cards. In female-headed households, a child over 20 years could be refused an identity card on the basis that only one of the parents is Burmese. The identity card issue is problematic in ethnic areas linked to conflict. For example, in Karen State, USIP was told the government refused to issue identity cards in certain conflict areas as a means of preventing Karen insurgents from traveling
The role of civil society:
While the new political climate has provided CSOs with increased operating space and new opportunities to engage the government, civil society as a whole still has relatively limited influence with government and there continues to be a wide gap between civil society and government interests.
Community level problem solving and decision-making:
Problems tend to be solved at a family, village or township level wherever possible. Although the village leader has an obligation to inform the police about serious crimes, smaller issues and petty crimes can be settled by the village leader and/or the elders’ council, a small group of respected men within a village. Women generally do not hold decision-making roles at this level.
Some Shan State workshop participants felt that it was becoming more difficult to resolve problems at a community level with traditional respected elders and the village leader as the primary decision makers. Communities are now told to address their problems through official channels at the township level, which is considered neither an appropriate, efficient nor relevant mechanisms for most community members.
Role of religious leaders:
Participants often identified religious leaders as key actors in promoting the rule of law. During military rule, religious institutions often addressed community needs, particularly related to health and education. Buddhist monks and nuns drew attention to community grievances and have been engaged in political and social activism,
Currently religious leaders are playing supportive roles in the peace processes and have begun to take more active roles reconciling ethnic and religious groups. In some locations, religious leaders are seen as vehicles for addressing community needs with the authorities when the community feels they cannot engage directly with the authorities.
Reinventing the Rules 