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Rule of Law/Legal Pluralism (international and Burma/Myanmar-specific)

Websites/Multiple Documents

Title: Rule of law (Wikipedia)
Description/subject: "The rule of law (also known as nomocracy) is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials. The phrase can be traced back to 16th century England, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law (which is not necessary by definition but which is typical). Lack of the rule of law can be found in democracies and dictatorships, and can happen because of neglect or ignorance of the law, corruption, or lack of corrective mechanisms for administrative abuse, such as an independent judiciary with a rule-of-law culture, a practical right to petition for redress of grievances, or elections..."
Language: English
Source/publisher: Wikipedia
Format/size: html
Date of entry/update: 21 July 2012

Title: United Nations Rule of Law
Description/subject: "...The principle of the rule of law applies at the national and international levels. At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. These are the norms, policies, institutions and processes that form the core of a society in which individuals feel safe and secure, where legal protection is provided for rights and entitlements, and disputes are settled peacefully and effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held to account..."
Language: English (other languages available)
Source/publisher: United Nations
Format/size: html
Date of entry/update: 17 August 2014

Title: World Justice Project (WJP)
Description/subject: Working Definition of the Rule of Law: The WJP uses a working definition of the rule of law based on four universal principles: The government and its officials and agents are accountable under the law... The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property... The process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair... Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
Language: English
Source/publisher: World Justice Project (WJP)
Format/size: html
Date of entry/update: 20 July 2012

Individual Documents

Title: MYANMAR Country Profile prepared by the ICJ Centre for the Independence of Judges and Lawyers
Date of publication: June 2014
Description/subject: "Myanmar has thus far failed to ratify most human rights treaties. Judicial independence is provided for in law, but not respected in practice. In particular, the degree of control exercised by the Executive over the appointment process and the lack of transparency over criteria for selection and promotion, insufficient security of tenure, executive control over the budget and insufficient pay and training are inconsistent with international standards. Lawyers lack a self-governing professional body that can defend the profession’s integrity and professional interests. Although their independence has increased substantially since 2011, on-going challenges remain, such as interference in politically sensitive and criminal cases. Structural problems such as the poor state of legal education have yet to be addressed."
Language: English
Source/publisher: International Commission of Jurists - Centre for the Independence of Judges and Lawyers
Format/size: html (372K)
Date of entry/update: 10 October 2014

Title: Constitutional Reform in Myanmar: Priorities and Prospects for Amendment
Date of publication: January 2014
Description/subject: "...The Constitution of the Republic of the Union of Myanmar, Myanmar’s third and current constitution (“the Constitution”), was adopted following a referendum on 10 May 2008, held just eight days after Cyclone Nargis, the most devastating natural disaster in Myanmar’s history. There was little or no public participation in the production of the text of the Constitution; indeed the proposed text was published just one month before the referendum and was unavailable to a large part of the electorate.... 2. However, Myanmar has recently taken a significant step towards participatory democracy by inviting public views on the amendment of the Constitution. In July 2013 the Joint Committee for Reviewing the Constitution of the Republic of the Union of Myanmar (“the Committee”) was established with the aims of: guaranteeing the perpetuation, peace, stability and development of the Republic; bringing eternal peace to all national races and ethnic people by bringing unity between them; and carrying on democratic reforms for building the state. One of the Committee’s first actions was, on October 3 2013, to announce a nationwide consultation exercise aimed at garnering advice from a broad range of political parties, organizations and individuals as to how the Constitution might be amended. This exercise ran until December 31 2013. The Committee has stated that it received 28,247 letters in response.... 3. During the consultation period, the Bingham Centre for the Rule of Law (“the Bingham Centre”) took part in a project to encourage participation by the citizens of Myanmar in that consultation exercise. The Bingham Centre assisted in many well-attended workshops across different parts of Myanmar between October and December 2013. As a result of these workshops, over 500 people submitted responses to the Committee. A summary of the Bingham Centre’s experience of people’s priorities for reform is set out below.... 4. However, the immediate priority for reform identified by the overwhelming majority of delegates at the numerous workshops was to amend the onerous procedure for amending the Constitution, without which reform is likely to be extremely difficult. This paper seeks to put those popular concerns into context by comparing to other constitutions around the world the three elements of this procedure, which, in our view, combine to make it so onerous. Those three elements are:..."
Author/creator: Naina Patel, Alex Goodman and Naomi Snider
Language: English
Source/publisher: Bingham Centre for the Rule of Law (Working Paper No 2014/01)
Format/size: pdf (768K)
Alternate URLs: http://www.burmalibrary.org/docs19/Bingham-2014-01-myanmar_constitutional_reform.pdf
Date of entry/update: 20 October 2014

Title: The governance palimpsest: order maintenance in Southeast Burma
Date of publication: 2014
Description/subject: Focus on Karen refugees....."The force of habit, the awe of traditional command and a sentimental attachment to it, the desire to satisfy public opinion - all combine to make custom be obeyed for its own sake. In this the ‘savages’ do not differ from the members of any self-contained community with a limited horizon, whether this be an Eastern European ghetto, an Oxford college, or a Fundamentalist Middle West community. But love of tradition, conformism and the sway of custom account but to a very partial extent for obedience to rules among dons, savages, peasants, or Junkers. [. . .] in the main these rules are followed because their practical utility is recognized by reason and testified by experience." (Malinowski 1926).....Re the attached sales flyer for the book, the publishers say that a paperback version will be out in July or August.
Author/creator: Kirsten McConnachie
Language: English
Source/publisher: "Governing Refugees - Justice, Order and Legal Pluralism" (Chapter 4)
Format/size: pdf (619K)
Date of entry/update: 24 February 2015

Title: The struggle for ownership of justice
Date of publication: 2014
Description/subject: "We lawyers just cannot help being Darwinian. We simply cannot shake off our assumption that some legal cultures are more developed than others. We prefer written law to oral law; we are happier with professional judges than with people’s rough justice; and — need I say? — we just love cultures that have their own lawyers.".....Re the attached sales flyer for the book, the publishers say that a paperback version will be out in July or August. (Andrew Huxley 2011)
Author/creator: Kirsten McConnachie
Language: English
Source/publisher: "Governing Refugees - Justice, Order and Legal Pluralism" (Chapter 6)
Format/size: pdf (599K)
Date of entry/update: 24 February 2015

Title: Burma and the Road Forward: Lessons from Next Door and Possible Avenues Towards Constitutional and Democratic Development
Date of publication: 25 July 2013
Description/subject: "The chapter of authoritarian rule may finally be ending in Burma’s complicated narrative. The Burmese government has taken visible steps towards democratic reform. Despite reports of military control and intimidation at the polls,the country transitioned to civilian rule in 20103 after fifty years of control by a military junta. The government also released the country’s preeminent democratic leader and icon, Aung San Suu Kyi, who has been on house arrest sporadically since 1989. Rapid political reforms soon followed. The ability to reconcile Burma’s political history and transition to a democracy will be a challenging one. A successful transformation requires more than legal formalism; legal formalism cannot work without the development of a civil society. However, legal formalism, as Suu Kyi has urged, ensures a rule of law that will allow Burmese citizens, including minority groups, to protect themselves from their government’s historical abuse of power. This Comment discusses how the expansion of legal rights for individuals and minorities is the direct way for Burma to secure a democratic future..."
Author/creator: Connie Ng
Language: English
Source/publisher: Santa Clara Law Review (Vol 53, No. 1)
Format/size: pdf (198K)
Date of entry/update: 21 August 2014

Title: BURMA: Criminalization of rights defenders and impunity for police
Date of publication: 29 April 2013
Description/subject: The Asian Human Rights Commission condemns in the strongest terms the announcement of the commander of the Sagaing Region Police Force, Myanmar, that the police will arrest and charge eight human rights defenders whom it blames for inciting protests against the army-backed copper mine project at the Letpadaung Hills, in Monywa. The commission also condemns the latest round of needless police violence against demonstrators there.
Language: English
Source/publisher: Asian Human Rights Commission (AHRC)
Format/size: html (45K)
Date of entry/update: 29 April 2013

Title: Myanmar Rule of Law Assessment
Date of publication: March 2013
Description/subject: Executive Summary:- Background: • In June 2012, Perseus Strategies and New Perimeter, in partnership with the Jacob Blaustein Institute for the Advancement of Human Rights, initiated a broad rule of law assessment of Myanmar • Upon completion of this assessment, New Perimeter and Perseus Strategies will launch a program where potentially thousands of pro bono hours from the global law firm DLA Piper will be invested into a focused project to advance law reform efforts in Myanmar... Current situation: • On November 7, 2010, Myanmar held its first election in 20 years – much of the reaction to the reforms instituted by President Thein Sein, inaugurated in March 2011, reflects the hope that the country can break free of its authoritarian past that involves widespread human-rights abuses • Following by-elections in April 2012, Aung San Suu Kyi has joined the government as an elected MP, along with several dozen representatives of the National League for Democracy and ethnic political parties • Major reform efforts have been initiated by the government across an array of areas, which has reinforced these hopes, but there remains a large gap between public perception and the reality of the impact of reform efforts on the ground • There is a strong consensus across the political spectrum that advancing the rule of law and law reform efforts are a top priority, but the government, opposition, and other parties have different views as to the sequencing of specific efforts... Key findings: • President Thein Sein and his allies in the government are making genuine reforms; however, many government institutions are quite fragile and the role of the military remains opaque • For these changes to be permanent and irreversible, constitutional reform is important, but it is unclear if the government will undertake such efforts in the near term • Law reform is being implemented from the top‑down, but these efforts must be driven into government bureaucracies and down to the local level, and coupled with major grassroots efforts to educate people about their rights • The judicial system is in need of large‑scale reform – corruption is a serious issue and decisions are sometimes made by the executive branch • The parliament will be a significant player in law reform efforts, but requires major investment to build its capacity so its contributions can be meaningful • Myanmar requires unprecedented effort to create a criminal defense and legal aid system, reconstitute the Bar Association, and rebuild the legal education system • The Myanmar National Human Rights Commission has potential, but should be reconstituted by the parliament as an independent government agency, in accordance with the Paris Principles • The government has signed several new treaties, but reform efforts could also be advanced through the signing and ratification of the Int’l Covenant on Civil and Political Rights (ICCPR), Int’l Covenant on Economic, Social, and Cultural Rights (ICESCR), and Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment (CAT), which the government has indicated its intention to do.
Language: English
Source/publisher: DLA-Piper (New Perimeter), Perseus Strategies, Jacob Blaustein Institute for the Advancement of Human Rights
Format/size: pdf (1.3MB)
Date of entry/update: 14 March 2013

Title: The Rule of Law in Myanmar: Challenges and Prospects
Date of publication: 20 December 2012
Description/subject: Report of the International Bar Association’s Human Rights Institute (IBAHRI) Supported by the IBAHRI Trust and the Open Society Foundations.....Contents: Executive Summary... 1. Introduction: 1.1 The IBAHRI delegation and its mandate; 1.2 Interviews and consultations; 1.3 The rule of law: an overview... 2. Background and History: 2.1 Myanmar in facts and figures; 2.2 Myanmar before 1988; 2.3 Myanmar in the two decades after the 1988 coup; 2.4 The 2008 Constitution; 2.5 Myanmar since 2008... 3. The Civil Sphere: Social, Economic, Cultural, Civil and Political Rights: 3.1 Background; 3.2 Current legal structure; 3.3 Findings; Access to courts and the administration of justice; Freedom of expression, association and assembly; Ethnic conflicts; 3.4 Conclusion ... 4. The Political Sphere: the Branches of Government: 4.1 Background; 4.2 Current legal structure; 4.3 Findings; 4.4 Conclusion... 5. The Legislative Sphere: Parliament and the Reform Process: 5.1 Background; 5.2 The structure of the legislature; 5.3 Findings; The Bill Committee of the Lower House; The Complaints Committee of the Upper House; Other perspectives; 5.4 Conclusion... 6. The Myanmar National Human Rights Commission: 6.1 Background; 6.2 Current legal structure; 6.3 Findings; 6.4 Conclusion... 7. The Military Sphere: the Role of the Army: 7.1 Background; 7.2 Current legal structure; 7.3 Findings; 7.4 Conclusion... 8. The Judicial Sphere (I): Courts and Judges: 8.1 Background; 8.2 Current legal structure; 8.3 Findings; 8.4 Conclusion... 9. The Judicial Sphere (II): the Legal Profession: 9.1 Background; 9.2 Current legal structure; 9.3 Findings; Former and current lawyers; The Attorney General and Justice Soe Nyunt; 9.4 Conclusion... 10. Conclusions and Recommendations... Annexes: A. General Assembly Resolution 66/102 on the Rule of Law at the National and International Levels... B. The Peaceful Demonstration and Gathering Act 2012... C. Principles Relating to the Status of National Institutions (The Paris Principles)... D. UN Basic Principles on the Independence of the Judiciary ... E. UN Basic Principles on the Role of Lawyers... F. IBA Standards for the Independence of the Legal Profession... G. UN Guidelines on the Role of Prosecutors... H. International Association of Prosecutors’ Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors... I. The Venice Commission Report’s Checklist for Evaluating the Rule of Law in Single States... List of Acronyms
Language: English
Source/publisher: International Bar Association’s Human Rights Institute (IBAHRI)
Format/size: pdf (409K), html
Alternate URLs: http://www.ibanet.org/Document/Default.aspx?DocumentUid=DE0EE11D-9878-4685-A20F-9A0AAF6C3F3E
Date of entry/update: 20 December 2012

Title: BURMA: Continued use of military-issued instructions denies rights
Date of publication: 05 November 2012
Description/subject: "Much has been made in recent times of the continued use in Burma of antiquated and anti-human rights laws from the country's decades of military rule, as well as from the colonial era. While legislators discuss the amendment or revocation of some laws, and the issue is debated in the public domain, much less is said of the superstructure of military-introduced administrative orders that officials around the country continue to employ in their day-to-day activities, invariably in order to circumscribe or deny human rights. Among these orders are some being used to restrict or prevent access to land of people who rightfully occupy or cultivate the land, as in the case of villagers from some 26 villages affected by the copper mining project in the Letpadaung Mountain range in Sagaing Region, on which the Asian Human Rights Commission has previously spoken (AHRC-PRL-044-2012). The AHRC has obtained copies of a series of orders issued by Zaw Moe Aung, chief administrator of Sarlingyi Township, where villagers have been fighting since mid-2012 against the expansion of copper mining in the region onto their farmlands. The orders, issued under section 144 of the Criminal Procedure Code, prohibit villagers from access to their farmlands or any form of use of the farmlands, such as for the grazing of cattle. The latest orders expired at the end of October; however, people in the region expect that they will be renewed, or that in any event they will simply be denied access to their land, which is being taken over by an army-owned company and its partner..."
Language: English
Source/publisher: Asian Human Rights Commission (AHRC)
Format/size: html
Date of entry/update: 05 November 2012

Title: LSE discussion roundtable on "Rule of Law" with Daw Aung San Suu Kyi (Full Video)
Date of publication: 19 June 2012
Description/subject: "Burmese democracy campaigner Aung San Suu Kyi told an LSE audience that fairness and freedom can only be restored to her country under the rule of law. Speaking on her first visit to the UK for 24 years, the Nobel Peace Prize winner said that unity in Burma and a new constitution could only be achieved within a legal framework. “This is what we all need - unless we see that justice is to be done, we cannot proceed to genuine democracy”, she told an audience of students, staff and visitors. She said that she condemned violence wherever it occurred, but that a full understanding of its causes was key: “Resolving conflict is not about condemnation, it’s about finding the roots, the causes of that conflict and how they can be resolved in the best way possible.” The leader of the National League of Democracy in Burma, who has spent much of her life under house arrest on the orders of the country’s military rulers, was speaking as part of a round-table discussion at LSE featuring academic and legal experts. LSE Director Judith Rees reminded listeners that the event was taking place on Aung San Suu Kyi’s 67th birthday and that everyone wanted to celebrate that she was able to enjoy the day in freedom. Professor Rees said: “Your trip to the UK will go down in history and I’m sure that it’s an emotional trip for you.” She also invited the crowd to sing Happy Birthday, adding: “It’s a tribute not just to you but to all those who have campaigned for freedom in Burma.” Alex Peters-Day, General Secretary of LSE’s Students’ Union, presented the guest with a surprise present - a photograph of her late father taken in London in 1947 - and with an LSE baseball cap, a traditional gift for visiting leaders. The panel discussion also involved LSE professors Mary Kaldor and Christine Chinkin, Burmese activist and visiting fellow Dr Maung Zarni, Oxford professor Nicola Lacey and barrister Sir Geoffrey Nice QC. Professor Kaldor ended the event by passing on a question from a student who’d asked Aung San Suu Kyi how she had found her strength to continue her campaigning. She answered: “It’s all of you, and people like you, who give me the strength to continue. And I suppose I have a stubborn streak in me.” "..."... Speaker(s): Daw Aung San Suu Kyi, Professor Christine Chinkin, Professor Nicola Lacey, Sir Geoffrey Nice QC, Dr Maung Zarni Recorded on 19 June 2012 in Peacock Theatre, Portugal Street. Daw Aung San Suu Kyi is Chairman of the National League for Democracy (NLD) and Member of Parliament of Kawhmu constituency in Burma. She was awarded the Nobel peace prize in 1991. Christine Chinkin, FBA, is currently Professor in International Law at the London School of Economics. She has widely published on issues of international human rights law, law, including as co-author of The Boundaries of International Law: A Feminist Analysis. Nicola Lacey holds a Senior Research Fellowship at All Souls College, and is Professor of Criminal Law and Legal Theory at the University of Oxford, having previously held a chair at the London School of Economics. Nicola’s research is in criminal law and criminal justice, with a particular focus on comparative and historical scholarship. In 2011 she won the Hans Sigrist Prize for scholarship on the rule of law in modern societies. Sir Geoffrey Nice QC is a barrister; he is a signatory of Harvard’s Crimes in Burma report. Sir Geoffrey is a member of Burma Justice Committee and works with NGO's and other groups seeking international recognition of crimes committed in conflicts; represents government and similar interests at the ICC. A Burmese native, Dr Zarni is a veteran founder of the Free Burma Coalition, one of the Internet's first and largest human rights campaigns and a Visiting Fellow at the Civil Society and Human Security Research Unit, LSE. His forthcoming book, provisionally titled Life under the Boot: 50-years of Military Dictatorship in Burma, will be published by Yale University Press. Mary Kaldor is professor of Global Governance in the Department of International Development and Director of the Civil Society and Human Security Research Unit at LSE. She writes on globalisation, international relations and humanitarian intervention, global civil society and global governance, as well as what she calls New Wars. "
Language: English
Source/publisher: Democratic Voice of Burma (DVB) via Youtube
Format/size: Adobe Flash (1 hour, 2 minutes)
Date of entry/update: 20 June 2012

Title: The ‘Rule of Law’ in Burma
Date of publication: 01 February 2012
Description/subject: "Over the past several months, Burma’s pro-democracy icon and opposition leader Aung San Suu Kyi has constantly repeated the refrain that the government must establish the “rule of law.” That’s a worthwhile goal, as well as a necessary achievement if Burma is going to raise the quality of life and standard of living for its 54 million long-oppressed and impoverished people. In the words of William H. Neukom, the president of the World Justice Project (WJP), “The rule of law is the foundation for communities of opportunity and equity—it is the predicate for the eradication of poverty, violence, corruption, pandemics and other threats to civil society.” But what does the “rule of law” mean?..."
Author/creator: Stephen Bloom
Language: English
Source/publisher: "The Irrawaddy"
Format/size: pdf (94K), html
Alternate URLs: http://www2.irrawaddy.org/article.php?art_id=22960
Date of entry/update: 21 July 2012

Title: Divers paths to justice - Legal pluralism and the rights of indigenous peoples in Southeast Asia
Date of publication: 26 November 2011
Description/subject: "Indigenous peoples are among the most historically ancient living cultures of the world and have over time developed their own distinct bodies of laws and institutions of social organisation, regulation and control. These laws and institutions are expressed and practised in ways unique to their sociocultural contexts as self-determining peoples since time immemorial. Today, they are commonly referred to as customary laws (and practices). Customary laws govern community affairs, and regulate and maintain indigenous peoples’ social and cultural practices, economic, environmental and spiritual well-being. However, customary laws and practices and governing institutions have come under frequent and repeated attack, leading to their severe distortion and erosion since the period of conquest and colonisation. This situation has continued with the formation of new States following decolonisation in more recent times. Prejudices against indigenous peoples and projects of nation-building have led to these peoples being marginalised and the practice of their customary laws, cultural practices, beliefs and institutions has become a criminal offence in many parts of the world, including Asia..."
Author/creator: Marcus Colchester & Sophie Chao (eds.) with Ramy Bulan, Jennifer Corpuz, Amity Doolittle, Devasish Roy, Myrna Safitri, Gam Shimray & Prasert Trakansuphakon
Language: English
Source/publisher: Asia Indigenous Peoples Pact (AIPP), Forest Peoples Programme (FPP), The Center for People and Forests (RECOFTC), Rights and Resources Initiative (RRI)
Format/size: pdf (2,1MB-reduced version; 3.9MB-original)
Alternate URLs: http://www.forestpeoples.org/sites/fpp/files/publication/2011/11/divers-paths-justice-cover.pdf
Date of entry/update: 24 February 2015

Title: Thin Rule of Law or Un-Rule of Law in Myanmar?
Date of publication: 2010
Description/subject: "...In this article I examine the rule-of-law language and practices of the state in Myanmar in terms of the “thin” rule of law, which is sometimes described as “rule by law.” I am not advocating this type of rule of law. Rather, I am interested in how it can be used to explore the sort of authoritarian legality found in Myanmar, and to advance more critical study of Asian governments’ stated commitments to the rule of law..."
Author/creator: Nick Cheesman
Language: English
Source/publisher: Pacific Affairs: Volume 82, No. 4 Winter 2009/2010
Format/size: pdf (77K)
Date of entry/update: 18 August 2014

Date of publication: 2000
Description/subject: Abstract: "After nearly thirty years of self imposed isolation, Myanmar has re- emerged as a significant potential destination for foreign investment. One of the key attractions of Myanmar as a destination for foreign investment is its legal system and historical commitment to the rule of law. With ASEAN membership and increasing levels of foreign investment in Myanmar, use of its legal system by foreign investors and their counsel has grown. The aim of this article is to outline, for both investors and legal professionals in other countries throughout the region, Myanmar's legal system and its practical operation in the area of commercial litigation, including the enforcement of foreign judgments and arbitral awards"
Author/creator: Alec Christie
Language: English
Source/publisher: Pacific Rim Law & Policy Journal Association
Format/size: pdf (896K-original; 304K-OBL version)
Alternate URLs: http://www.burmalibrary.org/docs15/Rule_of_Law_in_Myanmar-red.pdf
Date of entry/update: 30 April 2013

Date of publication: 1897
Language: English
Source/publisher: JOHN MURRAY (Publ) 16th Edition (1st Edition, 1861)
Format/size: pdf (7.3MB)
Date of entry/update: 09 April 2015