Miles to go to rule of law (Myanmar/Burma)

Earlier this week, the World Justice Project released its fourth annual Rule of Law Index, which for the first time included Myanmar/Burma (data on Myanmar available here). The media, including The Irrawaddy, have focused on Myanmar’s low ranking, 89th out of 99 countries included in the study (and 14th out of 15 countries in East and Southeast Asia). The Index weighs 8 broader factors, such as corruption and transparency, as well as 44 sub-factors. To obtain its measures, WJP interviewed 1,004 households in Myanmar as well as 16 experts (not including yours truly).

As the  report’s lead author Alex Ponce pointed out to The Irrawaddy, the surveys only covered Myanmar’s primary urban areas: Rangoon, Mandalay and Naypyidaw. This notably produced a bias in the results in the country’s favor as it overlooked regional and ethnic areas, many of which have yet to feel the impact of the reforms. However, I suspect this problem exists for other countries in the region as well, i.e. that surveys focused on more accessible urban areas, which almost always tend to provide better governance.

In an interview with The Irrawaddy, WPJ executive director Juan Carlos Botero recommended that Myanmar could raise its score relatively quickly by focusing on open governance initiatives. To me, this seems flawed for two different reasons. First, methodologically, open government is weighted as one of eight key factors. While most scholars would accept open government as a component of “the rule of law,” it’s impossible to assign a quantitative weight to open government to the rule of law. However, in the WJP methodology weights it as one-eighth of the final score, so open government initiatives would have a large impact on the WJP rule of law score by virtue of that weighting, not necessarily because it would reflect actual improvements in the rule of law situation on the ground.

Second, open government initiatives are not necessarily as painless and quick as Botero posits. Political elites are often very hesitant to expose their activities to public scrutiny. In Myanmar, genuine transparency would require the military to open its accounting books to the public. This would entail a major political change – an admirable one, but not an easy one. By contrast, political elites would probably feel less threatened by criminal or civil justice reform, even if the process takes years. After all, governments can and do regularly cordon off politically sensitive trials in special tribunals (Nick Cheesman has written about how the Ne Win regime did this with special criminal tribunals during the 1960s).

This is not to say that Myanmar’s government should not undertake open government reforms. With skepticism about the reform process rising, transparency could help improve trust in the government. However, these issues do serve to highlight the challenges we face in measuring the rule of law. A recent review of judicial independence measures by Jeffrey Staton and Julio Rios-Figueroa helps illustrate the variety of potential measures, as well as the flaws inherent in each. So, in short, we should be wary of mourning (or celebrating) Myanmar’s low score in the WJP Rule of Law Index.

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