Category Archives: rule of law

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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Violating the rule of law to save the rule of law? (Indonesia)

To what extent is it permissible to violate legal principles in order to save the legal system? In the U.S., we’ve often had such debates when it comes to balancing human rights during wartime, from Lincoln’s suspension of habeas corpus during the Civil War to extradition during the War on Terror.

In Indonesia, legal scholars and activists are now considering whether the government should lower the presumption of innocence in order to facilitate the prosecution of corruption suspects. The Corruption Eradication Commission has used burden shifting to require corruption defendants to prove their innocence.

According to The Jakarta Post, some organizations, such as Indonesian Corruption Watch, have called for expanding the use of burden shifting in corruption trials in order to prosecute more corrupt officials. However, some human rights organizations have criticized the potential erosion of criminal procedural rights.

It’s an important debate and one fundamental to the rule of law. Successful legal systems tend to be able to resolve such debates and balance the needs of society with the long-term protections of the law. During my travels to Indonesia, I have seen other signs of this debate, including enthusiasm for the death penalty against persons convicted of corruption. I even saw bumper stickers advocating for the death penalty (see photo).

As important as it is to punish corruption, this could raise a problem if burden shifting were combined with the death penalty. It would put defendants least able to defend themselves at risk of the ultimate punishment.

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Survey says… judicial corruption is still a problem (Indonesia)

My past few posts about Indonesia have mentioned surveys about corruption and the extent of the problem. A new survey by the Indonesian Legal Roundtable suggests that the judiciary’s reputation remains low – amongst the lowest of all government institutions in the country. According to ILR, only 23% of respondents believed judges could not be bribed. 32% believed that businessmen could easily influence the judiciary, while 30% believed political parties could influence the judiciary.

Of course, perception doesn’t always equal reality. These results don’t necessarily tell us the extent of corruption in the judiciary. However, courts do rely upon public opinion for institutional support and depend upon citizens to file cases. With such low confidence ratings, there’s a real risk that, rather than spurring judicial reforms, dissatisfaction with the courts will spur apathy.

For the record, ILR does not mention the Mahkamah Konstitusi and it appears most Indonesians don’t immediately think of the MK when asked to evaluate “the judiciary.” The latest polls I’ve seen about the MK (still several years old) suggest that a majority of people have confidence in the court, but large numbers of people still aren’t fully aware of it or what it does.

For a summary of ILR’s findings, see this Jakarta Post article. For an executive summary of the survey results, see here.

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Rule of law? (Indonesia)

In a rather frightening new survey, Lembaga Survei Indonesia has that 57% of Indonesians are increasingly dissatisfied with law enforcement in the country. A shocking 31% said that they would take justice into their own hands – in short vigilantism. LSI researcher Dewi Arum explains the results as follows:

Dewi attributed growing dissatisfaction to several factors. Firstly, low public confidence that law enforcement officers would act fairly, with the majority of respondents believing law enforcement officers in Indonesia could easily be persuaded to accommodate vested interests.

Secondly, many politicians, ministers and government officials are involved in corruption cases. Thirdly, the tacit acceptance of mass riots by law enforcers, such as attacks against Ahmadis and Shia followers.

The final factor is weak national leadership in upholding the law consistently. Dewi said that people close to Yudhoyono had committed corruption despite the president’s anti-graft statements.

Perhaps even more surprisingly, 48% of respondents also said that defendants should be prosecuted in accordance with the law, presumably including criminal procedural rights. What isn’t clear is if the remaining 52% believe criminal procedural rights actively hamper law enforcement. The LSI survey results do suggest that a primary concern is bias in enforcement.

The results could help the presidential candidacy of Subianto Prabowo, who has portrayed himself as a “strong” leader who could crack down on crime and get stuff done. However, Prabowo’s support, while not inconsiderable, seems capped at around 20%. It does seem clear that law enforcement will be a central issue on the minds of voters during the 2014 elections. Less clear is whether the candidates will address their concerns.

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Return of the Writs (Myanmar/Burma)

The New Light of Myanmar has a brief announcement about a seminar focused on constitutional writs in Myanmar. It’s great to see more attention paid to the writs.* As I’ve said before, one of the biggest questions in Myanmar constitutional law is how they will be enforced. According to the constitution, citizens must petition the Supreme Court to enforce the writs. However, it also seems that the Constitutional Tribunal has jurisdiction to interpret the meaning of those writs. What happens if the two disagree? Just one of the many questions about the constitution.

* (thanks to Eugene Quah for pointing out the article to me)

Writs, vital for rule of law, justice and human rights: Union Attorney-General

Nay Pyi Taw, 14 Feb- Writs are necessary for the rule of law, justice and human rights, said Union Attorney-General Dr Tun Shin as he opened the academic seminar on writs embodied in the constitution of Myanmar at Amara Hotel here this morning.

He said the seminar would raise public awareness about the writs.

The seminar was jointly organized by the Office of the Union Attorney-General and International Court of Justice.

Former ICJ Chairman Mr John Dowd AO QC said ICJ recognized the historic reforms of the country and guaranteed aids for the rule of law and wider reforms.

The seminar is held through 15 February.

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