Law in Transition – the Mission Legal blog

Law in Transition is the legal blog of Mission Legal, where we share our thoughts on law, investment, tax and development issues, with a particular focus on issues relevant to Myanmar’s continuing transition towards a modernised and stable economy and society.

The real ‘coalface’ of rule of law in Myanmar – public sector capacity

With the right kind of institutions, starting with the rule of law, Burma could progress very quickly.
        – Daw Aung San Suu Kyi

Since moving to Myanmar, I have developed a theory that the extent to which a country implements the concept of ‘rule of law’ is generally inversely proportionate to the frequency with which its politicians and regulators publicly refer to ‘rule of law’.  In Myanmar, we hear the phrase used often…..(and we seldom see it implemented).

But what is rule of law in any case?  The United Nations has defined it as:

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated…..

In more simple terms, ‘rule of law’ is a system or principle whereby everybody is subject to and abides by the same set of laws, including the people responsible for making the law and for implementing the law.

Another very common – and long-established – principle in legal systems is the Greco-Roman concept that “ignorance of the law is no excuse” for failing to comply with the law.  This reflects the idea that laws cannot be effectively enforced if any law-breaker can simply claim she or he didn’t know that their actions were illegal – and therefore people must be required to comply with the law whether they know what it is or not.  However, the foundation of this principle requires that the content of the law is publicly available and it is possible for people to find out what the law is.  Ignorance should in fact be an excuse if it is difficult for a person to find out what the law is even if they actively try.  Apart from private citizens who are required to comply with the law, in order for the law to have effect the regulators who are responsible for applying and enforcing laws must of course also know what the law is, and have a reasonable understanding of how to apply the law.  Without this, how can we have a meaningful system of law to form the basis of rule of law?

A considerable amount of very good work has been done by civil society and development sector organisations in Myanmar in recent years in relation to promoting the understanding and implementation of rule of law concepts.  However, these programs generally tend to conflate the concept of legal systems with ‘justice’ systems and concentrate primarily on rule of law in relation to criminal actions and procedures.  While rule of law is undoubtedly most pointed in the criminal sphere, where personal liberty is at stake, thankfully most people will seldom or never be subject to an accusation or charge of a serious criminal offence.  The broader areas of interaction with the law are in fact in the general regulatory and commercial spheres.

Most of us deal with basic regulatory frameworks and/or engage in commercial transactions every day.  Deficiencies in rule of law therefore have a greater net effect in these areas.  The general regulatory and commercial spheres are also where deficiencies in rule of law – and the associated inhibiting effect on new business, programs and investments of all kinds – serve to inhibit the development and progress of Myanmar’s society and economy as a whole.  It’s difficult to try to implement something new or better where you can’t identify a permissible way to do it under a reasonably clear regulatory framework.

Apart from the experience of private citizens, we and other legal advisers face this problem in a professional context every day.  It starts with the quality and content of laws and regulations themselves.  In Myanmar, sadly, laws are very frequently poorly structured, vague, unclear and lacking in sufficient detail to identify what they are intended to mean and how they are supposed to apply in practice – despite the fact that we have legal training and expertise.  If the initial basis of compliance with the law and the principle of rule of law is the ability to find out what the law is, we often cannot do that effectively in Myanmar.

Our next step is then often to contact the government agency or other regulatory body that is responsible for implementing the relevant law.  In Myanmar, we are unfortunately quite used to the idea that gaps in the law are often filled by the policy and practice of the relevant regulators.  Because we don’t have a strong system of administrative law that can be used to try to require the government itself to apply the law correctly – which is another aspect of lack of rule of law – policies and procedures that are strictly applied by a regulator end up having, in effect, the force of law.  But, even when we contact the regulators, we frequently cannot obtain a clear response.  The types of responses vary, but one of the most common problems is where we ask a general question about the applicable regulations or policies on a particular topic or area and we are told that we must provide the public servant we are speaking to with details of a particular company that wants the question answered and then we will be told what regulation or policy will apply to that company’s situation.  Whenever we receive a response like that it is immediately a deficiency or failing in rule of law.  If the applicable rule depends on who the company is, and will only be disclosed when the company is identified, then the rule is not a publicly available and equally enforced rule, as required for rule of law.

We of course realise that when we are asked to say which company we are representing in order to be told what the relevant regulatory requirements are this is often actually a reflection of the level of knowledge and capacity of the relevant public servants.  The public servants are often not consciously seeking to apply variable rules to different companies, but rather are simply not sure what the answer should be and are trying to avoid the question or obtain further information to use in coming up with an answer.  But the result still ends up basically the same.  Regardless of whether public servants are applying regulation and policy in a variable fashion because they believe they do not need to have one consistent approach – or whether they are doing so because they don’t know what the regulation or policy is and how to apply it – we still end up without having one consistent rule.  We therefore do not have rule of law in that context because we cannot clearly identify what the law is, and when we do get an answer it can be different for different companies in the same situation.

If laws cannot be made clear enough to understand, if public servants do not know the laws, and if public servants do not even know the importance of knowing the laws – then it’s impossible to have rule of law.

In our view, the real coalface of rule of law in Myanmar is the basic foundation of development, implementation and application of regulatory frameworks across the board.  Like most important issues, there’s no easy answer to fixing this.  But we would very much like to see more of the development sector support for enhancing rule of law directed towards:

  • teaching legal and regulatory drafting skills so that we can have reasonably clear, relatively comprehensive and understandable laws that that can be consistently applied in practice; and
  • upgrading the knowledge and capacity of our public servants in regulatory roles so that they can understand the laws and regulations in their area of responsibility and can clearly publicly communicate the content of those laws and regulations and consistently implement and apply those laws and regulations.

As Daw Aung San Suu Kyi has said, with the institution of rule of law as a starting point, Myanmar could progress quite quickly.  But without embedding rule of law concepts of clarity, consistency and availability of laws into our regulatory frameworks, and supporting those concepts with a public service that can understand and apply those laws, we fear that Myanmar will continue to progress far too slowly and our citizens will remain literally the poorer for it.

By | 2021-08-13T08:12:25+00:00 |Uncategorized|Comments Off on The real ‘coalface’ of rule of law in Myanmar – public sector capacity

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