Dream Interview VI, Rule of Law

Dream Interview VI

Rule of Law

BURMA DIGEST: Could you kindly highlight about the free and independent Media?

His Excellency Datuk Sri Anwar Ibrahim…The media must be free and independent from government or other sources.

  1. Journalists and the media must be allowed to present a diversity of political views.

  2. SPDC must accept that the media contributes positively to democracy.

  3. Journalists must have an adequate access to public information.  

Question…In Myanmar, the military rulers are above the Law. Any comment?

Answer… The double standards in the implementation of law is ever present under dictatorships like Military ruled countries. It is less likely in true democracy.

One for the ruling elite like SPDC Generals, staying above all their own laws and another for the rest especially for the opposition leaders like NLD Daw Suu and all the opposition members up to their fall outs like exMIs including ex PM Khin Nyunt.

All the ordinary citizens are coerced into submission, cowardice and obedience by the Rule by the Law of Jungle or Military Laws or Martial Laws. 

Question… Could you explain the difference between the Rule of Law and Rule by Law? 

Answer… In every democracy Rule of Law is the most important fact for all the citizens.

  1. The judicial system must effectively protect human rights and democratic principles.

  2. Constitutional and legal arrangements must guarantee the democratic process in practice.    

  3. All military, police, and security forces must be subject to civilian control.    

  4. To be called a democratic country; we must enact just and fair laws for all the citizens of Burma/Myanmar.    

  5. In addition, no one must be above the law: whether he is from Military, a General, Senior General, King, President, Prime Minister, Cabinet Minister, opposition leaders or opposition party members, mixed blooded relatively new citizens or Ethnic Minority.    

  6. We could see that the progressive, longsighted Governments that always avoid or refrain from interfering  in the way of their citizens’ ability to make a living and progress will always end up rulining over the wealthiest countries.  

  7. You need to change  Myanmar/Burma to become: 

  •  
    • a more Law abiding place where just and fair Laws rule all the citizens, b.     
    • where no one is persecuted in the Kangroo or corrupt courts. c.      
    • We need to rebuild a country where “respect for human rights” are practiced and d.     
    • there is equal treatment of all the citizens” .

  8.  SPDC need to “stop the unfair permanent dominence of  Militart doctrine’, and “release the political prisoners”.

  9.  Myanmar SPDC Junta failed to realize that these minor domestic embarrassments or harassments they are committing on not only on the oppositions but also on all the  citizens of Myanmar are seen by the world as a serious crimes against humanity and actually it would surely lead to  their down fall.  

Question… Dear Datuk Sri, could you kindly explain again the differences between the Rule of Law and Rule by Law so that we could get the clearer picture?

Answer…  We need to have a clear distinction between rule of law and rule by law.     

  1. Rule of law is an intrinsically moral notion. There is a pre-written just and fair law that respects and protects the rights of each and every citizen. No one is above the law and no one should be prosecuted or persecuted by using unjust laws. 

  2. Rule by law is very different. Someone rules by law not because the law is higher than oneself but because it is convenient to do so and inconvenient not to do so.  

  3. In rule of law, the law is something the government serves.

  4. In rule by law, the government uses law as the most convenient way to govern or subdue the people. 

  5. The two chief arguments for rule by law rather than rule of law are exactly the same ones that are always used against natural law theory

    • disagreement and uncertainty in moral judgments

    • the claim that rule of law is seminal anarchy.

  6. The chief arguments against rule by law and for rule of law are exactly the same ones that are always used against the opponents of natural law theory:   

    • the question of how one can have authority without any moral basis; 

    • the claim that rule by law is seminal despotism. serious equivocation given that they tend in entirely different directions. 

Question… Datuk Sri, what are the basic principles of the Rule of Law?

Answer…  The “rule of law” embodies the basic principles of: 

  1. equal treatment of all people before the law,      

  2. fairness,     

  3. both constitutional and actual guarantees of basic human rights.      

  4. A predictable legal system with fair,  transparent, and effective judicial institutions is essential to the protection of citizens against the arbitrary use of state authority and Lawless acts of both organizations and individuals.  

Question…Do you see any common weakness in new democratic countries?

Answer…  In many states with weak or newly-emerging democratic traditions:     

  1. existing laws are not fair

  2. or are not fairly applied,     

  3. judicial independence is compromised,      

  4. individual and minority rights are not truly guaranteed, and     

  5. institutions have not yet developed the capacity to administer existing laws.

Above weak legal institutions endanger democratic reform and sustainable development in developing countries.

Question…What are the consequences of the lack of Rule of Law ?

Answer…  Without the rule of law_     

  1. the executive and legislative branches of government operate without checks and balances, 2.     
  2. free and fair elections are not possible, and 3.     
  3. civil society cannot flourish.    

  4. Civil and commercial codes that respect private property and contracts are key ingredients for the development of market-based economies.

 Question…How could we improve those new democracies?

Answer…  Legal systems must be improved under three inter-connected priority areas: 

  1. supporting legal reform,  

  2. improving the administration of justice, and

  3. increasing citizens’ access to justice.

Question…What shoul we do to safeguard against arbitrary governance.

Answer…  The principle of the rule of law is that_

 The governmental authority is legitimately exercised :

  1. only in accordance with written,
  2. publicly disclosed laws
  3. adopted and enforced in accordance with established procedure.

This principle is intended to be used as a safeguard against arbitrary governance.

On 16 November 2006, Lord Bingham of Cornhill said, in relation to the rule of law:

“The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”

Hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law.

Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations in Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748).

In Commonwealth law, the most famous exposition of the concept of rule of law was laid down by Albert Venn Dicey in his Law of the Constitution.

 “The rule of law is a political principle the classic exposition of which is in Dicey Law of the Constitution.

He identified three principles which together establish the rule of law:

  1. the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; 

  2. equality before the law or i.  the equal subjection of all classes to ii.  the ordinary law of the land administered by the ordinary courts; and
  3. the law of the constitution is a consequence of the rights of individuals   as defined and enforced by the courts.”    

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