The international community’s shock at violations of international law in Myanmar, evidenced by the exodus of hundreds of thousands of Rohingya into Bangladesh and the plight of thousands more displaced people in the Shan and Kachin States, overlooks a crucial national failing in prevention: Myanmar’s legal system is unable to prevent human rights abuses or hold violators accountable. The result is a culture of impunity in which the State, in this case the military and those close to it, rule by law.
The barriers to justice in Myanmar are clear, making the prevention of human rights violations and accountability unlikely. There are few fair trials for anyone in Myanmar, especially in sensitive cases deemed to affect national security, which effectively covers all related to human rights. A dangerous rule by law – rather than rule of law – mentality develops where a lack of credible investigations and accountability leads to human rights impunity.

Without the rule of law and human rights, upheld by an independent national legal system capable of balancing the power of the executive and military, there can be no safe return for displaced people. Recent government promises to assist returnees to access justice are therefore hollow.

Accountability in international criminal law works on the principle of complementarity; jurisdiction is activated when a signatory state is unable or unwilling to investigate and hold accountable those accused of violations. Despite the politics and signatory status that make action by the International Criminal Court difficult, officials in Myanmar will be uneasy at the latest attempts by lawyers to hold them accountable for deportations to Bangladesh. There have been occasional military court cases and Ad Hoc commissions of enquiry into human rights violations in Myanmar, but none can be seen as genuinely independent and capable of holding high level perpetrators accountable.

Before international intervention there is national prevention. All states, including Myanmar, by nature of their membership of the international community and the United Nations, have the obligation to uphold the rule of law, investigate human rights abuses and hold perpetrators accountable.

When members of minority groups such as the Rohingya, Kachin and Shan are arrested they are not afforded basic fair trial rights. They are often held incommunicado, without adequate legal representation, and without the right to review the legality of their arrest and detention. This fuels distrust and animosity and prolongs conflict. That Rohingya militants allegedly killed scores of Hindus further demonstrates the inability or unwillingness of the state to provide security, prevent crimes and to hold accountable according to the law those that violate it. The only response was overwhelming and disproportionate collective punishment by the military.

The international community has known about the need for prevention, fair trials and accountability for decades. In 2017 when hundreds of men and boys in Rakhine State were imprisoned without fair trials, NGOs told all diplomatic missions and international organizations willing to listen that the conditions were in place for crimes against humanity: that people denied justice are likely to take justice into their own hands and trigger a disproportionate military crackdown characterized by systematic, widespread human rights violations.

The general response from the international community was a continued commitment to economic and political engagement, and advice not to be so gloomy. Myanmar’s transition was supposed to be the good news story.

The rule of law means that everyone is bound by the law and that the law is fair. The law must be agreed upon democratically and not imposed arbitrarily. There must be a fair process for those accused of breaking laws; a process in which the law is applied by an unbiased and independent court.

By contrast, rule by law means using outdated, bad laws related to criminal defamation, offences against religion, citizenship, and state secrets to punish human rights defenders. It means promulgating new laws that restrict human rights such as the new laws related to land, freedom of assembly, expression, and race and religion. It means exerting undue influence over the judiciary so that government actions, unfair legal practices and new law and policy cannot be challenged.

People lose faith in justice and then violating human rights becomes routine and even justified as lawful. The State media can report that the military is conducting, ‘clearance operations according to the rule of law’ without any legal basis.

Governance in Myanmar means imposing the law, order and stability required to increase investment and economic development – rather than protecting and ensuring the rule of law applies fairly to everyone and human rights are upheld. After all, there is a rule of law and tranquillity committee rather than a rule of law and human rights committee.

In Myanmar, the Judiciary lacks independence and is unduly influenced by the executive branch of government and the military. It does not provide the necessary check and balance on a government and a military inclined to rule by law. For example, it is unable or unwilling to issue the Constitutional Writs, even habeas corpus, a hallmark of an independent judiciary in other common law jurisdictions, in human rights situations. The prosecutors appear to lack functional independence: they apply the full letter of the law without discretion to human rights defenders – see the recent cases of the imprisoned journalists or peaceful protesters – while the military, police and crony businessmen act with impunity. Lawyers find it difficult to fulfil their adversarial role. Challenging the government can negatively impact a career or worse; the murder of an outspoken lawyer U Ko Ni has not been credibly investigated.

Corruption remains endemic at the local level and as a result, civil society has little faith in the legal system. The last place a person in Myanmar would go to resolve a dispute or assert their rights is a court of law. Add to this a pattern of human rights abuses against minority groups by the government and the military and it becomes clear that a culture of impunity undermines the rule of law.

Impunity can only be overcome by holding human rights violators accountable. Yet this is difficult as the 2008 Constitution effectively renders the military and police beyond the jurisdiction of the civilian legal system. Violations are covered by impunity clauses and the Military’s continuing political influence. The Commander-in-Chief is not the President or State Counsellor. He is a General acting without civilian or judicial oversight.

In a democratic country based on the rule of law, a citizen can challenge the decisions and actions of government and its agents in court and win. Myanmar’s government, military and all actors in the legal system have made a commitment to this ideal because they see the benefits it has for promoting peace, rights-based development and sustainable economic growth. The Rohingya will not be able to return to Myanmar and other displaced persons to their homes safely without guaranteed rights in law. Minority groups will not consider peace if they cannot trust the legal system.

The only way to ensure that Myanmar enjoys the rule of law rather than rule by law is through a legal system and independent judiciary that can hold the government – including the military – accountable for its decisions and ensure that laws are constitutional and compatible with human rights. The international community should focus on access to justice and accountability rather than wait and cry out at the inevitable violations occurring when a state rules by law with impunity. States rethinking their commitment to engagement in light of crimes against humanity should make the connection between the national legal system, prevention and accountability for human rights violations.