Foreword: Dual policy approach needed on Burma

Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

Despite many decades of talk about democracy in Burma, things have further degenerated. Unfortunately, this comes as no surprise. That the global democratic movement as well as the human rights movement has failed to make an impact is not a matter of bad luck. There are some fundamental flaws within these movements that are contributing to failure. Those of us concerned with these movements need to look at them and ourselves self-critically if improved strategies are to be found to address the problems of Burma.

The biggest flaw is the failure of democratic and human rights movements to understand and articulate the linkages between justice and politics, and how strategies can be developed to address the two simultaneously.

Various forms of pressure on a political front may eventually force a military regime to give in to demands for democratic reforms, but these may also fail to account for the consequences to mechanisms of justice in a country that has been under military rule, which in Burma’s case isMyanmar now effectively into its 50th year. Many years of neglect and deliberate abuse of justice institutions results in them withering and becoming all but dead, even if still housed within the body. No amount of simple political pressure can revive them. In fact, the justice system of Burma is in an even worse situation. It is like a living-dead organ, existing for the purpose of supporting military rule. It is a system of injustice that has become organically linked to the equally unjust political system of the country, and one that if pressured can but work harder to support the diseased body with which it has become fully integrated.

Globally, the demands placed on military regimes are articulated in very simple terms. They often come down to the holding of an election so that a government of popular choice can be installed. There is nothing objectionable in that. However, a political system that has destroyed a country’s justice mechanism cannot be changed by a mere election, for at least two reasons.

First, often elections are not honoured, as was the case in Burma when the National League for Democracy overwhelmingly won the vote but was not allowed to take office. The same thing happened in Cambodia when the FUNCINPEC party won the May 1993 UN-sponsored ballot but was forced to share power with the Cambodian People’s Party of Hun Sen, which later consolidated control and has effectively brought about a one-party system of the sort that preceded international intervention. There too the ruling group has used the courts to ensure firm control of parts of government not directly under the executive.

Second, the political and judicial system may be so perverted by military control that it may bring into power unlikely and unsuitable candidates and it may anyhow be impossible for whoever takes power to do anything about the institutional arrangements. This is the problem faced in Thailand, where the courts have become complicit with the armed forces and other powerful groups in the country in defeating the political party process itself. That the country is increasingly treated as ungovernable by anyone apart from an authoritarian-type leader is not a consequence of the behaviour of its people or anything innate in the workings of its institutions but a consequence of a deliberate agenda towards that end by these groups who are hostile to people having a genuine say in what goes on in their lives.

Why has the global human rights movement not challenged itself over these failings? Why have the real problems of military control, political power and justice remained so far removed from much of its debate? As is taken up in the editorial of this special edition of article 2, one of the reasons is that intellectuals from the developed world, who are still the strongest players in this discourse, do not have living experience of the real problems. For them the rule of law and the institutions of justice are as part of the real world as the air they breathe or the water they drink. Their systems are sufficiently advanced that those who come into them and debate their mechanics cannot conceive, other than at a shallow intellectual level, of political and legal systems that lack all of the qualities which they take for granted.

When an intellectual from a developed country comes across problems of the sort found in a country like Burma he or she may hold the view that if enough political pressure can be generated from outside in tandem with that from a local movement then surely something must budge. All the effort goes in to “regime change” when experience shows that even a short term and oversimplified goal like this often remains beyond reach, and in places where it has succeeded, such as the Philippines and Indonesia, although conditions may in certain respects improve, the forced collapse of institutions under the old regimes have lasting and intense consequences for the new ones. Over time people in some places begin to doubt that there was actually any change at all, apart from a reduction in overt violence for a while. And even this gets back in under the new regime after a brief interval, in the absence of mechanisms to deal with it.

That the intellectual leadership for democratic change and human rights worldwide is mostly housed in countries that broadly enjoy democracy and human rights is unsurprising and is not necessarily objectionable. But as the intellectual discourse in these countries is disconnected from the experiential dialogue among people in countries without these conditions, there is a vast disconnect between the group that dominates global debate and those who best understand from lived experience what the debate is all about.

For so long as this disconnect remains so too will the flaws in these movements persist and even grow larger. Occasional get- togethers, seminars and joint publications do nothing to address this breakdown in communication, and nor can the small number of experts in the west claiming to have knowledge of what goes on in other parts of the world from book-learning, theoretical calculations and contact with members of other countries’ elites. The only way out is by improving the means for people who are directly suffering these problems to better articulate them for larger audiences in order that persons interested to reappraise and reconfigure human rights and democratic movements beyond the borders of their own states may do so in a more informed manner, such that new discourses and strategies can emerge.

article 2 has been dedicated to the task of better exploring and detailing the real human rights and rule of law conditions in countries around Asia from its inception in 2002 to the present day. This special edition of article 2, ‘Saffron Revolution imprisoned, law demented’ (vol. 7, no. 3, September 2008) is another attempt in this direction. It has been a lonely path of articulating these problems in the implementation of human rights through legislative, judicial and administrative measures in terms of article 2 of the International Covenant on Civil and Political Rights in countries where conditions fall far short of the standards found in the west, let alone those of the United Nations. We can only hope that this debate over time obtains adherents and advocates among people not only in our own part of the world but also in more developed jurisdictions (as distinct from more economically developed countries) and that their work together with our own will shift the global debate on human rights in a new direction, one that will bring us to a better shared understanding of the linkages between justice and politics and what they mean for movements on and in countries such as Burma.

Perhaps a lesson in these linkages and the prospects for meaningful change in Burma can be found among the ideas and strategies of people involved in the recent struggle against dictatorship in Pakistan. A book written by Muneer A Malik, The Pakistan Lawyer’s Movement: An Unfinished Agenda, gives a very vivid and detailed picture of how this movement, particularly since 2006, worked according to a “dual policy approach” which combined struggle for regime change with struggle for legal reforms, not in committees and reports, but as a national issue backed by the public on the streets. Here is an extract from the book:

As a teenager, I remember reading newspaper reports about a judge by the name of M R Kayani who was going around the country on a lecture tour and in the process arousing public sentiment against Field Marshall Ayub Khan. I then did not understand the issues involved but I do recollect that Justice Kayani’s tours were exciting the adults around me. I think I was the first one who suggested to the Chief Justice that he should undertake a tour of major bar associations and address them on the constitutional issues at stake, namely, the independence of the judiciary, the supremacy of the rule of law as opposed to the rule of men, the principle of separation of powers, and empowering the weaker sections of society through judicial activism. The manner in which the Chief Justice had been treated on 9th March and subsequently manhandled on 13th March had generated considerable ire and fire in the bellies of persons who watched television or read the newspapers. With the press and electronic media giving extensive coverage to the lawyers’ movement, we were certain that huge crowds would turn up along the route the Chief Justice would take to journey to bar associations and along the way the leadership of the bar would have an opportunity to address ordinary citizens and in the process educate them about the fundamental rights that they enjoyed under the Constitution, the manner of realizing these rights and the true meaning of justice, and why it was essential for them to embrace these ideas.

The Supreme Court had itself in a number of cases held that the constitution was an organic document that needed reinterpretation according to changing times and needs of the nation. We had no cavil with this jurisprudential principle. However, we were of the view that the needs and aspirations of the nation could be better understood with reference to the voice of the people rather than the viewpoint of military generals and the bureaucratic, feudal and capitalist establishment. Unfortunately, our courts had generally tilted towards the latter and failed to give adequate consideration to the desires and aspirations of the public at large while engaging in the process of constitutional interpretation. We wanted to directly involve the people of Pakistan in the chartering of their constitutional destiny.

Our tours of the Bar Association, and the huge crowds we attracted, aroused much fear and apprehension within the corridors of power. The government hit back by accusing us of politicising the issue. They said we were trying to intimidate the judges hearing the Chief Justice’s case through a show of public power and that our conduct amounted to contempt of court. Nothing could have been farther from our mind. We wanted to strengthen the hand of the judiciary vis-a-vis the dictator. We wanted to impress the judges on the bench with the mass public adulation and support for a judge who is seen as being fearless. We hoped to empower them; in future, to show similar resolve and to lose all fear of bullying regimes. Detractors argued that our movement made judges too vulnerable to public pressure. I strongly disagreed with this point of view. But, in any event, if some level of vulnerability was inevitable we considered it was better—on the whole—for judges to be vulnerable to public opinion rather than dictatorial whims.

The first element of our strategy was to change beliefs that had enslaved the masses even after their liberation from the colonial rule. They had been indoctrinated with the false idea that there were two sets of rules— one for the powerful and one for the meek—and were taught to be subservient at the cost of liberty. No doubt, this belief system was a product of our colonial past but, after the departure of the British, our local baboos simply stepped into their shoes and worked assiduously to maintain and preserve the system. They assumed the responsibility of keeping the masses in control in order to protect the privileges of the ruling class. We wanted to educate the people that their fundamental rights and liberties could only be realized under an independent judiciary and we wished to explain what we meant by an independent judiciary. It meant a judiciary where the fearlessness and courage displayed by the Chief Justice on 9th March would not be novel or unique and where every judge throughout the land—from the lowliest magistrate to the highest judge—had the courage to look the executive in the eye and say “No”. We had to convince them that only bold and independent judges could provide them redress from the oppression of the wadera, the seth or the officer in charge of a police station.

The second element of our strategy was to change the mindset of the judges, especially those who manned the superior courts. Regretfully, the chequered history of our judiciary was essentially one of subservience to those who controlled the coercive power of the state. It was not that the concept of trichotomy of powers, and the principle of separation of powers was alien to them but in their own minds they viewed themselves more as civil servants than as holders of constitutional posts charged with a sacred duty under the constitution. It was this state of mind that led them to rely on the reviled doctrine of necessity in validating extra- constitutional take-overs. We needed to inculcate in them the belief that the effective exercise of their writ was directly proportional with theft moral authority and the credibility that they enjoyed in the eyes of the masses and that their true duty was to provide justice to the weaker sections of society irrespective of any pressures or constraints imposed by the ruling elites.

The third element of our movement was to change the mindsets of our political leadership. Many of our supposedly democratic political leaders betrayed a lack of faith in the strength of the people of Pakistan and preferred to enter the higher echelons of power through deals with the establishment and foreign powers. We sought to convince them that the only reliable road to Islamabad runs through the towns and hamlets of this country and not from London or Washington DC and that no cabal of generals can resist the march of a people united and mobilised by a shared ideal. Simultaneously, we wished to remind them that a free and democratic society rests on the edifice of an independent judiciary.

Finally, we wanted to change the mindset of the military, bureaucratic, feudal and capitalist establishment itself. They needed to learn that they could no longer continue to lord over the masses like a foreign occupying force. Their very survival depended on ending their isolation and alienation from the masses.

By now this movement combined with others has achieved a partial regime change, as General Musharaff was forced to resign the presidency under threat of impeachment. However, the more important aspect of this struggle is, despite significant advances, as yet unfinished. That is the struggle for the independence of the judiciary, which has become a matter of national significance, and one to be reckoned with in the political, social and legal life of Pakistan. This issue, which awoke in the powerful street movement for rule of law and the restoration of judges dismissed by the ousted dictator, has taken root in the country and will continue to make its influence felt irrespective of which regime has power.

If more people in democratic and human rights movements locally and globally adopt this sort of dual approach, adapting it as suitable to their own circumstances, new opportunities may open up in places like Burma rather than simply by putting pressure on its military regime to hold an election and admit some superficial political reforms. This can be done in many places and at many levels. For instance, despite all the United Nations experts, diplomats and officials coming and going and talking about Burma, how much effort has been paid to documenting and monitoring the work of its judicial system in terms of international standards and putting forward proposals on specific items that need to be addressed, items on which the government will feel some obligation to respond and on which local lawyers, human rights defenders and activists also can work in their respective ways? The answer to this question is shorter than the question itself. No such work has been done, even with the presence of country offices like the UN Office on Drugs and Crime. Monitoring and reporting on the policing system similarly has so far amounted to nothing, other than that incidental to other research. The human rights movement has remained stuck at the point of documenting individual violations and incidents without steps to bring that work into bigger and more meaningful studies on systemic issues. Serious work in these areas could be more effective than the types of two-dimensional back and forth about political party issues that goes on at the moment. It is in this respect that we now need to develop our thinking and planning and hone our expertise if better strategies for the protection and the promotion of human rights of people in Burma are to figure in the global democratic and human rights agendas.

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