What do this November’s elections in Myanmar, a bill passed by the French parliament in 2010, and a vote in the British House of Commons all have in common?
They are all concerned, one way or another, with laws that have vindictively targeted individuals or groups of people.
The regulations governing who is eligible to stand for Myanmar’s presidency state that neither the candidate nor “one of the parents, the spouse, one of the legitimate children or their spouses” owe allegiance to a foreign power, or be “subject of a foreign power or citizen of a foreign country”.
Who else could the drafters have had in mind apart from Aung San Suu Kyi, the long-term opposition leader who would be a shoo-in if the rules had not been so clearly written to exclude her? Is it mere coincidence that her late husband was British, and their two sons hold UK nationality as well?
France’s ban on full face coverings was upheld by the European Court of Human Rights last year, with the judges claiming that the ruling “was not expressly based on the religious connotation of the clothing in question but solely on the fact that it concealed the face”.
Never mind that the niqab shows the eyes, and many such garments are made of such thin cloth that the wearer’s features are clearly visible behind them. It was reaffirmed that the full force of the law should be used to criminalise the under 2,000 women in the whole of France who choose to wear the full veil.
Britain’s lower house had been set to vote today on a measure that would effectively allow fox-hunting in England and Wales again. Because it looked set to fail, the vote was postponed. I hold no brief for the “sport”. However, part of me wishes the “ayes” luck, because the hunting ban was a nasty piece of class warfare dressed up as concern for furry animals and fuelled by a childish anthropomorphism about “loveable” foxes. On the contrary, as any farmer will tell you, they are a serious menace to livestock and need controlling.
These are all misuses of law. Properly, it should be based on principles that can justifiably be applied to all. It should not be the means by which tyrannies of the majority are imposed upon minorities, however unpopular certain activities or customs of the latter may be. Popular distaste for the peculiarities of others is no reason to make them illegal.
On one level, it might be argued that it is not for outsiders to cast aspersions on what other countries do, and that the making of such distinctions is the prerogative of lawmakers and the people who elect them. If that leads to majoritarian decision-making, so what? And it is true that a great deal of law is based on the sentiments of the time. This explains why you could be hanged for “being in the company of Gypsies for one month” in 18th century Britain, and why slavery was perfectly legal for centuries in most parts of the world.
But we instinctively feel that “the law” is something more than that. Those who are tasked with being its guardians and interpreters – the judiciary – are usually regarded as the bedrock of good governance in any state, which is why their independence and probity are considered so important. The centrality of “justice” is stressed time and again in the Quran, as it is in the Bible. And when the law is regarded as being “God-given” it is imbued with a grandeur and immutability that no deliberation of fallible, inconstant man can possess.
Humanists and non-believers recognise this, and hunger for that sense of permanence and timeless principle in the law, too. How else to explain the way that the UN Universal Declaration of Human Rights has taken on for them the status of some secular holy text? Indeed, the former Archbishop of Canterbury, Rowan Williams, has argued that for all to accept the notions of human rights contained within the Declaration, it needs to draw on “a vocabulary of the sacred” in order not to appear “a purely aspirational matter or something that is simply prescribed by authority”.
The justification of a set of values, when all you have to fall back on is the assertion that they are “self-evident” (as in the American Declaration of Independence), is a bit of a tough sell, philosophically at least. But they have managed it in the US, where the reverence for the constitution may sometimes seem bafflingly over the top, but is a powerful binding force. It transcends party politics and racial division, crucially important in a country that still occasionally fits the description of “the Disunited States of America”.
Maintenance of that useful awe is dependent on the notion of equality before the law, and that it will be used, as far as possible, to regulate the affairs of America for the good of all, not favouring sectional interests and discriminating against minorities. Legislation may frequently fall short of this higher standard. That the overall trajectory, policed above all by the Supreme Court, still hews towards that golden goal is, however, a necessary condition for the judiciary and the constitution to remain the touchstone with the power to unite.
Myanmar’s transition from authoritarianism is still in process. But if that country’s leaders ever want its still-forming democracy to inspire similarly elevated feelings, and if established democracies wish to retain a pride in a truly inclusive citizenship, they must remove laws that punish a select few to indulge the prejudices of the many. In doing so, they target individuals, but they weaken the cohesiveness and the moral purpose of the state itself.
Sholto Byrnes is a Senior Fellow at the Institute of Strategic and International Studies, Malaysia