A review of The Politics of Law and Order in Myanmar, by Nick W. Cheesman.
While Myanmar has received a considerable amount of attention during the past few years, Nick Cheesman’s dissertation is the first in-depth, academic study of its criminal justice system. Cheesman’s dissertation asks, “[W]hat animated the criminal juridical system in Myanmar” before the November 2010 election (p. ix)? His answer focuses on how the competing principles of the “rule of law” and “law and order” operate in Myanmar.
Chapter 1 of the dissertation presents Cheesman’s theoretical framework and conceptual definitions. Chapters 2 to 3 summarize the history of Myanmar’s criminal justice system from colonialism to socialism. Chapter 4 focuses on the justice system’s role in policing the public. Chapter 5 focuses on corruption and transactions between litigants and the justice sector. Chapters 6 and 7 focus on citizen efforts to advocate for justice through complaints and protests, respectively. Finally, Chapter 8 returns to the importance of understanding how the concepts of the “rule of law” and “law and order” are translated and implemented in local contexts.
In Chapter 1, Cheesman explains, “[M]y problem for this study is not to look simply at practices, but to go deeper into what animates the criminal juridical system [of Myanmar]” (p. 139). Cheesman argues that the “rule of law” contains a normative character in which citizens are equal and bound by the law, whereas “law and order” is a pragmatic concept that focuses on protecting state interests. He argues that the terms are not simply two ends of the same spectrum, but rather concrete opposites. He then proposes that Myanmar’s criminal justice system is animated by “law and order,” despite the fact that Myanmar’s military governments have tended to conflate the two terms in official pronouncements.
Chapter 2 shows the tensions between “rule of law” and “law and order” under colonialism and after independence. British India, influenced by utilitarian philosophy, drafted a code of law for its Myanmar colony that would “enable empire to have its way” but simultaneously limit the capacity of government agents to abuse their powers (p. 41). In short, the system did allow subjects to claim rights in court and “talk back to power” (p. 53). Judges could dismiss cases when the police did not possess a proper warrant or present sufficient evidence. However, at the end of the day, the colonial government could fall back upon extraordinary measures.
Upon independence in 1948, the legal forms of the colonial justice system remained, but Cheesman shows that the behavior of the courts had changed considerably. A new rights discourse emerged from the independence movement. Judges issued jurisprudence that defined citizenship broadly and enforced substantive civil and political rights, particularly habeas corpus. However, Cheesman also reveals that this newfound discourse was often at odds with the government’s counterinsurgency efforts. When the military was invited to administer the country in 1958, it revived colonial-era practices and deliberately conflated the “rule of law” with “law and order” security concerns.
Chapter 3 covers the aftermath of the 1962 coup, which marked a dramatic departure for the criminal justice sector. The new Revolutionary Council relied heavily on special criminal courts to prosecute enemies. In 1972, with the adoption of socialist legal theory, the junta replaced the ordinary judiciary with a system of “people’s courts” in which lay judges would decide cases. The purpose of the new system was to find the truth and protect working class interests, meaning that there was no need for an independent judiciary to protect citizens against the government. As such, Cheesman explains that the legal system and 1974 Constitution did not promise rights so much as entitlements and privileges, which the government could withdraw should a citizen not meet its conditions.
The rest of the dissertation focuses on the era after the collapse of the socialist system in 1988. Unlike the copious human rights reports about violations of the right to due process in Myanmar (e.g., Amnesty International, Myanmar: The Administration of Justice: Grave and Abiding Concerns, 2004), Chapter 4 of Cheesman’s dissertation uses individual cases to gain a deeper understanding of the rationale driving the system. As Cheesman explains, the new military regime reestablished a professional judiciary, but without the normative rule of law content of the pre-coup judiciary. The system was more concerned with pragmatic administrative goals, such as efficient working procedures, and faster and more accurate sentence, than with substantive rights.
For the majority of criminal cases, lawyers could defend the interests of their clients with some expectation that their work would affect the outcome of the case. However, the courts had no power to protect political dissidents declared to be “public enemies.” Trials were tipped heavily against them, with court hearings held in penitentiaries and judges often accepting weak, uncorroborated evidence from the police. In 1991, in Union of Myanmar vs. Ye Naung, the Supreme Court even affirmed the legality of accepting confessions that might have been derived from torture, making torture itself “part of a procedural game” (p. 150).
While complaints about corruption in Myanmar’s judiciary are common (e.g., U.S. Institute for Peace, USIP Burma/Myanmar Rule of Law Trip Report June 2013, 2013), Chapter 5 of Cheesman’s dissertation presents an innovative framework for viewing corruption as a means through which litigants could negotiate with justice sector actors for reduced sentences. Cheesman documents several different types of corrupt practices. The government would often initiate prosecution under laws with heavier penalties and then negotiate down. In this sense, attorneys often act more as brokers than as legal advocates.
Meanwhile, senior military officials would frequently give speeches chastising individual judges for corruption, but never critiquing the entire judicial system. Indeed, in practice the regime turned a blind eye to corruption so long as judges maintain order and orderliness in their courtrooms. Allowing judges to partake in corruption is one means through which the military quelled any possible dissent from the bench. However, judges who offended government officials or had not attended the “guidance” lectures would be disciplined by the Supreme Court.
In Chapter 6, Cheesman shows how ordinary individuals attempt to complain to the government about rights violations. He makes a useful distinction in that “citizens” emphasize their right to a certain remedy, whereas “supplicants” frame their appeals as entitlements they deserve. Cheesman then shows the ways in which the government will undertake reprisals against complaints that cause public embarrassment. The Supreme Court broadened the definition of contempt to include speech or behavior that diminishes public opinion of the court. In essence, this meant that complainants could criticize the senior judges because they are responsible for administering the judicial system. Doing so led to the disbarment of several hundred lawyers.
In Chapter 7, Cheesman turns to collective responses to government abuse in the form of protests. Unlike complaints, protests cross into illegality. Section 144 of the Code of Criminal Procedure allows the government to declare any assembly unlawful. Traditionally, section 144 was a judicial order and required public notice to take effect, but during the 2007 Saffron Revolution the junta invoked section 144 merely by having paramilitary thugs announce it over loudspeaker. The military also established informal camps to detain suspects until it could identify and prosecute ringleaders and key followers.
Chapter 8 concludes by stressing the need for more research into how the “rule of law” and “law and order” are translated and implemented in local contexts. For example, he points out that the translation of “law and order” (ngyeinwut-pibyaye) does not even include the Burmese word for “law” (taya-ubade). Despite this, the military often conflated the two concepts. Cheesman points out that, contrary Brian Tamanaha’s claim that governments around the world recognize the legitimacy of the “rule of law” (On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge UP, 2004), this sort of distorted localization means that there is probably greater variation in “rule of law” in practice than is commonly acknowledged.
First and foremost, while there is a small body of academic literature about Myanmar’s legal system (e.g., Myint Zan, “Two Divergent Burmese Rulings on Criminal Defendants’ Confessions: An ‘Ideological Analysis,’” University of Tasmania Law Review 19(2), 2000; Dominic J. Nardi, Jr., “Discipline-Flourishing Constitutional Review: A Legal and Political Analysis of Myanmar’s New Constitutional Tribunal,” Australian Journal of Asian Law 12(1), 2010), Cheesman’s dissertation is “the first significant piece of work in the last quarter-century to study the politics of law and order in Myanmar” (p. 24). The dissertation goes far beyond news accounts and human rights reports about Myanmar’s criminal justice system. With the influx of foreign donors and academics traveling to Myanmar to learn about the country’s legal reforms, Nick Cheesman’s dissertation should be a starting point for understanding the effect of military rule on Myanmar’s criminal justice system.
Cheesman’s dissertation is even more impressive because of his extensive use of Burmese sources. Cheesman reads and speaks Burmese fluently and is able to incorporate considerable local knowledge in his work. Cheesman was not able to observe courtroom hearings, which tended to be closed to foreigners, but he includes just about every other type of resource in his dissertation, including cases, Supreme Court gazettes, and government orders. The dissertation introduces a large body of primary sources for research in a country in which access to primary documents is often restricted.
Cheesman’s dissertation has the potential to make several theoretical contributions to the law and society discipline. First, Cheesman’s framing of courts as a marketplace for negotiated justice helps explain why judicial corruption can become so deeply entrenched and have so many stakeholders. As Cheesman explains, this “marketplace” consists of “arrangements that aim to satisfy all relevant parties, while at the same time accommodating administrative imperatives” (p. 159).
Second, Cheesman claims that the military’s ability to move prisoners back and forth along juridical territory from camps to courts at the time of its choosing made it more comfortable using the formal legal system and reduced the need for extrajudicial killings. He compares the high levels of EJKs in Sri Lanka – and, I would argue, in the Philippines during the mid-2000s – with the low rate in Myanmar. Cheesman’s dissertation potentially responds to Anthony Pereira’s claim (in Political (In)Justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina, Pittsburgh: University of Pittsburgh Press, 2005) that the extent of the military’s reliance on the judiciary depends largely on the policy consensus between military officers and judges. His observation also has the potential to revolutionize our thinking on how to mitigate human rights violations in authoritarian regimes.
Dominic J. Nardi, Jr.
University of Michigan
340 Burmese court cases and records
Myanmar government gazettes and orders
Myanmar Code of Criminal Procedure
Interviews with lawyers and legal professionals
Australian National University. 2012. 337 pp. Primary Advisor: Edward Aspinall.
Image: “Respect the law.” Photography by Nicholas Farrelly.