Two ways of talking about the rule of law in Myanmar

Author: Nick Cheesman, ANU

Since 2012 many things have changed in Myanmar, or Burma. The more noticeable changes have involved the government removing repressive measures imposed on a recalcitrant public: print media censorship; prohibitions on trade unions, political parties or human rights groups; roadblocks on the approaches to the lakeside house of democracy doyen Aung San Suu Kyi in Yangon.

A Myanmar man rides a bicycle past a police patrol vehicle in Yangon, Myanmar, 12 November 2014. (Photo: AAP).

Nowadays, that avenue is clogged with new vehicles imported from Japan and China. Nearby, condominiums spring up with the backing of investors from Hong Kong and Singapore. One sits on a road named after Sayar San, the leader of a peasant uprising against burdensome taxation and capitalist usury of the late colonial period. It advertises its garish luxury as the Royal Sayarsan without a hint of the irony, even as protestors gather almost daily on the city’s streets in response to contemporary forms of impoverishment.

Under these circumstances, it is hardly surprising to find that many people have been voicing grievances in the lexicon of the rule of law.

We can hear this lexicon in the offices of not-for-profit groups and in the meeting rooms of four-star hotels where recently inaugurated think tanks hold press conferences. But we can also see demands for the rule of law emblazoned on banners held aloft where peasants gather to protest endemic land grabbing. And we find them in letters about persistent abuses of public authority and human rights violations submitted to an assortment of newly established legislative committees and investigative bodies.

The rule of law echoes through the language of demonstrators, detainees and letter writers in Myanmar, not only because of its particulars but also because of what it signifies in general — what it evokes as a political ideal. As Harvard anthropologist Elliott Prasse-Freeman put it, the ‘Burmese yearn for a system that attempts to adjudicate conflicts fairly, and the phrase “rule of law” has become a signifier for invoking that desire’.

But Prasse-Freeman also fears that the rule of law in Myanmar today is in danger of being reduced to ‘a substitute for substantive politics’ through the work of international organisations and domestic counterparts. They treat it as a technical problem that experts can address through more equipment and better training, more funding and greater specialisation, more committees and bigger conference tables.

These two ways of thinking and discussing the rule of law — one political and substantive, the other technical and formal — often overlap. Both are necessarily concerned with arrangements for making and publicising general rules, and with adjudication and administration: with the roles of courts, prosecutors and police.

But one — the political and substantive — is a radical reading of the rule of law. It goes to the root of the idea of what the rule of law is good for and why we would bother with it. The other — technical and formal — is a reformist interpretation, concerned largely with designing and making incremental changes to what already exists in the hope that these efforts will result cumulatively in an overall improvement of conditions.

It is not remarkable that rule-of-law language in Myanmar occupies at least two significantly different spaces and resonates in distinctive ways. Scholars writing on the rule of law today invariably begin with some caveats on how the term everywhere is slippery, overused and contested. But beneath the terminological debates are real differences of opinion.

In Myanmar, the rule of law as signifier of desire for political change versus the rule of law as a technocratic program is not just a matter of expression or orientation. These two ways of talking and thinking about the rule of law reflect a genuine and striking divergence in debate: between the rule of law as political ideal, and the larger ends that people attribute to it; and the rule of law as an ‘anatomical’ problem. The latter is addressed by the listing of characteristics and institutions necessary for it to exist — as Martin Krygier, a professor of law at the University of New South Wales, has characterised it — and the material conditions necessary to establish it.

In Myanmar the distinction between these two ways of talking about the rule of law is particularly important. It may be empirically possible to measure the country’s institutional arrangements according to rule-of-law criteria and proceed to work incrementally for generic improvements aimed at measurable outcomes. But this approach misconstrues what it is claiming to upgrade. Myanmar’s institutions are not animated by the rule-of-law idea at all but by principles hostile to it.

And because those institutions are opposed to the rule of law, in Myanmar today the rule of law is not sensible if represented anatomically. For the time being, at least, it only makes sense to talk about the rule of law as signifier of something more.

Nick Cheesman is a research fellow at the Department of Political & Social Change, The Australian National University. He is author of Opposing the Rule of Law: How Myanmar’s courts make law and order (Cambridge UP, 2015).

This article is an edited extract from “That signifier of desire, the rule of law”, which was originally published in Social Research, vol. 82, no. 2 (2015), pp. 267-90.

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