Selected Article

Title

The politics of law and order in Myanmar

Description

This thesis explores the idea and praxis of "law and order" as an opposing principle of government to the rule of law, through study of the criminal juridical system of Myanmar. It finds that this system alludes routinely to the rule of law while enabling practices that contradict it. It explains this contradiction by arguing that the system is animated by politics that conflate law and order with the rule of law. The origins of the criminal juridical system in Myanmar lie in the authoritarian imperatives of the British colonial regime. These imperatives the regime expressed legalistically. A formalistic rule-of-law idea took hold and carried over into the postcolony. It expanded to encompass notions of substantive rights; however, after a military takeover of the state apparatus in 1962 it lost credence. When the rule of law re-emerged strongly in political and juridical language during the 1990's, under a new military junta, it was as a synonym for law and order. Yet, semantically "law and order" in Burmese does not refer to "law" at all. It describes an ideal society that is subdued administratively, not one governed juridically. Reading records of 340 court cases, accompanied by findings from research among legal professionals and extensive study of published and unpublished government documents, I argue that law and order has subsumed the rule of law in Myanmar both as an idea and in practice. I advance the argument by exploring some of the system's key features, including its pursuit of public enemies, and the role of the policeman as bearer of sovereign authority. I show how the criminal juridical system operates as a marketplace for the buying and selling of case outcomes, and how this feature of the system is consonant with the maintenance of order. I examine how the making of complaints against officials is possible within the system's pragmatic frame, and to an extent is encouraged. And I reveal how in response to protest during 2007 courts in Myanmar, rather than sanctioning police officers and other officials for violating law instead functioned as gatekeepers on a juridical threshold, across which people could be taken at will, but from which they could be returned, through trial and sentencing. The thesis constitutes an empirical response to conceptual debate about the rule of law. It argues that the debate can be enriched through more effort to construct and critique opposing concepts, and through research of systems animated by principles of government other than the rule of law or its likenesses. By positing law and order as one opposing concept, this thesis queries the seeming ubiquity of rule of law discourse. It also illuminates the contradictory qualities of "law and order" itself, alerting us to the persistent difficulty of attempting to reconcile the normative and general properties of law with the pragmatic and particular properties of order.