Nick Cheesman

Opposing the Rule of Law: How Myanmar's Courts Make Law and Order

Introduction 1. How law and order opposes the rule of law 2. Ordering law in the colony 3. Reordering law in the postcolony 4. Subsuming law to order 5. Embodying the law and order ideal 6. Performing order, making money 7. Through disorder, law and order 8. Speaking up for the rule of law 9. Against quietude Glossary Bibliography Index.

How in Myanmar “National Races” Came to Surpass Citizenship and Exclude Rohingya

ABSTRACT The idea of “national races” or taingyintha has animated brutal conflict in Myanmar over who or what is “Rohingya.” But because the term is translated from Burmese inconsistently, and because its usage is contingent, its peculiar significance for political speech and action has been lost in work on Myanmar by scholars writing in English. Out of concern that Myanmar’s contemporary politics cannot be understood without reckoning with taingyintha, in this article I give national races their due. Adopting a genealogical method, I trace the episodic emergence of taingyintha from colonial times to the present. I examine attempts to order national races taxonomically, and to marry the taxonomy with a juridical project to dominate some people and elide others through a citizenship regime in which membership in a national race has surpassed other conditions for membership in the political community “Myanmar.” Consequently, people who reside in Myanmar but are collectively denied citizenship – like anyone identifying or identified as Rohingya – pursue claims to be taingyintha so as to rejoin the community. Ironically, the surpassing symbolic and juridical power of national races is for people denied civil and political rights at once their problem and their solution.

What does the rule of law have to do with democratization (in Myanmar)

Talk of the rule of law is today ubiquitous in Myanmar. But what does the rule of law mean? And what does it have to do with the countrys nascent democratization? One way to conceptualize the rule of law is in terms of substantive legal equality. Burmese farmers and activists mobilizing through the lexicon of law to defend agricultural land against intrusive state projects engage with the rule of law in this sense. Another way is as a language of public and state security. Demands for the rule of law in response to violence in Myanmars west correspond with this usage. Whereas in established democracies the rule of law as equality complements the rule of law as security, in a democratizing state the two are not necessarily compatible. The rule of law as an idea associated with substantive legal equality contributes to Myanmars democratization, whereas when associated with public and state security it potentially undermines that democratization.

Law and Order as Asymmetrical Opposite to the Rule of Law

Although law and order is often conflated with the rule of law, the two concepts are asymmetrically opposed. Asymmetrical opposites do not occupy poles on a scale of shared values. One is not a negative of the other, as rule of men traditionally has been to the rule of law. Nor does one occupy part of a continuum extending down from the other, like rule by law in relation to the rule-of-law ideal. They are not symmetrically related. They are opposed because their specific contents are adverse. Whereas the rule of law is characteristically concerned with eliminating arbitrariness through general rules applied juridically, law and order is primarily concerned with eliminating restlessness through particularistic injunctions delivered administratively. Different values inhere to each. Their opposition is in principle. Consequently, they cannot be conflated without obfuscating their distinctive qualities, thereby casting doubt on the meaning of the rule of law as a political ideal.

Introduction: Interpreting Communal Violence in Myanmar

ABSTRACT Collective violence wracked Myanmar from 2012 to 2014. Overwhelmingly, Buddhists attacked Muslims. This article categorises the violence as “communal,” in so far as it consisted of recurrent, sporadic, direct physical hostility realised through repeated public expressions that Muslims constitute an existential threat to Buddhists. It advocates for interpretive modes of inquiry into the violence, as well as into the practices of interpretation enabling it. Eschewing methods aimed at producing a purportedly coherent picture of what happened, interpretive research raises questions about conventional readings of violence, and seemingly self-evident categories for its analysis. But as the articles in this special issue show, interpretivists do not repudiate the search for factual truth. The contributors all make strong truth claims, but claims recognising that factual truths are always contingent. They establish these claims by attending variously to the processes, narratives, histories and typologies that have contributed to the production of communal violence in Myanmar.

Rule-of-law Lineages in Colonial and Early Post-colonial Burma *

These days the rule of law is often invoked in Burma. Although its contemporary salience is partly a consequence of recent global trends, the rule of law also has lineages in the countrys colonial and early post-colonial periods. To examine these lineages, this article distinguishes between its procedural and substantive conceptions. Whereas the latter conception recognizes the subjects of law as freely associating equals, the former is compatible with a range of political practices, including those that are undemocratic. The records of decisions in criminal cases before Burmas superior courts during the period of British domination suggest that some semblance of procedural rule of law did exist, and that it was compatible with the rule of colonial difference. Out of this procedural rule of law a nascent, substantive type emerged during the early years of democratic life in the post-colony, before the onset of military dictatorship. The article concludes that more effort to structure interpretations of the rule of law in history might better enable discussion about the concepts continued relevance.

Reading Hobbes’s Sovereign into a Burmese Narrative of Police Torture

Throughout February 2012, a court sitting at Myanmar’s central prison recorded a defendant’s narrative of torture by policemen to have him confess to a bombing two years prior. How was this record made possible? What does the narrative reveal about the relationship of police torturers to the political community giving them authority to act? Working from Agamben’s intuition that in the moment of violence the policeman occupies an area symmetrical to the sovereign, inasmuch as his use of violence is justified in the name of public order, I suggest the account of police torture in this case can be explained in terms of Hobbes’s theory of attributed action. Like Hobbes’s sovereign, the Burmese policemen had the prerogative to decide when and how to use violence against the detained subject on behalf of the state. That the defendant could later recount to a judge the torture done to him was only because he lacked standing to lay claims against sovereign police, who he himself, as a member of the political community, had authorised. Ironically, the record of his narrative was possible precisely because his claims were without efficacy.

Human Rights in Asia

point, funding constraints were more pressing – constraints that always force the separation of politics and economics. This is the approach that NGOs in general have taken to social change. While Fernando superbly demonstrates this, baffling conclusions are drawn: that NGOs have the capacity to transform themselves, and that we should therefore focus our attention on NGO agency. Nevertheless, Fernando recognises the shortcomings of NGO theory and practice, and offers both a historical and critical perspective on claims about the progressive and transformative potential of NGOs, and insights into their material and ideological roles in social change. While the analysis presents a challenge to the ‘‘NGO industrial complex’’ (p. 274) to reinvent itself, this can happen only if NGOs make a deliberate choice – one that has existential implications – to fight against capitalism rather than defend it.