Cambridge Studies in Law and Society. Cambridge, UK: Cambridge University Press, 2015. 317 pp. US$99.00, cloth. ISBN 978-1-107-08318-9.
Nick Cheesman, a research fellow in the Australian National University’s Department of Political and Social Change, provides an excellent study of a complex issue of particular interest to students of Myanmar’s modern history and its prospects for the future. Reflecting years of research and multiple visits, his work includes a review of a vast documentation in both Burmese and English of law reports from colonial times to the present. Facilitated by access to Myanmar legal experts, he has studied hundreds of criminal cases from courts at various levels. The book consists of an introduction, nine chapters, an appendix, glossary, bibliography (fascinating by itself), and index. Chapter 1 sets down the key dichotomy between “rule of law” and “law and order.” Here, the rule of law (taya ubade somoye) is linked to the ancient theme of dharma or universal law, roughly described as “what ought to be,” as apart from law and order (ngyeinwut-pibyaye), essentially a political ideal associated with commands and directives that seek “stillness,” the opposite of anarchy. These concepts are “intertwined in history as well as in current usage” (27), so that in Burmese jurisprudence today, they are often used synonymously. Chapter 2 reviews the legal legacy of the British colonial period (1824–1948), the ongoing remnants in Myanmar of the Indian Penal Code of 1865 and 1898, and how rule of law and law and order were seen to be competing ideas long before independence. The discussion in chapter 3 on “re-ordering law” in the contemporary era provides a cogent historical synopsis of government in Myanmar up to 1988. An initial chaotic period led directly to Gen. Ne Win’s 1962 coup, the introduction of a “mass party designed to suit the army’s purpose,” and a “sliding decline in the rule of law” (77). The appointment of Maung Maung as chief justice ensured that law and order, and the socialist claim to a monopoly on truth, became the central focus of what passed for the legal system, a development which ironically kept intact many colonial laws and structure adapted to suit the junta’s purposes. A fourth chapter continues the saga of military rule from the uprising in 1988 to the present. The new government’s nomenclature as the State Law and Order Restoration Council was unambiguous, and although “legal principles” were still part of the “official language,” they were rendered entirely subordinate to administrative aims, including the total reconfiguration of citizenship and its rights. Cheesman addresses the concept of Burmese “sovereign cetana,” a legal notion which gained added prominence in the Ne Win era. A traditional Pali term for volition (and thus loaded with Buddhist implications), its usage has been redirected to reflect the “positive mental process of someone in authority” (109). Thus the “public enemy” is the one from whom “sovereign cetana” has been withdrawn. This can refer to ordinary criminals, but as early as 1964 it became the basis for rendering hundreds of thousands of non-Bamar people stateless, a practice reinforced with Myanmar’s 1982 citizenship law that currently discriminates against the indigenous Rohingya. The chapter further reflects on the innate authority of the policeman, “who physically represents the rule of law and order far more powerfully than the judge” (124). Chapter 5 expands on the whole question of so-called judicial torture, which in general is not aimed at obtaining information “but at exercising power to have someone admit guilt” (148). A sixth chapter turns to the issue of corruption apparent at all levels in the present legal system. Judicial protocol is the stated objective, but “every official involved in a criminal case has at least a small amount of control that he can use to get a payment” (176). Thus Aung San Suu Kyi, speaking as head of the Rule of Law and Tranquility Commission in 2013, could testify that the legal system is completely broken and not trusted by 99 percent of the population. Chapter 7 gives an account of the three recent large-scale uprisings against the military government (1974, 1988, 2007), and the state vilification of protestors as criminals. In chapter 8, more recent instances of speaking up for the rule of law are reviewed, including a National Human Rights Commission and permission for people to demonstrate (but with the proviso to avoid “institutional criticism”). A final chapter returns to the question of definition, with the rule of law (universally, not just Myanmar) described as “a rich plurality of political ideals bound to the historical, cultural and political conditions from which it emerged,” and the conclusion that its role in ensuring effective government is limited unless it is based “on the reciprocal granting of liberties among members of a political community” (265). In both theoretical analyses and concrete examples of these crucial legal terms in Myanmar’s history and present circumstances, Cheesman’s book makes a vital and welcome contribution to modern Burmese historical and legal studies.
Bruce Matthews
Acadia University, Wolfville, Canada
pp. 719-721