In 2004, in a seminal treatise on Asian discourses, scholars characterized ASEAN countries as typifying “competing conceptions” of the rule of law.Footnote ¹ Aside from communist Vietnam and Laos, ASEAN countries were classified by those scholars into two categories – countries that are authoritarian, soft-authoritarian, or with limited democracy (Myanmar, Singapore, Malaysia, and Brunei); and countries that feature constitutionalism and transitional justice (Cambodia, Philippines, Thailand, and Indonesia). Both categories were compared and contrasted with mature democracies in other parts of the world, primarily in Northern America and Western Europe.Footnote ²

In Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order, Nick Cheesman examines the doctrine of the rule of law as it is understood and applied in Myanmar. It begins, somewhat paradoxically, by setting out the political and cultural obstacles to the doctrine’s existence and implementation in Myanmar. By doing so, he underscores the core tension underlying a ‘thick’ description of the concept in Myanmar. Cheesman purports to “bring opposing ideas to the rule of law back to the study of politics: to challenge the monism dominating contemporary literature on the concept, by reintroducing one of the rule of law’s opposites to the debate” (p. 7).

He ably attempts to situate Myanmar’s courts amidst its politics, as the book draws from a wide range of primary sources that other authors writing in the English language might overlook. In particular, he draws our attention to four categories of unpublished sources, both in the Burmese and English languages, which he has reviewed: (1) officially compiled files; (2) court records other than any contained in officially compiled files; (3) letters submitted to government officials other than any contained in court records; and (4) other documentation.

At the outset, the book delves into a historical narrative of Myanmar, detailing the tumultuous post-colonial events that set the stage for the political, racial, and religious conflicts that have occurred in Myanmar over the last few decades. Indeed, the book documents the evolutionary changes in the application of the rule of law in the country. Thus, in each chapter, the historical context is first set out before a legal analysis is carried out – which serves as an indication to readers that it is crucially important to understand the underlying politico-cultural context in Myanmar before embarking on an analysis of the country’s rule of law scorecard.

The book expands upon the idea of rule of law, taking into account the cultural context of Myanmar. It challenges the orthodoxy that the rule of law is synonymous with the concept of “law and order”. The author states that “rule of law relies on general rules to maintain order, whereas ‘law and order’ rests on particularistic commands and directives, in response to exigencies” (p. 34). In this regard, Cheesman explains that institutions in Myanmar, which wish to protect law and order at all cost, might ultimately serve to oppose the rule of law.

The next two chapters describe how the rule of law has evolved during the British colonial rule, to post-colonial rule, in particular the “dissonances that the ambiguity of British law created abroad, through study of the ideas that animated courts in colonial Burma” (p. 38). This narrative is interspersed with political events that influenced the Myanmar courts’ jurisprudence one way or another, including when “[t]he fledging political elite fell into disarray after gunmen assassinated General Aung San, the putative leader of independent Burma, along with five members of his cabinet in July 1947” (p. 65). Particularly, after the 1962 coup in which began military rule in Myanmar, the author notes how the “rule of law lost salience in public narratives in state practices” (p. 95).

Analysing the concept of sovereign centana – a principle of law and order used in Myanmar to qualify, delimit, and withdraw citizens’ rights in response to policy imperatives during the rule of the military junta after 1988 – the author sets out excerpts of interrogations of citizens by the police force’s Special Branch. These excerpts help the reader envision the manner in which investigations and interrogations were conducted at that time, which indicates problems such as “the gap between the date of arrest and the police opened the case in court, to the patent lack of evidence” (p. 123). The reader is also able to visualize, through these excerpts, the “greatest incongruence between official action and declared rule” (p. 129).

While the most prominent feature of Myanmar’s legal system is the fact that it was under prolonged military rule, the author explores the conjoined “sibling relationship” (p. 133) between the military and the police. In particular, he examines “the essentially political quality of the policeman through study of torture to extract confession” (p. 132). While the role of the policeman in Myanmar has been subordinated over the years to military interests, he still “surpasses the personnel of other juridical institutions. His ability to decide on the specific admixture of violence ... in that moment is what makes his presence generally compelling” (pp. 158-159). Having said that, the police in Myanmar have a duty to maintain “the semblance of orderliness on which Myanmar’s juridical institutions depend” (p. 160). The professional responsibilities of public officials are important to Cheesman, and are explored in subsequent chapters. They are rightly seen as being paramount in Myanmar’s conception of the rule of law.

The phrase “rule of law” itself is a contribution of English jurist Andrew Venn Dicey, whose seminal Introduction to the Study of the Law of the Constitution describes the rule of law as a “feature” of the political institutions of England, one apprehensible in two different ways: “[T]hat no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before ordinary courts of the land;”Footnote ³ and “that . . . every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”Footnote ⁴ In this regard, Cheesman addresses corruption by public officials in Myanmar. He notes that, strikingly, “at least half of all judicial officers were receiving gratuities” (p. 163) in 1940. He then takes the reader through the varying degrees of corruption that have thwarted the fair administration of justice in Myanmar. Myanmar public officials are required to go through a “politics of pretence” (p. 168). The book also goes into great detail as to how, in Myanmar, every official may knowingly or unwittingly participate in corruption.

Cheesman observes that creating an illusion of a clean system is paramount in Myanmar. Cheesman observes that in parts of neighbouring Bangladesh, a country that shares an institutional and statutory legacy with Myanmar, the “business of criminal justice” (p. 191) is conducted in markedly similar ways, despite varied post-colonial trajectories. He also unpacks the idea of “public assemblies” and examines the extent to which they are allowed in Myanmar. He examines the change in how the authorities have dealt with public assemblies following three events of large-scale protest in 1974, 1988, and 2007. He also considers a related topic, i.e. the ambiguous criminalisation of persons who have participated in these “public assemblies” in contravention of the law. In particular, Cheesman notes that “[t]he juridical response to events in Myanmar during 2007 represented courts’ farthest departure from the methods of their progenitors” (p.223), in that the courts read “the narrative in each case of an accused demonstrator or instigator…The imperative to maintain law and order sufficed for everyone involved” (p. 223). Whether this response was connected to the impending end of military rule in 2011, could have been explored by the author.

Given Myanmar’s prolonged military rule and weak democracy, one might imagine that the available complaints mechanisms for its citizens would be less than robust. Cheesman devotes a chapter to outlining the problems faced by international organizations such as the International Labour Organisation in setting up a workable complaints mechanism, as “the international organisation represented principles associated with the rule of law that were absent from domestic institutions” (p. 228). While the chapter alludes to the newly-formed Myanmar Human Rights Commission (MHRC), little is said about it. An analysis as to why and how the MHRC was established, its intended role, and whether it can be an effective grievance mechanism for the Myanmar citizenry would have been welcomed by readers, and are areas worth exploring.

Among other things, Cheesman could have described the role of National Human Rights Institutions (NHRIs) in other Asian countries, which have pro-actively dealt with complaints that have taken place in Myanmar. One example is the Thai NHRI which has heard cases from villagers in Myanmar relating to projects in the Dawei Special Economic Zone, for human rights abuses that have been carried out by Thai companies.

The final chapter of the book contains, among other things, a comparison of the concepts of rule of law and law and order between Myanmar and Thailand. This comparison is an apt one, given that Thailand is no stranger to military rule, having had a military coup in 2006, and again in 2014. The author posits that “any serious study about rule-of-law ideas and practices in Thailand, would have to take khwam sa-ngop riap roi into account” (p. 260). Khwam sa-ngop riap roi translates loosely to ‘peace and order’ and is an analogous expression to ngyeinwut-pibyaye, the Burmese expression for ‘law and order’. The author could have conducted further comparative analysis of the similarities, and differences, between the two ASEAN states which had both undergone periods of military rule. After all, the ASEAN Charter has codified adherence to the rule of law – and its now familiar linkage to good governance and democracy – as a core ASEAN purpose and principle which all ASEAN member states have pledged to uphold.Footnote ⁵

Nevertheless, the author’s work in exploring “Myanmar as a complex and paradigmatic case of the asymmetrical relations between the rule of law and an opposing concept, law and order: to take what animates its courts seriously” (p. 258), is timely and important, and will no doubt inspire further scholarly work. Myanmar’s leading opposition party, the National League for Democracy, achieved a landslide victory in the general election on 8 November 2015, and its leader, Ms Aung San Suu Kyi, is slated to lead the new government. Daw Suu has shown strong leadership, wisely conveying the message that the rule of law is the most important principle. This message has been a comfort to the military, with which she has developed relationships over the last few years, knowing she would need their backing in Parliament. Like many social scientific phenomena, rule of law entrenchment and reform are measurable in a number of quite different dimensions. It remains to be seen what role Myanmar’s courts, through their decisions, will play as interlocutors; and whether, going forward, the rule of law in Myanmar will have to be analysed by reference to its opposites, as Cheesman has purported to do, or by its paragons.