Introduction
Nobody who has followed events in Burma since a semi-elected legislature began work in 2011 could have failed to notice how frequently the rule of law is invoked.Footnote 1 Democracy icon Daw Aung San Suu Kyi, who heads a government committee on the rule of law, has talked about it so often that it has become the stuff of satire.Footnote 2 She is by no means alone. These days, everyone in Burma—from visiting world leaders to political activists, think tanks to media columnists—has something to say about it.Footnote 3
The countless invocations of the rule of law that have followed Burma's return to formal constitutional government, following more than 20 years of unmediated military dictatorship, are in some respects evidence of the rule of law's recent ascent to status of the ‘preeminent legitimating political ideal in the world today’, as Brian Tamanaha has put it.Footnote 4 Yet, talk in Burma today about the rule of law is not just faddish verbiage. It is talk with long lineages. One purpose of this article is to inform current discussion by tracing those lineages in the country's colonial and early post-colonial periods.
The article's larger, concomitant purpose is to revisit arguments about whether or not British imperialists established the rule of law in their colonies.Footnote 5 Throughout British India—into which the government integrated Burma—the rule of law was central to the project of state legitimation.Footnote 6 For many colonial administrators it was to be the empire's lasting great achievement: ‘a shining beacon’ in an otherwise shifting scene, one prominent Burmese jurist later wrote.Footnote 7 Some scholars still adhere to a view that Britain exported a ‘semblance of the rule of law’ to its colonies.Footnote 8 Others have rejected such claims. Martin Chanock, for instance, has described the British belief in the legacy of the rule of law in India as among colonialism's ‘most stubborn fantasies’.Footnote 9 For Chanock, this legacy is a myth belied by the insistent concern of the British to dominate politically through judicial, or juridical, means. Similarly, Ranajit Guha has railed against scholars who ‘go on talking about a rule of law in colonial India when the facts of colonialist practice did nothing to support such assertion’.Footnote 10 He points to the despotic qualities of the colonial regime, the preponderance of executive orders and concentrating of power in an executive head, and the patent inequality of colonizers and colonized before the law as evidence for the case against the rule of law.
A growing body of work has stressed the curiously ambiguous characteristics of European law in the politics of colonization.Footnote 11 Colonized people moved into the legal regimes of colonizers neither through brute force nor simple persuasion, but through, as Lauren Benton has written, ‘a series of contests over the structure of the legal order that shaped a juridical space for the state and brought participants into a single discourse about law’.Footnote 12 The British as colonizers used law to dominate colonized people and extract resources from their lands, but also provided the colonized with spaces in which they could mobilize the ideology of law to protect at least some of their interests.Footnote 13 Colonized people recognized the advantages of engaging with legal institutions and using them for various purposes. Some, like the political elite in Egypt, embraced European legal models in order to advance their own state-building plans.Footnote 14 Others, like villagers in Sri Lanka, found in colonial courts pliable resources that they adapted to fit with local norms for resolving conflict.Footnote 15
Whether or not the interplay of legal politics in British colonies constitutes sufficient evidence of the rule of law seems to be less a problem concerning the facts of colonialist practice and more a problem of interpretation. Scholars of British colonialism have tended to argue for or against the rule of law based upon inferential readings of their sources, leaving the reader to draw his or her own conclusions about what the rule of law means to them. In a seminal study of Burma and the Dutch East Indies, for instance, John Furnivall opposes the mechanical arrangements of the rule of law with the fluidity of Burmese custom.Footnote 16 David Washbrook, in his classic exposition on the ‘Company state’ and agrarian society in colonial India, associates the rule of law with property rights and free-market economics.Footnote 17 Sandra Freitag ties the ‘rule of law’ (which she keeps firmly between inverted commas, as if to suggest that she is not really talking about the rule of law at all) in British India with a legal structure ostensibly geared towards individuals, when in fact the imperial state was preoccupied with collective crime.Footnote 18 And David Skuy passes over it in a footnote to his study of Thomas Macaulay and the Indian Penal Code, describing it as meaning that ‘the same law applies to all people; the regular law must supersede arbitrary or discretionary power’.Footnote 19
Each of these authors draws upon rich, archival research to tell important stories about the characteristics of British colonial rule. In so doing, each one of them also interprets the rule of law differently, variously addressing questions of its spirit, its economy, its structure, and its ideology. Each interpretation is logical, and coherent within the parameters of the author's study, but the attributes of the rule of law in each lack comparability. They also lack clarity. What is meant by the rule of law, what properties it has, what criteria might be used to identify it: in the extant literature on British colonialism these questions and others remain largely unanswered, because, for the most part, they are also unasked.Footnote 20
The rule of law is a notoriously tricky concept, and none of the above is to imply that we need to come up with an authoritative definition in order to reach certain conclusions about it. Rather, it is to say that scholars concerned with the rule of law need to be attentive to how they and others use the term if they want to make sense of phenomena with which it is associated, and, above all, if they aim to address larger comparative political and historical issues. Conceptual problems are ontological. They raise questions not only about what we mean when using the label ‘the rule of law’, but also about what makes the concept important as a subject for inquiry and debate.Footnote 21
Therefore, this article begins not in colonial Burma but with some remarks on alternative conceptualizations of the rule of law drawn from scholarship across a number of disciplines. It bifurcates the concept between procedural and substantive types. Applying the two to Burma, it postulates that the British colonial regime did establish a procedural rule of law of some sort. This rule of law was applied differentially and obviously was not democratic. However, neither of these features necessarily disqualifies it from the category of procedural rule of law. This procedural regime prepared the groundwork for the emergence of a nascent substantive rule of law in the post-colonial period, one that obtained meaning through the exercising of rights by citizens in a political community of freely associating equals. A new conception of the rule of law—which could never have existed under the superordinate-subordinate political relations of empire—began to emerge out of the politics of the early years in the post-colony. It might have taken hold but for pull of circumstances that led, a decade after independence, to military dictatorship, and with it, the destruction not only of the embryonic substantive rule of law but of its procedural counterpart as well.
The rule of law between procedure and substance
The rule of law's conceptual ambiguity has generated much debate over its contents and parameters.Footnote 22 The concept is everywhere highly contested, perhaps essentially contested.Footnote 23 One plausible way to overcome the problem of essential contestation is to think about the rule of law not as a singular concept but as a range of concepts related by family resemblances.Footnote 24 Another way is to treat it as an ideal comprising a variety of different strands, not all serving the same goals.Footnote 25 These approaches to the concept turn aside from dogmatic arguments that a solitary, reified rule-of-law ideal exists to which every political regime ought to subscribe. They invite researchers to conceptualize the rule of law in more than one way.
This article differentiates between two alternative conceptions of the rule of law: one procedural, the other, substantive. These two conceptions broadly correspond to a conventional distinction between formal versus substantive rule of law.Footnote 26 In its procedural conception, the rule of law consists of positive legality. It rests on strict compliance with law as prescribed, not on law's contents. In its substantive conception, the rule of law consists of more than the rules of law. It obtains meaning additionally through people exercising rights in a political community. Today, it is usually also associated with other substantive ideals, in particular, those of human rights and democracy. In its procedural conception, the rule of law is ambivalent towards these ideals.
One of the best-known modern summations of procedural rule of law is Friedrich Hayek's ‘government in all its actions [which] is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge’.Footnote 27 This rule of law is minimal. It consists of little other than a commitment to oppose arbitrariness. For Hayek ‘it is more important that there should be a rule applied always without exceptions than what this rule is’.Footnote 28 Joseph Raz, who builds on Hayek's conception, agrees that the rule of law is not ‘the rule of the good law’.Footnote 29 To Raz, like Hayek, the contents of law matter not to the rule of law. How law is applied is what counts.
Ronald Dworkin dismisses procedural rule of law as a ‘rule-book’ conception, as against the ‘rights’ conception that he expounds. He argues that under the rule of law citizens have moral rights and duties to one another, and political rights against the state which are recognized in positive law and are enforceable upon demand by individual citizens through judicial institutions.Footnote 30 The rule of law is invested with a range of philosophical and moral contents. It is substantive. It has an essential public participatory element, one grounded in the reciprocal granting of liberties among members of a political community.Footnote 31 Therefore, some authors insist that the rule of law and democracy are mutually dependent; that an internal relation exists between them.Footnote 32 Others go further, variously suggesting that democracy is actually a form of the rule of law, and that the rule of law defines the proper end of government that respects the equality and freedom of its subjects.Footnote 33
It follows from the above that substantive rule of law is incompatible with an arrangement in which one group dominates another politically—except insofar as the superordinate group might claim to uphold substantive rule of law exclusively among its membership. In any case, where the question arises as to whether or not the British as colonizers succeeded in governing colonized peoples based on rule-of-law principles, it is necessarily reduced to one of whether or not theirs was a government of procedural rule of law. The next section addresses this question.
Procedural rule of law in colonial Burma
The British invaded Burma in three phases over the course of the nineteenth century CE, beginning with the occupation of territories in the west and east following a war of 1824–26, Lower Burma in 1852–53, and, Upper Burma in 1885.Footnote 34 During the first half of the century, the establishment of courts and the conceptualizing and managing of crime was somewhat improvised. Two geographically divided territories were administered separately. Officials made their own choices based on expediency and personal inclination or, as two officials later observed, based on ‘broad principles of equity and common sense rather than nicely determined points of law’.Footnote 35
After 1834, the administration at Calcutta took over responsibility, and more personnel came to oversee local government, including judicial affairs. These officers were not specialist judicial personnel but administrators who took on judicial functions. This non-separation of powers was partly due to the pull of circumstances.Footnote 36 But it was also consonant with utilitarian ideas influential in the period, which opposed the separation of powers, characterizing it as anarchic.Footnote 37 Thus, in 1872 a civil servant took the role of judicial commissioner in Rangoon, and from 1875 he served as the appellate official for all courts then under British domain in Burma. After the fall of the royal household at Mandalay in 1885, followed by a number of years of bloody counterinsurgency, another judicial commissioner in 1892 took responsibility for Upper Burma.Footnote 38
At the turn of the century the trend across the empire was towards autonomous judicial services. From 1900 the peak court in Lower Burma comprised both civil servants and barristers. In 1905 the colonial government formally separated the day-to-day operations of the senior judiciary from the executive. However, judges remained answerable to the governor, and district officials continued to handle criminal cases. By this time the lower professional judiciary in Burma included large numbers of men from the local population, although as late as the eve of the Japanese interregnum, from 1942 to 1945, Burmese personnel still numbered just 40 per cent of the total.Footnote 39 Europeans and Anglo-Burmese dominated the upper courts until independence in 1948.
From 1923, a high court began operating in Rangoon, presiding over the whole territory, with the devolution of powers from India under diarchy. In 1937 Burma separated completely from India; however, this change in government did not significantly alter the work of the superior courts. The High Court continued to function under Japanese occupation, although it was peripheral to the politics of the period.Footnote 40 In the aftermath of the Second World War, the court exercised its authority during a time of political uncertainty and economic hardship, up to independence at the start of 1948.
This section and the next are based upon a reading of criminal cases in the law reports issued by these commissioners and courts from 1892 to 1947.Footnote 41 The remainder draw on the reports up to 1962. Taken together, the reports constitute a rich vein of historical material, yet one that researchers of Burma have neglected.Footnote 42 As records of colonial thought and practice, they provide, as Elizabeth Kolsky has said, ‘a unique opportunity to simultaneously comprehend the workings of the colonial state alongside the rhythms of everyday life’.Footnote 43 Read with ‘a constructive attitude of critical engagement’ with the forms of knowledge they produce, they speak both to the rule-of-law idea and to its ‘material force’ and its ‘potential to act upon the world’, as Ricardo Roque and Kim Wagner have put it.Footnote 44 In short, the reports constitute an historical artefact that demands attention to its peculiar historical specificity and biographical identity.Footnote 45
The law reports of Burma for this period are also of special relevance because in them we glimpse the British colonial legal enterprise at its apex. The utilitarian experiment in India, with its purportedly scientific and universal technology, had, by this time, run its course.Footnote 46 The jackbooted march on Mandalay coincided with the high point of British interest and effectiveness in imposing a template for legal authority on colonized societies. A senior military officer wrote of the invasion that, ‘Our annexation must be followed by a rain of district officers all over the country, civilians whose courts must be hedged in by British bayonets for a long time to come.’Footnote 47 The army was the instrument for only one of the empire's two piers.Footnote 48 The other—the law—colonial government soon erected.
One legal historian has gone so far as to describe the conquering spirit of Mandalay as a ‘Benthamite jihad’.Footnote 49 The characterization is colourful but perhaps not grossly exaggerated. The colonizers convinced themselves that their genius lay in devising a scientific and comprehensive system of law inspired by the work of Jeremy Bentham, through which the very manner in which the colonized lived could be fundamentally altered. Stripped of technicality, their jurisprudence would allow a few well-trained, enlightened administrators to issue common-sense orders on the basis of a handful of statutes, free from the legal game-playing that bedevilled the courts of England. Codification would eliminate blank spaces from the pages of law.Footnote 50 In so doing, it would eliminate blank spaces from society. Everything would become visible and legible when illuminated under the bright light of the Indian Penal Code and its accoutrements, the Criminal Procedure Code and Evidence Act. Zones of darkness would cease to exist under a compendium of statutory law drafted for India, but in its philosophy just as applicable to Burma.Footnote 51
This purportedly scientific, procedurally exact form of law was to distinguish the colonizers, or so they imagined, from the rulers who had preceded them. As Nasser Hussain has explained,
Legal procedure was to be the ultimate answer to the question of what it meant to bring law to India. It was to be the form of a civilized despotism, for it would both declare to subjects that their identity, their offenses, their grievances, all began and ended in the authority of the law, and would reflect the morality of publicity and process lacking in the authority of a native despotism. Procedure was not substance but spirit, and in its exactitude it covered all law, English or Indian, statutory or customary, insisting that no authority preceded law, or more specifically, the workings of law, and that these workings created and reflected their own authority.Footnote 52
While procedure in its exactitude covered all law, this article works from Hussain's insight to examine the uses of procedure in Burma's courts in exclusively criminal cases, which in a politically repressive setting are the representative mode of legal authority.Footnote 53 In Burma, as in other British colonies, criminal law was the primary implement for imperial legal politics.Footnote 54 As the rule of law is a quintessentially political ideal, its dynamics are particularly evident in deliberations over alleged criminality. The accounts of criminal cases in the reports most clearly reveal the specific power relationships with which the rule-of-law idea was concerned. They capture the tension between normatively grounded claims referential to the rule of law and the pragmatic objectives of the colonial state. They are the products of contestation not only over the facts of a case, but also over ideals that continue to resonate through post-colonial politics until the present day.
The colonizers said they wanted law for the colonies that was clear, concise, and predictable. At each point, a procedure would exist to indicate to functionaries what they were obligated to do. However, procedures were also not to be used to delay or obstruct justice. Hence, we encounter a contradiction: procedure must be followed, but not to follow procedure is not wrong, provided that it does not cause injustice. This contradiction between adherence to procedure and fairness of outcome was not a contradiction peculiar to the colonial model. In any system of contest before an adjudicator, a tension exists between adherence to procedure, on the one hand, and substantive notions of right and wrong, on the other.Footnote 55 The contradiction in British colonial law was not unique, but because of the stress placed upon procedure, it loomed large over trial proceedings, and gave rise to what Jonathan Saha has called ‘tediously legalistic, semantic debates’ about the terms of law.Footnote 56 The remainder of this section sets out why these debates, tedious and legalistic though they may have been, mattered a great deal to those caught up in criminal cases before Burma's courts.
Section 537 of the Criminal Procedure Code directed judges in colonial Burma—as it still does today—to ensure that their verdicts would not be invalidated because of minor procedural errors. A reasonable and just decision could not be disturbed merely because of a flaw in procedure.Footnote 57 The thinking behind the section is straightforward, but questions over the distinction between procedural flaws and illegalities gave rise to extensive litigation. Many rulings fell against appellants. A magistrate's use of an incorrect term, for example, was not fatal to the ruling if other officials could still easily infer its meaning.Footnote 58 Omitting to read depositions aloud back to witnesses was not sufficient cause for retrial.Footnote 59 Nor was it an illegality if a court failed to give formal notice to an accused that a case was opened against him, although it was regrettable.Footnote 60 If a judge neglected to ask an accused if he wanted witnesses called, it did not necessarily prejudice the proceedings against him.Footnote 61 Non-compliance with the provisions in the Criminal Procedure Code for examination of an accused alone did not constitute sufficient ground to overturn a conviction.Footnote 62 An unsigned confession was still valid if a higher court was convinced it was genuine.Footnote 63 Similarly, an unsigned judgment constituted a minor error that could be overlooked.Footnote 64 Where a magistrate had not recorded his reasons over a likely breach of the peace, his order stood so long as he did have a reason and could articulate it when examined before a superior judge.Footnote 65 Where prosecution witnesses were recalled and the accused was not then re-examined, the error did not vitiate the trial.Footnote 66 Nor did the neglect of a court to indicate the duration of a restraining order render it void.Footnote 67
But in many other cases colonial-era judges ruled that procedural flaws did cause failures that undermined case outcomes. Statements made to the police were inadmissible and judges had no authority to consult police records unless requested to do so by an accused.Footnote 68 Where the accused was unable to enter a defence he had to be retried.Footnote 69 A retrial was invalid when the defence witnesses were not re-examined but merely had their earlier statements read back to them and were then examined by the prosecutor.Footnote 70 The evidence of a single witness, especially of an approver (an accomplice turned witness for the prosecutor), was not ordinarily enough for a court to convict.Footnote 71 And where a magistrate chose not to hear defence witnesses he had to record the reason for not doing so and demonstrate that the purpose of the defence in calling the witnesses had been to vex or delay justice.Footnote 72 If in a committal hearing a subordinate court had not considered the defence's evidence, it amounted to an illegality.Footnote 73 A prima facie case had to be established at committal before ordering a trial.Footnote 74 Even when convinced that such a case existed, a judge could not dispense with procedure and fail to complete the hearing as required by the procedure code.Footnote 75 A retrial was unavoidable where a trial court judge had not actually examined a defendant.Footnote 76 Likewise, where a court took evidence not in the presence of the accused or his lawyer, the conviction of the accused was invalid.Footnote 77 Failure to read a deposition back to witnesses might not invalidate the trial but it did make the evidence inadmissible.Footnote 78 The accused in two different cases could not be tried together.Footnote 79 Nor could a single accused have two alternative charges combined and brought against him simultaneously.Footnote 80 And a judge who passed an order on the basis of evidence collected by his predecessors and without personally hearing from the accused had violated the law.Footnote 81
The superior courts frequently heard appeals in cases where a man's liberty was under question. In many, they ruled in favour of the detainee because of the authorities’ non-compliance with procedure. Where a man successfully escaped from a wrongly issued arrest order, for instance, the escape was not illegal, because only escape from lawful custody could be penalized.Footnote 82 Likewise, resistance to illegal arrest could not constitute an offence.Footnote 83 A magistrate's order that a convicted person be imprisoned at a police lockup was also against procedure and illegal.Footnote 84 And where a police officer acted on the orders of a superior to make an arrest, the orders had to be in writing.Footnote 85
Detainees brought cases complaining about the abuse of security bonds as a means of imprisoning them without charge or trial. The notion of habitual criminality had taken hold both in the British-ruled colonies and in the metropole.Footnote 86 In Burma, authorities routinely misused laws for dealing with persons alleged to be habitual criminals, detaining people against whom they had no proof of criminality, on failure to produce money for bonds. Superior courts complained at the manner in which lower courts interpreted a general reputation of habitual criminality when issuing bonds, and at the ‘overzeal’ of executive authorities in their pursuit and imprisonment of innocent people.Footnote 87 In an early expression of concern to protect civil rights through correct adherence to procedure, a judge warned that the law ‘must not be strained in order to secure even a public advantage. It is better that one dangerous man should be at large, than that a precedent should be established which would jeopardize the liberties of an indefinite number of citizens.’Footnote 88 Another court warned that the mere fact of someone being a prior offender did not justify classing him as habitually criminal.Footnote 89
The courts also censured defects that were the result of unlawful or improper policing and prosecuting. Where police officers failed to obtain a properly issued search warrant, the accused was considered to have been wrongly imprisoned.Footnote 90 When evidence was uncovered that would ‘throw an entirely new aspect’ onto a case, the judge refused to entertain the prosecutor's appeal for a retrial because of the earlier ‘gross negligence on the part of those whose duty it was to investigate the case and put it before the Court’.Footnote 91 Similarly, after a pardoned approver absconded and the case against the accused collapsed, the officials responsible for the case could not go after the approver instead.Footnote 92 Where police officers had only generally recorded how they had obtained information that two persons had murdered a third, the court refused to accept their account and acquitted the accused.Footnote 93 When they and a magistrate had failed to follow correct procedure in issuing a summons, warrants of arrest, and proclamations of the accused as fugitives for not appearing at court, the appellate judge recommended dropping the matter, and continued that in all cases it was necessary that there be some proof of an offence before giving an order.Footnote 94 The neglect of both a magistrate and higher court judge to put their reasoning in writing rendered their orders invalid.Footnote 95 And, a district police superintendent who, with a unit of military police, had exposed a gambling den saw his case thrown out because he had conducted the search improperly, had exceeded his authority, had acted illegally in delaying prosecution, had submitted a report that was inadmissible as evidence, and had ordered an announcement which inferred that he had authorized certain types of gambling in certain premises.Footnote 96 Not satisfied with having chastised the police, the court continued that for his part the magistrate had tried the case wrongly, and had failed to record the charge and his findings as required by the Criminal Procedure Code.
Judges did express some concern to rein in police officers who sought to exceed their authority, even if misconduct was widely tolerated.Footnote 97 For instance, under the Criminal Procedure Code, when the police search premises they must have two witnesses in attendance who sign the search and seizure form. The use of ‘professional’ witnesses or persons intimate with police officers as witnesses came in for criticism from early on, with the apex court in one case noting that an excise officer had had the same witness to his searches ‘some 8, 9 or 10 times’.Footnote 98 It overturned the sentencing of 23 people convicted for illegal gambling because the search had been witnessed not by two independent members of the public but by two ward headmen. The court noted that although the code did not state this explicitly, its requirement was for witnesses ‘unconnected in any way with the Government and officialdom’, or else ‘a police officer might call in two other police officers to witness the search, and might say with truth that the search had been witnessed by two respectable inhabitants of the locality’.Footnote 99 The Chief Court, in another case, warned of the ‘harassing and oppressing [of] persons on charges of gambling’, encouraging magistrates to ‘be careful to see that precautions are used to avoid unnecessary hardship, and to follow strictly the procedure laid down by law’.Footnote 100 Its counterpart in Upper Burma convicted a police sergeant for falsifying official records.Footnote 101 And overturning a lower court's sentence of one month's imprisonment for resisting arrest, an appellate judge castigated the magistrate for assuming that an arrest should be accompanied by handcuffing, even when an accused resisted a police officer.Footnote 102 A search warrant issued simply to go ‘fishing for evidence’ in the general contents of an office was ruled unlawful, and the evidence obtained as a result of the search, inadmissible.Footnote 103 The refusal of a person to answer questions posed by an investigating officer also did not, of itself, constitute a criminal offence.Footnote 104
The small spaces that enabled victories for individual defendants in certain types of cases, and against some policemen and other officials, are what Larry May has described, borrowing from Henry Maine, as interstices of procedure.Footnote 105 May argues that historically the establishing of certain procedural guarantees in Europe opened the door for the courts to protect a body of substantive rights that emerged later—that is, rights expressed as ‘rights’ on normative grounds, exemplified in bills and declarations. Where procedural guarantees are operative, he posits, they introduce minimal fairness that makes the exercise of other rights possible. As Edward Thompson famously contended, they make still other rights conceivable, even if they are not yet achievable.Footnote 106 They secrete within themselves ideas about substantive rights, such as the right not to be deprived of one's liberty arbitrarily or secretly. Some of these ideas take hold in practice through the operation of procedure; others take hold in people's imaginations, motivating demands for political change.
If a case can be made for the rule of law in Burma under the British, it lies in these procedural interstices and the checks on arbitrariness that they contained. It is a claim for the rule of law that corresponds with Hayek's procedural conception of guarantees against arbitrariness of the sort associated with the ‘rule of man’, which the colonialists attributed to their indigenous antecedents.Footnote 107 It is a claim for the rule of law through an assertion of lawfulness, absent of any commitment to the self-determination of those subject to the law.Footnote 108
Procedure mitigated the worst excesses of despotism, while ensuring its continuance. Law was meticulous in its oppressiveness, but it left a good deal of room for debate. For some, this debate involved too much metaphorical hair-splitting, but this was because splitting hair mattered.Footnote 109 Unsurprisingly, a lot of complaints about the formality and technicality of law came from administrators, men of action who felt that many a criminal accused ‘who would have been seen through at a glance by his own [Burmese] rulers now went scot free after a patient trial before an English judge’.Footnote 110 As competition and conflict seeped into the courts, people in Burma learned, like their counterparts in India and elsewhere in the British empire, to use the technicalities they found in procedural interstices to talk back to power in ways that they were not able to do via other institutions.
Over time, this communication became increasingly vociferous. The unique opportunities that courts presented to people to communicate with officialdom led lawyers in Burma to become prominent political actors, like their peers in India.Footnote 111 Some made names for themselves by taking up high-profile political cases, such as the lawyers in the trials of alleged rebel leaders during the early 1930s.Footnote 112 Others found in ordinary criminal cases the resources they needed to confront colonial rule.Footnote 113
Thus, to the end of its days in Burma the British regime succeeded in perpetuating the idea—at least among some segments of the population—that its courts enabled both legal and political contest of its power, as well as in creating a professional class that held tight to the idea of the rule of law. To an extent, colonial rulers became prisoners of their rule-of-law rhetoric.Footnote 114 Having made the rules, they had to play by them, or at least enough of them, enough of the time, to give credence to the rhetoric.
The procedural rule of law ultimately encouraged opponents of colonization to make public critiques of power through the courts, which gave rise to political demands for substantive legal rights and liberties. But the colonial rule of law was not itself a regime of rights, liberty or equality. It could just as soon deny the rights of some people as it could guarantee the rights of others. The next section examines how the rule of law in this period could conceivably accommodate the denial of rights to some segments of the population.
Procedural rule of law accommodates colonial difference
So far we have an image of the procedural rule of law as affording colonial subjects a place in which they could stake claims in defence of their individual rights as criminal accused. However, procedural rule of law does not obligate respect for rights, nor the equal treatment of subjects. On the contrary, as Raz has put it in one infamous passage,
A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.Footnote 115
No proponent of substantive rule of law would have cause for anything other than disagreement with this conception. Philip Pettit, for instance, argues that the failure of law to track the interests of a group against whom discrimination is practised—be it for racial, sexual or religious reasons—constitutes a form of arbitrariness sufficient to negate claims to the rule of law.Footnote 116 But if we suspend such objections and persist in differentiating between procedural and substantive types, then we might contend that not only could most of the items on Raz's shopping list for a nasty and brutish legal system be found in the institutions and practices of British colonial rule in Burma, but also that none of them prohibited the procedural rule of law.
This section takes up that contention to further explore the notion of procedural rule of law in colonial Burma through criminal cases involving the differential treatment of women. It concentrates on these cases for two reasons. First, many studies have already examined the differential treatment of racially classed subject peoples.Footnote 117 Yet, differential treatment in colonial law took many forms, including gendered differentiation, which arguably has obtained less attention. Secondly, the law reports for the period studied contain a rich vein of material involving women both as victims and as criminal accused through which to examine how the procedural rule of law could conceivably accommodate and also enable the unequal and often iniquitous treatment of differentially classed persons.
Legal procedure in the colonial period acted to deny rather than protect victims of sexual violence. In her study of rape cases reported in High Court decisions across India during colonial rule, Kolsky cites the 1926 Maung Ba Tin case, in which the High Court in Rangoon ruled that a woman's testimony of rape would be notoriously unreliable for a court to accept.Footnote 118 The contents of the ruling speak to gender stereotypes and judges’ biases, yet Kolsky neglects to mention perhaps its most remarkable aspect—that it was practically the only published superior court judgment on a charge of rape in Burma over a period of 65 years: from 1872, when the judicial commissioner began work in lower Burma, to 1937, when the territory separated from India.Footnote 119 Where it does get reported, rape is sometimes incidental to technical issues of law.Footnote 120 In other places it is downgraded to ‘assault with intent to outrage modesty’.Footnote 121 Elsewhere it is imputed in kidnappings of ‘minor girls’.Footnote 122 In any event, rape rarely appears in the reports for what it is.
Of course, then, as now, men in Burma raped women and children, as they do elsewhere. Some cases, such as the public gang rape of a Burmese woman by a group of British soldiers in Rangoon, obtained particular notoriety.Footnote 123 Yet, the message that emerges from across a range of records and later studies is that the purpose of the codes was the protection of peaceable men. The interstices of procedure in this rule of law were male spaces, just as the state itself was masculine.Footnote 124
Not only in cases of sexual assault, but in all types of assault on women, judges found grounds to justify crimes and reduce sentences. A man who stabbed a woman to death escaped a charge of homicide because the judge concluded that it was natural for him to respond in this manner when she squeezed his testicles.Footnote 125 In two cases where relatives killed women while beating them allegedly to cast out evil spirits, the judges appear to show more empathy for the perpetrators than the victims. One ruling repeatedly implies that had the beating been less aggressive, the accused might have escaped with a lesser penalty.Footnote 126 A judge in another case explicitly states that the act of striking a girl more than a hundred times was not itself unlawful, and that had it been done ‘with the proper care and attention’ no offence of any sort would have been committed as the girl would not have died.Footnote 127
But that procedure worked against women does not undo procedural rule of law. On the contrary, procedure here worked consistently against complainants, since defendants, lawyers, and judges in practically every case could cast sufficient doubt on an allegation so as to dismiss it as unreliable. In one trial, a judge overturned the alleged offender's conviction on the grounds that the woman had consented to adulterous sex and her allegations could not be believed.Footnote 128 He quotes the judgment of the lower court to support his finding, that,
The important point for consideration . . . is the possibility or probability that the complainant and her witnesses, knowing in their own hearts of the adultery, determined to make up the story of rape and tell it to the husband on his return and so save [the] complainant's face and leave him to report the rape.Footnote 129
The expressed belief among British men that women alleging sexual abuse tended to lie about what had actually happened was not peculiar to Burma. Men back home also expressed this belief. But enhancing it were attributes that colonial officials assigned Burmese women: that they were assertive and domineering, and more innately inclined to make unfounded allegations against men.Footnote 130 These views were pervasive not only among government bureaucrats but also among missionaries, members of the indigenous elite, and representatives of women's groups at home and abroad.Footnote 131 Whereas among suffragettes and nationalists such attributes might have been a cause for celebration, for colonial officials they were cause for concern.Footnote 132 The courts treated women who were parties to criminal cases with suspicion. In the abovementioned case, the judge went on to conclude that the story of rape was obviously false because, ‘Knowing the independent character of Burmese women, there is no necessity whatsoever . . . to wait till the husband's return. If the case were a true one, she would have gone off and complained at once . . .’Footnote 133 Attributing a general purported quality of Burmese womanhood to the woman in a specific case, the judge concluded that she was untrustworthy. A general attribute once applied could be extended across practically all cases in the same category to reach the same kind of outcome.
The overarching point here is not about the status and stereotyping of women in the colonial period, important though this topic is, but rather with how legal procedure could serve not to protect the rights of classes of persons but to deny them. It did so systematically and routinely, without requiring a wholesale departure from the extant legal regime. And it had normative bases. Once people had been assigned to categories of gender, race, language or religion, they were normatively unalike.
Kolsky has characterized this condition, building on Partha Chatterjee's work, as the rule of colonial difference through codification.Footnote 134 The British as colonizers used methods of classification and differentiation to dominate other groups of people through the procedural rule of law, not despite it. They made it so because nothing about the procedural model for the rule of law was inherently incompatible with the rule of colonial difference. True, the rule of colonial difference required the distortion of modern political ideas and institutions concerned with equality and justice.Footnote 135 But this distortion did not entail a choice, as Johan Geertsema has represented it, between the rule of law, on one hand, and the rule of colonial difference, on the other.Footnote 136 They were not opposing concepts. The one could accommodate the other—and do so not through its suspension but through its application.
To reiterate, British colonial law enabled the creation of categories of persons to whom ordinarily available protections could be withdrawn via the mechanical application of procedure. The rule of colonial difference through codified procedure was not an exception to the rule of law, so conceptualized.Footnote 137 It was an altogether different matter from the use of emergency decrees and other extraordinary measures to combat perceived political threats to imperial sovereignty, usually cast as dangers to public order.Footnote 138 A state of emergency enables the temporary delimitation or suspension of ordinary law in order to preserve a political regime through practices that would otherwise contradict the principles contained in the law as routinely applied. Although emergency regulations framed in a manner so as to satisfy the requirements of procedure are not necessarily corrosive of the rule of law, when enacted they do necessarily suspend the juridical order. They release the state and its personnel from the usual responsibilities that bind them through the work of the courts by creating what Giorgio Agamben has described as a ‘zone of anomie’, in which the law remains even though its application is suspended.Footnote 139 By contrast, the differential treatment of colonial subjects was internally consistent with the principles of procedural rule of law to which the colonizers subscribed. It did not function in an anomic zone at all, but as a matter of routine. Procedural rule of law enabled the rule of colonial difference through the mundane business of day-to-day proceedings, not through exceptional declarations.
But the spirit of procedural rule of law was incompatible with demands for equality and democratic rights that emerged with the nationalist struggle of the 1930s and continued over into the post-colony.Footnote 140 Nationalist leaders made much out of rhetoric about the rule of law, which rang increasingly hollow as the colonial government resorted to extraordinary measures in order to quell unrest before and after the Second World War.Footnote 141 With independence, a more generous, substantive rule of law began to emerge out of the interstices of procedure, one that drew on procedural techniques while amplifying rights through recognition of democratic principles. The remainder of this article is concerned with the struggle for a type of substantive rule of law in Burma, and with what became of it.
The struggle for substance in the post-colony
In 1948, Burma broke free from colonial rule, but not from colonial law.Footnote 142 Nor was this continuity of law from colony to post-colony remarkable. Colonial legal apparatuses persisted throughout Asia as an inevitable consequence of modernity.Footnote 143 Early attempts by defence attorneys to challenge the legitimacy of colonial-era law in Burma met with flat rebuttals by the superior courts, with the acting chief justice, E Maung, remarking in one case, that,
Customary laws, the Common Law of England and the principles of justice, equity and good conscience were not applied by their inherent force but were made applicable by enactment. It is by people who had lived or who had been trained under this system that the Constitution of the Union of Burma was drawn up and enacted and it is therefore reasonable to conclude that when the Constitution speaks of ‘law’ it speaks of the will of the legislature enacted in due form, provided that such enactment is within the competence of the legislature.Footnote 144
Whether or not the ‘rickety yet repressive architecture’ of Burma's colonial state was at odds with anti-colonial ideological programmes, as Mary Callahan has written, post-colonial officials and politicians were comfortable with keeping the apparatus intact.Footnote 145 Indeed, the first chief justice of newly independent Burma, U Ba U, recoiled at the argument of one applicant that extant law might not in fact be legal, describing the conceivable consequences of invalidating the prior legal regime as ‘startling and disastrous’, and likely to cause ‘chaos in the economic and social life of the country’.Footnote 146
Economic and social life was already chaotic. Burma fell into disarray after gunmen shot dead Aung San, its military and putative political leader, along with five members of his cabinet on the eve of national liberation. Compounding the immense damage of the Second World War and post-war intercommunal conflicts, civil war began almost immediately after the declaration of independence. Burma was awash with weapons and unemployed men. By March 1949 almost 12,000 military personnel had deserted their posts.Footnote 147 An array of separatist and revolutionary groups occupied vast swathes of the country. For over three months, the capital itself was under siege, the frontline just over ten kilometres from the city centre. Some politicians called for parliament to be suspended and for interim military rule there and then.Footnote 148
Under attack from all quarters, the new government moved quickly to adopt and use draconian legal measures, modelled on those of its predecessor, to stay in control. The law that its functionaries found most efficacious was the Public Order (Preservation) Act of 1947.
Passed, and amended, in the final year of colonial rule, the Public Order (Preservation) Act had its origin in an expired wartime statute.Footnote 149 Its section 5 enabled the police to arrest anyone suspected of ‘having acted, or acting, or being about to act in any manner calculated to disturb, or to assist a disturbance of the public tranquillity’ without warrant. One parliamentarian, echoing complaints of his colonial-era predecessors, described it as a section that effectively enabled anyone to be arrested for anything.Footnote 150
But the conditions of the post-colony were not those of the colony. Even in difficult times, people could assert rights, and courts could entertain their assertions, using instruments hitherto unavailable to them. In particular, the 1947 Constitution enabled applicants to approach the Supreme Court concerning any alleged violation of the fundamental rights set out in its second chapter.Footnote 151 The Constitution's authors had included members of the country's legal elite: men who had gone to the bar in London.Footnote 152 Its contents reflected their training and also accommodated the political aspirations of the time. It attempted to reconcile their familiarity with the procedural rule of law in the Anglo-Indian tradition with demands for a more substantive formulation, expressed through a bill of fundamental rights in its second chapter.
Ba U made it clear from the beginning that the new Supreme Court ‘having been constituted by the Constitution as a protector and guardian of the rights of the subjects, will not hesitate to step in and afford appropriate relief whenever there is an illegal invasion of these rights’.Footnote 153 The body of substantive constitutional rights and an active superior judiciary together enlarged the size of the legal arena for political action considerably.
Some fundamental rights applied only to citizens. Other rights—such as the right to freedom of movement—the court ruled were universal.Footnote 154 The Constitution also enabled writ petitions, including for habeas corpus.Footnote 155 This writ was the only avenue for appeal against detention under the Public Order (Preservation) Act.Footnote 156 By one account, within a couple of years habeas corpus had become the most popularly invoked judicial remedy in the country.Footnote 157 Whether or not this assertion is true, habeas corpus petitions before the Supreme Court did open up sites for many early battles between agencies concerned with delimiting the rule of law, and those who sought not only to defend it, but also to build upon the procedural rule of law of their colonial predecessors and articulate a substantive, rights-based rule of law for the new country.
The Supreme Court openly condemned the Public Order (Preservation) Act. Ba U characterized it as ‘much misused’, badly drafted, and in need of urgent amendment.Footnote 158 The parliamentary opposition—whose members also became its targets—attempted unsuccessfully to repeal it in 1953.Footnote 159 Instead parliament expanded its terms to enable the preventive detention of alleged opium dealers and ‘economic insurgents’.Footnote 160 It never retracted the law, and as late as 1960, Ba U's successor, U Myint Thein, described its persistence as ‘unfortunate’ and its terms as ‘counter to the ideas of liberty and freedom enshrined in the Constitution’.Footnote 161
The Supreme Court released people detained under the law on a variety of grounds, some of them procedural, but in many cases by asserting its role as guardian of citizens’ rights.Footnote 162 It ordered the release of a man who encouraged workers to strike and acted as a messenger for the Communist Party because these were both activities ‘within the legitimate rights of a citizen of the Union’.Footnote 163 That a detainee happened to be a senior Communist Party member and influential in effecting strike action was also irrelevant, since it was within the rights of the accused both to be a communist and to organize strikes.Footnote 164 Possessing a copy of a seditious pamphlet did not prove anything against the accused that would demand detention.Footnote 165 Nor was the distributing of political pamphlets calling for rebellion considered to be a good reason for putting someone in custody: democratic government entitled parties to make political attacks on one another, and ‘in the language of politicians in these days’, E Maung held, ‘“rebellion” (tawhlan-ye) does not necessarily mean much and no undue importance should, in our opinion, be attached to its use’.Footnote 166 A ruling of this sort would have been unthinkable in the colonial period.
The Supreme Court struck down orders under the Public Order (Preservation) Act where it found that police officers and other officials had acted improperly. Police officers could not use the law to punish people where they lacked evidence or inclination to prosecute.Footnote 167 One of the authors of a pamphlet describing the premier as a fascist murderer might have been liable to a charge of sedition, but, if so, the police had to bring evidence to charge him accordingly; they could not hold him under the Act.Footnote 168 E Maung censured policemen who, in an attempt to evade the court's authority, had transferred a detainee to Insein Prison when that area was under military administration owing to insurgency.Footnote 169 He also deplored the practice of ordering a person to be detained indefinitely under the law while policemen were investigating, in one case noting that they had apparently forgotten about a man held in custody for over four years.Footnote 170 ‘We do not desire to make the path of officers entrusted with the preservation of public order and tranquillity difficult,’ he explained in one early ruling on the matter, ‘but the liberty of the citizen and his fundamental right not to be deprived of his personal liberty save in accordance with law are matters of great import.’Footnote 171 Over the next decade, he and his successors were to iterate and amplify this message through a variety of rulings on fundamental rights.
But substance still depended on procedure, and the superior courts made use of the latter with a view to the defence of substantive rights. The personal liberties of citizens, the Supreme Court stressed, were ‘not to be interfered with save in accordance with law and with strict compliance with the procedure prescribed’.Footnote 172 Complainants and defendants had equal rights to be heard, to know of formal charges in court, and to call and cross-examine witnesses.Footnote 173 A person alleged to be a foreigner, with a burden of proof placed on him to show that he was not from abroad, had the right to make a defence in court before deportation.Footnote 174 Where an accused pleaded guilty it was not enough for a judge just to accept the plea. It was necessary to ensure that the person understood the nature of the charge, the facts of the case, and the consequences of admitting guilt.Footnote 175 Judges had to record verdicts in accordance with the Criminal Procedure Code, not just issue them orally.Footnote 176 Cases had to be heard in open court.Footnote 177 Where neither an applicant for review of a case nor his lawyer appeared, the judge still had a responsibility to go over the record and satisfy himself that the lower court had given the correct order.Footnote 178 If a judge made inquiries about a case not so as to understand the facts but to fill gaps in the prosecutor's argument, his verdict was unlawful.Footnote 179 When he purportedly reviewed a case but failed to record any reasoning other than that he was satisfied with the evidence and findings from the lower court, the ruling was void.Footnote 180 The confession of a co-accused or approver could not in itself be used to convict, nor could it be used to fill in gaps in missing parts of evidence.Footnote 181 If an accused's statement to the police contained a large number of facts constituting an offence, it was considered to be a confession and therefore inadmissible as evidence.Footnote 182 A preliminary police report prepared after inquiries into a crime had begun was not what it purported to be and was inadmissible as evidence.Footnote 183 Where a magistrate was a friend of a government officer in a case before him, sufficient grounds existed for the case to be transferred, as it created doubt about the impartiality of the judge and fairness of trial; it was not necessary to prove that the magistrate had actually been biased.Footnote 184 Nor did a person claiming to have confessed because he was afraid of the police have to prove that they ill-treated him, only that his fear was justified.Footnote 185
We need to keep all these verdicts in perspective. Rulings on rights in the higher courts did not necessarily correspond to the active protection of rights in subordinate courts, nor to the taking of action against perpetrators of abuses. The authorities rarely made police officers or administrators criminally liable for custodial abuses and other crimes. The government in its early years lacked the coercive means to arrest and prosecute government officials, and simply could not afford to lose any more personnel or equipment. As in the colonial period, police officers enjoyed a high level of tolerance for their misdeeds, as did their proxies—among them, proliferating paramilitary units that, in many areas, were little more than armed thugs who became increasingly notorious for their cruelty.Footnote 186
Aside from the practical difficulties associated with protecting people's rights, the courts were equivocal and inconsistent in their stated guardianship role. The Supreme Court refused to issue a writ of habeas corpus for a person implicated in the plot to machine gun Aung San, and dismissed a claim that the custodial order against him had been fabricated because it had no reason not to believe the police or prosecutor.Footnote 187 Although a Communist Party member organizing strike action had escaped the purview of the Public Order (Preservation) Act, a former policeman who had called for other officers to desert their posts did not, having committed what the Supreme Court said was ‘undoubtedly a treasonable act’.Footnote 188 The court endorsed sections of the Act that clearly worked against the rights of citizens, such as an exemption from the requirement that police officers take detainees before magistrates after their arrest.Footnote 189 A group of school students whom it was satisfied had secretly contacted insurgents could also be held under the law's terms.Footnote 190 And in 1957 the chief justice ruled that even where police officers had rearrested a person inside a courthouse immediately after he had been acquitted of charges under the Unlawful Associations Act, 1908, and the Emergency Provisions Act, 1950, the custody was justified as the accused apparently posed a risk to public order, despite the lack of evidence to convict him of a criminal offence.Footnote 191
That judges continued to issue rulings of this sort is, under the perilous circumstances of 1950s Burma, hardly surprising. More remarkable is that a nascent substantive rule-of-law regime continued to gain traction in parallel with competing demands for public order. The rule of law was no longer confined to the interstices offered by procedure as substance. Out of the politics of the independence movement, a nascent body of substantive rights had emerged and occupied public space, and with it, much of the space in Burma's courtrooms. The rule-of-law idea was no longer the rule of law of the colonizer. It was now the rule of law of the independent, sovereign state: the rule of law of a politically active, alert, and rights-claiming citizenry. True, we ought to be careful not to exaggerate the extent to which the post-colonial rule of law contributed to political and legal change in the decade after 1948, but nor should we underestimate it. For enough people in Burma, the rule of law mattered, and mattered in a new and politically distinctive way—not merely as an ideal, but as a rallying cry for nationhood.Footnote 192
Last days for the post-colonial rule of law
So what happened to the rule of law in Burma? Where did it disappear to between the heady days following independence and the current period in which, after decades of military rule, people are again making calls for its restoration? In 1958 the incumbent party fell apart.Footnote 193 Fault lines spread across government, as politicians scrambled to build up bases of support among officials and armed groups, including the army, police force, paramilitaries, and newly surrendered insurgents. Violence flared, with killings on both sides. Cornered by the army, the civilian premier agreed to surrender power to its commander, Ne Win, for six months, on condition of a free and fair general election thereafter.Footnote 194 Ne Win subsequently went to parliament to obtain a constitutional amendment with which to extend his term in office by a year.
The interim government continued to acknowledge the salience of the rule of law in political discourse, running under the slogan, ‘Peace and the rule of law first’.Footnote 195 It also claimed, by the end of its tenure, to have restored to the courts ‘the dignity and prestige which they enjoyed in the pre-war years’.Footnote 196 Some obsequious journalists and legal professionals concurred.Footnote 197 But the statement is true only inasmuch as the interim government pushed back the nascent substantive rule-of-law regime through its takeover of institutional spaces, and by clamping down on public speech and basic democratic freedoms.
In the name of the rule of law, policemen and soldiers working for the interim government rounded up thousands of people accused of being underground political activists, opium dealers, gambling brokers, black market traders, loudmouth journalists, illegal Bengalis, pornography peddlers, and whoever else the government targeted as a threat to order or morality. Some of these people were held by officials or forcibly resettled to remote townships under the Public Order (Preservation) Act. Others were sent to a remote island prison camp under military jurisdiction.Footnote 198 The ousted prime minister later alleged that both army and police personnel undertook the widespread illegal arrest of his party members, from whom they forced confessions.Footnote 199 In the manner of its predecessors, the interim government passed a temporary law to exempt officials from the usual procedural requirements in criminal cases, enabling confessions taken in police custody to be used as evidence.Footnote 200 Encouraged by the use of such methods to stamp out crime, at least one senior administrator suggested that it might be worth reintroducing colonial-style pacification techniques to stamp out insurgents.Footnote 201
In 1960, elected civilian government returned.Footnote 202 For a short while, politicians and judges went back to earlier habits. Courts reversed orders issued during the previous year-and-a-half, such as those made under the Public Order (Preservation) Act against alleged drug traffickers.Footnote 203 But the situation was precarious. In a rare direct statement in court on the rule of law, Chief Justice Myint Thein noted that after the resumption of civilian rule in 1960, the prime minister had called for the Public Order (Preservation) Act not to be used indiscriminately, to which he added that,
This statement is welcome to all and sundry who cherish liberty and the concept of the rule of law, which in passing we would point out, is very different from rule by law promulgated on the plea of necessity to curb the liberty of the individual.Footnote 204
This comment has a keen poignancy, for two reasons. First, in it we see a hint from Myint Thein that he recognized the country's democratic future was in serious jeopardy. Second, Myint Thein's reference to rule by law suggests that he was troubled by the prospects for a decline in the rule of law, back towards its undemocratic procedural origins—as in Pakistan, where the judiciary had capitulated and made the ‘plea of necessity’ doctrine in order to justify emergency powers.Footnote 205 But the decline, when it came, was to be faster and more precipitous than he had anticipated.
On the morning of 2 March 1962, the chief justice was among the first people arrested as the army sped around Rangoon, occupying major buildings and pulling politicians, bureaucrats, and other officials out of their houses. In a pathetic scene, the elderly judge asked the group of soldiers who came to his residence in the early morning hours to show a warrant. The soldiers, perhaps uncertain about the new legal space into which they had been dispatched, communicated with their commanding officer. The officer came in person and told the judge that as the armed forces had seized power, he was being arrested under the authority of military administration.Footnote 206 When the judge tried to telephone the police chief ‘he was politely told that all the telephone lines had been cut’.Footnote 207 No warrant was required. The former chief justice remained in custody, with hundreds of others, for six years. By the time he was released, the rule of law for which he had once stood was no more.
Conclusion
This article began by pointing out that scholars of British colonialism tend not to explicate what they mean when writing about the rule of law. Consequently, debate about whether or not the British as imperialists established the rule of law in the territories they occupied is confused by semantic dissimilarities. Literature from a range of disciplines can help to clarify the rule of law conceptually, and thereby help to structure debate about it historically.
Accordingly, this article bifurcated the rule of law between procedural and substantive conceptions. As the substantive rule of law could not have existed in colonial Burma, no time need be wasted considering the colonial rule-of-law problem conceptualized substantively. But an argument can be made for procedural rule of law, which accommodated the differential treatment of colonial subjects. In the political environment of the post-colony, the rule of law became a nascent substantive type, until the military forced the country in an altogether different direction.
The rule of law is a fraught term that generates much heated debate. Squarely confronting contested concepts can be a hazardous business, but historically grounded studies can contribute much to conceptual development. In this age of the global rule of law, in which the successors of colonial bureaucrats heading international agencies propose to measure everything through the use of indicators so as to make mutually comprehensible ‘the processes and practices of societies as different as those of Nigeria and Nebraska’, as Frank Upham has complained, we urgently need studies that forcefully counter the ahistorical construction of the rule of law.Footnote 208
But historical narrative alone is insufficient. To shape the debate, scholars of history also need to give up on the politics of inverted commas—that is, evading problems inherent to contested concepts by couching their terminology in punctuation which suggests that they do not really mean what they have written, or do not care to make clear what they mean.Footnote 209
This article has dispensed with the inverted commas and the ‘moralizing critique of colonialism’ associated with them, instead grasping at the ‘epistemic productivity’ of the records of superior courts in colonial Burma with reference to the rule-of-law idea.Footnote 210 It has not distinguished a single, authentic rule of law from a counterfeit other, nor contrasted a rule-of-law ideal with messy reality. Rather than try to expose colonial claims to the rule of law as fraud, it has read Burma's law reports with a view to understanding how we might see the rule-of-law idea as generating political actions and shaping political relations.Footnote 211 Its findings are based on the analysis of successive periods in Burma's politics according to procedural and substantive rule-of-law types. Had it adopted a different typology, or pursued an argument for or against the rule of law according to a singular approach—say, one consistent with Dworkin's rights thesis, or one based on the principle of non-domination, for which Pettit argues—its findings would have been altogether different. Ultimately, one's theoretical standpoint on the rule of law is what determines whether or not one finds it, given the available evidence.
And so we arrive at the state of debate about the rule of law in Burma, or Myanmar, today. Both procedural and substantive lineages have fed their way into the discussion, and it is by no means clear that when Aung San Suu Kyi and members of the current government—which comprises many former, and some serving, army officers—discuss the rule of law they mean the same thing at all.Footnote 212 As in many other places, people in Burma tend to talk about the rule of law without making their standpoint on it clear. None of this is to say that the rule of law is just words without action: only that it is a term which carries multiple meanings that enable its users to speak across one another, rather than to one another. Some more attentiveness on the part of scholars to semantics could at least improve the quality of debate, and might allow us to better understand what people are trying to say—or are trying to avoid saying—when they talk about the rule of law.
