For imperial Britain, it has often been stated, the introduction and maintenance of the rule of law was a cardinal responsibility and indeed the great achievement of empire. In the words of one historian, Martin Wiener: ‘The single most important exemplar of the claimed beneficence of the Empire was its system of laws, and by the nineteenth century there was great pride in spreading the benefits of English law around the world.’Footnote 1 For those in imperial service, from the officials in London, through colonial governors, down to district officers, the imposition of the rule of law, structured and impersonal, was a most powerful argument for the colonial presence.
In recent decades, however, the claims for the rule of law in the colonial context – that it was ‘a cultural achievement of universal significance’ – have been strongly contested, challenged in ways that have created new perspectives on the relationship between law and empire and, specifically, new understandings of the structures that secured colonial rule.Footnote 2 Three major criticisms of the claims for the rule of law are noted here. First, again as Wiener has argued, while ‘[p]erhaps the best-known principle of [English] law was the equality of individuals – that all were equally subject to its strictures, and that all could equally claim its protection … [yet] the most basic working principle of empire … was inequality – a necessary inequality of power between the British ruling class and the subject populations’.Footnote 3 Thus, in her study of colonial justice in British India, Elizabeth Kolsky argues that
[t]he colonial promise of uniform legal equality was blatantly undermined by the institutionalization of race-based legal privileges [the Code of Criminal Procedure provided European British subjects with special privileges and exemptions] and by the discriminatory practices of police, judges, and juries that consistently tipped the scales of justice. Britons accused of assaulting and murdering Indians were booked on lesser, if any, criminal charges that invariably resulted in little to no punishment.Footnote 4
Second, there is substantial evidence that in colonial administration, many subordinate officials, far from acting to maintain the rule of law – resolving disputes judiciously, bringing the guilty to justice, protecting the innocent – manipulated the law and misused their authority for personal gain. Thus, Jonathan Saha's work on colonial administration in rural Burma around 1900 cites numerous cases in which local officials, including headmen, township officers, and a notorious police inspector, used ‘legal state power’ – the law and their official position – to grab land, to embezzle government funds, and to fabricate evidence in order to have opponents falsely imprisoned.Footnote 5 Legal state power, Saha concludes, made corruption possible: ‘the law was a performative resource for subordinate officials to exercise arbitrary power and personal authority on a local level’.Footnote 6
The third major challenge to the claims for the rule of law is the observation that often at times of crisis, maintaining the rule of law collided with the primary responsibility of the colonial state to secure social order, with the state then turning to emergency regulations and coercive measures to meet that responsibility. Indeed, in a socio-legal study of colonial and independent Burma, Nick Cheesman has argued that faced with a severe threat to the social order, the colonial state could propose ‘to maintain order without attempting to conciliate it with law … [to resolve] the hostility between the rule of law and law and order by forsaking the former in favour of the latter’.Footnote 7
This article seeks to question that last proposition, through a detailed examination of the trials that followed the outbreak of a major rebellion in Burma under British rule. The rebellion erupted in Tharrawaddy District, north of the capital, Rangoon, in the final days of December 1930 but then rapidly swept through large parts of the Irrawaddy delta, in time reaching as far as the Shan States in the north-east.Footnote 8 The alleged leader was Saya San who, drawing on the millenarian traditions of rural Burma but also working through modern political networks in the villages, promised his followers that he would restore the Burmese monarchy, revitalize the Buddhist religion, and expel the British. Although the rising was broken by mid-1931 – Saya San was captured in the August and executed the following November – significant violence and disorder continued well into 1932. Two divisions had to be despatched to Rangoon to strengthen the military garrison. This was, beyond doubt, a severe threat to the social order.
I
In the weeks following the outbreak of the rebellion, many hundreds of Burmese in the rebel districts were detained by the authorities, having surrendered, been arrested by the military police, or having been brought in by the army units sent out to crush the rising. After a short time, however, a majority of those held were released, individuals who, the authorities decided, had played at worst only a minor part in the rebellion. But this still left a substantial core – about 350 by early March 1931, a number that was expected to rise – that the authorities determined should face trial.Footnote 9 The colonial government was then concerned that if the 350 or more facing the most serious charges were tried in the province's courts under the Criminal Procedure Code, the courts would become congested, thus causing major delays in the ordinary administration of justice. For the Burma government, the solution lay in the creation of special tribunals, with procedures that would enable them to work through the large number of rebellion-cases at relative speed.Footnote 10 The rule of law, it would seem, was being forsaken for law and order.
A Burma Criminal Law Amendment Ordinance, promulgated on 31 January 1931, gave the Burma government the authority to create courts of special commissioners ‘to try terrorist and revolutionary offences under certain sections of the Indian Penal Code’. This was followed by a Burma Rebellion Trials Ordinance, promulgated on 12 March 1931, which set down the structure and procedures of the special tribunals that would now hear these cases.Footnote 11 The special court would be composed either of three judges, one of whom was a current or former high court judge, the other two having at least two years’ experience as a sessions judge; or of a single judge, who, again, had had at least two years’ experience as a sessions judge. The tribunal procedures intended to facilitate the speedy disposal of cases included: the absence of a provision for committal proceedings, a preliminary hearing before a magistrate; a requirement that only the substance of the evidence of each witness examined be recorded rather than the evidence in full; and the imposition of a tight restriction on the calling of adjournments in a trial, for example to give the defence an opportunity to consider the evidence being presented.Footnote 12 On the other hand, the tribunal procedures gave those convicted and sentenced to death, to transportation, or to a term of imprisonment exceeding five years, the right of appeal to the high court. Indeed, all death sentences had to be referred to the high court for confirmation even if a formal appeal was not made.Footnote 13
As the initial special tribunal hearings were being concluded, two, arguably three, further stages were added to the legal process. First, those rebels convicted and sentenced but whose appeal in the high court had failed could petition the Burma government – the governor in council – for clemency. Where the Burma government rejected that petition, the condemned man could then petition the government of India – the governor-general in council – as Burma was at this time a province of India. In fact, a formal petition was not actually required for the government of India to review a death sentence, for in June 1931, as the initial hearings in Burma were being concluded, it asked the Burma administration to refer to it all those cases in which it had rejected an appeal for clemency and the sentence of death therefore still stood.Footnote 14 In order to enable the governor-general in council to reach a view on a referred case, Rangoon sent to Delhi a copy of the judgement of the relevant special tribunal (a judgement could run to 100 pages or more), a copy of the order issued by the high court on appeal, and a statement by the Burma administration of the grounds on which it had rejected the appeal. Where the governor-general in council, having reviewed the papers, proposed not to exercise clemency, leaving the death sentence to stand, the case was then referred to the secretary of state for India in London. And in order to enable the secretary of state to reach a view, a copy of the papers earlier sent from Rangoon to Delhi, together with a statement by the government of India of its reasons for rejecting clemency and, often, copies of earlier correspondence between Rangoon and Delhi or within the Burma administration, were sent to London. In this way, the details on each of those sentenced to death for their involvement in the rebellion – name, age, village, level of involvement in the rising, precise description of the criminal acts for which convicted, security of the evidence on which convicted – were laid before the secretary of state. He and his India Office officials did not make a final judgement. But where they had concerns as to the soundness of the government of India's proposed rejection of clemency, they would ask Delhi – and by implication Rangoon – to think again.
The material relating to the Burma rebellion trials thereby brought together in London – the special tribunal judgements, the high court orders on appeal, statements by the governments of both Burma and India of the grounds on which petitions for clemency had been accepted or rejected, correspondence between Rangoon, Delhi, and London, and, finally, the minutes and memoranda produced within the India Office itself – are now held in three huge bound volumes, each containing roughly one thousand sheets, as part of the India Office Records (L/PJ/6/2022–4). For historians of the Burma rebellion, these have been, directly or indirectly, by far the most important primary source. Two major studies which appeared in the 1970s, James C. Scott, The moral economy of the peasant: rebellion and subsistence in Southeast Asia (1976) and Michael Adas, Prophets of rebellion: millenarian protest movements against the European colonial order (1979) both relied heavily on a government of Burma report, The origin and causes of the Burma rebellion (1930–32), published in 1934 and according to an India Office official at the time ‘an ill-digested mass of extracts from’ the special tribunal judgements.Footnote 15 Then, in his The return of the Galon king: history, law, and rebellion in colonial Burma, published in 2011, Maitrii Aung-Thwin went back to the India Office files to examine the ways in which that primary record had been shaped by British colonial understandings of the Burmese, their cultural beliefs and practices and their history.
This article uses precisely the same material – the legal record, from the special tribunal judgements through to the India Office minutes – but with a quite different purpose. It reads the material in its own terms, as a record of the process by which rebels were convicted and sentenced, appeals were heard in the high court, and petitions for clemency to government in Rangoon, Delhi, and London were accepted or rejected. It is not the aim here to assess the quality of the justice dispensed or to establish whether the colonial state showed leniency or otherwise towards the Burma rebels, although the article will include comment on both these issues. Rather, the purpose of this article – questioning the assertion that faced with a severe threat to the social order the colonial state would forsake the rule of law – is to demonstrate the commitment of the colonial administration to legal process in convicting and sentencing the Burma rebels. And once demonstrated, to suggest why, for the British, legal process remained so important, even as the social order was being threatened.
II
The work of the Burma rebellion special courts, of the high court in hearing appeals, and of government in considering petitions for clemency can be seen perhaps most clearly by following one individual, a man named Po Ku, as he made his way through the legal process, from his trial, conviction, and sentencing to final consideration of his case by the secretary of state in London.
Po Ku, together with twenty-two others, described as ‘Pan Nyun's gang’, was charged with waging war against the king-emperor in the Insein District between January and August 1931, with the specific allegation that the gang had murdered, in separate incidents, a Karen forester and his assistant, and two Indian cattlemen. The twenty-three accused were tried before the special judge, Tharrawaddy, in late 1931. All were found guilty. Nine, including Po Ku, were sentenced to death, the remaining fourteen to transportation for life. In his judgement, which ran to forty-four typed-pages, the special judge devoted five pages to Po Ku. It read in part:
This accused, according to Maung Ohn, (P.W. [Prosecution Witness] 17), marched out of Yedwingon village on the 25th February at the head of 20 or 30 villagers. Maung Ohn says that Po Ku told him that Tharrawaddy was falling to pieces, that it was time to march to the hills, and that when they had overcome the British Government, he and his party would all be officials … Sein Kun (P.W. 3) and San Nyein (P.W. 8) say that Po Ku was with the gang at Pyinmaaing, that he was present at the murder of the forester, while Maung Khant, (P.W. 6), although he was not present at the murder of the forester, says that it was Po Ku who marched him [the forester] away to Yezettaung. All three approvers alleged that … Po Ku took command of the gang after Ba Thein had abandoned them.Footnote 16
The special judge considered at length Po Ku's defence, first, that each of the prosecution witnesses had a grievance against him – Po Ku ‘attributed Sein Kun's evidence to the fact that his younger brother had eloped with Sein Kun's sister-in-law’ – and second, that on the day the Karen forester was murdered he, Po Ku, was delivering paddy to a rice mill in the district, was taken ill, and remained there overnight. The special judge dismissed both defences – Po Ku had presented no ‘cogent reasons’ for disbelieving the prosecution witnesses, and close examination exposed serious flaws in his alibi – and then concluded: ‘I find this accused guilty of waging war, and although his activities do not seem to have been considerable, he was [one] of the minor leaders in the gang, so it is necessary to inflict the death penalty upon him.’Footnote 17
In February 1932, Po Ku, together with the other twenty-two convicted men, appealed in the high court against both conviction and sentence. With respect to Po Ku, in its written judgement the high court largely restricted itself to reporting in summary the evidence that had been presented against him at his trial, baldly adding that it saw ‘no reason for not accepting the evidence’.Footnote 18 At the same time, however, the high court drew attention to the limited involvement of Po Ku in the Insein rising. Although he ‘was one of those who took part in the murder of the forester’, he had not been in the party which had murdered the two Indians. And although he ‘took the place of the leader Ba Thein’, afterwards, following an attack by government forces, ‘Po Ku was not seen to have taken any further part in the rebel activities.’ He had been ‘found to be a minor leader of the gang’. Nevertheless, the high court concluded that Po Ku had ‘taken a fairly prominent part’ – contradicting its earlier assessment – and therefore dismissed his appeal and confirmed the sentence of death. The appeals by the remaining eight sentenced to death were also dismissed.
The nine condemned men petitioned the Burma government. In the case of three, the death sentence was commuted to transportation for life, ‘on the ground that there was nothing on record to indicate that these prisoners took active part in the murder of the two Indians’.Footnote 19 The remaining six then petitioned the government of India, which, after reviewing the judgements, proposed to reject all six appeals. It argued that
Po Ku began by being an active recruiter of rebels. He became a leader and took prominent part throughout rebellion. He was present at murder of forester and his servant … Courts have examined with great care the evidence, which is mainly of approvers, and we accept their findings. These findings show that these 6 men are responsible for the cold-blooded murders of a Government forester and his Karen servant and 2 Indian cattlemen.Footnote 20
The papers now came before the secretary of state and his officials in London. Po Ku's case caused some considerable unease, notably on the part of Wilfrid Johnston, a principal in the India Office, who wrote at considerable length.
Before coming to the parts played by those sentenced to death it is desirable to mention that the evidence against them was almost entirely that of approvers and that the chief of these Sein Kun admitted that he was present at the murder of the forester and led the party which murdered the Indians. Had he not been taken as an approver and pardoned there can be little doubt that he would have been sentenced to death.Footnote 21
[The case of Po Ku] seems the most difficult. The Government of India are correct in stating in their telegram [21 May 1932] that he was an active recruiter of rebels and became a leader but their description of him as having taken a prominent part throughout the rebellion seems to need some qualification. He disappeared from the gang some time before the murder of the Indians and during the short period for which he was leader they [the gang] do not appear to have done anything. He was certainly present at the murder of the forester but he was not then in charge and there is no evidence that he took any more active part in it than the several others who have been sentenced to transportation only … I question if he can be said to have been an important leader. The Special Judge said ‘his activities do not appear to have been considerable; he was one of the minor leaders in the gang’. He is not proved to have taken an active part in murders in the sense that ‘active’ has been used in this case.Footnote 22
The legal adviser to the secretary of state was not convinced, arguing that there was sufficient evidence to show that Po Ku ‘was one of the leaders and as he was actually present at one of the murders I think that he deserves the same fate as the others’.Footnote 23 At the same time, he conceded, there was ‘some ground for asking the Government of India for a further opinion on his case’. The India administration was therefore asked by London
to consider further the case of Po Ku … whether he falls within the category of those liable for death … Though a recruiter and leader for a period he is not shown to have planned or to have been responsible for any murders or attacks on villagers or Government forces or to have taken an active part in murder of forester, and is described by Special Judge as a minor leader.Footnote 24
In less than two weeks, the government of India reported to London that it had been agreed with the Burma government that the death sentence on Po Ku ‘may be suitably commuted to transportation for life’.Footnote 25
III
This article now turns to consider three important features of the legal process in the Burma rebellion trials and appeals. Two of these features were prominent in the Po Ku case.
The first is that, at various times but at every stage of the legal process, doubts were raised as to the reliability of much of the evidence upon which the accused were being convicted, specifically the witness evidence given in court and the written confessions of the accused. Each of the prosecution witnesses called in the rebellion trials, with few exceptions, was an approver, that is one of the gang on trial, frequently the leader, who had turned king's evidence. Given that the incidents that were the focus of these trials would have taken place beyond the gaze of innocent witnesses, this was perhaps inevitable. But it could cause unease, in part because it was patently unjust – the comment by the India Office principal Wilfrid Johnston on the Po Ku case that Sein Kun, the chief prosecution witness, would certainly have been hanged if he had not been taken as an approver – but also because there would surely be doubts about the reliability of such evidence. In giving evidence in court, an approver, having admitted guilt and turned on his comrades, would have good reason to play down his own part in the incidents to which he had been witness, and to exaggerate, or indeed fabricate entirely, the actions of the others.
When the appeals against the convictions and sentences handed down in the first special tribunal trial, sitting at Pyapon in May 1931, came before the high court at Rangoon, the three judges considered the issue at length – ‘whether, and if so, in what circumstances, an approver's testimony is admissible as evidence against an accused person’. Citing the Indian Evidence Act, 1872, and legal precedents from across British India, the high court ruled (in part) that ‘an accused person can legally be convicted upon the uncorroborated evidence of an approver [but] whether an accused person should or should not be convicted upon such evidence is left to the prudence and good sense of the tribunal after considering all the circumstances of the case’.Footnote 26
This ruling, in the case of Aung Hla v. King-Emperor, was frequently cited in subsequent rebellion trials and appeals. On occasion, it was challenged. When the appeal of Saya San against conviction and sentence was heard in the high court in late September 1931, his lawyer, Dr Ba Maw, argued that, despite the earlier ruling, ‘the proposition that a person could not be convicted on the uncorroborated evidence of an approver or approvers was still good law’.Footnote 27 After extended legal argument, the high court dismissed Ba Maw's assertion. And in a later appeal, the high court again confirmed that ‘a court is free to accept the evidence of an accomplice without corroboration, if it considers that he has spoken the truth’.Footnote 28
To determine whether an uncorroborated approver had spoken the truth, the courts were to use – in the words of the ruling in Aung Hla v. King-Emperor – ‘prudence and good sense’. In the first of the Tharrawaddy cases
the individual members of the Tribunal subjected the testimony of the accomplices here to the closest possible scrutiny – not only at the time of trial, by observation and test questions from the Court itself, but by subsequent careful study and comparison of the actual material which had been recorded. As a result we have no hesitation in saying that we accept unreservedly the evidence of Ba Aye [an approver] … Po Thaung [an approver] is a person of very much more than average intelligence. He was a long time in the witness box. He withstood all cross-examination with great resolution and his answers were distinguished for their clarity and, we think, truth. So too with Tun Sein and Tun Min. We are of opinion that they were careful witnesses, who did not overstate the prosecution case.Footnote 29
In most hearings, as in the judgement immediately above, the uncorroborated evidence of approvers was, after consideration, accepted. But on occasion, it was rejected. In an appeal before the high court in August 1932, the judges, noting that the two principal witnesses, both approvers, had admitted to six murders, five dacoities, and one case of arson between them, concluded: ‘It is obvious therefore that they cannot be looked upon as very reliable witnesses and it would be unsafe to base the convictions on their uncorroborated testimony.’Footnote 30
The issue with respect to admitting the written confessions of accused in evidence, confessions recorded between arrest and trial, was that in the large majority of cases the confession had been subsequently retracted, the accused stating that it had been beaten from him by the police. The judges almost invariably rejected this line of argument and accepted the confession in evidence – but not always. In a rebellion trial at Prome in June 1932, all seven accused retracted their written confession, alleging police brutality. With respect to four, the judge accepted the retraction: a sub-inspector of police had admitted that the four had been taken to a police station ‘together with other villagers who were beaten, and that they also were probably beaten’; and the confessions of the four had been obtained with suspicious haste, not months after their arrest, as was the common practice. The judge dismissed the confessions ‘altogether from consideration’.Footnote 31
IV
The rebels brought to trial were charged with waging war against the king-emperor under Section 121 of the Indian Penal Code. For those convicted under this section, the law provided only two sentences, death or transportation for life. What then were to be the criteria for deciding whether a convicted rebel would be hanged or would receive the lesser sentence? This was a question that featured prominently in the legal process from the outset.
The first special tribunal sat at Pyapon in May 1931. The trial concerned a rising in the Dedaye District the previous January, in the opening weeks of the rebellion. Of the ninety-six men before the court, fifteen were sentenced to death and fifty-six to transportation for life (twenty-four were acquitted).Footnote 32 Those convicted and sentenced appealed in the high court, which confirmed the fifteen death sentences and, in the case of three who were appealing against transportation, enhanced that sentence: now they would hang.Footnote 33 The eighteen now condemned to death, together with forty-four sentenced to transportation (nine sentenced by the special tribunal had been acquitted by the high court) petitioned the Burma government. In order to be able to process the petitions, the Rangoon administration distinguished three levels of participation in the rebellion: planning and organizing (including enrolling and tattooing recruits); preparation (including raiding for guns); and the actual fighting.Footnote 34 Those who had participated only in the fighting would be released; those involved only in preparing for the rising would be shown clemency; but those who had organized the rebellion and had played a leading part throughout would hang. Applying these criteria, the Burma government immediately released forty rebels on condition of good behaviour and commuted thirteen of the eighteen death sentences to transportation. The remaining five condemned men now petitioned the government of India. The governor-general in council proposed to commute one death sentence but reject the other four petitions. The papers were then referred by India to the secretary of state in London.
The India Office considered the papers extremely carefully, in part because this was the first rebellion trial to be reviewed by the government of India (and by extension the secretary of state). A major part of the discussion focused on the issue of equity. On the evidence recorded, were the four men sentenced to hang clearly more culpable than those who had been sentenced to transportation, either at the tribunal hearing or as a result of later review?Footnote 35 But there was also a broader issue. The rising in Dedaye District in January 1931, the focus of the trial, had involved no loss of life on the government side. This created concern in the India Office. If no clemency were to be shown to these four men, where there had been no loss of life, in the future it would be near impossible to commute death sentences in cases where, say, an official or innocent villager had been killed. And if all rebels found guilty of murder were to be executed, the number hanged would soar. In fact, the previous May, as this first of the rebellion trials was underway, the secretary of state had argued that the death penalty should be imposed only on those ‘responsible for the death of Government servants or supporters or otherwise amenable to the death penalty apart from being in opposition to Government’.Footnote 36 The crucial phrase here came at the end – ‘apart from being in opposition to Government’. In itself, the act of rebellion did not deserve the death penalty. But murder did.Footnote 37
London put its concern to the government of India, its fear that if the death sentences for the four tried at Pyapon were not commuted, it would be difficult to avoid a ‘protracted series of executions’, and that would surely provoke public unease.
Can we face such growing uneasiness unless we can say in every case of rejected appeal that person condemned [to hang] was guilty of death of Government personnel or innocent villagers? In Pyapon cases there is no suggestion that any one of the four was blood guilty except insofar as they led their followers to their deaths.Footnote 38
The government of India, after referring these views to Rangoon, stood firm.
in the exercise of clemency we cannot accept the sole criterion of participation in acts of murder of Government officials or innocent villagers … we have to pay regard to other considerations such as deterrent action to prevent planning and organisation of rebellion; existing situation; potential dangers of extension of rebellion. Whilst exercising maximum clemency consistent with the circumstances, [the governor-general in council] cannot commit himself to unvarying standard independently of circumstances.Footnote 39
The petitions were rejected. The four men were hanged.
Through the following months, as the number of confirmed capital sentences arising from the rebellion trials grew – by early March 1932, nineteen rebels had been executed and a further thirteen executions were pending – the India Office remained concerned, and in April the secretary of state asked the government of India for its ‘views on the general policy to be followed in future regarding Burma executions’.Footnote 40 In response, the Burma government stated that for some time it had been its practice to reject petitions for clemency – confirm the death sentence – only in those cases in which the individual sentenced had been an important rebel leader and/or had been directly implicated in murder.Footnote 41 Delhi and London both agreed with this position.Footnote 42 Indeed, the India Office immediately used it to question the proposed execution of Po Ku – the earlier narrative – on the grounds that it was doubtful that he had been an important leader and that it was not proved that he had been directly involved in murder.Footnote 43
Nevertheless, an increasing number of rebels went to the gallows. In February 1933, the secretary of state agreed to the execution of thirty-two men who had been convicted and sentenced at a single trial at Thayetmyo in May 1932.Footnote 44 ‘It does seem a terrible thing that 32 persons should be sent to their death in one case’, the secretary to the judicial department in Rangoon had earlier noted.Footnote 45 But the men were clearly blood-guilty, for between them they had been responsible for twenty-nine murders – of headmen, police constables, and of two sub-inspectors of police, a veterinary assistant, and of a number of villagers suspected by the rebels of being government spies.
Other cases were not clear-cut. In early August 1933, London considered petitions from four men sentenced to hang for their part in the brief rising in Tharrawaddy District in January 1932. Two murders had been committed during the rising, for which three men, quite separate from those whose petitions were now under consideration, had been convicted and sentenced to death by a special judge, the convictions and sentences being confirmed by the high court. However, the governor in council had then commuted the sentences to transportation, for the following reason.Footnote 46 Shortly after the Tharrawaddy rising had been suppressed, the individual who had actually ordered the murders had surrendered and had subsequently provided the authorities with much valuable information.Footnote 47 The police and officials in Tharrawaddy argued that, although this man ‘was a very bad ruffian’, it would be impossible to hang someone who had subsequently surrendered and then given them such assistance.Footnote 48 And obviously, if he were to escape the gallows, so too must his two accomplices.
The four condemned men whose cases were now before the secretary of state had not been involved in the murders. They had been sentenced to death as ‘the principal leaders’ of the rising. But as R. T. Peel in the India Office noted, if the ‘“blood-guilty” rebels [the three convicted of murder] have had their sentences commuted, is there not something to be said for showing equal clemency to the “organisers”?’Footnote 49 The permanent under-secretary, Sir Findlater Stewart, agreed: ‘We applied a policy under which only “blood-guilty” people were hanged, and have hanged 106. I cannot believe that this is stage of the affair to hang anyone who is not “blood-guilty”.’Footnote 50 Peel provided a minor correction. Almost all the prominent leaders hanged had also been blood-guilty, having given orders to their followers to murder or been directly involved in killing.Footnote 51 There were just five exceptions, men who had been hanged simply because they were leaders. They were Saya San and the four men convicted and sentenced at the first special tribunal sitting at Pyapon in May 1931 for their part in the rising in Dedaye District.
The secretary of state asked the government of India to re-examine the case now before it, the petitions from the four men sentenced to hang for their part in the rising in Tharrawaddy in January 1932.Footnote 52 He put the point outlined above. It would be difficult to justify the execution of four men who were not blood-guilty when three men who had been convicted of murder at the same trial had subsequently seen their death sentences commuted. Moreover, the four men could hardly be classed as ‘prominent leaders’, the second possible justification for execution, since the Tharrawaddy rising had been ‘so abortive’.
But the Burma government, to whom the matter was referred by India, remained opposed to commuting the four death sentences, arguing in part that although the rising had been abortive, ‘the [potentially dangerous] situation in Tharrawaddy … makes it essential that exemplary punishment should be meted out to the leaders’.Footnote 53 The secretary of state then wrote privately to the viceroy: ‘I still have a good deal of hesitation about the capital sentences of the 4 Burmese rebels … as they seem to me to fall outside the 2 categories … blood guilty … prominent leaders [where] our agreed policy has been to confine executions.’Footnote 54 After consulting the governor of Burma, the viceroy agreed that the death sentence imposed on one of the men might be commuted, since it could be claimed that he was not a prominent leader in this rising.Footnote 55 The remaining three were hanged.
V
As has been shown repeatedly above, the final decision as to whether a man convicted of waging war against the king-emperor in the Burma rebellion and sentenced to death by the courts were hanged or had his sentence commuted lay with government in Rangoon, Delhi, and London. Inevitably, therefore, those final decisions involved political calculation. Hanging rebels (and not only rebels) was political.Footnote 56
London and Rangoon made quite different calculations. In London, a major concern – arguably the concern – was to limit the number of rebel executions as far as possible. As described earlier, in September 1931 the India Office argued that four men sentenced to hang for their part in a rising in Dedaye District in the first weeks of the rebellion should have their sentences commuted, on the immediate ground that the men were not blood-guilty but also from concern that if no clemency were to be shown here, it would be near impossible to commute death sentences in later cases where the condemned man had killed a government official or innocent villager. And if all rebels responsible for killing were executed, the number hanged would soar. The permanent under-secretary was strikingly direct:
It may be practical to hang four men. But can you hang in batches extending over a long period, say 25 men, who, though ringleaders in a plot to upset Government by violent action, may not be directly or indirectly connected with any specific killing. I doubt it … [If these four are hanged] I can see an awkward alternative in front of us; we shall either have to go on hanging so many men that public opinion will revolt, or we shall be accused of hanging four men in the least convincing case and afterwards reprieving in much clearer cases.Footnote 57
The secretary of state was more direct still: ‘On no account am I prepared to involve the British Government in a long drawn out series of executions. I remember the Dublin precedent of 1916.’Footnote 58
For the India Office, the concern here was British public opinion. In these months, the secretary of state was frequently asked in the Commons to provide figures for rebels executed or transported.Footnote 59 Letters were received by government from private individuals, expressing concern at the execution of rebels. When Miss J. T. Griffiths in South Mimms read in the papers that Saya San was to be hanged on the coming Saturday, she wrote to the secretary of state, calling for ‘a conditional pardon to this – misguided perhaps – but apparently, in his way, “patriotic” man’.Footnote 60 And, it is interesting to note, the India Office chose to retain in its Burma rebellion files, cuttings from the Daily Worker, the organ of the Communist Party of Great Britain, condemning the sentences of death and siding unreservedly with the rebels.Footnote 61 At least some senior figures in the India Office clearly shared the public mood. To return to the permanent under-secretary: whichever awkward alternative was chosen – go on hanging so many men that public opinion will revolt or hang four men in the least convincing case and later reprieve the clearly more guilty – ‘we shall have to face the bitterness that always comes from judicial executions in national uprisings. We shall have to bear it – not the Burmese Ministers who are in favour of hanging.’Footnote 62
Burmese ministers had indeed concurred with the decision of the governor in council to reject the petitions from the four men condemned to hang for their part in the Dedaye rising, a position seen in both Rangoon and Delhi as indicating that ‘influential public opinion in Burma [recognized] the necessity for these executions’.Footnote 63 When pressed by London, the Burma government would repeatedly refer to the reality of the rebellion – ‘the appalling loss of human life, the destruction of property, and the general misery caused’.
It is no doubt distressing to the English public, whose knowledge of the facts is imperfect, that a series of executions should go on. But other considerations weigh more heavily with the [Burma] Government which does know the facts and is immediately responsible for the preservation of law and order in Burma.Footnote 64
On this occasion, required to respond to London's argument that if the Dedaye four were not reprieved, the ‘total number of executions might be such as H.M.G. could not contemplate’, Rangoon stated the plain facts: in three districts the rebellion had yet to be brought under control; the delay in disposing of the Dedaye case had provoked ‘a general complaint that Local Government are more anxious to deal tenderly with rebels than to protect their police, village headmen and loyal villagers’; ‘clemency in dealing with leaders would have most serious effect on morale of police and village headmen’. Rangoon was adamant: ‘these four executions are absolutely necessary’.Footnote 65 The secretary of state gave his approval. But he warned Delhi and Rangoon:
I must make it clear that public opinion in this country will not tolerate a series of executions of rebel leaders from each area on this scale. I can only hope that these executions will prove so effective as a deterrent that even greater clemency than you have hitherto exercised will be possible in future. [The present executions may be necessary, as you suggest, for their deterrent effect but that argument will have little weight in other cases, for either these executions have the desired effect and the rebellion dies down, in which case further deterrence is unnecessary, or they fail in their effect and prove themselves useless as a deterrent. I feel it therefore my duty to warn you at this stage that H.M.G. will feel it necessary to insist on the exercise of a wide measure of clemency in subsequent cases].Footnote 66
In the months that followed, the Burma government held to its position. To note briefly one example (the fuller narrative is above): when, in August 1933, the secretary of state urged clemency for four men sentenced to hang for their part in the brief rising in Tharrawaddy in January 1932, on the grounds that they were not blood-guilty, the Burma government responded that ‘the [potentially dangerous] situation in Tharrawaddy … makes it essential that exemplary punishment should be meted out to the leaders’. Three of the men went to the gallows.
VI
Faced with a major rebellion from the end of 1930, Burma's colonial government swiftly resorted to emergency measures to maintain order, thus apparently, in the words of the assertion in the opening section of this article, resolving the ‘hostility between the rule of law and law and order by forsaking the former in favour of the latter’.Footnote 67 Crucially, however, in the trials of the Burma rebels, long-established legal structures and processes were retained to a striking degree. First, the rebels were not tried in military courts, where their rights would indeed have been few. Second, none of the restrictions in the Burma Rebellion Trials Ordinance – no provision for committal proceedings, only the substance of the evidence of witnesses to be recorded rather than the evidence in full, and a restriction on the calling of adjournments – could be regarded as severely limiting the defendant's rights. Perhaps the most severe restriction was the failure of tribunal judgements to record the defence case, for that excluded it from the appeals process.Footnote 68 Third, the Ordinance placed no restriction on the right of appeal and petition. Indeed, all death sentences passed by the special tribunals had to be referred to the high court for review, even if no formal appeal was submitted. And finally, crucially, as has been evident in the preceding pages, officials in Rangoon, Delhi, and London reviewed petitions for clemency with great thoroughness, on many occasions commuting sentences or setting aside a conviction, commonly on the ground that the prosecution evidence was insufficiently strong.Footnote 69 This is not to suggest that the justice dispensed was firmly secure. Certainly, there were serious (arguably unavoidable) weaknesses in the trial procedures, notably that prosecution cases were built largely on the uncorroborated testimony of approvers. Officials were certainly aware of those weaknesses – the tribunal judgements and appeal discussions focused on them – and when reading the papers ‘between the lines’ it is clear that many officials, particularly in London, frequently felt uneasy about the decisions being made in particular cases. But then it is important to add that the officials were uneasy precisely because they were committed to the rule of law – it brought to the surface concerns about the use of approver evidence – and their unease in turn reinforced their determination to adhere to legal process. Rarely do the papers indicate that an appeal against a death sentence was being considered or dismissed in a perfunctory manner. After all, as noted earlier, the London files alone consist of roughly three thousand pages, and undoubtedly several thousand more sheets might well have been generated in Delhi and Rangoon. This was far from ‘forsaking’ the rule of law.
Why then was legal process so important for the colonial administration in convicting and sentencing the Burma rebels? The same issue but in a far broader context was raised by John Comaroff in 2001, in a paper introducing a symposium on colonialism, culture, and the law. It is one thing, he maintained,
to show that most colonial regimes relied on legal instruments to effect their will, quite another to explain why many of those regimes, not least those which enjoyed far more military and economic power than they needed to subdue ‘native’ populations, put in place judicial institutions which were expensive, expansive, and far in excess of functional requirement.Footnote 70
Why was the legal process employed by the British administration – Rangoon, Delhi, and London – in convicting and sentencing the Burma rebels ‘far in excess of functional requirement’?
A first-level explanation is that informed public opinion in Britain, as seen in questions in the Commons, letters from members of the public to ministers, and in newspaper reports, would not have tolerated the execution or transportation of Burma's rebels without an extended legal process that included substantial provision for appeals. In other words a political calculation was being made.Footnote 71 But underpinning that stand was the fundamental principle, a commitment to legal process and the rule of law. Nick Cheesman has made the case for a procedural rule of law in Burma under the British.Footnote 72 But the evidence in this article would suggest that there was also a considerable substantive rule of law at work in the trial of the Burma rebels, an honest concern with the rebels’ rights that involved, for example, the institution of an extended appeal process and lengthy legal consideration of the admissibility of approvers’ testimony in evidence. There was, in other words, an assertion of lawfulness. Here, at least, the rhetoric of the rule of law was far from a sham.
Confronted by a major rebellion from late 1930, the colonial state in Burma resorted to emergency regulations to try the rebels swiftly, a practical measure to avoid congestion in the courts. But within that emergency regime, the commitment of the colonial state to legal process was broadly maintained, and indeed, by the institution of an extended appeal process, strengthened. Embedded throughout imperial administration across the world was the principle – stated in the opening sentence of this article – that the introduction and maintenance of the rule of law and of legal process was a cardinal responsibility and indeed the great achievement of empire.Footnote 73 It explained the colonial presence, and indeed in large part determined the structures and mentalities of colonial rule. It followed that at a time of severe challenge to the colonial order, that responsibility and achievement became still more critical in the colonial mind. For were the rule of law and legal process to be simply forsaken, those charged with running the colonial state would be forced to question its – and their – very purpose.
