The law in Myanmar has always been enmeshed in power and ideology, contestation, conflict and conquest – at the interplay between local and international actors – and continues to be so. The recent coup marks the distinct reassertion of the military as the primary actor in shaping, harnessing and wielding law’s power. Photocredit: Benjamin Small
Ergun Cakal
Driving into downtown on my first visit to Yangon in August 2019, my first impressions of Myanmar were of billboards – in English. The ubiquitous English-language signage in Myanmar puzzled me as I believed relatively few people needed or used it. So why were these in English? Why was anything in English ?
A week later, I find myself trawling the grim corridors of a district court in Yangon lined with confiscated scooters brushing past another sign in English which reads “MEDIA ROOM”. We enter an adjacent court-room with a towering peacock chair perched on the judicial bench – reminiscent of empire – flanked by plastic chairs. Noting my fascination, the judge escorting us confirms that it is indeed of a colonial vintage. In an audience with another judge, he talks apologetically about the evident lack of adherence to international standards. Another judge signals resistance: since the country has opened up, international experts have been coming in and speaking to local lawmakers to shape the law. But the new Child Rights Law, he claimed, didn’t heed local norms or context. Yet, ironically, he sits there with his antiquated copy of the Code of Criminal Procedure neatly squared at the corner of his desk – another colonial relic to have since become part of the legal ‘furniture’ – patting it as a trusted companion as if to say ‘this is all the law I need’. Under British rule, these books and their interpreters would have all been British. My stand-point as the newest jurist to arrive at Myanmar’s legal edifice clearly implicates me in a long local and colonial line.
The recent coup marks the distinct reassertion of the military as the primary actor in shaping, harnessing and wielding law’s power. Since February 1, the military regime has busily followed a legislative course of amending the Penal Code, the Code of Criminal Procedure and the Electronic Transactions Law, suspending the Law Protecting the Privacy and Security of Citizens and (arguably) triggering emergency powers under the Constitution. It may seem unusual for a military regime who holds all the guns to also enlist and ‘weaponise’ the law – to also want to ‘arm’ itself with legality, weaving it into a cloak of legitimacy or, more reasonably, its (namely, the emperor’s) new clothes. Implicit in this analysis is the perversion of the natural role for the law, as usually imbued with notions of justice and reason to enact good to tame and contain violence.
That military action has compromised the good standing of the law would represent an anticipated yet flawed reading. I would venture, in its stead, that something of the law’s normal is revealed through the contemporary exceptional state of affairs in Myanmar. The analysis of the rule of law as transliterated and applied as “rule by law” in Burmese already serves to capture the authoritarian streak running through notions of legitimacy as legality.[1] By this account, we do not need to look much further than the Constitution itself to see how the law works to maintain the force of the gun in the everyday of Myanmar politics.
In the stream of images from the post-coup protests at the time of writing , I am drawn to the placards; simultaneously pithy and powerful. These too are in English, with every other sign invoking and demanding ‘justice’. They beckon to the power of the law to do good, reclaiming: “HOPES FUTURE DREAMS HUMAN RIGHTS”, “WE NEED R2P”, “STOP CRIME AGAINST HUMANITY”, “WHERE ARE MY RIGHTS?”, “REJECT CYBER LAW”. In short: what happened to law?! I have pondered this question countless times in my sit-downs with local lawyers, court-house walk-throughs and during routine pursuits of English translations of local Myanmar laws. There is something in the existence and dissemination of such translations that gestures at the object and purpose of their consumption. Somehow the law’s failed or unfulfilled promises when brought before the powerful international insider/outsider both identify me and implicate me. I now see that, instead of asking ‘where or what happened to the law?’, it would’ve been more instructive for me to more directly ask ‘for what and for whom is the law’.
Much is concealed in these observations about social and legal change in Myanmar – about legal actors, local and international, and the functions of law, past and present. As with the English signage, I’m interested in the uses and users of law, who has use for it and how they use it – with full view of their social significance. As such, I want to encourage reading the prevailing exception and aberration as a moment, as a prism, where we can more easily access and unfold law’s entrenched and everydaydependency on violence.
The law in Myanmar has always been enmeshed in power and ideology, contestation, conflict and conquest – at the interplay between local and international actors – and continues to be so. That law is a site where influence and power are shaped is not to say anything novel. Empires and the subsequent international development machinery alike have long fixated on constructing at once a local and global, legal architecture for Myanmar as elsewhere. Military regimes in Myanmar have also clearly been master builders on this site and they have made sure to plant a gun in the corner of every room.
Upon this complex backdrop, the recent legislative changes also pack a symbolic and representational force signifying that the military not only holds the gun as law-enforcer but also holds the pen as law-giver. These changes work towards normalising the state of exception to one of indistinction. The rapidity of changes is noteworthy too given the frustration of international actors at the slowness of reforms before the coup. Whilst the breath has been sucked out of reforms that were in the pipeline, much has been enacted with the stroke of a pen essentially overnight. Conceivably, the law has long been set up to fail a non-violent democratic imaginary, always awaiting instrumentalisation at the whim of the military, whom it overtly serves today.
To be sure, it would be a mistake to understand law’s violence as exclusively belonging to an authoritarian context – the inherent violence of law is as present where I am as the writer, and you are as the reader, as it is palpably now in Myanmar. If we characterise the legal acts of the Military as misuses and abuses of law, we risk missing a critical point. These (dis)continuities must also be taken to reveal something native to the force and functionality of law, that is its inherent and foundational violence. Violence does not solely mark lawlessness.[2] Violence, particularly although not exclusively at such junctures, unmasks itself as central to the very creation and preservation of law – not as its dysfunction or defect but as designed to function.[3] That is to say that the true face of the relationship between law and violence becomes most accessible and discernible not when violence reigns in the absence of law but in the instrumental use of legal violence in the name of state preservation. After all what is a rifle butt in the face of a protestor but the sheer and anxious force of the state?
[1] N Cheesman, Opposing the Rule of Law, Cambridge University Press 2015.
[2] J Comaroff and J Comaroff (eds), Law and Disorder in the Postcolony, Chicago University Press: 2006.
[3] W Benjamin, ‘Critique of Violence’, In Reflections, Schocken Books: 1929/2002.