Award-winning PhD research on Myanmar isn’t just shining a light on politics and law in the Southeast Asian nation; it’s highlighting how law and order and the rule of law are often strange bedfellows.

In 2007 Burmese monks led a wave of non-violent resistance against the country’s ruling military regime. The peaceful protests – labelled the Saffron Revolution by some – were dealt with harshly by Myanmar’s military junta, with many of the protesters arrested and detained.

“The military government created anomalous spaces into which it could literally abduct and detain people outside of the ordinary criminal juridical institutions,” says Dr Nick Cheesman, a research fellow based in the Department of Political and Social Change at the ANU College of Asia and the Pacific.  

“This kind of practice also happened in other countries in the region like Sri Lanka and Nepal, where mass disappearances occurred, and in those countries people never came back.  But in Myanmar, people were returned through criminal trials.

“The Myanmar police or military could send those people to court with the full understanding that the judges and prosecutors would do what was required of them.

“Rather than sanctioning police officers and other officials for violating law, courts instead functioned as gatekeepers on a juridical threshold across which people could be taken at will, but from which they could be returned, through trial and sentencing.

“People could be abducted, disappeared into camps, processed and brought back through the criminal juridical process to be made into politically and legally relevant humans again.”

For Cheesman it is an example of how law and order is a principle that sits in stark opposition to the ideal of the rule of law – even though the two concepts are often used interchangeably.   

This complex interplay was the subject of Cheesman’s PhD thesis which looked at the criminal courts in Myanmar and which has also recently won the JG Crawford Medal – an annual prize that recognises the most outstanding postgraduate research at ANU for a given year.

“My interest in writing the thesis concerned both political ideals and the practices that attach to those ideals. These days a lot of people talk about the rule of law and law and order as if they are essentially the same thing,” explains Cheesman.

“My concern was that more and more the rule of law is treated as a pre-eminent political ideal to the exclusion of everything else, which means that so many other ideas get pulled into it; good governance, human rights, and law and order among others.

“But when I looked into some theoretical and historical work, and also the work I was doing on Myanmar, I found that actually the two didn’t have the close association that they are assumed to have.

“Law and order has subsumed the rule of law in Myanmar both as an idea and in practice.”   

According to Cheesman one key distinction between the two concepts is that law and order is secured primarily through administrative practice, whereas the rule of law is secured by legal practice.

“A second distinction is in terms of the concept of equality. Whereas the rule of law has as a principle that everybody is subject to the law and therefore everybody is ideally equal under the law, the law and order ideal has inequality as a principle; because it envisages a relationship in which certain persons are decision-makers while others are subject to their injunctions,” says Cheesman.

A third way the two can be separated comes down to words, and specifically how law and order is used in Burmese language.

“[In Myanmar] there’s a notion that there is an ideal way of organising people and the state’s forces so that everybody is productive in their right place to the advantage of the whole,” says Cheesman.

“This approach doesn’t make sense in terms of the rule of law ideal, which establishes norms that guide people’s behaviour, but other than that leaves people free to do what they want.”

As part of his research, Cheesman in addition to interviewing legal professionals, lawyers, police and clients, pored over more than 300 court cases and piles of published and published government documents.

What he found were some interesting practices particular to Myanmar. Among these, his research examines how the state pursues public enemies, and the privileged position that police officers hold as bearers of sovereign authority. It also characterises courts in Myanmar as marketplaces for the buying and selling of case outcomes, consonant with the law and order ideal.

“If you go along and try to understand those practices from a rule of law perspective then you are liable to misunderstand them because you are looking at them in the wrong way,” says Cheesman.

“You may be thinking ‘well, this country doesn’t have the rule of law’, which is the current issue in work on Myanmar. So many people look at the country in terms of a lack of the rule of law.

“The actual problem is that Myanmar’s public institutions are animated by ideas, but they are ideas that are not compatible with the rule of law. The problem is not one of an absence of political ideals, but of the presence of ideas that are hostile to the rule of law.”

Fire in the belly
Dr Nick Cheesman’s ideas aren’t only award-winning; they are getting the attention of some of the most important thinkers in his research field.

His JG Crawford Medal-winning PhD scholarship on the rule of law in Myanmar was described as an “unqualified triumph” by James Scott of Yale University.

Frank Munger of New York Law School said that it was “one of the most impressive accounts of the politics of the ‘rule of law’ that I have read”, including not only other PhD dissertations but also “the work of many mature scholars.”

It’s hardly surprising considering that Cheesman is the kind of person who puts powerful ideas into practice. Over the last 20 years he has been driven by an urgent sense to meaningfully contribute to pressing political and social issues in Asia.

This has seen Cheesman work for a regional organisation in Hong Kong aimed at protecting and promoting human rights, convene a people’s tribunal on food scarcity and militarisation in Myanmar, and work and live in a refugee camp.

It’s this kind of passion that he has brought to bear in his research as a PhD student at the ANU College of Asia and the Pacific.

“It is important that you have a fire in the belly. I think that anybody who undertakes a PhD needs to have passion for their topic, something that is concerning you, aggravating you, that is giving you that drive you need to do the work and to make it interesting every day for as long as it takes to get it done,” he says.
  
Find out more about graduate studies at the ANU College of Asia and the Pacific at our 2013 information evening taking place this Thursday, 17 October.