Memo #84
By Nick Cheesman – nicholas.cheesman [at] anu.edu.au
A Myanmar court on March 29, 2011 granted bail to Australian businessman Ross Dunkley accused of assaulting and unlawfully confining a sex worker. Dunkley said he would fight the charges. “I just can’t believe there is a case,” Agence France Press quoted him as saying. “There is no witness, there is no evidence. ”
Whatever the facts in Dunkley’s case, the absence of a witness or lack of evidence is no obstacle to the filing of a criminal complaint in Myanmar, or Burma. Every day, ordinary accused appear in the country’s courts with little if anything to prove their guilt. Many of them go to jail.
Why are evidence-less cases typical, rather than exceptional, in Myanmar’s courts? Some reasons are institutional. The police force is abusive. The judiciary is not independent. Both are corrupt. But institutional factors cannot fully account for it.
The reasons also are conceptual. A half-century of military rule has altered profoundly the role that law plays in society. Whereas law was in the 1950s a bulwark to protect individual interests, since 1962 it has been a vehicle to advance those of the state. Its purpose is no longer to check authorities’ coercive powers. It is to enable them. Instead of aiming at justice and the adjudication of conflict, the fulfillment of policy goals through the law now takes primacy in Myanmar.
This conceptual shift is bound up in the convergence of the “rule of law,” with “law and order.” Once the two connoted very different ideas about the management of society. The former implied judicial supremacy, whereas the latter signified a policing function. Now they are analogous.
As the rule of law has shifted conceptually, the role of law has declined. Police no longer need evidence because their primary role is to maintain order, not to enforce law. Judges no longer need it to assign guilt, because their part is to administer cases on behalf of the state and its interests, not to adjudicate contested claims between the state and private parties.
For an accused in this setting to insist that the police have neither witness nor evidence does not mean much. Where courts do not operate to protect individual rights, a defendant hoping to prove his innocence needs more than law on his side.
About the Author:
Nick Cheesman – PhD candidate, Department of Political & Social Change, College of Asia & the Pacific, Australian National University.
Links:
- Cheesman, Nick. Thin Rule of Law or Un-Rule of Law in Myanmar?, Pacific Affairs, Volume 82, No. 4, Winter 2009
- Australian editor granted bail in Myanmar, Agence France Press, March 2011
- Submission by the Asian Legal Resource Centre to the Human Rights Council’s Universal Periodic Review concerning human rights and the rule of law in Myanmar, Asian Legal Resource Centre, June 2010
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- Our other Memos categorized under “Law“
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