Episode #152: I Fought the Law (and the Law Won)
What to make of the 2010s in Myanmar? This is a question that many past guests on Insight Myanmar Podcast have tried to answer. We have heard those years characterized as everything from a ‘quasi-democracy’ to ‘the Wild West’ to ‘a moment in the sun’. What is certain is that this pivotal period, which saw the military’s power decline ever so slightly, is particularly important in light of the 2021 coup.
This is also an era that Kristina Simion has studied intensively. Her researched resulted in her book, Rule of Law Intermediaries: Brokering Influence in Myanmar. In our podcast discussion, she describes what made that period stand out: “Myanmar was more open to the outside world. Foreign investors were coming to Yangon and other cities to initiate their projects, and a lot of foreign donor agencies also wanted to take part in what was described as a major opportunity for transition for a country that had been isolated for decades under military rule. I could really feel this optimism myself! I met people from all across the world who… did not know much about the country and had been posted there for their first international posting.”
Simion describes the mixed feelings many have about this brief period. She notes how even though real substantive change didn’t take place, and even for those who expressed less than full confidence in Aung San Suu Kyi’s National League of Democracy (NLD), there remained a sense of optimism that finally there would be some pathway leading out from under the military’s half century of oppression.
Simion’s own term for the 2010s in Myanmar is “The Last Frontier.” The phrase evokes the perspective of many foreigners who arrived in the country during those years, many of whom had a less than comprehensive understanding of the situation in the country. She explains how “this expression [was] from the donor community, that they were actually going there to save one of the ‘last frontiers,’ one of the last countries to move towards democratization and a new political future.” Simion attributes the sudden changes sweeping across Yangon as a main cause of this perspective, but she points out that it completely ignored that the ethnic and rural areas remained engulfed in conflict. “[Yangon] was this bustling city with nightclubs and great restaurants! So I think if you arrive in that setting, it's easy to forget about all the problems going out going on across the country. It's easy to forget that there's a civil war, and it's easy to forget about the military dictatorship and their control over society.”
She notes how some Westerners came with stereotypes that had been built from decades of romanticized, Orientalist thinking about Myanmar as an idyllic, peaceful country, based on “Buddhist values.” And still others came from conflict zones such as Afghanistan and Iraq, mistakenly believing they could simply superimpose their past experiences with development projects onto the unique conditions and challenges of their new positing.
Simion’s study centers on the nexus of where foreign intentions and attitudes came into conflict with the hard reality on the ground in Myanmar. She weaves her narrative primarily through the perspective of the “rule of law.” But rather than examining the existence of the rule of law, or lack thereof in Myanmar, itself, her focus is more on “how the international development field uses the term… and the various ways they try to work with it.”
“I look at how development agencies take this concept of ‘rule of law’ and then try to export it,” she notes. She then lists the characteristics of this idealized conceptual system: independent judiciaries; a non-corrupt police force; a functioning prison system; a state governed by law and regulation; laws and regulations passed in the appropriate manner; separation of powers; mediators that can help solve conflicts; and laws that are publicly available, communicated, non-discriminatory, and respect human rights.
In fact, while development actors may see transformational rule-of-law policies as way to help create a more equitable society, Simion found that many Burmese actually felt quite differently; they were generally suspicious of it after decades of oppressive military rule, because “the law was always seen as a tool from the rulers to oppress the population.” Conversely, government officials and military figures delighted in the concept, which they conveniently took to mean “law and order,” and which they could easily appropriate to justify their stranglehold on individual freedoms and liberties. So for a clearer branding of their intentions and to avoid miscommunication, Simion suggests that development actors begin using the term “access to justice” instead.
Simion explains that because the Burmese population had been so traumatized by ongoing human rights violations under the banner of “law and order,” many were justifiably wary of any system that purported to formally regulate societal behavior. Yet she also found that while “people avoid the law as much as they can, they do use their non-state, or informal, systems” to resolve problems. That is why Simion feels this should be “the place we can look for sort of norms and values and traditions that can foster this basic idea of the right to justice, and people's rights.”
In trying to better understand the exploitative nature of military rule, Simion finds it valuable to look at the system that Burma inherited from the colonial period. The British “came in with new systems of governance, which was not governance really, but more of type of regulated control and brutality,” which was also grounded in the goal of financial gain. Colonial administrators did recognize pre-existing community-level laws as well as religious customs, and they were allowed to exist parallel to, though not supersede, colonial mandates. Additionally, many colonial laws, including the more restrictive ones, stayed on the books after independence, which the Tatmadaw later operationalized to justify and strengthen their oppression—and which they have once again resorted to since the coup, after the transition years. After all, explains Simion, “the rule of law that the British came with was not something that provided more rights or something good for the people. It was rather a tool used to control the territory.” Thus, Simion draws a direct line between the colonial obsession with laws as a form of state control to modern Tatmadaw practices today.
Returning to the transition period, Simion points out how hampered the NLD was in bringing about a more responsive and less onerous system of laws—establishing a real “rule of law” as opposed to the “rule of men”—given the problematic 2008 Constitution, which guaranteed the military’s involvement in key sectors without any oversight. Simion references the shocking assassination of Ko Ni in broad daylight in 2016, whose killing “illustrates how sensitive this was to actually work with these issues.”
Simion’s study also centered on the “intermediary,” an important role which dates back to the British period and was common throughout the colonial world. As the name implies, intermediaries are individuals who translate the rules and requirements of foreign operators to the local population, and the needs of the latter to the former. They not only translate between languages, but also cultures. She describes modern-day intermediaries in Myanmar as overall being quite young, English-speaking, and having some interest in politics,. Interestingly, Simion explains that many development actors chose intermediaries on personality alone, meaning that strong charisma was valued over hardened skills and proven ability in landing in that position.
Simion further explains the dynamics at play. During the transition period, when Myanmar emerged from having been isolated for so long and after the military’s decades of oppressive rule had eroded so much trust in formal systems, the rush of foreign development actors who flooded into the country needed to rely on personal contacts to get their projects off the ground—thus the renewed need for intermediaries. In Simion’s words, “a lot of international organizations were completely dependent on the intermediary.”
So given this reality, it’s amazing to consider the outsized role that intermediaries came to play in the transformation of the country. They not only guided conversations, but were responsible for finding the appropriate personal connections and making necessary introductions among other tasks. So although intermediaries were often referred to simply as “local staff members” by their foreign employers, Simion wryly notes that it begs the question of who was actually leading the projects!
Returning to the rule of law, Simion talks about how impressed she has been since the coup that activists have shown a keen interest in learning more about the rule of law and transitional justice mechanisms. She believes they realize that a firmer groundwork needs to be set to stabilize the system and deter future power grabs by the military. This contrasts greatly with just ten years ago, when, out of the excitement for greater freedom, “people were so eager for democracy that they were willing to sort of forget about the past to some extent, and just move forward.”
Incredibly, even as activists are resisting the Tatmadaw and simply trying to survive, they are taking virtual classes with Simion on these complex yet important topics. “I currently have training courses with people hiding in the jungle who want to learn more about rule of law principles, and just basic principles for lawmaking. I did a workshop today on transitional justice issues where I was talking about the fact that the state is the main guarantor of international legal norms and people's human rights.” Simion is also tutoring others who are curious about Constitutional reform, and already looking ahead to ensure that ethnic minorities are protected in a new, post-Tatmadaw Myanmar.
“I feel that actors in this movement have left behind this idea that Myanmar is different, or that these are foreign concepts. They can see more clearly now what those concepts and ideas can do for the country if they're implemented correctly.”