El reino del mercado en el Estado

Myanmar provides a novel and emerging site to study foreign-funded rule of law assistance and the emergence of intermediaries. The introduction of global ideas of law and justice is in itself comparatively new to Myanmar, which had remained largely isolated under military rule while neighbouring countries in Southeast Asia experienced the trials and lessons of the ‗third wave‘ of democratization and accompanying foreign assistance efforts.25

Especially its urban and economic centre, Yangon, provided a unique opportunity to observe rule of law development assistance as it developed and accelerated after political transition in 2011. As I immersed myself as a researcher in that setting it was evident that both new and seasoned rule of law development

practitioners from across the globe wanted to be in Yangon to assist a country they had followed for years from the outside. They wanted to get ‗a piece of the action‘: new work opportunities, development funding, exciting travel, and sometimes a high salary in an exotic and comparatively safe country that was still qualified as a ‗hardship‘ post. As a researcher, my interest in development practitioners who are drawn to settings in ‗transition‘ (see also Mosse 2011) follows from ethnographic perspectives that challenge the practices and implementation of development assistance (e.g., Crewe and Harrison 1998, Hancock 1989, Mosse 2011).

Also, legal scholars new and old to Myanmar, sought to grasp the various legal and institutional reforms that were happening (Crouch and Lindsey 2014b, Harding

2014).26 _{Some attempted to understand Myanmar‘s Supreme- (Nardi and Lwin Moe}

25 _{For example, Vietnam and Cambodia (Gillespie 2004, Nicholson and Low 2013, Nicholson and Pitt} 2012), and Indonesia (Lindsey 2007, 2014).

26 _{Before transition, legal researchers focused on substantive aspects of law in Myanmar rather than} foreign actors‘ attempts of its development. For example, Huxley‘s, Myint Zan‘s, and Cheesman‘s scholarship provide rich accounts of what law, rule of law, and related concepts meant during the decades

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2014) or Constitutional Court (Nardi 2014, 2017, Khin Khin Oo 2017), economic law reforms (Turnell 2014, Tun 2014, Tun Zaw Mra 2014, Crouch 2017), and police reform (Selth 2013). Many took an interest in the problematic 2008 constitution (Myint Zan 2017, Williams 2017, Harding 2017) and some academics also took on a role as advocates for constitutional change, for example through the Australia Myanmar Constitutional Democracy Project (UNSW Sydney).

Scholars also sought to understand in more depth ordinary people‘s perceptions of ‗justice‘ and ‗rule of law‘ in Myanmar‘s ethnically diverse rural and conflict settings (e.g., Prasse-Freeman 2015). Such analyses were also sought by researchers involved in assistance projects that explored local perceptions of justice (Kyed 2017, Denney, William, and Khin Thet San 2016).

Seasoned development practitioners analysed national failure to achieve rule of law development but for the most part failed to reflect on the activities and engagement of donors involved in rule of law assistance in Myanmar (Booth 2016, Pritchard 2016). Scholarly and policy analyses of the rule of law assistance industry as it operates in Myanmar as well as in-depth studies that explore the translation of global models to the local setting in Myanmar remained underexplored.

Studying Myanmar provides insights into the enterprise of rule of law assistance in a setting that has been labelled ‗authoritarian‘ (Linz 2000). While there is a growing body of literature that analyses the dysfunctional nature of rule of law in authoritarian settings (e.g., Balasubramaniam 2012, Pereira 2005, Rajah 2012) and especially the politics of courts and the judiciary in authoritarian regimes (Balasubramaniam 2009, Cheesman 2011, Ginsburg and Moustafa 2008, Gretchen 2005, Hilbink 2007, Moustafa 2014), few studies analyse the dynamics, particular complexities and parameters for

Myanmar was under regime rule and during political transition (e.g., Cheesman 2011, Huxley 1987, Myint Zan 2000).

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success of rule of law assistance in authoritarian settings.27 _{The findings of this thesis}

reveal that development assistance to Myanmar after political transition in many ways resembled those applied by foreign actors during military rule. For example, foreign actors often refrain from working too closely with the government, remain unregistered,

and operate informally when possible.28

Next, I provide an introduction to political transition as it played out in Myanmar after the general elections in 2010.

1.4.1. Myanmar’s Political Transition

The setting in which foreign development actors intervened to promote rule of law was one coloured by decades rule under one of the most ‗(brutally) authoritarian‘ (Steinberg

2001, Turnell 2011) regimes under ‗military dictatorship‘ (Shwe Lu Maung 1989a).29

During such rule, state ideology was dominant, political opposition and ethnic minorities faced serious mistreatment and oppression, people were under intrusive surveillance, economic mismanagement often reached absurd dimensions, and human

rights were systematically violated.30

27 _{Exceptions include Massoud‘s (2013) detailed account of rule of law assistance to Sudan‘s authoritarian} regime and Ware‘s explorations of development assistance strategies as they have played out in Myanmar both before and after transition (Ware 2012a, 2014, 2013).

28 _{I outline such strategies in detail in Chapter 5.}

29 _{Through its decades of grip on power, and endurance (Callahan 2010), the military has been described} as ‗one of the most important institutions in Myanmar politics‘ Maung Aung Myoe (2009, 1) and as an imperative force for upholding law and order since the time of Burmese independence from Britain in 1948 and the exit of Japanese occupation. However, as Callahan (Callahan 1998) illustrates Burma did experience a brief moment of democracy as elections with high turnouts were held ‗in accordance with Western expectations of electoral systems‘. To guarantee minority representation, a bicameral legislature was introduced. However, Callahan argues, ‗the legacies of the colonial and wartime period gave a very different meaning to these Western-style processes‘ (Callahan 1998, 51). The 1947 constitution

guaranteed democratic rule including an independent judiciary, but ‗embodied this distrust of democracy, placing emphasis not on individual rights and limitations of state intrusions in individual lives but instead on the empowerment of the state so that the great economic disparities wrought by imperialism could be levelled‘ (Callahan 1998, 52).

30 _{These are characteristics of a political system that sociologist and political scientist Linz through his} seminal analysis of political systems would deem ‗authoritarian‘ (Linz 2000).

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After elections in 2010, Myanmar entered a historical period of political and legal change as a ‗civilianized‘ Government was introduced in 2011 under (then) President, Thein Sein (Skidmore and Wilson 2010, 3). To claim that the new

government was ‗new‘ and ‗civilian‘ betrays a more complex truth. Rather, it was the former generals in power who re-invented themselves as they retired from the army and changed into civilian clothes (Callahan 2012). In an attempt to describe this

phenomenon, MacDonald suggests that the new configuration took on an electoral authoritarian form (2013). Thus while it is tempting to write about Myanmar‘s

authoritarian system as a practice of the past, its residues continue to influence political

and social life.31 _{During my field work in 2014 and 2015, practices associated with}

previous military regimes were still common (see also Holliday 2013). For example, judges intimidated lawyers who attempted to observe court hearings (Interviewee #53, 25 September 2015) and Military Intelligence personnel showed up at rule of law training courses for local lawyers and politicians (personal observation, 2014).

Observers were not slow to debate the reasons behind the regime‘s decision to embark on a reform process (e.g., Pedersen 2014, Winston Set Aung 2014, Slater 2014). For example, Slater (2014) suggests that key reform factors can be traced to the

government being out of money (which was made particularly evident in the aftermath of the destruction by Cyclone Nargis in 2008) and thus needed to have sanctions eased in order to establish links with international investors. He also elaborates on the possibility that the government might have tried to seek a balance to China‘s economic and political influence by approaching the international community as a way of

buffering Myanmar‘s superpower neighbour in the north. Slater further suggests that the sitting leaders realised that popular uprising in the style of the ‗Arab Spring‘ could

31 _{That Asian democratizing states with former authoritarian regimes ‗continue to have to deal with the} residue of authoritarianism in their legal and administrative systems‘ (Cheesman 2011, 826-827) for years after transition is evident from neighbouring countries like Indonesia (see e.g., Pompe 2005). Little evidence suggests that the case of Myanmar was much different.

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play out in Myanmar, something that authoritarian leaders are notoriously afraid of (Wang 2015).

The changes that happened after elections in 2010 were, however, not as sudden as some may want to suggest. Rather, they were the result of a reform process that can be traced back to the aftermath of elections in 1990 when the State Law and Order Restoration Council (SLORC) refused to transfer power to a civilian government (Taylor 2009a, Guilloux 2010) and instead announced their intention to write a new

constitution before power would be handed over to an elected government.32 _{In 1999,}

the military regime, under its new name, the State Peace and Development Council (SPDC), had stated its national objectives, policy and mission, to work towards a modern, peaceful and prosperous nation, as including political, economic, and social reforms (Maung Aung Myoe 2009, 3). And even though the army showed little signs of actually changing their behaviour, a new ‗road map to democracy‘ was announced on 30

August 2003 (The New Light of Myanmar 31 August 2003).33 _{The seven steps of the}

road map included suggestions on renewed work with the drafting of a new constitution, the adoption of a new constitution, after which a ‗step by step

32 _{On July 27, 1990, Khin Nyunt (Intelligence Chief then Secretary-1, then Prime Minister) in State LORC} Declaration No. 1/90 stated that SLORC was a military government operating under martial law, that only it had legislative, executive, and judicial power, and that it would not allow a government to take over State Power ‗before a government is formed in accordance with a new firm constitution drawn up according to the desires and aspirations of the people‘ (para 21). In the meantime SLORC reinstated its quest to protect the ‗three main causes‘ (the non-disintegration of the Union, non-disintegration of national solidarity and ensuring perpetuity of the sovereignty, para 21 (a)) and also reinstated SLORC Declaration No 1/88 to maintain (this time with the addition of ‗rule of law‘) ‗the prevalence of law and order, the rule of law, regional peace and tranquillity‘ (para 21 (b)). To draft the guidelines for a new constitution, in 1992 SLORC announced that a National Convention would be set up. The Steering Committee formed to plan the convention consisted mainly of township-level officials selected by the SLORC (Human Rights Watch undated) that came together for a process that would, allegedly, take five to ten years (Diller 1997). The Convention followed strict rules, showed little patience for criticism, and members of political opposition faced lengthy prison sentences for public critique (Diller 1997). Order 5/96 of June 1996 against anyone verbally criticizing the National Convention (‗The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Functions of the National Convention against Disturbances and Oppositions‘) made public criticism of the National Convention illegal and punishable by up to 20 years in prison (Human Rights Watch undated). In 1995 the NLD was boycotted from the Convention after having requested to review its working procedures (Diller 1997).

33 _{In essence the new road map differed little from the military‘s plan for transition as formulated during} the 1990‘s (Pedersen 2008).

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implementation of the process necessary for the emergence of a genuine and disciplined democratic state‘ could be realized through the ‗holding of free and fair elections‘. However, few social and economic improvements were realised after the announcement of the 2003 road map. Instead, in 2007, the military again carried out brutal crackdowns against peaceful demonstrators after Buddhist monks and others had taken to the streets to voice their discontent with the deteriorating living conditions and military rule (Taylor 2008). Democratic transition was yet to be seen and it was against a somewhat contradictory claim of commitment to change that national elections were scheduled for 2010.

The 2010 elections and the subsequent introduction of a civilianised government under the Union Solidarity Development Party (USDP) in 2011 thus prompted observers to debate the genuine nature of the regime‘s intentions with the

introduced changes (see e.g., Lintner 2013, Singh 2013, Taylor 2012).34 _{Nevertheless, the}

election‘s aftermath did open up a reform space and a unique range of opportunities were provided both political and civil-society actors and for relationships with actors outside Myanmar‘s borders (Macdonald 2013).

The changed political climate was followed by the relaxation of foreign sanctions (the country had for decades been subject of one of the toughest sanctions regimes globally Pedersen 2008) and in 2012 a new foreign investment law was passed that eased legal restrictions on foreign investors (Hookway 7 September 2012). Several other laws were repealed or drafted to create a legal infrastructure to support an internationalised market economy (Turnell 2014). Other notable reforms the Myanmar government embarked on included eased censorship (FESR 2012), release of political

34 Perhaps especially Lintner who, following protests in 1988, had optimistically predicted that change had come to stay and that a transfer of power would take place either through violent or peaceful means (Lintner 1989). Lintner was more sceptical after elections in 2010 and suggested that ‗[i]f Myanmar has embarked on some kind of transition, it still has a long way to go…‘ (2013, 108). Similarly, Turnell suggested that ‗[t]he new government has yet to do anything to suggest it is more than a façade for ongoing military control‘ (2011, 79).

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prisoners (Burke 13 January 2012), new laws that allow trade unions and strikes (BBC News 2011), and establishing a Human Rights Commission (Liljeblad 2016, Taylor

2012).35 _{The previously isolated regime re-engaged with the international community in}

various forms to attract foreign investment or to seek assistance with processes of political or social change (Rieffel and Fox 2013).

For rule of law assistance purposes, the political changes provided an

unprecedented space for reform activities. ‗Rule of law‘ was introduced as a model for reform advocated for by foreign development actors in a format that differed from existing political understandings and uses of ‗rule of law‘ as a concept conflated with ‗law and order‘ (Cheesman 2015). In Chapter 5 I review in detail how rule of law assistance emerged in Myanmar after political transition in 2011. Next, I present the scope of this study: the global field of rule of law assistance.