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States of Legal Denial: How the Rohingya Lost the Right to Vote and the Role of Legal Denial in Myanmar
By Melissa Crouch — is Associate Professor and Associate Dean Research at the Law School, University of New South Wales, Australia.
On September 19, 2017, Aung San Suu Kyi addressed the United Nations (UN) and gave her opinion as the State Counsellor of Myanmar regarding the grave conflict and displacement crisis in Rakhine State (OSC 2017). Her speech was widely criticised by the international community for failing to acknowledge the reality of the humanitarian and displacement crisis that had been unfolding since August 25 (ICG 2017). In early 2018, the UN estimated that over 700,000 Rohingya had fled to Bangladesh, joining the 300,000 displaced who were already there since 2012. Numerous studies estimate that more than 9,000 people may have died in the conflict. On the same day as Suu Kyi’s speech to the UN, protests were held by pro-Aung San Suu Kyi supporters across major towns in Myanmar.
In addition, the Burmese (Burman) diaspora organised demonstrations at sites around the world, such as in front of the Australian parliament house in Canberra. These demonstrations were organised under the slogan of “We Stand with Daw Suu”. The message was clear : many people in Myanmar support Aung San Suu Kyi and her position of denial on the crisis in Rakhine State. These events suggest a major disconnect and polarisation between the views of the global community and local perspectives. The international community has been confounded by the strong, united response from within Myanmar that largely denies the state of suffering of the Rohingya, a minority Muslim religious and ethnic community, displaced both within Myanmar and across the border in Bangladesh. The National League for Democracy government and the military deny the scale, scope and legitimacy of the suffering and the urgency of a response to the humanitarian crisis. This raises the question: what explains this collective denial of the suffering of the Rohingya in Myanmar? What forms does denial take and to what effect? How do officials use law and legal institutions to effect and perpetuate denial?
Scholarly inquiries into the Rohingya crisis focus on the issue of citizenship and ethnicity (Holliday 2014; Ferguson 2015; Thawnghmung 2016), which is one example of the use of law to deny the Rohingya as a part of the political community. Although it is in the application of the law, as Cheesman (2017) notes, and not the mere enactment of the citizenship law, that many Rohingya are denied citizenship. Notions of race and ethnicity in Myanmar have been interrogated and the inherent privileges that come with being ethnic Burman have been identified (Walton 2008, 2013). The creation of ethnic categories of difference has been historicised and traced to the early years of authoritarian rule from 1964 (Cheesman 2017).
Anthropologists such as Anwar (2013) have looked beyond the borders of the nation-state to consider Rohingya communities in Pakistan and the attendant challenges they face to citizenship in light of discourses of illegality. Kyaw Zeyar Win (2018) considers the securitisation of the Rohingya. My article seeks to shift attention to the broader phenomenon of legal denial as a means employed by the state to, I then focus specifically on legal denial in Myanmar. Cohen suggests that “the dominant language of interpretation (interpretive denial) is legal” (Cohen 2001, 106). I draw a link between Cohen’s understanding of interpretation as denial and the violence of legal interpretation (Cover 1985; Minow 1995). I explore three forms of legal denial: constitutional reform; legislative reform; and judicial decision-making.
On the first level, I return to the 1950–60s debate over a proposal to amend the Constitution to create Arakan (Rakhine) State. Through this debate, and the subsequent decision under Ne Win to recognise Arakan State in the 1974 Constitution, I show how constitutional reform acts as a means of legal denial. In doing so I destabilise the concept of “Rakhine State” as a given entity. On the second plane, I consider the role of parliament and its dialogue with the Constitutional Tribunal over the decision to narrow the definition of who has a right to vote and run for office to exclude the Rohingya. This legislative reform amounted to mass disenfranchisement and was another means of legal denial that excludes the Rohingya from the political community of Myanmar. This focus on law-making builds on Robert Cover and my earlier work on the violence of law reform in Myanmar (Crouch 2016). A third mechanism of denial is the targeted use of political trials to perpetuate certain narratives of legal denial about who is responsible for the conflict in Rakhine State. Judicial decision-making as interpretive denial can be seen at work in the 2017–2018 trial of two local Reuters journalists who were investigating a massacre in Rakhine State, the importance of which I explain against the backdrop of the government decision to designate the Arakan Rohingya Solidarity Organisation (ARSA)1 as a terrorist organisation.
The second type of denial Cohen identifies, interpretative denial, is about how meaning is given to facts. A situation may be interpreted in such a way as to deny the suffering and pain that has taken place. This has resonance with the work of Robert Cover, and his classic summation that “legal interpretation takes place in a field of pain and death” (Cover 1985). Interpretive denial is often employed when literal denial is no longer plausible (Cohen 2001, 7).
Interpretive denial may promote an interpretation that is favourable to that person or institution, but it may also go further in that it may specifically cast blame or fault on those who are also victims. For example, some officials in Myanmar have denied the rape of Rohingya women. While this denial in part has seeds of literal denial, at the same time the response of some government officials is to offer an interpretive denial couched in disbelief or indignation at the idea that someone would want to rape a Rohingya woman (Head 2017). Such a response is a form of interpretive denial, the implication being that Rohingya women are undesirable and inferior in some way and that they could not possibly be the victim of rape. This is also evidence of the Burman (‘white’) privilege at work in Myanmar, a privilege that casts all non-Burmans as inferior (Walton 2018).
Finally, to return to the example of land mines, rather than literally deny that there were no land mines, a form of interpretive denial is to allege that it must have been the Rohingya, rather than the military, who planted the land mines. Zaw Htay, the spokesperson for Aung San Suu Kyi, hinted that the Rohingya could be responsible for the laying of the mines (BBC, September 6, 2017a). This would be unusual since the landmines were planted along the border with Bangladesh, preventing the only safe or reliable escape route by land in the event of conflict. Again, like literal denial, interpretive denial does not necessarily have a plausible basis for its claims.
Many of the above examples of interpretive denial have elements of implicatory denial. For example, the fact that over 900,000 Rohingya are now displaced in Bangladesh due to conflict since 2012 is not disputed. This does not necessarily lead to action by the Myanmar state in terms of humanitarian aid or realistic prospects of having their land, homes and livelihoods returned. In 2018, one year on from the onset of the conflict on August 25, UN agencies still did not yet have meaningful access to distribute aid in northern Rakhine State (McPherson 2018).##
