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Translating Rule of Law to Myanmar

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Translating Rule of Law to Myanmar Translating Rule of Law to Myanmar: Intermediaries’ Power and Influence A thesis submitted for the degree of Doctor of Philosophy of The Australian National University Kristina Simion School of Regulation and Global Governance (RegNet) Australian National University April, 2018 © Copyright by Kristina Simion, 2018 All Rights Reserved Candidate’s declaration This thesis contains no material that has been accepted for the award of any other degree or diploma in any university. To the best of the author‘s knowledge, it contains no material previously published or written by another person, except where due reference is made in the text. 9 April 2018 Kristina Simion Date Word count: 99 814 ACKNOWLEDGEMENTS I am grateful to many people for supporting me throughout this thesis. I am especially indebted to my primary supervisor, Veronica Taylor, who devoted much time and energy to this project. As well as your constant encouragement and support, your contributions challenged me and helped me influence my ideas into a coherent form. Thanks for keeping me interested in this field with your creativity and originality in thought. I was also very lucky to have the support of my thesis panel advisers Martin Krygier, Nick Cheesman, and Morten Pedersen who provided thorough advice on my writing, encouraging discussions, and friendly support in the field when I needed it the most. I have been fortunate to share my PhD journey with fellow colleagues at the School of Regulation and Global Governance (RegNet), each of whom helped make the experience an enjoyable one. Robyn Holder and Therese Pearce Laanela, thanks for being great room-mates and friends. Imelda Deinla, Ben Authers, Emma Larkin, Ibi Losoncz, and Christoph Sperfeldt: it was great to have you around. Kate Henne deserves great thanks for providing guidance and support on all things thesis related from end to finish. I am grateful to the professional staff at RegNet, in particular Romina Pascotic, Paulina Piira, and Hilary Greenhill. You made me feel welcome in a new place far from home. Several international experts came through RegNet during my candidacy: I benefitted greatly from their seminars and personal advice and suggestions. Thanks especially to Terry Halliday for advice that helped move my research forward and for showing interest in this project. I also had a great time getting to know several of the PhD visitors who came through RegNet, especially Mao Suzuki, Mana Takahashi, and Nathan Willis. i This thesis would not have been made possible without an International Student PhD Scholarship and HDR Merit Scholarship from the Australian National University. I am deeply grateful for the opportunity such generous funding provided me. Fieldwork in Myanmar was an integral part of my research. I am humbled by the fact that people to whom I was a complete stranger took time to take part in my project. This thesis would not have been possible without your openness and generous contributions, which profoundly influenced this project. I hope you will enjoy the end product. Thanks to Chit Win for help with everything Myanmar-related and for giving me an introduction to the country, its politics, and its history. The same goes for Ma Khin Mar Mar Kyi, Naing Ko Ko, Oo Maung, and Jaqueline Menager. Friends in Yangon provided invaluable advice and support and made field work a memorable experience. Jennifer Goodman, thanks for providing me with a wonderful home in Yangon. Sanda Win, since the moment you ‗Yangonised‘ me, field work became truly enjoyable. I am grateful for getting to know your family and Poe Ei Zar. Thanks also to Eric Rose and his team at Yangon-based Herzfeld Rubin Meyer & Rose Law Firm who very generously allowed me to use their office facilities and provided knowledgeable information and advice. The opportunities I had to present my work at the Law and Society Association‘s annual meeting in Seattle in 2015 and in Mexico City in 2017; Harvard Law School‘s Institute for Global Law and Policy Conference in Boston 2015; and at the Australasian Aid Conference in Canberra in 2015 and 2017 greatly enriched my project. I also benefited greatly from discussions with peers at the 2017 Asian Regional Graduate Student Workshop organized in Bangkok by the Harvard Law School‘s Institute for Global Law and Policy. I am grateful to Thomas Bierschenk for inviting me to the 2014 Summer School on ‗Conceptualising Brokers Engaged in Translation‘ in ii Halle, Germany, where I got the chance to engage in fruitful discussions about my project. Thanks to my colleagues at the International Network to Promote the Rule of Law: Vivienne O‘Connor, Nick Dove, Lelia Mooney, Christina Murtaugh, Ena Dion, Bethany McGann, and Chelsea Dreher for keeping me connected to rule of law practice throughout this project. I am indebted to Claes Sandgren, Antonina Bakardijeva Engelbrekt, Erik Wennerström, Richard Sannerholm, and Per Bergling for encouraging my interest in the field of rule of law assistance. Special thanks to Per who spent many hours helping me out with my initial proposal ideas and to Richard for providing helpful comments on my initial proposal drafts. Thanks to Patrik for your constant support. My deepest gratitude to Mattias and Carl for keeping me focused on the thesis but also on more important things in life, I look forward to post-thesis life with you. iii ABSTRACT With Myanmar‘s 2010 general election, the country‘s regime undertook a managed transition from military rule. As foreign organisations flocked to Myanmar to initiate rule of law assistance, development intermediaries emerged to mediate, translate, or broker a rule of law model proposed by foreign actors. In the broader field of development studies and anthropology, intermediaries have been identified as key subjects of analysis and as actors with significant agency and influence. However, little is known about their power and influence in relation to rule of law assistance. To address the lack of theoretical, methodological, and empirical analysis, this thesis poses the question -- How do intermediaries influence rule of law assistance in Myanmar? Through an inter-disciplinary approach and extended field work in Myanmar during 2014-2015 that involved ethnographic observation and qualitative interviews, this thesis finds evidence that intermediaries come to possess significant influence and power in the rule of law assistance field. They steer the direction of development interventions, translate global concepts selectively, and mediate and buffer disagreements between development counterparts who do not share the same values and understandings. Intermediaries also influence rule of law assistance in Myanmar because foreign development actors, who often lack cultural and linguistic knowledge, are fully reliant on them to carry out their development activities. Because those foreign actors are distrusted by local actors, including the government, intermediaries are central to trust- building. This thesis shows how a focus on intermediaries is an important vantage point from which to consider the enterprise of rule of law assistance. It is through the study of intermediaries‘ experiences, as they try to introduce a global model of rule of law iv ideas and practices, that the rationales and complexities of rule of law assistance can be unpacked. This thesis makes an original contribution to theory by arguing that the conceptualisation of rule of law as a model provides better insights into the enterprise of legal development assistance because it shifts analysis from debates about the content of global norms or principles, to the ways in which intermediaries are vital for the model‘s transmission, and then its adaptation and appropriation. In doing so, it provides a critical perspective on attempts to translate rule of law to new settings. Myanmar as a case study highlights in particular the difficulties of translating that model to a setting controlled by a military regime during political and economic transition. Empirically, this thesis shows that intermediaries influence rule of law assistance because they steer project allocation, deliver diffused messages of local needs, are central for trust-building between foreign, national and local development counterparts, translate rule of law selectively and recursively, and exercise the power to decide who will, or will not, be included in development activities. This thesis argues that, without understanding who these intermediaries are, and how they exercise their influence, we cannot fully grasp either the process, or the limitations of, the global transfer of the rule of law. v Table of Contents Acknowledgements i Abstract iv Table of Contents vi Chapter 1. Introduction 1 1.1. Research Questions 4 1.1.1. ‗Black-boxes‘ of Rule of Law Assistance 6 1.2. Theoretical Framing 8 1.2.1. Travelling Models 9 1.2.2. ‗Global‘ to ‗Local‘ Translation 11 1.2.3. The Anthropology of Intermediaries 13 1.3. Central Arguments 18 1.4. Site Choice 20 1.4.1. Myanmar‘s Political Transition 22 1.5. Scope: Rule of Law Development Assistance 26 1.5.1. The International Field of Development Assistance 28 1.5.2. History and Evolution of Rule of Law Assistance 33 1.5.2.1. The Law and Development Movement 34 1.5.2.2. Law, Democratisation and Economic Development 36 1.5.2.3. Development Failure and ‗bottom-up‘ Approaches 39 1.5.2.4. Rule of Law for Peace and Security 40 1.6. Rule of Law Intermediaries: Current state of Knowledge 41 1.6.1. Common Critiques of Rule of Law Assistance 42 1.6.2. Individuals Involved in Rule of Law Assistance 43 1.7. Significance 47 1.8. Thesis Overview 50 Chapter 2. Finding Rule of Law Intermediaries in Myanmar: Methodology and Methods 54 2.1. An Inter-disciplinary Study of Rule of Law Assistance 58 2.2. Myanmar as Field Work Location 61 2.2.1.
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