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Published online by Cambridge University Press: 19 March 2019
For imperial Britain, it has often been stated, the introduction and maintenance of the rule of law was a cardinal responsibility and indeed the great achievement of empire. But this is a view that has also been strongly challenged. For example, it has been argued that often at times of crisis, maintaining the rule of law collided with the primary responsibility of the colonial state to secure social order, with the state then turning to emergency measures, forsaking the rule of law and legal process. In the early 1930s, the colonial state in Burma faced a major rebellion, and indeed emergency measures were introduced to try the large number of rebels captured. However, this article, drawing on a substantial collection of files created by the trials and the appeals that arose from them, argues that, within that emergency regime, long-established legal processes were retained to a striking degree. In fact, the article concludes, at a time of severe challenge to the colonial order, maintaining the rule of law and legal process became still more critical in the colonial mind, for were it to be forsaken, those charged with running the colonial state would be forced to question its – and their – very purpose.
I wish to acknowledge the valuable comments of Clare Anderson, Jonathan Saha, and the anonymous referees appointed by the Historical Journal on earlier versions of this article.
1 Wiener, Martin J., An empire on trial: race, murder, and justice under British rule, 1870–1935 (Cambridge, 2009), p. 1Google Scholar.
2 The phrase ‘a cultural achievement of universal significance’ is from Thompson, E. P., Whigs and hunters (London, 1975)Google Scholar. But it was used sarcastically by Ranajit Guha in Dominance without hegemony: history and power in colonial India (Cambridge, MA, 1997), p. 67. ‘Guha derides the notion that the rule of law ever came to exist in colonial settings’: Benton, Lauren, Law and colonial cultures: legal regimes in world history, 1400–1900 (Cambridge, 2002), p. 255Google Scholar.
3 Wiener, An empire on trial, pp. 1, 2.
4 Kolsky, Elizabeth, Colonial justice in British India: white violence and the rule of law (Cambridge, 2010), p. 186Google Scholar.
5 Saha, Jonathan, Law, disorder and the colonial state: corruption in Burma, c. 1900 (Houndmills, 2013)CrossRefGoogle Scholar.
6 Saha, Jonathan, ‘A mockery of justice? Colonial law, the everyday state and village politics in the Burma delta, c. 1890–1910’, Past and Present, 217 (2012), p. 208CrossRefGoogle Scholar.
7 Cheesman, Nick, Opposing the rule of law: how Myanmar's courts make law and order (Cambridge, 2015), p. 62CrossRefGoogle Scholar.
8 Major texts on the rebellion include Aung-Thwin, Maitrii, The return of the Galon king: history, law, and rebellion in colonial Burma (Athens, OH, 2011)Google Scholar; Scott, James C., The moral economy of the peasant: rebellion and subsistence in Southeast Asia (New Haven, CT, 1976)Google Scholar; Adas, Michael, Prophets of rebellion: millenarian protest movements against the European colonial order (Chapel Hill, NC, 1979)Google Scholar; Ghosh, Parimal, Brave men of the hills: resistance and rebellion in Burma, 1825–1932 (London, 2000)Google Scholar.
9 Statement by viceroy of India, in government of India, home department, to secretary of state for India, telegram, 12 March 1931, London, India Office Records (IOR), L/PJ/6/2021.
10 Government of India, home department, to secretary of state for India, telegrams, 13 January 1931 and 12 February 1931, IOR, L/PJ/6/2021.
11 India Office, ‘Memorandum on special powers already taken and now asked for by the government of Burma in connection with the rebellion’ (no date but probably June 1931), IOR, L/PJ/6/2021.
12 The Burma Rebellion (Trials) Ordinance, 1931; India Office minute, W. Johnston, 20 February 1931, on government of India, home department to secretary of state for India, telegram, 18 February 1931, IOR, L/PJ/6/2021.
13 D. T. Monteath, ‘Trial of rebels in Burma’, 13 May 1931, IOR, L/PJ/6/2021.
14 D. T. Monteath, ‘Sentences of Burma rebels’, 27 August 1931, IOR, L/PJ/6/2021.
15 J. W. P. Chidell minute (no date but early April 1934), IOR, L/PJ/6/2020.
16 Judgement in the court of the special judge, Tharrawaddy, special (sessions) trial 6 of 1931, 31 December 1931, IOR, L/PJ/6/2022.
17 Ibid.
18 High court of judicature at Rangoon: criminal appeal no. 106 to 114 and 241 to 254 of 1932: appeals from the order of the special judge sitting at Tharrawaddy, 31 December 1931, special trial no. 6 of 1931, IOR, L/PJ/6/2022.
19 Government of India, home department, to secretary of state for India, telegram, 21 May 1932, IOR, L/PJ/6/2022.
20 Ibid.
21 This comment misses an important point. For an approver's evidence in support of a prosecution to be compelling, it was important that the approver implicate himself in the crimes for which his former accomplices had been charged, for that confession would confirm that the approver had been in a position to identify those also involved and now on trial.
22 India Office minute, W. Johnston, 25 May 1932, on government of India, home department, to secretary of state for India, telegram, 21 May 1932; and on enclosures in government of India, home department, to under secretary of state for India, 14 March 1932, IOR, L/PJ/6/2022.
23 India Office minute, E. M. des C. Chamier, 26 May 1932, on government of India, home department, to secretary of state for India, telegram, 21 May 1932; and on enclosures in government of India, home department, to under secretary of state for India, 14 March 1932, IOR, L/PJ/6/2022.
24 Secretary of state for India to government of India, home department, telegram, 6 June 1932, IOR, L/PJ/6/2022.
25 Government of India, home department, to secretary of state for India, telegram, 18 June 1932, IOR, L/PJ/6/2022.
26 The high court judgement is included in IOR, L/PJ/6/2022 but it was also published in the Indian law reports: Rangoon series, ix, 1931, 404–33.
27 High court of judicature at Rangoon, an appeal from the order of the special tribunal judge sitting at Tharrawaddy, 28 August 1931, Saya San v. King-Emperor, 29 September 1931, IOR, L/PJ/6/2022.
28 High court of judicature at Rangoon, an appeal from the order of the court of session, Tharrawaddy, 11 January 1937, Aung Pe v. King-Emperor, 17 February 1937, IOR, L/PJ/6/2024.
29 Judgement of the special tribunal sitting at Tharrawaddy, 11 June 1931, special tribunal case no. 2 of 1931, IOR, L/PJ/6/2022.
30 High court of judicature at Rangoon, appeals from the order of the court of the 2nd special judge, Prome, special trial no. 30 of 1932, 12 July 1932, 22 August 1932, IOR, L/PJ/6/2024.
31 Court of the special judge, Prome, special trial no. 22 of 1932, 25 June 1932, IOR, L/PJ/6/2024.
32 Judgement and sentences in special tribunal trial no. 1 of 1931, sitting at Pyapon, 9 May 1931, IOR, L/PJ/6/2022.
33 Appellate judgement of the high court of judicature at Rangoon, Aung Hla v. King-Emperor, 13 June 1931, IOR, L/PJ/6/2022; Indian law reports: Rangoon series, ix, 1931, 404–33.
34 Government of India, home department, to secretary of state for India, telegram, 5 September 1931; secretary to the government of Burma, judicial department, to secretary to the government of India, home department, 8 August 1931, IOR, L/PJ/6/2022.
35 India Office minute, W. Johnston, 8 September 1931, on government of India, home department, to secretary of state for India, telegram, 5 September 1931, IOR, L/PJ/6/2022.
36 India Office minute, E. M. des C. Chamier, 8 September 1931, on government of India, home department, to secretary of state for India, telegram, 5 September 1931, IOR, L/PJ/6/2022.
37 This point had been made in a letter from Edward Thompson, a historian of India and teacher of Bengali at Oxford (and father of E. P. Thompson), to the prime minister on 2 January 1931: ‘I do hope that if there are to be executions, they will be for murder and not for rebellion.’ The letter was kept on file in the India Office (IOR, L/PJ/6/2020) and reference was made to it in these minutes.
38 Secretary of state for India to government of India, home department, telegram, 15 September 1931, IOR, L/PJ/6/2022.
39 Government of India, home department, to secretary of state for India, telegram, 23 September 1931, IOR, L/PJ/6/2022.
40 Secretary of state for India to government of India, home department, telegram, 11 April 1932, IOR, L/PJ/6/2022.
41 Chief secretary to the government of Burma, home and political department, to secretary to the government of India, home department, 29 April 1932, IOR, L/PJ/6/ 2022.
42 Government of India, home department, to secretary of state for India, telegram, 21 May 1932, IOR, L/PJ/6/2022.
43 India Office minute, W. Johnston, 25 May 1932, on government of India, home department, to secretary of state for India, telegram, 21 May 1932, IOR, L/PJ/6/2022.
44 Secretary of state for India to government of India, home department, telegram, 2 February 1933, IOR, L/PJ/6/2023.
45 Secretary to the government of Burma, judicial department, to secretary to the government of India, home department, 24 November 1932, IOR, L/PJ/6/2023.
46 Government of India, home department, to secretary of state for India, telegram, 24 July 1933, IOR, L/PJ/6/2024.
47 Secretary to the government of Burma, judicial department, to the secretary to the government of India, home department, 1 July 1933, IOR, L/PJ/6/2024.
48 Commissioner, Pegu division, to the secretary to the government of Burma, judicial department, 1 October 1932, IOR, L/PJ/6/2024.
49 India Office minute, R. T. Peel, 3 August 1933, on government of India, home department, to secretary of state for India, telegram, 24 July 1933, IOR, L/PJ/6/2024.
50 India Office minute, Findlater Stewart, 8 August 1933, on government of India, home department, to secretary of state for India, telegram, 24 July 1933, IOR, L/PJ/6/2024.
51 India Office minutes, R. T. Peel, 9 August 1933, on government of India, home department, to secretary of state for India, telegram, 24 July 1933, IOR, L/PJ/6/2024.
52 Secretary of state for India to government of India, home department, telegram, 11 August 1933, IOR, L/PJ/6/2024.
53 Government of India, home department, to secretary of state for India, telegram, 2 September 1933, IOR, L/PJ/6/2024.
54 Secretary of state for India to viceroy of India, telegram, private and personal, 6 September 1933, IOR, L/PJ/6/2024.
55 Viceroy of India to secretary of state for India, telegram, private and personal, 16 September 1933, IOR, L/PJ/6/2024.
56 This point has been made by Stacey Hynd in the context of colonial Africa. ‘The Governor had the power to confirm sentence and order an execution, commute the sentence to imprisonment, or pardon the condemned man. This authority made the death penalty fundamentally different from other forms of punishment, in that it was an expressly politicized penalty. Ultimately, this made capital punishment an instrument of state politics, as much as, if not more than, a penal policy’: ‘“The extreme penalty of the law”: mercy and the death penalty as aspects of state power in colonial Nyasaland, c. 1903–1947’, Journal of Eastern African Studies, 4 (2010), p. 545.
57 India Office minute, Findlater Stewart, 11 September 1931, on government of India, home department, to secretary of state for India, telegram, 5 September 1931, IOR, L/PJ/6/2022.
58 India Office minute, Samuel Hoare (dated 13/10 but the month is clearly incorrect), 13 September 1931, on government of India, home department, to secretary of state for India, telegram, 5 September 1931, IOR, L/PJ/6/2022.
59 ‘Mr. Kinley asked the Secretary of State for India whether any Burmans arrested during the rebellion have been transported or executed; and, if so, how many?’, Hansard HC Deb., 22 June 1931, vol. 254, cc. 10–15.
60 J. T. Griffiths to secretary of state for India, 26 November 1931, IOR, L/PJ/6/2022. Interestingly, although the Rangoon Gazette Weekly Budget covered the trial of Saya San at length (17 August 1931), his execution was reported in a bare 4½ lines (30 November 1931).
61 For example, Daily Worker, 16 June 1931.
62 India Office minute, Findlater Stewart, 11 September 1931, on government of India, home department, to secretary of state for India, telegram, 5 September 1931, IOR, L/PJ/6/2022. Emphasis in original.
63 Government of India, home department, to secretary of state for India, telegram, 23 September 1931, IOR, L/PJ/6/2022. To which the India Office minuted: ‘This may be so, but H.M.G. must consider a wider public whose opinion does not seem to influence the Governments of India or Burma’, W. Johnston, 24 September 1931.
64 Chief secretary to the government of Burma, home and political department, to secretary to the government of India, home department, 29 April 1932, IOR, L/PJ/6/2022.
65 Government of India, home department, to secretary of state for India, telegram, 23 September 1931, IOR, L/PJ/6/2022. In here reporting the views of the Burma government to London, the government of India added that it had ‘no hesitation in agreeing with Local Government’.
66 Secretary of state for India to government of India, home department, telegram, 25 September 1931, IOR, L/PJ/6/2022. The section in square brackets was part of the draft but was not included in the telegram as sent.
67 For a detailed account of the introduction of these emergency measures, which comprised not only the Burma Rebellion Trials Ordinance (the focus here) but also the Burma Emergency Powers Ordinance, see Aung-Thwin, Maitrii, ‘Discourses of emergency in colonial and postcolonial Burma’, in Ramraj, Victor V. and Thiruvengadam, Arun K., eds., Emergency powers in Asia: exploring the limits of legality (Cambridge, 2010), pp. 187–212Google Scholar.
68 Aung-Thwin, The return of the Galon king, pp. 113–14. The defence case was recorded only where it concerned a legal point, for example whether approvers’ evidence should be admissible.
69 I have found no evidence in the files that appeals from condemned men for clemency were referred to London in normal – non-rebellion – cases. If that were indeed so, then to refer death sentences on convicted rebels to the secretary of state was an additional and substantial right of appeal. In effect, the formal legal process was modestly curtailed but the later stages of appeal – a political process – were extended.
70 Comaroff, John L., ‘Colonialism, culture, and the law: a foreword’, Law and Social Inquiry, 26 (2001), p. 308CrossRefGoogle Scholar.
71 Perhaps this is the point to note that in March 1935, by which time the rebellion trials and appeals had been largely completed, the number of rebels executed was officially put at just 128: official report of the legislative council, 25 March 1935, 2640–1, IOR, L/PJ/6/2020.
72 Nick Cheesman, ‘Rule-of-law lineages in colonial and early post-colonial Burma’, Modern Asian Studies, 50 (2016), pp. 564–601.
73 ‘It was a crude justification for imperial expansion, perhaps, but the ideological role granted to the law had material effects … Temporarily setting aside their coercive function in physically maintaining imperial authority, the colonial courts played a symbolic role in giving moral authority to British rule’: Saha, ‘A mockery of justice?’, p. 193.
