onburma.htm
by David C. Buxbaum, Assoc. of Southeast Asian Institutions of Higher Learning, Springer Netherlands, Jan 1, 1967, pp288.
Downloaded and edited, by U Kyaw Tun (UKT)
(M.S., I.P.S.T., USA) and staff of Tun
Institute of Learning (TIL) . Not for
sale. No copyright. Free for everyone.
Prepared for students and staff of TIL
Research Station, Yangon, MYANMAR :
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UKT 190314: I dedicate this page to my cousins, uncles, and friends of my family, who had joined the the BIA troops, a ragtag army formed to make our mother-country sovereign again. Many had died and many became crippled and blind. Many had lost their families. I, at that time, was a child of 6, and had aspired to join those patriots.
I remember my days in Pauk Town, when I saw the last of British colonial troops retreat, and the BIA troops coming into town with a single Japanese liaison officer who spoke English.
I saw the government buildings looted, down to the corrugated iron roofs. The civil hospital was looted: throwing out the medicines and taking away the now empty bottles - the perpetrators' excuse: taking the enemies' (British) property. And when cholera broke out a few months later many died - including two from my family.
I saw the BIA set up a local administration headed by a respected townsman "rich" man - U Tha Wa by name. The local administration recovered the looted property. And the town settled back to normal, peaceful life again. Now, my question: what Law did they use?
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Buxbaum-indx.htm
UKT 180501, 190313: I am interested in Burma aka Myanmarpré, and I've to piece together what I get from book previews. In the first preview, I came across p071. Scrolling backwards I came to p065, on which Part II begins. However, there were two beginning pages missing. Another search gave me the missing pages:
- https://books.google.com.mm/books?...Mr.+Maingy+-+BURMESE+CUSTOMARY+LAW ...
=bl&ots= ... =onepage&q&f=false 190314- https://books.google.com.mm/books?...Joshua+Child+-+Buxbaum... 190321
I still need the following: p073, 078, 080, p085 : UNTIL I CAN BUY THE PRINTED BOOK FROM YANGON, THEY WILL BE MISSING
PART 2. CUSTOMARY LAW AND THE FORMAL LEGAL INSTITUTIONS: INTERACTION AND CONFLICT - 065
Chapter 06.
THE EFFECT OF ANGLO-INDIAN LEGISLATION ON BURMESE CUSTOMARY LAW
I. Introduction
(p067-1)
The Coming of the British Rule
Burma lost her sovereignty to the British in 1885
and regained her independence [from the British]
in 1948. Thus, British rule over the whole
of Burma lasted sixty-three years, although, if
we take into consideration three years of Japanese
occupation during the Second World War, the period
of effective rule in Burma was only sixty years.
[UKT¶]
UKT 190314: The so-called "three year of occupation" is not entirely correct. The Imperial Japanese forces, aided by the hastily formed BIA (Burma Independence Army) by the Thirty Comrades headed by Thakhin Aung San. The Imperial Japanese government granted independence to Burma. The newly formed Burmese government under Adhipadhi (lit. Supreme Leader) Dr. Ba Maw, in which Thakhin Aung San became General Aung. The Axis powers immediately recognized Burma as an independent sovereign state. Burma then declared war on the America-Britain-France (the so-called Allies: but not allies of the Burma) and fought the Second World War on the side of the Axis powers. I, as a boy under 10, personally saw the atrocities of the war: being bombed and strafed by the American warplanes.
(p067-2)
It must, however, be mentioned that the establishment
of British authority in Burma did not mentioned that the establishment of
British authority in Burma did not take place all at once and the coming was not
as peaceful and honourable as the going; for the British government, which by
the beginning of the 19th century was already firmly established in India, had
to fight three costly wars with the Burmese before being able to take over the
entire country. These wars stretched over a period of more than sixty years. The
first Anglo-Burmese War was fought in 1824, in which native Indian troops were
used for the first time by the British to invade and subjugate a foreign
country. The British, by virtue of their superiority in naval power and modern
artillery, won the war as a result of which the Treaty of Yandabo was concluded
in 1826. Under this treaty the Burmese King had to code to the British
government the two costal provinces of Arakan and Tenasserim. ...
Having thus gained a firm foot-hold in Burma, the absorption of the whole country into the British Empire was just a matter of time. And although Article 1 of the Treaty of Yandabo 1 stipulates that "there shall be perpetual peace and friendship between the Honourable (East India) Company on the one part and His Majesty the King of Ava on the other" the British government did not find much difficulty in picking another quarrel with the Burmese King and consequently the second Anglo-Burmese War was fought in 1852 and the sizable territory of southern Burma consisting of Pegu, Rangoon, Bassein and Prome, was annexed to the British Empire. Finally, in 1885, the third Anglo-Burmese War ended in the banishment to India of the last of the Burmese Kings and the remaining territory of Burma was officially annexed to the British Empire early in 1886.
(p068)
Introduction of English Law
The first attempt at introducing the English legal system into British-acquired
territories in Burma was made in 1825 when one Mr. Maingy was sent to Tenasserim
under supervision of the Governor of Penang, then a Presidency of India. In the
"proclamation" which he issued on arrival at Mergui in September 1825, Mr.
Maingy declared inter alia that "proper measures shall be immediately adopted
for admimistering justice to you according to your own established laws so far
as they do not militate against the principles of humanity and nature equity."
1 ...
When, however, Mr. Maingy set about implementing the declaration, he found that administering justice "according to your own established laws" was easier said than done. The reasons appear to be quite simple. In the first place, Mr. Maingy was not acquainted with Burmese law and custom and the Burmese system of administering justice and he was for some time under the mistaken impression that "the Burmese Courts of Justice had no code of laws for their guidance" and that "all their decisions were arbitrary."2 This ignorance on the part of a British Commissioner is quite surprising in view of the fact that by the time Maingy arrived in Tenasserim Major Symes had already published the account of his first mission to the Burmese Court, 3 in which he observed that " the Birman system of jurisprudence is replete with sound morality, and is distinguished above any other Hindoo commentary for perspicuity and good sense" and that " it provides for almost every species of crime that can be committed, and adds a copious chapter of precedents, and decisions to guide the inexperienced in cases where there is doubt and difficulty." He added that laws were "in general conscientiously administered."4
In the second place, although there were numerous native officials of the late Burmese government who were experienced in the administration of justice, Mr. Maingy did not want to employ them, because "they possessed such unbounded influence over the natives that to reinstate them would greatly diminish the estimation we are now held in."5 Thirdly, the Burmese law and judicial procedure contained in the Burmese law books were all in the native language which Mr. Maingy
UKT 190316: I wonder who Mr. Maingy is. Is a real name or the title given by Burmese to an official which has been rendered back into English? Can it be
{mín:kri:} lit. 'the High Official" ?
(p069)
did not understand and he dismissed the whole system as "very complicated." He
therefore followed the easiest course by preparing his own " Code of
Regulations"; but to make allowance for local law and custom, he provided that "
there shall always be a person in attendance, skilled in Burman law and usages
and well acquainted with the decisions that would have been given by the late
judges."1 The Commissioner, his Deputy, or Assistant, was to sit as the sole
judge. Thus, Mr. Maingy attempted to strike a happy medium between the principle
of English law and the Burmese ideas of justice and a Jury was empanelled
whenever the Commissioner sat as a Sessions Judge. The result was that his
judicial proceedings assumed a remarkably Anglo-Burmese character.
When these proceedings came to the notice of the British Judges in Bengal, they were "scandalised and perplexed." 2
In one case both complainant and accused were sentenced to be tom-tomed round the town. They were husband and wife who had repeatedly troubled the court with frivolous complaints until neither the judge not the jury wanted to see any more of them.
In another case the complainant had been punished instead of the accused - a woman who had brought a charge of rape was convicted of seducing the accused to commit adultery with her.
An absconding husband was sentenced to be forcibly employed on Government work and part of his wages made over to his wife.
Similarly a thief was set to work until he should have made good money that he had stolen.
Another accused was sentenced to "exposure," that is, to stand up in the public bazaar with a placard showing his offience.3
These decisions may be bad is law, that is, English law, but they are sound in commonsense and certainly a more effective means of preventing and discouraging crime than the punishment provisions of the Penal Code. 4 But all this was more than the Honourable Judges could stand, and consequently, the administration of justice in Tenasserim and Arakan was placed under the direct supervision of the High Court in Bengal. This put an end to Mr. Maingy's way of administering justice "according to your own established laws."
The Court System Under British Rule
The organization of British courts in Burma had proceeded in
a haphazard fashion and was based more on expediency than on any systematic
plan. Up to 1862 the territories of Tenasserim, Arakan and the delta area, which
were taken over by the British after the first and
(p069end-p070begin)
second Wars, were separately administered by Commissioners, who were entirely
independent of each other and subject to no common local administrative head.
But in January of that year, the Foreign Department of the Government of India
took steps to reorganize the administrative structure. The three areas mentioned
above were united into a single unit known as "British Burma" and placed under
one Chief Civil Officer called the Chief Commissioner. This official was
invested with the powers of a Judicial Commissioner with jurisdiction to hear
appeals from the Divisional Commissioners. Two separate courts were also
established at Rangoon and Moulmein " with full powers of Civil and Criminal
jurisdiction analogous to those exercized by the Recorder of Prince of Wales
Island and Singapore with the exception of the power to try cases in which
European British subjects and charged with capital offence. "1 In
1872 the Court of Judicial Commissioner of Lower Burma was established at
Rangoon and the Chief Commissioner was relieved of his judicial duties. This
marked the separation of the judiciary from the executive although at lower
levels the Commissioners and Deputy Commissioners continued to exercise both
executive and judicial powers. In 1900 the Court of the Judicial Commissioner
was transformed into the Chief Court of Lower Burma as the highest civil and
appellate court. ...
Imposition of "Direct Rule"
When Upper Burma was occupied by the British
and Indian forces in the Third Anglo-Burmese War,
the problem before Lord Dufferin, the
Governor-General, was how to administer the
country. In his Minute dated the 17th February 1886
submitted to the Secretary of State for India, he
said he had considered two alternatives: The first
alternative was to transform into a
"buffer" state.
[Lord Dufferin's considerations for British-Burma]
[#1. Native King:] Under this arrangement, the Native Alompra dynasty would have remained upon the throne; the ruling Prince, like the Amir of Afghanistan, would have been perfectly independent in matters of internal administration, and all that we should have required would have been the right to supervise his external relations.2
[#2. British Resident:] The other alternative was to make Burma "a fully protected State, with a native dynasty and native officials, but under a British Resident, who should exercise a certain control over the internal administration as well as over its relations with foreign Powers." He had even considered the possibility of (p.070end-p071begin) permanently placing the civil administration of the country in the hands of British officers, at the same time that the position occupied by its former kings was assumed by a Llama or some similar ecclesiastical dignitary such as is found in other Buddhist States. By this means it might be possible, I imagined, to give a certain amount of satisfaction to that national sentiment with which the Burmese, in common with all other people, must be credited, to console them for the disappearance of their own Royal House... 1
(p071continue)
However, on his visit to Burma in the same year Lord Dufferin found the Burmese
too patriotic and the possibility of the French extending their influence to
Burma so strong, that he finally recommended "annexation pure and simple, and
the direct administration of the Province by British Officers" as offering "the
best prospect of securing the peace and prosperity of Upper Burmah and our own
Imperial and commercial interests." (fn2-p071). This recommendation was of
course accepted by the "Home Government."
Thus, by historical accident, Burma became an integral part of what was then
known as "British India." The authority of the Chief Commissioner of Lower Burma
was extended to Upper Burma. In 1897 both Lower Burma and Upper Burma were
"promoted" to the status of a Province of India and the Chief Commissionership
was raised to a Lieutenant-Governorship with a "Legislative Council." A year
before, the Court of the judicial Commissioner for Upper Burma had been
established. In 1922 the high Court of Judicature at Rangoon was established by
Letters Patent consolidating the powers and jurisdictions of both the Chief
Court of Lower Burma and the Court of the Judicial Commissioner of Upper Burma.
When Burma was formally separated from India in 1937,
* [See
UKT personal note] [UKT¶],
*UKT 180422: In 1937, I was 2 years old. Child as I was, I could speak Bur-Myan very well and knew a few words and sentences of English. I remember my father U Tun Pe having to take on the duties of a polling officer in a referendum to decide the question of "remaining" as a part of India
{twè: ré:}, or "separation"
{hkwè: ré:} which led to the separation from India in 1937.
[UKT¶] a new High Court replacing the High Court of Judicature was established under the Government of Burma Act, 1935 with headquarters at Rangoon. This High Court continue to function when Burma became an independent Republic in 1948 but a new set of Judges. A Supreme Court was also established as the final Court of Appeal with powers previously exercised by the Judicial Committee of the Privy Council.
II. Codes versus Custom
Indian codes for the Burmese
The logical result of direct rule as an Indian Province was that the codes, statutes and regulations passed by the British Governer- (p071end)
(p072)
General of India and meant for the Indians came to be extended to Burma
as a matter of course. [UKT ¶]
UKT 190314: extended to Burma as a matter of course
I have the good fortune to work as a Lower Division Clerk (LDC) at the Accountant General's Office (AG) in Rangoon in 1951-52. At that time English was still the Official Language of Burma.I was placed in the Pension Section (Pen 1: there were 3 subsections, Pen 1, Pen 2, and Pen 3.) U Thaung Tin was the superintendent, and I sat a few desks away facing him. Because of my command of English, I was given the task of working on what were known as Extraordinary Pension cases as a Junior Auditor. In that capacity I had to deal with the Bengal AG.
Bengal AG was directly "controlling" Burma AG before Burma's Independene. As an employee of AG, I had to attend classes to sit for Office Procedure Exam (OPE) where I learned the Fundamental Rules (FR), Civil Service Regulations (CSR), and Travelling Allowance Manual (TA). I, in the course of my work had to study the Orders from the Finance Ministry, Orders from the Auditor General (ArG), and Orders from the Accountant General (AG).
By that time the British-Indian government had produced a large amount of legislation for India. According to Mr. Justice Baden-Powell, in the days of the "Regulations" (1793-1834) on less than 596 regulations of the Bengal Code were passed. The number of Acts passed from 1834 to1862 was 793 and those form 1862 to the close of 1883 amounted to 546,1 Among the codes and statutes extended to Burma were: The Indian Penal Code, the Criminal Procedure Code, the Code of Civil Procedure, the Indian Contract Art, the Transfer of Property Act, the Indian Evidence Act, the Specific Relief Act and the Indian Trust Act, to mention just a select few.
This massive monument of law has been built up in little more than a quarter of a century by a "legislature" whose very existence is unknown to many well-educated persons and the men, who planned and drafted these Codes, who discussed and amended and passed them, are almost unknown in England even by name.2
All these codes and statutes with the exception of those dealing with family and ecclesiastical matters were based on English law. This was "as unjust and impolitic as it would be to establish the Muhammedan or Hindoo in England. "3 But if the law introduced was modern English to be found in the latest statutes and rulings, the situation would have been better. However, Mr. Justice Baden-Powell has told us that the English law incorporated into these codes and statutes was "that of a period when the law itself was the most technical, the least systematic and the least founded on general, equitable and coherent principles that the world has ever seen."4 Sir Joshua Child, Chairman of the Court of Directors of the East India Co., had described the laws of England as " a heap of nonsense, compiled by a few ignorant country gentlemen, who hardly knew how to make laws for the good of their own private families, much less for the regulating of companies and foreign commerce."5 In England public opinion has prevented the evil effects of the law from being felt, but "where English law has been introduced into countries where this public opinion or a free press did not exist, the evil effects have been lamentable."6
The most common criticism made against English legislation in India is that they are not prepared
(p086begin)
The case had, therefore, to be referred again to another Full Bench of five
Judges none of whom participated in the previous Reference. This time the
opinion was unanimous, all the five Judges answering the question in the
negative, namely, that the sale of immovable property to a Burmese Buddhist monk
was not void on the ground that a monk was prohibited by the rules of the Vinaya
from entering into such pecuniary transactions and that a Buddhist monk was not
disqualified from contracting under section 11 of the Contract Act. (fn01-p086)
The ratio decidendi of the decision is; ...
The definition of the word "laws" in its juridical sense is that "laws" are rules of civil conduct enforced by the State. From this it follows that the rules of conduct as laid in Vinaya for the guidance of Buddhist monks cannot be deemed to be "laws" unless they are enforced by the State. According to section 13(1), Burma Laws Act, they are not enforced by the state except in cases in which questions regarding any religious usage or institution arise. A sale being a pure matter of contract is not " a question regarding any religious usage or institution." A Buddhist monk therefore is not disqualified from contracting by law within the meaning of s. 11, Contract Act. (fn02-p086)
Thus, by adhering strictly to the letter of the law and ignoring its spirits, the British Judges had, by judical legislation, struck down in one stroke the time-honoured rule, originally laid down by Lord Buddha and observed by millions of His disciples throughout the centuries, that "a rahan (monk) who does buying and selling is guilty of Nissagi pacitayam." (fn03-p086) No good Buddhist would appreciate the reasoning of the Full Bench. The only explanation one could think of is that to British Judges the "legal" always precedes the "reasonable" and private interest must come before social welfare.
"Justice, Equity and Good Conscience"
This phrase is very familiar, particularly to those who have
lived under the influence of English law. Its meaning is obscure and is as
variable as the colour of a chameleon. It is the convenient phrase put into a
statute to fill gaps in the law. Thus, if, in deciding cases, the courts can
obtain no help or guidance form legislative enactments or religious law books or
other authorities, the Judges are expected to act in accordance with "justice,
equity and good conscience." This usually means what each judge thinks best to
do in the particular case. But (p086end-p087begin)
for judges, who are either
British or British-trained, the phrase generally means principles of "English
law if applicable to the society and circumstances of Burma." (fn01-p086)
However, in the field of personal law such as marriage, divorce, inheritance and succession, principles of English law are hardly applicable. Thus, in a case dealing with the question of validity of a marriage between a Burmese Buddhist woman and a Chinese Confucian, section 13 (1) of the Burma Laws Act did not apply because one of the parties was not a Buddhist. So section 13(3) came into play and the question had to be decided according to justice, equity and good conscience. But to apply the principles of English law to such a case would be ridiculous. Chinese customary law would not be applicable either, because it was foreign law and to apply it would not be in accordance with justice, equity and good conscience. The court, therefore, arrived at the same result by applying Burmese customary law as lex loci contractus and the marriage was held valid. 2 This case was decided iin 1937 by which time the practice of applying Chinese customary law to Burmese Chinese marriages had already stopped thanks to the ruling of a Full Bench in the case of Ma Yin Mya v. Tan Yauk Pu wher Rutledge, C.J. held that (1) the Burmese Buddhist Law regarding marriage was prima facie applicable to Chinese Buddhists as the lex loci contractus and (2) that to escape from the application of Burmese Buddhist law a Chinese must prove that he is subject to a custom having the force of law in Burma and (3) that the application of such custom would not work injustice to the Burmese woman. 3
IV. Conclusion
It has been said that " the impact of English law has not affected appreciably the ancient Hindu, Mohammedan and Buddhist Laws..." 4 However, the foregoing analysis would seem to have shown us that the introduction of English law into India and the wholesale and un-
fn01-p086 - See U Pyinnya v. Maung Law,
A.I.R. (1929) Rangoon 354. Section 11 of the Contract Act says: "Every person is
competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind, and is not disqualified from
contracting by any law to which he is subject." -
fn01-p086b / fn01-p086b2
fn02-p086 - Id. at 362 -
fn02-p086b
fn03-p086 - See the opinion of Maung Ba, J. Ibid
. - fn03-p086b
*UKT 180422: I was by then 2 years old. Child as I was, I could speak
Bur-Myan very well and knew a few words and sentences of English. I remember
my father U Tun Pe having to take on the duties of a polling officer in a
referendum to decide the question of "remaining" as a part of India
{twè: ré:}, or "separation"
{hkwè: ré:} which led to the separation from India in 1937.
A little personal joke on me was that as responsive child, my parents as well as elders would ask me in endearment:
"My little Puppy dog
{ko hkwé:lé:}, what will you be when you grow up."
I used to answer:
"I'll be Sir J A Maung Gyi".
However, during the campaign of
"I'm afraid of the banging of tin-cans!"
The next, political event I had to endure, was the outbreak of WWII and
Burma being occupied by the Japanese Imperial Army. Japan granted us
independence when as a sovereign nation, with a fully armed force in 1942. A
few minutes later, Burma joined the Axis Powers and fought the Allies, by
declaring war. See a BBC documentary of the event in TIL HD-VIDEO library,
in Burma Section:
-
BurmaIndependence1942<Ô> (link chk 190307)
A traumatic event I cannot forget is being bombed and strafed at by the Allied (not our allies) airplanes during the water festival of 1945 in Kungyangon.
Go back UKT-personal-note-b
End of TIL file