Lawin Burma

   (Precolonialand Modern)

   During their colonial occupation of Burma, the British claimed that they were bringing the blessings of the rule of law to the country, but Burma already had well-established legal institutions going back at least to the Pagan (Bagan) Dynasty. In Thant Myint-U's words, "the Irrawaddy basin possesses one of the oldest legal traditions in the world" (The Making of Modern Burma, Cambridge: Cambridge University, 2001, p. 87). The model for Burmese law was the legal code of Manu, the original lawgiver in the Hindu Indian tradition, but the major legal writings, Dhammathat (Dharmasastra in Sanskrit), were compilations of customary law and precedent that reflected conditions in Burmese society. Some 36 Dhammathats were compiled between the first millennium CE and the 19th century, of which 26 were produced during the Konbaung Dynasty, which seems to have been a golden age for Burmese law.

   In addition, Burma seems to have been the only Asian country in which a class of professional lawyers or legal representatives (shay nay) was recognized. Trained as apprentices by experienced lawyers, they accepted private clients and argued their cases before royal judges. Civil law (lawka wut) was distinguished from criminal law (raza-wut, dealing with violations of the "king's peace"); there were sophisticated rules of evidence; and witnesses were required to swear an oath, perjury being threatened with terrible punishments (in the next life, if not in this). Lawyers wore special dress in court, collected standardized fees (plus a percentage of the value of the issue under judgment), and lived in a special quarter of town.

   During the Konbaung Dynasty, the myowun heard criminal cases, and tayathugyi presided over civil cases in provincial administrative centers; in the royal capital, the Hluttaw functioned as the court of final appeal. Although bloody executions were common during times of struggle over royal succession (e.g., when King Thibaw succeeded King Mindon in 1878), Buddhist precepts precluded capital punishment on other occasions. Sometimes members of the Sangha intervened to save someone from execution.

   British annexation of Burma during the 19th century led to the imposition of a foreign legal model, and Burmese customary law was restricted to three "native law zones": religion, marriage, and succession (inheritance), which became known as "Burmese Buddhist law" or "Dhammathat law." By the early 20th century, a class of Britisheducated Burmese attorneys, nicknamed the "barristocrats" because of their prestige and high social position, had become prominent in political as well as legal life. They included Ba Maw, his brother Ba Han, Sydney Loo Nee, and Mya Bu, the latter serving as prime minister in the wartime, pro-Japanese government of Ba Maw. Under British rule, the Burmese became a litigious people, freely resorting to the courts to solve all manner of disputes.

   The British-style legal system, including the tradition of the independence of the judiciary, remained largely intact during the period when U Nu was prime minister. However, after Ne Win established the Revolutionary Council in March 1962, it was steadily undermined. On the advice of Dr. Maung Maung, who was the most influential legal expert during the Ne Win period (1962-1988), the entire legal system was reformed in 1972, creating a system of socialist legality in which the courts were subordinate to the Burma Socialist Programme Party (BSPP), the revolutionary vanguard party. The judiciary consisted of People's Courts, whose officials were not legal professionals (though they accepted the nonbinding advice of such professionals) but were lay judges chosen by the BSPP. On the central government level, the judiciary was controlled by the Council of People's Justices. Lawyers became People's Attorneys, paid by the state and under the control of the Council of People's Attorneys, operating "law offices" on the state/division and township levels. Both Councils were responsible to the State Council and the Pyithu Hluttaw. After the State Law and Order Restoration Council (SLORC) was established in September 1988, the Constitution of 1974, which defined the structure of the judicial system, became inoperative, and the SLORC junta ruled by means of decrees. According to SLORC Announcement No. 1/90, it exercised exclusive judicial power. If natural law concepts-that independent jurists could arrive at proper decisions through the exercise of reason and impartiality-were reflected in both the dynastic and British legal traditions, after 1962, and especially after 1988, a crude legal positivism was exercised; that is, in John Austin's words, law was quite literally the "command of the sovereign."

   See also Maha Thamada.