LEGAL ISSUES ON BURMA JOURNAL No.8 - APRIL 2001
BURMA LAWYERS' COUNCIL
Law and Religion in Burma
Peter Gutter*
Burma was annexed by the British through the three wars in 1824-1826, 1852-1853 and 1885-1886. When colonial rule started, it was British policy (as in other British colonies) not to interfere with local religion. The British did not want to create further confrontations. If they had not adopted this policy, there would have been more uprisings and more discontent among the people. And that would have endangered the position of the British. The policy reflected the experience of the colonial administrators in the implementation of colonial rule in India in the 18th century.
The experience gained was included in the provision of the Charter of Mayor Courts granted in 1753. This Charter indicated a reservation to the native residents in the British territories in India of their laws and customs.1 The policy was repeated in the provision of Warren Hastings’ 23rd rule of 1772. It said with regard to civil rights that in cases of marriage, inheritance, caste, and other religious usages the laws of the Koran with respect to Muslims, and those of the Shaster with respect to Hindus, should be invariably adhered to.
This guideline of colonial policy was included in the Act of Settlement in 1781. The Act confirmed the preservation of the religious laws of Hindus and Muslims. It directed that all matters relating to inheritance, succession and contract were to be determined for Muslims and Hindus by their own respective laws; and where only one of the parties was a Muslim or Hindu by the laws of the defendant.
The Charter Act of 1833 referred to such laws. It declared that they should be ascertained, enacted, consolidated and amended wherever necessary. In this regard a Law Commission was established. This Commission knew that it would be unattainable to bring all people in India under the same law. Therefore the principle of the Commission was “uniformity where you can have it, diversity where you must have it, but in all cases certainty”.2 However, the task of codification was never completed.
Provisions with respect to religion were found in most of the Acts of the several provinces of India.3 Religious customs having the force of law were also recognized in the laws of the Punjab.4 The policy was again put into force in the Government of India Acts of 1914 and 1935. So the preservation of laws in the area of religion was not a new concept when colonial rule began in Burma.
Law, Religion and the British
When the British further developed the administration of civil justice in Burma, Buddhist Law first appeared in section 6 of the Burma Courts Act of 1872.5 This section made Buddhist Law the guide of the British courts in Burma, especially when they had to deal with succession, inheritance or marriage in cases where both parties were Buddhists. The section did however not apply to Buddhist laws that had been altered or abolished by legislative enactment, or to Buddhist laws that were opposed to any custom having the force of law in British Burma.
A similar provision was again made in the Burma Act of 1889. In all these Acts, however, no provisions were made with respect to other religions. This is surprising because colonial rule brought with it a large number of people from China and India. The resulting variety of religions needed accommodation in laws, but this was mentioned only briefly in the Burma Laws Act of 1898. This Act was not comprehensive but made Buddhist Law (Burmese Customary Law) a statutory, religious and non-territorial law.
The preservation of Islamic Law was not complete. Apart from the Shariat Acts, the effect of Islamic Law was to apply this only to gift in Madhya Pradesh, East and West Punjab, Ajmer-Merwara and Oudh. It was also applied as the law of the parties or of the defendant in the Mufassal of Bombay and the Courts of Rangoon. But it was not applied in the rest of Burma. Some courts in India had applied Islamic Law to gifts as the rule of justice, equity and good conscience. The Rangoon High Court held that this was an erroneous assumption. The reason for this decision was as follows: in Burma, Islamic Law was applied to gifts not as a rule of Islamic Law but as a rule of justice, equity and good conscience. There was no rule of Islamic Law to be saved by section 129 of the Transfer of Property Act, which did not operate to save a rule of justice, equity and good conscience. Therefore section 123 applied.6
Similarly, the preservation of Buddhist Law was not complete. As in India, not all people in Burma were Buddhists: there were also Hindus, Muslims, Portuguese and Armenian Christians, Parsees, Sikhs, Jains and Jews. The tendency of the Burmese Courts was to apply to all these groups the principles of Warren Hastings’ rule, in so far as they showed a disposition to place themselves under British law.
Buddhist Law
In the case of Muslims, though there may be different schools or sects, there is still one body of Islamic Law for all Muslims. The same applies to the body of Hindu Law for all Hindus. However, “Buddhist” is a much wider term and may be somewhat misleading in the context of law, as it includes many nationalities other than Burmese. There is no Buddhist law for all Buddhists, although the Vinaya7 has remained largely the same throughout Buddhist countries. Although this is largely concerned with the life of Buddhist monks and nuns who in practice keep aloof from worldly affairs, it would be a mistake to think of the Vinaya as nothing more than minutiae about monastic dress and monastic eating times. Samantapasadika (CPD 1.2, 1)8 is the great 5th century commentary on the Vinaya, allegiance to which practically defines what it means to be a Theravada Buddhist. One third of it is devoted to the discussion of just three of the 227 rules of the Patimokkha9, those concerning theft, murder and unlawful sex. As long as Southeast Asian authors of law texts have been interested in regulating these three activities, they have borrowed from the Vinaya.
If the Buddhist Law for those living outside the monasteries, as accepted by the Courts of Burma, was Burmese Buddhist Law10, there is the legal question as to whether it would be obligatory on the part of the courts in Burma to apply it to Buddhists from other countries.11 And then there is another legal question, concerning the difference between the terms Burman and Burmese. “These two English terms were used interchangeably in colonial times. It was only in 1935 when a distinction arose. ‘Burman’ came to be the designation of the ethnic majority and ‘Burmese’ that of inhabitants of the country as a whole”.12
Although Burmese Buddhist Law has undergone changes, the original content remained basically the same. Under British colonial rule it did not extend beyond the Buddhist people to whom it applied. Most ethnic minorities in Burma were under a separate judicial and administrative system; they had their own substantive and procedural laws in contradiction to the laws that applied elsewhere in Burma. According to the Burma Laws Act of 1898, for example, the civil, criminal and revenue administration of each of the Shan States was vested in the respective Chief of the State.13
British judges responsible for the administration of civil justice in Burma did not always fully understand Buddhist Law. Therefore they often used a two-volume reference work of Burmese legal treatises called “The 36 Dhammathats”. 14 Sir John Jardine, the Judicial Commissioner of British Burma, researched the area of Buddhist Law even further.15 Eventually his work proved invaluable to British judges in Burma. In his law research he found that the Buddhist law called Manugye was most complete. It was written in Burmese prose and was translated by the Principal Assistant to the Commissioner of Tenasserim, Richardson. It was published in 1847 in both English and Burmese versions. It was thus the first translation in English and one of the fullest compilations of Burmese Buddhist Law, existing even before the occupation of Lower Burma. In 1951, during a case before the Supreme Court, the reliability and viability of the Manugye were finally challenged. Due to errors in the translations of the Manugye, the Court had great difficulty to appraise the authority of Buddhist Law.16
Religious and Customary Law
When Burma was included in India as a part of the British empire, there was a question as to whether the principle of international law in relation to Buddhist Law would apply in deciding the validity of marriages between Burmese Buddhists and Muslims or Hindus. The answer was beset with difficulties, as there was no provision regarding mixed marriages in section 13 of the Burma Laws Act of 1898. The courts in Burma had been frequently called upon to decide the validity of mixed marriages, especially when questions arising from divorce or succession were involved. In fact, no marriage is legally possible between a Muslim man and a Buddhist woman or vice versa. If there is a conversion to Islam however, a legal marriage can be contracted with any person irrespective of his or her previous religion.17 The Holy Koran permits polygamy as a legal institution: a man may have up to four wives.18 During colonial rule in Burma, most Muslim men who could afford more than one wife took Burmese women as their wives, in addition to their Muslim wives. This did not raise any legal questions, however Burmese wives lost all rights which they had as Burmese women, such as joint ownership of property and a preferential right to inherit. The legal questions only arose when cases of divorce were brought to the courts. The Holy Koran makes no provision for wives to divorce their husbands (a right normally reserved to husbands) except when they fear abuse.19 The Burma Laws Act of 1898, remaining in force even today, allows Islamic Law to form the rule of decision in such cases.20
In mixed marriages between Burmese Buddhist women and Hindus, Burmese women were in a worse position. Many Indians migrated to Burma and it often happened that Burmese women, not knowing anything about Hindu Law and customs, married with Hindu men and subsequently lost all the rights conferred on them by Burmese customary law.
The Sikhs in Burma were governed by Hindu Law. Although the Sikh religion is a blend of Hinduism and Islam, its basic tenets are similar to those of Hinduism (however without caste distinctions).
Section 13 of the Burma Laws Act of 1898 says nothing of the law applicable to Christians, as most of their cases were regulated by British law. According to Christian Marriage Act XV of 1872, a legal marriage between a Burmese Buddhist and a Christian could be contracted either by means of a Christian religious ceremony or by civil contract before a Registrar. Under this Act, conversion was not necessary but a Buddhist could not sue a Christian for a divorce under the Indian Divorce Act.
By section 13, Burmese Customary Law became the Buddhist Law. As a result, Burmese society was divided into a number of religions as well as being geographically divided by other regulations. As the society was thus divided, communities were strongly entrenched by religion.
This situation was known to the colonial government as well as to Burmese nationalists and judges. As a result, the Special Marriage Act of 1872 was amended in 1923, making intermarriage easier. This was a step forward but still not entirely satisfactory. Hence, a new Act came into force in 1939,21 the predecessor of the Buddhist Women’s Special Marriage and Succession Act which was drafted and passed by parliament in 1954,22 the only Special Marriage Act in Asia which protects the rights of Buddhist women. Section 21 of this Act made provisions for the registration of marriage, thereby greatly improving the position of the Buddhist woman who marries a non-Buddhist man. If a non-Buddhist man and a Buddhist woman live together in such manner as would raise the presumption that they are man and wife by Burmese custom, the Act establishes that they are lawfully married from the time they started to live together, even if there is no written document or registration. In such a case, they can formalize the marriage by registration or they can live together as presumed by the Act. Either way, their marriage is governed by Burmese Customary Law.23
The Buddhist Women’s Special Marriage and Succession Act says the following with regard to conversion: If a woman who is a citizen of Burma converts to Buddhism while she is married, then the whole family comes under Burmese customary law.
While the different religions in Burma were given the freedom to settle affairs through their own laws, the accountability of any religious trust (not only of Buddhist monasteries and pagodas, but also of mosques, churches, synagogues and Hindu temples) was ensured by Section 92 of the Civil Procedure Code of 1909.24
The Buddhist Monastic Order
Now that a lot has been said about the laws for those living outside the monasteries, it becomes interesting to consider the Buddhist monastic order (which is called Sangha in Pali, or Tangha in Burmese). This has always been a powerful institution in Burma. Already in the 19th century, a Roman Catholic bishop remarked, “When we speak of the great influence possessed by the religious Order of Buddhist monks, we do not intend to speak of political influence. It does not appear that in Burma they have ever aimed at any share in the management or direction of the affairs of the country. But from a religious point of view alone, their influence is a mighty one. Upon that very Order hinges the whole fabric of Buddhism. From it, as from a source, flows the life that maintains and invigorates religious belief in the masses that profess the creed. We may view the members of the Buddhist Order as religious, and as instructors of the people at large, and principally of youth. In that double capacity, they exercise a great control and retain a strong hold over the mind of the people”.25 This is why Burmese rulers have consistently attempted to control the Sangha, thereby not hesitating to either use or abuse the law.
At its best, the Buddhist monastic order has two main characteristics: the constant cultivation of mindfulness concerning human existence and complete accessibility to the people. Both are equally important. Social contact with and within the Sangha is essential if the ethical and spiritual values of Buddhism are to be transmitted to the surrounding society. Equally essential is the faithful practice of the contemplative life. In this way, although it is not supposed to interfere with state affairs, the Sangha assists the state in maintaining peace and prosperity, thus making it unnecessary and unethical to devise laws to bring the Sangha under state control.
In accordance with the last words of the Buddha, the Dhamma26 is to be the monk’s only guide. A Buddhist monk has given up the world and should therefore not be active in politics. Since 1921, however, several associations of monks, with political objectives have been created to exist along with the traditional Burmese Sangha, such as the YBA27 and the KSA28. The official hierarchy of the Sangha has always taken the opinion that political activity is incompatible with monastic discipline.29
U Nu and Freedom of Religion
Although in October 1961, under the U Nu government, a law was passed that established Buddhism as the state religion, other religions were not threatened, as their existence was guaranteed in Article 21 of the 1947 constitution. Article 21 said that, “The State recognizes the special position of Buddhism as the faith professed by the great majority of the citizens of the Union [of Burma]. The State also recognizes Islam, Christianity, Hinduism, and Animism as some of the religions existing in the Union at the date of coming into operation of this constitution. The State shall not impose any disabilities or make any discrimination on the ground of religious faith or belief. The abuse of religion for political purpose is forbidden (…)”. At the same time, Article 20 of the 1947 constitution was amended upon the request of leaders of other religions: freedom of expression was added in terms of religious practices. The U Nu government continued its support for other religions. It even arranged visits of Burmese Christian leaders to the Vatican and Burmese Muslim leaders to Saudi Arabia.
The Monks and the Military
In 1962, when the Burmese armed forces took direct and exclusive control of the government, the 1947 constitution was abolished. The military did not support the recognition of Buddhism as the state religion, because this (together with the demands of minority leaders for federalism) was perceived as a threat to the union’s very existence. Despite his reliance on Buddhist concepts and his rejection of Marxist dialectics, General Ne Win was secular in outlook. He believed that the Revolutionary Council (the name of the Burmese military government at that time) ought not to favour any particular religion. This proved difficult because of the traditional closeness of state and Sangha. Because the vast majority of Burmese people are Buddhists, the generals saw Buddhism as a useful state ideology in order to build up Burmese nationalism. Paradoxically, the Sangha was immediately seen as a threat to military rule, not only because the Sangha was so powerful and well-established, but also because it represents the Buddhist religion which in no circumstances allows the taking of life— making the whole idea of an army repugnant. The monks are still among the most active of Burma’s people in the struggle for the restoration of democracy and human rights.
The junta has never hesitated to suppress Buddhist monks who are suspected of being against military rule. Between 1963 and 1967, the Revolutionary Council issued a number of directives restricting the freedom of monks, such as, “Monks who want to travel need a Movement Order [sic] from the local military authorities”30, or, “Anyone who wants to become a monk needs permission to do so from the military”. In April 1964, all Sangha groups were ordered to register with the government. This measure was taken in order to purge the Sangha of ‘political monks’. A directive from 1971 said, “The appointment of an abbot must be countersigned by the local military committee”. All these edicts remain in effect at the present in Burma. And although the 1974 constitution included several provisions relating to religious freedom, these were subject to limitations and even punishable. Article 153 of the 1974 constitution, for example, says that, “…every citizen shall have the right to freely … profess the religion of his choice. The exercise of this right shall not … be to the detriment of national solidarity and the socialist social order (…)”31 In order to curtail religions even further, the military government has been enforcing several laws such as the Emergency Provisions Act of 1950, the Unlawful Association Act of 1908 (amended in 1957), the State Protection Act of 1975 (amended in 1991), and the Sangha Law of 1990. Accordingly the Sangha is being watched by the Burmese military intelligence agencies.
Under the Emergency Provisions Act, anyone who “…violates or infringes upon the integrity, health, conduct and respect of State military organizations and government employees towards the government, or causes or intends to spread false news about the government, or causes or intends to disrupt the morality or the behaviour of a group of people or the general public”, is liable to imprisonment for up to seven years. Because he had written an article about the Buddhist tenet of non-violence, a monk from Mandalay was sentenced to three years under the Emergency Provisions Act in 1991.
Under the Unlawful Association Act of 1908, amended in 1957, “anyone who has been a member of, or contributes to, or receives or solicits any contribution towards any association … which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, …[or] which has been declared unlawful by the President of the Union [of Burma]”, is liable to imprisonment for up to five years. This Act gives unrestricted power to the military government to declare any association unlawful. Because he was suspected of having had connections with the MSA (Mon Sangha Association, which claimed to desire an independent Mon state, but only in a peaceful way), a monk from Maymyo was sentenced to four years under the Unlawful Association Act in 1989.
The State Protection Act of 1975, amended in 1991, is to safeguard the State against the danger of “destructive elements”, regardless of what these may be. “Any person suspected of having committed, or is about to commit, any act which endangers the … security of the state or public peace and tranquility, can be kept in detention without trial for a period of up to five years by executive order”. This Act, being vague and over-broad, and excluding the appeal to review detention, has not only been used against the Sangha but also against Muslims and Christians. Hundreds of thousands of Muslims living in Arakan and Karen states are suffering from military suppression. The military regime believes that the Muslims, like the Christians living in the mountainous Chin, Kachin, Kayah and Karen states, are supporters of the ethnic insurgency movements. 32 This belief fuels their suppression.
In addition to the aforementioned laws, the military government enforces the Village Act of 1908 and the Towns Act of 1907, two pre-independence statutes allowing forced labour. Military officials and security forces often compel persons, especially in rural areas, to contribute money, food, or uncompensated labour to state-sponsored projects to build, maintain or renovate Buddhist monasteries and pagodas.33 The military junta even went so far as to claim that forced labour is considered as ‘a noble act of charity’ in a Buddhist country.34 This is not only a serious insult to the Buddhist religion but also a gross affront to human dignity. In August 1994, the army used the Village and Towns Acts to raid Buddhist monasteries in Mandalay, thereby relocating hundreds of monks who were forced to work at agricultural projects. Many other monks were forced to disrobe and dredge the moat at Mandalay Palace to the extension of the runway at the local airfield.
The SLORC (State Law and Order Restoration Council, the name of the Burmese military government at that time) issued Order 6/90 on 20 October 1990 dissolving “illegal” monk organizations while reiterating the primacy of the official hierarchical Sangha organization formed since 1980. It was followed by Order 7/90 on the next day, declaring that any monk or novice who contravened regulations against non-religious activities would be dissociated from the Sangha and would be liable for prosecution; and authorizing military commanders to try Buddhist clergy before military tribunals for “activities inconsistent with and detrimental to Buddhism”. The following day security forces raided over 130 monasteries in Mandalay. Those deemed to have contravened the law were arrested, and unethical and illicit activities of the “robed persons” (in the eyes of the military, they no longer qualified as “monks”) were exposed to the public in a media campaign in the following days.
The Sangha Law
In a move to further consolidate such actions against the Sangha, SLORC Law 20/90, also called the Law Concerning Sangha Organizations or Sangha Law, was put into force on 31 October 1990. This law is clearly an intrusion of the state in Sangha affairs. Subsequently, more than 200 monks and novices were found to be guilty of contravening these rules and regulations and were stripped of their monkhood.35 Here the 18 articles of the Sangha Law are given, together with some remarks.
Article 1 of the Sangha Law gives its full name in Burmese: “Tangha Ahpwe Aseewe Sainya Upedeih” (Law Concerning Sangha Organizations). Article 2 of the Sangha Law explains the terms Theravada36 and Sangha, and sees the regulations of the Sangha as laid down by the General Assembly of the Sangha.
Article 3 of the Sangha Law says, “There shall be only one Sangha organization, embracing all the Buddhist sects [sic] according to the rules”. Some remarks: In each of the seven states and seven divisions of Burma, a group of 120 Sayadaws37 choose the eventual members of the Sammuti Sangha Council that is consisting of 1,400 monks. This Council, also called the General Assembly, represents the entire Sangha of Burma. From this Council, 300 monks are chosen by means of consensus, and from among them, the 47 members of the Sangha Maha Nayaka38 State Council are elected. The Supreme Patriarch of Burma is the chairman of this state council. This is considered Burma’s highest advisory committee for religious affairs. The Burmese Sangha consists of nine Nikayas (branches), of which the Thudhamma and the Shwegyin Nikaya are the largest. The others are the Weiluwun Nikaya, Dhammanudhamma Mahadwaya Nikaya, Dhammavinayanuloma Muladwaya Nikaya, Dhammayuttika Nikaya Mahayin, Catubhummika Mahasatipatthana Hngettwin, Ganavimut Gado and the Anaukchaung Dwaya. Article 3 of the Sangha Law uses the word “sects”, however this is not the most appropriate term for the Nikayas since the existence of different Nikayas has not resulted in the development of separate doctrines.39 The Supreme Patriarch of the Sangha, the highest ranking monk in Burma, may come from any of these Nikayas.
Article 3 of the Sangha Law is not the first attempt of the government to interfere with the Nikayas. In 1886, the British confirmed power of jurisdiction to the Nayaka Council in Mandalay, thereby formalizing the power of the Supreme Patriarch. The Nayaka Council, not the Nikayas, got the authority to take up civil cases against monks, e.g. cases of inheritance. But in 1935, the High Court in Rangoon moved away all legal power from both the Nayaka Council and the Supreme Patriarch: even religious matters would have to be settled by a civil court. Burma’s religious jurisdiction was thus deprived of its remaining importance, because the High Court did not recognize the authority of the Supreme Patriarch on the grounds that his office was not mentioned in the Vinaya.40 In 1950, an Act was passed giving power to a Buddhist Tribunal to deal with civil cases again. All members of this tribunal had to be monks, who could come from any Nikaya. Law No. 1 of 1965, passed by the Revolutionary Council, withdrew all the powers given to the Sangha by the previous acts. The Revolu-tionary Council found it not reasonable to base laws on Buddhist tenets. Law No. 3 of 1980 added to this that all decisions by the Sangha Maha Nayaka State Council must be submitted to Court for enforcement. Notification Letter No. 1 of 1984, issued by the military government, mentioned the Nikayas as the associations within the Sangha that should be disbanded, because “…they are politically active. Monks should not be politically active”.41 In comparison, Article 3 of the Sangha Law is rather vague with the statement “according to the rules”, leaving the question unanswered whether the existence of the nine Nikayas is ruled out or not.
Article 4 of the Sangha Law says, “All monks are members of this Sangha, the Union of Burma Sangha”. Some remarks: There are no other options. Article 4 makes it easy for the military government to disband the various associations of monks that are suspected of being politically active. Article 5 of the Sangha Law says that the nine Nikayas “…are not allowed to be separate groups unless their own rules are subject to the central body of the Sangha. The nine Nikayas according to their admissions can follow the regulations subject to the regulations as laid down by the central body of the Sangha”. Some remarks: This brings the various groups within the Sangha under tight government control, creating a small next step for the military government to abolish the Nikayas completely.
Article 6 of the Sangha Law says, “Any local organizations shall be within the Nikayas mentioned in Article 5”. Some remarks: This means that the government says that a tenth Nikaya cannot be set up. Although according to the Vinaya there should be no attempts to create division in the Sangha, there is to a certain extent the possibility to create schools within the Sangha, when the monks consider this necessary by joint unanimous vote.42 The Buddhist monastic order has a long history of basing major decisions on collective discourse.
As for democracy as a procedure of decision making, we find in the Buddhist tradition a strong recognition of the need for consensus. The Dalai Lama said, “The Vinaya rules of discipline that govern the behaviour and life of the Buddhist monastic community are in keeping with democratic traditions. In theory at least, even the teachings of the Buddha can be altered under certain circumstances by a congregation of a certain number of ordained monks”.43
The rules of organization of the Sangha create a system of democracy.44 On the occasion of the fortnightly Uposatha45 ceremony, Sangha affairs were settled initially by the joint unanimous vote of all monks and towards the later part of the life of the Buddha by majority vote. If a matter was exceedingly complicated and the discussion deviated from the point, the question could be referred to a smaller committee. If that committee were unable to reach a decision, it would hand the matter back to the Sangha assembly to be settled by the majority vote. Unanimous consensus or majority vote of the Sangha assembly also settled the course of action to be taken on monks who violated its regulations. Resolutions were moved and procedure decided usually by the eldest monk, but if he did not know what to do, by the most learned and competent one.46 In this sense the monastic regulations of the Vinaya made the seating hierarchy within the Sangha dependent upon the length of service only. Decisions concerning the organization of the Sangha should be made by the Sangha, based on the Vinaya and not on laws issued by the government.
Article 7 of the Sangha Law says that the ‘sects’ [sic], mentioned in Article 5, have got the liberty to unite among themselves by ‘consent’ [sic]. Some remarks: The word ‘consent’ refers to giving agreement or permission. The law does not say to whom the matter should be referred in order to get permission. The word ‘consensus’ should have been used instead. But in spite of the fact that this is important in the Vinaya, there is no word in Burmese for ‘consensus’.
Article 8 of the Sangha Law says that “…except for the sects mentioned in Article 5, no new sect shall be formed”. This Article is not repeating Article 6, as that is specifically referring to local level. Article 8 is referring to national level.
Article 9 of the Sangha Law is repeating Articles 6 and 8, as it says, “Except organizations under the supervision of respective religious organizations, no other organization shall be formed [within the Sangha]”. Article 10 of the Sangha Law is dangerously vague. It says, “Nobody shall do or cause to do, nor shall they speak or write, anything which destroys or disrupts religion”.
Article 11 of the Sangha Law says, “When the Sangha undertakes action that causes breach of rules, regulations or practices, the agreed party shall abide by the decisions by the Sangha Council” (not necessarily the Sangha Maha Nayaka State Council). Some remarks: This Article speaks about “rules, regulations or practices” without specifying whether these are religious, military, or otherwise.
Article 12 of the Sangha Law says, “If breaches are committed under Articles 8 or 9, and clear case of offence is made out, the violator shall undergo imprisonment of minimum six months and maximum three years”.Some remarks: This Article does not mention the fact that violations of the Vinaya are first considered within the monastery.
Article 13 of the Sangha Law says, “If breaches are committed under Article 10, the violator shall be imprisoned for a minimum of six months and a maximum of three years”. (Punishment is the same as in Article 12, but the nature of offence is different).
Article 14 of the Sangha Law says, “In case of breach of Article 11, the punishment shall be six months imprisonment”. Some remarks: Neither Article 11 nor Article 14 is specific when it comes to the findings of the (local) Sangha Council.
Article 15 of the Sangha Law says, “If under Articles 12 or 13 a case has to be filed, only the Ministry of Home and Religious Affairs shall file the case”. Some remarks: This means that the prosecutor must be an official from the Ministry of Home and Religious Affairs. In this setup, the prosecutor will of course be a military officer. Why are internal affairs and religion being put together in one ministry? It destroys the autonomy of the religious body. The Sangha Law makes the grip of the state on the Sangha very obvious: a military ministry controls the prosecution.
Article 16 of the Sangha Law says, “If under Article 14 a prosecution has to be made, the Director-General of the Department of Religious Affairs shall cause the delegated person to file a direct complaint”. Some remarks: The Director-General of the Department of Religious Affairs is a military officer directly under the command of the Minister of Home and Religious Affairs, at that time Lieutenant-General Khin Nyunt.
Article 17 of the Sangha Law is very dangerous. It says, “No action or prosecution shall be taken against a public servant who bona fide carries out his duties”. Some remarks: In other Articles the provision for sanctions is given, but Article 17 constitutes a blank impunity order. According to this Article, the police can enter any monastery and arrest anyone. This Article not only places the public servants above the religion, but also above the law.
Article 18 of the Sangha Law says, “The Ministry of Home and Religious Affairs, in consultation with the Sangha Maha Nayaka State Council, may enact further rules and regulations, in order that the Revolution is carried out”. Some remarks: The Ministry is in consultation with the Council, but the Ministry will enact the rules of course. That turns Article 18 into a fluid area, because what is meant with “in consultation”? It does not necessarily mean that the Council would agree with the Ministry.
The Junta’s Crusade
The present military regime, the State Peace and Development Council or SPDC, rules the country without a constitution. Directives and decrees form the basis for law. Religious freedom, like all other freedoms in Burma, is subject to military rule. The SPDC issued Order No. 85 that prevents any members of the National League for Democracy and other political parties from being ordained in the Sangha. The junta strictly censors all religious publications, thereby even changing some words in the Holy Bible.47 Under SLORC Law No. 5 of 1996, anyone who commits “…an offence to instigate, protest, say, write or distribute anything which would disrupt and deteriorate the stability of the state, communal peace and tranquility, and the prevalence of law and order, … [or an offence] to affect and destroy national consolidation, … [or] to cause misunderstanding among the people”, is liable to imprisonment from three months to twenty years. In 1996, a monk from Moulmein was sentenced to two years under SLORC Law No. 5, because he had distributed leaflets about Samma-sati (‘Right Mindedness’) without prior permission from the local authorities. However, the judgment did not answer the question as to how Right Mindedness can possibly lead to deterioration of the stability of the state, or to misunderstanding among the people. The military regime continues to imprison monks for efforts to speak and associate freely.
Sayadaw Ahshia Nandabo, a 66-year-old monk from Mudom township, Moulmein, had built a pagoda on a patch of ground given to the Sangha by a member of parliament of the National League for Democracy. On 6 January 2001, the monk was arrested, and on 19 January he was sentenced to ten years (under which law?) because “no prior permission had been taken from the government for the construction of the pagoda”.48 A directive from 1972 said that, “no monastery or pagoda may be built, rebuilt, renovated, or maintained without prior permission from the military authorities”, which currently remains in effect. Military personnel often loot, damage, or destroy Buddhist monasteries in ethnic minority regions, thereby arresting or extra-judicially killing the monks.
The junta’s crusade is part of their political interests. Although according to the regime there is religious freedom in Burma, the reality is that there is religious discrimination. The junta is suppressing Muslims and Christians in order to disperse them, while it pretends to promote Buddhism. Buddhism is promoted by the military at the expense of other religions to increase SPDC’s nationalism. The generals systematically use propaganda in their attempts to falsely convince the Buddhists that the military regime is representing their interests.49 Such is the state of Law and Religion in Burma today. Under the cloak of law, Buddhists are suppressed and the Sangha curtailed, as these are among the most active in the struggle for the restoration of democracy and human rights.
Endnotes
* Peter Gutter is an adviser with the Burma Lawyers’ Council in Bangkok.
1. B.S. Sinha, “Custom and Customary Law in Indian Jurisprudence”. Indian Sino Legal Journal, Vol. 2, 1976, p. 89.
2. Government of India, “Social Legislation: Its Role in Social Welfare”. New Delhi, 1956, p. 18.
3. For example, in section 37 of the Bengal, Agra and Assam Civil Courts Act of 1887, and in section 16 of the Madras Civil Courts Act of 1873.
4. For example, sections 5 and 6 of the Punjab Laws Act of 1872.
5. This was repeated in section 4 of the Burma Courts Act of 1875.
6. For example, the case of Ma Asha vs. B.K. Haldar (1936) Indian Law Reports Vol. 14, Rangoon Series 439.
7. Code of Monastic Discipline.
8. CPD numbers, used to identify Pali texts, refer to the bibliography in “A Critical Pali Dictionary” edited by V. Trenckner. Copenhagen: Royal Danish Academy of Sciences and Letters, 1924, 1:37-69.
9. The Fundamental Rules of a Buddhist monk.
10. In 1927 the High Court at Rangoon ruled that the term “Buddhist Law” was to be interpreted as “Burmese Buddhist Law”. A further ruling in 1956 stated that it was to be interpreted as “Customary Law of the Burmese Buddhists”; in 1969 this law was changed to read “Burmese Customary Law”. This law does not apply to the whole Union of Burma, but only to cases involving Buddhists.
11. When the Burma Laws Act of 1898 was promulgated, British judges in Burma had difficulty in interpreting the term “Buddhist Law” and also in determining to whom the law should apply. Around 1930 however, the courts settled that also the Chinese Buddhists in Burma were to be governed by Burmese Buddhist Law.
12. According to Dr U Than Naung, in an interview with the author, 9 December 1995.
13. The same Act declared that “the punishments which may be awarded thereunder, or the practices which are permitted thereby, are in conformity with the spirit of the law in force in the rest of British Burma” (Report on the Administration of Burma for the year 1921-22, pp. 14-15).
14. This was an important digest of Burmese law, compiled by Kinwun Mingyi U Gaung between 1893 and 1897 for the Judicial Commissioner of Upper Burma.
15. Sir John Jardine, “Notes on Buddhist Law”. Rangoon: Government Superintendent of Documents, 1953.
16. This was the case of Dr Tha Mya vs. Daw Khin Pu. (Burma Law Reports, 1951).
17. Hidayatullah, M. and A., “Mulla’s Principles of Mahomedan Law”, 19th Edition. Bombay: N.M. Tripathi Ltd., 1990, p. 224.
18. The Holy Koran, 4:3.
19. The Holy Koran, 4:128. (However, “The Burma Code”, Vol. XI, p. 25 (Act No. 14 of 1953, still in effect today) regulates the divorce of Muslim women contrary to Islamic Law under certain conditions, “…without prejudice to any basic tenet of Islam”. Mr. B.K. Sen, Advocate, was confronted with a case under Act No. 14 before the Rangoon District Court).
20. “The Burma Code”, Vol. I, Officially Published under the Authority of the Government of the Union of Burma, 1955, p. 9 (Article 13, Section 3).
21. Act No. 24 of 1939.
22. Act No. 32 of 1954.
23. Mr. B.K. Sen, Advocate, Burma Lawyers’ Council; personal communication with the author, 6 April 2001.
24. This was repealed by Burma Act IV, 1944.
25. P. Bigandet, “The Life, or Legend of Gaudama The Buddha of the Burmese”. Rangoon, 1866, p. 523.
26. Dhamma is a word from Pali, the ancient language which the Buddha spoke. Dhamma is generally used to denote the Law or the Teachings of the Buddha.
27. Yahan Byo Ahpwe, or Young Monks’ Association, formed in 1938.
28. Kyaungtaik Sayadaw Ahpwe, or Presiding Sayadaws’ Association, formed in 1948.
29. For an interesting background on the organized political monks’ reaction to the government’s policies and actions, see: Donald E. Smith, “Religion and Politics in Burma”. Princeton, New Jersey: Princeton University Press, 1965, Chapter 8; and also: Tin Maung Maung Than, “The Sangha and Sasana in Socialist Burma”. Sojourn: Social Issues in Southeast Asia, Vol. 3, No. 1, February 1988, pp. 26-61.
30. According to Mr. B.K. Sen, personal communication with the author, 1 May 2001.
31. Khin Maung Win, “Religious Freedom in Burma: A divisive and suppressive practice of the military regime”. Legal Issues on Burma Journal, No. 4, October 1999, p. 20.
32. According to the Reverend Cung Lian Hup, personal communication with the author, 6 June 1996.
33. “Human Rights Yearbook Burma, 1999-2000”, National Coalition Government of the Union of Burma, Washington, D.C., August 2000, p. 225.
34. “Junta Leader Defends Forced Labor”, United Press International, 28 April 1994.
35. Press Conference No. 107 of 7 December 1990, reported in the Working People’s Daily (8 December 1990). The state deemed the actions of the dissident monks an attempt to divide and destroy the officially sanctioned Sangha organization.
36. Theravada is one of the two main schools of Buddhism, found in countries such as Sri Lanka, Burma, Thailand, Laos and Cambodia. The other main school is called Mahayana, found in countries such as Vietnam, Tibet and Korea.
37. Sayadaw is a term of respect for a monk who has spent ten years or more in the Burmese Sangha.
38. Nayaka is a title for the Head of a Buddhist school, or the chief monk among a group of monks.
39. Mendelson, E. Michael, “Sangha and State in Burma: A Study of Monastic Sectarianism and Leadership”, edited by John P. Ferguson. Ithaca, New
40. Peter Gutter, “Between Junta and Nirvana. Buddhism in Southeast Asia: A Comparative Study”. The Hague: Eurasia Group Ltd., 1997, p. 55.
41. U Mya Sein, “Customary Law”, 8th Edition (in Burmese). Chapter 20, “Monks and Judiciary”. Rangoon: Than Swe, 1993, pp. 383-398. Thanks to Mr. B.K. Sen for translating.
42. For a thorough account of monastic discipline, see: Vajirananavarorasa, Sangharaja, “The Entrance to the Vinaya”, Vols. I & II. Bangkok: Mahamakuta Rajavidyalaya Press, 1969-1973.
43. His Holiness the Dalai Lama, “Buddhism, Asian Values, and Democracy”. Journal of Democracy, Vol. 10, No. 1, January 1999, pp. 3-7.
44. See: D. Gokuldas, “Democracy in the early Buddhist Sangha”. Calcutta: University of Calcutta, 1955.
45. Uposatha is the building in a Buddhist monastery where monastic ordination takes place.
46. This regulation according to Mahâvagga II.
47. Khin Maung Win, p. 24.
48. Khitpyaing, April 2001, p. 8.
49. For example, The New Light of Myanmar, Vol. VIII, No. 216, 18 November 2000, p. 12: “…the State Peace and Development Council is endeavouring under … the eminent Sayadaws for promotion, propagation and perpetuation of the Sasana [Buddhism]”.