Andrew Huxley, SOAS

Depending on when you start counting, Burma has enjoyed either forty-eight or fifty-four years of independence. De iure, the era of British colonisation came to an end on the 4th January, 1948. De facto, the British had lost control six years earlier when the Japanese army swept them and their Indian auxiliaries out of the country. Since independence, the principle question of Burmese law has been how much of the colonial legal system to jettison: there is general agreement that the legal system inherited in 1948 had to become more Burmese, but considerable debate about how far the legal decolonisation should go. This article deals with the issue in terms of personalities. I focus on the careers of the two most distinguished Burmese lawyers of the period and analyse their respective views on decolonisation. The influence of E Maung (1889-1972) over legal policy was felt most strongly during the 1950s. During the 1960s and 1970s Maung Maung (1925-1994) single handedly redesigned the legal system. In 1988 he became President of Burma, but was ousted, a month after his appointment, in SLORC's military coup. Since 1988 the Burmese state has been delegalised. Eight years after the coup, martial law remains in force and the colonels show no sign of respecting the result of the election they called in 1990. I conclude the article with speculations about the future. Since law has undergone so many changes over the last fifty years, there is no single status quo ante to which a democratic Burma could return. Theoretically, Burma could restore the substantive law and legal institutions that prevailed at any of the following dates: 1988, 1970, 1959, 1947 or 1884. Which of these options will be a realistic possibility if Burma ever does return to legality?

We cannot understand the last fifty years without looking at the seventy years [1] which preceded it. The pressure to get rid of British institutions is a rational response to the fiasco of the colonial period. It is difficult to argue that Burma was a better place when the British left than when they arrived. There were advances in public health and public transport during the first half of this century, but this infrastructure of drains and railways was destroyed during the campaigns of 1942-5. There was a huge increase in the export of rice as the delta was opened up to latifundia rice production, but the resulting profits were expatriated into the accounts of British companies and Indian financiers. What of the British boast to have introduced the Rule of Law into Burma? George Orwell gave the short answer: it was `a Pox Brittanica' designed to benefit `the money lender and the lawyer'[2]. Furnivall made the same point in more decorous language:

`The rule of law is a foundation stone of western freedom ... but this is true only where the law is an expression of social will; in a tropical dependency it expresses the will of the colonial power, and is an instrument of economic development. The rule of law becomes, in effect, the rule of economic law ... [and] naturally expedites the disintegration of the customary social structure.'[3]

These last three words require a quick gloss. The social structure of pre-colonial Burma had been expressed in written law-texts (called dhammathats) interpreted and applied by specialist lawyers (called shene). What the British did was more drastic and deliberate than merely allowing local custom to disintegrate: they deliberately destroyed a literate and professional legal culture. The shene with their distinctive uniforms, their law-libraries and their unrivalled knowledge of the practicalities of Burmese dispute settlement, were legislated into oblivion, along with the courts in which they had argued and the entire structure of Burmese government from the Peacock throne down to the smallest villages. This pre-colonial combination of professional lawyers arguing between written sources of law was strikingly similar to the British common law tradition and strikingly different to anything found elsewhere in Asia. Why did the British disdain and destroy what they found in Mandalay rather than applaud and preserve it? The piecemeal nature of the British annexation of Burma meant that for thirty years prior to 1885 the British had been exposed to anti-Burmese propaganda from the Mon of Lower Burma, the intellectual and military rivals of the Burmese. Based in cosmopolitan Rangoon, they may have believed what they were told about the country cousins up north in Mandalay. But I suspect that another dynamic was operating: that the British exaggerated the horrors of the Peacock throne in order to suppress their own fear that the Burmese civilisation was as learned, and rather more literate, than their own. Eighty years before the conquest a British envoy had remarked:

`... if all the other chests were as well filled as those that were submitted to our inspection, it is not improbable, that his Birman Majesty may possess a more numerous library than any potentate from the banks of the Danube to the borders of China.'[4]

Immediately after the conquest, however, Upper Burma was classified as a scheduled district under the Government of India Act (1870), that is to say as one of the:

`... more backward and less civilised portions of the Province which have been declared outside the scope of the general laws in force in the Province'[5].

No doubt the colonists would have swept away Burmese substantive law as well, except that a policy to the contrary had already been established in British India. `Native law' was to be retained in the area of `succession, inheritance, marriage or caste or any religious usage or institution'[6]. When applied to Burma the policy devised for India effectively meant that three `native-law-zones' of religion, marriage and succession were to be retained, while everything else was replaced immediately by the current Anglo-Indian law. The function of these native-law-zones, which became known as `Burmese Buddhist Law' or `dhammathat law', was to persuade the Burmese that they, as well as the colonisers, had a stake in the colonial legal system. For this legitimatory ploy to work, the colonial judges had to be seen to be taking the dhammathats as seriously as they took the Indian Penal Code. Two early chiefs of the colonial judiciary, Sir John Jardine and Douglas Burgess, approached the dhammathats with good faith and great energy: they are the godfathers of Burmese legal history. But their successors lacked the wit and inclination to build on this excellent start. From the turn of the century onwards the huge pre-colonial legal literature was ignored and Burmese Buddhist Law was treated as `native custom', to be defined by judges in whatever way best served current policy.

Let us turn from substantive to sociological aspects of colonial law. No sooner were the shene abolished than Burmese students began training as barristers:

`By about the year 1910 a number of Burmese who had been called to the bar in London were in active practice both at Rangoon and Mandalay, where the British government opened the highest courts in the country. While in England they had lived and studied with the sons of wealthy English families and of the English nobility, for in those days the Inns of Court were the exclusive domain of British aristocracy; therefore on their return to Burma they were neither impressed nor overawed by the British civil servants or the British judges.'[7]

The arrival of Burmese barristers has political implications. The pacification of Burma required a presence of 35,000 Punjabi troops until 1900. Thereafter the occupying force could be reduced, but the sporadic military uprising, the education boycotts and tax-strikes, the robber-bands who targeted the British and their pacified villages and the monks who preached the anti-colonial message, all add up to an intifada which continued well beyond 1942[8]. Against this background, the British were compelled by their rhetoric of fair play and the rule of law to let the Bar operate as a focus of anti-colonial opposition. At the bar a man might make his reputation by defending prominent dissidents. He might also make enough money and win enough supporters to experiment with whatever democratic institutions the governers allowed to the governed. Maung Maung describes politics in the early 1920s as `the monopoly of the barristers'[9]. Sydney Loo-Nee (Middle Temple) spoke for the Karen Christians before every colonial commission between 1917 to 1946. Ba So (Lincoln's Inn) served two terms on the Legislative council in the 1920s and founded the Home Rule Party. Ba Han (Lincoln's Inn) was the conduit by which Rangoon University students discovered socialist literature in the early 1930s. His brother Ba Maw (Gray's Inn) organised Burmese opposition to the constitutional separation of Burma from India in the late 1920s and then became Premier in 1937 after that separation had taken place. Mya Bu (Middle Temple) served several stints as Chief Justice under the British from 1935 onwards and was Premier of Burma from 1943-5 under the Japanese[10]. These `barristocrats', as they were collectively known, did very well for themselves by rejecting their Burmese professional heritage and adopting the robes, discourse and outlook of the Inns of Court. It is unfair to treat them as a profession of quislings when it was British policies which ensured that they had a monopoly as spokesmen for Burmese opinion. But it is easy to see how other traditional Burmese professions - the soldiers, the doctors, the bureaucrats, for example - might resent the prominence of the lawyers and their role as licensed critic of the colonists.

E Maung, the first of my biographical subjects, was called to the Bar at the Middle Temple in 1922. During the final colonial decades he was building up his legal practice in Rangoon and lecturing part-time in the Law Faculty of the University of Rangoon. His first public recognition came at the age of 57 with his appointment as High Court Judge in 1946. By now the barristers had lost their monopoly on politics[11]. The ten years that led up to independence were dominated by a younger generation of student-politicians turned freedom-fighters who were agile enough to switch support from the Japanese to the British at the right time. The three big names of post-colonial politics - Aung San, U Nu and Ne Win - came from among these `Thakins' and `We-Burmans'. One might have expected them to raise the obvious questions - what did the Inns of Court have to do with Burmese identity? Why should those who did so well out of colonialism continue to demand respect for the barristocracy? - as soon as independence dawned. But with one exception[12] the colonial laws and legal institutions were left intact for the next ten years. E Maung deserves much of the credit for staving off change. His legal historical masterpiece The Expansion of Buddhist Law (1952) took the study of dhammathat literature exactly where Jardine and Burgess sixty years earlier had hoped it might go. It established, for the first time, a persuasive chronology of the fifty or so surviving dhammathats. Whereas the colonial judges had had to regard the pre-colonial sources as an indistinguishable mass, he was able to view them diachronically so as to reveal, in his book Burmese Buddhist Law (1937), trends in doctrinal legal history, as for instance:

`It will be shown in a later and appropriate place that Burmese Buddhist dhammathats and custom, as early as the beginning of the 18th century, if not earlier, denied the parents the right which they might have had in earlier ages of disposing their children in marriage without reference to their wishes.'[13]

E Maung's scholarly publications rescued the Burmese half of Anglo-Burmese law from its colonial decline and helped to boost the Burmese credentials of the post-independence profession. His influence was further increased by his decision in 1948 to engage directly in the political sphere. He became Minister of Foreign Affairs in April 1949 at a crucial moment in Burma's recent history. Five years later he formed his own political party, which tended to support U Nu, the premier, from a conservative position. He was serving as Minister of Judicial Affairs in 1958 when the army first took power in the `Caretaker Government' and as Minister for Home Affairs in 1962, when the army took power indefinitely.

E Maung advocated the minimum amount of legal decolonisation. He felt that the colonial professions and procedures could serve Burma well for the future, provided always that they were in the hands of scholarly Burmese rather than slapdash British. Probably he flattered the Burmese lawyers by his assumption that they were all as capable scholars as himself, but his jaundiced view of the capabilities of British colonial judges has been shared by everyone who has studied their pronouncements on the Burmese Buddhist Law[14]. Tha Gywe tried to save their reputation by what we would now call a Dworkinian argument: in cases where they appeared to be overruling the dhammathat sources, the Anglo-Burmese judges were in fact identifying and applying equitable principles which underlay the dhammathat rules: surface inconsistencies masked a deeper continuity[15]. Orlan Lee has devoted a whole book to examining the plausibility of this picture:

`In the final analysis we are asking ourselves whether the `equity' implemented in the Anglo-Burmese courts by favouring equal shares in partition is a British sense of equity or an abstracted equitable principle of the dhammathats.'[16]

He concludes that an appeal to justice, equity and good conscience meant, in practice, `an appeal to pre-existing English ideas'. Maung Maung had anticipated this finding fifteen years earlier:

`Justice, equity and good conscience provide an ample reservoir of law, but for the law to live, for it to be the people's law, the notions of justice, equity and good conscience must be those of the people. To discover the notions and give them life and force, to guide and educate them where necessary, are tasks which offer both challenge and opportunity ...'[17]

Maung Maung's polite phraseology hides a devastating critique: he implies that, despite appearances, the dhammathat law of 1948 is not the dhammathat law of 1885. It has been so tainted by English values, by notions which are not shared by the Burmese people, that it can no longer claim legitimacy. E Maung would, I think, agree with this analysis of the damage caused by colonial judges. His remedy, his minimal version of legal decolonisation, was that Burmese scholar-judges would wield legal history as a corrective to the errors enshrined in colonial precedents and restore an authentic Burmeseness to Burmese Buddhist law:

`Burmese law in its descent to the latter part of the 19th century has no breaks and catastrophes and there never was a revolution in the growth of Burmese law. It can truly be said that the glory of Burmese law is that its roots are sunk deep in the soil of national history and that the law is the product of age-long growth of national law. It may properly be called the Common Law of Burma.'[18]

My second biographical subject is Maung Maung. He was born in 1924, a generation after E Maung, and during the 1940s was a younger associate of Aung San and Ne Win. After independence he spent a few years as a journalist and freelance author, before gaining state funding to read for the Bar at Lincoln's Inn. On his return in the mid-1950s he combined practice with a post as lecturer in the Faculty of Law at Rangoon University. His publications, some of them written during his stints as doctoral student and visiting lecturer at Utrecht and Yale, include The Burmese Constitution (1956), Law and Custom in Burma and the Burmese Family (1963) and Taya Upadei Ahtweidwi Bahuthuta [General Law Knowledge] (1975). If E Maung was essentially a doctrinal legal historian in the mode of Pollock and Maitland, Maung Maung viewed law as a left-wing social theorist. If E Maung's interest was in the longue durée changes that Burmese law had undergone, Maung Maung's ambition was to use Burmese law as a tool to improve Burmese society. Maung Maung also added a direct involvement in politics to his roles as lawyer, judge and scholar: his periods in office have coincided with army rule. He was Assistant Attorney-General in the Caretaker Government and, after 1962, was member of the Council of State, Judicial Minister and finally, for the tempestuous month of August 1988, President of Burma. He brought about a much more thoroughgoing decolonisation of Burmese law than E Maung would have liked. The two men clashed over Maung Maung's identification of the two fundamental principles that underlay Burmese law. But before examining this dispute over legal theory and substantive law, I shall describe his institutional reforms.

In August 1972 Maung Maung recast the legal professions - lawyers and judiciary - on entirely unBritish lines. This radical restructuring followed closely on Sein Win's restructuring of the colonial bureaucratic structure in March of the same year. They can be seen as two prongs of an attack on the Separation of Powers doctrine by the Ne Win regime. Legislature, executive and judiciary were to become three aspects of the one party state, rather than rivals operating independently in their own autonomous zones. The `liquidation of bureaucratism' in March 1972 got rid of the Departmental permanent secretaries, who had built up their own vision of what the Department should and could do, and replaced them with deputy ministers who were firmly part of the political structure[19]. The switch to `the system of people's justice' in August 1972 got rid of the independent judiciary and replaced them with lay nominees sitting in panels of three[20]. Both changes were justified by the argument that, now the working people of Burma are in charge, the checks and balances offered by an autonomous bureaucracy and judiciary are no longer necessary. Opponents compared these policies with Ne Win's dynamiting of the Rangoon Student's Union in 1962. He was anxious, they said, to liquidate any potential sites of opposition. The effect of the reforms has been summed up by the US State Department:

`Justice is administered by a system of people's courts with appeal to higher levels culminating in the National Council of People's Justices. The judges are lay people untrained in the law who are selected by the Party. They are advised by professional legal officers, usually former judges under the British developed legal system. The advice of these legal officers may or may not be accepted. In addition to codified law, traditional Burmese notions of community, harmony, fair play and socialist concepts are among the factors which affect court decisions.'[21]

To which we should add that the legal profession has been nationalised. Maung Maung converted the Bar of freelance lawyers into salaried People's Attorneys whose paymaster was the one-party-state. They are directly controlled by members of the legislature (ipso facto party members) who are, in the main, non-lawyers[22]. In brief, the reforms were intended to combine popular participation at the bottom levels with tight control from the top.

Maung Maung justifed his radical decolonisation of bar and bench in these terms:

`People's justice connotes fair and prompt decisions on the affairs of the people by a tribunal of the people in harmony with the rules of law and custom having the force of law ... it stands to reason that the respected elders of that community are in a proper position to come to correct decisions thereon. Moreover they are most fitted to secure a peaceful settlement of disputes whenever possible ... On the other hand, the system of justice introduced by the British was alien to the Burmese. It emphasised victory or defeat to one party of the litigants and was not helpful in promoting peace and harmony nor did it work towards resolving disputes into amicable settlements. In short the system of people's justice is intended to ensure a deep observance of moral rules of conduct among the people.'[23]

The superiority of alternative dispute resolution over `winner-takes-all' litigation is his main argument. But a secondary, anti-positivist, theme is sounded by the references to `custom having the force of law' and `moral rules of conduct'. This, as we shall see, is the language by which Maung Maung combines an appeal to socialism with a return to pre-colonial Burmese legal values. He does not draw attention to two fringe benefits which the changes secured for the Ne Win regime. Firstly, by converting barristers into paid civil servants of the one-party-state, they ensured that the Bar could no longer serve as a safe refuge for opponents of Ne Win. Secondly, the humbling of Burmese lawyers would be particularly welcome to those who had envied their privileges under the British. As he put it elsewhere: `Lawyers have fallen on lean times in the socialist state ... In the first sweep of changes lawyers looked rather like lost souls.'[24] Was the achievement of these fringe benefits Maung Maung's hidden agenda? My reading is that Maung Maung was sincere in both his life-long socialism and his wish to reverse the most damaging changes introduced by the English. But in treating reform of the legal profession as a high priority Ne Win and Maung Maung were well aware of the fringe benefits that would accrue.

Throughout their short life the reformed courts were off-limits to foreigners. The only information about how they worked in practice came from the speeches of those in charge of the system, particularly when addressing their immediate inferiors. Interpreting this material requires the skills of a Kremlinologist. When the Head of Rangoon's Judicial Department says `It is evident that the new judicial system is in full swing, gaining momentum and meeting with considerable success ...'[25] how much weight should we put on his choice of the word `considerable' rather than `complete'? Ten years after the changes were announced, there were still six townships (out of 314) and a thousand villages (out of 13,751) where judicial committees were not yet formed[26]. Delays were evidently a problem, since the amateur judges were exhorted:

`... to sit regularly and work full hours, to summon only the number of witnesses they can hear at one sitting, to refrain from unnecessarily setting too long intervals between hearings; to have a full bench when sitting; to get the views and advice of judicial officers; and to act according to the law in releasing prisoners on bail.'[27]

The next year `the number of pending cases was markedly reduced as a result of the inspection of township courts by the chairmen of the State and Division committee of judges' though I am not clear whether they merely encouraged the township courts to be more efficient or whether they acted as an Assize hearing the backlog of cases themselves[28]. A particular bottleneck built up for appeals in land-disputes cases. This backlog had to be legislated out of existence - in March 1984 the right to appeal to the highest court in such cases was withdrawn[29]. The speeches give the impression that, though committed to making dispute settlement less formal, the regime wish to keep law distinct from politics:

`Yenangyaung Township People's Council had made an order in an inheritance dispute: one of the parties involved was allowed to live in the house involved. But this was a decision for the People's Court, not for them, so the Council of State has declared it nul and void. If such cases are settled not by law but by means one thinks right, there cannot be justice ...'[30]

and retain a touching faith that the right kind of law will lead to the right kind of economic development:

`There would be peace and prosperity only when the laws were made effective and were observed and fully abided by the public. With the rule of law getting firmly established, the country would be able to enjoy prosperity more and more.'[31]

What proved to be the final word on Maung Maung's reforms came in a commendably frank speech by the Chairman of the Council of People's Justices:

`To speak the truth the majority [of judicial officers] have not reached the satisfactory level.'[32]

Eighteen months later SLORC's coup suppressed any kind of legality in Burma. Maung Maung's restructuring of bench and bar lasted sixteen years in all. This was long enough for Burmese to realise just how strange and un-Asian were the old judges in their full bottomed wigs and the old lawyers who had eaten twelve dinners in their Inn of Court, but it was evidently not long enough for the new system to bed down satisfactorily.

I turn to substantive law and legal theory. Maung Maung's analysis of the two fundamental principles underlying Burmese law is to be found in a case he decided as Chief Judge shortly after Ne Win's coup of 1962. At issue was the interface between dhammathat law and the Indian Contract Act[33]. Was an engagement to marry governed by the former, which laid down no minimum age for engagements, or by the latter, according to which one of the parties was too young to make a valid contract? In deciding that the dhammathats applied, and therefore that the fiancée could sue for breach of promise of marriage, Maung Maung, C.J., invented a new Burmese legal identity. He appealed to lawkabala taya (the principles upholding the universe) as the fundamental principles on which the dhammathats rested. His definition of these principles as `non-oppression between man and man, and non-exploitation of man by man' echo a passage in the Burmese Way to Socialism, the earliest public statement of the ideology behind Ne Win's military rule. But they also echo Buddhist doctrine. To consciously harm a fellow-human is, in Theravada terms, an unwise act (akusala kamma). The socialist influence lies in choosing the words `oppress' and `exploit' rather than the Buddha's `kill' and `steal'. The phrase lawkabala taya translates into Pali as lokapala dhamma which would be understood by Pali scholars outside Burma to mean the dhamma (pattern / principles / ethics / rules) of the World Upholders, the Four Great Kings who symbolise the cardinal directions. These kings, who enjoy a life-span of 90,000 years, make regular descents to earth to discover whether men cultivate righteousness and virtue[34]. Within Burmese culture the lawkabala also connect with magic[35] and royal power[36]. Maung Maung, using the skills he acquired as a journalist, has devised a phrase which can appeal to Buddhists, magicians, royalists, socialists and supporters of Ne Win's coup (groupings, by the way, which are not mutually exclusive). But his judgement failed to appeal to E Maung:

`The reference to lawkabala taya ... could well have been omitted. The principles are amorphous and lack definition ... Lawkabala taya appears to be as unruly a horse to ride as public policy.'[37]

As E Maung elaborates his objections to the decision, he reveals a legal positivist heart beating beneath his legal historical exterior:

`The suggestion that ... , because marriage is a social institution in which ... the whole society has an active interest, customs of that social system must invalidate any positive enactment not consistent with it ignores the fact that customary laws are by s13 (1) of the Burma Laws Act subject to any positive enactment to the contrary.' [ibid]

When it comes down to hard cases, he thinks that Burmese custom (tradition or identity, if you prefer) must cede to colonial statute. Twenty years after Burma's formal independence from Britain, he regards the 1898 Burma Laws Act as the ultimate arbiter of the sources of Burmese law. The decolonisation of Burmese law, he implies, should be limited to personnel: its rules and institutions are cast in stone. Ultimately, as his last word on the lawkabala taya, in which he quotes one of his own judgements delivered in 1950, make clear, he is a positivist:

`But to accept natural law as a higher law which invalidates any inconsistent positive law would lead to chaos. There is no certain standard and no measuring rod by which the so-called principles of natural law can be ascertained or defined.'[38]

If faced with Burma's contemporary anomie, E Maung would, I think, advocate a return to the law as it was in 1959 after his historical researches but before Maung Maung's institutional changes.

E Maung justified Burmese law in terms of its Burmeseness, its authentic presentation of the pre-colonial ethical tradition. Maung Maung justified it by identifying as particularly Burmese the ethical overlap between Buddhism and socialism. In rejecting socialism, SLORC have turned their back on the main 20th century current in Burmese intellectual life, but what new political vision can they offer? So far they have only defined their stance in negative terms, as in Declaration No 1/90 when martial law is explained as preventing `the disintegration of the Union, the disintegration of national unity and the perpetuation of sovereignty'. Present day Burma has an aching gap in its constitutional, legal and political discourse. How might it be filled after SLORC? What kind of justifications of legality might Burma return to? The events of 1989 in Eastern Europe make it unlikely that socialism will be revived for the foreseeable future. E Maung's legal positivism is equally unhelpful when sovereign power has been democratically controlled for only fourteen years out of the last century. Perhaps E Maung's tradition of careful historical scholarship can eventually be reconstituted, but only after new experts have been trained from the ground up. Contemporary Burma is blessed with some excellent historians, but I am not aware of anyone carrying on his tradition of doctrinal legal history. English legal influence has gone for good, save in the residual sense that the law of contracts, companies and carriage (the common mercantile law of the world) contains English elements. I doubt that we shall see another generation of Burmese barristers trained in London, and I suspect that future Burmese law will be no closer to the English common law than is the law of Thailand and Cambodia.

The most likely future for Burmese law and the most optimistic prognosis for it do not coincide. The following prediction favours the optimistic over the likely. Constitutional law will look after itself, in the sense that Burmese law can only hope to recover its health once some negotiated constitutional settlement[39] is in place. Any such constitutional settlement will be perceived as provisional until it has lasted a couple of generations. It seems to me therefore that Burmese Buddhist Law will have to provide the element of stability in the equation - the crutch that keeps Burma upright while its constitutional leg heals. Most of us who have studied the dhammathats have our own reform projects (to introduce a right to make a will, or to involve the state in questions of marriage, for example) but we should put them on ice. For the next fifty years it will be more important that dhammathat law is stable and unchanging than that it is perfect. The commercial sector of a reborn Burmese law must be written anew on a blank page. Before 1885 the Peacock throne ran a redistributive economy which had no need for legal regulation. The laws regulating the colonial free market are tainted by the way they were used to favour British and Indian traders. After Ne Win's coup of 1962 the socialist closed economy precluded the need for commercial law. And since 1988 SLORC have sold off anything that can be dug up or chopped down under the aegis of some self-serving martial law directives. Plainly Burma's new commercial law will have to use the global vocabulary of limited companies, investment banks, carriage-insurance-freight contracts and the rest. But very different models - the Chilean at one extreme, the Japanese at the other - can be constructed with this vocabulary. Burma is fortunate in having the Soviet and Eastern European examples of de-socialising the economy as case studies. Learning the lessons from these is a project that Burmese expatriates and student refugees could usefully get on with while waiting for SLORC to fall off its perch. If funding were found for - say - five Burmese graduates to study the emergent markets of Eastern Europe in situ, and another five to study the same phenomenon as seen from Tokyo, Chicago, Frankfurt and London, this `Burmese School of Economics in exile' could prepare Burma in advance for the difficult transition back to legality.

Published in LAWASIA 1998:9-20
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[1]  I take the conquest of Upper Burma in 1884 as the starting point of colonisation proper. The earlier British conquests were of peripheral areas. Using North American analogues, the British annexed Alaska and Florida in 1825-6 and everything south of the Mason-Dixon line in 1852. Upper Burma, the Yankee heartlands, contained the centres of Buddhist learning and the palaces of the Burmese kings.

[2]  Orwell G. `Burmese Days' New York City: Time Inc., p35

[3]  Furnivall, J. 1948 `Colonial Policy and Practice, a comparative study of Burma and Netherlands India' London: Cambridge University Press, p295

[4]  Symes, M. 1800 `An Account of an Embassy to the Kingdom of Ava in 1795' London: W. Bulmer & Co., p383

[5]  Ireland, A. 1907 `The Province of Burma: a report prepared on behalf of the University of Chicago' Boston: Houghton, Miffin & Co., 1:179

[6]  s13 of the Burma Laws Act, 1898

[7]  Htin Aung 1967 `A History of Burma' New York City: Columbia University Press, p276

[8]  Aung-Thwin, M. `The British `Pacification' of Burma: Order without Meaning' Journal of Southeast Asian Studies 16:245-261

[9]  Maung Maung 1956 `Burma's Constitution' The Hague: Martinus Nijhoff, p11

[10]  I have derived this biographical information from memoirs of the period and particular from: Anonymous 1961 `Who's Who In Burma' (Rangoon: People's Literature Committee and House)

[11]  This is one of the tensions that led U Saw [Lincoln's Inn] to arrange the assassination of Aung San shortly before Independence.

[12]  The colonial personal conflict of law rules worked serious injustices against (Burmese) Buddhist women who married (Indian) Hindus and Muslims. The Muslim Marriage Act of 1952 and the Special Marriage Act of 1954 provided a statutory remedy. See: Huxley, A. 1987 `Burma: it works, but is it law?' Journal of Family Law 27:23-34, p33-4

[13]  E Maung 1970 `Burmese Buddhist Law', Rangoon: Sapaylawka Printing Works, p17. Though not declared as such, I understand that this is the revised second edition of a first edition published in 1937 (Rangoon: The New Light of Burma Press).

[14]  A startling example, which looks to me more like judicial bad faith than judicial stupidity, is U Pyinnya v Maung Law 1929 Indian Law Reports (Rangoon), 677. Hla Aung gives a detailed account of this case at p42-4 of `The Judicial Policy of the British Colonial Government in Burma' `Guardian' 14:42-46, May 1967.

[15]  Tha Gywe 1909 `Treatise on Buddhist Law' Mandalay: Mandalay Press, 1:30

[16]  Lee, O. 1978 `Legal and Moral Systems in Asian Customary law: the legacy of the Buddhist social ethic and Buddhist law' Asian Library series, no.7, San Francisco: Chinese Materials Center, p231

[17]  Maung Maung 1963 `Law and Custom in Burma and the Burmese Family' The Hague: Martinus Nijhoff [1963]

[18]  E Maung 1970 op.cit. p5

[19]  Tun, M. 1972 `Sudden Death of a Dragon' Far Eastern Economic Review 1-4-1972, p8

[20]  Forward 15-8-1972 XI:1:1 giving the text of a speech made by Judicial Affairs Minister Dr. Maung Maung on 28-7-72: See also Tun, M. 1972 `Dads and Mums' Far Eastern Economic Review 19-8-1972, p20

[21]  Anonymous 1979 `US State Department Report on Human Rights Practices in Countries Receiving US Aid' February 1979, p352-7

[22]  Pe Than 1978 `Socialist Republic of the Union of Burma' p101-2 of ed. C.S. Rhyne `World Law and the Judicial System of Nations' Washington: World Peace through Law Centre'

[23]  Forward 15-8-1972 op.cit.

[24]  Maung Maung 1963 op.cit. p135

[25]  Kyi Maung Oo 1983 `The Administration of Justice' The Guardian (Newspaper, Rangoon) March p30

[26]  The Guardian 21-11-1979: Chairman of the Committee of People's Justices U Aung Pe addressing Pegu division judges. cf The Guardian 14-10-1980 and 17-3-1981

[27]  The Guardian 22-11-79: speech of Aung Pye to the judges of Pegu division.

[28]  The Guardian 17-3-1981. cf The Guardian 29-4-1980

[29]  Taylor, R. 1987 `The State in Burma' London: C. Hurst & Co., p340

[30]  Forward vol 22 1983-4 Report of the Council of State. cf The Guardian 13-9-1979

[31]  The Guardian 22-2-1980. Speech to the judges of Taungdwingyi

[32]  The Guardian 20-1-1987. He added in a speech a couple of months later that they must strive to reduce incidents of bribe-taking: The Guardian 7-3-1987

[33]  Maung Ko Gyi v Daw On Kin 1965 C.C. 913. This volume is missing from my library. I have had to rely on the account of the case in E Maung 1970 op.cit. p13-20

[34]  Malalasekera, G. 1937 `Dictionary of Pali Proper Names' 2 volumes, Indian Text Series (London: John Murray, 1937), 1:661-2, sub nom. Catummaharajika

[35]  They are `almost invariably invoked during exorcistic ceremonies': Spiro, M. 1978 `Burmese Supernaturalism' Philadelphia: Institute for the Study of Human Issues, p44 fn6

[36]  They were carved into King Badon's Lion Throne, designed in 1816: Yi Yi 1960 `The Thrones of the Burmese Kings' Journal of the Burma Research Society 43:106

[37]  E Maung 1970 op.cit. p18-9

[38]  Tinza Maw Naing v The Commissioner of Police 1950 Burma Law Reports (SC) p17 at p25-6

[39]  Perhaps collectively guaranteed by a group of regional powers.