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The “Chinese Confucian” and the “Chinese Buddhist” in British Burma, 1881–1947

Published online by Cambridge University Press:  24 August 2009

M.B. Hooker
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Extract

By the late nineteenth century British control over Burma had been firmly established and by 1893 a comprehensive legal system for its population put in place. The guiding principle of the judicial and legislative system was that each racial or religious group had the right to its own law in matters of religion and custom. Thus, Burmese “Buddhist law” for the Burmese, “Mohammadan law” for Muslims and Hindu law for the Hindus. In addition, the customary laws of other ethnic groups were also recognized.

Type
Articles
Information
Journal of Southeast Asian Studies , Volume 21 , Issue 2 , September 1990 , pp. 384 - 401
Copyright
Copyright © The National University of Singapore 1990

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References

1 In the following stages: Arakan and Tenasserim, 1824, Lower Burma 1852 and Upper Burma 1886.

2 Burma Laws Act, 1898.

3 Burma Laws Act, 1898, s. 13.

4 See Mootham, O.H., Burmese Buddhist Law (London: Oxford University Press, 1939)Google Scholar.

5 See Hooker, M.B., Islamic Law in South-East Asia (Kuala Lumpur: Oxford University Press, 1983), Chapter 1Google Scholar.

6 No general description has as yet been written.

7 See Pyo, Maung Tet, Customary Law of the Chin Tribe (Rangoon: Government Press, 1884)Google Scholar.

8 Ma Yin Mya … [1927] I.L.R. 5 Ran. 406 at 413.

9 Chan Pyu v. Saw Sin [1928] I.L.R. 6 Ran. 623.

10 Hong Ku and Hock Kung v. Ma Thin (1881); Toon, Chan, Leading Cases … p. 210 at 211–12Google Scholar, also in Selected Judgements, Lower Burma, p. 134.

11 Later SirJardine, John, Judicial Commissioner and author of Notes on Buddhist Law (Rangoon: Court of Jud. Comm., 1882)Google Scholar.

12 SirDavis, John, The Chinese …, 2 vols. (London: Charles Knight, 1836)Google Scholar; Gray, John H., China …, 2 vols. (London, 1878)Google Scholar; Legge, James, The Religions of China … compared with Christianity (London: Hodder and Stoughton, 1880)Google Scholar; Beal, Samuel, A Catena of Buddhist Scriptures from the Chinese (London: Trubner & Co., 1871)Google Scholar.

13 A technical term used to determine the application of law to an individual to whom two or more systems of law may apply. For example, A is born in Blueland, lives in Blackland, marries in Yellowland, divorces in Greenland leaving children in each place and finally dies in Whiteland leaving property in all places plus farms in France and Turkey and a bank account in Switzerland. Which law(s) governs (a) validity of marriage, (b) propriety of divorce and (c) distribution of estate? This is not a fanciful example. For more complex examples and current solutions see any textbook on conflicts of laws/private international law.

14 Indeed so. See for example, Hooker, M.B., The Personal Laws of Malaysia (Kuala Lumpur: Oxford University Press, 1976), Chapter 5Google Scholar.

15 Fone Lan v. Ma Gyee (1903) L.B.R. 95; Burma Law Reports (Agabeg's Reports) ix.i.196.

16 Although in Pai Beng v. Ko Maung (1904) L.B.R. II 263, citing Fone at p. 265, Mr. Justice Chitty was prepared to say “ … there is no use in attempting to discover what would be the customary law in China on the point….”

17 Apana Charan Chowdry v. Shwe Nu (1907) L.B.R. IV 124.

18 In this case, the Indian Succession Act, 1865.

19 This is not unique. In the Straits Settlements the problem was the “Christian Chinese”. Was he subject to, e.g. the Christian Marriage Ordinance or customary law? See Daw, Rowena, “Some Problems of Conflict of Laws….”, Malaya Law Review 14 (2) (1972), pp. 179–208Google Scholar.

20 Thein Shin et al.. (1914) L.B.R. VIII 222.

21 This was a reference to a standard text of the time, Parker, E.H., “Essay on Comparative Chinese Family Law” (1879/1880), China Review 8, pp. 67–107Google Scholar.

22 Ma Shein v. Kim Sein (1915) L.B.R. VIII 225.

23 Ma Pwa v. Yu Lwai (1916) L.B.R. VIII 404.

24 Sein Kyi v. Ma E (1916) L.B.R. VIII 399.

25 Sir Charles probably went a little far in citing Brinkley v. A-G (1890) L.R. 15 P.D. 76 on the marriage of an Irishman to a Japanese woman in Japan according to Japanese forms. (See judgement at p. 403.)

26 See Schiller, A.A., “Conflict of Laws in Indonesia”, Far Eastern Quarterly 2 (1942–1943), pp. 31–47CrossRefGoogle Scholar.

27 See the reference above n. 19 to Daw.

28 See Hooker, M.B., A Concise Legal History of South-East Asia (Oxford: The Clarendon Press, 1978), pp. 182–83Google Scholar.

29 Kyin Wet v. Ma Gyok & Ors (1918) L.B.R. IX 179.

30 Then follows a set of extracts from the following books: Edkins, Joseph, Religion in China (London: Trubner & Co., 1878)Google Scholar; SirLyall, Alfred, Asiatic Studies (London: John Murray, 1899)Google Scholar; Johnston, R.F., The Three Religions of China (London: John Murray, 1913)Google Scholar; Giles, , Confucianism and its Rivals (London: Williams & Norgate [Hibbert Lectures], 1915)Google Scholar.

31 The court actually says this at p. 184.

32 This also disposed of the contrast “China Buddhist — Burma Buddhist”, classes given in Apana's case.

33 This is the effect of Maung Kwai v. Yeo Choon Yone (1919) L.B.R. X 159 and Maung Po Maung v. Ma Pyit Ya (1923) I.L.R. 1 Ran. 161.

34 In Maung Po — above n. 33 at p. 168Google Scholar.

35 Ma Sein v. Ma Pan Nyun (1924) I.L.R. II Ran. 94 at 97.

36 See generally Moscotti, Albert, British Policy and the Nationalist Movements in Burma (Honolulu: University Press of Hawaii, 1974)Google Scholar.

37 Man Han v. R.M.A.L. Firm (1926) I.L.R. IV Ran. 110.

38 This last in a reference to the saving provision — s. 13(3) of the Burma Laws Act, 1898.

39 A view later supported in V.R.M.A.L. v. Man Han (1927) I.L.R. V Ran. 443.

40 Ma Yin Mya v. Tan Yauk Pu (1927) I.L.R. V Ran. 406.

41 See O.H. Mootham, op. cit. n. 4 for detail.

42 Called lex loci contractus.

43 The Special Marriage Act, 1939.

44 Chan Pyu v. Saw Sin (1928) I.L.R. VI Ran. 623.

45 O.H. Mootham, op. cit. n. 4 at pp. 50ff

46 That is: Hong Ku, Fone Lan, Maung Kwai, Maung Po Maung, Ma Sein and Man Han.

47 Sottomayor v. de Barros (No. 2) (1879) 5 P.D. 94.

48 Maung Dwe v. Khoo Haung Shein (1924) 52 I.A. 73.

49 Hooker, M.B., Legal Pluralism (Oxford: The Clarendon Press, 1975), pp. 62, 101 for referencesGoogle Scholar.

50 Excluding, of course, the Vinaya.

51 Especially Sottomayor v. de Barros (1877) L.R. 3 Probate Div. 7 and Chetti v. Chetti (1909) L.R. Probate Div. 87. These cases are still important in respect of marriages with a foreign element.

52 Phan Tiyok v. Lim Kyin Kauk (1930) I.L.R. VIII Ran. 57.

53 In English law reports a headnote is a brief summary of the legal issues, the results, and a list of the authorities on which the decision is based. The technical details for Phan's case are as follows:

Chinese Buddhists — Law of inheritance and succession — Burmese Buddhist Law inapplicable to Chinese Buddhists — Chinese Buddhists governed by Succession Act (XXXIX of 1925) — Burma Laws Act (XIII of 1898) s. 13(1) and (3) — “The Buddhist Law”, meaning of and to whom applicable — Chinese Customary law — Justice, equity and good conscience, the law of.

There follows the authorities (i.e. earlier precedent) considered.

54 This is a reference to s. 13(3) Burma Laws Act 1898, a catch-all which allows a high degree of judicial direction.

55 Contrary to the finding in Hong Ku.

56 There relationship is more complex than this. See Okudaira, R., “The Burmese Dhammathat”, Laws of South-East Asia, Vol. 1, ed. Hooker, M.B. (Singapore: Butterworth, 1986), pp. 41ffGoogle Scholar.

57 His emphasis.

58 Indian Succession Act, No. 39/1925, esp. s. 118.

59 Hooker, M.B., Legal Pluralism, pp. 55ffGoogle Scholar.

60 Hooker, M.B., The Personal Laws of Malaysia and the references citedGoogle Scholar.

61 Tan Ma Shwe Zin v. Tan Ma Ngwe Zin (1931) I.L.R. X Ran. 97

62 The Code had five books: General Principles (1929), Obligations (1929), Rights Over Things (1929), Family (1930), Succession (1931).

63 Ma Sein Byu v. Khoo Soon Thye (1933) I.L.R. XI Ran. 311.

64 This was of course a common practice. The references to the texts in notes 12 and 30.

65 Ma Kyin Hlaing v. Maung Kyin Swi [1937] Ran. L.R. 90.

66 Sources cited included Jamieson, , Chinese Family and Commercial Law (Shanghai: Kelly & Walsh, 1921)Google Scholar; Parker, E.H., “Comparative Chinese Family Law”, China Review 8 (1879/1880): 67–107Google Scholar; von Mollendorf, P.G., Family Law of the ChineseGoogle Scholar. See also Daw E. Thin v. Maung San Thein [1939] Ran. L.R. 258.

67 [1937] Ran. L.R. 103.

68 [1939] Ran. L.R. 548.

69 Author of Background to Indian Law (Cambridge: Cambridge University Press, 1946)Google Scholar.

70 It is interesting to note that the myth of the Indian origin still continues into the late 1930s.

71 Binding force of precedent from the same jurisdiction in a P.C. appeal from the same jurisdiction.

72 Yin Win Lin v. Ma Kyin Sein [1940] Ran. L.R. 685.

73 Listedin the judgement at p. 691 as follows:

It had been held consistently in the Courts of this country since the case of Fone Lan v. Ma Gyee and others (1), a decision dating from 1903, with one or two exceptions, until the decision of their Lordships of the Privy Council in Tan Ma Shwe Zin and others v. Koo Soo Chong and others (2) that Chinese customary law was the law applicable to such cases of inheritance or succession in Burma amongst members of the Chinese community domiciled in Burma. Those cases are as follows:- Fone Lan v. Ma Gyee and others (1); Ma Pwa v. Yu Lwai and one (3); Kyin Wet v. Ma Gyok and others (4); Ma Shwe Thit v. Maung Kyin and one (5); Maung Po Maung and one v. Ma Pyit Ma (a) Ma Thein Tin (6); Ma Sein v. Ma Pan Nyun and two (7); Chan Pyu v. Saw Sin and others (8); Tan Ma Shwe Zin v. Tan Ma Ngwe Zin and others (9); Ma Sein Byu and another v. Khoo Soon Thye and others (10); Ah Pein v. M.C. Deva and another (11) and Oon Chan Thwin and another v. Khoo Zun Nee and another (12). In all these cases Chinese customary law was applied. The sole exception are Apana Charan Chowdry v. Shwe Nu (13), where it was said that Chinese Buddhist Law, if any, would apply and not Chinese customary law; Thein Shin and one v. Ah Shein (a) Hoke Shein (14), where it was said that justice, equity and good conscience should be the rule of decision; and the Full Bench case of Phan Tiyok and another v. Lim Kyin Kauk and others (15), where the Indian Succession Act was said to be the law applicable.

74 Yup Soon E v. Saw Boon Kyaung [1941] Ran. L.R. 285 and Tan Swee Kyu v. Chan Chain Lyan [1947] Ran. L.R. 107.

75 Cyong Ah Lin v. Daw Thike [1949] Burma Law Reps. 168.

76 Chan Eu Ghee v. Iris Maung Sein [1953] Burma Law Reps. 294.

77 See “keittima” in O.H. Mootham.

78 Legal administration under the “Burmese way to Socialism” is ludicrous, except of course for the Burmese who have to suffer under it and for whom it is anything but amusing.