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APPLICATION OF ISLAMIC LAW IN MYANMAR

There is no doubt that Myanmar is the Buddhist majority country although some

minority religions like Christians, Muslim and Hindus have also been living there since

long time ago. Also all religions have their own family law such as Hindu Law,

Myanmar Buddhists Customary Law and Islamic Law. This article deals with the

development and application of Islamic law in Myanmar discussing focuses on several

Eras.

The Application of Islamic Law during Myanmar Kings

Ancient Myanmar was a monarchy country; therefore the king was the absolute power

of administration, jurisdiction and legislation. No one above on the king and his

commands were last and final. They ruled the kingdom with Yazathat and

Dhammathats. The Yazathats are collection of the king’s commands and criminal law

for kingdom. The Dhammathats are collection of rulings and cases relating to civil

disputes and family matters such as marriage, divorce and inheritance. Civil law matters

were based on Buddhists faith.

King Alaungsithu (AD 1112-1165), the grandson of Anawrahta started to

formalize the legal system based on customary law which was in accordance with the

spirit of Buddhist ethics in jurisdiction. His decisions were collected as judgments,

called Alaungsithu’sPhyatHtone and it served as a code of precedent for next

generations till to nineteenth century.1

Narapatisithu, the grandson of Alaungsithu became the king of Pagan in AD

1173.The king appointed a young monk named Shin Ananda who was educated from

India; as Royal Tutor with the title of Dhammavilasa. The monk later wrote a treaty on

law, which became to be known as Dhammavilasa Dhammathat and it was the oldest

surviving law book of Myanmar today.2Then other Dhammathats were established

successively written by different legal scholars appointed by different kings throughout

the eras and they were restored and observed one dynasty after another.3

1TunMyint,Challenges Facing “State” Building in Burma: Law and Legal Dimension ( Indiana

University,2006), 4 2 Ibid, 5. 3Ibid, 6.

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Ava (Innwa) Dynasty was heir to Pagan Dynasty. At this time, the chief function

of government was maintained and supported by the Buddhists faith too.4Other

Dynasties were also Buddhists faith in jurisdiction as well as Pagan and Ava. But in

Arakan, there was Muslims influence and Courts and administrative methods followed

the Muslim’s custom.5 As the Muslim populations were increased, they were given

lands to settle down called Kaladan means “foreign dwellings” and the kings appointed

the special ministers bearing the title Kalawun to control them from their people. But

there was no information and documents about jurisdiction among them.

One successor of Kongbaung Dynasty, King Bodawpaya, known as Bodaw U

Wine as well as Padon Min(1782- 1819) founded Amrapura where numerous Muslim

populations had been living, as his new capital in 1783. He was the first Myanmar king

who recognized the Muslim law and custom in Myanmar officially by Royal decree,

appointing specific ministers to give judgments regarding conflicts amongst his

Myanmar Muslims. He appointed Aabid Shah Husainy as a Royal Chief Justice. Then

Abid Shah Husainy and his two disciples, U Shwe Lu and U Shwe Aye were given the

power to decide the conflicts among Muslims in the whole kingdom according to

Sharia. Abid Shah Husainy thus became not only the Royal chief Justice but the first

Islamic Royal Judge of the whole Kingdom also.6As a Royal Chief Justice he had to

control not only the Muslim matters but the others religious matters also. Started from

this period, the application of Islamic Law was appeared officially in Myanmar

kingdom. Decision of some cases decided by the Abid Shah Husainy according to

Sharia was recorded inside the Yaysakyo Khone Taw Phyat Htone, means rulings of

Yasakyo Court. He had served for twenty years and died in AD 1815. He wrote over 30

books about religious and Sharia during his service life.7

After this period, about Islamic Law and Sharia court was silent however

Islamic law was believed to be applied for disputes between Muslims in Myanmar.

4Chandler David P, In Search of Southeast Asia: a Modern History (Honolulu: University of Hawaii

Press, 1987), 61. 5Yegar Moshe, the Muslim of Burma: A Study of Minority Group, 19. 6Tin U, Myanmar Min Okchokpon Sadan with Appendix to King

BodawPhaya’sYazathatHkaw“AmeindawTangyi” (Yangon, Ancient Literature and Culture Section: Ministry of Culture1962-73), 176.

7 Ibid, 254

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Application of Islamic Law during Colonial Era

It cannot be denied that the implementation of Islamic law on Myanmar has been

apparently developed in British colonial era. In the days of the Myanmar monarch, the

judicial, legislative and administrative functions were not separated and kings had the

sole authority. When British annexed Myanmar and governed as the province of British

India, laws were enacted by its legislature and judicial system was started.

Since British had conquered Myanmar through first Anglo-Myanmar war, a

large number of Indian immigrants had reached Rakhine and Taninthaye. After the

second war and third war which culminated in the total conquest of Myanmar, the

tremendous Indians moved into Myanmar not only as the immigrants but as the

residents moving from one district to another within country also. From 1891 onward,

the most Yangon’s new inhabitants were Indians, half or even more of them were

Muslims.8British therefore enacted the law of family matters for Muslims in Myanmar.

First of all, British enacted The Kazis Act in 1880 and it was extended to whole

Myanmar after annexation.9 Then, the Mussalman Wakf Validating Act10 and the

Mussalman Wakf Act11 were enacted successively. The important law for the Islamic

family law, adopted by British Government was The Burma Laws Act in 189812 and so

far it has been valid.

According to section 13(1) of this Act, Islamic family law was entered into force

officially in Myanmar.

As Myanmar was a Province of British India, Judges and Courts were governed

by the India. Courts decisions were followed by the rulings of India and were relied

upon translated Islamic Law books which are written by Indian legal experts. Although

Islamic family law has been practicing in Myanmar, there are still no specific Islamic

family laws enacted by the legislative council as practicing in other Islamic countries.

Islamic family law of Myanmar therefore rely on the translated Islamic law books which

are principally based on Quran, Sunna and rulings which are decided according to this

law, as a sources of law. Besides judges are not Muslims as well as courts are not

8Yegar Moshe, the Muslim of Burma: A Study of Minority Group, 29-31. 9The Kazis Act, the Burma Code vol.11, (Rangoon: Burma, 1880), 22-24. 10 The Mussalman Wakf Validating Act, the Burma Code vol.11, (Rangoon: Burma, 1913), 24. 11 The MussalmanWakf Act, The Burma Code, vol. 9, (Rangoon, Burma, 1923), 164. 12 The Burma Laws Act, the Burma Code. vol. 1, (Rangoon: Burma, 1898), 1-2.

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specified as Sharia courts like in Islamic countries, they therefore cannot directly rely

on the primary source of Islamic law.

During 1920s and 1930s, Myanmar nationalists tried to separate Myanmar from

India. The Government of Burma Act which separated Myanmar from India however

without granting Dominion status of Myanmar was passed by British Parliament and it

became effective only on April 1, 1937. Myanmar then became a separate country from

India in 1937.13

Myanmar was although separated from India; the application of Islamic law was

not different as a province of India. But jurisdiction power was changed as highest court

and highest power of justice were inside Myanmar. Then rulings became separate from

India courts although decisions were relied on the rulings of India courts.

During 1930-1938 in Myanmar, anti-Indian riots, caused by an economic

tension broke out. At that time, the serious social result, the widespread custom of mixed

marriage between native Myanmar and immigrants of India, was the one cause.

According to the Myanmar custom, marriage is private contract between the two parties

who decide to live together. No ceremony or formality is needed to mark as a marriage

between Myanmar Buddhists as well as no necessary that the parties to be a Buddhists.

This is the different concept of marriage according to Islamic law. As the aspect

of Myanmar custom, a wife was a legal wife however she is not applicable as a wife

according to Islamic family law. Moreover, to get the legal rights of a Muslim’s wife,

she had to convert to Islam and abandon her faith in Buddhism.

The committee of riots inquiry submitted with the pressures of Buddhists public

opinion and recommended that a law to be passed to protect Buddhist women married

to foreigners. Thus, the Buddhist Women Special Marriage and Succession Bill, 1938

was issued and determined that a Buddhists women may demand that her non-Buddhist

husband marry her in civil marriage and that the children of such union inherit.14

Present Application of Islamic Law in Myanmar

Islam is one of the minority religions; Islamic family law however has been governed

for Muslims since the time of Monarchy. When it became an Independent country Islam

13Yegar Moshe, the Muslim of Burma: A Study of Minority Group, 60-65. 14Yegar, Moshe, the Muslim of Burma: A Study of Minority Group, 32-33.

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has been recognized according to its constitutions. In its first constitution which was

drawn in 1947 described that;

21(2) The State 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.15

Nevertheless this constitution was written before Myanmar was announced as

an Independence country; it was replaced by the Constitution of the Socialist Republic

of the Union of Burma in 1974.In the 1974 Constitution stated that;

Article 21(b) The national races shall enjoy the freedom to profess their religion,

use and develop their language, literature and culture; follow their cherished

traditions and customs, provided that the enjoyment of any such freedom does

not offend the laws or the public interest.16

Article 153(b) Every citizen shall have the right to freely use one’s language

and literature follow one’s customs, culture and traditions and profess the

religion of his choice.17

This constitution came to an end in 1988. Then Constitution of the Union of

Myanmar was adopted in 2008. In this constitution also describes that;

34. Every citizen is equally entitled to freedom of conscience and the right

to freely profess and practice religion subject to public order, morality or health

and to the other provisions of this Constitution.18

354. Every citizen shall be at liberty in the exercise of the following rights, if

not contrary to the laws, enacted for Union security, prevalence of law and order,

community peace and tranquility or public order and morality;

(d) to develop their language, literature, culture they cherish, religion they

profess, and customs without prejudice to the relations between one national

race and another or among national races and to other faiths.19

Moreover, as prescribed in these constitutions, every citizen has applied their

family laws according to their religious and culture. Therefore, Islamic family law has

been applied for the problems of Muslims.

15The Constitution of the Union of Burma (Rangoon: Burma, 1947)

http://www.blc-burma.org/html/Constitution/1947.html#CONTENTS 16The Constitution of the Socialist Republic of the Union of Burma (Rangoon: Burma, 1974), 5-6. 17Ibid, 32. 18 The Constitution of the Republic of the Union of Myanmar (Yangon: Myanmar, 2008), 9. 19Ibid, 150.

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However Islamic family law has been applied for Muslim community, yet there

has no codified Islamic Law. In 1937, British government attempt to pass the Muslim

Personal Law which was made by the Sharia mandatory, but it has never officially

applied in Myanmar. In addition, the general level of Islamic knowledge in Myanmar

legal system is fairly low; the Court relied upon the translations of standard texts and

rulings for the disputes among the Muslim personals.

Anyhow, the application of Islamic family law has been settled by the section

13 of Burma Law Act, 1898 which has been recognized till to date. According to this

Act, any question regarding to succession, inheritance, marriage, or any religious usage

or institution is necessary for the Court to decide with the personal Laws of Muslim.

Nevertheless, succession, inheritance and marriage are cleared itself; religious usage or

institution needs some wide definition.

It is defined that, any religious usage or institution means religious custom,

tradition, habit, organizations, and buildings which have been established.20

Moreover, some definition and procedure of Islamic family law in Myanmar can

be found in the rulings as well. In the case of Daw Ein & others v. Daw Chan Thar &

others21 ruled out that Wakf shall be decided by the Islamic family law and defined the

procedure of valid Wakf.

Besides, the meaning of Wakf, validity of Wakf and specific procedures were

laid down in the case of Saya Cair v. Daw Tin Tin & others.22 In addition, Section 1 of

the Trust Act shows that; “…But nothing herein contain affects the rules of

Muhammadan law as to Waqf…”23

Wakf is therefore the part of the Islamic family law of Myanmar and it has been

applied so far unlikely other Islamic countries.

On the other hand, Gift is decided by the Islamic family law or not is

considerable. Donation or giving for the religious purposes is totally concerned with

religious usage and religious institution. These matters are decided by the Islamic family

law is undeniable. In addition, in The Transfer of Property Act shows as follows;

20 Khin Maung Sein U, the Islamic Law (Yangon:Myanmar, 1987), 46. 21 (1940), RLR, 136 22 Saya Cair v. Daw Tin Tin & others (1994) BLR (FB) 45. 23 The Trust Act, (1882), the Burma Code, vol. 9.

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Section 129 Nothing in this Chapter relates to gifts of moveable property

made in contemplation of death, or shall be deemed to affect any rule of Muhammadan

law.

Nevertheless, gifts of moveable properties are concerned with the Islamic Law,

gifts of immoveable properties is considerable with the Transfer of Property Act. So,

gift which is done according to Sharia like Hiba is not considerable by the Islamic

family law and it is under the power of Transfer of Property Act.

Also for the essentials of valid marriage were laid down in the case24 and it has

been applied as the binding law for all Islamic marriage matters.

Moreover, the rights of inheritance and the rights of heir were ruled out in the

case of Habiba v. Swa Kyan25 and no case has been over ruled yet. Every dispute among

Muslim families concern with inheritance has been decided by translated texts and

rulings.

Although divorce matters were formerly set up by rulings and translated texts

like marriage and inheritance matters, in 1952 the Myanmar Muslim Dissolution of

Marriage was proposed and it was entered into force in 1953 despites the majority of

the Myanmar Muslim objected severely to this law. This Act was almost copied from

the similar Indian law. In accordance with this Act, Muslim woman has the right to

divorce her husband with appropriate cause and any judge whoever non-Muslim has the

power to pass judgment in a Muslim divorce case.

Furthermore, there are two kinds of Muslim as Shia and Sunni in Myanmar.

Although there can be divided several groups inside each sect but not much difference

in the view of law. The majority of Myanmar Muslims are the Sunni Hanafi, therefore

the rules of Islamic family law is more rely upon the Sunni Hanafi law.

There are no codified law, lack of Islamic law knowledge in legal system of

Myanmar, as a result, the expert opinions which come from the religious associations

or the persons are importance at the presence of the Court as the witness but not

necessarily.

Another problem is the conflict of laws for the disputes among mixed marriages

of Muslim and non-Muslim. These matters are also silent in the Burma Laws Act which

is the principle source of personal laws.

24 Maung Kyi & other v. Ma Shwe Baw [1929] ILR 7 Ran 777. 25 Habiba v. Swa Kyan (1937) RLR 322

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As Myanmar is the Buddhist country, the Government tried to prevent the

Buddhist women and the Buddhist Women Special Marriage and Succession Act was

legislated in 1954. Consequently, family law problems that occur among the mixed

marriages with Myanmar Buddhist women must be decided by this Act.

On the other hand, the problems of Islamic family law matters are under the

jurisdiction of civil courts and almost all judges are non-Muslims. Therefore Islamic

family law problems are compared and contrasted with Buddhists customs on their

sights and sometimes ruled out through the Buddhist views.

The present application of Islamic family law is not exactly same as British

colony Era and not definitely same as Sharia law of other Islamic countries but Muslims

of Myanmar has to obey it anyhow.