Development of Myanmar Customary Law

Presented by -
Mg Naing Aung Hlaing
LL.M (First Year) (Civil Law) (University of Yangon)
 Development of Myanmar Customary Law

the law based on long established customs practiced throughout the

history of the people of Myanmar and is the body of customs practiced
by Myanmar Buddhists.
contains the emergence and sources of Myanmar Customary Law, the
nature of the Dhammathats and the significance of judicial precedent
and enacted laws.
 The emergence and sources of Myanmar
Customary Law
After the annexation of Myanmar by the British Government,
Section 13 of Myanmar Laws Act (1898),
(1) Where in any suit or other proceeding in the Union of Myanmar it is necessary for the Court
to decide any question regarding succession, inheritance marriage or caste, or any religious
usage or institution: (a) the Buddhist law in cases where the parties are Buddhists,
means the customary law of Burmese, who, in general profess the Buddhist religion and is not
the outcome of the teachings of Lord Buddha but is a secular system of Burma.
Limchimneo (alias) Daw Kyin Nyun v. Limgeoksoo (alias) Mutu (1956), B.L.R, H.C, 248, it was
held that “Buddhist Law” means the customary law of Burman Buddhist, which can be gathered
from the Dhammathats and from the decided cases and the prevailing customs and practice of
Burmans.
Before the Myanmar Courts and legal scholars accepted the term ‘Myanmar Customary Law’, it
has been called Burmese Buddhist Law.
Later, the jurists in Myanmar acknowledged that the term ‘Burmese Buddhist Law’ is
misappropriate and uniformly recognized that social and secular law relating to Myanmar
Buddhist should be ‘Myanmar Customary Law’.
The term “Myanmar Customary Law” was emanated from the judicial decisions and the sources
are established on the Dhammathats, customs, judicial precedents of High court, Supreme
Court, Chief Court, Central Court and enacted laws.
 The nature of the Dhammathats

 a primitive source of Myanmar Customary Law.

 According to the judicial system practiced throughout the history of Myanmar,
civil cases or disputes over the succession to hereditary offices, legal cases
involving a family, disputes over inheritance, etc. are judged according to the
Dhammathats.
 do not lay down the law; they reflect the customs and the rules which act and
play in society, and when the reflections are clear, the customs and rules are
accepted as having binding force.
One of the oldest Dhammathats found in Myanmar is the Wagaru - at the end of the thirteenth
century
the Dhammavilasa in the twelfth century A.D.

At the end of the fifteenth century, the jurist Buddhaghosa translated the Manu and Wagaru into
Burmese, the latter forming the basis of the Manu Sara Shwe Myin published in 1772.
The jurist, Wonnana Dhamma Kyaw Deng who published the Wonnana in 1772, the Thara
Shwe Myin in 1771, the Wini Tsaya Pakathani Dhammathats in 1775.
Ma Hnin Bwin v. U Shwe Gon (1914), 8 L.B.R. 1(P.C), the Privy Council has held that where
the provision of Manugye (1756) are clear and unambiguous reference need not be made to
other dhammathats.
 The significance of judicial precedent and enacted laws
Judicial precedents comprise the most important source of Myanmar customary law because
some of the Dhammathats have fallen behind the changing situations of the present Myanmar
social environment as time moves on.
Daw Khin Mya Mar (alias) Mar Mar v. U Nyunt Hlaing,1972 First Civil Appeal Case No. 38, -
Myanmar customary law is changing and old Dhammathats which are not in line with the
present situation should not be followed.
 Under Myanmar customary law, to constitute a valid marriage all that is essential is mutual
consent, and not consummation. When both parties, with their mutual consent and, where
needed, the consent of the parents from both sides, have gone through the marriage ceremony,
there is a valid marriage under Myanmar customary law.
Daw Kyi Kyi v. Mrs. Mary Wain, 1971 B.L.R. (C.C)52, it was held that the legislative authorities
have to seriously consider whether or not legislative enactments need to be made in order to
make uniform marriage laws applying to all persons resident in the country regardless of the
personal religion and personal laws of such persons. The mixtures of religion and marriage, the
use of personal religion and personal law in deciding matters concerning marriage is no longer
in conformity with the times.
Thus, currently, there are five enacted laws relating to social matters directly or indirectly:
(1)The Registration of Kittima Adoption Act (1939);
(2)The Myanmar Buddhist Women’s Special Marriage Law (2015);
(3)The Monogamy Law (2015);
(4)The Religious Conversion Law (2015) and
(5) The Law regarding Population Control and Health (2015).
As a result, the principles of Myanmar Customary Law which are inadequate for the needs of
current Myanmar society.
If there were the customary law is contrary to the enacted laws, the latter will supersede the
former according to the decisions of the cases of Ma Kway v. Ma Mi Lay, 6 Ran 682 and Ma
Woung Shwe Linn v. Union of Myanmar, 1970 BLR 22.
Through such a process of application, adaptation, modification and legislation, Myanmar
customary law cis constantly progressing.
Therefore, the judicial precedents and enacted laws are fundamental in adjudicating cases
concerned with Myanmar Customary Law and they are dominant as sources of Myanmar
Customary Law.
The Latest Cases decided by the Supreme Court of the Union
of Myanmar relating to Myanmar Customary law

In the case of Daw Sandar Swe v. U Thein Win (2016, M.L.R, P-72) ,
It was held that the defendant committed a rape upon the minor daughter born by the plaintiff
and him.
Such commission caused grievous infliction of mental pain upon the plaintiff, therefore,
designate the defendant as an offender of grievous cruelty or otherwise, grievous matrimonial
fault and the defendant shall suffer loss his portion as a husband from the property owned by
both husband and wife.
This decision overruled the old Dhammathats and precedents which did not authorize that a
father raped his daughter is grievous matrimonial fault.
In the case of U Sai Kyaw Min v. U Sai Kyaw Si Thu
(2021, M.L.R, p-13)

It was held that the defendant behaves not like a son’s manner and the plaintiff presented that he
wants to declare that that son was born.
The remedy claimed by the plaintiff antecedently prevents the rights of inheritance by the
defendant that will occur when the parents die.
Thus, it is obvious that the remedy is contrary to Myanmar Customary Law.
As a result, the plaintiff has no right to declare the defendant as a son like a dog, ‘thwanokta’
before he dies.
 Conclusion

Myanmar Customary law is modernized and escalated by modifying and transforming the old
judicial precedents by the new ones to accord with prevailing conditions.
the role of judicial precedents and enacted legislations are fundamental
is ever-changing with the developing circumstances of the society
the decisions of the Supreme Court of the Union of Myanmar relating to disputes of social
matters of Myanmar people are essential in the expansion and development of Myanmar
Customary Law in the present day.