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Law, Religion and the British
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3:41 AM
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, espe- cially when they had to deal with succession, inheritance or marriage in cases where both parties were Buddhists. The section did however not apply to Bud- dhist 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 Brit- ish 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 sur- prising 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 rea- son 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, Portu- guese 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.
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 sur- prising 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 rea- son 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, Portu- guese 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.
