A Brief History of Burma/Myanmar
Pre- colonial Burma was a civil law jurisdiction. Native Burmese law took the form written law-texts (called dhammathats), interpreted and applied by specialist lawyers (called shene). Burmese law was not only a developed formal legal system; it was also a substantive law focused on alternative dispute resolution rather than formal litigation. Sadly, the advent of the British effectively destroyed the pre-existing Burmese Law, relegating its application solely to religion, marriage and succession, similar to Singapore and Malaysia.
The common law system did not perish upon Burma’s independence in 1948, despite the strong nationalist sentiment. It was sought as the framework upon which the damage inflicted on its legal system by colonialisation was to be repaired. However, the military coup of 1962 saw a radical redesigning of the legal system - a political move towards socialism disguised as a move away from common law towards traditional Burmese Law. The SLORC military coup in 1988 put Burma under martial rule. While the laws and legal system largely remain intact, under the rule of man there is little hope for a fair trial.
Verily, for a country once colonised by the British, Burma remains the furthest removed from the Common Law family, failing even the test of the rule of law.
Socio-cultural Factors and Their Legal Implications
We will now examine how the different social structures of countries in the region influenced their reception of common law system and draw comparisons between them.
Multi-culturalismin Society as Opposed to Unified Social Structure
During the reign of Henry II in England, the cultural diversity there mirrored the socio-cultural situations in Southeast Asia. The law, then, was administered by local courts which applied various local customary laws developed by different counties. The common law system was born out of these, in a bid to achieve greater uniformity of law.
Similarly, largely due to trade and immigration, multiculturalism was evident in Singapore and Malaysia. Cultural divisions created problems in dispute resolutions when questions arose as to what, or whose standards ought to apply to serve justice. Colonial masters exploited the lack of a consolidation of a unified legal system to impose their ideals of fairness. This lack of homogeneity allowed for ease of transplantation of common law.
Even so, the common law had to be informed by the local context. Social situations prevented judges from rendering judicial decisions consistent with English common law as prevalent Chinese, Muslim and Hindu customary laws had to be respected and preserved.
Transplanting the common law system into Burma was exteremely onerous because of its pre-existing unified social and legal structure. The British exploited their power to eradicate the local structure, making common law the dominant legal system. England-trained lawyers replaced shenes and, Burmese knowledge of dispute settlements and Burmese courts were legislated into oblivion. These changes faced abrasive effects within Burma.
In Singapore and Malaysia, colonial judges retained customary laws. In Burma, the pre-existing legal system was relegated to narrow customary laws. Buddhist Law guided British courts when dealing with succession, inheritance or marriage in cases where both parties were Buddhists. There, the common law system had only to accommodate Burmese Buddhist Law as a native custom, and was scarcely affected otherwise.
Influence of the Local Customary Laws on Reception of the Common Law System
An extension of multiculturalism is the array of customary laws developed by individual cultures. The legal systems of Southeast Asian nations may be likened to a river fed by several tributaries of different laws. The bulk of the river water is indigenous, but significant contributions are traceable to feeder streams that originate from the English common law.
Naturally, the importing of common law was hindered by the need to respect and preserve customary notions of justice. Where a divergence between common law principles and customary laws exists, the former must be modified as to prevent it from operating unjustly and oppressively on the locals. Such was illustrated in common law’s recognition of “special polygamy” in Singapore and Malaysia during colonization.
The colonial judiciary had faced difficulties dealing with Chinese polygamy laws due to the paucity of available literature. As monogamy was deeply entrenched in the common law, Colonial judges did not recognize the legitimacy of Chinese polygamous unions.
To reach a compromise, Court of Appeal in ‘Six Widows’ stated that the ‘widows’, be they ‘principal’ or ‘inferior’ were entitled equal share distributions under the Statute of Distribution. The welfare of concubines was looked after by the Statute of Distribution, which took precedence over Chinese custom (which excluded females or illegitimate children from rights of inheritance).
Eventually, common law judges settled on “special polygamy”, where the ‘tsip’ [concubine] was imbued with status of “polygamous wife” to accommodate to Chinese marriage laws. Traditional Chinese legal concepts were distorted because the “tsips” were elevated to status of principal wife and was entitled equal inheritance rights.
Oppression and injustice were not completely prevented when common law was modified to benefit concubines of Chinese polygamous marriages. Instead, the application of common law was made in accordance to colonial judiciary’s standards of fairness. Although judicial law-making was more pronounced then, the extent of its effectiveness in dispensing fairness and justice was relatively limited.
Political and Economic Factors
Singapore and Malaysia have similar histories. Colonised by the British for trading purposes as part of the Straits Settlements,the common law was introduced into the region in 1826 through the Second Charter of Justice. In the absence of existing commercial codes, English commercial law was used via the Civil Law Act for commercial certainty.
Extent of the reception of Common Law
The common law is an important strand of Singapore and Malaysia’s politico-legal fabric. They are similar in having inherited the English common law tradition and share the accompanying benefits of stability, certainty and internationalisation. The pivotal doctrine of judicial precedent in common law, is present in both systems. In addition, they have abolished appeals to the Privy Council, and are not bound by decisions from England and other commonwealth jurisdictions. Secularity is also present in both systems due to the separation of religion from the state.
The English Common Law heavily influenced the development of their laws. This is more evident in certain traditional Common Law areas than in statute-based areas. In the latter, Indian and Australian legislation have strongly influenced their content and approach. Also, both countries exercise independence in drafting new legislation to suit local contexts.
Minor differences in their respective receptions are that, in Singapore, the Application of English Law Act was enacted in 1993 to restrict the scope of English influence. No such act exists in Malaysia. Also, in the area of Contract Law, while Malaysia’s laws are codified by adopting the Indian Contracts Act, Singapore uses English common law principles.
Issues Arising Regarding the Reception of the Common Law
Singapore has made significant departures from the English courts even in traditional common law areas, and has seen extensive developments of local jurisprudence.
For example, in the law of torts, the Singapore courts have consciously deviated from the English exclusionary rule so as to allow recovery for pure economic losses arising from negligent acts or omissions. More recently, in the law of contract, Singapore has chosen not to adopt the English position on equity’s jurisdiction in the case of unilateral mistake. In comparison, Malaysia’s legal system has seen fewer innovations and may be isolated from the international legal sphere as portions of jugments are published solely in Malay.
Judicial Independence in Singapore
Judicial independence is pivotal to the common law system. The links between the judiciary, business and executive arm in Singapore suggest a risk of judicial bias. However, Singapore’s reputation for fairness and impartiality especially in commerical law and its popularity as a jurisdiction for arbitration and trial in South-East Asia suggests otherwise.
Judicial Independence in Malaysia
In the mid 1980s, Article 121 of the Federal Constitution was amended to transfer judicial power from the courts to parliamentary enactments, making the judiciary subordinate to the legislature. The Constitutional crisis of 1983-4 also showed how the executive could employ law to tilt the prevailing balance of power between itself and the monarchy.
In the 1990s, the impeachment of Lord President Salleh Abas for alleged misconduct showed that law had become a means to political pursuits. Constitutional guarantees were no longer a guarantee against executive assault. The Ayer Molek Saga also created the public perception that the judiciary could be swayed by the interests of large businesses, and poison pen letters containing allegations of corruption, replete with incidents, details and names of delinquent judges, were widely circulated. It is obvious that the Malaysian judiciary not an equal branch of government capable of providing checks on executive prerogative and power.
Comparing India
The extent of reception of common law in India differed greatly in different eras. Under Company rule, administered by the British East India Company, the common law was poorly applied upon its introduction in 1727 as the company was concerned with keeping order, not developing judicial institutions. The three common law courts applied it rigidly as the English judges were poorly informed of local considerations. Its application was also inconsistent as common law initially applied only to English citizens and Indians charged.
However, following the 1857 Sepoy Mutiny, the colonial masters paid more attention to India, declaring her a crown colony in 1858. British cabinet ministers put directly in charge of India, and law commissions were set up to adapt English common law into Indian legal and procedural codes with reference to India’s cultural and legal needs. Such efforts resulted in the drafting of the Indian Penal Code, a codification of much of Hindu law, and the Indian Contracts Act that codified contract law comprehensively.
From this, we can identify the development of Indian legal thought by using English common law as a starting point, from which a distinctly Indian common law was developed. As a legal transplant, after the initial failure of administration, the common law was indeed well-received, and its co-existence with Hindu, Christian and Muslim law only shows India’s legal system’s independent development. Indeed, from the Indian example, it can be seen that the common law is a legal transplant that can accommodate local needs to a great extent, and as such it is ideal for such borrowing.
Conclusion: Common Law as a Legal Transplant
The value of the common law as a legal transplant is in that it is able to jump-start newer legal systems, allowing fledgling systems to benefit from years of legal development. In addition, when laws are transplanted, potential investors who are familiar with these laws are more confident in their investment, encouraging economic growth so pivotal to the development of countries. Since such a transplant satisfies the rule of law and principles of natural justice, it gives guidances to new systems with regard to procedure, while being just and fair.
As the common law is rooted in practicality and appropriateness of approaches to fact situations, the extent of judicial independence and the ability to distinguish cases is appropriate for transplantation, as it can accommodate local issues and contexts. From the above discussions, with the exception of the Burmese example, we conclude that the common law legal system is readily able to co-exist with other legal systems, and this generally peaceable ability to co-exist is very much in the spirit of effectiveness and adaptability so desirous in the common law.
Bibliography
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Pierre Legrand, “The Impossibility of ‘Legal Transplants’” (1997) 4 Maastricht Journal of European and Comparative Law 111
R.L. Abel “Law as Lag: Inertia as a Social Theory of Law” 80 Michigan Law Review 785
Sandra Joireman “The Transplantation of the Common Law in Kenya and India”, International Studies Association conference paper
Burma Lawyer’s Council, Legal issues on Burma Journal, No.8 – April 2001,
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J.W.F Allison, A Continental Distinction in the Common Law (Oxford University Press, 1996)
Robert C Beckman, Brady S Coleman & Joel Lee, Case Analysis and Statutory Interpretation (Faculty of Law, National University of Singapore, 2nd ed 2001)
Andrew Huxley, The Last 50 Years of Burmese Law: E Maung and Maung Maung ("LawAsia" 1998:9-20, 1998)
Douglas E. Edlin, Common Law Theory (Cambridge University Press, 2001)
H. Patrick Glenn, On Common Laws (Oxford University Press, 2005)
Kevin Y.L. Tan, Essays in Singapore Legal History (Singapore Academy of Law, Marshall Cavendish International (Singapore) Private Limited, and writers)
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Alan Waston, Legal Transplants: An Approach to Comparative Law (University of Geroga Press, 2nd ed 1993)
Buxbaum, David C, Family Law And Customary Law in Asia: A Contemporary Legal Perspective, (Martinus Nijhoff Publishers, 1968)
Collins Cobuild English Dictionary for Advanced Learners 4th edition, published in 2003 (HarperCollins Publishers 1987, 1995, 2001, 2003)
Sharifah Suhanah Syed Ahmad, Malaysian Legal System 2nd Edition, Lexis Nexis, A Division of Reed Elsevier (Singapore) Pte Ltd 2007
Asean Law Association
Wendy Chang Mun Lin, “Historical Overview” in Legal Systems in ASEAN: Singapore, Chapter 1,
Asmida bt Ahmad, Fork Yow Leong, Paul Linus Andrews, “Tracing The Development of The Legal System” in Legal Systems in ASEAN: Malaysia, Chapter 1,
Legal Journals
Andrew Phang Boon Leong, “The Singapore Legal System – History, Theory and Practice” (2000-1) 21 Sing LR 23-61
TTB Koh, “Legal Crossroads: Towards a Singaporean Jurisprudence” 8 Sing LR 1
Robert C. Beckman, “Divergent Development of The Common Law in Jurisdictions Which Retain Appeals to The Privy Council” [1987] MLR 25
Walter Woon, “Of Cut-Off Dates and Domination: Some Problematic Aspects of The General Reception of English Law in Singapore” [1986] MLR 20
Abdul Aziz Bari, “British Westminster System in Asia – The Malaysian Variation” Jan 2007, Volume 4, No.1, (Serial No.26) US-China Law Review, ISSN1548-6605, USA
KKS Wee, “English Law and Chinese Family Custom in Singapore: The Problem of Fairness in Adjudication” (1974) 16 Mal LR 52
Allison (1996) and Abel (1982) respectively.
When one deals with a transplanted rule, its meaning is distilled by the interpreter and applied accordingly, but this reading will always be informed by the cultural background the rule comes from or the context of the place it is being transplanted to. As such, rules are necessarily incorporative cultural forms.
In contrast to legal transplants in the context of legal theory.
Like rationality, justice, liberty, humanity and philosophy.
The doctrine of stare decisis states that decisions made by higher courts within a particular judicial hierarchy are binding on the lower courts, and must be followed.
Legislated statutes are also interpreted and given meaning and context.
The successor of the old Sultanate of Melaka.
Adat Temenggong is Malay customary law pertaining to the Malays and is patrilineal in nature. Adat Perpatih, on the other hand, is matrilineal.
Under British rule, Singapore, Penang and Melacca were collective known as the Straits Settlements.
The State Law and Order Restoration Council, now known as the State Peace and Development Council (SPDC)
Multiculturalism is defined as‘a situation in which all the different cultural or racial groups in a society have equal rights and opportunities and none is ignored or regarded as unimportant.’
Andrew Huxley, The Last 50 Years of Burmese Law: E Maung and Maung Maung ("LawAsia" 1998:9-20, 1998)
Burma Lawyer’s Council, Legal issues on Burma Journal, No.8 – April 2001,
In bringing guidance to colonial judges serving in multi-cultural societies in the Straits Settlements, Maxwell R enunciated, “The question how far the general rules of the law of England are applicable to races having religions and social institutions differing from our own, is of occasional recurrence in this court, and it is seldom free from difficulty. It has been repeatedly laid down as the doctrine of our law that its rules are now applicable to such races, when intolerable justice and oppression would be the consequence of their application.” Chulas & Anor v Koulson (1867) SLR Leic 462, Court of Judicature, Prince of Wales’ Island, Singapore and Malacca, per Maxwell R.
KKS Wee, “English Law and Chinese Family Custom in Singapore: The Problem of Fairness in Adjudication” (1974) 16 Mal LR 52
A product of common law during colonisation period, presently, the Intestate Succession Act 1985 (Cap 146)
This was earlier iterated in Lee Joo Neo v Lee Eng Swee (1887) 4 Ky 325 (HC)
Buxbaum, David C, Family Law And Customary Law in Asia: A Contemporary Legal Perspective, (Martinus Nijhoff Publishers, 1968)
The doctrine of judicial precedence involves vertical and horizontal stare desisis states that the ratio decidendi in the decisions of the higher courts bind lower courts, and that of previous courts bind later courts respectively, unless the case can be distinguished. Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.2.
It must be noted that even though Syriah law is present in both countries, it is considered as a separate legal system from common law.
Such as Contract, Tort and Restitution. . Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.4.
Such as Criminal Law, Company Law and the Law of Evidence. . Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.4.
Age of Majority Act in Malaysia and the Multi-Level Marketing and Pyramid Selling Act in Malaysia.
Murphy v Brentford District Council (1991) Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.6.
Anns v Merton (1978) Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.6.
Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (2002) Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.6.
Chwee Kin Keong v Digilandmall.com Pte Ltd (2005) Eugene Tan, Gary Chan, “The Singapore Legal System; Articles on Singapore Law (1,2005)” at para 1.3.6.
In the 2008 Political and Economic Risk Consultancy survey, it was reported that Singapore has the best judicial system in Asia, together with Hong Kong. On the scale of zero to ten (zero representing the best performance and ten representing the worst), Singapore obtained a 1.92 while Malaysia obtained 6.47.
In July 1983, the Malaysian Government presented a bill to parliament proposing amendments for the constitutional position of certain hereditary Malay rulers which erupted into a constitutional crisis which threatened to paralyse the processes of government. Randal P. Peerenboom, ‘Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S.’ Routledge Curzon, 2004
Also known as “Surat Layang” in Malay