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 kings 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 AlaungsithusPhyatHtone 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

TunMyint,Challenges Facing State Building in Burma: Law and Legal Dimension ( Indiana
University,2006), 4
2
Ibid, 5.
3
Ibid, 6.
1

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 Muslims 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.

Chandler David P, In Search of Southeast Asia: a Modern History (Honolulu: University of Hawaii
Press, 1987), 61.
5
Yegar Moshe, the Muslim of Burma: A Study of Minority Group, 19.
6
Tin U, Myanmar Min Okchokpon Sadan with Appendix to King
BodawPhayasYazathatHkawAmeindawTangyi (Yangon, Ancient Literature and Culture Section:
Ministry of Culture1962-73), 176.
7
Ibid, 254

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 Yangons 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

Yegar Moshe, the Muslim of Burma: A Study of Minority Group, 29-31.

The 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.
9

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 Muslims 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

13
14

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

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

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 ones language
and literature follow ones 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.
15

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

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

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 Waqf23
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.

(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.

21

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
25

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

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.