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Burma and the common law?

An uncommon question.*

John Southalan'1

What is the role of the common law in Burma's current and future legal system? It is often assumed that common law concepts are relevant to, and applicable in, Burma's legal system as they are in England and other former English colonies. However, closer analysis shows that such an assumption may be wrong in many respects. Various common law concepts have been negated by statutory laws in Burma's legal history and developments in the country's legal system between the mid 1960's and 1980's. The lack of judicial independence from 1962 onward has also been a serious impediment to the common law's use and operation. However, even if Burma obtained judicial independence to­morrow, this article suggests that earlier developments have negated many common law concepts. It is difficult to see how the common law can provide much to Burma's legal system unless there is specific legislative revival. This article also identifies areas where the common law is inadequate and constitutional or statutory arrangements should be considered for Burma's future legal system.

This article examines the issue in four stages:
1. introduction/overview of the common law;
2. outline of some common law concepts;
3. relevant developments in Burma; and
4. conclusions.

1 Introduction /overview of the common law
This first section provides a summary of the common law's ori­gins and operation. This helps in understanding how the common law worked, and can work, in Burma's legal system. An under­standing of the common law's operation also enables us to consider some of the potential limitations.

1.1 History
The common law is a system of law derived from England's legal system. The common law revolves around the concept of precedent and court hierarchy. Legal principles are established in the decisions of a superior court, and those principles must be followed by the lower courts unless parliament legislates otherwise. This means the common law, more than other legal systems, is shaped by previous court decisions and judicial approaches. It is useful, therefore, to have an understanding of the common law's history and scope.

The 1200s were significant in the common law's development. The Magna Carta gave some guarantees of legal process and other rights, and there were also the beginnings of a truly independent English parliament passing statutes to make law. Earlier 'laws' were just executive rulings of the monarch, able to be changed or revoked by the monarch at any time. The 1300s saw the beginning of wide scale recording and reporting of decisions. This greatly increased the use and importance of precedent. Many of the basics of the common law were then in place, although developments continued - in the 1800s, a series of statues codified much of the criminal law except homicide. 'Codifying' is where all the law on an area, both statutes and court decisions, are collected together and written in one statute or 'code' which then becomes the source for that law. This trend of greater parliamentary regulation has continued, and over time, more and more ar­eas are being addressed by statute rather than simply the common law Examples of this phenomenon can be seen in the fields of employment, commerce, property, and marriage.

1.2 The common law outside England
The common law started in England, but how and to what extent it is observed in other countries? The general situation is that when England acquired a colony, all English law relevant to the conditions of the colony became the law of the colony (this included both English statutory law and common law). Laws that were particular to local English conditions didn't become part of the colony's law (eg. laws about local arrangements in England, English religious practices and observances etc). Developments in English law after the colony began did not automatically be­come part of the colony's law, but the English parliament often retained power to legislate directly in relation to the colony. This usually continued even after the colony established its own parliament and legal system.

1. LLB, Barrister & Solicitor of the High and federal Courts ofAustralia. This article was written following three months' lecturing at the Pyi Daung Zu LawAcademy in Thailand and was shaped in part by the views and thoughts of the Academy's students. The author gratefully acknowledges the students' germination of ideas.

*This article was originally published in the December 2006 (No.25, pgs. 4- 24) edition of the Legal Issues on Burma Journal. It has been reproduced here with the kind permission of John Southalan and the Legal Issues on Burma Journal.


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