Constructing Religion by Law in Myanmar

Since 2011 the transition to a quasi-civilian government, a slate of legal reforms have seemed urgent, none more surprising and prominent than legislative reform on religion. Yet these laws come in the wake of serious anti-Muslim violence, and may have the effect of further restricting the behavior and activities of non-Buddhists. This article examines the relation between religion and law in Myanmar more broadly, and questions how law has been used by the state to construct the idea of religion and “acceptable” religious practice. It seeks to demonstrate that law has influenced the way religion is practiced and understood in Myanmar, shaping both relations between religious communities and the state, and relations between Buddhist and non-Buddhist communities.

There are three areas where law has been used to regulate and limit religious life and practice in Myanmar since independence. The first area is personal law and inter-religious relations as regulated by statute and case law. The second realm is constitutional law and the role of religion in public life. The third area is the control of the Sangha through the legal regulation of disputes and education, and the application of criminal law. The way in which the state has engaged with each of these issues has changed over time and been tightened by successive socialist and military regimes. This has led to an instrumental relationship between law and religion in contemporary Myanmar. I demonstrate that the use of law as a control on religious affairs promotes a religion of legality, where the state uses law to redefine the parameters and legality of religion in Myanmar.

Personal Law and Inter-religious Relations

The Recognition of Personal Law

In Myanmar today, the legal system recognizes personal law for four religious communities: Buddhists, Muslims, Hindus, and Christians. The origins of personal law in Myanmar are related to the country's former status as part of the British colonial empire (Crouch forthcoming 2015b). Through the Burma Laws Act 1898, Upper Burma came under the umbrella of British India as the final stage of annexation. This was also significant because it allowed for the recognition of customary law in matters of family personal law. Yet the field of customary law was both a concession and a colonial construct. It only recognized customary law to the extent that it dealt with matters of “succession, inheritance, marriage or caste, or any religious usage or institution.” The Burma Laws Act included customary law for three religious communities: Buddhists, Muslims, and Hindus.¹ This area of law largely consists of case law, although there was some legislation passed for Hindus and Christians, based on similar legislation passed in British India during the colonial period.

What became known as Burmese Buddhist law was a selective body of law derived from the time of the kings. But scholars generally agree now that it is neither “Buddhist,” as it is not a religious text, nor is it “customary” in the sense of being a collection of customs passed down over time (Huxley 1989, 24). While other countries have attempted to codify their systems of personal law, an attempt to codify Burmese Buddhist law in the 1920s failed (Aye Kyaw 1994). The only law in relation to family law for Buddhists is the Registration of Kittama Adoptions Act 1939,² which regulates the inheritance rights of an adopted son or daughter according to Burmese Buddhist law. One reason that this area of law is important is because there is no right to testate in Myanmar (Huxley 2014, 69) and so disputes over inheritance are often brought before the courts.

Aside from Burmese Buddhist law, the area of personal law that has attracted the most public attention is Islamic law. Myanmar has a diverse Muslim community (Crouch forthcoming 2015a), and disputes that are brought to the courts can be determined by Islamic personal law in the areas of marriage, inheritance, and divorce. This is governed entirely by case law, based on English-language handbooks that emerged during the period Burma was under British rule (Crouch forthcoming 2015b; Hooker 1984). Some legislation was copied from British India and appears to have had little practical effect in Myanmar, such as the Kazis Act 1880 that allowed the government to appoint a kazis (that is, qadi or judge) to preside at a marriage or other ceremony. Other laws continue to have a significant influence over the distribution of property, particularly the Mussalman Wakf Validating Act 1913 that provides for the creation of wakf (the dedication of property for a charitable purpose) either for the purpose of supporting children or descendants, or for the person's own benefit, or for payment of debts. The Mussalman Wakf Act 1924 further provides for the supervision and accountability of wakf. These laws were copied from British India and were intended to protect the interests of Muslim landholders (Kozlowski 1985). Many Islamic religious sites are still held under this legislation today, and further research is needed in this area given the pressure on land in areas where there is a high level of development, such as downtown Yangon.

Yet the issue that was most frequently brought to the courts was the issue of inter-religious marriage or conversion, often where one partner was Muslim and the other Buddhist. The question before the court was often which law—Burmese Buddhist law, or Muslim law—would apply (Ikeya 2013). In Myanmar, inter-religious marriage came to be perceived as a “problem” in the context of a marriage between a Buddhist woman and a Muslim man. As I will show, this stereotype persists in discussions since 2013 to enact a new law that would regulate inter-religious marriage with a non-Buddhist man. I will show the history of this debate, and that the Buddhist Women's Special Marriage Law No 50/2015 is simply a revised version of the existing 1954 Act, and therefore a re-enactment of old debates.

Regulating Inter-religious Marriage and Divorce

The debate on whether to regulate inter-religious marriage by law can be traced to legislative discussions in the late 1920s, but the proposal did not gain momentum until the 1938 riots against Muslims and Indians in colonial Burma. These riots led to the death or injury of many people, and the destruction of homes and mosques in particular. After the incident, a Committee was established by the colonial authorities to investigate the riots. In its report, the Committee included the notes of a meeting convened on 26 July 1938 by the General Council of the Thathana Mamaka Young Sanghas Association at the Shwedagon Pagoda (Riot Inquiry Committee 1939). These meeting notes contained several resolutions, including that “The Government be urged to immediately enforce the Buddhist Women Special Marriage and Succession Bill.” The report therefore linked anti-Muslim sentiment and conflict with perceived concerns that Buddhist women who married Muslim men were being forced to convert and their right to inheritance was reduced under Islamic law.

As a result, in 1939, the Buddhist Women's Special Marriage and Succession Act No 14/1939 was approved by parliament with the purported aim of protecting Buddhist women who marry a non-Buddhist man in terms of their rights to inheritance and divorce. There were a high number of Indian male migrants in Burma during the colonial period (many of whom were Muslim), and some of these married Burmese Buddhist women. It was often the case that the Burmese Buddhist woman would convert to Islam in order to marry. These marriages came to be resented intensely by Burmese Buddhists (Chakravarti 1971, 11). The perception was that by marriage to Muslim men, Burmese women forfeited their right to joint ownership of property and had diminished inheritance rights according to Islamic law. So the Buddhist Women's Special Marriage and Succession Act was introduced as a measure to protect the rights of Buddhist women who chose to marry a Muslim man. The law came into force in April 1940, but it was rendered redundant by the War.

After the War, the issue of inter-religious marriage and the perceived need to provide greater protection of Buddhist women arose again. In 1953, the Muslim Dissolution of Marriage Act³ was introduced to modify and limit the system of personal laws by allowing Muslim women the right to divorce. Introduced by then Minister for Justice U Khin Maung Latt (a Burmese Muslim), the purpose was to allow Burmese women who had converted to Islam to marry to be able to divorce their husband (Yegar 1972, 77). This is because many Indian Muslim men had to flee Burma due to the anti-Muslim tensions and risk of violence, and in doing so they had left their Burmese wives behind. As Tinker has noted, however, some of these Indian men probably left their wives well provided for (1986, 42). Many Burmese women were in a situation where they were formally married but as they had been left by their husbands they were unable to move on with their lives by obtaining a divorce under Islamic law.

The Muslim Dissolution of Marriage Act appears to have been modeled on the similarly named Dissolution of Muslim Marriages Act 1939 from India. The Indian legal counterpart was recognized as a “radical piece of social legislation” because it granted Muslim women the ability to divorce, while at the time Hindu women in British India did not have this right (De 2009). In Burma, although the Muslim Dissolution of Marriage Act stated that it did not affect Islamic law, this was with the exception of a woman's rights to divorce under the law. The basis on which a divorce would be granted included if her husband's whereabouts are unknown; if he was found to be mentally unwell or suffering from certain diseases; if he had failed to support his wife financially for six months (the Indian equivalent was two years); if the wife was underage when she was married; if he was physically abusive toward his wife; or any other ground of divorce recognized according to Islamic Law. A provisional divorce could also be granted by a court if the husband had failed to live with his wife for one year. The final divorce could not be granted until four years had passed and if the husband came to the court during this period, the provisional divorce decision would be canceled. The law also clearly stated that divorce is effective immediately if a married Muslim woman decides to change her religion. This essentially legalized apostasy, that is, conversion out of Islam, and mandated that apostasy had the effect of invalidating a Muslim marriage. The law conveyed further benefits on women by stating that the granting of a divorce did not affect the women's right to dowry under Islamic law, in effect allowing a woman to convert out of Islam yet keep her dowry.

The Muslim Dissolution of Marriage Act 1953 was followed by the introduction of the Buddhist Women's Special Marriage and Succession Act 1954⁴ that revised and updated the 1939 Act. The Buddhist Women's Special Marriage and Succession Act 1954 regulates the procedure for an inter-religious marriage, which is assumed to be a marriage between a non-Buddhist man and a Buddhist woman. The law requires a non-Buddhist man who intends to marry a Buddhist woman to inform a local officer in writing (s 6). The women must be over 20 years old, or if she is between 14 and 20 years old she must have the consent of her parents. The process allows time for any objections to be filed with the court concerning the proposed marriage, although any false objections filed are subject to a penalty. The final decision whether to allow the inter-religious marriage or not rests with the court. A couple married and registered according to this law are required to be governed by Buddhist law in terms of possession and property, guardianship, and divorce. That is, if a Muslim man married a Buddhist woman and they had a dispute over inheritance or divorce, he was no longer able to bring a case to court under Islamic law. If the husband later sought a divorce, the woman would have the right to have custody of the children and the husband must still provide financial support. This was because Buddhist personal law was perceived to be more favorable to the rights of women than Islamic law.

The issue of inter-religious marriage, and the rights of women who seek to exit from such a marriage, have remained an ongoing issue in Myanmar. This was demonstrated again in 2012, when the Chief Justice of the Supreme Court, U Htun Htun Oo, issued a directive that addressed the issue of inter-religious marriage, as published in the annual volume of the Myanmar Law Reports. The instruction prohibits a judge from validating a marriage between a foreign man and a Burmese woman unless the man is Buddhist.⁵ This appears to be based on the common presumption that a “foreign man” means a Muslim man, and a Burmese woman means a “Burmese Buddhist woman.” This instruction is not new and refers to a previous instruction of the Supreme Court (Directive No 2/1998). The 1998 directive required that all courts reject an application for a marriage between a foreigner and a Burmese woman. The 2012 directive mentions the losses faced by Burmese women, by which it presumably means the reduced inheritance rights that a woman has under Islamic personal law. It declares that the Buddhist Women's Special Marriage and Succession Act 1954 still applies and yet it goes beyond this and suggests that only non-citizens who are Buddhist can marry Buddhist women. In addition, all marriages must be approved by an official marriage registrar, that is, a judge of either a Township Court, District Court, or State/Region High Court. While upholding this measure of protection for Buddhist women, it still recognizes that “Islamic Law” should be applied to a Muslim couple in cases of personal law.

In terms of its source of authority, the directive does not cite any references aside from the Buddhist Women's Special Marriage and Succession Act 1954. Interestingly, this directive was issued prior to the violence that broke out in Rakhine State in 2012, and so does not appear to be in response to this incident, nor in response to the debates on the proposed bill restricting inter-religious marriage that first emerged in 2013. The 2015 Law is said to have been drafted by the Supreme Court, but in fact it simply adapts and revises the existing Buddhist Women's Special Marriage and Succession Act 1954. There are only minor additions to the 1954 law, such as that it is now an offense for a man married to a Buddhist woman to insult Buddhism and it introduces a penalty for such an offense. This is unnecessary, given that there are several existing provisions in the Penal Code that could be used to prosecute a person who is deemed to have insulted a religion. The Bill was passed by the Union Parliament in July 2015, but the real issue lies in whether the law is actually implemented. Clearly the 1954 Act appears to have fallen into disuse, if it was ever actively enforced at all, and it is likely that the new law may meet a similar fate if and when anti-Muslim sentiment dies down.

In addition to the law on inter-religious marriage, three other bills on topics of population control, polygamy, and conversion have been pushed by the Buddhist nationalist movement led by the group known as Ma-Ba-Tha.⁶ law regulating conversion can also be seen as being linked to and drawing from the 1954 Act, although it does go further than the 1954 law in terms of the kind of behavior it regulates and the way it seeks to institutionalize the process of religious conversion (HRRC 2015, 341–342). Further, while it has been assumed that the law on monogamy is directed at Muslims, this is not necessarily the case and the ban applies to any man to prevent them from taking a second wife. For example, in 2012 the Supreme Court heard a case concerning whether a first wife in a Buddhist marriage had the right to divorce her husband given that he had married a second wife without her consent.⁷ The court held that the first wife did have a right to divorce and that the husband lost his right to his share of the property in this case because of his abusive behavior toward his first wife. The court justified this on the basis that the husband had a history of affairs with other women, and his behavior was said to be against Burmese culture. Nevertheless, prior to the monogamy law, polygamy was legal for Buddhists in Myanmar.

Therefore, despite the perception among the international community that these are new issues, the Buddhist Women's Special Marriage Law is simply a reflection of past, long-standing debates over inter-religious marriage in Myanmar and the perceived need to protect Buddhist women.⁸ What is different now is that social conditions have changed dramatically, and there is little evidence of large numbers of non-Buddhist men marrying Buddhist women. Even if there was, the law seems to discount the fact that a Buddhist woman may willingly choose to marry a non-Buddhist man, and so in this way it potentially limits the freedom of the women it claims to protect.

The Constitution and Religion in Public Life

The second aspect of the relation between religion and the state in Myanmar concerns constitutional law. The position of religion in the Constitution has been contested since independence, and many ethnic groups today still insist that Myanmar should be a secular state. Prior to independence, during the drafting of the Constitution, there were some members who proposed the constitutional recognition of Buddhism. General Aung San, the leader of the independence movement and national hero, was said to have been opposed to this proposal (Smith 1965, 230). Based on the original draft Constitution, Burma therefore would have been a secular state. Yet Aung San was assassinated before the Constituent Assembly debates were finished in 1947. When debates resumed after his death, the draft Constitution was revised based on U Nu's proposal to include a provision that recognized the special position of Buddhism. This was adapted from the provision in the Irish Constitution that preserves a “special position” for Catholicism,⁹

The 1947 Constitution recognized that Buddhism had a special position as the religion of the majority of the population (s 21(1)), but it also provided for equality before the law regardless of religion and prohibited discrimination based on religion (s 13, 21(3)). The right to religious freedom could only be limited on the grounds of “public order, morality, or health and to the other provisions of this Chapter” (s 20). The Constitution also specifically noted four other religions or beliefs that were followed at the time—namely Islam, Hinduism, Christianity, and Animism. There were no reported court cases during the period of parliamentary democracy, so it remains unclear how the special position of Buddhism was to be reconciled with the recognition of other religions.

This uneasy and ambiguous balance between the special position of Buddhism and the recognition of other religions changed when the 1947 Constitution was amended in the early 1960s. This amendment was highly controversial and compromised any remaining idea of a secular state in Burma. The impetus for this constitutional amendment came as early as 1956, when U Nu, leader of the faction of the Anti-Fascist People's Freedom League renamed the Union Party, declared that he intended to make Buddhism the state religion (Maung Maung 1963, 117). Following the caretaker government, U Nu successfully contested the elections of February 1960, in part because of his promise to make Buddhism the state religion. A State Religion Inquiry Committee was subsequently appointed to consider the proposal to make Buddhism the state religion (Maung Maung 1963, 119). The proposal was opposed by groups such as the National Minorities Alliance, a coalition of Muslim, Christian, and other minority religious leaders, led by Burmese Muslim and lawyer U Than Tun.

Despite the opposition to this proposal, on 26 August 1961, the proposal received the approval of two-thirds of representatives in both chambers of parliament and so the Constitution was amended to make Buddhism the official state religion.¹⁰ A provision was also inserted to compel the Union Government to allocate 50 percent of its “annual current expenditure for matters connected with religion.” This was a significant financial commitment although one that was ultimately never realized. In response to these developments, religious minorities such as the Kachin (who are majority Christian) raised concerns about the reforms as they perceived this amendment as in effect imposing Buddhism on religious minorities (Farrelly 2014).

Provisions were also added to protect and promote the teachings of Buddhism, to require the state to support the restoration of pagodas, and for the provision of hospitals specifically for members of the Sangha. Further, the amendments included a prohibition on the abuse of religion for political purposes. In addition to the Constitution, a national law known as the State Religion Promotion Act 1961 was also passed, which required all schools to teach the Buddhist Scriptures to Buddhist students, and to prisoners in prison.

After Buddhism was officially established as the state religion by way of constitutional amendment, hostility and tensions toward Burmese Muslims significantly increased.¹¹ A second amendment was passed in response to backlash from minorities. The amendment reaffirmed the teaching of religion in schools, and the right of parents to ensure their child was taught about their religion. Yet this failed to ease the political tensions of the time, and the subsequent military coup of 1962 was the end of Buddhism's short-lived status as the state religion.

There was little time for the government to implement the proposal, and the courts never had the opportunity to consider the implications of this constitutional amendment. The 1962 coup and takeover by the Revolutionary Council led to a dramatic change in state policies on religion. The Revolutionary Council repealed some laws on religion,¹² such as the State Religions Promotion Act 1961, and stopped grants to the Buddha Sasana Council, before later dissolving it in May 1962 (Tin Maung Maung Than 1993). Religious organizations were also deeply affected by the control of the Council over social life, and in 1964 all non-political organizations, including religious bodies, were required to register with appropriate authorities.¹³ The Revolutionary Council made clear in its statement on religion that monks should not be involved in politics, and that the Council itself would not use religion for political gain.¹⁴ A new constitution was not introduced until 1974, and it did not recognize the special position of Buddhism. The right to have a religion was mentioned along with the right to freedom of thought and conscience, although it was made clear that religion and politics should not mix (s 156(a)-(c)). Like other rights in the Constitution, provisions on freedom of religion (ss 22, 147) were subject to wide limitations that justified state interference in these freedoms.

These dynamics changed yet again after 1988 when the military took over and began a process of drafting a new constitution under highly contested circumstances. Culminating in the Constitution of 2008, its contents in terms of religion are very similar to those found in the former Constitution of 1947. The Constitution of 2008 recognizes the special status of Buddhism but also recognizes Islam, Christianity, Hinduism, and Animism. The Constitution prohibits the manipulation of religion for political gain, and contains a ban on inciting hatred or conflict between religious communities. It also gives sweeping powers to the Union to offer support to the recognized religions (s 363), presumably those mentioned above, at its absolute discretion. The Constitution also contains some specific restrictions, such as the statement that members of religious orders are ineligible to vote in elections (s 392(a)).

On one hand, the constitutional recognition of religion does not appear to have played a large role in contemporary debates on religious affairs. However, this is not to suggest that there is agreement or consensus on these provisions. For example, in May 2013, the first major international workshop on constitutional law in Myanmar was held. The event was attended by Daw Aung San Suu Kyi, member of the National League for Democracy, and a range of lawyers, judges, politicians, and civil society activists. The workshop drew the attention of the media, and of the Special Investigation Bureau. The first discussion of the day, however, produced a rather surprising response. The question that was asked to Aung San Suu Kyi was whether the English translation of the Constitution was incorrect in relation to the clause on religion. The participant who asked the question was from a minority religious and ethnic group, and was referring to the section of the Constitution that recognizes the “special position” of Buddhism. Aung San Suu Kyi replied by saying that no, she thought that the English translation was correct and accurate. Yet the questioner continued to insist that the English translation was wrong and a lengthy discussion proceeded. Afterwards, when I discussed this incident with other participants, they clarified further what was really being implied. It was clear, they said, that the questioner fundamentally disagreed with the fact that Buddhism was given a “special position” in the Constitution. His question about translation was simply a way to implicitly raise his concerns in this area, without addressing this controversial issue directly. This incident is just a small example of wider concerns from religious minorities over the recognition of Buddhism in the Constitution and the ways they may seek to raise this issue.

Controlling the Sangha

A third area of state–religion relations in Myanmar, aside from personal law and constitutional law, is the way law has been used by the state to control and contain the influence of the Sangha. As a majority-Buddhist country, there has been a long history of interaction between Buddhism and the state. In this article, I only focus on legal developments after independence in 1948, although of course Buddhism was intimately related to the rule of Burmese kings in the past.¹⁵ There have been two main areas in which the state has intervened at different times and to different degrees: the regulation of the organization of the Sangha, and the criminalization of behavior that is deemed to have deviated from the accepted schools of Buddhism.

Regulating the Organization of the Sangha

The regulation of the Sangha by the state has influenced both its structural organization, the resolution of disputes concerning monastic discipline, as well as education and the propagation of Buddhism. The state has taken particular interest in regulating the organization of the Sangha in an effort to contain and control its political influence on society. While this influence goes far beyond formal national laws, here I identify national laws that regulate this area of religious practice.

There were several laws passed in the parliamentary period after 1948 that regulated dispute resolution within the Sangha. In 1949 the Ecclesiastical Courts Act—known as the Vinasaya Act—was introduced to establish a sangha council that had the authority to hear and determine all cases concerning the Sangha. Up until this time, monastic disputes could be heard by the British colonial courts, so this reform had the effect of removing monastic disputes from the jurisdiction of the general courts (Smith 1965, 217–220). In addition to the Temporary Ecclesiastical Court Act and the Ecclesiastical Courts (Amendment) Act, these laws led to the establishment of 94 courts in 15 districts with the specific mandate of resolving monastic disputes. This included ecclesiastical courts at all levels of governance—township, district, and union. This created more opportunities for leadership and hierarchy in terms of expertise on the vinaya, and in 1958 the total number of Vinayadhara sayadaws and Ovadacariya sayadaws was said to be well over 3000 (U Nu 1958, 109).

In addition to regulating monastic disputes in this way, the state set out standards for the system of education and passed several laws in this respect. Since 1948 there had been a Pali Education Board that ran the Pali examinations for lower, middle, and higher grades (U Nu 1958). From the 1950s, several new laws were introduced that subjected this area of religious practice to further regulation. The Union of Burma Sasana Council Act 1950 established the Sasana Council to promote Buddhism overseas, organize the publication and translation of key texts, and undertake missionary work in the hill tracts. Through the Pali University Act and Dhammacariya Act 1950, a Pali University was established for the promotion of the pariyatti sanana. To qualify as a college under the act, an institution needed a minimum of 10 students, which is a low threshold. The Pali University Act mandated the formation of a Pali University Central Board with 57 sangha members. By 1956, there were reportedly 48 such colleges across the country. Under the Dhammacariya Act 1950, the Dhammacariya exam was determined to be held yearly in the month of Tabaung. In addition, the Pali Education Board Act 1952 established two boards, the Pali Education Board and the Nayaka-Sayadaws Board, to supervise examinations (Smith 1965, 227; U Nu 1958, 110). These policies were later reversed by General Ne Win's Revolutionary Council in 1965, when an order was passed repealing these laws. Government media reports portrayed “leading sayadaws” as supportive of this decision as it largely affected the 83 Pali Universities, rather than the 8000 monasteries.¹⁶ The state for this period withdrew from involvement in the discipline of monastic communities.

In terms of education, in more recent decades the military state has returned to a position of regulating monastic education through the International Theravada Buddhist Missionary University Law No 10/1998 and the Tipitakadhara Tipitakakovida Selection Board Law No 37/2010. The Tipitakadhara Tipitakakovida Selection Board is formed under the Ministry of Religious Affairs, and is therefore under government control. While these laws bear similarities with past forms of regulation, one of the key differences is that since 1992 the Ministry of Religious Affairs has been a separate government department, whereas in the past it had been under the Ministry of Home Affairs. The Ministry of Religious Affairs brings Buddhist religious education and practice directly under the control and supervision of the state. The state has used law to regulate education and the organization of the Sangha, therefore controlling questions of authority and leadership, and access to qualifications in terms of education.

In relation to the organization of the Sangha more broadly, the late 1970s saw Ne Win shift to a policy that was markedly more interventionist in the affairs of the Sangha. In the 1980s, the Sangha were organized by the government under the control of a unified national council (Tin Maung Maung Than 1988). In particular, two laws were passed in the 1980s in relation to the resolution of disputes within the Sangha, but that went further and criminalized certain behavior, as I discuss below.

Criminalization of Dissent

The state has used law to prohibit and punish behavior within monastic orders that is deemed unacceptable or deviant from accepted teachings. This included the Vinaya Dharmakan Disputes Settlement Law No 3/1980 and the Protection of Decisions in Vinaya Dharmakan Disputes Law No 9/1983.¹⁷ The law makes it a crime for a person to disobey decisions of the Sangha Council. This includes if a monk who is disrobed attempted to wear his robes again, if a person disguises themselves as a monk or nun, and if a person propagates teachings that are against the teachings of the Buddha. These offenses attracted a penalty ranging from six months prison to five years. This can be seen as an effort to enforce greater uniformity on the Sangha and to give the state-backed Sangha Council members more power to control those affiliated with it.

After the 1988 democracy uprising, a new law was added, the Law relating to the Sangha Organization 20/1990. This law was said to have been introduced after monks in Mandalay refused to accept alms from Internal Security officers and their families. Raids took place at a large number of monasteries in Mandalay, and many sects were declared illegal (HRRC 2015, 337).The law only recognizes nine sects in particular, and prohibits the establishment of any new sects. It also requires all sangha organizations to be subject to the supervision of the Sangha Nayaka Committee, and prohibits any attempts to undermine the sangha organizations. Breach of the provisions in this law attracts a term of imprisonment between six months to three years. This law remains in force today and is a key means to punish dissent by members of the sangha, alongside the use of the Penal Code.

The 2012 Supreme Court case of Shin Nyana (aka) Shin Moe Pya (Monk) v Republic of the Union of Myanmar ¹⁸ illustrates the way law is used to criminalize religious non-conformists. A monk was alleged to have rejected the supervision of the State Sangha Council by establishing his own religious order commonly known as “Moe Pya.” In 2010, criminal charges were brought against him and he was subsequently tried in at least three separate cases (Crouch 2014b, 149–151). He was sentenced to three years’ imprisonment under the Law relating to the Sangha Organization No 20/1990, which provides that if a monk establishes a “new sect” or organization that is not under the supervision of the State Sangha Council (ss 8–9) then he is liable to a prison term of between six months to three years (s 12). In the second case, the monk was sentenced to two years’ imprisonment for defiling a religious place of worship under section 295 of the Penal Code. In the third case before a court, he was sentenced to five years’ imprisonment under section 6 of the Law Relating to Forming of Organizations No 6/1988 for insulting the Sangha and promoting ideology that was said to be inconsistent with the teachings of Buddhism. The accused appealed against all three court decisions but the appeal was dismissed by the court. He then applied for special leave to appeal to the Supreme Court but was again dismissed. Not willing to give up, he then applied for a writ of certiorari to repeal the three decisions on the basis that a person cannot be tried for the same offense three times. This is because the decisions were inconsistent with provisions of the Penal Code and the Criminal Procedure Code that do not allow a person to be tried for the same offense twice. The case was dismissed on a technicality, as the Supreme Court held that it could not hear writ applications in relation to its own judgments, only in relation to inferior courts.

This is not an isolated case, although it is rare for cases of religious and political dissent to have been recorded and publically reported in the annual Myanmar Law Reports of the Supreme Court. This is just one example of a monk who was prosecuted for alleged deviance from the accepted, state-sanctioned Buddhist establishment. It is a demonstration of the use of criminal law to punish those who do not conform to the teachings of Theravada Buddhism as understood in Myanmar, and as a way for the state, through the Sangha Council, to exert its authority over religious leadership.

Conclusion

Contemporary configurations of religion and state in Myanmar echo and in many instances continue old policies and keep alive the mutual suspicion between monks and state authorities. In terms of the future of religious personal law in Myanmar, this will depend to some extent on whether the new law regulating Buddhist women's marriage to non-Buddhists is actually enforced or not. If it is, it may have the effect of both reducing the scope of Islamic personal law and reducing the freedoms of women. The separate system of personal law for Hindus, Muslims, Buddhists, and Christians is likely to remain based on case law for a long time, as there are no current efforts to codify this area of law (unlike in other countries around the world). This means that the courts, rather than parliament, will remain the most important determinant in matters of family law.

In terms of the Constitution, the provisions on religion have not been the subject of calls for constitutional reform vis-à-vis the ongoing process for amendment that began in 2013. The Constitutional Tribunal has not heard a case in relation to the religious provisions in the Constitution, although it may be possible that a challenge to the new laws on religion will be brought to the Tribunal in the future. This may put the Tribunal in the position of having to decide how to reconcile the special position of Buddhism with the recognition of other religions in the Constitution. Finally, the state's current position of regulating monastic education and monitoring the sangha through threats of criminal sanctions is one way the state continues to keep the sangha, as a potential political force, under its control.

Whatever the future may hold, it is clear that in the past law has been one instrument used by the state to construct a particular idea of what is acceptable religious practice and behavior. In particular, law has been used to compartmentalize and segregate religious communities, to restrict the influence of non-Buddhist religious practice on Buddhists, and to prevent the Sangha and voices of monastic dissent from posing a threat to state power. Given the current power of parliament and the vocal Buddhist nationalist voice, we are likely to continue to see the use of law to construct and contain religious communities—particularly non-Buddhist communities but also to some extent monastic communities, due to the contested political environment in 2015 and beyond.

Additional information

Notes on contributors

Melissa Crouch

Melissa Crouch is a Lecturer in the Law Faculty at the University of New South Wales, Sydney, Australia. Her books include Law and Religion in Indonesia: Conflict and the Courts in West Java (Routledge, 2013), Law, Society, and Transition in Myanmar (Hart Publishing, 2014), and Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging (Oxford University Press, forthcoming).

Notes

1. Burma Laws Act 1898, s 13(1).

2. Registration of Kittama Adoption Act 1939 (Burma Code, Vol XI).

3. The Muslim Dissolution of Marriage Act No 14/1953 (Burma Code Vol XI) [in Burmese].

4. Buddhist Women's Special Marriage and Inheritance Act 1954 (Burma Code Vol XI) [in Burmese].

5. Supreme Court of the Union Directive No 1/2012 on foreigners getting married to Myanmar women, dated 9 May 2012 [in Burmese].

6. For an incisive analysis of the Buddhist nationalist movement since 2012, see Nyi Nyi Kyaw (forthcoming 2015).

7. Daw Mi Mi Tun v U Maung Maung Lwin (2012) MLR (civil case) 48 [in Burmese].

8. See, for example, Horsey (2015), who appears to assume that the Bill is new and does not acknowledge that it is adapted from the 1954 Act.

9. Constitution of Ireland 1937, s 44(1).

10. The Constitution (Third Amendment) Act 1961.

11. For historical analysis of the dynamics between Buddhism, politics and the state more generally, see, for example, Smith (1965), Mendelson (1975), Spiro (1982), and Brohm (1957).

12. Law No 1/1965 repealing the Vinicchaya Department and Tribunal Act 1960; Pali University Education & Dhammacariya Act 1950; and the Pali Education Board Act 1952 [in Burmese].

13. Working People's Daily (2 April 1964) “All Organizations must Register with Government,” Vol. 1, No. 79.

14. Working People's Daily (19 April 1964) “Rev Council Wish to See Purified Sasana,” Vol. 1, No. 93, p. 1.

15. For a review of scholarship on Burmese Buddhist law, see Crouch (2014a). For a review of literature on Buddhism in Myanmar more broadly, see Perriere (2009).

16. Working People's Daily (20 Jan 1965) “Leading Sayadaws Support Repeal of Religious Laws,” Vol. 11, No. 19, p. 1.

17. Vinaya Dharmakan Disputes Settlement Law 3/1980; Vinaya Dharmakan Disputes Law 9/1983 [in Burmese].

18. Shin Nyana (aka) Shin Moe Pya (Monk) v Republic of the Union of Myanmar (2011) MLR (Criminal Case) 126 [in Burmese].