2.3 Common law shortcomings
It should not be thought, however, that the common law is always beneficial to an individual's legal rights and standing. Various common law rules conflict with human rights standards or contemporary understandings of the rule of law. For example under the common law there is no right of appeal - when a court makes a decision, if there is no appeal available under the country's constitution or statutory laws, then that decision is final.

The common law also provides various immunities or legal protections for a government. Most of these derive from the concept of sovereign immunity which originated when the government was the monarch. Historically, the monarch was above the law and so the government's actions cannot questioned in any court - 'crown immunity from suit' prevented most legal proceedings being commenced against the government regardless of the cause of action. Many of the immunities originally recognised by the common law have been amended/removed through parliamen­tary statutes. For example in the UK through the Crown Proceed­ings Act 1947, and in many countries the national constitution provides that legal proceedings can be taken against the government. However, if there is no statute or constitution addressing this, you need to be aware of common law limitations. There are other crown immunities, which may result in legal proceedings against the government being struck out, including:

- immunity from the 'unwritten' law - such as common law claims in tort and contract;
- immunity from the written law, that is from the applica­tion of statutes that apply to the community generally. Even when immunities don't prevent the claim being initiated, there are other immunities that can protect the government dur­ing the proceedings. Immunities can also enable the government to withhold evidence if it considers the public interest requires the court and the parties not to have the evidence. Another crown immunity is that the government is immune from execution against its assets, which limits a successful plaintiff's enforcement options.

3 Relevant developments in Burma
Burma's legal history affects what use can be made of the common law in Burma today. In order to properly understand and assess the role for common law principles in contemporary Burma, it is necessary to consider some of Burma's legal history.

3.1 Pre-independence
Following the first contact between various Kingdoms in Burma and the English in the 1600s, a series of wars ended with Burma becoming part of the colony of India in 1886. It remained part if India until 1934 when it became a separate English colony. So it is also necessary to consider the common law in India because this impacts on Burma's legal system.

India was not a 'settled' colony of England, and so the common law only applied through actions/decisions of the government. The presence and power of the East India Company, which exercised governmental powers, saw the common law apply first only in certain areas in India, and then later throughout the colony but only to certain persons. However, by the time of Burma's absorption into the English colonial empire, the authorities had decided that English law (and those common law aspects of it) applied to all of the territory but not to matters governed by the personal law of Hindus and Muslims (eg. marriage, inheritance, religion). Over time, much of the law in India was codified - collected into the Anglo-Indian Codes dealing with various subjects (eg. procedure, criminal law etc). This occurred to an even greater extent than it had in England. For these codified areas of law, all the previous statutory and case law became redundant - the source and extent of the law was now simply what was written in the code. Many areas were 'codified': criminal law, civil procedure, evidence, contract, and some equitable laws. Many common law concepts were transferred into these codes (eg. hearsay, habeas corpus, best evidence rule) and so these concepts exist in India's legal system. However the source for these laws then became the code, NOT the common law.

In Burma, as in other colonies, the colonial powers used the local legal system to assist their rule. They were happy for it to continue and develop in areas that didn't interfere with English interests. This resulted in two sets of laws in same jurisdiction, with differing application depending on subject. In Burma, Burmese Buddhist law governs, for practising Buddhists, laws of marriage, divorce, inheritance, succession (ie. division of property where there is no will), in effect becoming a type of mixed jurisdiction.

Burma, like other English colonies, used the Privy Council (part of the UK's House of Lords) as the highest court of appeal in Burma's legal system. So Privy Council decisions directed and influenced the common law in Burma. The common law in Burma was also circumscribed through statute. All the Indian acts relating to Burma were codified into the 13 volumes of the Burma Code,¹⁰originally issued by the government authorities in India and then subsequently the responsibility of the independent parliament in Burma.¹¹

10. [S]ince Burma as it was then known was administered with India, when much of the common law was codified in India the codification was similarly adapted in Burma and eventually compiled into the 13 volumes of the Burma Code', J Finch and D Schmahman 'An Updated Look at Whether Investors in Southeast Asia should enter Myanmar', Today Magazine, 1997, as reported at < www ibiblio. orgl obl/reg.burma/archives/199707/msg00054.html >, accessed 11 December 2006.

11. Encyclopaedia Britannica, as reported at <www.1911encyclopedia.org/Burma#Law> accessed 11 December 2006.

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