The military created a new court called The Chief Court. In 1965, the Chief Court gave a decision in Maung Ko Gyi -v­Daw On Kin²⁴ addressing the sources of Burmese law Justice Maung Maung (who later became Burma's Judicial Minister and then President) directed judges to seek the Burmese law not in the common law, but from dhammasattha (Buddhist law texts) based on 'lawkabala taya' or the 'principles upholding the universe'.²⁵ Remedies such as certiorari, mandamus, habeas corpus were not used after 1962. They were not officially removed, but have never since been granted by courts in Burma.,²⁶

In 1972 the legal system was significantly restructured, and there were two significant developments impacting on the potential for the common law. The first of these was that the judiciary became part of the executive and legislature, as part of the one party state. The second significant development was that a "system of people's justice" removed an independent judiciary and replaced this with panels of three party members (usually without legal training) who made decisions. The panel was ad­vised by legal advisers (ex- judges) but their advice could be ignored.

In 1973, a government manual for the courts directed judges on where to (and where not to) find the law The manual stated that judges should not refer to any decisions from other countries. It also directed that judges should not even refer to earlier decisions of Burma's courts because "the circumstances vary from case to case depending on different social and historical factors" .²⁷ This created a significant restriction on the operation of the common law: a judicial system that discourages reference to previous judicial decisions is, almost the contrary of how a com­mon law court arrives at its decision.

3.4 1974 onwards
The legal system's restructuring of 1972 was formalised in the 1974 constitution.²⁸ This constitution had one aspect that could support the continuation/use of common law. This was an article directing that the "Administration of justice shall be based on ... principles [including: (a)] to administer justice independently according to law .. [b] to dispense justice in open court unless otherwise prohibited by law .. [and (c)] to guarantee in all cases the right of defence and the right of appeal under law".²⁹ Arguably, these provisions could give some support to an independent judiciary. However, much of the operation of the 1974 constitution was contrary to the common law. This can be seen in various matters like:

- the constitution provided direction on how cases are to be decided;³⁰
- the validity of government acts were only determined by parliament, not the courts;³¹
- parliament, not the courts, was now the body responsible for interpreting the constitution;³² and
- the 'judiciary' and courts were formed from members of the parliament.³³

One of the main obstacles to the common law under the 1974 constitution was the removal of judicial independence. This was undertaken because "now the working people of Burma are in charge, the checks and balances offered by an autonomous bureaucracy and judiciary are no longer necessary". ³⁴ These changes were particularly evident in the lack of judicial tenure,³⁵ the imposition of non judicial responsibilities (for example that the "Administration of justice shall be based on the ... principles ... to protect and safeguard the Socialist system"³⁶), and that the courts were now responsible to the parliament.³⁷

Did the common law continue after these developments? It's a question on which commentators disagree although the weight of opinion is that the common law effectively ended. A UK aca­demic considers Burma has been "dislodge[d]...from the common law family into the socialist law family" .³⁸ He sees this having happened through three particular developments: (1) the 1965 Maung Ko Gyi -v- Daw On Kin decision, (2) the legal system's re­structuring in 1972, and (3) the 1974 constitution. A recent decision of a superior court in the United States of America agreed, stating "...the socialist regime of the 1960s and 1970s...ended the common law system in Burma".³⁹ In that case, however, an opposing voice considered that "Burmese law has remained a common law system right through the antisocialist military coup of 1988 up to the present century".⁴⁰ This was the view of a legal expert called by parties associated with Burma's military rulers.

And what of contemporary Burma? The 1998 coup re­moved all previous legal institutions, ⁴¹ and so it is a valid question to ask what is the current relevance of common law concepts. There is certainly a lack of judicial independence:

- There is officially no separation of powers. The military announced it exercises executive, legislative and judicial power.⁴²

24. Maung Ko Gyi v Daw On Kin (1965) C. C. 913, as reported in A Huxley, `The Last Fifty Years of Burmese Law: E Maung and Maung Maung', 1998, Lawasia: Journal of the Law Association of East Asia and the West Pacific, 9-20, available at <www.ibiblio.org/obl/docs/The_last_50_years_ of_ %20Burmese_law.htm>, accessed 11 December 2006.

25. As reported by A Huxley, 'The Last Fifty Years of Burmese Law: E Maung and Maung Maung', 1998 (see note 24 above).

26. Myint Zan, 'Judicial Independence in Burma: No March Backwards Towards the Past', Asian-Pacific Law& Policy Journal (2000), <www.hawaii.edu/aplpj/pdfs/ 05-zan.pdf> at 19, accessed 14 December 2006.

27. Forward to Courts Manual, 1973 Chief Court Press, Rangoon, as reported in Myint Zan, 'A Comparison of the First and Fiftieth Year of Independent Burma's Law Reports', [2004] VUWLRev 14, available at <www.upf.pf/recherche/IRIDIP/RJP/RJP10/08%20Zan.pdf> accessed 11 December 2006.

28. The Constitution of the Union Of Burma (1974), available at <www.blc-burma.org/html/Constitution/1974.html>, accessed 11 December2006.

29. Article 101, 1974 Constitution.

30. Articles 101 & 202, 1974 Constitution.

31. 'The validity of the acts of the Council of State, or of the Central or Local Organs of State Power under this Constitution shall only be determined by the Pyithu Hluttaw', article 200(c), 1974 Constitution.

32. Articles 200(a)&(b) & 201, 1974 Constitution.

33. Articles 95 & 103, 1974 Constitution.

34. A Huxley, 'The Last Fifty Years of Burmese Law.' E Maung and Maung Maung', 1998 (see note 24 above).

35. Article 97, 1974 Constitution.

36. Article 101, 1974 Constitution.

37. Article 104 1974 Constitution.

38. A Huxley, 'Case Note: Comparative Law Aspects of the Doe v Unocal Choice of Law Hearing', (see note 12 above).

39. Decision of Chaney J, Superior Court of California, John Doe & o'rs -v- Unocal Corp & o'rs, 2003, <www.ccr-ny.org/v2/legal/corporate accountability/docs/ UnocalCALawDecisionl.pdf>, accessed 11 December 2006.

40. As reported in A Huxley, 'Case Note: Comparative LawAspects of the Doe v Unocal Choice of Law Hearing', (see note 12 above).

41. Paragraph 1 of Announcement No 2/88 of the State Law and Order Restoration Council, 18 September 1988.

42. State Law Order and Restoration Council, Announcement on Separation of Power, 27 July 1990, Announcement No. 1190, as reported in M Weller (ed), Democracy and Politics in Burma, National Coalition Government of the Union of Burma, Thailand, 1993.

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