Dr REMI NGUYEN, French, Ph.D. in Private Law
Dr Rémi Nguyen is the founder of Myanmar Law Library. In 2018, Dr. Rémi Nguyen graduated as a Doctor in Law at CNRS (French National Center for Scientific Research). His thesis was oriented on the codification of civil law in Myanmar. In 2019, Dr Rémi Nguyen is an associate researcher at IRASEC (Research Institute on Contemporary Southeast Asia).
The perspective of a codification of civil law (resulting in the enactment of a Civil Code) in Myanmar is an interesting track and the definition of such concept must be carried on.
On the one hand, the concept of codification is a polysemous term. According to the French legal dictionary, the codification is “the action to codify and in extension, the result of this action” . Under the broad meaning, the action to codify is intended to gather, to fix, to clarify, to renovate, to systematize, to unify the provisions relative to one field by ordering them in a new body of law having the force of an act .
On the other hand, according to Maung Ba Han, “in most languages a distinction is struck between what is just of right and what is a bundle of rights. The Latin has two words for law- jus and lex. Jus means that which is just or right, and lex means a bundle of such rights. The same distinction is preserved in French. The corresponding words are droit and lois. Similarly we have in German recht and gesetz. In Burmese also we have taya and upade. But in English, the term "law" means both what is right and what is a bundle of rights" . Consequently, the legal system in Myanmar can be considered close to the one existing in Civil Law country.
Furthermore, civil law can be defined as being aimed toward the protection of individuals against others by specifying each one’ the rights and duties. In France, the three pillars of civil law are family law, contract law and property law .
As for Myanmar, civil law is defined under Appendix 1, paragraph 11 (d) of the Myanmar Constitution (2008), “Civil Laws and procedures including contract, arbitration, actionable wrong, insolvency, trust and trustees, administrator and receiver, family laws, guardians and wards, transfer of property and inheritance. Now, Parliament has jurisdiction to enact laws in Family Law, Contract Law and Property Law” .
A Civil Code is a systematic collection of laws designed to deal with the core areas of private law such as law of contracts, torts, family law, law of inheritance and sometimes, corporate law.
The main focus is to analyse whether or not the idea of drafting a Myanmar Civil Code would be practicable.
Firstly, Myanmar has a written Legal tradition. Indeed, in the Ancient Burma, the main source of law was the Dhammathat, which is defined as a treaty of laws guiding Burmese Kings . It was a compilation-codification of many sources of laws such as customary law, Pyathon and Yazathat . During the British colonisation, the codification of Indian Common Law was transplanted in Burma (compiled inside a Burma Code). This codification included many areas of law and was a “modern codification” drafted by supporters of Jeremy Bentham who is the father of the concept of codification. However, Burma Code was not applicable in the whole country. It was considered, as a tool of British control and Burmese people were not very involved in the process of stare decisis . At this time, the established Legal system could not fall into the Common Law family system.
In 1962, with the establishment of a Socialist system in Burma , the system changed and statute law became the main source of law (although it was not similar as the current system) and the process of stare decisis disappeared causing the decline of the judiciary system.
Secondly, a Civil Code can respond to the most essential needs of the country such as :
1) Intellectual need : A debate is important between scholars about the Legal History of Myanmar, the Philosophy of Myanmar Law and its evolution. What is the Family Law in Myanmar ? Does the current Contract Law comply with the Myanmar business practice ? Is property law in Myanmar clear enough for local and foreign practitioners ?
2) Social need : A Civil Code would help ensuring the understanding of lifestyle in cities and in countryside and relationships between individuals. Beyond differences (gender differences, between rich and poor, people from the North, South, West and East), all the Myanmar people would be under the same Law and same values. A social harmony is needed in Myanmar.
3) Legal need : Legal certainty is the principle that makes a legal system reliable, predictable and transparent. The concept of legal certainty evokes numerous notions such as access and knowledge of law , publicity, stability, etc. A Civil Code could provide such Legal certainty in its law area and can give clear guideline for judges, the rules being currently blurry due to the decline of judicial system in Myanmar.
4) Economic need : A Civil Code is an economic legal tool for attracting foreign investments. Moreover, the adoption of a Civil Code might help Myanmar to be in good position in the Doing Business Report of World Bank. In the 2020 ranking, the country appears at the 165th of 190 economies in the overall ease of doing business. Regarding enforcement of contracts, Myanmar is at the bottom of the ranking (187th).
5) Political need : A Civil Code could lead to a legal unity and could be the symbol of the political unity in Myanmar. Even if Myanmar will be a Federal State, the entire nation will be under the same law and same values.
