Categorical confusions: gender and the colonial construction of the ‘Chinese Buddhist’ in Burma

Abstract

AbstractBritish law in colonial Burma separated the legal personhood of imperial subjects by religious status. However, colonial law failed to clarify boundaries around religious categories. This lack of clarity was amplified when the court was forced to consider how to apply Buddhist law between different Buddhist communities, like the Chinese and Burmese. Owing to differences in how marriage, divorce, succession, and other rights are handled in Chinese- versus Burmese legal traditions, recognition as either Chinese or Burmese carried significant weight. Through a historical anthropology of Chinese-Burmese Buddhist family law in colonial Burma, this article argues that the British colonial judiciary’s failure to appreciate connections between Burmese and Chinese Buddhists produced novel legal segregations of mixed communities. Further, this categorical splitting was generated along gendered lines, where judicial acceptance of men’s claims of Chinese separateness disenfranchised native, mixed, and migrant women who sought to foreground their connections to Burma.Keywords: Burmacolonial lawgenderBuddhismSino-Burmese Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 This paper uses the term ‘Burmese’ as a broad descriptor inclusive of both the majority Bamar and other Buddhist majority groups like the Shan and Mon (often termed ‘Talaing’ in colonial-era sources). While these are distinct groups, colonial courts treated them as a unified group of ‘Burmese Buddhists’ who enjoyed the same personal religious law. In all the cases I have reviewed, non-Bamar Burmese, litigants such as Shan or Mon (Talaing), follow the same patterns as Bamar litigants, and do not seek to supplant normative understandings of Burmese Buddhist law with legal entitlements specific to their cultural background.2 In her chapter on the ‘Kalai’ in Burma, Beyer’s work also shows how colonial legal structures can facilitate the production of novel groups in diasporic contexts, though these also require a great deal of work from people within the group that is coming into being, as well (Beyer Citation2023, 138–174).3 To be clear, Ne Win does signal his disdain for South Asians, whom he refers to as ‘kala,’ in this speech, but foregrounds the ta-yoke, Chinese, who he describes sending family members to Singapore, Hong Kong, Australia, and America to smuggle goods out of Burma (Working People’s Daily 1982).4 In re. India, see Derrett 1961; Mallampalli Citation2011; Newbigin Citation2013; Sha (Sharafi, Citation2014). In re. Malaya and the Straits Settlements, see (Hussin, Citation2009); Yahaya, Citation2020.5 It is difficult to conclusively say that the courts viewed the Chinese as simply ‘Buddhists’ before the passage of the Burma Laws Act, though the limited sources that would speak to this question offer support to this proposition. These sources include the 1881 case of Hong Ku and Hock Kung vs Ma Thin, where a lower court judge unceremoniously accepts testimony of a Chinese migrant’s hybrid religious practices as evidence that he is Buddhist before that verdict is overturned on evidentiary grounds, and the 1897 case of Ma Gyan vs Maung Su Wa, in which a Chinese couple present to the courts and are uncritically accepted as Burmese Buddhists ( Hong Ku and Hock Kung vs Ma Thin Citation1881; Ma Gyan and Maung Su Wa Citation1897). Here, I take the silence of the archives (Decker Citation2013; Thomas and Fowler Citation2017) as further evidence of the case in point. While a systematic survey of cases involving the personal law status of Chinese Buddhists in Burmese reveals only these two cases before 1898, dozens of cases would immediately emerge in the years after the present case of Fone Lan vs Ma Gyee (Citation1903) ushered in the jurisprudential notion that Chinese and Burmese Buddhisms offered their adherents legally distinct personal law statuses.6 He uses the terms Burmans and Burmese Buddhists interchangeably. See also note i.7 E.g., Leong Hone Waing V Leong Ah Foon, II Lower Burma Rulings, 1929.8 I have only come across this dynamic in relationship to marriages between a Chinese man and a Burmese woman.