Category Archives: lawyers

Asia Foundation Photo Blog: Legal Aid Delivers Justice in Indonesia

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May 9, 2014 · 23:12

Allen & Overy in Myanmar

Western firms are increasingly interested in investing in Myanmar, and so are Western law firms. The Lawyer is a brief writeup of Allen & Overy’s increasing presence in the country

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Glass half full or empty for lawyers? (Myanmar/Burma)

The International Commission of Jurists has released a new report about the state of the legal profession in Myanmar. The Irrawaddy provides a nice summary of the report and its key findings. I won’t bother resummarizing the report here, but I do think it worth commenting on a few aspects.

Most of the challenges mentioned in the report are quite similar to those faced by lawyers under military rule (as discussed in Nic Cheesman’s dissertation). In other words, recent political reforms have not necessarily changed the type of problems lawyers face, but has affected the degree to which those problems hinder the work of lawyers. For example, while ICJ still reports instances of government agents harassing human rights lawyers, lawyers do seem to agree that the room for them to operate has expanded considerably.

It is also interesting that reform of the Bar Council has emerged as a key demand. During the era of military rule, the Bar Council seemed to play a relatively minor role and evinced few complaints. Of course, this partly reflects the fact that lawyers can now openly advocate for institutional reform. However, even in private interviews, lawyers often expressed disappointment with the Bar Council or dismissed it as a tool of the government, but seldom pointed to it as one of the most important barriers the legal profession faced.

In a sense, I suspect the focus on the Bar Council reflects the legal profession’s increased interest in mobilizing on behalf of causes. Aside from lawyers associated with the National League for Democracy and other political parties, the legal profession remained relatively unpoliticized before 2011. Few lawyers mobilized on behalf of cause lawyering. Since 2011, more lawyers have participated in legal aid clinics and have protested government legal aid policies. It seems lawyers view Bar Council reform as the next logical step in ensuring that they can mobilize without undue government influence.

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Red handed! (Indonesia)

Don’t get caught…

The first rule of corruption is not to get caught. The star of Indonesia’s latest corruption scandal violated that primary rule. According to The Jakarta Globe, superlawyer Hotma Sitompul was caught handing Rp 100 million ($9,700) to a Supreme Court official. The bribe was allegedly in connection to the prosecution of police general Djoko Susilo.

I’m sure there will be a lot of commentary over the next few weeks expressing outrage. Much of that outrage is well deserved. However, it’s also important to take a moment and remember that many – if not most – Indonesian lawyers are not corrupt. I have met many lawyers who are embarrassed by these sorts of corruption scandals. Some of them have even sacrificed professional opportunities in order to avoid the taint of corruption. So, in the midst of outrage, it’s also important to remember those lawyers who fight the small, constant battles everyday to improve the country’s legal system.

UPDATE (7/30/13): Jakarta Globe has posted more details of the scandal, including reactions from the bar association (Peradi).

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As I become a member of the bar, Burma’s lawyers return to the bar (Myanmar/Burma)

On Friday November 9, I was sworn in to the New York State Bar Association. It was the culmination of long years of study, tuition money, and procrastination. I’m not a practicing lawyer, so the symbolically the moment meant very little to me. But I was relieved to see that more disbarred lawyers in Myanmar are being reinstated. According to Irrawaddy, U Aung Thien, one of the NLD’s most prominent lawyers, was reinstated. At least 13 of the 24 other disbarred lawyers have also received their licenses, although Pho Phyu, an activist lawyer working on behalf of dispossessed farmers, has not. This is certainly a step in the right direction. Here’s hoping the government keeps to it.

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Trials of lawyer

The Irrawaddy has another rare look at the life of human rights lawyers in Burma. In today’s edition, there is short article about Pho Phyu, a lawyer who has worked on several human rights cases in Myanmar, from land confiscation victims to child soldiers. Pho Phyu has been arrested several times, most recently when he failed to appear before the court for a trial hearing. He was released when two of his clients – farmers whose land had been confiscated – raised the money to pay bail.

Unfortunately, there isn’t much in the way of political science literature about the role of lawyers in fostering judicial independence. However, Charles Epp (whose books are pictured here) claims activist lawyers are at least as a important as activist judges. The demand side for the rule of law is a critical and often overlooked component.

It’s certainly too early to predict anything like a rights revolution in Myanmar. However, it should be interesting to see how Burma’s human rights lawyers use the new Constitutional Tribunal – if they do at all.

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Literature Review: Burma had the first lawyers in Asia?!?

Citation: Myint Zan, Woe Unto Ye Lawyers: Three Royal Orders Concerning Pleaders in Early 17th Century Burma, 44 The American Journal of Legal History 40-72 (Apr. 2002)

Today, we think of the Burmese legal system as, if anything, a farce. Andrew Huxley, Buddhist law historian at SOAS, famously claimed that since 1988 the military has delegalized the entire system. Lawyers and judges are widely considered corrupt or incompetent. Yet, it was not always so. Before British colonialism, the Burmese empire had one of the most advanced legal systems in Asia.
Given our stereotypes about Burma (and Asia more widely), it might be surprising that lawyers played an important role in pre-colonial Burmese society. According to Huxley, Burma was “the only country between Japan and the Middle East to develop a legal profession independently of European influence.” Historians differ over when the first Burmese lawyers – the shay-nay – began their practice. Burmese Buddhist legal mythology (yes, there is such a thing) places lawyers way back in the 5th century B.C. Some Burmese historians, such as Dr. Maung Maung, claim lawyers existed even during the Pagan era. However, scholars place the latest date for the development of lawyers at 1550.
According to Myint Zan’s article, lawyers had become such a pest that the government had to regulate them. In 1607, King Anauk Hpet Lun (1606-28) issued three edicts regulating the legal profession.

1) Royal Order A

The first order prescribes a code of dress for the shay-nay: a conical hat, cloth-sling bag, carrying cup, and fan. It regulates attorneys fees to 37.5 ticals of copper. Perhaps most interesting, the order prohibits lawyers from living within the royal city walls because – I love this – “shay-nay could not help themselves from breaching the Buddhist precept against telling untruths on a daily basis.” Yes, in 1607 the Burmese king did not want lawyers to sully his court because they lie too often!

The Burmese people criticized lawyers as habitual liars long before the rest of Asia even had lawyers – and hundreds of years before the rise of ambulance chasers in America. Burma accumulated quite a repertoire of lawyer jokes. One of my favorites: “the tongue of a lawyer would not burn even in the fires of hell.”

2) Royal Order B

King Anauk Hpet Lun issued another edict regulating oral advocacy in the courtroom. The edict lists the 10 permissible styles of argumentation. This list isn’t simply about roadmapping your legal argument. They 10 styles include exotic techniques such as “duck and weave as though running away from an elephant” and “a cock’s retreat and attack.” I never studied anything like this on for the Federal Rules of Civil Procedure! Fortunately, Myint Zan provides wonderful explanations for each. For example, “duck and weave as though running away from an elephant” means evasive speech (i.e., evading an elephant). A “cock’s retreat and attack” is somewhat similar to our expression of letting somebody “hang himself with his own noose.” In the U.S., the closest equivalent might be the Model Rules of Professional Conduct or the Federal Rules of Evidence, which govern attorneys’ conduct during litigation.

3) Royal Order C

This order is both the most complex and interesting edict. It governs judicial procedure and judicial conduct. Under the edict, judges are supposed to interrogate both sides of a dispute, somewhat like the inquisitorial system in civil law countries. The judge’s role was to listen to all the testimony, weigh both sides, and discern the truth. Myint Zan also argues that the edict gives judges some discretion to interpret Buddhist law to fit the contemporary context of the dispute in the case. This has been interpreted by some scholars as the stirrings of judicial independence.

The article is an excellent piece of historical legal scholarship. The edicts employ colorful similes and examples. Myint Zan does a great job navigating the Western reader through these cultural nuances. Sadly, the British uprooted much of Burma’s legal tradition after 1886. However, scholarship like Myint Zan’s will hopefully help the Burmese legal profession regain a sense of professional pride and independence that it so desperately needs.

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