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
Category Archives: legal profession
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.
I served my time in law school and have no desire to return, yet the news that Yangon University will accept 50 new undergraduate law students – the first cohort since 1996 – on December 2* is perhaps the best news I have heard from the country in many months. Previously, the university only offered law degrees through distance learning programs at satellite campuses (see Myint Zan’s 2008 article for a more detailed discussion of the problems with the legal education system). According to The Irrawaddy, Johns Hopkins University, Australian National University, and Dulles University are involved in assisting Yangon University as it revises its curriculum.
The last law curriculum I saw had a heavy emphasis on theory rather than practical skills. It was particularly puzzling to see international and comparative law on the syllabus (presumably because the military viewed those courses as politically innocuous). With the renewal of on-campus classes and continuing legal education (CLE) programs established by BABSEA, Myanmar’s legal education system might finally be starting the long road towards providing law students with the skills the need to thrive in an increasingly dynamic legal system.
* Coincidence that this is also my birthday? I think not.
There’s been a lot of news about judicial reform in Myanmar/Burma. Last month, the U.S. Agency for International Development issued a request for proposals on a rule of law project in Burma. Even more exciting, more and more lawyers in Myanmar are taking part in the reform process. Since 2010, lawyers have established legal aid networks to help indigent clients. They are now turning their attention to broader systematic reform of the judiciary. Lawyers are increasingly organizing conferences about judicial reform, such as this one reported in Mizzima. As noted by Prof. Melissa Crouch, Yangon University law schools has also become more open to engaging with foreign donors and universities. Hopefully these are signs that any legal reform process will be owned by local stakeholders and not driven by foreign donors.
The Judicial Commission announced the results of its review of judicial profession, and its findings are not encouraging. According to The Jakarta Post, 70-80% of judges had not applied judicial procedures properly.
However, the report is a bit confusing in that is critiques judges for applying procedural rather than substantive justice standards. I heard similar complaints from colleagues in Indonesia, particularly when wealthy defendants received light punishments for large crimes and poor defendants were sentences harshly for trivial offenses. Still, it’s not clear how giving judges more discretion under a substantive justice standard ameliorates this problem. If anything, it might increase opportunities for corruption.
The KY also revealed that complaints fell from 1,710 in 2011 to 1,482 in 2012, and that more judges were being punished.
Winarta suspects many lawyers believe they are helping law enforcement by informing the public about corruption suspects. Of course, this is a dilemma every law student faces – how to defend a client whom you think is guilty. In my law school days, professors advised simply not asking the client directly about his guilt, and rather focusing on matters that would help in his defense. Also, as Winarta points out, the state appoints lawyers who can focus on proving the defendant’s guilt.
However, I’m less convinced this is simply due to lack of education in legal ethics. Given the stigma attached to corruption in modern Indonesia, I wouldn’t be surprised if these lawyers might be scared that associating too closely with their defendants might damage their career. Being defense counsel in a tough case is seldom a glorious job, even in the U.S. where being a prosecutor is often seen as more prestigious and a pathway up the legal hierarchy. It might make sense for bar associations to ensure some rotation so that lawyers work on both defense and prosecution. The lawyers I’ve met who have worked on both sides seem to better appreciate the value of a zealous defense attorney in the pursuit of justice.
In news somewhat related to my last post, the Democratic Voice of Burma reports that several Burmese lawyers who had been disbarred for political reasons are now seeking reinstatement to the bar. The article claims that over 20 lawyers had their licenses revoked since the SPDC came to power in 1988. Aung Thein, a lawyer affiliated with the National League for Democracy, argued, “These lawyers were given prison sentences on political grounds have also lost their licenses – so it’s like we got two separate punishments in just one case.”
On the one hand, it’s certainly not uncommon for lawyers in other countries to lose their licenses upon being convicted of a crime that reflects upon their moral bearings. However, U Aung Thein’s statement makes two points. First, the crimes for which Aung Thein and his colleagues received sentences were political, not moral. If anything, their support for legal rights should speak well to their moral bearings. Second, in Myanmar the government revoked their licenses, rather than a bar association. Moreover, the lawyers did not get a chance to appeal the decision.
Politics aside, the ultimate tragedy may well be that, as one of the disbarred lawyers notes, “[Law] is our career profession – just like teachers. We are not rich people and having lost our lawyers licenses made a lot of difficulties for our survival.”