After more than three decades under government control, lawyers are once again able to elect peers to the Bar Council and hope this can help to raise standards in the legal profession.
By YE MON | FRONTIER
Lawyers are celebrating the first elected Bar Council in more than three decades, after voting for the body was stopped by the military regime in 1988 because members of the legal profession sided with protesters seeking its ouster.
The election for the Bar Council, in which all licensed lawyers were eligible to participate, was organised by the Office of the Union Attorney General on August 2.
The last time lawyers voted for a Bar Council was in 1987. Since then its members have been appointed by the chief justice of the Supreme Court.
The new 15-member Bar Council will be chaired by the attorney general, U Htun Htun Oo, and its 11 elected members will elect a vice chair and secretary. The chief justice has the right to propose two judges from the Supreme Court of the Union as members, and the deputy attorney general will also be a member.
The Bar Council’s main responsibilities are to consider applications from higher grade pleaders to become advocate lawyers, which is a requirement for practising in state and region high courts and the Supreme Court.
The council is also required to investigate complaints against advocate lawyers, and advise the chief justice on their findings and recommend a response.
Lawyers hope the election marks a new chapter for the council and could bring about further reforms to raise standards in the profession and increase its independence from the government.
During the protests against General Ne Win’s regime that erupted in 1988, the council’s vice chair, Thakin Chit, and other prominent lawyers showed solidarity with the protesters by wearing black traditional Burmese jackets. Many lawyers were arrested and some received the death penalty, although the sentences were never carried out.
U Khin Maung Zaw, one of the 11 new Bar Council members, said Military Intelligence chief General Khin Nyunt launched an operation known as kyee kan sit sin yay, or “crow mission”, that targeted lawyers in 1988. The use of the word “crow” was a reference to the black tike pone – traditional Myanmar jackets – that lawyers wear.
“White coats [doctors] and black coats [lawyers] joined together during the uprising but the military only oppressed the lawyers,” he told Frontier.
U Soe Tint Yi, an advocate lawyer who was detained for 18 months after being arrested during the 1988 uprising, said the military was furious when lawyers supported the protesters.
A member of the outgoing Bar Council appointed in 2018, Soe Tint Yi ran in the August 2 election but failed to win a position on the new council.
“After we joined the 1988 uprising, I think the military wanted to destroy our role,” he said.
One of the council’s newly elected members, U Kyaw Hoe, who is also a member of the National League for Democracy’s legal advisory committee, told Frontier on August 9 that the military had been frightened when lawyers throughout the country joined the 1988 uprising and moved against the council after seizing power.
During the uprising, the Bar Council issued a statement urging lawyers to join the mass protests.
“The military leaders thought that a statement released by the Bar Council had raised tensions during the uprising,” Kyaw Hoe said. “That’s why it was dissolved.”
The Tatmadaw seized power in a coup on September 18, 1988, and installed the junta known as the State Law and Order Restoration Council.
SLORC chairman General Saw Maung amended the 1929 Bar Council Act in August 1989. The changes dissolved the Bar Council elected two years earlier and gave the chief justice the power to appoint all members, ending the council’s proud history as a free and independent body.
Lawyers say the dissolution of the elected Bar Council damaged the public standing of the legal profession and led to a decline in professional conduct and ethics.
Having lost the right to hold elections, the council became a vehicle for the military junta to ensure lawyers did not challenge its authority.
The council began revoking the licences of many lawyers who had participated in the uprising, although it never gave an official reason for punishing them.
Kyaw Hoe said that bribery and corruption in the judiciary became much more common after 1989 in part because the Bar Council let ethical standards slip.
“Everyone knows that some lawyers win their cases by bribing judges; corruption is rampant among lawyers and judges,” Kyaw Hoe said.
More reforms needed
In 2019, the NLD-dominated Pyidaungsu Hluttaw amended the 1929 Bar Council Act to enable the resumption of elections. Most changes simply reverted the law back to its original version.
Election by-laws require candidates to have 15 years’ experience and stipulate that only advocate lawyers can participate in the voting. There were 110 candidates for the 11 positions in the August 2 election.
Voting took place at 35 polling stations around the country, including four in Yangon and three in Mandalay. Before 1988, Bar Council elections were only held in Yangon, but the number of stations was expanded due to the significant increase in the number of lawyers since then.
Bar Council election by-laws say the chairperson, the attorney general, is required to convene a meeting with the newly elected members within 60 days with the approval of the chief justice.
One of the successful candidates, U Aung Kyaw Min, told Frontier on August 9 that council members would work hard to establish their independence from the government.
“Some lawyers will suspect that the attorney general and chief justice will influence the council. However, we will try to overcome this by carrying out our tasks fairly,” he said.
U Soe Tint Yi said the new Bar Council should lobby the government and lawmakers to amend the 1929 Bar Council Act because the law is out of date.
As an example, he said it does not give authority to the Bar Council to make a decision on complaints against advocate lawyers.
“The Bar Council can scrutinise a complaint against an advocate lawyer and make a finding on whether this lawyer should have their licence revoked. But then the council has to send the finding to the chief justice. The chief justice makes the final decision,” he said.
Khin Maung Zaw said he supported amendments to the law, and wanted to establish bar councils in the states and regions to provide support for lawyers throughout the country.
“Under the current law, advocate lawyers who have been punished by the chief justice have no right of appeal. I think it is unfair and should be amended – we will try to do it,” he said.
Lawyer U Robert San Aung said that the code of professional conduct and ethics for members of the legal profession should be amended because it was issued nearly four decades ago.
One section of the code, for example, bans lawyers from advertising their firms in newspapers.
Robert San Aung told Frontier on August 13 that he hoped the Bar Council would amend the law and the code of ethics during its five-year term. “The new Bar Council has a lot to do,” he said.
Aung Kyaw Min agreed that the council should focus on amending the law during its five-year term. “I believe that these 11 members can change the legal industry,” he said. “In particular we can ensure that the licences of advocate lawyers are not revoked without reason.”