Posted in Legislative Research on Mar 12, 2020
The process for legal practitioner registration can be found in this bill. Previously the power over registration was with the Union Supreme Court, but this bill transfers the responsibility to the Myanmar Bar Council (MBC) and Regional Bar Councils (RBC). Councils will mostly comprise elected advocates. This piece will compare the new bill with The Bar Council Act and The Legal Practitioners Act, and provide some recommendations.
(1) Increasing representation of legal practitioners
According to The Bar Council Act 1929, the Council consisted of 15 members, of which 10 were elected advocates. The Attorney General was chair of the Council, and an elected advocate vice-chair. The Law Amending the Bar Council Act 1989 reduced total council members to 11, removing all elected advocates. The Law Amending the Bar Council Act 2019 re-introduced 11 elected advocates, with council again totaling 15 members.
Whilst the precise numbers are not entirely clear in the new bill, it appears to have the effect of further extending the number of elected advocates. Other members on the Council will be representatives of the Union Attorney General Office (executive branch of government), and the Union Supreme Court (judicial branch).
(2) Registration and prosecution
If advocates do not register at the Union Supreme Court, according to the previous Bar Council Act, they cannot practice in Union Supreme Court or in Region/State High Courts. Higher Grade Pleaders must register at District Courts. However, this bill stipulates that lawyers have to apply not to courts but to bar councils, first for admission as an Apprentice Lawyer to the RBC, and then as a HGP or Advocate to the MBC.
Regarding complaints about ethics violations, the Union Supreme Court could previously delegate the task of investigation to the Bar Council or the District Court, in consultation with the Bar Council. According to the new bill, complaints about Advocates will go to the MBC and it can ask for them to be investigated by the Advocate Ethics and Principles Working Committee/Tribunal, or the RBC, who must report their findings and opinions. Complaints about HGPs will go to the RBC, and it can ask the HGP Ethics and Principles Working Committee/Tribunal to investigate. If dissatisfied with decisions, the bill sets out a channel for appeal.
(3) Limiting the legal practice area of HGPs
Articles 33 and 34 of the new bill say that if HGPs want to practice in another Region/State, they must submit a transfer request to the RBC where they are currently allowed to practice. That RBC will delete them from their list, and transfer them to the other RBC.
Provisions should be considered to streamline this procedure, to make it easier for HGPs to move their practice to a different region without onerous bureaucracy and delays. This could entail a simple notification process between RBCs, without completely removing them from their lists and requiring them to re-register each time.
(4) No permission to practice in a foreign court
Article 42 requires that legal practitioners who have “registered to practice in a foreign court” are forbidden from practicing law. It also appears to contradict one of the bill objectives “to raise the legal education to the international standards”, by preventing capable lawyers from practicing in foreign courts and gaining valuable experience. The reason for including this provision needs to be made clearer.
(5) Concerned with the ‘touts’
A relevant court will be given powers to list those infamous for working as touts (middlemen who seek to connect people in need of legal protection with lawyers in order to claim a commission). Before listing, those people accused would have a right contest the decision, but once listed the names would be sent to the relevant Bar Council. The bill says that listed touts can be punished with up to 3 months imprisonment, and/or a fine between MMK 1 and 5 lakh.
There are weaknesses in these provisions. Since it is the courts which are responsible for listing touts, can this provision provide an effective deterrent, given the sheer number of courts, their caseloads, and deep-rooted penetration of touts in the judicial system? The bill is unclear about how touts will be identified, and how those accused will have an opportunity to make their case and access justice if wrongly accused.
(6) Governments’ leverage through financing
Financial independence is an important way that the MBC and RBCs can be an independent and impartial organisation. The bill stipulates that the MBC and RBC can establish their own funds, and use and manage these in accordance with financial rules. Funds can be established with a grant from the state finances, and other grants/donations. However, grants from state finances come with the condition of needed Union Government or Region/State/NayPyiDaw Council approval, respectively. Here we need to consider how such an approval process might be misused to influence the councils, and other safeguards must be considered to guarantee financial independence.
(7) Overlapping powers
The bill says that the MBC and the UAGO can issue by-laws, with the consent of the Union Government. The necessity of the Union Government’s consent should be questioned. If the law is sufficiently well-drafted, it should set a clear framework within which those bodies can formulate by-laws. If a by-law is drafted that risks contradicting the law, the legislative branch, specifically the Union-level Hluttaw, has a right and powers to review the by-law concerned. Therefore, the inclusion the consent of the Union Government has to be reconsidered.
The same powers given to the MBC and the UAGO to issue by-laws, notifications, orders, directives and procedures should also be questioned. In case those issued are in conflict, it is not clear about which one has the overriding power. Thus having considered that which one should have the power to release the by-law and order, the bill must define and stipulate the role of each body in a clear and exact way.