Posted in Legislative Research on Mar 12, 2020

Why is this a hot topic?

In development since at least 2015, a new bill entitled the Bar Council and Legal Practitioners Bill was introduced to the Amyotha Hluttaw by MP U Aung Thein, of Bago Region constituency no. 12, on 27th January 2020. It is known that the Independent Lawyers’ Association of Myanmar (ILAM) have been advocating and supporting the drafting of this bill.

What is a bar council?

Of central importance for systems of justice is the independence of the legal profession. This is because democracies are established on the principle of equality, including the equality of all people before the law. In Myanmar this principle is enshrined in Article 347 of the Constitution which states that ‘the Union shall guarantee any person to enjoy equal rights before the law and shall equally provide legal protection’.

To be afforded access to justice, an individual’s legal representative must act solely in the interests of their client without fear of interference. Independence of the legal profession from the executive branch of government is particularly crucial, because in criminal cases the government acts as the prosecutor and has an interest in convicting defendants.

All countries’ have institutions whose role it is to regulate the legal profession, set and maintain standards, and promote the independence and integrity of legal professionals. Variably known as bar councils, law societies or bar associations, these institutions are organised and constituted differently depending on the characteristics of a jurisdiction’s legal system. The box below introduces these main terms.

The following types of body are commonly found:

•   Bar Council: an association for legal professionals, bar councils commonly act as a disciplinary and regulatory body; and represent the profession. In countries where there is a distinction between barristers (courtroom advocates) and solicitors (general legal practitioners), the bar council role is to represent barristers only.
•   Law Society: in a country where there is no distinction between solicitors and barristers, a law society can fulfil the same functions as a bar council. However, in a split barrister-solicitor system, law societies only regulate and represent solicitors.
•   Bar Associations: bar associations can be voluntary professional associations but are often formally responsible for the education and training of legal professionals and setting the exams and/or training requirements that must be passed before someone can practice law in a courtroom.

A bar council is therefore a professional body that represents and regulates the legal profession. Membership of bar councils tends to be mandatory, and ‘passing the bar’ is a term linked to whether or not a lawyer has achieved the requisite standards to advocate in a courtroom. The various roles of a bar council are varied, but generally include:

  • A formal regulatory role for the legal profession
  • Promoting standards, codes of ethics and good practice in the legal profession
  • Providing support to lawyers, including training
  • To represent the profession, for example in government or parliamentary consultations on the justice system

In order to comply with the principle of the independence of the legal profession noted above, governance of bar councils must be fully independent from government and is therefore usually governed by board or a committee elected by the members of the bar.

In conclusion, any analysis of a law concerning the legal profession in general, and bar councils more specifically, must ask two central questions:

  • Does this law enhance the standards and integrity of the legal profession?
  • Does this law protect the independence of the profession?