Myanmar’s military regime has amended the Bar Council Act, effectively putting the council back under the control of the junta.
Coup leader Senior General Min Aung Hlaing on October 28 introduced two new amendments to the Bar Council Act, abolishing the right of lawyers to elect the council and so enabling the regime to appoint the legal body.
Under the amendment, the Attorney-General and Chief Justice of the Union will appoint members to the council.
“Lawyers have lost the right to elect members to represent them. The council has been put back under the total control of the regime like it was in the past,” said a legal expert who wished to stay anonymous.
As the Bar Council is authorized to issue and revoke advocate licenses and to regulate advocates, lawyers are likely to face tougher restrictions under the amended law, said legal experts.
“There will be restrictions and controls on lawyers applying for advocacy. And there will also be politically-motivated restrictions and instructions to existing advocates. [The amendment] will affect the freedom of advocates,” said another legal expert.
The Bar Council Act was first passed in 1929 under British colonial rule and specified that council members were to be elected democratically.
However, after the Bar Council advocated for lawyers to participate in protests against the former military regime during the 1988 pro-democracy uprising, the then junta’s State Peace and Development Council (SPDC) amended the act. The SPDC amended two articles in 1989 to say that council members could be chosen only by the Chief Justice of the Union.
Subsequently, many lawyers involved in the pro-democracy movement were arrested and imprisoned or had their licenses revoked.
The Bar Council Act was amended again in 2019 under the now ousted civilian National League for Democracy (NLD) government, allowing all the licensed lawyers in the country a vote to elect the council. Eleven members, including the vice-chairperson and secretary, were elected to the council for the first time the following year after decades of control by the military regime.
Four members – U Nyan Win, U Kyaw Ho, U Thet Swe and U Aung Kyaw Min – from the Union Legal Aid Board, which was formed in 2017 with lawyers from the NLD, were among those elected to the council.
U Nyan Win was arrested by the regime following the military’s February 1 coup and later contracted coronavirus while being detained in Yangon’s Insein Prison. He died on July 20 at Yangon Hospital.
U Khin Maung Zaw, who served in 2020 as the Bar Council secretary, is currently acting as the head of the legal team for detained State Counselor Daw Aung San Suu Kyi. He has been barred by the regime from speaking to the media about her trials.
In response to the junta’s amendment of the Bar Council Act, U Khin Maung Zaw wrote on his Facebook: “I am no longer the secretary of Bar Council. But I am still Daw Aung San Suu Kyi’s lawyer and a human rights lawyer.”
Another member of the elected council who asked for anonymity said: “[The vote] was abolished. I have no comment on that.”
A Bar Council without elected members means that there will no longer be checks and balances on legal processes and procedures, said a legal expert.
“Just as the democratic rights of citizens are dying away, so the suffrage, rights and entitlements of advocates in legal and judicial fields are being restricted and gradually put under [junta] control,” he added.
Since the coup, the junta has changed dozens of legal provisions in the Penal Code to suppress the anti-regime opposition. It has also imposed gagging orders on the lawyers acting for Daw Aung San Suu Kyi, imposing a total media blackout on her ongoing trials and those of detained President U Win Myint.
The gag order was issued by the junta-controlled General Administrative Department rather than judges. Lawyers have criticized that as a move to influence the judicial process, saying it is against the long-established legal principle that a fair trial should be held in an open court.
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