The Legal Advocate

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NITA International Program in Burma

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Written by NITA Program Director and guest blogger Allen Snyder

Background

I’m leaving Yangon late at night.  It’s raining, as usual, and the streets are gloomy from lack of lighting.  Suddenly the Shwedagon Pagoda, wreathed in gold leaf and paint and lit up like the morning bursts into view.  It disappears before I can again fully absorb its beauty and I return to the gloom of the streets.  This is Myanmar (also sometime called Burma), a combination of the beautiful, sacred and dilapidated.

Burma, itself, was an independent country until 1886 when it fell under British rule. That rule formally ended in 1948 as a result of the Independence Agreement of January 27, 1947.  Aung San, the founder of the Burmese Army and the leader of the Anti-Fascist People’s Freedom League (AFPFL) led his party to an overwhelming victory in the first elections.  Before independence and continuing today, one of Burma’s biggest problems has been the relationship between the Burmese state and the numerous non-Burmese groups, like the Chin, Karen, Shan (and many others) who live within the international boundaries, but have never been fully incorporated into the political culture of the country.  Aung San’s contribution to Burma’s future was the hope – partially realized – of reaching accords with these many non-Burmese groups1. Hope was cut short by Aung San’s assassination in July of the same year as the election.  The pattern of creating and undermining governments by resistance, revolt or putsch remains to this day.

Burma’s economic problems exacerbated its political turmoil.  Under British domination, Burma was the second most economically successful country in the region.  Along with the military’s seizure of power were economic policies generally described as the “Burmese way to Socialism” which turned control over all important productive capacity to the military and its friends.  In short order the country became one of the region’s poorest; and in 1987 Burma suffered the ignominy of joining the UN’s list of least developed nations.

While the faces of the military junta changed over the years, the dominating policies including murderous suppression of dissent did not.  Over the past four years, I participated in a series of trainings for Burmese lawyers.  The trainings were a product of collaboration between two Czech NGO’s, the Burma Center Prague, the CEELI Institute, and the Myanmar Lawyers’ Network (MLN) which was formed by lawyers dedicated to protecting individuals’ property and civil rights usually against the state.  The MLN’s existence is a tribute to the optimism and tenacity of some of Burma’s legal community.  Formed in 2012, shortly after the most recent Burmese Constitution (2008) came into force, many MLN founders had served prison time for their outspoken objection to military rule.  In addition to providing representation in human rights cases, MLN’s major goal was to prepare new lawyers for effective advocacy in public life.  Unfortunately, in recent years the MLN has fractured over internal squabbles.  The trainings, however, continue.

The 2008 Constitution provided for election of a Parliament and a national president.  On the surface, this ended the complete de jure domination of political and economic life by the military leaders who had first taken power during the 1960’s.  Although the new Constitution provided for elections, it also guaranteed sufficient Parliamentary representation for the military to prevent amending the Constitution without military approval and protects the military from punishment for its past acts. The Burmese person familiar to most westerners is Aung San Suu Kyi, recipient of the 1991 Noble Peace Prize.  She received the Noble the year after her landslide election to head the government was annulled by the ruling military.  The Constitution indirectly bars her from running for President by disqualifying any person who has relatives who are not of full Myanmar heritage.  Aung Sun Suu Kyi was married to a European and she has children from that marriage.

Initial Trainings

The first trainings were held in Yangon and Mandalay in 2015.  The first training in which I participated was held in Patthein a city of approximately 300,000 people located about 100 miles southwest of Yangon.

Burmese legal education is in tatters.  Like most European systems, Burma’s legal education is an undergraduate program focused on memorization, leading to the eligibility to practice law.  In the distant past, students attended classes on campuses and interacted with their peers and faculty.  Law students were also the source of numerous protests – going back at least to the time before World War 2.  To eliminate the protest environment, the military government closed campuses and adopted a “distanced learning” curriculum. Actual distanced learning classes ranged from decent to irregular.  As a result, young Burmese graduate with law degrees, but wildly disparate levels of legal knowledge.

Trainings had two components.  One, focused on the meaning and application of the rule of law in emerging states.  The second was a basic oral advocacy/trial skills training course.  I won’t say much about the rule of law program because my focus was mostly almost entirely on the advocacy skills sessions. The trial skills training program is a collaboration of many NITA friends – Marcia Levy, Allen Snyder, Charles Snyder, Chris Whitten and Jay Jacobus, Jr. – using NITA’s State v Lawrence case which has been translated into Burmese.  Most participants are either new graduates (“chambers”) or high grade pleaders (generally people with less than 5 years experience – all of which is office work).  Neither group has rights of audience.  A few advocates (who do have audience rights) have participated.  We followed basic oral skills teaching schedules: case analysis; constructing case theories and themes; direct and cross examination of witnesses; and formal closing arguments.   We have received substantial positive support from participants for those programs.

Later oral skills trainings were sited in Taunggyi2 (the main city in the Shan province), Pyay3 (another city in the Irrawaddy river system located north of Yangon), Pyapon4 (another town in the same province as Patthein – the lower Irrawaddy river delta), Sittwe5 (in the Rakhine province) and Malwamyine6 (the largest city in the Mon state, located south and east (across a wide bay) from Yangon.  Except for the Malwamyine, all of the trainings followed the training schedule that included witness examination exercise.  In the footnotes, I provide a visitor’s guide to each of these cities.

Other trainings and lessons learned

More recently we have placed more emphasis on case analysis and developing case themes for argument by spending more time on those topics and deleting the witness examination sessions.   We made these changes based on our experience with earlier groups that had difficulty analyzing even rudimentary case files and also had difficulty creating thematic arguments.  Courtroom advocates in Myanmar almost never deliver oral arguments to judges; instead, arguments are submitted in writing.  Despite the disconnect between actual practice and our training, the participants are very enthusiastic in preparing and delivering oral arguments; and the additional focus on themes and organization paid dividends in the quality of their arguments..

In addition to the advocacy trainings, I played a part in several other events including: meeting with the MLN members; working directly with members of both the upper and lower houses of the national parliament; a half-day session with experienced journalists and advocates; and a day-long session with law students and faculty from the local university in Malwlamyine.  While I recall a lot of what happened at each, I think the most interesting and important were the sessions with the parliamentarian and the day with law students and faculty.  I’ll explain why, briefly.

We come from a legal tradition of freedom of speech that is not universally shared.  For reasons of luck and temperament, we have (up until now) used a market model for ideas.  With very limited exceptions, people can make comment without fear of punishment.  We depend on the good sense of listeners to sort wheat from chaff in public debate.   Myanmar under the generals restricted speech.  Those restrictions have continued into the new Constitution, which provides a general grant of freedom of speech, but also includes numerous exceptions.  Those exceptions have been used even under the new government to prosecute people for public statements that leaders don’t like.  One specific example is the recent prosecution following a middle school play.

The other session that provided unexpected insight into the political culture was the day plus we spent with members of both lower and upper houses of Parliament.  These MOP were all from the NDL – the civilian party headed by Aung San Suu Kyi.  We spent some time decrying the restrictions on amending the Constitution of 2008.  Under the current division of seats, without a turncoat from the military party, the civilian government lacks the legal power to amend the Constitution.  We discussed other approaches to dealing with difficult issues – specifically the restrictions on free speech.  The court system in Myanmar has a dedicated Constitutional court which has final authority on Constitutional interpretation.  Members of that court can be appointed by NDL because those appointments do not require either a super majority or approval of the military.  Access to that court, however, requires the authorization of the head of the Parliamentary Senate.  That person is also from the NDL and could request the Constitutional court take up interpretations of the broad exceptions to free speech – but has not.  When we raised this strategy as a possible end run on amending the Constitution, we all sensed that none of the MOPs had thought of this strategy (or they had and it transgressed some political trip wire we could not see).

 


1 The geography of Myanmar contributes to these tensions.  If you use your right palm as a model of Myanmar, the flat of your palm and wrist are the Irrawaddy river delta, one of the world’s most agriculturally productive valleys.  The top of your fingers represents the northern mountain states; the elevation gain from your wrist to the mountains is over 17,000 feet.  Your lower little finger borders the Bay of Bengal, the Rakhine state which has energy and sea resources.  The top of your little finger s the Chin state.  You two middle fingers are the Kachin state, land of opium and emeralds.  Your pointer finger is the Shan region which abounds in minerals, timber, natural resources and illegal agricultural products.  Running down your thumb and the outside of your writs is the Karen region.  The inside of your thumb is the Mon state which is another of the agriculturally bountiful parts of the country.  To further complicate matters, many of the non-Burmese groups range on both sides of the border – especially with Thailand and Laos.
Geography also influences the transportation net.  So for many parts of the country, central control over shipping is impossible.  Thus, the revenue generated from the various regions remains inside those regions.  Arguments over the distribution of that bounty infuse every other disagreement in the county.

2 Taunggi is located about an hour drive from the nearest airport.  It’s in the mountains and I’m told is the center of drug trade from the Golden Triangle.  All I can vouch for is the abundance of large brand new western pickup trucks.  We held our training in a restaurant that was converted for our use in the day time by dragging all the tables and chairs outside.  The interior decoration was all puppies and love.  The most memorable part of the training was on the last day, when we conduct a trial like exercise.  In the middle of one of the trials, the skies opened with torrential rains beating on a tin roof.  Too loud to hear anything, but that was fine because the power also failed and we had no lights and no air flow.  We had a dinner at Myanmar’s only winery.  Beautiful place with tables in little pods around a lake – which is a source of large armadas of attack mosquitos.  Wines not worth drinking, but the idea that someone would make the effort is somehow comforting.

3 Pyay provided some of our most interesting sights.  The city sits near the site of Sri Kisetra which is part of an ancient walled city all of which is a World Heritage Site.  We visited the site by car which is appropriate because the ruins are several miles around with only a few excavated sites.  While waiting for yet another downpour to lighten, I was able to watch the process of preparing betel (the betel is placed on a plant leaf, a white alkaline paste is added, then it’s all wrapped and bound for the next pickup – which happens regularly as people drive past to pick up their “stash” on the way to work.  We stayed at a resort-like facility that surrounded a small lake and was very pleasant – meaning the electricity worked most of the time – and the mango selection was excellent.  We also had dinner one evening at one of the most bizarre neon lighted park like restaurants on earth.  Don’t know the name, but I think if you say neon, it’s the only game in town.

4 Pyapon was the touristic low of all the trips.  The high was that we did the training in a monastery near our “hotel”.  It was a working monastery which means women are not allowed at all in some places; not something one sees everyday in western life.  The head monk met and spoke with us several times.  All very gentle and inviting.  The problem was that the hotel had no hot water – you had to order a pitcher of hot water to wash up.  Dinner at night was in restaurants that spill onto what passes for a sidewalk that you share with all kinds of creepy crawly things.  I was especially entertained by the rats.  But you have to balance all this with watching the monks and novices carrying begging bowls, walking down the streets in lines each morning – right after the morning service.  Reminded me of the old Hari Krishnas from San Diego who used to hang out at Horton Plaza –long before it became a shopping mall – beginning at 9 am, they  would chant and drum all day long – until exactly 5 pm when they would leave the plaza and march down the street to their shelter – drumming and chanting all the way.

5 Sittwe is the capital of Rakhine state, home of the Arkanese people.  We arrived the week after a typhoon struck and the litter and downed trees were quite prominent.  The main street of the city is about 1 mile long and like most places in Myanmar is an all-day shopping mall – stuff from all over southeast Asia.  In general, the Arkanese are the strong supporters of the military’s efforts to ethnically cleanse the Rohinggi from Myanmar.  This has produced a series of horrible atrocities – all to the great delight of the locals.

6 Malwamyine was my most recent visit.  The town itself lies along the Salween River which at that point is about 1 mile wide.  Lots of restaurants on the water and all in all a pretty modern place.  Our hotel was across from the river and from the back of the hotel, you could look up a hillside that was covered with pagodas and stupas.  We walked around them one night.  If you have seen the Schwedagon Pagoda in Yangon, you are pretty much spoiled for other smaller, less grand efforts, but the view was beautiful.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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