In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’

Abstract

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.

Cause Lawyers, Political Violence, and Professionalism in Conflict

“…127 As Batesmith and Steven (2018) have argued recently with regard to lawyering in Myanmar, these 'softer' elements of the lawyer-client relationship are all the more important in the context of authoritarian or conflicted regimes where the formal guarantees of the rule of law are often hollow promises. 128 Cause-lawyers we interviewed repeatedly told us of the importance of recognising that their clients had often been tortured, isolated and other-wise illtreated and that the lawyer might be their key 'human face' standing by them 'so they would not feel left alone' 129 -treating them as 'a human being with dignity'. 130 Cause lawyers often passed messages between imprisoned clients and their families concerning very 'personal and emotional topics'.…”

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies

“…In such circumstances, as one South African cause lawyer explained: 'Your real allegiance should be to the rule of law, not to an unjust law'. 8 Cause lawyers may also face harassment from hostile state actors; and conventional lawyers and the local bar could be indifferent or hostile (McEvoy and Rebouche 2007;Batesmith and Stevens 2019). Many cause lawyers had to manage complex relations with politically motivated clients and their affiliated movements.…”

“…Although most of our respondents suggested that their profession conferred some protection from the worst excesses of an authoritarian regime, many described threats, intimidation, beatings, and imprisonment. In Myanmar throughout the 1990s and 2000s, lawyers who advocated for the rule of law and social reform risked imprisonment, physical harm and even death, as tragically underlined in January 2017 by the assassination of U Ko Ni (Batesmith and Stevens 2019). 23 Even in situations where lives were not at risk, respondents reflected on the burden of work.…”