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

Introduction

Although U Ko Ni was the one who physically died, the reality is that this murder represents the death of the rule of law.

The murder of such a skilled legal activist who was deeply immersed in using legal strategies to embed the rule of law speaks directly to the dangers of lawyering in ‘hybrid’ regimes (Bogaards, 2009; Gilbert and Mohseni, 2011; Levitsky and Way, 2010), those countries in which elements of authoritarianism and democracy commingle (Collier and Levitsky, 1997; Gilbert and Mohseni, 2011). Yet even before Ko Ni’s assassination, there was an almost obsessive focus on the rule of law in Myanmar, and its various meanings and prospects. From Cheesman’s comprehensive dissection of the inherently contested nature of the concept and its relationship to democracy (2009, 2014, 2015a, 2015b, 2016, 2017), to Prasse-Freeman’s discussion of the way in which it relates to broader concepts of informal social justice (Prasse-Freeman, 2014, 2015), the rule of law in Myanmar has been a popular subject for academic analysis. Development practitioners, domestic and international policymakers and civil society organizations alike have also heralded the rule of law as the key to Myanmar’s future prosperity and social harmony (Crouch, 2017b; UNDP, 2016; USAID, 2017; Xinhua, 2018).

From another perspective, this preoccupation with the rule of law is somewhat puzzling, given that Myanmar retains many of the hallmarks of despotic governance (chiefly linked to a lack of restraint on arbitrary state power) in a way that makes the rule of law ‘practically incompatible’ with such regimes (Luban, 2010: 10). Whether conceptualized as a formalist, minimum system of publicly and prospectively promulgated rules applying to all, or as a fully articulated substantive political morality with a rich normative content (Carothers, 2010; Peerenboom, 2004; Tamanaha, 2004), restraint of arbitrary state power is an essential constituent of the rule of law (Krygier, 2011, 2016). Thus, in hybrid political systems where legal norms (such as the constitution) and institutions (such as courts, anti-corruption commissions) are in effect co-opted by the executive, the rule of law is an ‘empty signifier’ (Laclau, 2005 as cited by Prasse-Freeman, 2015): either functionally absent, used to justify autocratic tendencies, or both.

While acknowledging the importance of rule of law discourse in Myanmar and beyond, this article aims to contribute to the literature on hybrid and authoritarian regimes by examining the role of lawyers and what Raz described as the ‘other virtues’ of a legal system (1979: 211). However, rather than focusing on politically engaged, activist or otherwise celebrated practitioners as others have done (Cheesman and San, 2013; Saffin and Willis, 2017), we examine the role of the ‘everyday lawyer’ – those practitioners who work on ‘ordinary, modest cases’ (Kritzer, 1990: 3). Our starting point is that since the rule of law is not currently viable in Myanmar, there is a need to explore everyday lawyers’ practice, their relationship to their clients as well as how they negotiate overwhelming legal power. In Myanmar as elsewhere, the rule of law has a tendency to obscure other issues, to the detriment of otherwise identifying and analysing such ‘other virtues’ of a legal system (Raz, 1979: 211). We aim instead to analyse one such alternative virtue – the concept of dignity – and to explore how domestic lawyers seek to protect their clients’ dignity in the absence of even the thinnest version of the rule of law. We look beyond Raz’s definition of dignity as respect for autonomy, drawing instead upon analysis from Luban (2005) and Vischer (2011) who explore other ‘lived realities’ of the concept, including how lawyers seek to protect their clients from humiliation. In so doing, this raises the question of whether lawyers and their clients are ultimately enacting a form of ‘everyday’ (as opposed to a form of ‘direct’) resistance (Scott, 1986, 1989, 1990) to entirely dominant institutional legal power.

Our research is informed by qualitative interviews and focus groups with over 50 lawyers and other legal professionals conducted in Myanmar in late 2017. All the lawyers and justice sector professionals with whom we spoke worked on ‘everyday’ cases, mundane criminal matters including traffic accidents, drug cases, assaults and thefts. Their quotidian practices demonstrate that while extant political and legal power makes it impossible for them to advance the rule of law, lawyers still have the capacity to support their clients’ fundamental human dignity by ensuring their stories are heard, as well as by providing basic physical, medical and material support. For clients who would otherwise face the full, unfiltered force of the authorities, the upholding of dignity in a rule of law deficient legal system constitutes both a meaningful and an intended form of resistance.

The first section of the article begins with a consideration of the rule of law, its core function in restraining arbitrary state power, and explores a broader concept of human dignity as one of the ‘other virtues’ associated with a legal system and in lawyer–client relations. The second section explores the constraints upon lawyers where the rule of law is absent, linking lawyers’ efforts to uphold their clients’ dignity with the concept of ‘everyday resistance’. The focus of the third section is the specific context of law and the legal system in Myanmar, and how the country’s overwhelmingly non-elite lawyers have struggled in the absence of the rule of law. In the fourth section we discuss the key findings from our research, exploring how lawyers’ work upholds their clients’ dignity and how they are thereby engaging in everyday acts of resistance. Ultimately, we conclude that while lawyers may be significantly restricted in what they can achieve for litigants, within the spaces of the everyday practice of lawyering there nevertheless exist opportunities to promote dignity as an alternative virtue. Although such opportunities to enact ‘everyday resistance’ should not be over-romanticized (as Scott (1986) cautions), they provide an alternative to the often all-consuming rule of law narrative, particularly when considering how ordinary lawyers and their clients attempt to mediate and negotiate state power.

The Rule of Law and ‘Other Virtues’

The rule of law has been described as the pre-eminent validating ideal for democratic institutions everywhere (Tamanaha, 2007: 19). Having been through something of a ‘crisis of legitimacy’ amid claims of hubristic legalism, overreach and failure (e.g. Golub, 2006; McEvoy, 2007; Marshall, 2014), a more humble series of rule of law discourses is discernible in the literature focusing on pluralistic, grass-roots and ends-based objectives (Golub, 2010; Kleinfeld-Belton, 2012; Quigley, 2009). As McAuliffe (2013) has highlighted, more persuasive recent rule of law scholarship has emphasized the inevitable compromises contained in such a protean concept. There is now a much greater awareness of how the term can be hijacked for neo-colonialist (Brown, 2017) or globalized neo-liberal corporatist ends (Schwöbel-Patel, 2018).

At its core, the rule of law requires the ruled and the rulers to obey the law and that the law is capable of guiding behaviour (Raz, 1979: 212–213). Such a focus divides into ‘thin’, instrumental, formalist or positivistic conceptions of the rule of law (where the focus lies on those qualities of a legal system that enable it to function as such, regardless of the ultimate content of the laws) and ‘thicker’, more substantive and value-laden understandings of a legal system and its underlying political morality – whether democratic, libertarian or otherwise (Carothers, 2010; Dyzenhaus, 2000, 2006; Peerenboom, 2004; Tamanaha, 2004). Perhaps the only area of consensus between formalists and substantivists is that an essential component of the rule of law is its capacity to act as a restraint on arbitrary state power. Where power holders are able to act on a whim, unconstrained by rules, there can be no rule of law. This expresses the ‘unavoidable paradox’ of power being limited by law (Krygier, 2006, 2016; Raz, 1979), which is essential to the very existence of the rule of law. At some level, for the rule of law to be present, the law must be capable of imposing ‘meaningful’ restraint on the state (Peerenboom, 2004: 2).

In post-authoritarian, transitional or hybrid regimes the rule of law discourse assumes an even greater importance (Kleinfeld-Belton, 2012; UNDP, 2017). Talk of the rule of law can be ‘seductive’, speaking to values and working practices such as ‘justice, objectivity, certainty, uniformity, universality and rationality’ (McEvoy, 2007: 417) – ideals that are particularly prized in places where the rule of law has been distorted or indeed was entirely absent in the previous regime. Inevitably, however, the discourse can become infused with competing political and social claims. Local activists may use the rule of law as a rallying cry to underpin their political struggle against those in authority. International development organizations also often invoke the rule of law as a prerequisite to an overall development strategy in a similar fashion to financial actors seeking to secure economic stability in ‘emerging markets’ by creating legal and regulatory predictability. In contrast, authoritarian governments often seek to legitimize their actions by invoking rule of law rhetoric, when in reality they are practising law and order, securitization or repression. Rajah’s insightful study on how the Singapore state effectively demonizes criticism and stifles dissent using the legal system as an effective adjunct to state power while espousing its commitment to the rule of law (Rajah, 2012: 279) is a case in point.

In many such contexts authoritarian legal power is exercised less visibly through undermining the independence of the judiciary and the legal profession (Massoud, 2013: 7; Moustafa, 2003: 926, 2014: 283). Thus, for example, in post-Soviet Russia and modern-day China formal alignment with international standards to secure regime legitimacy and access to global markets has long been accompanied by informal and unseen practices – such as exerting indirect control over judges and lawyers through inducements, threats and practical restrictions – reducing the capacity of the legal apparatus to meaningfully challenge the power of the State (Kahn, 2007; Solomon, 2010; Tam, 2012). Such hidden practices have been described as the ‘tragedy’ of what passes for the rule of law in authoritarian regimes (Engle Merry, 2016: 467), directly speaking to the substantive inability of the legal system to ‘…bind both the ruled and the ruler and guide behaviour’ (Raz, 1979: 212–213).

In his seminal article on the nature of the rule of law, Raz emphasizes the importance of distinguishing the concept from what he describes as the other virtues of a legal system such as democracy, justice, equality, human rights, respect and dignity (1979: 211). The principal danger of this conflation is that pursuing such other laudable aims through the legal system may be as he puts it ‘disqualified’ (1979: 229) by certain formulations of the rule of law – particularly formalist theories. It is for this reason that we are interested in examining how, in hybrid or authoritarian regimes where the rule of law debate may be hamstrung by entrenched power, such other virtues can nevertheless be promoted by lawyers operating within the legal system. In addition, our aim is to interrogate how power may be more subtly resisted, ‘disrupted’ (Munger, 2017:10), ‘deflected’ or ‘evaded’ (Mezey, 2001: 147) in contexts where, on the surface at least, there appears to be little capacity to formally restrain arbitrary state power. As Munger (2017: 10) explains, Cheesman’s work (2015a) on the opposing definitions and usages of the rule of law in Myanmar demonstrate how every political system contains contradictory elements of governance. This is as true at the everyday level as it is at the national or global level. How non-state actors such as lawyers negotiate these contradictions – while attempting to uphold other virtues – is ripe for analysis.

Our focus is on the specific virtue of dignity, and the role that everyday lawyers can play in promoting the dignity of their inevitably powerless clients in hybrid regimes where the rule of law is functionally absent. Waldron neatly encapsulates dignity as ‘a sort of status-concept: it has to do with the standing (perhaps the formal legal standing or perhaps, more informally, the moral presence) that a person has in a society and in her dealings with others’ (2012: 201). Lawyers have an obvious role in upholding dignity, particularly in protecting formal legal standing. For Raz, autonomy is key to upholding dignity. As such, he argues that there can be no human dignity where the rule of law is absent, because this is a fundamental denial of autonomy. The absence of the rule of law generates uncertainty in a person’s formal legal standing, frustrates their expectations and expresses fundamental disrespect to the individual (Raz, 1979: 221–222).

Other scholars propose alternative formulations, reflecting Waldron’s idea of dignity as not simply a concept of ‘formal legal standing’ but also of ‘moral presence’ (2012: 201). Specifically considering how lawyers seek to uphold their clients’ dignity, which he defines as a ‘property of relationships between humans – between…the dignifier and the dignified’, Luban (2005: 817, 838) identifies three components to this process. Firstly, he argues that litigants are treated as though they have a story to tell, and that they are heard. Secondly, that dignity is more than simply respecting litigants’ autonomy, it requires lawyers to respect their clients’ varied experiences, however, humble or seemingly insignificant such experiences may be. Thirdly, that confidentiality is respected and litigants are not forced to incriminate themselves. At its core, Luban contends that honouring human dignity is about non-humiliation. Specifically, a lawyer’s role is to protect her client from the twin humiliations of being prevented from giving their own account and being forced to confess by the state. Vischer takes a slightly different approach. Rather than focusing on the relationship between the litigant and the state, he calls for lawyers themselves to appreciate the ‘multiple layers’ of human dignity when examining how they might promote this virtue in the service of their clients (2011: 226). Counselling against a narrow interpretation of dignity as the facilitation of client autonomy, Vischer urges lawyers to recognize their clients’ humanity so that dignity is ‘grounded in the empirical reality of the human experience’ (2011: 235). This echoes what Parker (2004), drawing upon the work of Gilligan (1982), describes as ‘relational lawyering’, where lawyers focus on a more holistic appreciation of their clients’ problems over and above the issues that have brought them in contact with the justice system.

In our view, Luban and Vischer’s multilayered conceptualization of dignity is a very useful analytical tool to explore lawyers’ efforts to uphold their clients’ dignity in hybrid or authoritarian regimes. This is because autonomy in such democratically compromised environments is inevitably a more or less circumscribed concept. An exclusive focus on autonomy as the only indicator of human dignity will not capture the reality of how lawyers negotiate, manoeuvre or even avoid the legal system for their clients. In contrast, how lawyers seek to uphold litigants’ dignity through ‘relational lawyering’ – by promoting recognition and thereby validation of their clients’ unique and diverse experiences – can also, as we will discuss in the next section, directly constitute acts of resistance against the authorities.

Lawyers and the Absence of the Rule of Law: Linking Dignity and Resistance

There is a plethora of literature on the special role and responsibilities of lawyers with regard to the rule of law. Summers describes lawyers (together with judges, legal academics and law students) as the ‘special clientele’ of the rule of law, who not only support the rule of law but also ‘institutionalize’ its content (Summers, 1993: 128). Tamanaha speaks of lawyers as the ‘social carriers’ of the law who, through their ‘collective activities’, constitute the law itself (2007: 15). Luban notes the importance of lawyers in mediating the relationship between citizens and the state, to the extent that ‘The rule of law is always a rule of lawyers’. Without access to lawyers to interpret the law and to counsel clients, he argues, the benefits of the rule of law cannot accrue to litigants (Luban, 2010: 14). Similarly, Daniels and Trebilcock emphasize the guardianship role the legal profession plays in protecting fundamental rights from attack by the state (Daniels and Trebilcock, 2004: 116). Others depict lawyers as ‘activists’ with a core responsibility for creating social change and resisting injustice for the good of society (Budlender, 1992; Moliterno, 2009; Roznai, 2013: 375).

The concept of the lawyer as (political) activist has also found currency in several distinct sociolegal theories since the 1960s. ‘Political lawyers’ both serve and use the legal system to work for the creation of political liberalism (Halliday and Karpik, 2001; Karpik, 2007). Classic examples include the activism of Pakistani lawyers in 2007–2009 and Tunisian lawyers in 2010–2011, who protested en masse against executive interference in their respective jurisdictions with the independence of the judiciary, one of the key mechanisms of restraining arbitrary state power (Berkman, 2010; Gobe and Salaymeh, 2016). The scholarship on ‘cause lawyers’ – lawyers who use their clients’ cases to further their own wider political, moral or other motivations – is now well established (Sarat and Scheingold, 2001; Scheingold and Sarat, 2004: 3), and has moved on from its early focus on Western democracies to explore legal activism in South America (Meili, 1998), Africa (White, 2001) and Asia (Crouch, 2011; Munger et al., 2013).

While much of the literature on practitioner-activists stresses the agency and responsibility of lawyers, other scholars are much more circumspect. Gordon, for example, cautions against expecting too much from lawyers and of idealizing their role as agents of the rule of law (Gordon, 2010: 448). Explicitly influenced by Abel’s (1988, 1989) earlier work on the protectionist and elitist instincts of lawyers, Gordon argues that such self-interest makes it far from certain that lawyers can effectively build the rule of law at all. Indeed, as Porter (2016) has argued, in certain contexts, some lawyers and bar associations may even be inclined to actively sabotage it.

Taken as a whole, the literature might give an impression that activist lawyers are both widespread and comprise a significant proportion of practitioners, but the reality is that this is very much a minority practice. The majority of lawyers would probably view themselves as technicians: their role is to apply the law to assist their clients navigate the system, not to make a political point or to pursue a cause (McEvoy, 2011). As Abel puts it, ‘most lawyers just want to earn a living and leave politics to others’ (2003: 470). Given the apolitical nature of much of the profession in general, it cannot be assumed that lawyers in hybrid or authoritarian regimes will necessarily and universally oppose the state through their practice, or do so through motives of social justice (Kisilowski, 2015). On the contrary, Solomon suggests that commercial lawyers seeking personal enrichment make up the largest group of practitioners in hybrid regimes (2010: 360). In such a political environment, the legal profession may have been either systematically degraded and marginalized or co-opted by the state, a situation exacerbated by a weak or corrupt legal system (Solomon, 2007). Lawyers may thus lack social legitimacy, making it even more difficult for those who pursue political transformation. In addition, the agency of lawyers may be shaped by a range of variables including professional competence, education and training, organization, freedom from arbitrary sanction or restraint, and ability to freely represent whichever clients they choose, the independence of the judiciary and bar association and other aspects of local legal culture (Fu and Cullen, 2008; Givens, 2013).

In countries where law is used as a tool of social control, simply being a lawyer can be a political decision. Lawyers may be seen as activists and themselves face arrest and prosecution for representing clients who are considered ‘enemies of the state’ (Fu, 2018; Liu and Halliday, 2008). Even ‘everyday lawyers’ working on ordinary cases may find themselves in an invidious position whenever their clients are victims of mistreatment: they either speak out against executive abuses and make matters worse for their client and potentially themselves, or keep quiet and through their silence legitimate the regime (Ellmann, 1995; McEvoy, 2011). In any legal system, criminal defence lawyers are the closest practitioners to the state's coercive power. In an authoritarian regime such as China where direct and confrontational rights litigation can be a very hazardous pursuit, Liu and Halliday stress the importance of examining the ‘invisible, imperceptible, and uncelebrated’ acts undertaken in everyday lawyering, where lawyers ‘take mostly manageable risks to fight for protections against arbitrary state coercion’ (2011: 863). This characterization of everyday lawyering echoes the broader sociolegal scholarship on ‘everyday resistance’ as originally conceptualized by Scott (1986, 1989, 1990). In contrast to overt, organized resistance of demonstrations and protests – which in authoritarian regimes is likely to be met with repression – ‘everyday resistance’ can be seen as ‘quiet, dispersed, disguised or seemingly invisible’, tactics that are used to ‘both survive and undermine repressive domination’ (Lilja et al., 2017: 42). Thus, Scott’s classical articulation of acts of everyday resistance (‘foot dragging, dissimulation, desertion, false compliance, pilfering, feigned ignorance, slander, arson, sabotage, and so on’ (1986: xvi)) is a strategy used by the powerless to evade or deflect arbitrary power, rather than to confront it directly (Mezey, 2001: 147).

The danger that ‘everyday resistance’ theory might erroneously elevate ineffectual, insignificant and uncoordinated acts of individuals to a level beyond which was intended by the powerless has been clearly identified (Gutmann, 1993; McCann and March, 1996). Scott himself cautioned against over-romanticizing what he described as the ‘weapons of the weak’, noting that ‘They are unlikely to do more than marginally affect the various forms of exploitation that [the weak] confront’ (Scott, 1986: 29–30). However, returning to the case of the professionally powerless, ‘ordinary’ lawyers working within authoritarian regimes, everyday resistance as enacted through representation of their criminal clients may be all that is available to them.

The issue of dignity also appears within the literature on everyday resistance and how ordinary citizens enact it. Ewick and Silbey (1998) discuss the different aims of such resistance, citing the importance of upholding human dignity through the simple act of citizens being able to tell (and retell) their own stories. To Ewick and Silbey, for example, such storytelling is a ‘counter-hegemonic’ and a ‘re-enactment of resistance’, particularly where litigants are engaging with the law or with state authorities. Enabling a person to tell their story is, they argue, a way of validating and making more real their life experience, thus enhancing their dignity and preserving their individuality (1998: 243–244). Returning to the argument that the full extent of respecting dignity in the law requires more than simply promoting client autonomy, Vischer (2011: 237) cites 1960s philosopher Gabriel Marcel, who explicitly linked dignity to the fundamental question of human mortality. For Marcel, the existential urge to delay mortality requires us to resist death and anything that hastens it, which would include resisting injury, disease and slavery (Marcel, 1963). To this we might add anything that makes life less tolerable, such as humiliation, disrespect and material or psychological deprivation. At such an existential level, dignity can thus be seen to be intimately connected to resistance.

From the perspective of lawyers and other actors in quasi-authoritarian regimes, law may be something to be feared, negotiated or opposed, and at many different levels. Applying concepts such as ‘everyday resistance’ to ordinary lawyers working on mundane cases seeking to protect the virtues of a legal system other than the rule of law in situations of extreme dominance is, as we shall now discuss, particularly apt in the case of Myanmar.

Rule of Law’s Absence, Resistance and Myanmar’s Everyday Lawyers

In 2010, after nearly 50 years as a pariah state and one of the most repressive military dictatorships in the world, Myanmar’s ruling military called elections to ostensibly herald a new era. Those elections set in train a purported political transformation that further crystallized when Aung San Suu Kyi’s NLD were democratically elected to lead a civilian government in November 2015 (Fink, 2013; Kipgen, 2016; Simpson et al., 2017). Some commentators expressed cautious optimism that the country was finally undergoing the long anticipated, albeit partial, transition (Dukalskis, 2015; Farrelly and Win, 2016; Ganesan, 2017; Holliday, 2014). However, events since the 2015 elections have confirmed that both the practice and culture of authoritarianism persist, which naturally have a chilling effect upon the emergence of the rule of law (McCarthy, 2018). The military have preserved and even enhanced their ‘coercive apparatus’ of surveillance and monopoly on force and violence (Dean, 2017), confirming what scholars had earlier suspected (Jones, 2014a, 2014b) that this was not so much a transition to full democracy but rather to a hybrid regime. Full democratization, if it can ever be achieved, now appears a long-distant prospect (Bünte, 2016; Dean, 2017; Huang, 2017).

The military’s continuing position of unassailable strength is reified in the military-drafted 2008 Constitution, creating what Article 6(d) calls Myanmar’s ‘disciplined’ democracy and placing the military outside civilian control (Article 20(b)). This is further confirmed by the way in which the law continues to be a tool of oppression and social control, feeding a justice system that is a dysfunctional mix of colonial-era legislation, military-controlled and degraded institutions riddled with corruption, and justice actors operating without any degree of professional competence, independence or integrity (Cheesman, 2015b; Cheesman and San, 2013; Crouch in Harding and Oo, 2017; Pritchard, 2016). Myanmar lacks the normative limitations on arbitrary state (and specifically military) power (McCarthy, 2018; Zan in Harding and Oo, 2017). Without any genuine separation of powers, a state of what has been described as ‘procedural authoritarianism’ exists within the Supreme Court, confirming the absence of judicial independence (Crouch, 2017c). Corruption within the courts persists largely unchecked, and the poor state of legal education has been a problem for decades (Crouch, 2019; Zan, 2008). ⁴ As for the legislature, both modern and colonial-era laws are drafted and/or interpreted to stymie a debate that might otherwise result in a restraint on arbitrary state power (Crouch in Harding and Oo, 2017: 160–164; Dean, 2017: 501–502; IBAHRI, 2012; ICJ, 2013; ILAC/CEELI, 2014; Mon, 2016; Prasse-Freeman, 2016; Slow, 2016).

The functioning of national institutions is further proof of the lack of real restraint of arbitrary exercise of state power. The recent literature emphasizes how none among the Constitutional Tribunal, the Anti-Corruption Commission or the Myanmar National Human Rights Commission are able to operate as a system of meaningful checks and balances (Nardi in Harding and Oo, 2017: 173–191; Quah, 2016; Renshaw, 2017: 215–234; Saw, 2015). Widespread impunity reigns at every level for crimes committed by state and military officials, whether these abuses are events of international significance (such as the violent expulsion of more than 600,000 ethnic Rohingya Muslims from Rakhine State (Amnesty International, 2017; Smith, 2013; MacManus et al., 2015)) or take place at a persistent, everyday level (such as mistreatment or murder of journalists and activists: Cheesman et al., 2016) In addition to such lack of accountability for executive and military overreach, power is also exercised with insufficient clarity or predictability, through the erratic and punitive interpretation of both modern and colonial-era legislation (Dean, 2017: 501).

Such evidence comprehensively demonstrates how even the thinnest, most formalistic interpretation of the rule of law remains functionally absent in Myanmar today, as it was throughout the military regime. This absence is a principal determinant of the relationship between rulers and ruled in Myanmar. Malseed (2009: 373) explores these power relations through an analysis of resistance in its various forms, relying on Foucault’s insistence that power and repression can only be properly understood as a relational concept, starting with how subordinates resist (Foucault, 1994: 329). Resistance in Myanmar is derived from an ingrained culture of dissent that has existed since the prior military regime (Cheesman, 2015a: 226–227, 237; Malseed, 2009; Thawnghmung, 2011). The most visible form of resistance – including the nationwide unrest and student-led protests in 1988 and the so-called ‘Saffron Revolution’ of 2007 when Buddhist monks took to the streets – has been of the organized, confrontational form (Huang, 2013). Yet the response of the authorities to such direct challenges has always been swift and brutal (Smith, 2013; Human Rights Watch, 2016). Even in the years immediately after the 2015 elections, when civil society and the international community pushed for a political reorientation towards rights and a ‘democratic’ rule of law, the Myanmar establishment responded by more surveillance, suppression of peaceful protest and increased prosecutions for criminal defamation (Dean, 2017; Human Rights Watch, 2016).

In situations of such extreme dominance it becomes a question of self-preservation for the population to find other ways to deflect, subvert or otherwise escape the hold the state has over their lives. Writing before the 2010 political changes, Malseed identified how at that time most forms of resistance were of the ‘everyday’ variety – a set of covert strategies ranging from tax evasion, under-reporting of resources, routinely ignoring military demands to provide slave labour and other forms of persistent non-compliance, feigning illness and telling jokes about the junta (2009: 373–376). The ‘tactical wisdom’ of avoiding direct confrontation through such methods of everyday resistance ensures both longevity and deniability of the practices (Scott, 1989), or as Ewick and Silbey noted, ‘By not labelling itself, resistance is less likely to be avenged by those in power or noticed by those who would study it’ (1998: 184). Given the reported recent increase in surveillance and suppression in Myanmar since the 2015 elections, such indirect forms of resistance are often the only available means of deflecting or evading the full force of the authorities.

The viability of resistance becomes even more difficult for those within Myanmar’s legal system, especially for criminal defendants and their lawyers who are closest to the state’s coercive power. In democracies, lawyers are ‘carriers’ or actors of ideas that animate the meaning of the rule of law (Munger, 2017: 8–9), involved as they are in the everyday business of resolving disputes for their clients, sometimes in direct opposition to the state. They are also party to a system that has normative significance, and that is capable, nominally or formally at least, of binding power holders. However, in Myanmar the daily realities of the formal criminal justice system remain largely as they have been for decades (Cheesman et al., 2016). Because the rule of law is functionally absent, lawyers cannot play the same role as in democratic regimes. After General Ne Win’s military coup in 1962, lawyers and the independent judiciary were subordinated as in other socialist-totalitarian regimes. The courts were co-opted as organs of State policy, although the former colonial legal procedures as well as much of the substantive laws were retained. However, private lawyering was not officially prohibited, and memories of the normative force of the law were kept alive even through the most repressive years of military rule (Cheesman and San, 2013: 712).

The violent suppression of the democracy uprising in 1988 led to a re-emergent body of socially and politically engaged lawyers who began to involve themselves in rights and justice issues (Cheesman, 2015a: 261; Cheesman and San, 2013: 715), but lawyering in the last decades of military rule was a decidedly hazardous occupation. A widely cited figure from the International Bar Association claimed that over 1000 lawyers had suffered ‘reprimands, suspensions or disbarments’, as well as arrest and imprisonment, through executive abuse of disciplinary processes (IBAHRI, 2012; ICJ, 2013). Although in recent times the level of harassment of lawyers appeared to be diminishing (but not ceasing: Fortify Rights, 2015), the murder of constitutional reform advocate Ko Ni suggests that lawyering remains dangerous, especially on topics close to the radix of military power.

Prior to the coup in 1962, law was an elite profession, but it has subsequently become degraded under military rule. The formal justice system operates very much as a marketplace, with bribes and facilitation payments changing hands depending on the size or type of case and the particular action required of the judge, prosecutor or police officer. In this system lawyers are portrayed as skilled not in the law but in the relationships, market prices and pressure points necessary to secure a favourable outcome for the client (Cheesman, 2015a: 182–190; Prasse-Freeman, 2014: 93; Zan, 2000). Lawyers do not have a privileged status in society, and law is thus not seen as prestigious occupation (ILAC/CEELI, 2014: 7; Zan, 2008). Myanmar lawyers also remain disadvantaged in education, independence and access to information (Beyer, 2015). This diminishes their ability to identify and respond to governmental overreach (Crouch, 2019).

In recent years, numerous foreign commentators and NGOs have called upon Myanmar’s lawyers to play a part in the country’s transition to democracy and to be at the vanguard of rule of law reform. Some argue that Myanmar lawyers have a duty to be rule of law reformers and crusaders for justice. These arguments are based on the fact that Myanmar citizens have a long history of ‘talking back to power’ and of mobilizing resistance, even in the face of the overwhelming oppression of the years of military dictatorship (Saffin, 2012; Saffin and Willis, 2017). Other commentators express the general view that developing the rule of law depends on the creation of a ‘supportive, proactive, skilled and creative, and responsive’ legal profession (Harding in Crouch and Lindsey, 2014: 390). It has also been argued that lawyers can, and impliedly should, play a major role in building the rule of law ‘from the ground up’, including by working pro bono and creating legal aid networks (Harding in Crouch and Lindsey, 2014: 391–392; ILAC/CEELI, 2014).

In contrast, a handful of studies discuss how individual activist or ‘cause’ lawyers stand up to arbitrary (ab)use of state power, usually in land grabbing cases where powerful landowners and the police contrive to forcibly remove farmers from their fields. Such cause lawyers often work in conjunction with the community, wider civil society and the media to drag the case onto a more public stage, drawing attention to executive abuses, with occasional success (Cheesman and San, 2013; Mark, 2016). In addition, there are sporadic accounts of experienced and prominent individual lawyers, usually former political prisoners battle-hardened through previous encounters with state security services. Those lawyers publicize their cases through the media, appearing willing to confront government attacks on free speech and to take whatever consequences come their way (Strangio, 2015).

However, impressive as their achievements and celebrated cases may be, individual activist or political lawyers are not representative of the profession as a whole. Recent NGO studies have focused on the rank and file, ‘everyday’ lawyers (Justice Base, 2017a, 2017b; Langhendries and Moriceau, 2018). These surveys might be an opportunity to gauge both the broader systemic impact and any individual trickle-down consequential effect of the tens of millions of dollars spent on justice sector capacity building. More interestingly, though, they raise important questions about how such ‘everyday’ criminal defence lawyers navigate power relations, whether they are capable of resisting the state on behalf of their clients, the nature of this resistance, and what this might say about the other ‘virtues’ of a legal system in hybrid regimes where the rule of law is absent. Our own qualitative research expands upon the issues, revealing that everyday lawyers are passive actors within the justice system, that through their representation they nevertheless uphold client dignity, and that in so doing they are engaging in forms of ‘everyday resistance’ to the authorities.

Findings and Discussion

Given the lack of restraint on arbitrary state power in Myanmar, we focus on the extent to which everyday lawyers have any influence over virtues other than the rule of law, in particular the concept of dignity, as well as whether such actors engage in resisting a hybrid regime through their practice. We interviewed 39 private lawyers and 17 governmental justice actors, as detailed below. The research was conducted in November and December 2017 as part of an ongoing project on access to justice and legal aid for the NGO International Bridges to Justice. There are obvious additional considerations when conducting research in an authoritarian or hybrid regime such as Myanmar, with ensuring participants’ safety and avoiding the possibility of other adverse political and social consequences paramount (Ford et al., 2009; Shih, 2015). Consistent with the Socio-Legal Scholars Association principles of ethical research practice (SLSA, 2009), the researchers ensured participants understood the purpose and voluntary nature of the survey, as well as the fact that anonymity was guaranteed through the use of unique identifiers rather than names for each interview transcript and on research instruments. All data were password-protected and retained in the sole possession of the authors.

Although none of the lawyers we interviewed could properly be described as activists, political lawyers or ‘cause lawyers’, a purposive sampling technique was employed to identify legal professionals who were generally receptive to ideas of the rule of law and access to justice. However, for us, lawyers’ political motivations or connectedness were less important that the practical ways in which they sought to uphold their clients’ dignity. Cognizant of the deficits in transparency and sampling when researching in authoritarian and other challenging environments (Cohen and Arieli, 2011; Wood, 2006), attempts were made where possible to triangulate the data with open-source materials and other literature. Research participants comprised of domestic legal practitioners, primarily criminal defence lawyers but also government justice actors, specifically law officers (prosecutors), judges, police and prison officials. While the majority of lawyers interviewed received their law degrees in the last 15 years, two had been practising since the 1960s and four since the 1970s. The research was conducted in four provincial locations across Myanmar. There were two principal research methods. The majority of the data were collected through Focus Group Discussions (FGDs) with approximately 10 practising lawyers in each location. Additionally, ‘key participant’ interviews were held with 17 governmental justice actors. These semi-structured interviews typically lasted up to an hour. All interviews and FGDs were conducted in English with the assistance of Myanmar interpreters, and transcribed as the sessions progressed. As in most research projects with such a small sample size, it is not possible to make any generalized findings relating to the legal landscape as a whole. However, at an individualized level three main themes emerged that are relevant to lawyers’ practice in hybrid regimes where the rule of law is absent, their role in advancing dignity and the extent to which they engage in resistance.

Conclusions

I try to be optimistic, but I often end up being disappointed by outcomes. Nonetheless I think the struggle itself is important. (L6)

Domestic criminal lawyers are awkwardly positioned in hybrid regimes, given that their arena is the very place that is so constrained by authoritarianism. The limitations imposed on the law, the courts and the legal system by power holders usually mean that they have less room to manoeuvre than most other civil society actors. Lawyers are also closest to the norms and institutions that might otherwise check arbitrary state power, and so are almost inevitably burdened with expectations of being at the vanguard of rule of law creation. Although the Myanmar lawyers we spoke to had a clear sense of their duty to assist their clients, there was a reluctance to directly confront the inequities of formal judicial and administrative bodies (Denney et al., 2016; UNDP, 2017). As noted by Prasse-Freeman with regard to legal aid providers in Yangon, lawyers avoid using their cases to expose institutional corruption or to seek legal changes that would curb abuses of power. In other words, ‘everyday’ lawyers fit themselves into the existing legal culture and power structures to ameliorate injustices without naming, let alone seeking to overthrow, the system itself (Prasse-Freeman, 2014, 2015). Where they can, lawyers seem to be more expert at helping clients use the current order or slip through the cracks rather than launch a frontal attack on unfettered state power.

Unlike activist lawyers working on celebrated cases or community-level disputes who stand up to executive misuse of power – who should in reality be viewed as outliers in the system – most everyday lawyers will not, and realistically cannot, mobilize the support of civil society or bring their clients’ cases to the attention of the wider media. Although our research points to an underlying passivity as the principle characteristic of the everyday lawyer in Myanmar, they continue to do their job, to support their clients’ dignity and in so doing to indirectly resist institutional legal power. As advocates for their clients – who would otherwise be left to confront arbitrary executive authority alone and would thereby suffer a range of humiliations – the ‘everyday lawyers’ to whom we spoke were agents of dignity, very broadly defined. These lawyers do not simply seek to preserve the formal legal status and autonomy of litigants, even if the risks they take are ‘mostly manageable’ to ensure their own survival (Liu and Halliday, 2011: 863). Such everyday lawyers also seek to preserve their clients’ ‘moral presence’ (Waldron, 2012: 201), ordinary experiences and the ‘shared vulnerability’ of being human (Vischer, 2011: 235). Where the rule of law is absent, such legal practice can properly be seen as everyday resistance.

In hybrid and authoritarian regimes, it is usually the minority activist, politically engaged or issue-led cause lawyers who attract the headlines. Before he was assassinated in January 2017, Ko Ni held a unique and influential role. As one of the only senior lawyers close to the new NLD government, he was using his skills and this position to good effect, looking for creative ways to ‘disrupt’ the power of the military in Myanmar, starting with examining how the flawed 2008 Constitution could be bypassed. Ko Ni was attempting to work on the most important aspect of the rule of law in Myanmar’s ‘disciplined’ democracy – how to circumvent the military’s power. Although individual high-profile activist lawyers continue to make the case for greater transparency and due process, engaging in acts of direct resistance by protesting against hegemonic legal power (Min, 2017), it is unsurprising that given the risks no high-profile lawyers have to date replaced Ko Ni in working on constitutional change to shift the balance of political power.

We have argued that in hybrid regimes it is instructive to consider how everyday lawyers are able to promote other virtues, rather than to focus exclusively on the rule of law and a ‘stuck’ debate on entrenched power. In continuing to provide an holistic service to their clients, lawyers can uphold dignity for those who would otherwise stand alone, and in so doing to gently ‘push’ against the authorities. Drawing upon the literature on everyday resistance – both broadly and in relation to such a tradition among the Myanmar population more generally – provides a different perspective from which to analyse the contribution that even passive and relatively etiolated actors such as ordinary lawyers can have in disrupting, deflecting or evading state power. Although mindful of the limitations of what everyday resistance can achieve in the absence of a fair and functioning legal system, ordinary lawyers have a role in upholding their client’s dignity, especially where it may be all that is available in the absence of political will and any meaningful institutional change. If the rule of law is not to drown out an examination of other virtues that everyday lawyers can uphold in Myanmar and other hybrid regimes, perhaps some effort should also be reserved to explore them in more detail, because as Krygier remarks, ‘the rule of law is never the only thing we want’ (2016: 205).