The traditional role of lawyers has been challenged in recent decades by the growth of social movement lawyering which emerged from two developments. First, the radical lawyer movements of the mid-sixties and seventies4 and, second, the emergence of human rights legal activism which has seen lawyers involved in a wide range of issues and movements.5 In recent years a third model of lawyering has begun to emerge in a number of countries. We will refer to it as “resistance” lawyering.6 Its emergence is a response to the actions of political states which, under the pressure of forces unleashed by globalisation ( including the “war on terror”) have dropped the pretences of liberalism and have adopted authoritarian practices which have had severe negative effects on ordinary people.
BY GILL H BOEHRINGER AND STUART RUSSELL
Contributed to (Bulatlat.com)
Vol. VIII, No. 29, August 24-30, 2008
As technicians, interpreters and defenders of the legal order lawyers have traditionally played a pivotal role in maintaining state authority and the hegemonic domination of successive ruling classes.1 In recent years they have played an important part in facilitating the processes which have come to be known as globalisation.2 Thus an army of lawyers have been deployed around the globe to serve the interests of national and multi-national capital. At the same time lawyers act as advisors and functionaries of the world’s states which continue to play a fundamental role by providing order and security, enabling the processes of globalisation to expand and intensify.3
Historically lawyers have also played a significant part in resisting state power, and perhaps to a lesser extent, private corporate power. Such resistance has generally been waged in courtroom struggles. They do this more as guerrillas fighting occasional legal skirmishes than as conventional forces in all-out political confrontation with the superior force of the state. However, we do not normally associate lawyers with political resistance to dominant socio-political, economic trends.
The traditional role of lawyers has been challenged in recent decades by the growth of social movement lawyering which emerged from two developments. First, the radical lawyer movements of the mid-sixties and seventies4 and, second, the emergence of human rights legal activism which has seen lawyers involved in a wide range of issues and movements.5 In recent years a third model of lawyering has begun to emerge in a number of countries. We will refer to it as “resistance” lawyering.6 Its emergence is a response to the actions of political states which, under the pressure of forces unleashed by globalisation ( including the “war on terror”) have dropped the pretences of liberalism and have adopted authoritarian practices which have had severe negative effects on ordinary people. In doing so, they have laid down a challenge to the lawyers: you are with us or against us. To their great credit, courageous lawyers across the world, using different tactics, have resisted the policies and practices of the state in public demonstrations of political opposition.
In 2007, we saw some extraordinary developments involving very significant extra-curial confrontations between lawyers and states, from France to Pakistan, Malaysia and the Philippines. These lawyer resistance movements, and the degree of repression of lawyers by reactionary governments, represent a significant development for lawyers internationally. It is vital that this development be known and understood by all those who are committed to constitutionalism, human rights, equality and the broad struggle against exploitation and oppression. In this article, we want to bring to the attention of Australian lawyers and others some of the under-reported reality of world-wide lawyers’ resistance.
The most highly publicised was the titanic struggle over the judiciary which Pakistan’s General Musharraf provoked in March by suspending the Chief Justice, Iftikhar Chaudry.7 The Supreme Court had accepted for decision a case challenging the General’s candidacy in Presidential elections on the ground that it was unconstitutional for him to stand while retaining control of the military. Massive protests by lawyers continued month after month. The sight of thousands of Pakistani lawyers demonstrating on the streets was riveting. Though roughly confronted by police, they persisted in vehement demands for the reinstatement of their Chief. The commitment of those lawyers, and their tactics, was both surprising and inspiring. In July Musharraf decided he had no choice but to reinstate Chaudry.
Though he promised to enter the election as a civilian, the General did not. His victory on 6 October was no surprise. Military control had been tight since the coup in 1999 which first brought him to power. But another case was filed in the Supreme Court challenging his election. Fearing the worst from the Supreme Court, Musharraf declared a State of Emergency on 3 November. The judges were required to take an oath to support his regime and, therefore, the election. Chaudry and eleven of the seventeen Supreme Court judges refused. Musharraf had them sacked, detained and replaced by trusted others. About 50 judges from the regional High Courts were similarly sidelined.
It was also no surprise when the new, supine Supreme Court upheld Musharraf’s election. But the situation was quite different from 1999 when he promised to end corruption and restore democracy. The lawyers’ struggle, and other events in the wake of 9/11 including his alliance with the Americans, had irrevocably tarnished his regime. He finally stepped down from the military in December; but the subsequent assassination of Benazir Bhutto probably sealed the fate of Musharraf’s party at the February Parliamentary elections in which they lost control of Parliament. No doubt the lawyers’ courageous and steadfast support of the judiciary and constitutionalism contributed to these victories. Commentators referred to the judges and lawyers as the real heroes in the country.8
Though the victorious parties had promised the reinstatement of the judges by 30 April, serious disagreements arose between them about the implementation process and several deadlines passed without the promised reinstatement. It would not be surprising if the gowned crusaders were out on the streets again to force the government to fulfill its election promises.
Less well known is the militant response of French lawyers to the neo-liberal program of the right wing, law-and-order President, Nicolas Sarkozy.9 In his election campaign, Sarkozy (a lawyer before entering politics) promised substantial reforms in the French “judicial map”. This was part of his pledge to “modernize” the country and make it more competitive: the French political, judicial and economic institutions and practices were to be made more “efficient”.
