France’s legal system was to be pared down. About half of the regional appeal courts were to be scrapped (from 35 to 19), nearly half the superior trial courts ( from 181 to 96) and about 40% of the lower courts ( elimination of some 200 from 473). Reform of the legal system also meant that some white-collar offences were to be decriminalized, sex offenders’ release from jail upon completion of their sentence was no longer automatic, and minimum sentences were introduced for recidivists in regard to an array of traditional (ie non-white-collar) crimes. This trifecta was an indication of the class bias and authoritarianism of the ‘new morality’ Sarkozy had also promised voters.
The consequence of the elimination of courts meant a diminution of access to justice, particularly for the poor and working class. Not only would litigants have to travel longer distances, but it would be costly as there is often no public transport from rural areas to the remaining courts. The loss of the superior courts where legal aid must be applied for suggests that fewer people will be able to secure it. There is a further class issue in the reforms as the local courts largely deal with matters that involve the poor and working class.
The specific reform plans-without the promised consultation with the French Bar-were announced one month after the election. The announcement unleashed a wave of protests involving lawyers, judges and court staff across the country, particularly in the small cities, towns, and in rural areas which will be hardest hit. At Bourges courthouse, 200 lawyers demonstrated; in Metz, 450 lawyers and others; Pau saw 300; Amiens another 200 lawyers and judges, and in Marmande and Chateauroux lawyers blocked access to the courthouse. It emerged that a majority of the Bar Associations went on strike or demonstrated as part of a general nation-wide slow-down against the Sarkozy government’s radical program of reforms.
In September the National Council of Bar Associations asked Justice Minister Rachida Dati to withdraw the reform. She declined. She was adamant that the government ‘would go all the way’. In October she began a “tour de France” to sell the reform. She was met at every location by striking lawyers in full regalia, sometimes violent, at other times more creative. Thus in Paris, 30 lawyers and Bar Association Presidents presented her with bouquets of white roses, but assured her that the reforms were opposed by the mayors and other local officials-including some from her own party- of all the centers affected.
To take some of the steam out of the opposition, Mme. Dati announced that the reforms would not be applied “mechanically”. This was also to relieve the anxiety of politicians who were pro-Sarkozy but feared defeat at local elections in March 2008. But the National Bar Council, representing 47,000 lawyers, withdrew from the consultative committee which had been established but not used.
The judges’ unions now drew the line, with the left-wing Magistrates’ Union declaring that the legal system was a public service and must be protected, calling for resistance to the reforms. All judges’ unions agreed to join the national strike which the French trade union movement announced for 29 November. Just before the strike, the president of the Montlucon Bar, two lawyers and a law clerk went on hunger strike. In Belfort a lawyer was bashed on the head as she attempted to climb over a police barricade.
On the day of the strike, in front of every courthouse in France, demonstrations were held, made up of lawyers, judges, clerks, trade unionists, politicians, and others. In Paris the target was the Justice Department. Hundreds gathered and watched fifteen Bar Association Presidents chain themselves to the railing outside the building. In Bordeaux, 700 lawyers took part, including a number of students from the national judges school which is located there; 300 protested in Rennes and in Lyon another 200. In Marmande, 16 lawyers and judges slept overnight in the Courthouse.
Despite this spirited resistance the government did not withdraw the reform. The final version was less radical as the number of courts eliminated was reduced (196 instead of over 300-interestingly none of the appeal courts were to go, indicating again a bias toward the more wealthy citizens). But the Minister had a surprise: 63 of 271 Labor courts were to go, and 55 of 191 business courts were to disappear. This probably was intended to be a second round of reform, but was brought forward in a neat tactical ‘once and for all’ move in the interest of more efficient resolution of employment and commercial disputes.
Many lawyers will lose money as a result of the changes as they are forced to move chambers to distant towns where the remaining legal centers are located. No doubt this played a part in motivating some of the demonstrators. Yet the scale of the protest indicates that the most significant of the motives were the protection of the legal system and maintaining access to justice. There is a strong tradition in France of resisting the state and fighting for justice; the French it is said, ‘demonstrate like they breath’ and lawyers, like others, maintain that tradition.10 Of course it is a part of their legal tradition: the 1789 Declaration of Human Rights and the Rights of Citizens explicitly recognizes the right to resist oppression. As one French commentator has noted, ‘France has a time-honored tradition of legislating from the street. French-style people power has even acquired a force that trumps representative rule’.11
While the March 2008 elections saw major Opposition gains, the legal reforms were not derailed. But the struggle of the lawyers, and their allies, can be seen as an important political statement that the government will be strongly resisted if it does not heed the calls for moderation in its pursuit of so-called economic efficiency and moral rejuvenation at the expense of social justice.
Malaysian lawyers are no strangers to public confrontation with a repressive state. In the late 1990s, they demonstrated in phalanxes of hundreds against the disgraceful tactics of Prime Minister Mahatir’s prosecutors, judges and police who organized the frame-up of the former Deputy Prime Minister Anwar Ibrahim on false charges of corruption, and sodomy. Lawyers were arrested and charged with sedition, or sentenced for contempt, for arguments they made in courtroom defense of their clients, including Anwar and his lawyers. Two thousand members of the Malaysian Bar Council condemned this intimidation and repression.12