Despite the risks they take, progressive lawyers have not been intimidated. In 2007, in order to unify and strengthen their movement, they formed the National Union of Peoples’ Lawyers.19 The NUPL has engaged in a program of research and human rights advocacy which has responded critically to the government’s rhetoric on human rights which largely attempts to blame criminal individuals (domestic violence being a favorite explanation!), the Communists, or bandits, or simply to claim, counter-factually, that they are taking adequate corrective measures.
Disturbingly, the international response has not been all that it might be despite international recognition of the impunity with which government forces act in the killings and other abuses. (There have been two convictions involving the military in the killing of two journalists, few serious investigations and only a handful of charges laid). The Philippines retains its seat on the UN Human Rights Council. Recently, however, as a result of heavy criticism by Philip Alston, the UN Special Rapporteur on Extra Judicial Killings, and submissions by the NUPL, the Council has stressed that the Philippines must take effective action against the perpetrators. The European Union has undertaken to provide substantial funding for a program of aid to increase the country’s capacity to solve the crimes and get convictions.
A unique intervention in the political struggle was made by the Chief Justice of the Supreme Court, Reynato Puno.20 Clearly frustrated by the lack of action by the Arroyo government, Puno called together some 200 political, judicial, military/police, Church and civil society leaders for a Summit on the killings and disappearances from which came a number of positive recommendations. One, on strengthening the concept of military/police command responsibility for human rights violations by subordinates, was especially welcomed.
Two further ideas have since been implemented: the judicial writs of habeas data and of amparo which are known to civil lawyers.21 These writs may be applied for by relatives and others-or initiated by government agencies- in cases of suspected abuse including killings and disappearances. They go beyond the writ of habeas corpus which has proved almost useless in these cases. No longer can a state agency simply deny they have, or know the whereabouts of, an allegedly detained, killed or disappeared person. With these writs, the challenged agency is required to release to the court, and thus to the applicant, all information it has regarding the person and a detailed account of all efforts it has made to discover the precise facts in the specific case. It is also possible for the court to order the officials to provide access to all suspected places of confinement, torture or disposal of the individual sought. Failure to obey the court orders is a punishable offense.
Analysis
In trying to understand these and other contemporary lawyer resistance movements, it is important to acknowledge that each has to be considered in its own specific history, traditions, legal culture and state-civil society relations. Further, each country is located uniquely within a global matrix of socio-cultural, political and economic forces, domestic and international.
Within that location, each state has several primary tasks. First, to ensure its own existence through the successful implementation of policies which allow it to govern. This will require a combination of coercive and non-coercive measures. Second, the state must protect the long-term interests of the wealthy elite, today generally a corporate capitalist class, but in Newly Developing Countries it is likely to be an alliance of national capitalists, semi-feudal landowners and international corporate capital.
It is in the attempt to fulfill those two broad functions under the contemporary conditions brought about by the intensification of globalising processes, including the “war on terror”, which has led many states into conflict with sections of the legal profession. A brief analysis of those conflicts is all that is possible within the space allotted.
In France, the “modernizing” government of a developed, liberal Western democracy acted to restore the tarnished legitimacy of the state and the capacity of French corporate capital to compete and prosper. As Interior Minister, Sarkozy had already implemented a hard-line approach to urban riots, especially involving alienated youth from migrant communities; police and judicial repression was comprehensive. His government proceeded to implement the reforms needed to “streamline” the public sector, including the legal system. The resistance to his program was strong. That of the lawyers was generally within the framework of law, or the traditions of popular resistance. Negotiation was expected and, to some extent, worked. The reforms were mitigated and the resistance was brought to an end. The state retained its legitimacy. Having applied what pressure they could, the lawyers had to accept a substantial defeat.
The Philippines presents a story of ongoing confrontation and continuing challenges to the legitimacy of the state. In the context of a rapacious elite and corrupt regime, and the continuing immiseration of the masses, the state has been unable to reach a settlement. It faces a dense civil society, tempered like fine steel through its successful battles to depose the dictator Marcos, to force the withdrawal of American troops and bases, and the ousting of Arroyo’s predecessor. Through all these struggles lawyers have been integrated in the social movements resisting the state. They have served a vital role as organic intellectuals closely involved in the peoples’ struggles. In those circumstances they have not been on their own, vulnerable to being simply picked off, beaten and sent to jail or co-opted as a group. Nor have negotiations been an option. As a result, the Arroyo regime has not attempted to confront them directly, other than in court, often before compliant judges. Rather the Philippine state is engaged in a “shadow war” in which progressive lawyers and their allies are “neutralised” by violent extra-judicial measures.
Authoritarian states have been in place in Malaysia and Pakistan for years. In both countries, civil society is less united and less experienced in the tactics and methods of politically confronting the state than in the Philippines. With few exceptions, lawyers have not played a significant part in political opposition to the state. Nevertheless, Malaysian lawyers played an important role in opposing the misuse of legal procedures and institutions to eliminate political resistance to Mahatir. Although there has been no continuing confrontation, lawyers were again active over the treatment of Hindus, and like their Filipino colleagues, were integrated into that struggle. Using a “dialectic of legal repression”, the Malaysian state initially arrested Hindraf leaders (one a lawyer), before the major demonstration, and later released them without charge, as they did with those accused of attempted murder.22 Here it would seem the Hindus do not yet represent a threat to the state, can be negotiated with, and for that lawyers will be useful out of jail.
