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FOCUS December 2004 Volume 38

Lawyering for Human Rights

Jefferson R. Plantilla

The current anti-terrorism campaign raises once more the spectre of law as a tool for human rights violations. Decades earlier, several governments in Asia trumpeted national security as justification for the curtailment of human rights. The "guided democracy" concept of Indonesia and the "constitutional authoritarianism" of the Philippines are examples. Both facilitated the massive violations of human rights in the name of saving the country from the threat of communist take-over. In South Asia, India's "national emergency" led to sudden increase in human rights violations.

National security laws in Singapore, Malaysia and south Korea, enacted in the 1960s, legalized arrest without court warrant and detention without trial. They remain at present.

There are legal changes however. The 1987 Philippine Constitution, the 1992 Thai Constitution and the 1997 Fijian Constitution have provisions aimed at preventing the repeat of their bitter experiences on human rights violations. They also provide the mechanism (mainly in the form of national human rights institution) to protect and promote human rights. Several other governments enacted laws creating national human rights institutions and protecting vulnerable sectors of society especially children and women.

The Advisory Council of Jurists of the Asia-Pacific Forum of National Human Rights Institutions (APF), which advises members on the interpretation and application of international human rights law, is a new development in the field of law and human rights in the Asia-Pacific.

But the problem of human rights violations remains.

Lawyers at the frontline

Lawyers figured prominently in the midst of flagrant violations of human rights in the decade of the 1970s. They were swamped with cases of illegal arrest, arbitrary detention, torture, disappearance, violent dispersal of demonstrations or any form of public assembly, and even media censorship. They had to quickly provide legal aid to cases of arrests to avoid more serious problems of torture, disappearance and extra-judicial execution. This work termed "fire fighting"1 was a much-needed legal response to massive violations of human rights. Many of the cases they handled were on civil and political rights.

Governments found it convenient to disregard due process in clamping dissent by simply citing national security. It was in this context that lawyers who provided legal aid were exposing themselves to the very problems they were addressing. A number of these lawyers were arrested, detained and even killed.

In Southeast Asia, well-known legal personalities formed the Regional Council on Human Rights in Asia in 1982. The Council elevated national human rights work to the regional level to gain more attention from the international community. It adopted the Declaration of the Basic Duties of ASEAN Peoples and Governments in 1983, that describes the general features of the then human rights situation in Southeast Asia, and provides a perspective on how human rights should apply to the subregion.

Widened view

While "fire fighting" was indeed necessary, and continuous to be so up to the present, many lawyers understood that the problem is structural in nature. The approaches developed from the late 1970s therefore went beyond the usual court-centered approach, emphasized much more the collective welfare of people, and covered a wider range of human rights. They are known by different names - legal resources approach, structural legal aid, developmental legal advocacy, and alternative law.

The legal resources approach is defined as "the development of community knowledge and capacity to make use of the law." Towards this end, the lawyer will have to be:

  1. an advocate of collective demands and group interests, both in courts and in administrative, legislative and other institutions,
  2. an educator helping to develop community awareness and knowledge of relevant laws and helping to train community para-professionals,
  3. a critic of proposed or existing legislation and administrative actions which impinge on the human rights of impoverished groups,
  4. a law reformer asserting claims for change in legislation and state structures, and
  5. a jurist developing new jurisprudential concepts needed to realize the right to development.2

Indonesian legal practitioners promoted the concept of structural legal aid. It consists of a series of programs "aimed at bringing about changes, both legal and in other lawful ways, in the relationships which form the bases of social life, towards more parallel and balanced patterns."3
Another concept is developmental legal advocacy which is derived from a "structural perspective on the causes of injustice and an instrumentalist view of the law." It "emerged to address the inadequacies in the existing provision of legal aid by focusing on structural change to remedy injustice and the empowerment of the communities concerned to effect such change."4

The concept of alternative law is considered "... part of the alternative structures (national and international) essential to achieving "alternative development," i.e., development which is human and humane, equitable, based on self-reliance, realized through participation, and achieved in a manner that is environmentally sustainable. Alternative law thus represents a clear and uncompromising break from present-day law."5

These approaches have generally been used by legal organizations in South and Southeast Asia.

Women's rights advocates of the Asia-Pacific Forum on Women, Law and Development (APWLD) promote "Feminist Legal Theory and Practice" to help women's rights legal advocates and activists in their use of legal strategies to address women's concerns, and enhance their skills to effectively challenge discriminatory laws and practices in their countries by applying international human rights instruments that have contributed to the advancement of women's rights. Environmental law groups also provide an example of new area of work on law focusing on the impact of environmental destruction on the rights of communities dependent on natural resources specifically the indigenous peoples, fisherfolk and upland farmers.

Areas of work

Many legal organizations undertake non-formal legal education programs to help marginalized communities gain both knowledge and skills in using law to protect and assert their rights. They develop paralegals who can assist not just lawyers but their own communities in addressing their problems. The paralegals are trained to provide "legal first aid."6 They also use mass media such as local radio programs to reach more people in the rural areas. Seminars and forums are also held along with the publication of legal education materials.7

With the same educational effect, legal organizations handle court cases as part of public advocacy. High-profiled court cases record human rights abuses and incite public debate. The case, for example, of a woman who was gang raped upon the order of a traditional village court brought to the Pakistani public the brutal practices against women.8

Legal organizations lobby for new legislations that implement international human rights instruments. These efforts relate to indigenous peoples, people with disabilities, children, urban poor, women and other sectors. Some also lobby for the establishment of human rights mechanism at the national9 and regional levels.

LAWASIA proposed unsuccessfully in the 1980s through the draft Pacific Charter on Human Rights the creation of an appropriate human rights mechanism for the south Pacific states as a whole. In the 1990s, it led the ASEAN Human Rights Mechanism Initiative. LAWASIA and partner organizations are hoping that ASEAN would eventually adopt this mechanism.

Challenges

International human rights law provides human rights lawyers with an important role in translating it into domestic laws. Their experience in human rights lawyering provides a significant perspective on how international human rights standards should be fleshed out in the context of national legal peculiarities. Their advocacy, in courts or outside, can help educate judges as well as fellow lawyers and other legal professionals on the importance and applicability of international human rights standards. They can work with national human rights institutions, where they exist, and/or related institutions on the review of domestic laws based on international human rights standards. While some legal organizations are already engaged in this process, the challenge lies in maintaining this momentum to cover many more issues and laws, and encouraging law reform in countries where this process has not been started. It may be good to have a regional networking system that would facilitate exchange of information on law reform initiatives in different countries.

Human rights lawyers should also be involved in judicial training (for judges in the lower courts at least). Citing the experience of India, they can point to judicial activism as an important idea to look into.

Law schools have to be brought into the human rights field. The graduate courses on human rights in several Indian law schools, the encouragement to teach human rights courses in Chinese law schools, the elective subjects on human rights in a few law schools in the Philippines, and the development of the law school curriculum in South Asia to incorporate human rights10 are a few examples of initiatives toward that direction. By and large, however, international human rights law has not been given appropriate space in the legal education curriculum. The lack of emphasis on human rights in the law school is probably a major reason for the lack of support for human rights by lawyers in general.

Human rights lawyers work in partnership with non-governmental institutions, people's organizations , law schools and university centers, and national human rights institutions. Some partner institutions may think that legal action is at least good in delaying the implementation of adverse government decisions11 or that success in resolving problems is not due to lawyers but to the affected peoples' struggle .12 These views remind lawyers that "structural" human rights issues cannot be solved merely by litigation or other conventional legal measures. "Alternative" legal measures have to be developed in partnership with those deprived of justice, and their supporters.

Mr. Jefferson R. Plantilla is a staff member of HURIGHTS OSAKA.
For further information, please contact HURIGHTS OSAKA.

Endnotes

1 See Chitral D. Perera, "What Motivated the MDDR to Work out a Human Rights Education Program in Schools?"in Human Rights Education in Asian Schools, volume one (Osaka: HURIGHTS OSAKA, 1998).

2 This definition was drawn up in an International Commission of Jurists seminar held in The Hague in May 1981. See also Clarence J. Dias, "Realizing the Right to Development: The Importance of Legal Resources," in Development, Human Rights and the Rule of Law (Oxford: Pergamon, 1982), pages 193-197.

3 Buyung Nasution (1985) "The Legal Aid Movement in Indonesia: Towards the Implementation of the Structural Legal Aid Concept," in H. Scoble and L. Wiseberg, eds., Access to Justice - The Struggle for Human Rights in Southeast Asia (London: Zed Books Ltd., 1985) page, 36.

4 Free Legal Assistance Group- 1974-1994, (Manila: Free Legal Assistance Group [FLAG], 1994), page 8. Jose W. Diokno originally used the name developmental legal aid. But FLAG later on changed the word aid to advocacy.

5 Clarence J.Dias, "Alternative Law for People's Empowerment," in. Jose V. Aspiras, ed, Law as Weapon ( Makati: PROCESS, 1992), page 23.

6 See D.J. Ravindran ed., A Handbook on Training Paralegals, (Geneva: International Commission of Jurists, 1989).

7 See Golub, S. and McQuay K., 2001, 'Legal Empowerment: Advancing Good Governance and Poverty Reduction,' in Law and Policy Reform at the Asian Development Bank, 2001 Edition, -available at www.adb.org/Documents/Others/Law_ ADB/lpr_2001.asp?p=lawdevt

8 See Asma Jahangir, "Mukhtar Mai- Challenging Tribal Code of Honor," Time Magazine, 11 October 2004, page 43.

9 The lobbying being done by The Japan Federation of Bar Associations for the establishment of a national human rights institution in Japan is an example, visit www.nichibenren.or.jp/en/about/justice.html

10 See the Kathmandu School of Law website (www.kslnep.org) for more details on this initiative.

11 See Ted Anana, "Struggling for Housing Rights in Asian Cities," volume 34, FOCUS Asia-Pacific (Osaka: 2003).

12 See S. Arutchelvan, "Malaysian Plantation Workers and Judicial Resources," volume 34, FOCUS Asia-Pacific (Osaka:2003).


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