Many roads to justice

This book, a Ford Foundation publication, documents innovative instances of lawyers' organisations contributing to human rights and social justice. It is based on a study of law related work of Foundation grantees around the world, says D. J. RAVINDRAN.

THE RECENT strike by lawyers highlighted the fact that they are far removed from day-to-day reality. If it were not the case, they would not have been surprised by the alleged unprovoked lathi-charge on them. In many parts, it is common for those who take to the streets to claim their basic entitlements. If the legal community were concerned about the rule of law it would have sought judicial enquiry not only on the action against its members but for all cases in which excessive force is used against peaceful demonstrators.

It is not beyond the call of the legal profession to engage itself in bringing about human rights and social justice. A recent publication of the Ford Foundation Many Roads To Justice documents some innovative work of lawyers' organisations in contributing to human rights and social justice. It is based on a study of law related work of Foundation grantees around the world.

It contains the experience of various groups in traversing many roads towards the same end: using the law as an instrument to advance human rights and social justice. The assumption is this: law can also promote the goal of "equitable and sustainable development, which aims to secure overall economic progress for a society, as well as political, social and economic changes that build the capacities of disadvantaged populations, eliminate barriers to their participation in community and government decision-making, and improve their material and social circumstances".

The study illustrates seven case studies based on law related programmes supported by the Foundation in South Africa, South America's Andean Region and Southern Cone, the United States, Bangladesh, China, the Philippines and Eastern Europe. The book also deals with five thematic perspectives: university legal aid clinics, public interest litigation, non-lawyers as community legal resources, police-related research and NGO adaptations to major political transitions.

Without reviewing in detail the case studies and the six perspectives discussed in the book, some of the fascinating experiences narrated will be highlighted for facilitating reflection among members of the Indian legal profession.

The first is the experience from South Africa. The apartheid regime enforced a cruel system based on racial discrimination while boasting of upholding the rule of law. It was proud of its judicial system. In the 1950's, lawyer's organisations mainly provided help to defend anti-apartheid activists arrested by the regime. Use of law and courts to challenge the apartheid system was problematic since laws passed by the parliament were beyond judicial review. A conference on "Legal Aid in South Africa", held in 1973 galvanised the efforts of lawyers and law academics to develop a more systematic approach to challenging the apartheid system by using the courts. The Legal Resource Centre (LRC), that emerged as a result of the Conference, targeted the pass laws that severely restricted the freedom of movement and residence rights of the Black majority. The LRC used the tactic of not challenging the act of parliament, that was beyond judicial review, but challenged the implementing regulations that barred Blacks from residing in White towns and cities unless employed there. In 1980, in the "Komani case", the LRC successfully challenged a regulation under the Black (Urban Areas) Act barring a Black woman from joining her husband in Cape Town, where he legally resided and worked. The LRC followed up on the victory of this case by succeeding in a case filed on behalf of a person claiming permanent residence rights in Johannesburg. The strategy was to probe the cracks in apartheid's legalistic self-delusion that the system was based on rule of law and to undermine the self-imposed subordination of courts. However, the victories gained in the courts were only a part of a larger effort involving community-based organisations, paralegals and anti-apartheid activists. Litigation was part of a larger struggle waged on several levels. The success in courts was also due to selection of issues that had gained great momentum. In the post-apartheid era, these groups are engaged in creative use of law for ensuring social and economic justice.

The book has some interesting experiences from South America where the lawyer's groups are engaged in restoring democracy and rule of law after the serious crisis that engulfed these countries in the late 1970s and early 1980s. At the height of repression in Chile, Argentina and Peru, the Foundation provided support to local organisations to investigate document and publicise human rights abuses. The most well-known and the one that functioned in most difficult situation was the Chilean organisation known as Vicariate of Solidarity. It was not allowed to publicise its information on human rights abuses. It, therefore, used the courts as a means to publicise such information. It helped victims of repression or their relatives to submit sworn statements to the courts and the complaints provided an empirical account of the abuses. The Vicariate simply publicised the number of petitions filed before the courts and junta was unable to accuse it of conducting a smear campaign against the regime.

However, human rights organisations in these countries faced not only repression but were also confronted with a department judiciary. Between 1973 and 1983, Chile's Supreme Court rejected all but 10 of 5,400 habeas corpus petitions and the results were similar in Argentina. In 1979, when relatives of 1,542 persons who had disappeared in Argentina presented a collective habeas corpus, the Supreme Court declared that, "deprivation of justice existed in Argentina and that the judges could not apply the law due to lack of collaboration from the Executive". The court sent the petitions to the then President of the country who replied with a "shameful note saying that he agreed but that no collaboration would be forthcoming".

Now, with the changed political situation, lawyer's organisations are engaged in programmes that go beyond denunciation of violations and deal with access problems of poor and other disadvantaged groups. For example, a few Peruvian lawyers started an organisation called Foundation for the Defense of Public Interest with the purpose of filing popular actions or cases when national goods of public use such as roads, rivers, and public areas were affected by governmental or private action. The idea of public action was later incorporated in the 1993 Constitution to include protection of public goods, public health, public safety, administrative probity and the environment. These groups have played an important role in ensuring that the new constitutions adopted in their countries include innovative provisions for ensuring transparency and accountability. The 1993 Peruvian Constitution includes the right to request information from governmental entities, the right to a healthy environment, and the right of any person to his or her ethnic or cultural identity. The Argentine constitution adopted a year later contains similar provisions. These were included as a result of sustained efforts in mobilising public opinion by these groups.

The changed political situation has been used by lawyer's organisations to develop strategic interventions by using public interest litigation. In Argentina, Citizen Power is an organisation that is involved in holding public officials accountable through monitoring and advocacy. It works with community groups to identify cases that could have public impact. The groups have successfully used public interest litigation to gain publicity for problems faced by disadvantaged groups and ensure a measure of access to courts to them. They select issues for public interest litigation if it serves as a model for the future; primarily deal with interpretation of constitutional rights; would draw media and public attention; and where possible, involve the interpretation of international human rights agreements. They also view public interest litigation as a means to educate the Judiciary on some emerging issues.

The next section of the book deals with the experience of groups using litigation to promote equality and justice in the U.S.. The pertinent lesson for India from the American experience is that democracy by itself does not produce justice to marginalised groups. Legal advocacy could open democratic possibilities that are blocked by discrimination and disadvantage. In the U.S., as a result of the Supreme Court's intervention, formal segregation in schools ended but the de facto segregation continued. The poorer schools lacked finances to provide meaningful education to students from the minority communities. For example, "in the 1990's, students in one poor Alabama school district still used decades-old text books predicting that one day man would walk on the moon". When groups challenged the inequities in the education system, the U.S. Supreme Court refused to acknowledge that a right to education exists in the Constitution. It was left to the American Civil Liberties Union (ACLU) and other organisations to file cases in State courts to ensure a State constitutional right to an adequate education. Unlike the U.S. Constitution, every state constitution explicitly requires the establishment of free public schools. The ACLU used these clauses for demanding enforceable right to quality education. The strategy was to tackle the issue of school finances and the disparities in the allocation for public schools. Thus, the litigation strategy moved from desegregation cases, to fiscal equity, to educational adequacy.

What we learn from the experience is that it is important to monitor the enforcement of public policies and laws since they are not typically self-executing. "Time and again, a law is passed, or a judicial decree is issued, and little or nothing changes. Part of the problem is that legal norms are often expressed in general or open-ended norms, leaving implementation of statutory requirements to the discretionary decisions of many individuals, officials, and bureaucrats. Moreover, on some issues, opposition organises and actively hinders implementation". This is hundred per cent true for India also. The U.S. groups have used public interest litigation (PIL) as a cost-effective strategy for monitoring implementation of social legislation. It should be noted that PIL is not an isolated event. It is part of empowering historically disadvantaged groups and forms an integral aspect of political mobilisation. In short, the experience of the U.S. groups over the last 20 years is that, "courts remain an important source of leverage for historically disadvantaged groups, lending them credibility, influence, and access to power. PIL sometimes produces dynamic policy impacts that extend far beyond the specific terms of a judicial decree, supporting social reform even if defendants refuse to comply with a court's order".

In Asia, lawyers and lawyer's organisations in the Philippines are known for their creative use of law for advocating the interests of disadvantaged groups. Those lawyers and law groups working with disadvantaged groups have formed an umbrella organisation called "Alternative Law Groups" (ALGs) which has received support from the Foundation. ALGs work together on a range of issues and share their expertise and resources. Their efforts vary from law reform, training and engaging paralegals, community organising, non-formal legal education, litigation and media outreach. ALGs have contributed to, "scores of administrative rules and regulations that, when implemented, benefit farmers, fishing communities, indigenous peoples, the urban poor, disadvantaged women, and other populations across the country". The work of the ALGs is recognised by the mainstream legal profession, Judiciary and the government. ALGs have proved that lawyers taking up the cause of disadvantaged groups do not have to remain in the margins of the legal system.

Nearer home, the book documents some interesting experiences in Bangladesh. The most remarkable is the mediation conducted by the Madaripur Legal Aid Association (MLAA). Shalish (or mediation) is an indigenous practice that uses outside parties to facilitate the resolution of disputes. MLAA has adapted Shalish to offer alternative dispute settlement mechanisms in the place of litigation that is fraught with problems of expense and delay. Normally, MLAA is approached through its village-based mediation workers and the association decides how to help solve the dispute. The negotiations for a given dispute may extend up to several months and a number of sessions. The mediation worker documents the details of the conflict and the settlement agreement. Nearly 80 per cent of cases are successfully resolved through Shalish. Studies by outside agencies have shown that many thousands of Bangladeshis have benefited from the Shalish programme. One of the major limitations of Shalish, which is acknowledged by the association, is the lack of gender equity in the process and in the settlement arrived.

Another most notable development in Bangladesh is the establishment of Bangladesh Legal Aid and Services Trust (BLAST), which was launched by the legal profession's apex body, the Bangladesh Bar Council. BLAST now has a nationwide network. Its offices are engaged in litigation, mediation and policy advocacy. It is the nation's largest legal aid organisation. BLAST has filed PIL winning important decisions from the Supreme Court. The decisions range from cases regarding custodial to environmental issues. It is interesting that the Bangladesh legal profession decided to engage itself in human rights and social justice issues.

In India, there are many lawyers who are engaged in human rights and social justice programmes. There are also organisations that are providing legal aid and other services to poor and disadvantaged groups. For example, a new organisation based in Delhi called Partners for Law in Development facilitates placement of lawyers with social action groups.

However, what is required is an initiative by the Indian legal professional to be concerned with human rights and social justice issues. The Indian Bar Association and the Bar Council could consider looking at the Bangladesh Bar's initiative and take steps to involve themselves a profession in human rights and social justice issues. As a first step the Bar Association could consider establishing a committee to look into all cases of excessive use of force by police and para-military forces against peaceful demonstrators about which it was concerned with in the aftermath of its strike.

Many Roads to Justice, The Law Related Work of Ford Foundation Grantees Around the World, published by the Ford Foundation, p. 361, price not given.

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