J ustice the Case of Tunisia Marny Requa Queens University Belfast 11 October 2014 Cornell Law School PostUprising Justice Administration conference Overview Project background and methodology ID: 266462
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Slide1
Lawyers, “Revolution,” and Transitional Justice: the Case of Tunisia
Marny Requa, Queen’s University Belfast11 October 2014Cornell Law School Post-Uprising Justice Administration conferenceSlide2
OverviewProject background and methodology
Tunisia: recent history Lawyers and legal culture in TunisiaCause lawyering and the Ben Ali regimeLawyers and social movements
Tunisian legal culture and international law
Transitional justice in Tunisia
ObservationsSlide3
Lawyers, conflict & transition: Queen’s University Belfast and the University of Ulster TJI
Project funded by the UK Economic & Social Research CouncilAim to explore the role of lawyers – within and outside the courtroom – in societies undergoing or transitioning from violence or authoritarianism
Case studies: Cambodia, Chile, Israel, Palestine, South Africa, Tunisia, building on research in Northern Ireland
Research questions include:
How do lawyers respond to extreme state repression?
What is the role of lawyers in social movements?
How do lawyers contribute to understandings of the “rule of law” in conflict and transition?
How significant is the issue of gender in determining the role of lawyers?
Do local lawyers engage with international law and legal actors? To what end?
How do lawyers contribute to efforts to “deal with the past”?Slide4
Methodology
Theoretical literature reviewLocal researcher report and dataResearch instrument21 interviews (24 individuals) in Tunisia, June 2014Activist and “cause” lawyersGovernmental lawyers; new institutions
Politicians
Academics and judges
Local and international NGOs
Legal collective reps (Bar Association; Young Lawyers’ Association)
Data analysis across all jurisdictions (
ongoing
)Slide5
1881: French colonization1956
: Independence1987: Ben Ali presidency begins2005: 18 October Coalition for Rights & Freedoms
2008
:
Gafsa
Mining Basin
Events
P
hoto: AI/nawaat.org
Tunisian recent historySlide6
2010-11: Pressure builds toFleeing of Ben Ali (Jan 2011);
Constitutional Democracy Rally dissolved; elections (Oct)2013:
Political assassinations;
Ennahda
hands power to
caretaker
gov
2014
: New constitution (Jan); Truth & Dignity Commission (June)
Elections (Oct/Nov)
P
hoto:
Morocco World News
2013
Photo:
AP
2011Slide7
Lawyers and legal culture in Tunisia
30 December 2010, Tunis City (photo:
ahramonline
)Slide8
Cause lawyering and the
Ben Ali regime
Cause lawyering:
Moral activism … an abandonment of the traditional disavowal that law is political … the professional
is
political
An “activity that uses law-related means … to achieve greater social justice” (
Menkel
-Meadow 1998)
A profession “whose function is more than the deployment of technical skills but rather a vehicle through which to build a better society” (McEvoy & Rebouche 2007: 305)
“In any conflict situation it is very difficult for a lawyer to be strictly a lawyer” - Priscilla JanaSlide9
In Tunisia, what ‘causes’? Representation of political prisoners, Islamists,
Salafists, activistsProtecting basic rights of individuals against state or the powerful; challenging corruptionSexual harassment may be “feminist on the surface but with political waves underneath … the judiciary is implicated … the economic influence of the prosecuted” determines outcomes
Activities
Judicial and political strategies, boycotts, client welfare
“The Bar as a profession was the only opposition party in Tunisia”
Consequences
Pressure, physical assaults, occasional imprisonment; intimidation of clients, Ls’ offices raided and files confiscated, phones cut, cars stolen
The legal community
: lawyers’ commitment to the profession often transcended political boundaries
“Even the people who belonged to Ben Ali’s ruling party did not want lawyers to be mistreated” “They elected me as a member of the Bar Association as a form of protection … they helped me by giving me money”Slide10
Lawyers and social movements
Elitist? Suspicious? Necessary?
Activists first
K
eepers of the flame of change (
Shdaimah
2006)
C
omparative advantage – legal knowledge (
Tushnet 1987)Law is a tactic and a target (Cummings 2013)Or ‘legal cooptation’ (Lobel 2007)?
Impose own (elite, resourced) agendas (Levitsky 2006)Legitimate larger structures of domination (Kostiner
2003); support the illusion of functioning rule of law (Sfard 2009)
De-radicalization of movements; support status quo (
Albiston
2011)
Litigation should be one element in wider mobilization (Tomik 2005) given limitations
of juridical law (Rosenberg 1991) and risks of even successful outcomes (Schoenfeld 2010, Vanhala 2011))Slide11
Why activism?: “The core of the lawyers in Tunisia is highly politicized”;
lawyers had “some kind of immunity” and solidarity Position within movements: Looked to as leaders; linked to politics – involvement assumed, but to an extent disconnected from youth, grassrootsEffect: Encouraged wide support, law brought imprimatur
of justice/
morality, but changes not radical – structures remainSlide12
Post-14 January 2011 focus on building a “rule of law state”, as understood by legal activistsEnact progressive laws and draft new constitution
Negotiate “appropriate” TJ mechanisms, challenge impunityLawyers working within the state on reform projectsPolitical crisesCurrently a holding pattern until Oct/Nov electionsInterviewees’ views: lawyers are “Tunisia’s first democrats” or lawyers are “greedy”?
The larger group of lawyers active in the uprising/post-uprising period has been reactive; now back to business, not radical
Major role of lawyers in politics, and of politics in the Bar
Lawyers within government: reformists but pragmatists
Period of upheaval had contained divisions amongst lawyers; now apparent
Thick
or thin rule of law agenda
?Slide13
Tunisian legal culture and international law
International law allows some to circumvent oppressive legal system and for resistance within law (Jabareen 2010)In transition, melding
of past, present and future legal cultures (
Krygier
2006)
Post-colonial considerations:
Rule of law as norm creation and culture
need significant adaptation of foreign order to the local, and accommodation of local legal heritage (Brooks 2003; Berkowitz 2003)
Cause lawyering can resist colonialism rather than support it
Human rights institutions: where cause lawyers’ concerns can be heard and operationalized, if accompanied by enforcement powers (
Hajjar 1997: 475) Slide14
International law used politically during dictatorshipTrials were “a battle, for us to show that the regime was dictatorial .
.. It was an opportunity for us to show to the rest of the world … that these were not court hearings just legal theatre. When we plead we would hurt them, and when we would walk out of the courtroom we would hurt them even more”
“Ben Ali ratified international conventions just for the image … judges were furious” when treaties such as the Torture Convention were invoked in court. “It is proof that the regime is not democratic and does not respect its commitments”
International pressure had a “major impact,” and lawyers appealed to foreign media, even to facilitate access to clients
Politicized use of international law continues
Debates over meaning of laws and rights
International law and connections generally valued
Symbols of justice in society
Some resistance to foreign role and role
Viewed as imposing norms, agenda
Sustained engagement with international law and institutions lacking (for better or for worse?)“What is our vision of human rights? The ministry still doesn’t have a clear vision”Slide15
Transitional justice in Tunisia
Social transition brings ‘paradigm shifts in the conception of justice’ (Krygier
2006; see
Teitel
2006)
Has TJ discourse negotiated ‘a cosmopolitan conception’ of justice rather than simply introduced a toolkit? (Bell 2009: 23-27)
Risks: inflexibility, foreign interest, technical approach, disregard of local; law can dominate, overshadow goals
Hopes: challenge impunity and denial, draw on legal tradition, elicit participation, inspire local demand, cross disciplines and demographics
Mediating function of law (
Dezalay & Garth 2011); activists as translators (Merry 2008)But some TJ processes can be a means of absorbing and regulating challenges (Moon 2012) Slide16
A model of transitional justice? Ministry of TJ; national dialogue; “exceptional measures” required “new structures”
“Based on the past, it relies on the present to build the future”Questions raised about enforcement, scope “The committee itself has been the result of political wheeling and dealing … I’m not sure these people will act with full impartiality and transparency and fairness”.
“
Few people understand what transitional justice is
”
Contradictory measures; open to challenges?
TJ versus broader reforms and human rights agenda
“We are still suffering from the same practices that prevailed before [regarding] the security apparatus and the judiciary
”
“It is important to … undertake major economic and social reforms to ensure progress because people who cannot find bread will not enjoy freedom
”Slide17
Observations / questions
Appetite for change highest after a critical juncturePolitician lawyers as a different breed of cause lawyer: Do they stimulate or undermine projects of reform?Post-uprising cause lawyering still vital to “thicken” rule of law, and to expand space for non-legal, intergenerational activism and participation
“The only thing that has really changed is that we can express ourselves freely … there are more than 150 political parties now... If we don’t defend our rights we might lose them.”
TJ
“mainstreamed”
in Tunisia; local interviewees raise questions on
implementation. How can the international community exercise power and resources responsibly? Slide18
More on the project:
http://lawyersconflictandtransition.org@
lawyers_TJ