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Lawyers, “Revolution,” and Transitional Lawyers, “Revolution,” and Transitional

Lawyers, “Revolution,” and Transitional - PowerPoint Presentation

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Lawyers, “Revolution,” and Transitional - PPT Presentation

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

law lawyers international legal lawyers law legal international tunisia political justice local social rights role ben 2011 rule amp

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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