Lawyers it is said, are mainly concerned with legal rules and principles but often neglect the political and economic context which shape the ways in which the law is made and applied. Indeed lawyers often view the latter concerns as not the proper purview of the legal profession. There are lawyers and there are lawyers .

In the 1970s, many Third World nations in Latin America and Africa which suffered the consequences of the American capitalism model for development through increasing debt and dependency and structural adjustment programmes began finding solutions. Asia was relatively several paces behind her sisters in this.

Dependent capitalist development brought a crisis in relations between the state and citizen where authoritarianism, and not democracy, became the normal form of government. Law, lawyers and the legal system were identified as the apparatuses of capital and vested interests.

Nevertheless, the pervasiveness of law compels lawyers to work with partners in social movements (representing groups marginalised by development processes like peasants, farmers, fisher folk, indigenous peoples, women, workers), with a view to transform capitalist social relations.

These partnerships have several names such as developmental or alternative lawyering. It seeks to infuse law and legal practice with political meaning based on multi-faceted perspectives of social change. It developed a 'Third World analysis' of the economic and social forces which shape legal rules, ideas, institutions and processes.

The search for a new thinking inevitably challenges the assumptions of existing legal theory and with that the premises of 'mainstream lawyering'. Very few law schools in the region have actually included these concerns in the first degree law school curriculum. As most law schools are geared towards placing their graduates in mainstream practice as opposed to 'developmental activism', there is very little change in the mindset of the majority of lawyers in the profession.

Bourgeoisie- monarchy alliance

The Political Economy of Law, A Third World Reader edited by Yash Ghai et al. is an instructive read to anyone interested. The lawyer in private practice may find the thrust of the book useful in understanding law and development issues which sparked the Third World movements of the 1970's. The lawyer-activist may find the book useful in formulating or clarifying the theoretical framework for alternative lawyering.

Ghai, elsewhere in The Legal Profession and the Practice and Ideology of the Rule of Law , (paper delivered at the 10th Commonwealth Law Conference. Nicosia.) offers a hard-hitting analysis of the legal profession's claim of autonomy and impartiality. This is one of Ghai's early writings on the legal profession.

The lawyer's bible is the rule of law. The roots of the rule of law lie in the need of capitalism for predictability, calculability and security of property rights and transactions. Historically, capitalism required the conversion of serfs into wage earners as well as expansion and consolidation of national markets. This compels an alliance of the bourgeoisie with monarchy against feudalism. Capital also required the limitation of arbitrary powers of the monarchy (or the state) against intervention in property and contractual rights.

The rule of law is developed as a concept of general rules to suit the aims of capital. When the propertied class achieved political dominance, it exercised its power through the economy with the state providing the framework for it.

In the nineteenth century, there arose a political need to accommodate new economic and social interests (the working class), the broadening of the franchise, the internationalisation of capital and other corporate groups. Periodic economic crises invited state intervention in the economy leading to a co-penetration of the state and the economy, undermining the regime of general rules through discretion and discrimination. There is a larger role played by the state.

These dimensions posed new problems to the rule of law. There were trade-offs between values and goals which the original understanding of the rule of law does not accommodate. The scope of the rule of law broadened. Political power shifted the burden of the rule of law from the courts to the legislature. The welfare or justice aspect invited administrative discretion, thus 'undermining' the sanctity of rules. The central discourses on the rule of law now include philosophy, politics and sociology.

Conditional autonomy

Ghai argues that although the scope of the rule of law has broadened, its ideological base remains rooted in legal values and forms and its discourse is legalistic. A fundamental value claimed for the rule of law is the equality of all before the law. Capitalist, worker, politician, citizen - everyone is presumed to have an equal access to the law. The capitalistic legal perspective hides the way in which power is exercised in our society giving the appearance of neutrality and autonomy.

Lawyers provide services which are geared towards the maintenance of legality, protection of individuals and groups and access to citizens to justice; the rule of law. This is done via a monopoly of delivery of particular services (1). The claims of monopoly are accompanied by demands of institutional autonomy, in terms of recruitment to the profession, the conduct of its business and the discipline of its members. The problem is these are secured through a dispensation of the state.

This dependence on the state puts a limit to the profession's role as a defender against it, forcing it into compromises. Lawyers enjoy their monopolies and professional autonomy only if they stay out of potentially contentious cases or do not criticise oppressive public policies or acts. These cases or criticisms are in fact the real test of the existence of the rule of law.

Lawyers claim to protect citizens against the state on one hand. On the other hand, lawyers are fully integrated into the state's apparatus.

The state controls a large amount of legal work through state-owned enterprises, joint ventures, licensing and more. The direct and indirect state control of the patronage of legal practice means that lawyers can have scant regard for human rights. The ethos of the profession are directed towards serving the needs of the commercial community (and the state) and this oftentimes is the working ideology of the profession.

Ghai provides a provocative analysis. Is redemption not in sight? Ghai thinks that the seeds of hope lie with lawyers themselves. 'However, respite for lawyers may be at hand with the now fashionable emphasis on human rights and democracy which are designed to resurrect the older values of the rule of law.'

Sword of Damocles

There are phases of assertions of human rights and democracy at the Malaysian Bar. One very memorable incident came to be known as the October Boycott of 1977 (2). This ended with a legislative curtailment of the Bar's autonomy in the conduct of its affairs by the inclusion of Section 46A to the Legal Profession Act, 1976.

Section 46A disqualifies lawyers with less than seven years at the Bar, members of Parliament or the state legislative assemblies, officers of trade unions and political parties or other political organisations whether inside or outside Malaysia from becoming members of the Bar Council or state Bar Committee or any sub-committee of them.

The Attorney-General (AG) is empowered under this section to declare whether an organisation is political and his order shall not be reviewed or called into question by any Court. The Bar would understandably be anxious if on a whim, the Bar itself is declared to be a political organisation! It has to re-invent itself. Section 46A is the proverbial sword of Damocles.

The October Boycott was essentially a lawyers' strike not to appear in cases under the Essential (Security Cases) (Amendment) Regulations, 1975 or Escar. Escar originates as an Emergency law, meaning that it was passed by the Executive and not Parliament under a Proclamation of Emergency.

Lawyers were opposed to Escar. It allowed heresy evidence. Witnesses may appear in court masked to avoid being identified by cadres of the Communist Party. The accused is presumed guilty until proven otherwise. Cross-examination of prosecution witnesses by the accused are restricted.

Lawyers found it difficult to present a proper defence in Escar cases. The Bar felt that it could not render any useful assistance to the accused or assist the court in the proper administration of justice. The appearance of defence lawyers in court was only to lend a semblance of respectability and to impress upon the world that the ritual of a proper trial had been observed. Other criticisms include the indiscriminate use of Escar by the AG against common criminals in armed robberies.

Polarisation advantage

The October Boycott reportedly polarised the Bar between the senior and junior members. Observers note that the government took advantage of the polarisation and introduced section 46A in January 1978.

Post the amendment, most office bearers in the Bar Council and state Bar Committees had to vacate their positions. These are the 'politically active' members meaning members who are officers of political parties and junior members (not necessarily affiliated to any political party) who had initiated the October Boycott.

The entire Penang State Bar Committee (save for three senior members) had to resign. It was the Penang Bar who had lobbied and obtained sufficient signatures to call for the Extraordinary General Meeting of the Bar Council prompting the October Boycott.

In the end, Escar was declared ultra vires by the Privy Council at the end of 1978. It was resurrected subsequently as an Act of Parliament.

The challenge and the Council's opposition to the challenge to Section 46A could be worth watching. A good section of lawyers are not unduly perturbed by what will happen in the Court of Appeal. There are precedents and expectations and perhaps even predictable outcomes. There is all around, more concern with the ball in the Bar's court.

Endnotes

(1) Legal services are special in that law is perceived to be a complex body of knowledge. Only lawyers are perceived to have certain practical skills and professional techniques without which this knowledge cannot be applied in the practice of the profession.

Lawyers use such knowledge in service of their client's interests. The particular lawyer-client relationship arises from the complexity of the subject matter which deprives the client of the ability to make informed judgments for herself/himself and renders her/him to be dependent upon the lawyer.

(2) See A Rahim Said, The October Boycott: Its causes, consequences and implications for legal practice in Malaysia . International Journal of the Sociology of Law (1981) 9, 383-396.