|Posted by Moderator on May 26, 2013 at 4:05 PM|
Indemocratic societies, lawyers play an important role that no other professionalplays. They are the cornerstone of democracy and agents of liberalization. Theyplay a critical role in a the democratic process of a country, not only bydefending the fundamental civic rights of their clients but they also have todefend the public interest of the country, that is why they are considered theguardian of the “rule of law”: the ideal that all are equal before the law. Inemerging democracies this role is especially important for lawyers (common lawlawyers) because they help create the law. The lawyer plays an important rolein bringing social change and or social justice.
However inemerging democracies, lawyers are unable or prohibited from fulfilling some ifnot all of these roles. They may be subject to direct control or improperinterference and intimidation by a government, or the lawyers may subjectthemselves in a compromising situation by bribing the courts or othergovernment officials. Nevertheless lawyers are called to defend the interest ofthe citizens therefore they should preserve the independence of the professionwhile asserting the rights of the citizen’s public interest under the law.
The role ofa lawyer in an emerging democracy cannot be overemphasized. For the purposes ofthis presentation, the role of a lawyer will be looked at in three folds: therule of law and the lawyer, the lawyer as a public official, the lawyer as acatalyst for social change or social justice and for time constraints it willbe concise.
The Rule of Law and the Lawyer
Rule of law forthis purposes simply means, no one is above the law. Individuals, andgovernments shall submit to, obey and be regulated by law and not arbitraryaction by an individual or government. That said, we understand it is importantto have laws in any society and we cannot have laws without having lawyers. Thequestion is why is the rule of law important in an emerging democracy? First ofall democratic law is based on fairness and individual rights for freedom fromprosecution of speech, religion, political affiliation, right to vote andwithout laws these democratic rightsmight be squashed by a majority or anoppressive government. Therefore there is a need to protect the principles ofdemocracy with laws. The constitution which is the basis of a country’s law, isintended to protect the citizen’s rights. Albeit this is rarely so because,struggling emerging democracies, still succumb to authoritarian rule. In ademocratic society governed by the rule of law, great issues of moral principleoften take an abstruse legal form and that is where the lawyer’s role isimportant. The lawyer defines and interprets the law.
Rule of lawmeans little or nothing if all; individuals and government, cannot enforcetheir rights and be protected in their life, liberty, religion and politicalassociation by the full applicability of all established laws and if the factsto which the legal rule is to be applied cannot be fully investigated on themerits. It is for this reason that freedom under the law depends substantially,upon the existence of a strong and independent legal profession (BARASSOCIATION, JUDICIARY). The rule of law is central to any emerging democracyand as aforesaid the lawyer is the guardian of the rule of law.
The Lawyer as a Public Official
As earliermentioned, the role of a lawyer in an emerging democracy cannot beoveremphasized. A lawyer has many skills that can enable him to play the roleof a public official. Although the lawyers work and training is client-centered, they cannot disregard the interest of the public that’s why they areagents of liberalization. As public officials they are agents of legalliberalization, economic liberalization, political liberalization.
Legal liberalization: The lawyer helps to build specifically, legalinstitutions and culture the rule of law. In emerging democracies it is therole of lawyers to ensure that laws are passed that are consistent withdemocratic ideals. It is their duty to educate citizens about the democraticprocess and their civic rights. Lawyers must be vigilant and courageous incompelling those in power, to respect the rule of law and the rights ofcitizens against oppression and abuse. It is the role of a lawyer to protectthe society from the whims and caprices of an overbearingtyrannical governmentby enabling citizens to resist governmental encroachment of their rights andfreedoms. The lawyer is in essence an agent of liberty.
Economic liberalization: As agents of economic liberalization, lawyershelp in the construction of legal regimes sustaining basic institutions ofliberal capitalism, business organizations that protect against fraud,extortion and arbitrary taxes. This role ties in with Max Werber’s assertionthat, lawyers and their law are agents of rationalization, predictability,regularity, transparency or simply that lawyers, as facilitators for theirbusiness clients, help to produce the legal framework that is required of thebusiness.
Political liberalization: Lawyers are agents of politicalliberalization, by defending the basic frame work of freedom of speech, press,association, free elections, petition writing, protection against arbitraryarrest and imprisonment and the protection of minorities from persecution anddiscrimination.
A lawyerstands a better position to get into public office and become the bestpolitician. Some very prominent politicians in the strongest democracy arelawyers. Examples are the power couples, the Clintons and the Obama’s as wellas the many senators and house representatives in United States.
The lawyer as a catalyst for socialchange (social justice)
Undoubtedlyone of the roles probably the most important one of a lawyer in an emergingdemocracy is that of a catalyst for change. Through their work in court, commonlaw lawyers, help to shape the law. Every argument they make that is acceptedby a court makes a bit of precedent. That is why common law lawyers are deemedto be participants in law making. Law giants like Ralph Nader made socialchange through litigation, creating new modes of legal analysis. However thispaper will not focus only on social changes brought about through litigationbut also changes that lawyers can create through social activism.
Everyemerging democracy has to undergo social changes that have to do with socialjustice. These changes can actually be attained when the laws in place line upwith the ideals of social justice which is equality for all. Lawyers are socialmovement leaders. Social movement leaders are strategic decision makers whoinspire and organize others to participate in social movements. Social movementleader function as an articulator, linking the movement to the larger society.The lawyer’s role, representing a client’s interest, seem naturally as one ofan articulator. Social movement leaders create an impetus for movement bydirecting action defining problems and proposing solutions. Lawyers are equallyexpected to define the problem, consider solutions, and provide strategies foraction. Obviously, lawyers and especially common law lawyer’s, are powerfullypositioned to be agents of social change. Law – trained people who have beensocial change forces through methods of social activism not only in court caselike the Ghandhi’s, the lawyers in Pakistan who marched against the suspensionof the courts by General Pervez Musharraf in 2007, or those who entered theelection board to demand publication of vote results from Robert Mugabe’sgovernment in 2008 justifies the saying that lawyers change the world.
To conclude,the flexibility of mind for which legal education is well known the myriad ofintellectual tasks, the talents commonly displayed by lawyers and theirtraining, place the law trained at a comparative advantage for leadership rolesin social change movements.
I writethese not as a politician, but as a lawyer who cannot just sit and watch thedemocratic process in my country, evolve without being part. So I write theseas a plea to you all learned gentlemen, that as common law lawyers that we allare, it is time to take our rightful place as guardians of the rule of law,good public officers and leaders of social change to ensure change truly comesto our fatherland.
Thank youall so very much for this humble opportunity. I am most oblige.
Caroline Time Esq
Categories: Chief Barrister Charles A. Taku