CLR, ‘rebellious lawyering’, and justice education: A few lessons from Bangladesh

Abstract

Since the mid-1980s, there has been a noticeable movement in legal education, especially in the common law countries, to transform it into justice education. While ‘legal education’ in its traditional connotation refers to teaching and learning of the black letter laws, mainly for litigation purposes, justice education ventures well beyond traditional legal education to incorporate ideas of human dignity, empowerment of the poor and the marginalised including their access to justice to make the education socially relevant. The article argues that, despite having certain common features, justice education, both in content and in procedure, is fundamentally different in the global North and South, more so in countries of South Asia with massive poverty and ever-widening gaps between the rich and the poor. The article discusses a particular component of justice education in Bangladesh, the Community Law Reform Programme, popularly known as CLR, which has been experimented with and practised for almost two decades. The article demonstrates how CLR is different from other socio-legal researches and why it should be considered as an effective way of pursuing justice education for law students. The experience of CLR in Bangladesh since 2001 provides enough evidence to conclude that for justice education to be meaningful in societies like Bangladesh, it has to incorporate CLR in its curriculum. Finally, the article analyses how it has proven to be a challenge to incorporate CLR in the mainstream law school curriculum (even as a clinical component), despite its intricate relation to ‘rebellious lawyering’ as distinct from ‘generic/traditional’ lawyering.

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Notes

  1. 1.

    From Professor NR Madhava Menon’s notes (apparently his last ever handwritten letter) addressed to the principal, Kerala Law Academy, the night before he was hospitalised. Reproduced in Mizanur Rahman, My Association with Professor Madhava Menon or a Lesson in Experiential Learning (Rahim Book Depo 2020) 19 (forthcoming).

  2. 2.

    NR Madhava Menon, ‘Rule of Law and Social Justice: The Case for Re-structuring Legal Education in South Asian Countries’ (AK Khan Memorial Lectures, University of Chittagong, 2018) 9.

  3. 3.

    UNDP, Human Development Report 2016: Human Development for Everyone (UNDP 2016) 54.

  4. 4.

    Menon, ‘Rule of Law and Social Justice’ (n 2) 9.

  5. 5.

    UNDP, Human Development Report 2016 (n 3) 5.

  6. 6.

    United Nations Sustainable Development Solutions Network (SDSN), World Happiness Report 2017 (SDSN 2017).

  7. 7.

    Ibid.

  8. 8.

    Mizanur Rahman, ‘Socially Relevant Legal Education: Role of Law Schools and “Rebellious Lawyering”’ (2009) 30(1) Journal of Law and Development 30.

  9. 9.

    Ibid.

  10. 10.

    Mizanur Rahman, ‘Anti-Generic Learning and Rebellious Lawyering: A Challenge to Regnant Legal Education and Lawyering in Bangladesh’ in Mizanur Rahman (ed), Human Rights and Empowerment (ELCOP 2001) 136, 138.

  11. 11.

    Mizanur Rahman, ‘Clinical Legal Education in Bangladesh: Establishing a New Philosophy?’ (1996) 1 Chittagong University Studies 1.

  12. 12.

    For the impact of Prof. Menon’s ideas on this author, see Mizanur Rahman, ‘The Story of Rebellious Lawyering or Approaching of a Silent Revolution’ in Mizanur Rahman et al. (eds), Human Rights and Rebellious Lawyering (ELCOP 2019) 1.

  13. 13.

    Constitution of Nepal, Art. 50; Constitution of South Africa, Art. 35; Constitution of India, Art. 39(A).

  14. 14.

    Constitution of Bangladesh, Preamble.

  15. 15.

    Menon, ‘Rule of Law and Social Justice’ (n 2) 9.

  16. 16.

    Rahman, ‘Socially Relevant Legal Education’ (n 8) 31.

  17. 17.

    Gerald P Lopez, ‘Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-generic Legal Education’ (1989) 91 West Virginia Law Review 305, 322.

  18. 18.

    Rahman, ‘Socially Relevant Legal Education’ (n 8) 33.

  19. 19.

    Menon, ‘Rule of Law and Social Justice’ (n 2) 5; emphasis mine.

  20. 20.

    Rahman, ‘Socially Relevant Legal Education’ (n 8) 33.

  21. 21.

    For more on this, see Rahman, ‘Anti-Generic Learning and Rebellious Lawyering’ (n 10) 136; Mizanur Rahman, Anti-Generic Learning and Rebellious Lawyering: Reflections on Legal Education in Bangladesh (Bijoy Prakash 2018).

  22. 22.

    Rahman, ‘Anti-Generic Learning and Rebellious Lawyering’ (n 10) 153.

  23. 23.

    Richard D Marsico, ‘Working for Social Change and Preserving Client Autonomy: Is There a Role for “Facilitative Lawyering”?’ (1995) 1 Clinical Law Review 639.

  24. 24.

    Susan R Jones, ‘Small Business and Community Economic Development: Transnational Lawyering for Social Change and Economic Justice’ (1997) 4 Clinical Law Review 225.

  25. 25.

    Rahman, ‘Socially Relevant Legal Education’ (n 8) 34.

  26. 26.

    For an elaborate discussion on Protidiner Ain, see ibid. 2–5. For more focused discussion on Street Law in Bangladesh, see Arpeeta Shams Mizan, ‘Domestic Violence in Bangladesh: Breaking the Knowledge Barrier through Protidiner Ain’ in David McQuoid-Mason (ed), Street Law and Public Legal Education: A Collection of Best Practices from around the World in Honour of Ed O’Brien (JUTA 2019) 164.

  27. 27.

    Rahman, ‘Socially Relevant Legal Education’ (n 8) 34–35.

  28. 28.

    A clinical residential human rights training school, HRSS was formed under the auspices of Empowerment through Law of the Common People (ELCOP), a voluntary, non-profitable, apolitical, non-governmental human rights education, research, and training organisation dedicated to the common people of Bangladesh. The founders and existing leadership of ELCOP continue to be teachers and students of law dedicated to rebellious lawyering. For a comprehensive discussion of the HRSS see Rahman et al., Human Rights and Rebellious Lawyering (n 12) x–xiii.

  29. 29.

    Rahman, ‘Clinical Legal Education in Bangladesh’ (n 11) 1.

  30. 30.

    Stephen Wexler, ‘Practicing Law for the Poor People’ (1970) 79 Yale Law Journal 1053.

  31. 31.

    Ibid.; emphasis mine.

  32. 32.

    Mizanur Rahman, ‘Social Justice Mission of Legal Education and Rebellious Lawyering’ in Mizanur Rahman (ed), Human Rights and Domestic Implementation Mechanism (ELCOP 2006) 57.

  33. 33.

    For more on HRSS, see Sharin Shajahan Naomi, ‘Who Is Human Rights Summer School?’ in Mizanur Rahman (ed), Human Rights and Sovereignty over Natural Resources (ELCOP 2010) xiv–xxi.

  34. 34.

    Arpeeta Shams Mizan and Muhammad Rezaur Rahman, ‘Quest for Anti-Generic Research: Introducing Community Law Reform’ (unpublished working paper, 2018) 3–4.

  35. 35.

    NR Madhava Menon, Keynote Address (7th Global Alliance for Justice Education Worldwide Conference, Delhi, 10–14 December 2013) 9, cited in Jane Ellen Schukoske, ‘Dr. N. R. Madhava Menon on Inclusion and Equity for Rural and Tribal India’ (2020) 7(1) Asian Journal of Legal Education 17, 21.

  36. 36.

    Ibid.

  37. 37.

    Ibid. 20. Schukoske refers to Frank S Bloch and Iqbal S Ishar, ‘Legal Aid, Public Service and Clinical Legal Education: Future Directions from India and the United States’ (1990) 12 Michigan Journal of International Law 92.

  38. 38.

    One full day is dedicated to the community visit at the HRSS. Vulnerable marginalised communities are identified and students are assigned with concrete issues dealing with subordination and disempowerment of the target groups. For the vast majority of students, as is evident from our experience of the last 20 years, this becomes the very first interaction with the poverty, helplessness, and subordination of the poor people.

  39. 39.

    A wide variety of issues and communities were covered by CLR studies. The latter include: Mizanur Rahman and Tanim Hussain Shawon (eds), Tying the Knot: Community Law Reform & Confidence Building in the Chittagong Hill Tracts (HRSS and CLR 2001); Mizanur Rahman (ed), In Search of a Withering Community: The Santals of Bangladesh (ELCOP 2002); Mizanur Rahman (ed), A Community in Transition: The Biharis in Bangladesh (ELCOP 2003); Mizanur Rahman (ed), Combating the Khasi Uprooting: Humanity Cries (ELCOP 2004); Mizanur Rahman (ed), The Garos: Struggling to Survive in the Valley of Death (ELCOP 2006); Mizanur Rahman (ed), Agony of Development: A Study in Pauperization of Displaced Communities (ELCOP 2007); Mizanur Rahman (ed), Life on a Swing: Human Rights of the Riverbank Erosion Induced Displacees (ELCOP 2009); Md Rahmat Ullah et al. (eds), In the Shadow of Death: The Tantees of Bangladesh (2012); Md Rahmat Ullah et al. (eds), Story of the Tea Workers: Subsistence against Hegemony (ELCOP 2014); Md Rahmat Ullah et al. (eds), The Harijans of Bangladesh: Living with the Injustice of Untouchability (ELCOP 2016); Mizanur Rahman et al. (eds), Economic Development versus Human Rights Abuse: Shrimp Culture in the South (ELCOP and UNDP 2019).

  40. 40.

    During their stay with the community, the researchers are required to make presentations on their day’s findings at the regular nightly sessions beginning from midnight and continuing sometimes till very early in the morning. Such presentations are held in the presence of supervisors and community leaders to ensure accuracy of facts and figures and proper ventilation of the sentiments of the community. Researchers work in groups of three or four persons and presentations are made group-wise.

  41. 41.

    Mizan and Rahman, ‘Quest for Anti-Generic Research’ (n 34) 6.

  42. 42.

    Ibid. 10.

  43. 43.

    Community leaders were thus trained, for instance, during the CLR research published in Rahman, The Garos (n 39).

  44. 44.

    Potential leaders of the Bihari community were thus trained in Dhaka. The CLR research led to the publication of Rahman, A Community in Transition: The Biharis in Bangladesh (n 39).

  45. 45.

    Mizan and Rahman, ‘Quest for Anti-Generic Research’ (n 34) 8.

  46. 46.

    Ibid.

  47. 47.

    Mizanur Rahman, ‘Developmental Lawyering: A Wake Up Call’ in Mizanur Rahman (ed), Human Rights and Development (ELCOP 2002) 186.

  48. 48.

    Jane Ellen Schukoske, ‘Empowerment of Community Members through Grass-Roots Organization: What Roles for the Lawyers?’ in Rahman, Human Rights and Empowerment (n 10) 103.

  49. 49.

    Jane Ellen Schukoske, ‘Mapping Human Rights in South Asia’ in Mizanur Rahman (ed), Human Rights and Non-State Actors (ELCOP 2005) 57.

  50. 50.

    Ibid.

  51. 51.

    Ibid.

  52. 52.

    Mizanur Rahman, ‘From Traditional to Rebellious to Developmental Lawyering: Tortuous Journey of Clinical Legal Education in Bangladesh’ in Rahman, Human Rights and Non-State Actors (n 49) 44.

  53. 53.

    See n 39 above.

  54. 54.

    ‘Jamdani Finally Gets Recognition’ The Daily Star (Dhaka, 18 November 2016). https://www.thedailystar.net/frontpage/jamdani-finally-gets-recognition-1316581. Accessed 19 June 2020.

  55. 55.

    Abid Khan and Others v. Govt of Bangladesh and Others (2003) 55 DLR (HCD) 318.

  56. 56.

    The term ‘Biharis’ refers to 250,000–300,000 non-Bengali citizens of the former East Pakistan who remained stranded in camps after the liberation of Bangladesh. Most of these people originated from the north Indian state of Bihar. Today, many Biharis live in Pakistan and India also. Like the majority of the Bengalis, Biharis are generally Sunni Muslims. Pakistan refused to take them while Bangladesh denied them citizenship, pushing the Biharis to live in a situation of statelessness till the issue was resolved by the Supreme Court initially in 2003 see Ibid, and finally in 2008 in Sadaqat Khan and Others v. Govt of Bangladesh and Others (2008) 60 DLR (AD).

  57. 57.

    This has immense implications for the community because since 1971 they had been compelled to live in isolated camps (popularly known as the Geneva camps) in an almost inhuman and undignified environment. After the court decision, they enjoy freedom of movement with other rights. The CLR study depicts the unpalatable conditions of the camp life.

  58. 58.

    For an understanding of the living conditions of the Harijan community, see the CLR study by Md Rahmat Ullah et al., The Harijans of Bangladesh (n 39).

  59. 59.

    Arpeeta Shams Mizan, ‘Anti-Generic Learning and Rebellious Lawyering in Bangladesh: Does it Really Work?’ in Rahman et al., Human Rights and Rebellious Lawyering (n 12) 50–51.

  60. 60.

    Ibid. 52.

  61. 61.

    This CLR research led to the publication of Rahman, Agony of Development: A Study in Pauperization of Displaced Communities (n 39).

  62. 62.

    Generally, the target community is contacted well in advance and its leaders are approached to accommodate the CLR members. At the very outset it is made clear to them that CLR researchers do not represent any mandated NGO, and do not offer any financial or material incentives to the community members; rather as students they explore the dimensions of exploitation through documenting and disseminating their findings to the institutions and agencies concerned. Except the incident mentioned, so far, no CLR team has experienced any unfriendliness from the target communities. Inter alia, CLR implements a semi-ethnographic methodology where the students ‘declass’ themselves to live as one with the communities, thus ensuring no catalysts from the mainstream top-down legal system influence their finding during the field work.

  63. 63.

    Mizan, ‘Anti-Generic Learning and Rebellious Lawyering in Bangladesh’ (n 59) 53.

  64. 64.

    Naomi, ‘Who Is Human Rights Summer School?’ (n 33) xvii.

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Rahman, M. CLR, ‘rebellious lawyering’, and justice education: A few lessons from Bangladesh. Jindal Global Law Review (2021). https://doi.org/10.1007/s41020-020-00121-6

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Keywords

  • Anti-generic learning
  • Rebellious lawyering
  • Community Law Reform (CLR)
  • Human rights
  • Justice
  • Socially relevant legal education
  • Marginalised communities
  • Empowerment
  • Empathetic learning