We complain about our powerlessness, about censorship, the lack of transparency and openness, the curtailment of speech and expression. This powerlessness was brought to bear upon us by the likes of the Internal Security Act, the Sedition Act, the Official Secrets Act, the Societies Act, the Printing Presses and Publications Act.

We clamour for more laws, perhaps a Freedom of Information Act will save the day. We hope so.

This brings me back to 1998 and 1999 when scores of mostly junior lawyers (less than seven years at the Bar) in Kuala Lumpur and Petaling Jaya attended police stations, remand courts, bail hearings, revision courts, did vigil at weekend demonstrations in support of the right of civil society to speech and assembly.

Then there were the reformasi trials of several hundred accused lasting for several months. People lost jobs.

Some of the lawyers were quite demoralised and began questioning the nature of their lawyering. They feel inadequate by just doing what they do best, defending the accused. What can lawyers do to change the situation other than working on better arguments and perhaps developing some kind of protocol with police and magistrates?

There is a sense of paralysis for some lawyers as more people took to conscientious objection of the law on illegal assemblies.

That was also the time of contempt charges being thrown at lawyers acting in high-profile cases involving captains of industry allegedly close to high-level politicians and, of course, the cases of the former deputy prime minister, Anwar Ibrahim.

Not politicians

These developments led to a memorable EGM in and around that period. In that meeting, a senior member of the Bar, known for his riveting dry humour, spoke about the dismantling of institutions in the country.

He took up a tale of two travellers caught by cannibals. Their captors took them to a waiting pot. It was a desperate moment. One of the captives called out to the other, "You are a lawyer, do something!" We are a nation-in-waiting.

Actions were proposed. A delegation would see the judges. Council had issued some 50 press statements in the last year and would continue to do so.

A couple of lawyers were aghast that the chairman at that time, took credit for a lawyers' march in support of Zainur Zakaria when on that eventful day, the Council disassociated itself with the march.

Zainur was cited for contempt for an affidavit made by his client, Anwar Ibrahim. A contempt of law legislation was mooted at the next Council AGM. How about the dismantling of institutions? We are not politicians, some say.

There is of course a difference in saying we should be politicians or members of political parties and saying we need to approach our strategies in law in a political way. This is open to all levels of civil society, lawyers included.

Some lawyers have to learn to un-pack and re-pack our formal legal training when working with communities, sectoral groups and the marginalised. Somehow the 'professional' training that comes with a standard law degree does not work so well in the field.

No-win situation

Doing strategies in a political way means moving away from putting too much faith in the political efficiency and ethical sufficiency of the law as an end in itself. Using law that way is critiqued as a myth that incorrectly links litigation, rights and remedies with social change.

This view obscures or tunnels one's vision leading to an oversimplified approach to a complex social process.

A litigation approach by itself has the disadvantage of reducing major political conflicts into a mere dispute between parties at a given time, thereby neutralising what should be a stirring issue.

It amounts to a no-win situation, for victory in litigation may be purely symbolic, providing instant gratification but diverting attention away from the forces which sustain the status quo. Courtroom losses can be crippling both in terms of finance and morale.

We spend too much energy in initiating favourable legislation and securing law reform. If securing laws are seen as ends in themselves, then once enacted, the objective is achieved and very little attention is given to administration and implementation. Rights pursued under specific legislation are in any case, individualistic and formalistic.

A legal literacy approach that imparts mere information about laws, rights and obligations rests on shaky pedagogical and ideological grounds.

Political struggle

This is not to say that law, rights and legal strategies are not relevant to a theory of social change. Put them in a political context. This means understanding the character of the state and its uses of law (reinforcing inequality or unequal power relations).

It means unearthing the biases (for example, gender, class, ethnicity) in the law in specific cases. It is identifying the larger issues of social justice and the structural obstacles to that. Litigation, legal literacy, law reform and other legal strategies are crafted within this political framework.

Law is then more than just an end in itself. It becomes a political resource and the assertion of rights, a political act. Legal strategies become a component of a broader political struggle for justice.

Thus a Contempt of Law Act, a Freedom of Information Act or a Sexual Harassment Act for that matter should be more than just a case of drafting the law and getting it through Parliament. It needs to be transformed into political action

Taking the example of law reform, this as a strategy has to work in tandem with strategies addressing the structures of the system, strategies to challenge, influence and reform the relevant institutions.

A corollary third limb would be strategies confronting the cultural ground upon which the system rests by raising critical consciousness on the particular issue. The three spheres; substance, structure and culture must be addressed together in relation to an issue.

The approach will have to be collective. For lawyers, it may mean moving out of the conventional mode of lawyering and begin working with civil society in all the three spheres.

Complex force

The social objectives to these efforts are manifold and not unfamiliar. It aims to re-work power relations or distribution of power, strengthens participation of civil society in the political process and builds values of democracy. It is part of our self-governance.

Critical legal studies have noted the coercive nature of law and the tendency of the state to veer towards authoritarianism. Therefore it becomes prudent to bear in mind that law may well vest more power with the state enforcement machinery. Every legal strategy has the potential of strengthening the law and the state and limiting, curtailing and disenfranchising civil society.

Law is a complex and contradictory force. Law is neither a simple instrument of social engineering nor of oppression. Law reinforces subordination, at the same time as it provides an important source of resistance and change.

In re-visioning law, it is important not to lose sight of institutions and structures within which dominant views are embedded.

In some countries, the government actually dispenses funds for civil society groups to challenge state institutions through litigation on specific matters. The Court Challenges Programme of Canada is a unique example of a state funded project of this nature.

Some local NGOs are government funded or partially government funded. It is worth testing if government funds (aka taxpayers' money) to civil society groups comes with a price for the patronage. It would be even more interesting if, in fact, groups are allocated funds to raise the challenge.