Nonviolent Activists on Trial

For nonviolent activists with a strategic perspective and a commitment to
revolutionary transformation, life is an ongoing struggle for disengagement
from the existing structures and processes of patriarchal society.  We simply
cooperate less and less with existing institutions of oppression and
exploitation as we work to create alternative processes to put in their place.

For instance, we may identify the total inadequacy of an institution such as
Parliament - which is patriarchal and hierarchical while being neither truly
representative nor accountable - and refuse to offer our vote of endorsement. 
The simple act of vote refusal liberates us to explore more creative ways of
transforming human society than that offered by choosing between elites.

Sometimes, however, there is a tension between the advantages of not
cooperating and those from using the institution as a forum for consciousness
raising.  The Judiciary is one example.  While it is clear to me that the
Judiciary is a structure that must be replaced; it is one with which committed
activists get all too many opportunities to interact!

Given my experience with courts to date, I have serious reservations about
cooperating with trials.  And yet, by doing so thoughtfully, I am conscious of
its political value.  It can be used to raise the consciousness of court
officials, the police, the media and others who are present; it can be used as
a way of drawing politically inactive lawyers into the struggle; and it can be
used to help activists overcome their fear of 'authority' if court appearances
demystify the legal system.  While I am not convinced that these advantages
always outweigh the disadvantages of putting quality energy into formulating
creative but usually doomed court defences, my sense is that it is a part of
the process that activists need to experience in order to fully liberate
themselves.  In any case of course, the campaign can 'win' even if the
activists are found 'guilty'.  "You can jail the resister, but not the
resistance."

It is clear to me that the law and justice do not intersect - if they did, the
courts could not be silent on such questions as the legality of nuclear
weapons, environmental desecration, species extinctions and the systematic
starvation of Third World peoples. However, if I am going to court, I like to
make certain that the campaign which put me there - rather than some arcane
legal point - is the focus of court proceedings.  Here is an example.

On Wednesday 16 May 1990, thirty-two members of the Melbourne Rainforest
Action Group stood trial following their attempt to reload the rainforest
timber ship Arawa Bay on 18 November 1989.  We were charged with 'climbing the
port security fence' and 'disobeying a police directive'; each offence carried
a maximum penalty of $2000.

We had decided not to contest the police case on technical grounds but to base
our defence on our beliefs and conscience; therefore we had an agreed set of
facts with the police prosecutor which stressed the nonviolent nature of our
action.  We had also decided to defend ourselves and arranged to do so
collectively - members of the group accepted responsibility for different
sections of the proceedings.  We obtained legal advice in order to prepare our
legal submission so that our defence was sound in law.  This ensured that the
Magistrate was obliged to hear all our evidence and could not dismiss it
preemptively.

After the court preliminaries, each one of the thirty members present gave
evidence on their moral convictions concerning the threat to the global
rainforest heritage, the threat to tribal peoples, the threat to non-human
species and the threat to future generations posed by the industrial logging
of rainforests.  We turned the courtroom into a 'Council of All Beings' where
the unheard cries of those who suffer most were put before the court.  We
posed the question: where does the law stand on the great environmental issues
of the Age?  For the law or justice?  For evolution or extinction?

We drew attention to Australia's role in rainforest destruction through its
importation of rainforest timbers from South East Asia.  After each activist
gave evidence, the prosecutor cross-examined us.

Following the evidence, we presented our legal submission.  In summary, it
drew attention to the two legal grounds of our defence: firstly, we did not
have a 'guilty mind' or 'evil intention' when we climbed the fence, but rather
an honest and reasonable belief that we had a moral imperative to be on the
wharf in order to act to halt Australia's role in the destruction of the
world's rainforests.  Secondly, we acted out of 'necessity' in view of the
'irreparable evil' and 'imminent peril' which we were trying to prevent.

The Magistrate was very receptive.  He adjourned the court for fifty minutes
in order to consider his verdict.  On his return to court, he started by
thanking us and stressing that the court was neither a political nor moral
one; and he could only make judgments based on the law decided by Parliament
and interpreted by higher courts!  He found us 'guilty'; offered us a good
behaviour bond of just two months and when this was refused, fined each of us
a token $50 on each offence.  Most of us will not be paying the fine and will
spend a brief time in jail.

The court was packed out with activists, supporters and the media and the
story was run on two television stations, radio and in the press.

By the end of our day in court, it was evident that more people, including
police, court officers and reporters, were thinking more deeply about
rainforest issues after hearing moving testimony from members of the group
throughout the trial.

The final verdict?  We 'lost', but the rainforests 'won'.

Robert J. Burrowes