—Mara Malagodi, Reader (Associate Professor), Warwick Law School
The 2024 edition of Sheffield DocFest “Reflections on Realities” took place on 12-17 June. I attended as an industry delegate. Using the films screened and the discussions held at this fascinating event, I will explore in this post the intriguing question of what we can learn by combining constitutional inquiry with film analysis to engage with the most pressing questions in the field of constitutional law in its comparative, contextual, and historical dimensions. Sheffield DocFest is the UK’s leading documentary film festival. In this post, I will limit my inquiry to documentary film as a genre explicitly committed to documenting reality and an implicit commitment to truth, but this approach can be extended to feature films, TV series, visual installations, and even podcasts.
I trained as a documentary filmmaker in 2014 as part of my British Academy Postdoctoral Fellowship at EICTV in Cuba – the legendary film school founded by Gabriel Garcia Márquez, Julio García Espinosa, Tomás Gutiérrez Alea, and Fernando Birri in 1986 in San Antonio de Los Baños. In Cuba I co-directed a short documentary Caminando por La Habana (“Walking through Havana”), which screened at a number of film festivals and won the Raindance award for Best Short Doc in 2015. Building on the experience of film school and the festival circuit, I developed in 2016 a Law and Film course, which combines doctrinal, comparative, and socio-legal analysis with cultural studies theories and film analysis from the perspective of a film practitioner rather than a film theorist. Since joining Warwick Law School I have recast my course as Cinematic Explorations of Public Law.
In recent years, film has become ubiquitous and has shaped societal perceptions of law in non-legal circles much more effectively and pervasively than any other medium. This is particularly important in a time of profound global instability and violent conflict at both domestic and international level. In fact, Sheffield DocFest 2024’s welcome address by the organisers aptly reminded participants that ‘this year’s festival inevitably reflects what is happening around the world: the violence, war and unrest filling our daily news; the multiple elections delivering a wave of hard-line autocratic leaders, and the proliferation of deep fakes, misinformation and video AI threatening democracy’. The festival’s programme echoed the constitutional challenges I have been grappling with in my scholarship: the advancement of democratic backsliding, constitutional degradation, populist politics, exclusionary nationalism, and authoritarianism; the obstacles to the realisation of gender constitutionalism; the marginalisation of constitutional experiences; conflict over the notion of “the people” and the nature of state sovereignty; fraught constitutional transitions; an increasingly imperilled right to protest; and a withering of the rule of law in a climate of legal impunity.
I contend that a ‘law and film’ approach offers innovative insights to explore the most pressing constitutional challenges with which jurisdictions around the globe are confronted. On an intuitive level, film provides influential representations of law able to reach wider, more diverse audiences, and shape public opinion about legal actors, institutions, processes, norms, principles, and values. This is what law and film scholars have characterised as the ‘law-in-film’ approach, with films enacting ‘viewer-engaging judgment’, a process in which audiences act as judges and juries to pass judgment on different aspects of law as explained by Orit Kamir (2005). In other words, film often shapes our perceptions and ‘expectations of law and justice’ (Greenfield et al. 2010). For instance, Ava DuVernay’s highly influential documentary 13th (2016) compellingly argued that the framing of the US Constitution’s 13th Amendment abolishing slavery ‘except as a punishment for crime whereof the party shall have been duly convicted’ has been inextricably intertwined with the mass incarceration of African-Americans in the contemporary prison-industrial complex.
On an activist level, some law films seek to mobilise public opinion and political capital with the aim of bringing about changes in the legal domain itself, a particular aspect of the ‘film-as-law’ approach (Greenfield et al. 2010). For instance, the RTÉ Investigations Unit’s documentary The Torture Files (2014) was instrumental in successfully lobbying the Irish Government to apply to the European Court of Human Rights to revise its 1978 decision in the case of Ireland v. UK in light of the new evidence presented in the film. Notwithstanding the new evidence, in 2018 the Court declined to revisit the ‘hooded men case’ on the five enhanced interrogation techniques deployed in Northern Ireland during ‘the Troubles’.
Often law films combine both ‘law-in-film’ and ‘film-as-law’ approaches. In Sheffield, Connie Field’s Democracy Noir (2024) was a masterclass on the populist playbook of constitutional degradation deployed in Hungary by Viktor Orbán’s regime. Told through the intersecting stories of three formidable Hungarian women – an opposition politician, an investigative journalist, and a civil society activist – the film put forward a powerful, forensic, but also deeply humane, portrayal of democratic backsliding in the country and its everyday life implications. When discussing why ordinary Hungarians did not forcefully react against the subversion of the Constitutional Court, the retort of the opposition politician on screen poignantly captured the intangible essence of the rule of law and its inability to act as a rallying cry for mass political mobilisation: ‘People ask what is the Constitutional Court – can you eat it? The rule of law, you cannot eat it’. With its female director and three female protagonists, the film also successfully foregrounded the gendered dimension of constitutional degradation so often overlooked in legal analysis. Building on the old feminist adage that the personal is political, the director crafted an intimate and empathetic portrayal of the protagonists’ personal lives to show both the rationale and human cost of the constitutional privileging of the heterosexual monogamous family resulting in the encroachment on LGBTQI+ rights and sexual and reproductive rights. The film is also a call to arms, as the director is also American with an apparent eye on the forthcoming US elections, to mobilise against the threat of authoritarianism by also documenting the extensive international network of conservative political forces. In this scenario, Hungary becomes a cautionary tale for democratic decay in the heart of Europe.
Similarly, the affective power of documentary film helps unearth and give visibility to otherwise marginalised voices and histories, akin to what we euphemistically refer to in the field of comparative constitutional law as ‘underrepresented jurisdictions’. Fallen off the international media’s agenda, the ongoing war in Sudan and the long-standing popular struggle for civilian rule have been powerfully captured in the film Madaniya (2024) by Sudanese writer and director Mohamed Subahi. Based on extensive footage of the 2018-19 civilian movement demanding an end to military rule, the film follows three young activists with engrossing portrayals of their political activism, and we empathise with their preoccupations about Sudan’s fraught and fragile constitutional transition from praetorian rule. Then filmic time was abruptly suspended by a black screen unceremoniously announcing that civil war broke out in April 2023 and providing an estimate of the war’s horrific death toll at the time of the film’s release. At the end of the Q&A the filmmaker was asked what had happened to his film’s protagonists and he said he did not know. As silence filled the cinema, we sat uncomfortably with that void, uncertainty, and erasure.
Film as archive also featured prominently across several film screenings and industry events. Archive film is ‘a powerful storytelling tool for resistance, representation and social change’ (O’Sullivan and Chambers, Archives for the Future). The stylistic choice of using archival footage reinforces a film’s claim to historical authenticity and truth. Strike: An Uncivil War recounts the story of the ‘Battle of Orgreave’ on 18 June 1984 in the context of the year-long miners’ strike of 1984-85. In the violent confrontation between British police and the striking miners before Scunthorpe steelworks in Orgreave, colonial paramilitary police tactics were deployed domestically for the first time leading to mass arrests and prosecutions of the striking miners. The film documents forensically the creation of the secret ACPO (Association of Chief Police Officers) Manual with the help of various colonial police forces – including officers serving in Hong Kong – and its approval by the Home Office, alongside the dubious use of police statements in the prosecution of 95 miners for rioting that eventually led to the collapse of the case. The film makes extensive use of powerful archival footage punctuated by moving interviews with miners recollecting these events to make a compelling case on behalf of the miners in the court of public opinion. As the film’s archivist producer Alex Wilson pointedly explained, archives are instrumental in ‘radically counteracting a dominant narrative of a certain event’. Significantly, the film premiered on 16 June at Sheffield DocFest, two days before the 40th anniversary of Orgreave, which is situated a few miles from Sheffield’s city centre. The film’s timely release and distribution across 75 cinemas across the UK has successfully amplified the long-standing demand by the Orgreave Truth and Justice Campaign for ‘a full and independent Inquiry into policing and state involvement at the Orgreave coking plant’. Rejected by previous Conservative governments, Labour’s newly released manifesto on 14 June, instead, pledged to launch an inquiry into these events.
The archival collection of footage has a dual purpose: the forensic collection of potential evidence for future legal proceedings, but also the documentation of specific historical instances. The Ukraine War Archive and the documentary film Witnesses. Captivity That Kills created alongside the Archive represent a clear illustration of this approach. In the wake of the illegal invasion of Ukraine by the Russian Federation in 2022, a collective of activists began collecting, verifying and indexing video material sent to them directly, but also downloaded on various social media and communication platforms such as Telegram. The panel discussion after the screening highlighted the forensic and ethical preoccupations with authenticity with respect to verifying the accuracy of the material and sources, and also averting the risk of archival material manipulation, especially for footage that might be used as evidence in legal proceedings. In a radically different approach, a profoundly creative and innovative use of archival material was deployed in the short doc Dancing Palestine by Lamees Almakkawy. The Palestinian dance dabke is framed as an embodiment of the collective memory underpinning Palestinian identity, which is continuously ‘threatened with violent erasure’. For instance, the layering technique juxtaposing maps with borders imposed on Palestinians and archival photos of Palestinian individuals and families is a powerful cinematic tool to humanise Palestinians. At the same time, this filmic technique creates a cognitive dissonance in the viewer that allows critical rethinking of the notions of national sovereignty and state borders that underpin public law in both its domestic and international dimensions.
Film can be a visceral experience if well-crafted. During many screenings at Sheffield DocFest, I experienced impotence, shame, fear, rage, disgust, and despair. I profoundly empathised with the filmakers and their protagonists – many involved in these projects at very high personal risk. But there was also hope and urgency. Hope was embedded in some of the films that dared to imagine a brighter future but also resulted from sharing an inclusive creative space. Urgency was dictated by the acute awareness of the worrying state of the planet – politically and environmentally. There is added value in combining the analytical study of constitutional law with artistic expressions in popular culture to make sense of the world that surrounds us, especially at a time of profound crisis.
Suggested citation: Mara Malagodi, Documenting Injustice: Constitutional Challenges on Celluloid – A Reportage from Sheffield DocFest 2024, Int’l J. Const. L. Blog, Jun. 23, 2024, at: http://www.iconnectblog.com/documenting-injustice-constitutional-challenges-on-celluloid-a-reportage-from-sheffield-docfest-2024/
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